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Hayes v. Erie County Office of Children and Youth


June 29, 2007


The opinion of the court was delivered by: Mc Laug Hlin, Sean J., District J.


Plaintiffs, Charles Hayes and Victoria L. Hayes, bring this suit as Administrators of the Estate of Brittany Legler, a mentally disabled 15 year-old girl who was killed at the hands of her adoptive mother, Lisa Iarussi, in 2004. The D efendants are the Erie C county Office of C hildren and Youth ("O CY"), its Executive Director, and various supervisors, casew orkers, and em ployees of the agency, all of whom are sued in their individual and official capacities. Among the claims that Plaintiffs have asserted against these individuals and OCY are claims under 42 U.S.C. § 1983*fn1 for the alleged violation of B rittany Legler's federal substantive due process rights, claims under Pennsylvania state law for negligence per se and gross negligence, and a survival action under Pennsylvania Survival Act, 42 Pa.C.S.A. § 8302. W e have jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and 1367.

Defendants have filed a motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). For the reas ons set forth below, this motion will be granted in part and denied in part.


Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a complaint to be dismissed for failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). T he rule seeks to screen out claims for which there is clearly no rem edy or which the plaintiff has no right to assert; thus, a complaint should not be dismissed under the rule "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." K.J. ex rel. Lowry v. Division of Youth and Family Services, 363 F. Supp. 2d 728, 737-38 (D.N.J. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The issue is not whether the plaintiff will ultim ately prevail, but whether he is entitled to offer evidence to support his claims. Id. at 738 (citation omitted). In reviewing a motion brought under Rule 12(b)(6), we are required to accept as true all of the allegations in the com plaint and all reasonable inferences that can be drawn therefrom and view them in the light most favorable to the plaintiff. Morse v. Lower M erion School Dist., 132 F.3d 902, 906 (3d C ir. 1997) (citation om itted). W ith the foregoing standard in m ind, we recite the relevant factual allegations as set forth in the Com plaint.


Brittany Legler, a mentally disabled girl, was rem oved from her parents' hom e by OCY officials and placed in foster care because the agency had concerns about whether the girl's parents had the m eans to care for Brittany and her siblings. (Com plaint ¶¶ 18-19.) Brittany was borderline mentally retarded and she attended the "life skills" program at her local school district, which is designed for children with an IQ of 70 or less. (Id. at ¶ 40.) Subsequently, OCY was involved in placing Brittany with her adoptive m other, Lisa Iarussi, a m entally challenged adult. (Id. at ¶¶ 19, 21.) Prior to O CY's placement of Brittany with Iarussi, various individuals, including Brittany's foster mother and her relatives, had expressed concerns about Iarussi's fitnes s as a parent. (Id. at ¶¶ 21, 41.)

On May 9, 2004, Brittany died in the hom e of Iarussi as the result of cum ulative physical abuse. (Com plaint at ¶ 4.) An autopsy revealed that Brittany had sustained 212 cuts and bruises, a cauliflower ear with chronic scarring caused by repeated trauma, scarred tissue to the lower lip caused by repeated traum a, a previously broken rib, and internal dam age. At the funeral hom e, people who knew Brittany did not recognize her. (Id. at ¶ 29.) Iarussi pleaded no contest to charges of aggravated assault and endangering the welfare of children in connection with the events leading to Brittany's death. Her param our, Linda Fisher, who also resided at the hom e, pleaded guilty to endangering the welfare of a child. (Id. at ¶¶ 53-54.)

In the thirteen months leading up to Brittany's death, various individuals -- including nurses, teachers, aides, and other Millcreek School District employees -- had contacted OCY or a child-abuse hotline at least ten times concerning incidents of suspected physical abuse of Brittany. (Com plaint ¶ 22.) Am ong the concerns reported were bruises, frequent absenteeism, a chronically split lip, a cut to the back of the head, and heavy m akeup meant to m ask black and blue m arks to her face. (Id. at ¶ 23.)

OCY received the first report of suspected abuse in April 2003, and the investigation as to this report was closed in June of 2003. (Complaint ¶ 24.) Thereafter, OCY received eight confirmed complaints of abuse concerning Brittany, prompting a second OCY investigation which comm enced on February 10, 2004. (Id. at ¶ 25.) Following the commencement of this second investigation, OCY received two other confirmed reports of suspected abuse, one of which oc curred approxim ately a m onth before B rittany's death. (Id. at ¶ 26.) The final report of suspected abuse occurred prior to April 27, 2004, whe n the second investigation was closed. (Id. at ¶ 27.) Despite these reported incidents, OCY personnel failed to ever conduct a face-to-face interview or meet with the school district personnel who had made the reports. (Id. at ¶ 28.)

In 2000, the consulting firm of Hornby Zeller Associates, Inc. was comm issioned by the County of Erie at a cost of $99,000.00 to perform a study of OCY's operations. (Complaint ¶ 42.) The report, issued in September 2000, stated in part as follows:

This is ... an agency where staff feel as though they are in crisis. They describe their caseloads as insupportably high, they worry that the workload will get worse as turnover increases and they feel they are receiving inadequate support from the superiors. It is an agency where there is a great deal of respect for the director but where respect for anyone else has been eroded by the sm all jealousies and rivalries that often characterize closely knit families.

