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October 7, 2005.

SELENA UNDERWOOD, et al., Plaintiffs,

The opinion of the court was delivered by: THOMAS HARDIMAN, District Judge


Plaintiff Selena Underwood (Underwood), on her own behalf and on behalf of her minor children, William Underwood and Na'Dayja Underwood Carter, filed an eighteen count Amended Complaint against Beaver County Children and Youth Services (BCCYS) and several of its employees in their official and individual capacities (collectively the BCCYS Defendants). Plaintiff Underwood filed a motion for summary adjudication and Defendants moved for summary judgment. For the reasons that follow, the Court denied Plaintiff's motion and granted in part and denied in part Defendants' motion.


  A. Section 1983 Claims

  In Counts One through Six of her Amended Complaint, Underwood sets forth claims under 42 U.S.C. § 1983 alleging substantive and procedural due process violations of the Fourth and Fourteenth Amendments. Underwood's claims relate to the BCCYS Defendants' investigation, preparation, initiation and prosecution of the dependency cases of her children, William and Na'Dayja. This Court has already ruled that the Defendants are entitled to absolute immunity for their activities in "preparing for, initiating and prosecuting dependency cases." See January 20, 2004 Order at 1 (citing Ernst v. Child and Youth Services of Chester County, 108 F.3d 486 (3d Cir. 1997)). However, absolute immunity does not apply to "investigative or administrative actions taken . . . outside the context of a judicial proceeding," id. at 497 n. 7, and caseworkers may be liable for conduct "during the investigative phase of a child custody proceeding," Miller v. City of Philadelphia, 174 F.3d 368, 376 n. 6 (3d Cir. 1999), or for certain actions taken after a judicial proceeding. Wilson v. Rackmill, 878 F.2d 772, 775-76 (3d Cir. 1989).

  Whether Defendants violated Underwood's procedural due process rights is a question that the Court cannot resolve at the summary judgment state. There are a significant number of material facts in dispute such that the Court cannot determine whether the BCCYS Defendants' seizure of William and Na'Dayja violated any constitutionally protected procedural right. Whether BCCYS complied with statutory mandates and constitutional procedural protections and whether reasonable grounds existed to permit the BCCYS Defendants to separate William and/or Na'Dayja from Underwood are issues that must be resolved at trial.

  Likewise, as to the substantive due process claims, viewing the record in the light most favorable to Underwood at the summary judgment stage as this Court must, material factual disputes require that Defendants' motion be denied. However, the Court notes that Underwood's burden on this claim is significant and she must adduce evidence at trial which "shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833 (1998). In Lewis, the Supreme Court found that "the core of the concept" of due process is "protection against arbitrary action" and that "only the most egregious official conduct can be said to be `arbitrary in the constitutional sense.'" Id. at 845-46; see also Brown v. Com. Dept. of Health Emer. Med. Servs. Training Inst., 318 F.3d 473, 479-80 (3d Cir. 2003). "[T]he measure of what is conscience-shocking is no calibrated yard stick," and "[d]eliberate indifference that shocks in one environment may not be so patently egregious in another." Lewis, 523 U.S. at 847, 850. Whether BCCYS, Hubbard or Bond engaged in conduct that would "shock the conscience" is a matter which must be resolved by the jury.

  B. Immunity of Individual Defendants

  Underwood's claims against Defendants Bucci, Colonna, Reese, Socci and Truesh must be dismissed because these defendants are immune from suit. Qualified immunity shields a government official from liability so long as he "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir. 2000) (a protected right is clearly established if "its outlines are sufficiently clear that a reasonable officer would understand that his actions violate the right").

  Furthermore, the Supreme Court in Davis v. Scherer, 468 U.S. 183, 194 (1984), held that "[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision." Qualified immunity will only be lost if the facts available to the officer are "so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Orsatti, 71 F.3d at 483 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). Because such record evidence is lacking as to these Defendants, the claims against Bucci, Colonna, Reese, Socci and Truesh must be dismissed. As noted above, however, Underwood's claims against Defendants Hubbard and Bond shall proceed to trial.

  C. Equal Protection Claim

  The Equal Protection Clause of the Fourteenth Amendment commands that similarly situated persons be treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S. 202, 216 (1982)). An equal protection claim can be brought by a "class of one," a plaintiff alleging that she has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." See Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Here, Underwood's evidence on this claim is insufficient in that she has failed to show that she has been treated differently from others similarly situated. Accordingly, her bare assertion that her equal protection right was violated is insufficient to overcome Defendants' motion.

  D. Pennsylvania Constitution Claims

  Pennsylvania law does not include a statutory equivalent to 42 U.S.C. § 1983, which provides a cause of action for damages because of a federal constitutional violation. Moreover, the question of whether the Pennsylvania Constitution provides a cause of action for damages is uncertain. The great majority of our sister courts that have decided the issue have concluded that money damages are not available.*fn1 Furthermore, "[a]lthough the Pennsylvania Constitution has been said to provide for an action for injunctive relief to enforce its equal rights provisions, there has been no such holding as to an action for damages." Kaucher v. County of Bucks, 2005 WL 283628 at *11 (E.D. Pa. Feb. 7, 2005) (citations omitted). In Kaucher, the court noted a significant difference between actions for injunctive relief and damages actions. Id. (citing Mulgrew v. Fumo, 2004 WL 1699368, at *2-4 ...

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