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.
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
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 ...