In sum , OC Y is any agency whose current perform ance is m ore than adequate but whose future capacity may be in doubt.

The larger problems lie ... not with casew ork perform ance but with the way staff treat each other and with their overall attitude toward the agency. A large proportion of the staff have been at the agency a very long tim e. T his is especially true of the m ore senior staff. As one observes the interactions, it sometimes appears as though they treat each other like family mem bers, with the affection, the jealousies and the animosity that can be associated with familial relationships. W ith such a strong sense of familiarity, the agency tends to run on the basis of relationships and personalities rather than on the basis of the organizational structure. ...

In brief, the organization has disenfranchised its supervisory staff and is characterized by too much division and animosity both among the units and am ong levels of staff.

(Id. at ¶ 43 (emphasis as in the Complaint).) This report authored by Hornby Zeller was hidden by OCY and its supervisors from the public and from County Council. (Id. at ¶ 44.)

Pursuant to 42 Pa. C.S.A. § 6377, the Pennsylvania Child Protective Services Act, the Pennsylvania D epartm ent of Public W elfare ("DP W ") is required to establish staff-to-fam ily ratios for O CY. (Com plaint at ¶ 32.) At all times material to this case, O CY was not in com pliance with the staff-to-fam ily ratio regulations established by DPW . (Id. at ¶ 33.)

In 2005, D PW com pleted a review of OCY's handling of the multiple reports of abuse involved in Brittany's case. T he Departm ent found that O CY had violated the law with respect to at least four specific DPW regulations. (Complaint at ¶ 34 and Ex. A.) Among other things, OCY had failed to complete a risk-assessment report of suspected abuse within sixty days, failed to make direct contact with school district workers and other individuals who had direct knowledge concerning Brittany, and failed to include a safety plan detailing those issues that O CY was review ing in determ ining Brittany's safety within her hom e. (Id. at ¶¶ 35-37 and Exhibit A.)

In January 2006, the Child Welfare League of America issued a report at the request of the County of Erie, which had hired the League to study OC Y, perform a review, and m ake recom m endations. (Complaint ¶ 45.) That report contained the following findings:

For a number of years there have been role conflicts and a culture of disrespect at OCPS [Office of Child Protective Services, formerly known as OCY] that detracts from the ability of the agency to carry out its mission.

A respectful working environm ent is key to a healthy organization. OCPS should implement a zero tolerance policy for disrespectful behavior at any level of the organization. Zero tolerance for disrespect does not mean there are no differences of opinion, or that som etimes m anagem ent makes decisions that staff must abide by. It does mean staff at all levels of the organization should have the opportunity to be heard and understood, regarding issues related to them, and staff are actively engaged in developing solutions to promo te an effective organization.

W e believe that OCPS is at a critical juncture. Factors related to workload increases, staff turnover and organizational culture have coalesced to a point of crisis. ...

In sum m ary, lack of strong and clear m anagem ent structure, lack of integrity in role functions and staff perceptions or inequity and injustice in workload distribution and job requirements contribute to a toxic work environment and interfere with OC PS's ability to carry out its m anda te.

(Com plaint ¶ 46 (emphasis as in com plaint).)

During the period relevant to this lawsuit, Defendant Debra Liebel was the Executive Director of OCY. (Complaint ¶ 9.) Defendant Edith Joseph was the intake supervisor assigned to Brittany's case and was directly responsible for handling the multiple complaints of suspected abuse of Brittany prior to her death. (Id. at ¶¶ 10, 39.) Defendants Robin Adam s and D ebbie Leasure were em ployed as supervisors at OCY. (Com plaint ¶¶ 11, 16.) Defendant Cyndi Valimont, was em ployed as a casewo rker at OCY. (Id. at ¶ 12.) Defendants Carroll Gallagher, Cindra Vallone, and Michael Hughes were employees at OCY during the time in question. (Id. at ¶¶ 13-15.)

Plaintiffs have sued OC Y as well as each of the foregoing individuals whom , it is alleged, were involved in one way or another with the handling of Brittany Legler's case. (Complaint ¶¶ 17, 62.) The individual Defendants are sued in both their official and individual capacities. (Id. at ¶¶ 9-17.) Plaintiffs allege that these Defendants were engaged in a joint venture and conspiracy in that they agreed with and assisted each other in performing the various actions and inactions which led to Brittany's death and lent their support and the authority of their office to each other during these events. (Id. at ¶ 61.) It is further alleged that each of the Defendants "advised, assisted, ratified and/or directed the actions and inactions taken with respect to Brittany Legler." (Id. at ¶ 62.)

Based on these averm ents, Plaintiffs have asserted a claim under § 1983 against all Defendants for the alleged violation of Brittany's Fourteenth Am endm ent substantive due process rights. Plaintiffs assert a separate § 1983 claim against Defendants OCY, Liebel, Adams, Leasure, and the "other individual Defendant supervisors premised on their alleged failure to properly train and supervise the remaining individual Defendants" in their handling of Brittany's case. (Com plaint ¶¶ 70-71.) As against Defendants OCY and Debra Liebel, Plaintiffs assert a claim of m unicipal liability under § 1983. W ith respect to the individual Defendants, Plaintiffs assert claims under Pennsylvania law for negligence per se and gross negligence. Finally, Plaintiffs assert a survival action on behalf of Brittany's estate pursuant to the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302.

