workers face today when investigating child abuse: "If they err in interrupting parental custody, they may be accused of infringing the parents' constitutional rights. If they err in not removing the child, they risk injury to the child." van Emrik, 911 F.2d at 866. It is precisely this type of damned if you do, damned if you don't, discretionary decision-making on the part of government officials that the doctrine of qualified immunity doctrine was meant to protect.
c. Defendant Stauffer
Plaintiffs allege against defendant Stauffer that he failed to "adequately monitor, supervise, and train defendants Lantz and Elledge in the provision of educational services and the use, validity, and reliability of 'facilitated communication'. . . ." See Complaint at P 35.
Defendant Stauffer was Michael's school year teacher at the time of the events in question. As far as we can ascertain, he engaged in no communication through FC with Michael on a regular basis, although he had been trained in its use along with other teachers at IU 13. After hearing of Lantz's suspicions of abuse in the fall of 1992, Stauffer apparently determined that not enough information existed at that point to report the child abuse allegations and directed that Elledge should be the primary facilitator with Michael when FC was used with him. Furthermore, Stauffer was present on February 9, 1993, when Michael facilitated his allegations again to both Lantz and Elledge, and we assume he participated in the decision to report the abuse although the person who made the actual report was Rita Foster.
We initially note that plaintiffs appear to allege a failure to train theory against defendant Stauffer that would fail on several grounds. First, aside from plaintiffs' statements in the complaint, there is no indication that Stauffer ever formally exercised any supervisory authority over defendants Lantz and Elledge since he himself was a teacher at IU 13. Second, since we previously found that it was objectively reasonable, at the time in question, for defendants to have relied on communications obtained through FC, the crux of plaintiffs' argument against Stauffer, failure to train and supervise in the use of FC, is deflated. See Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989) ("[A] person is not the 'moving force [behind] the constitutional violation' of a subordinate, unless that 'person' . . . has exhibited a deliberate indifference to the plight of the person deprived.").
These arguments are tangential, however, since based on the above facts, we find that Stauffer's actions were objectively reasonable. Stauffer acted in accordance with the dictates of the Child Protective Services Law as described above. Furthermore, Stauffer did not report the allegations of abuse the first time he heard them in the fall of 1992 from Lantz, but waited until there was confirmation from another facilitator before reaching the conclusion that a report should be made.
d. Defendant Landis
Plaintiffs allege against defendant Landis that he failed to "adequately monitor, supervise, and train defendant Laughman in the provision of child protective services and the investigation of allegations of sexual and physical abuse, . . ." See Complaint at P 38. Landis initially spoke with Judge Cullen on the telephone regarding the allegations made by Michael and apparently participated in the decision to file for a custody petition with the court.
Based on the same reasoning we engaged in with regard to defendant Laughman above, we find that defendant Landis's actions with regard to this case were objectively reasonable.
e. Defendants Sohonyay and Sherr
Plaintiffs also allege against defendants Sohonyay and Sherr a general theory of failure to "monitor, supervise, and train" defendants Laughman, Landis, Elledge, Lantz, and Stauffer. Defendant Sherr is the Executive Director of IU 13 and defendant Sohonyay is the Director of the Agency.
We note first that plaintiffs' complaint and subsequent pleadings are void of specific allegations against either of these defendants. Nowhere is it indicated that either defendant personally participated in the events, and thus their only potential liability arises under a theory of respondeat superior. It is well established in § 1983 case law that a supervisor cannot be held liable merely on a theory of respondeat superior, but that a plaintiff must allege some affirmative conduct on the part of the supervisor. See Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). A plaintiff may establish such conduct either through "allegations of personal direction or of actual knowledge and acquiescence" or through proof of direct discrimination by the supervisor. See Keenan v. City of Philadelphia, 983 F.2d 459 (3d Cir. 1992); Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (citations omitted). Accordingly, since plaintiffs' have not alleged such involvement, we grant summary judgment in favor of defendants Sohonyay and Sherr.
See Myers, 810 F.2d at 1464-65 (no supervisory liability for sheriff when no clearly established law existed, deputies' actions were objectively reasonable, and there were no allegations of personal involvement).
B. MUNICIPAL LIABILITY
Local governments may be held to answer for Constitutional violations caused by official policy or custom of the municipality. See Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611 (1978). The Supreme Court defined such a municipal policy as a "statement, ordinance, regulation, or decision officially adopted and promulgated by [a local governing] body's officers." Id. at 690. A municipal custom for § 1983 purposes is "such practices of state officials . . . [as are] so permanent and well-settled as to constitute a 'custom or usage' with the force of law." Id. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1613, 26 L. Ed. 2d 142 (1970)); see City of Oklahoma City v. Tuttle, 471 U.S. 808, 820-24, 105 S. Ct. 2427, 2434-37, 85 L. Ed. 2d 791 (1985) (policy must be "moving force" behind Constitutional violation)." Municipal entities are not entitled to the defense of qualified immunity. See Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980).
