F.3d at 486. In the present case, none of Plaintiffs' surviving
claims are based on role in petitioning, formulating and making
recommendations to the state court, so absolute immunity does
Government officials performing discretionary functions are
entitled to qualified immunity in two circumstances. First,
qualified immunity shields officials from liability when "their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692,
143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Second, even when a
violation of a constitutional right has been clearly
established, an official may be entitled to qualified immunity
where "a reasonable officer could have believed that his or her
conduct was lawful, in light of the clearly established law and
the information in the officer's possession" at the time of the
conduct in question. Sharrar v. Felsing, 128 F.3d 810, 826 (3d
Cir. 1997) (citing Hunter v. Bryant, 502 U.S. 224, 227, 112
S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)).
In the present case, Defendants have qualified immunity from
Plaintiffs' First Amendment intimate association claims. While
the Supreme Court recognized constitutional protection of the
right to "intimate association" in its 1984 Roberts opinion,
it does not appear that any courts, in the Third Circuit or
elsewhere, have found a violation of family members' right to
intimate association under the First Amendment outside of the
context of employment retaliation and wrongful death cases.
Thus, Defendants' conduct did not violate a clearly established
constitutional right of which a reasonable person would have
known. Defendants' motion to dismiss Plaintiffs' First Amendment
claims will be granted.
The Third Circuit did not recognize that state agencies enter
a special relationship with children in foster care, and may be
liable under Section 1983 if they fail to meet certain
affirmative duties arising out of this relationship, until 2000.
As the alleged conduct in Count II occurred before 2000,
Defendants did not violate a clearly established constitutional
right of which a reasonable person would have known. Defendants'
motion to dismiss Count II of Plaintiffs Fourteenth Amendment
claim will be granted.
Defendants do not have qualified immunity from Count III of
Plaintiffs' Fourteenth Amendment claim. The right to notice of
pending hearings, or a post-deprivation hearing, was clearly
established at the time of Defendants' alleged actions.
Defendants' motion to dismiss Count III will be denied. By the
same reasoning, Defendants Mericle and Caprio's motion to
dismiss Count IV will be denied.
2. Section 1985
In stating a claim for conspiracy under Section 1985,
"plaintiffs may not make `[b]are conclusory allegations of
"conspiracy" or "concerted action,'" but are required to
`expressly allege an agreement or make averments of
communication, consultation, cooperation or command from which
such agreement can be inferred.'" Sayles v. Commonwealth of
Pennsylvania Dept. of Public Welfare, County of Monroe,
24 F. Supp.2d 393, 399 (M.D.Pa. 1997) (Nealon, J.) (citing Flanagan
v. Shively, 783 F. Supp. 922, 928 (M.D.Pa. 1992) aff'd.
980 F.2d 722 (3d. Cir. 1992), cert. denied 510 U.S. 829, 114 S.Ct. 95,
126 L.Ed.2d 62 (1993)). Such averments must include "allegations
of the broad objectives [of the conspiracy and] the role each
defendant allegedly played in carrying out those objectives."
Sayles, 24 F. Supp.2d at 399 (citing Flanagan,
783 F. Supp. at 928). As in Sayles, Plaintiffs "have barely
provided a broad allegation of conspiracy," and have not
provided any factual support showing the role of each defendant
in the alleged conspiracy. Sayles, 24 F. Supp.2d at 399.
Defendants' motion to dismiss Plaintiffs' Section 1985 claims
will be granted.
3. Intentional Infliction of Emotional Distress
There is some controversy over whether Pennsylvania
jurisprudence recognizes the tort of intentional infliction of
emotional distress. See Hart v. O'Malley, 436 Pa.Super. 151,
174, 647 A.2d 542 (1994), aff'd 544 Pa. 315, 676 A.2d 222
(1996). However, the Third Circuit has recognized the tort of
intentional infliction of emotional distress where: (1) the
conduct is extreme and outrageous; (2) the conduct is
intentional or reckless; (3) the conduct causes emotional
distress; and (4) the distress is severe. See Williams v.
Guzzardi 875 F.2d 46, 52 (3d Cir. 1989). In addition, the
plaintiff must allege a physical injury. See Hart,
436 Pa.Super. at 175, 647 A.2d 542. See also Morrison v. Williams,
No. Civ.A-98-2408, 1998 WL 717423 at * 2 (E.D.Pa. 1998) (noting
that "recent pronouncements of the [Pennsylvania] Superior Court
make it clear that where the plaintiff has asserted the tort of
intentional infliction of emotional distress, the plaintiff must
allege a physical injury"). In the present case, Plaintiffs have
not alleged any physical injuries. Defendants' motion to dismiss
Plaintiffs' claim for intentional infliction of emotional
distress will be granted.
4. Defendants' Argument that Portions of Plaintiffs'
Amended Complaint Should be Struck Due to Scandalous and
In their brief in support of their motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure,
Defendants argue that portions of Plaintiffs' amended complaint
should be struck due to scandalous and impertinent material.
(Doc. 14 at 15-16.) Motions to strike must be brought under
Rule 12(f) of the Federal Rules of Civil Procedure. See e.g.
DiPietro v. Jefferson Bank, CIV.A.91-7963, 1993 WL 101356
(E.D.Pa. 1993). Defendants have not filed a Rule 12(f) motion.
Therefore, I will not rule on Defendants' argument that portion
of Plaintiffs' amended complaint should be stricken.
Defendants' motions to dismiss Plaintiffs' amended complaint
on the basis of statute of limitations, collateral estoppel, and
Rooker-Feldman doctrine will be denied. Defendants' motion to
dismiss Plaintiffs' amended complaint for failure to state a
claim upon which relief can be granted will be granted regarding
Counts I, II, and V. Defendants' motion to dismiss will also be
granted regarding Plaintiffs' claim for intentional infliction
of emotional distress, and Count IV of the amended complaint in
regards to Defendant Maddon. Defendants' motion to dismiss Count
III, and Count IV as it pertains to Defendants Mericle and
Caprio, will be denied.
An appropriate order will follow.
And now, this of October, 2001, it is ORDERED that
Defendants' motion to dismiss will be GRANTED in part and
DENIED in part:
1) Defendants' motion to dismiss Plaintiffs' amended
complaint due to statute of limitations, collateral
estoppel and Rooker-Feldman will be DENIED.
2) Defendant's motion to dismiss Counts I, II, and V
of Plaintiffs' amended complaint, as well as
Plaintiffs' claim for
intentional infliction of emotional distress, will be
3) Defendants' motion to dismiss Count IV of
Plaintiffs' amended complaint in regards to Defendant
Maddon will be GRANTED.
4) Defendants' motion to dismiss Count III of
Plaintiffs' amended complaint will be DENIED.
5) Defendants' motion to dismiss Count IV of
Plaintiffs' amended complaint in regards to
Defendants Mericle and Caprio will be DENIED.