Defendants have filed a m otion pursuant to Fed. R. Civ. P. 12(b)(6) to dism iss all of these claim s. The issues have been briefed and argued and the matter is ripe for consideration.


A. Plaintiffs' § 1983 Claim for Violation of Substantive Due Process Rights

To prevail under 42 U.S.C . § 1983, a plaintiff must prove that he suffered the deprivation of his constitutional or federal rights by a person acting under color of state law. Mark v. Borough of H atboro, 51 F.3d 1137, 1141 (3d Cir. 1995). Here, Plaintiffs allege that the nam ed Defendants, all of whom are indisputably state actors for purpos es of § 1983, deprived Brittany of her Fourteenth Am endm ent right to substantive due process.

Defendants seek to dism iss the Plaintiffs' § 1983 claim on the grounds that Plaintiffs have failed to adequately allege a constitutional violation. In addition, they argue that the supervisor Defendants cannot be held liable for the harm caused to Brittany Legler because no personal involvement on their part has been alleged. Assuming that a constitutional violation on the part of the individual Defendants has been adequately pled, Defendants nevertheless maintain that they should be dismissed from this suit under the doctrine of qualified immunity. Finally, Defendants argue that OCY cannot be held liable under § 1983 because Plaintiffs have failed to allege that the tragedy which befell Brittany Legler was anything other than a single occurrence. W e will address each of these arguments in turn.

(i) The Due Process C lause of the Fourteenth

Am endm ent provides that "[n]o State shall... deprive any person of life, liberty, or property, without due process of law." U.S. CONST. AMEND. XIV. In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), a case in which a young child sustained perm anent brain dam age as a result of being brutally beaten at the hands of his natural father, the U nited S tates Suprem e Court held that the Fourteenth Am endm ent provides no affirm ative right to governm ental aid or protection against violence occurring at the hands of private individuals. Id. at 195-96, 202. The Court therefore upheld an award of sum m ary judgment in favor of county welfare workers and local officials who had been sued under § 1983 by the child's m other for failing to protect the child. There are, however, two recognized exceptions to DeShaney's basic premise: the "special relationship" rule and the "state-created danger" rule.

Under the first exception, the State's affirmative duty of care and protection arises "not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the lim itation which it has im posed on his freedom to act on his own behalf. DeShaney, 489 U.S. at 200. Courts have thus recognized the State's obligation, e.g., to provide adequate medical care for prisoners in accordance with the Eighth Am endm ent's prohibition against cruel and unusual punishm ent, Estelle v. Gam ble, 429 U.S. 97 (1976), and to provide the basic services necessary for the reasonable safety of involuntarily comm itted mental patients, pursuant to the Fourteenth Amendm ent's due process requirem ents. Youngberg v. Romeo, 457 U.S. 307 (1982).

The Third Circuit "'has read DeShaney as primarily setting out a test of physical custody' for purposes of determ ining whether there is a 'special relationship' between the state and the plaintiff." Ye v. United States, 484 F.3d 634, 637 n.1 (3d Cir. 2007) (quoting D.R . v. Middlebucks Area Vocational Tech. Sch., 972 F.2d 1364, 1370 (3d C ir. 1992) (en banc)). For example, the court has recognized a "special relationship" between the State and children who are placed in state-regulated foster care such that "certain affirm ative duties" can be im posed upon the State. Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en banc). Under "sufficiently culpable circum stances," the failure to perform these duties can give rise to liability under § 1983. Id. C.f. D.R . v. Middlebucks Area Vocational Tech. Sch., supra (public high school student who was allegedly sexually molested by other students during school hours could not maintain § 1983 claim against school officials because, despite compulsory attendance laws, no special relationship exists between state and school children).

The second exception -- the "state-created" danger theory -- originates from DeShaney's pronouncem ent that "while the State m ay have been aware of the dangers that [the young abuse victim ] faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." 489 U.S. at 201. The theory holds that the State can be liable under § 1983 for constitutional torts where "state authority is affirmatively employed in a manner that injures a citizen or renders him 'more vulnerable to injury from another source than he or she would have been in the absence of state intervention.'" Bright v. W estm oreland C county, 443 F.3d 276, 281 (3d Cir. 2006) (quoting Schieber v. C ity of Philadelphia, 320 F.3d 409, 416 (3d C ir. 2003)), cert. denied, - U.S. - , 127 S.Ct. 1483 (2007). As the Seventh Circuit recognized in a pre-DeShaney case, "If the state puts a man in a position of danger from private persons and then fails to protect him , it will not be heard to say that its role was m erely passive; it is as muc h an active tortfeasor as if it had thrown him into a snake pit." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982).

