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FORD v. JOHNSON

September 26, 1995

MABLE L. FORD, ADMINISTRATRIX OF, THE ESTATE OF SHAWNTEE L. FORD, DECEASED, and MABLE L. FORD IN HER OWN RIGHT. Plaintiff, -vs- ALTHEA DENISE JOHNSON, INDIVIDUALLY AND IN HER CAPACITY AS CASEWORKER FOR ALLEGHENY COUNTY CHILDREN AND YOUTH SERVICES, FRANK J. PETRAS, JR., INDIVIDUALLY AND IN HIS CAPACITY AS CASEWORKER FOR ALLEGHENY COUNTY CHILDREN AND YOUTH SERVICES, MELRENA FLOWERS, INDIVIDUALLY AND IN HER CAPACITY AS THE DIRECTOR OF MON VALLEY REGIONAL OFFICE OF ALLEGHENY COUNTY CHILDREN AND YOUTH SERVICES, MARY GARLAND FREELAND, INDIVIDUALLY AND IN HER CAPACITY AS DIRECTOR OF ALLEGHENY COUNTY CHILDREN AND YOUTH SERVICES, ALLEGHENY COUNTY CHILDREN AND YOUTH SERVICES, A GOVERNMENTAL ENTITY ORGANIZED AND EXISTING UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, ALLEGHENY COUNTY INSTITUTION DISTRICT, A GOVERNMENTAL ENTITY ORGANIZED AND EXISTING UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, ALLEGHENY COUNTY A POLITICAL SUB-DIVISION ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA THOMAS J. FOERSTER, PETE FLAHERTY, LARRY DUNN, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE ALLEGHENY COUNTY BOARD OF COMMISSIONERS AND EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE ALLEGHENY COUNTY INSTITUTION DISTRICT, JEFFREY BRADY, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE OFFICER FOR THE CITY OF PITTSBURGH, ROBERT SWARTZWELDER, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER FOR THE CITY OF PITTSBURGH, GWENDOLYN J. ELLIOTT, INDIVIDUALLY AND IN HER CAPACITY AS POLICE COMMANDER, INVESTIGATIONS UNIT AND MAYOR'S OFFICE OF YOUTH POLICY FOR THE CITY OF PITTSBURGH, EARL BUFORD, INDIVIDUALLY AND IN HIS CAPACITY AS THE CHIEF OF POLICE AND HIGHEST EXECUTIVE OFFICER OF POLICE FORCE OF THE CITY OF PITTSBURGH, A POLITICAL SUBDIVISION ORGANIZED UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, HOWARD JOHNSON'S MOTOR LODGE, A CORPORATION, and ST. FRANCIS MEDICAL CENTER, A CORPORATION, Defendant.


The opinion of the court was delivered by: AMBROSE

 This civil action was initiated by Mable L. Ford ("Ford") in the Court of Common Pleas of Allegheny County on November 23, 1994. Ford brought the action in her own right and as Administratrix of the Estate of her late daughter, Shawntee L. Ford ("Shawntee"). On March 8, 1994, two year old Shawntee was beaten to death by her father, Maurice Booker, at the Howard Johnson's Motor Lodge in Pittsburgh, Pennsylvania. Shawntee had been placed in the custody of her father by the Court of Common Pleas of Allegheny County. Prior to being placed in the custody of her father, Shawntee had been in the custody of the Allegheny County Children and Youth Services ("CYS"). Ford names as Defendants in the action CYS, as well as two of its caseworkers and two of its directors, three Allegheny County Commissioners, two Pittsburgh Police Officers, the Commander and the Chief of the City of Pittsburgh Police, the City of Pittsburgh, Howard Johnson's Motor Lodge, and St. Francis Medical Center. On December 23, 1994, this case was removed to this Court pursuant to 28 U.S.C. § 1441 (c) based on the existence of federal question jurisdiction.

 Additionally, a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 has been filed by the City of Pittsburgh, Officer Jeffrey Brady, Officer Robert Swartzwelder, Gwendolyn J. Elliott, and Earl Buford (collectively referred to herein as the "police Defendants"). For the reasons set forth below, the Motion to Dismiss will be granted in part and denied in part. The Motion for Summary Judgment will be denied, without prejudice.

