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December 5, 1994

JOHN T.P. CALLAHAN and LINDA R. CALLAHAN, husband and wife, Plaintiffs,
LANCASTER-LEBANON INTERMEDIATE UNIT 13, LANCASTER COUNTY CHILDREN AND YOUTH SOCIAL SERVICE AGENCY, DR. RICHARD SHERR, individually and as Executive Director of Lancaster-Lebanon Intermediate Unit 13, STEPHEN SOHONYAY, individually and as Director of Lancaster County Children and Youth Social Service Agency, KERRY STAUFFER, CURTIS ELLEDGE, LISA LANTZ, individually and in their official capacities as employees of Lancaster-Lebanon Intermediate Unit 13, GREG LANDIS and JAMES LAUGHMAN, individually and in their official capacities as employees of Lancaster County Children and Youth Social Service Agency, Defendants.

The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN


 December 5, 1994

 On August 6, 1993, plaintiffs, John and Linda Callahan, filed this action, individually and on behalf of their son Michael, alleging violations of 42 U.S.C. § 1983 ("§ 1983") and various state law tort claims *fn1" against all defendants. The gravamen of their charges is that they were temporarily wrongly deprived of custody of Michael because of unsubstantiated allegations of child abuse. The allegations were based on information obtained primarily through facilitative communication, a method of communicating with autistic children. The defendants are the Lancaster-Lebanon Intermediate Unit 13, Dr. Richard Sherr, Executive Director of School; Kerry Stauffer, teacher; Lisa Lantz, teacher; and Curtis Elledge, teaching assistant. Other defendants are the Lancaster County Children and Youth Social Service Agency; Stephen Sohonyay, Director of Agency; Greg Landis, caseworker supervisor; and James Laughman, caseworker. All individual defendants are being sued both in their individual and official capacities. On November 15, 1993, Lancaster-Lebanon Intermediate Unit 13, and the individual teacher defendants, filed a Motion to Dismiss all charges against them, which this court denied in an order dated December 10, 1993. Presently before the court are the Motions of all defendants for Summary Judgment, filed on September 9 and 12, 1994, and the plaintiffs' responses to these motions, filed on September 20 and 26, 1994. This court has jurisdiction pursuant to 28 U.S.C. § 1331.


 Discovery in this matter is complete, and the essentially undisputed facts are as follows. *fn2"

 Plaintiffs' son, Michael C. Callahan ("Michael"), has been diagnosed with severe autism and mental retardation. He is almost completely nonverbal in his communication. At the time of the events in question, Michael was 16 years of age and a student at defendant Lancaster-Lebanon Intermediate Unit 13 ("IU 13"). Defendant Lantz was Michael's teacher during the summer of 1992 and defendant Stauffer had been Michael's school year teacher since fall 1990. Defendant Elledge was the teaching assistant assigned to Michael during the 1992-93 school year while Michael was in Stauffer's class. *fn3"

 In early 1992, several of the teachers and teaching assistants at IU-13, including defendants Lantz, Stauffer, and Elledge, received training in a technique for working with persons suffering from autism called "facilitated communication" ("FC"). *fn4" At the June 1992 Individualized Education Plan meeting, plaintiffs approved the use of FC with Michael.

 During the summer of 1992, Michael's teacher, defendant Lantz, utilized FC to communicate with him. She believed during this time that Michael communicated to her through FC that his father was abusing him. During the fall of 1992, through further communication with Michael utilizing FC, Lantz came to believe that the alleged abuse was sexual in nature. At some point in the fall, she relayed her thoughts to Rita Foster, the school social worker, who relayed the information to defendant Stauffer. Stauffer apparently thought that there was not enough information at that point to warrant a report to the Lancaster County Children and Youth Social Service Agency ("Agency") pursuant to the Pennsylvania Child Protective Services Law, 23 Pa.C.S.A. § 6311(a) and (b). *fn5" At Stauffer's direction, the teaching assistant, defendant Elledge, became the primary facilitator with Michael when FC was used with him. Defendants maintain that Elledge's facilitation with Michael led Elledge also to suspect, by early 1993, sexual abuse of Michael by his father, although the statements Michael made to Elledge were apparently somewhat inconsistent with those made to Lantz. *fn6"