The Third Circuit first adopted the "state-created danger" theory of liability in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). In that case, a married couple were stopped by police for causing a disturbance on a public highway in the middle of a cold night. The wife was visibly intoxicated to the point that she smelled of urine and was staggering. The husband obtained permission to return home, a short distance away, to relieve the babysitter. He departed the scene under the false assum ption that the police were going to take his wife either to the hospital or to the police station. Instead, the police subsequently sent the wife on her way home alone, which resulted in her falling to the bottom of an embankm ent where she sustained severe brain damage due to her exposure to the cold. The Third Circuit found there was sufficient evidence from which a jury could find that, "[a]s a result of the affirmative acts of the police officers, the danger or risk of injury to [the wife] was greatly increased." 95 F.3d at 1209.

To establish a claim under the "state-created danger" theory, as it has evolved in this circuit, the following elements m ust be established:

(1) the harm ultimately caused was foreseeable and fairly direct;

(2) a state actor acted with a degree of culpability that shocks the conscience;

(3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a mem ber of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a mem ber of the public in general; and

(4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.

Bright, 443 F.3d at 281. The fourth elem ent can be broken down into three necessary conditions, to w it:

(i) a state actor ex ercised his or her authority; (ii) the state actor took an affirm ative action; and (iii) this affirmative act created a danger to the citizen or rendered the citizen more vulnerable to danger than if the state had not acted at all. Ye, 484 F.3d at 639; Bright, supra, at 281-82.

As for the second element -- to w it, that the state actor act with a degree of culpability that "shocks the conscience"*fn2 -- the "exact degree of wrongfulness necessary to reach the 'conscience-shocking level depends upon the circumstances of a particular case.'" Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999). W here a state actor has the time to deliberate about his actions and is not under pressure to m ake hurried judgm ents, the state actor's conduct will be sufficiently "conscience shocking" if it displays a deliberate indifference toward a substantial risk of serious harm to the plaintiff. See County of Sacram ento v. Lewis, 523 U.S. 833, 851 (1998) ("As the very term 'deliberate indifference' implies, the standard is sensibly employed only when actual deliberation is practicable."). This includes situations involving decisions akin to the placem ent of a child into foster care. See Nicini, 212 F.3d at 811. In fact, "in the foster care context, most of the courts of appeals have applied the deliberate indifference standard, although they have defined that standard in slightly different ways." Id. at 810 (citing cases).

In this case, Plaintiffs premise their § 1983 claim on both exceptions to the DeShaney rule. That is, Plaintiffs allege the Defendants, having arranged Brittany's adoption by Iarussi, were in a "special relationship" with her and thereby had an affirmative duty to protect her from physical abuse. (Com plaint ¶ 55.) Alternatively, Plaintiffs allege that OCY had a duty to protect Brittany because the agency's action in removing her from her hom e and placing her with Iarussi constituted a "state-created danger." (Complaint ¶ 20.) Plaintiffs allege that the harm to Brittany was foreseeable and that Defendants acted with deliberate indifference to that harm . (Id.)

Defendants challenge the adequacy of both these legal theories. As to the "special relationship" theory, they argue that no special relationship existed between OCY and Brittany because OCY did not take custody of her and hold her against her will. Thus, we m ust initially decide whether Plaintiffs have adequately alleged a "special relationship" between Brittany and OCY by virtue of OCY's alleged involvem ent in rem oving Brittany from her natural parents' hom e and later placing her with Iarussi.

In support of their "special relationship" theory, Plaintiffs rely on Nicini, supra. In Nicini, as we have noted, the Third Circuit Court of Appeals held that "when the state places a child in state-regulated foster care, the state has entered into a special relationship with that child which im poses upon it certain affirm ative duties," the failure to perform which "can give rise, under sufficiently culpable circum stances, to liability under § 1983." 212 F.3d at 808. The Court went on to explain:

We recognize that the analogy between foster children on the one hand and prisoners and institutionalized persons on the other is incomplete. For example, foster children, especially older ones, enjoy a greater degree of freedom and are m ore likely to be able to take steps to ensure their own safety. Nonetheless, any distinctions between children placed in foster care and the prisoners at issue in Estelle or the institutionalized m entally retarded persons at issue in Youngberg are m atters of degree rather than of kind. See Norfleet [By and Through Norfleet v. Arkansas Dept. of Human Services], 989 F.2d [289, 292 (8th Cir. 1993)] (although there is a closer relationship between the state and prisoners than between the state and foster children, "the situations are sufficiently analogous"). In each of these cases the state, by affirmative act, renders the individual substantially "dependent upon the state ... to m eet [his or her] basic needs." D.R., 972 F.2d at 1372.


W e are not persuaded that the holding in Nicini supports the conclusion that Plaintiffs have pleaded the basis of a "special relationship" between Brittany and OCY in this case. In Nicini, the plaintiff was a boy who had been placed with a fam ily through the New Jersey Division of Youth and Fam ily Services and later suffered sexual abuse at the hands of one of the family mem bers. The case did not involve foster-care placem ent in the strict sense because the boy had com e to stay with the fam ily on his own initiative and the fam ily had not been officially approved as either a foster or para-foster fam ily. Importantly, however, Nicini was in DYFS custody throughout the relevant period. Furtherm ore, the record is replete with evidence that Nicini was substantially dependent upon DYFS and that DYFS acquiesced in Nicini's stay at the Morra home. At least by October 10, 1990, when Nicini's father signed a foster care placement agreement, DYFS was able to arrange for his foster placement. At some point, the Superior Court of New Jersey awarded custody of Nicini to DYFS and DHS. App. at 136. Nicini was thereafter placed on several occasions with DYFS-approved foster parents and with relatives. It also appears that after the police located Nicini at the M orra hom e and took him to JFK , DYFS returned him to their home over the objections of his aunt and his father.