 I. Motion to Dismiss

 In deciding a motion to dismiss, all factual allegations and all reasonable inferences therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993); Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988). We should not dismiss a complaint, especially in a civil rights action, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claims which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). A motion to dismiss under 12(b)(6) tests the legal sufficiency of the complaint; it does not attack the merits of the case. Plasko v. City of Pottsville, 852 F. Supp. 1258 (E.D.Pa. 1994), citing 5a C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1364, at 340 (1990).

 Defendants raise a number of arguments in their motion. Defendants first allege that Ford has not sufficiently identified the constitutional rights of the decedent which were allegedly violated. Defendants next argue that even assuming the constitutional rights are sufficiently identified, Ford has failed to state a claim under 42 U.S.C. § 1983 upon which relief may be granted based on the holding in DeShaney v. Winnebago County Dep't of Social Serv., 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). Additionally, Defendants contend that Ford's attempt to state a claim for violations of Shawntee's Eighth and Fourteenth Amendment Rights must fail because the constitutional ban against cruel and unusual punishment applies only to those who have been convicted of criminal offenses. With respect to Ford's claims based upon 42 U.S.C. § 601 et seq. and 45 C.F.R. § 243 et seq., Defendants argue that financial appropriation statutes do not grant a citizen an entitlement to any benefits from the state which are protected by the Constitution. Finally, Defendants assert that any state law claims asserted by Ford must be dismissed under the doctrines of governmental and official immunity.

 Ford, in her brief, does not address Defendants' arguments with respect to the viability of her Eighth and Fourteenth Amendment claims, nor does she address Defendants' argument that 42 U.S.C. § 601 et seq. and 45 C.F.R. § 243 et seq. do not provide a citizen with entitlement to benefits from the state which are protected by the Constitution.

 Clearly, the Eighth Amendment ban on cruel and unusual punishment, applicable to the states through the Fourteenth Amendment, applies only to those who have been convicted of a criminal offense. Marshall v. Borough of Ambridge, 798 F. Supp. 1187, 1193 (W.D. Pa. 1992). Additionally, Ford provides no authority that 42 U.S.C. § 601 et seq. and 45 C.F.R. § 243 et seq. provide a basis for her recovery. Ford's Eighth and Fourteenth Amendment claims for cruel and unusual punishment, as well as her alleged claims under 42 U.S.C. § 601 et seq. and 45 C.F.R. § 243 et seq. will accordingly be dismissed.

 Ford vigorously contests the assertion of Defendants that her substantive due process cause of action under 42 U.S.C. § 1983 is barred under the holding of DeShaney and its progeny. While recognizing the applicability of DeShaney, Ford attempts to distinguish it from the facts of this case. Ford claims that she has stated a cognizable theory of recovery under both a "special relationship" theory and a "state-created danger" theory. The Complaint can be read to state either theory. *fn1" I begin my discussion with an overview of DeShaney.

 The facts of DeShaney are as follows. When Joshua DeShaney was one year old, his parents were divorced. Randy DeShaney, Joshua's father, was awarded custody of the child. Two years after the divorce, Winnebago County, Wisconsin, authorities first learned that Joshua might be a victim of child abuse. The Winnebago County Department of Social Services ("DSS") interviewed Randy DeShaney concerning the alleged abuse. Randy DeShaney denied the allegations and DSS did not pursue them further.

 A year later, Joshua was admitted to a local hospital with multiple bruises and abrasions. DSS was notified by the physician who examined Joshua that Joshua was the suspected victim of child abuse. Joshua was then placed by the juvenile court in the temporary custody of the hospital. A "Child Protection Team" was convened by the county to review Joshua's situation. The Child Protection Team determined that there was insufficient evidence of child abuse to retain Joshua in the custody of the court. Protection measures were recommended, however, by the Child protection Team. These measures included enrolling Joshua in a pre-school program, providing his father with certain counselling services, and encouraging his father's girlfriend to move out of the home. Joshua was then returned to the custody of his father.

 A month after being returned to the custody of his father, Joshua was once again treated by emergency room personnel for suspicious injuries. No action was taken by the DSS caseworker. During the next six months, the DSS caseworker made monthly visits to Randy DeShaney's home, during which she not only observed a number of suspicious injuries on Joshua's head, but she also found that the protective measures recommended by the Child Protection Team had not been followed. In November, 1983, Joshua was once again treated in the emergency room for injuries which the hospital reported to DSS as being caused by child abuse. In March, 1984, Randy DeShaney ...


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