 Near the end of 1992, because other teachers at IU 13 had received reports of child abuse through FC from other students, Rita Foster contacted the defendant Lancaster County Children and Youth Social Service Agency to request clarification on when reports of abuse, particularly those obtained through FC, should be made pursuant to 23 Pa.C.S.A. § 6311. An Agency representative advised school personnel that information received through FC regarding possible abuse should be reported provided that it met several criteria. She indicated first that the communication should describe the alleged abuse in a somewhat detailed manner with regard to such particulars as time, place, or body parts involved. Second, the child should be able to convey the information consistently through more than one facilitator. The Agency also provided the school with anatomically correct drawings so school personnel could attempt to confirm any allegations of abuse independent of FC.

 On February 9, 1993, Michael apparently came to school in an agitated state. In an attempt to elicit information from him through FC about what was troubling him, defendants Elledge and Lantz *fn7" came to believe that Michael was distressed because he was in pain and that the cause of the pain allegedly was sexual abuse by Michael's father. *fn8" School personnel decided it was time to report the allegations, and Rita Foster relayed them to the Agency that day.

 After receiving the phone call from Foster, Agency personnel discussed the situation with Judge James P. Cullen of the Lancaster County Juvenile Court. *fn9" Pursuant to the telephone conference, defendant caseworker James Laughman filed an emergency petition for Temporary Custody/Custody with Judge Cullen, and it was approved that same day. Michael was taken from his parents' home and into protective custody that evening. *fn10"

 On February 11 and 12, 1993, at a hearing conducted by Judge Cullen, the court received testimony from defendants Lantz and Elledge and observed them facilitate with Michael. A medical examination conducted soon after Michael was taken into custody did not indicate any signs of abuse. The court decided, however, that Michael would remain in the custody of the Agency, pending another hearing. On April 13, 1993, the court conducted a hearing, at the request of the plaintiffs, to determine the admissibility of statements made through FC. Plaintiffs presented expert testimony challenging the validity of FC. At the close of the hearing, with the agreement of all parties, the Agency's petition for temporary custody was withdrawn and Michael was returned to the custody of his parents.


 Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment where the:

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

 "The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case." In Re Phillips Petroleum Sec. Litig., 881 F.2d 1236, 1243 (3d Cir. 1989). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3, 106 S. Ct. 2548, 2552 n.3, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(e)); see also First Nat'l Bank v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986).


 Section 1983 provides for the imposition of liability on any person who, acting under color of state law, deprives another of rights, privileges, or immunities secured by the Constitution or the laws of the United States. To state a claim under § 1983, the plaintiffs must show both that (1) the offending conduct was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiffs of rights secured by the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912-13, 68 L. Ed. 2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). In this case, no party disputes that defendants were acting under color of state law.

 As an initial matter, we note that plaintiffs have brought claims against the individual defendants in both their official and individual capacities. Individual capacity suits seek to impose personal liability upon a government official; damages are recoverable from the official's personal assets. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985). To the extent that plaintiffs are suing the individual defendants in their official capacities, the claims are the equivalent of claims against the municipal agencies themselves. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Accordingly, we will discuss claims against the individual defendants in their individual capacities separately, while reserving discussion of their liability in their official capacities until the liability of the respective municipal agencies is discussed.

 Generally, in a § 1983 action, the first issue to be determined is whether the plaintiff has sufficiently alleged a deprivation of a right secured by the Constitution. See Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692, 61 L. Ed. 2d 433 (1979). However, when defendants assert the affirmative defense of immunity, as the defendants in this case have done, we must first determine whether they are entitled to such that defense. *fn11" See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982); D.R. By L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1368 (3d Cir. 1992), cert. denied, 113 S. Ct. 1045, 122 L. Ed. 2d 354 (1993). Qualified immunity is ordinarily an issue of law to be determined by a court on a motion to dismiss or a motion for summary judgment. See Anderson, 483 U.S. 635, 646, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (". . . we have emphasized that qualified immunity questions should be resolved at the earliest possible stage of a litigation."); Harlow, 457 U.S. at 818; Czurlanis v. Albanese, 721 F.2d 98, 108 (3d Cir. 1983). This approach allows for the elimination of "meritless actions against public officials at the earliest possible stage in the litigation." See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985).