Id. at 809. Under these circ um stances, the Court of Appeals found Nicini's situation "s ufficiently analogous" to that of a foster care placem ent such that it fell within the "special relationship" exception to DeShaney. Id.

In the case at bar, however, Plaintiffs do not allege that Brittany was abused while in a foster care setting or while she was otherwise in the custody or under the tutelage of OCY. Rather, Plaintiffs allege that, at the time of the abuse, Brittany was living in Iarussi's home pursuant to an adoption that had been finalized some 2 or 3 years earlier. This is the critical factor that materially distinguishes this case from Nicini, where the minor was unquestionably "in DYFS custody throughout the relevant period." 212 F.3d at 809.

We readily agree with Plaintiffs' contention that, tragically, Britany, being a mentally disabled child, was certainly limited in her ability to take steps to ensure her own safety. But absent a custodial or "sufficiently analogous" relationship between Brittany and OC Y, that factor is not sufficient, in and of itself, to make out a "special relationship" claim. If the Plaintiffs' argument is taken to its logical conclusion, then child welfare agencies, having once played a role in the placem ent of a child into an adoptive hom e, will thereby always assume a "special relationship" with the child -- and, as well, an affirmative constitutional duty to protect that child -- for an indefinite period of time (or at least, presumably, until the child reaches the age of majority), notwithstanding the termination of the agency's custodial relationship with the child.

For present purposes, we need not and do not opine as to whether a child welfare agency can ever have a "special relationship" with an adopted child such that it acquires a duty to protect the child from post-adoption abuse. There may be cases where a child welfare agency has on-going involvement with a child in an adoption setting such that it acquires a constitutional duty to protect the child from harm occurring during the pendency of, or soon after, adoption proceedings. See, e.g., Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1143 (10th Cir. 2006) (where child was killed at the hands of her adoptive m other four weeks follow ing adoption, social work ers sued under § 1983 conceded that the state had a "special relationship" with the child, and the only remaining question was whether the evidence could support a finding that the two social work ers violated the child's substantive due process rights). But see Lewis v. Anderson, 308 F.3d 768, 773-74 (7th Cir. 2002) (in a § 1983 suit brought by abused children alleging that officials of state Departm ent of Health and Social Services violated their due process rights by placing them with abusive foster parents who later adopted them, the relevant period of inquiry was limited to the time during which the state had legal guardianship over the children; state's duty continued only through the period of foster care and terminated when the State relinquished guardianship to the adopting fam ily); Griffith v. Johnston, 899 F.2d 1427, 1439-40 (5th Cir. 1990) (although Texas Department of Human Services created a "special relationship" with children removed from their natural homes and placed under state supervision, that "special relationship" lapsed when children were officially adopted since, under Texas law, adoptive parents assumed the same rights and duties toward the children as natural parents; thus, State was under no obligation to continue supplying special services to children once they were adopted). W e conclude only that, for present purposes, the Plaintiffs have failed to allege facts that would support the finding of a "special relationship" between Brittany and OCY at the time of the reported ins tances of abuse in this case.

Defendants also challenge the legal sufficienc y of Plaintiffs' "state-created-danger" theory. Specifically, Defendants insist that Plaintiffs have failed to allege facts sufficient to satisfy the fourth prong of that test: to w it, that the OCY Defendants took any affirmative action that had a direct, causal relationship to the harm inflicted upon Brittany. Defendants rely on several cases in which our circuit court of appeals has found that the allegations in the complaint failed to adequately allege a state-created danger claim. See Sanford v. Stiles, 456 F.3d 298 (3d Cir. 2006) (parent of highschool student who comm itted suicide sued school and its guidance counselor for counselor's conduct in dealing with the student prior to his death); Kaucher v. County of Bucks, 455 F.3d 418 (3d Cir. 2006) (corrections officer and his wife alleged that they contracted a disease as a result of prison creating dangerous condition and m isrepresenting the danger); Bright v. W estm oreland C county, supra (parents of 8-year old girl who was murdered by an individual who had previously pled guilty to corrupting the morals of the girl's older sister sued probation and police officers for their conduct in failing to arrest the individual and/or enforce the conditions of his probation, which conduct allegedly created the danger to the 8-year old); Bryan v. Erie County O ffice of Children & Youth, No. Civ. A. 03-259 Erie, 2006 W L 2850446 (S ept. 29, 2006) (parents whose natural son was sexually abused by foster child placed in their home sued social services agencies and their employees for their alleged failures to investigate and/or disclose their actual knowledge of the foster child's sexually aggressive propensities); Bennett ex rel. Irvine v. City of Philadelphia, Civil Action Nos. 03-5685, 05-0833, 2006 W L 1371189 (E.D. Pa. May 17, 2006) (children who were left in the care of their unfit natural mother and abused by unsuitable care-givers, culminating in the death of one child, sued city, alleging that city and its Department of Hum an Services violated their constitutional rights by obtaining a discharge of their case through misrepresentation and by failing to properly respond to a hotline report of the children's abuse).