Plaintiffs allege against defendant IU 13 that since "defendants Lantz, Elledge, Stauffer, and Sherr were acting within the scope of their employment at, and according to the policies and procedures of, defendant IU 13, . . . said acts were ratified by defendant IU 13. As a result, defendant IU 13 is liable for the acts of defendants Lantz, Elledge, Stauffer, and Sherr, as described in this complaint." See Complaint at P 37. Plaintiffs similarly allege against defendant Agency that since "defendants Laughman, Landis, and Sohonyay were acting within the scope of their employment at, and according to the policies and procedures of, defendant CYA, and as such, said acts were ratified by defendant CYA. As a result, defendant CYA is liable for the acts of defendants Laughman, Landis, and Sohonyay, as described in the complaint." See Complaint at P 40.
We first note that plaintiffs essentially allege a theory of respondeat superior liability against defendants IU 13 and Agency. However, a municipality cannot be held liable under this type of theory. See Monell, 436 U.S. at 694. Plaintiffs argue, however, in their response to defendants' Motions for Summary Judgment, that the decision to use FC was indeed one of policy:
. . .the reliance upon that which was obtained through Facilitated Communication in pursuing this matter originally was not a decision left to the individual employees of the Agency. In other words, reliance upon Facilitated Communications by the Agency and the apparent failure to consider the complete absence of any other evidence which would corroborate the contents of the Facilitated Communications is a direct result of the execution of a governmental policy, regulation, or officially adopted decision.
See Plaintiff's Response to Summary Judgment at 4.
We find that since we held individual defendants actions vis-a-vis use of FC to be objectively reasonable, and thus entitled to qualified immunity, there can be no basis of recovery against the municipal agencies. See City of Los Angeles v. Heller, 475 U.S. 796, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (per curiam) (holding that a municipal entity cannot be held liable for failing to train or supervise an officer where there is no underlying Constitutional violation by the officer); Frazier, 957 F.2d at 931 (no basis of recovery in civil rights action against agencies investigating allegations of child abuse, where only possible liability of agencies would derive from the culpability of their respective employees, and those employees were entitled to defense of qualified immunity); Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir. 1989) (where a plaintiff's claims focus on harm caused by the actions of municipal employees, rather than harm directly traceable to a municipal policy, municipal liability claims must be dismissed where the individual officer is exonerated). Cf. Fagan v. City of Vineland, 22 F.3d 1283 (3d Cir. 1994) (municipality may be held independently liable even if no individual liability found if claims "based on different theories and require proof of different actions and mental states . . .").
Even if we had not so found, however, defendants Agency and School would nevertheless be entitled to dismissal of the claims against them. This is because, beyond the allegations quoted above, plaintiffs offer no support for their contention that the use of information received through FC was the result of a "policy" or "custom" on the part of the municipal defendants. Generally, proof of a single incident of unconstitutional activity is insufficient to impose municipal liability unless there is proof that it was caused by an existing municipal policy attributable to municipal policy-makers. See City of Oklahoma City, 471 U.S. at 823-24; Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986) (municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances); see also Reynolds By Reynolds v. Strunk, 688 F. Supp. 950 (S.D.N.Y. 1988) (county social service agency not liable under § 1983 absent allegation that its actions were the product of official government policy); Millspaugh, 746 F. Supp. at 848 (social service department not liable under § 1983 because plaintiffs failed to demonstrate any causal connection between the department's policies and the alleged deprivations). Consequently, we dismiss all claims against defendants IU 13 and Agency.
IV. PENDENT STATE LAW CLAIMS
Since we have dismissed all of plaintiffs' federal claims against defendants, the determination of whether to entertain or dismiss the pendent state claims is within our discretion.
The Supreme Court has indicated, however, that "if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." United States Mineworkers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966); See Robison, 821 F.2d at 925 ("When the federal claim must be dismissed, it may be an abuse of discretion to take pendent jurisdiction of a claim that depends on novel questions of state law."). Accordingly, since we have dismissed all federal claims against all defendants in this action, we exercise our discretion to dismiss the pendent state claims.
For the reasons outlined in the foregoing memorandum, we grant summary judgment in favor of all defendants. An appropriate order follows.
VAN ANTWERPEN, J.
December 5, 1994
AND NOW, this 5th day of December, 1994, upon consideration of Defendants' Motions for Summary Judgment, filed on September 9 and 12, 1994, and Plaintiffs' Responses to these Motions, filed on September 20 and 26, 1994, it is hereby ORDERED consistent with the foregoing opinion as follows:
1. Defendants' Motions for Summary Judgment are GRANTED.