The opinion of the court was delivered by: Van Antwerpen, District Judge.
Plaintiffs William and Joy Gordon ("Plaintiffs") bring this
action against Pam Lowell, in her individual and official
capacity; George Kovarie, in his individual and official
capacity; Berks County Children and Youth Services; and Berks
County ("Defendants"). Plaintiffs allege in the Complaint,
pursuant to Sections 1983 and 1985 of the United States Code,
violation of the First and Fourteenth Amendments to the United
States Constitution, deprivation of Due Process in violation of
the Fourteenth Amendment to the United States Constitution,
deprivation of counsel in violation of the Sixth Amendment,
conspiracy to interfere with civil rights, and violation of civil
rights; as well as state law claims including negligence,
intentional infliction of emotional distress, failure to train
and supervise, negligent injury and negligent failure to train
Currently before the court are Defendants' Motions to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(1) and
alternative Motion for Summary Judgment, and Plaintiffs'
The following facts have been taken from the submissions by the
parties. Because this is a consideration on a motion for summary
judgment, we view the facts in the light most favorable to
Plaintiffs are grandmother and step-grandfather to V.K., a
minor child born on May 6, 1986. V.K. was declared dependent
pursuant to the Juvenile Act of the Commonwealth of Pennsylvania
on or about March 1993, when she was seven years old. Pls'
2/1/2000 Br. at 1-2. The declaration of dependency was
precipitated by the March 1993 arrest of V.K.'s mother, who had
custody of V.K. at that time. Id.
Defendant Lowell, a licensed social worker, was V.K.'s treating
therapist under the supervision of BCCYS starting in 1994. Id. at
p. 3. Ms. Lowell was responsible for directing V.K.'s care and
making recommendations to BCCYS based on her treatment of V.K. At
some point in 1995 or 1996, therapist Lowell determined that
visitations between Plaintiffs and V.K. should be suspended
because they were harmful to V.K.'s therapeutic progress. Id. at
3. According to Plaintiffs, this 1995 suspension occurred "after
a bitter misunderstanding between BCCYS and Grandparents." Id.
Plaintiffs allege that BCCYS actively discouraged their
relationship with V.K.. They claim they were not encouraged to
seek custody, and were not participants in the six-month review
On October 3, 1995, Plaintiffs filed a Petition to Intervene in
V.K.'s dependency case, seeking custody of the child.*fn2 Id.
The Petition was filed with the Juvenile Division of the Court of
Common Pleas of Berks County. Id. at Ex. B.*fn3
In 1996, with the adoption process well under way and a court
prepared for a hearing on the termination of parental rights,
Plaintiffs requested a neutral therapist to work with them and
V.K. The court appointed therapist Lynn Mullis, who evaluated and
began working with V.K. and her grandparents on November 4, 1996.
Ms. Mullis recommended that the adoption of V.K. by her foster
parents proceed. At no time did Plaintiffs attempt to adopt V.K.
or block her adoption by the foster family. See Def. Lowell's Ex.
C at pp. 51-52, 102-103.
On November 20 1998, Plaintiffs filed a complaint against
Defendants, based upon 28 U.S.C.A. §§ 1983 and 1985, and
including pendent state claims of claims of negligence and
intentional infliction of emotional distress against Defendant
Lowell. They seek compensatory and punitive damages.
We have before us Defendants' motion for summary judgment.*fn4
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is
"genuine" only if there is a sufficient evidentiary basis on
which a reasonable jury could find for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986) ("Anderson I"). A factual dispute
is "material" only if it might affect the outcome of the suit
under governing law. Id. at 248, 106 S.Ct. 2505. All
inferences must be drawn and all doubts resolved in favor of the
non-moving party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy,
762 F.2d 338, 341 (3d Cir. 1985).
On motion for summary judgment, the moving party bears the
initial burden of identifying those portions of the record that
it believes demonstrate the absence of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). To defeat summary judgment, the non-moving party
cannot rest on mere denials or allegations, but must respond with
facts of record that contradict the facts identified by the
movant. Id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P.
56(e)); see also First Nat. Bank of Pennsylvania v. Lincoln Nat.
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 I, 477 U.S.
at 249, 106 S.Ct. 2505.
In this Section 1983 and Section 1985 action, Plaintiffs have
brought claims against Defendants Lowell and Kovarie individually
and in their official capacities, and against BCCYS and Berks
County. Plaintiffs have alleged that Defendants violated their
right to due process in violation of the Fourteenth Amendment.
They also allege deprivation of counsel in violation of the Sixth
Amendment, and violation of civil rights as protected by the
First, Sixth, and Fourteenth Amendments.*fn5
The court's analysis of the individual liability of each of the
Defendants begins with a discussion of constitutional claims
under 42 U.S.C. § 1983. Section 1983 reads, in pertinent part, as
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to ...