Defendants argue that, like the above cases, this com plaint does not present allegations rising to the level of a constitutional violation under the state-created danger theory because the "m ere failure to protect an individual ... does not violate the Due Proces s Clause." Sanford, 456 F.3d at 312 (ellipsis in the original) (quoted in Def.'s Br. in Supp. of Mot. to Dism iss [4].) Though the quoted legal principle is an accurate statem ent of the law, we read Plaintiffs' state-created danger claim as being prem ised on m ore than Defendants' mere failure to act on reported incidents of privately inflicted abuse. Significantly, Plaintiffs alleged that OCY played an affirmative role in removing Brittany from her natural home and placing her with Iarussi, thus rendering Brittany vulnerable to the abuse she later suffered at Iarussi's hands. See Com plaint ¶ 50 ("OCY favored the placement of Brittany Legler with Lisa Iarussi, who was also mentally disabled, despite objections of other individuals who were critical of Iarussi's fitness to parent."). This allegation, coupled with the averment that the agency and its employees effectively ignored repeated reports of suspected abuse within the home is sufficient to establish a Fourteenth Amendm ent claim under the state-created danger theory.

Defendants object that the allegations fail to establish the necessary causal connection between OC Y's actions and the harm inflicted upon Brittany. Defendants note that, according to the com plaint, approximately three years laps ed between the placem ent of Brittany in Iarussi's hom e and the first reports of suspected abuse. To the extent Defendants are challenging the required causal connection, the legal sufficiency of Plaintiffs' claim m ay ultimately depend, at least in part, on the quality of notice that OCY had concerning Iarussi's unfitness to parent. However, this question is better addressed on a more fully developed record. For present purposes, we conclude that Plaintiffs have successfully alleged a constitutional violation under the state-created danger theory. Accord Currier v. Doran, 242 F.3d 905 (10th Cir. 2001) (plaintiffs successfully stated a "state-created danger" claim against social workers for their involvem ent in rem oving child from mother's custody and allowing father to gain cus tody where state played affirm ative role in placing child with father, who later k illed the child); K.J. ex rel. Lowry v. Division of Youth and F am ily Serv., 363 F. Supp. 2d 728 (D .N.J. 2005) (children's § 1983 claim against child welfare agents for alleged due process violation survived motion to dismiss where defendants were allegedly involved in placing children with family and later approving their adoption by the same family, at who se hands the children were m alnourished); Tazioly v. City of Philadelphia, No. Civ. A. 9-CV-1219, 1998 W L 633747 (E.D. Pa. Sept. 10, 1998) (recognizing applicability of state-created danger theory in a case where city social workers term inated child's satisfactory fos ter care and played affirm ative role in placing child with his biological mother who had drug problems and known propensities for violent and bizarre behavior); Ford v. Johnson, 899 F. Supp. 227 (W .D. Pa. 1995) (whe re Children and Youth Services had custody of a child and then affirmatively recomm ended court placement of the child with her father, who later beat the child to death, natural mother stated viable due process claim against agency under state-created danger theory).


Plaintiffs have sued Defendant Debra Liebel under § 1983 both individually and in her official capacity as Executive Director of OCY. Defendants Joseph, Adam s, and Leasure are being sued both individually and in their official capacities as supervisors at O CY. (Com plaint ¶¶ 9-11, 16.) Defendants contend that there can be no liability as to these individuals because the complaint fails to allege any personal involvement on their part in the matters alleged.

Defendants correctly observe that, in order for an individual to be liable under § 1983 in his or her capacity as a supervisor, the individual must have "personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)). Typically, the plaintiff must show, for example, that the supervisor directed the wrongdoing or actually knew of the wrongdoing and acquiesced in it. See Rode, 845 F.2d at 1207. W here the plaintiff's claim is specifically premised on the defendant's failure to exercise supervisory authority, liability can attach "only if that official 'has exhibited deliberate indifference to the plight of the person deprived.'" C.H . ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000) (en banc) (quoting Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). "Accordingly, a plaintiff asserting a failure to supervise claim must not only identify a specific supervisory practice that the defendant failed to employ, he or she must also allege 'both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have comm unicated a message of approval.'" Id. (quoting Bonenberger v. Plymouth Tp., 132 F.3d 20, 25 (3d Cir. 1997)). W here the § 1983 claim is prem ised upon the defendant's alleged failure to properly train his or her subordinates, the plaintiff "must identify a failure to provide specific training that has a causal nexus with their injuries and must dem onstrate that the absence of that specific training can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occ urred." Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir.1997) (citing Colburn v. Upper Darby Tp., 946 F.2d 1017, 1030 (3d C ir.1991)). Defendants insist there are no facts pled in the complaint that would indicate Liebel, Adams,

Leasure or Joseph had personal involvement in the matters alleged or that they directed, or actually knew of and acquiesced in, the alleged violations of Brittany's constitutional rights. W e disagree.

As to Defendant Joseph, Plaintiffs have alleged that "Defendant Edith Joseph was the intake supervisor at OCY assigned to Brittany Legler's case and was directly responsible for handling the multiple complaints of suspected abuse of Brittany which were received before her death." (Complaint ¶ 39.) Thus, Plaintiffs have alleged direct, personal know ledge and involvem ent on her part relative to Brittany's plight.

