United States District Court, E.D. Pennsylvania
January 26, 2004.
ALEXUS BENNETT, A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM JONATHAN IRVINE, et al., Plaintiffs,
CITY OF PHILADELPHIA, et al., Defendants
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
Plaintiffs in this § 1983 action are three minor children who seek
an injunction and damages from the City of Philadelphia and its
Department of Human Services ("DHS") as a result of injuries Plaintiffs
sustained at the hands of a third party after their mother absconded with
them from a DHS-supervised residence and DHS closed their case files.*fn1
Presently before the Court is Defendants' motion for reconsideration of
the Court's Memorandum and Order dated December 18, 2003, which granted
in part and denied in part Defendants' motion to dismiss. In the
alternative, Defendants seek certification of the relevant issues for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the reasons
set out below, the Court denies Defendants' motion and does not certify
these issues for appeal.
The Third Circuit has held that "only extraordinary circumstances . . .
warrant a court's reconsideration of an issue decided earlier in the
course of litigation. They include situations in
which: (1) new evidence is available; (2) a supervening new law has been
announced; or (3) the earlier decision was clearly erroneous and would
create manifest injustice." Pub. Interest Research Group v. Magnesium
Elektron, 123 F.3d 111, 116-17 (3d Cir. 1997) (internal quotations
omitted). In their motion for reconsideration, Defendants argue that this
Court's December 18 Memorandum and Order misinterpreted DeShaney v.
Winnebago County Dep't of Soc. Servs., 489 U.S. 189(1989), by holding
that Plaintiffs' allegation that DHS failed to locate them before closing
their case files was a potential basis for liability under the
state-created danger doctrine of § 1983. Defendants argue that
DeShaney permits § 1983 liability to be found only in situations in
which the state's action leaves the eventual victim worse off than if the
state had not acted at all. See id. at 201. Accordingly, Defendants
argue, DHS's failure to locate the children cannot give rise to
liability, for that failure was no different than simply leaving the
children in the custody of their mother from the beginning.
Although Defendants' interpretation of DeShaney is correct, their
reading of the December 18 Order is inaccurate. That Order did not hold
that DHS's failure to prevent the children from leaving the shelter or
its failure to locate them afterwards was a potential basis for §
1983 liability. Instead, the Court held that DHS's affirmative act of
closing the children's case files, thereby foreclosing the possibility of
future rescue, might constitute a state action that left the children
worse off than if DHS had simply allowed the status quo i.e.,
active case files to continue. Thus, for the purposes of
Defendants' motion to dismiss, Plaintiffs' complaint satisfies
DeShaney's requirement to plead facts sufficient to make out a case that
Plaintiffs would have been better off if Defendants had taken no action
whatsoever. Accordingly, the December 18 Order does not constitute "a
clear error of law" that would warrant reconsideration under the law of
this circuit. See
Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999).
Alternatively, certification for interlocutory appeal is appropriate
where the district court is "of the opinion that [the case] involves a
controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal . . . may materially
advance the ultimate termination of the litigation."
28 U.S.C. § 1292(b). This Court has previously noted that the instant
action involves novel questions of law. See Bennett v. City of
Philadelphia, Civ. No. 03-5685, 2003 WL 23096884, at *8, 2003 U.S. Dist.
LEXIS 23897, at *27 (E.D. Pa. Dec. 18, 2003). Thus, the first clause of
§ 1292(b) is satisfied. The Court stresses, however, that no
liability has been found in this case, nor is the factual record
sufficiently developed for any court, trial or appellate, to make a
determination of liability at this time. In light of this factual
sparsity, the Court finds that certification pursuant to
28 U.S.C. § 1292(b) would not "materially advance the ultimate
termination of the litigation" because an interlocutory appeal would not
necessarily resolve the question of liability. Defendants' request for
such certification is accordingly denied.
For the foregoing reasons, Defendants' motion for reconsideration and
request for a certificate of appealability are denied. An appropriate