 State officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. at 818. The immunity is not absolute but rather balances the interest in allowing public officials to perform their discretionary functions without fear of suit against the public's interest in vindicating important federal rights. See Lee v. Mihalich, 847 F.2d 66, 69 (3d Cir. 1988).

 "Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established at the time it was taken.'" Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) (quoting Harlow, 457 U.S. at 818). The Court in Anderson explained that:

The contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has been declared unlawful, but it is to say the unlawfulness must be apparent.

 Anderson, 483 U.S. at 635. The Third Circuit has not required a strict factual congruence between previous cases and the circumstances in which the defendant official acted, holding instead that,

. . . some but not precise factual correspondence to precedent would be required . . . . We expect officials to apply general, well-developed legal principles . . . . We have established that we have adopted a broad view of what constitutes an established right of which a reasonable person would have known, which requires us to undertake an inquiry into the general legal principles governing analogous factual situations, if any, and a subsequent determination whether the official should have related this established law to the instant situation.

 Stoneking v. Bradford Area School District, 882 F.2d 720, 726 (3d Cir. 1989), cert. denied, 493 U.S. 1044, 110 S. Ct. 840, 107 L. Ed. 2d 835 (1990) (internal citations omitted); see also Hicks v. Feeney, 770 F.2d 375, 379-80 (3d Cir. 1985), cert. denied, 488 U.S. 1005, 109 S. Ct. 786, 102 L. Ed. 2d 777 (1989). "The ultimate issue is whether, despite the absence of a case applying established principles to the same facts, reasonable officials in defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful." See Good, 891 F.2d at 1092. Furthermore, "even where the officials clearly should have been aware of the governing legal principles, they are nevertheless entitled to immunity if based on the information available to them they could have believed their conduct would be consistent with those principles." Id. Qualified immunity is applicable even where officials "of reasonable competence could disagree" that such acts were objectively reasonable, See Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986), and "as the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Id.

 1. Clearly Established Rights of Plaintiff

 Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989). In combination with the Due Process Clause of the Fourteenth Amendment, § 1983 allows plaintiffs to assert three kinds of federal claims: (1) claims for the deprivation by state officials of any of the specific protections defined in the Bill of Rights; (2) claims under the substantive component of the Due Process Clause "that bars certain arbitrary, wrongful government actions, regardless of the fairness of the procedures used to implement them;" and (3) claims under the procedural component of the Due Process Clause relating to deprivations of life, liberty, or property without due process of law. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990) (internal citations omitted).

 In the body of their complaint, plaintiffs allege that all defendants violated essentially the same Constitutional rights. Specifically, plaintiffs allege that defendants' conduct:

a. constituted an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments;
b. constituted an invasion of plaintiffs Michael and Mr. and Mrs. Callahan's right of privacy in violation of the Fourth, Ninth, and Fourteenth Amendments; and
c. denied plaintiffs Michael and Mr. and Mrs. Callahan due process of law in violation of the Fourteenth Amendment by conduct that shocks the conscience.

 See Complaint at P 34. Plaintiffs' first claim appears to be of the first variety discussed above; that is, a claim alleging a deprivation by a state official of a specific protection defined in the Bill of Rights. Their third claim appears to allege a substantive due process violation. As to the second claim, we note that neither plaintiffs' complaint nor their subsequent pleadings give us any indication what specific principles of privacy may be implicated. If plaintiffs meant to implicate their right of privacy with regard to the care and custody of Michael, we find this to be intertwined with their substantive due process claim. However, if it was plaintiffs' intention to convey that their interest in personal reputation was violated, this claim would probably be analyzed under the realm of procedural due process. See Hodge v. Carroll County Department of Social Services, 812 F. Supp. 593, 600 (D. Md. 1992), rev'd in part on other grounds, Hodge v. Jones, 31 F.3d 157 (4th Cir. 1994).

 Since the determination of whether defendants are entitled to qualified immunity turns on plaintiffs' clearly established Constitutional and statutory rights at the time of the alleged violation, we will briefly discuss the legal standard behind each of these allegations in turn, although not in the order that they have been alleged. In the interest of thoroughness, we will analyze plaintiffs' privacy claim under a procedural due process framework, while noting that the substantive due process discussion is equally applicable. Furthermore, because plaintiffs have not alleged with more particularity than noted above ...

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