W ith regard to Defendant Liebel, Plaintiffs have alleged that, as of 2000, OCY (presum ably through, Liebel, its principal and Executive Director) was in possession of a report which expressed a concern among staff mem bers that the agency was in crisis, that caseloads were insupportably high, and that there was an inadequate level of support from superiors. (Complaint ¶¶ 43-44.) It is further alleged that, at all tim es relevant to this lawsuit, Liebel failed to properly staff, train and supervise casew orkers with regard to the processing and assessment of reported child abuse and failed to implem ent written standards both for situations involving multiple referrals of a particular child victim and for cases involving suspected abuse against mentally retarded children. (Id. at ¶¶ 85-87.) Plaintiffs further aver that OCY (presumably through its chief policy mak er, Liebel) had a policy or custom of tolerating the incompetent handling of reported child abuse cases, of disregarding the staff-to-family ratios required by law, and of tolerating employees' non-compliance with mandatory standards and deadlines for the processing and assessing of reported incidents of child abuse. (Id. at ¶¶ 89-90.) It is alleged that Liebel's tolerance and refusal to correct this non-compliance on the part of OCY's caseworker and supervisors emboldened the individual Defendants by leading them to believe that their m isconduct would go unchallenged. (Id. at ¶¶ 90-91.) Finally, it is alleged that Liebel's actions "were the moving force behind the acts of the individual Defendants" and proxim ately caused Brittany Legler's injuries and dam ages. (Id. at ¶ 92.) Collectively, these allegations are sufficient to establish Liebel's personal involvement in the violation of Brittany Legler's substantive due process rights.

As to Defendants Adams and Leasure, Plaintiffs' allegations are less specific but nevertheless sufficient to survive Rule 12(b)(6) scrutiny. The com plaint asserts that these Defendants, along with Liebel and the other named supervisors, failed to properly train and supervise the OCY Defendants under them by, inter alia, "fail[ing] to adopt and implem ent reasonable procedures to prevent harm from occurring to children who were the subject of reports to OCY of suspected abuse, especially those who were m entally retarded and had been placed in a suspected abusive hom e through O CY's arrangem ent." (Com plaint at ¶ 71.) Plaintiffs further aver that these supervisors failed to properly train and supervise the Defendant casewo rkers with regard to "investigat[ing], track[ing] and correct[ing]" reports of child abuse. (Id. at ¶ 72.) Additionally, it is alleged that, at all relevant times, all the named Defendants "were engaged in a joint venture and conspiracy" whereby they each "agreed with and assisted each other in performing" the alleged tortious conduct (id. at ¶ 61), "lent their support and the authority of their office to each other," (id.), and "advised, assisted, ratified and/or directed the actions and inactions taken with regard to Brittany Legler." (Complaint at ¶ 62.) Although these allegations are somewhat generalized, they are sufficient at this juncture to state a claim against Defendants Adams and Leasure in their supervisory capacities.*fn3


Defendants contend that, even if Brittany had a constitutional right to be protected from the abuse perpetrated by her adoptive mother, that right was not firmly established in law and, therefore, the individual Defendants should be protected from civil liability under the doctrine of qualified imm unity. W e do not agree that a grant of qualified immunity is appropriate at this stage of the litigation.

Qualified imm unity shields state officials from suit when their conduct "does not violate clearly established statutory or constitutional rights of which a reas onable person would have k nown." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). W hen the defense of qualified immunity is raised, courts must engaged in a two-step inquiry to determine whether a state official can be liable under § 1983. First, the court must determine whether the facts alleged would establish that the defendant's conduct violated a constitutional or statutory right. Yarris v. County of Delaware, 465 F.3d 129, 140-41 (3d Cir. 2006) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If the alleged conduct would establish the violation of such a right, then the court m ust next determ ine whether the right allegedly violated by the defendant was "clearly established" at the tim e the violation occurred. Id. at 141. If the court conclud es that the defendant's conduct violated a clearly established constitutional or statutory right, it must deny the defendant the protection afforded by qualified imm unity. Id. See also W illiams v. Bitner, 455 F.3d 186, 190-91 (3d Cir. 2006). If the right was not clearly established, however, then the official is entitled to qualified im m unity, and the plaintiff's claim must be dism issed.

Our court of appeals has "adopted a broad view of what constitutes an established right of which a reasonable person would have known." Burns v. County of Cambria, Pa., 971 F.2d 1015, 1024 (3d Cir.1992) (citations and quotation marks omitted). Accordingly, the Third Circuit has held that "there does not have to be 'precise factual correspondence' between the case at issue and a previous case in order for a right to be 'clearly established,' and we would not be 'faithful to the purposes of imm unity by perm itting ... officials one liability-free violation of a constitutional or statutory requirement.'" Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004) (police officers could be liable for Fourth Amendm ent violation after employing excessive force in the course of handcuffing an arrestee, despite the fact that there had been no prior Supreme Court or Third Circuit ruling to that precise effect) (quoting People of Three Mile Island Through Three Mile Island Alert, Inc. v. Nuclear Regulatory Comm 'rs, 747 F.2d 139, 144-45 (3d Cir.1984)).

