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January 29, 1997


The opinion of the court was delivered by: YOHN

 Yohn, J.

 January 29, 1997

 Plaintiffs Sandra Miller, her children, and her attorney David L. Deratzian bring various federal and state claims against City of Philadelphia, Philadelphia Department of Human Services (DHS), social worker Owen Scheer, Children's Hospital of Philadelphia (CHOP), and hospital security officers Hudson *fn1" and Sgt. Marc Carroll. Plaintiffs' claims relate to DHS and Scheer's actions in obtaining custody of Miller's children through an ex-parte temporary child custody order. Miller regained custody of her children after a span of five days, which included a two day hearing that resulted in the dismissal of DHS's petition for adjudication of dependency. Plaintiffs contend that Scheer had no probable cause and used deceitful means to obtain the temporary custody order, and allege civil rights, conspiracy, malicious prosecution, bodily injury and intentional infliction of emotional distress claims. In addition, plaintiffs bring civil rights claims against the City and DHS independently based on their policy, custom and practice, and failure to adequately train their human services staff.

 On July 26, 1996, defendants Scheer, City of Philadelphia and DHS moved to dismiss all claims against them. After a telephone conference with counsel, the court ordered plaintiffs to file an amended complaint. At the same time, the court dismissed defendants' motion without prejudice.

 On October 16, 1996, plaintiffs filed an amended complaint, which differed little from the original complaint. On October 24, 1996, defendants CHOP, Hudson and Carroll renewed their previously filed motion to dismiss, or in the alternative, motion for summary judgment. The court denied the CHOP defendants' motion on November 21, 1996.

 On October 25, 1996, defendants Scheer, City of Philadelphia, and DHS filed a new motion to dismiss. In response, plaintiffs indicated to the court that they wished to rely on their previously submitted memorandum. Defendants argue that plaintiffs have failed to allege a procedural due process claim, and that Scheer has immunity under federal and state law. Defendants further contend that City of Philadelphia and DHS cannot be liable under § 1983 in the absence of a conscious decision or deliberate indifference of some natural person because an abstract entity cannot be deemed to violate § 1983. Defendants argue that because Scheer is immune and plaintiffs have failed to name any official responsible for the alleged civil rights violations, plaintiffs' claims against City of Philadelphia and DHS must be dismissed.

 The court finds that plaintiffs' procedural due process allegation fails to state a claim for relief. The complaint concedes that defendants complied with the procedural requirements of Pennsylvania's Child Protective Services Law (CPSL), 23 Pa. Cons. Stat. Ann. § 6301 et seq (1991), and the Juvenile Court Act (Juvenile Act), 42 Pa. Cons. Stat. Ann. § 6301 et seq (1982), and this court concludes that Pennsylvania procedure provides constitutionally adequate process. In contrast, plaintiffs' do state § 1983 claims against City of Philadelphia and Scheer. Scheer has neither absolute nor qualified immunity for his alleged conduct in seeking and obtaining temporary custody, although Scheer does have absolute immunity against claims relating to his testimony at the adjudication of dependency hearing. Similarly, Scheer is not entitled to immunity under state law for his alleged conduct. Further, regardless of Scheer's liability, plaintiffs state claims against City of Philadelphia and DHS because a municipality can be independently liable for the acts of its policymakers.


 When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(6), the court must accept as true and view in a light most favorable to the plaintiff all allegations made in the complaint. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 249, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989); Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). A motion to dismiss will only be granted if it is clear that relief cannot be granted to the plaintiff under any set of facts that could be proven consistent with the complaint's allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).


 The complaint makes the following allegations which the court must accept as true for this purpose.

 On May 18, 1994, Miller brought her three children, Cory, Thomas, and Dakota for physical examinations to the Children's Hospital of Pennsylvania (CHOP), as requested by Scheer, a DHS social worker. Scheer made the request in connection with allegations of abuse regarding the younger child, Cory. Miller's attorney, David Deratzian, accompanied Miller to the hospital.

 At the hospital, Scheer met with an unidentified CHOP social worker. Deratzian was excluded from the meeting, at which Scheer told the CHOP social worker "what he was looking for."

 Dr. Henretig, the attending physician, specifically gave Deratzian permission to be present at the examination to prevent DHS social workers from making improper suggestions. Deratzian waited in an adjacent hall with Scheer and Reggie Jackson, a colleague of Scheer's. After fifteen minutes, Scheer attempted, but failed, to have a hospital security guard exclude Deratzian from the area.

 Dr. Henretig had no initial findings as to the two older children, but decided to order x-rays of all three children because of a suspicious bruise he found on Cory's back. The x-rays revealed nothing. Henretig reported that his findings were negative as to Thomas and Dakota and that he could not indicate abuse as the cause of the bruise on Cory's back.

 After hearing Henretig's report, Scheer told Miller and Deratzian that he was going to call City Solicitor Deborah Mazer to get permission for Miller to leave with her children. This he did not do. Instead, Scheer asked Mazer to petition the Honorable Albert Sheppard of the Philadelphia Court of Common Pleas for an order to remove the children from Miller's custody. Scheer misrepresented to Mazer the nature of Dr. Henretig's report, and failed to inform her that counsel for Miller was nearby. Deratzian requested access to the telephone conversation, and was refused access by a security guard. After one hour, Deratzian was informed by Mazer that Judge Sheppard had granted a restraining order.

 On hearing the news, Miller became distraught; meanwhile, security guards physically restrained and then battered Deratzian, before throwing him out the emergency doors.

 A dependency hearing was held on Friday May 20 and Monday 23, 1994, after which the three children were returned to Miller. During the intervening weekend, Scheer ordered the Children Shelter to deprive Miller of access to her progeny, despite a court order to the contrary. Plaintiffs allege that defendants maintained the cause of action wholly without merit or probable cause. Plaintiffs aver that Scheer attempted to suborn Dr. Henretig to commit perjury, induced CHOP to falsify records, and submitted perjurious testimony at the dependency hearing.

 Subsequent hearings on DHS's petition for adjudication of dependency were held, at which DHS dismissed the petition, reinstated it, and finally dismissed it.


 A. Procedural Due Process ...

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