In this case, we have determined that the Plaintiffs' complaint states a cognizable claim that Brittany Legler's Fourteenth Amendm ent substantive due process rights were violated under a "state-created danger" theory. W e conclude that reasonable officials in the position of the individual Defendants would have known that the type of conduct attributed to them violates substantive due process principles.

W e begin by observing that the T hird Circuit first recognized a viable state-created danger claim in 1996, when it decided Kneipp v. Tedder, discussed supra. By that date, as the court noted, several courts of appeals had already recognized the theory as a basis for establishing liability under § 1983 and prior Third Circuit cases had considered the possible viability of the theory as a means of establishing a constitutional claim under appropriate facts. See Kneipp, 95 F.3d at 1205 (discus sing cases). Moreover, in the years prior to Brittany's adoption, at least two district courts in this circuit had applied the "state-created danger" theory in cases where child welfare workers had played an affirmative role in placing a child with an unfit parent.

In Ford v. Johnson, 899 F. Supp. 227 (W .D. Pa. 1995), the court held that the plaintiff -- the m other of a child who had been beaten to death by the child's natural father -- stated a viable § 1983 claim against county welfare workers who had played an affirmative role in placing the child with her father. The court noted that "the state-created danger theory has been clearly recog nized when the State fails to protect children in foster homes from m istreatment at the hands of their foster parents." 899 F. Supp. at 233 (citing K.H. ex. rel. Murphy v. Morgan, 914 F.2d 846, 852 (7th Cir. 1990) and DeShaney, 489 U.S. at 201 n. 9). Although the Ford court had not found prior cases applying the theory when the mistreatment comes at the hands of a natural parent, the court concluded that "[t]he fact that the child is placed with a parent as opposed to a fos ter parent should not change the standards by which social agencies and their em ployees conduct their investigations." Id. The court found it significant that the child had not previously been in the custody of the abusive father but, rather, had been in the custody of the child welfare agency and was placed with the father only after the agency had investigated the matter and made an affirm ative recom m endation in favor of the placem ent to the state court. Id.

In Tazioly v. City of Philadelphia, No. Civ. A. 97-CV-1219, 1998 W L 633747 (E.D. Pa. Sept. 10, 1998), the court recognized the applicability of the state-created danger theory in a case where child welfare workers participated in terminating a child's satisfactory foster care and placing the child with his biological m other, who was known to have a drug dependency and to exhibit violent and bizarre behavior. The child was subsequently brutally abused by his mother, and the court found that the child and his caregivers could sustain a § 1983 claim against the responsible public agents. Citing Ford, supra, the Tazioly court concluded that "the state-created danger may apply in cases where a state actor has rendered a minor more vulnerable to injury at the hands of the m inor's biological parent." Id. at *11.

Like the foregoing cases, the case at bar involves allegations that child welfare workers, after rem oving a dependent child from her natural hom e and placing her in foster care that was apparently satisfactory, subsequently terminated her foster care and then played an affirmative role in placing the child in an adoptive hom e, despite their awareness of concerns about the adoptive m other's fitness to parent. Plaintiffs allege that Brittany Legler was subsequently abused and ultimately killed at the hands of her adoptive mother, despite repeated reports of suspected abuse over a thirteen-month period which apparently were ignored by the Defendants. W hile the instant case involves placement of a child with an adoptive mother, rather than with a foster parent or a natural parent, w e think the fac ts are sufficiently analogous to the aforementioned authority such that the Defendants were on notice that the type of conduct attributed to them would violate B rittany's Fourteenth Am endm ent rights. See Rivas v. City of Passaic, 365 F.3d 181, 200-01 (3d Cir. 2004) ("As the Supreme Court explained in Hope v. Pelzer, 536 U.S. 730, 122 S. C t. 2508, 153 L.Ed.2d 666 (2002), in som e cases 'a generalized constitu tional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful.'") (alteration in the original)).*fn4


Plaintiffs' § 1983 m unicipal liability claim against O CY is prem ised on the theory that, through its chief policy maker Liebel, the agency failed to properly staff, train and supervise its caseworkers in various respects. A municipality's failure to train employees can serve as the basis for § 1983 liability where the failure to train is the "m oving force" behind the constitutional violation. See City of Canton, O hio v. Harris, 489 U.S. 378, 388-89 (1989). The Third Circuit Court of Appeals recently summ arized the principles of municipal liability as follows:

In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipal liability under 42 U.S.C. § 1983 cannot be based on the respondeat superior doctrine, but must be founded upon evidence that the government unit itself supported a violation of constitutional rights. Id. at 691-95, 98 S.C t. 2018; see also Bielevicz v. Dubinon, 915 F.2d 845, 849-50 (3d Cir.1990). Municipal liability only attaches when the "execution of a government's policy or custom, whether made by its lawm akers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell, 436 U.S. at 694, 98 S.Ct. 2018; Bielevicz, 915 F.2d at 850.

Thus, there are two ways that a plaintiff can establish municipal liability under § 1983: policy or custom. Under Monell, a plaintiff shows that a policy existed "when a 'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Bielevicz, 915 F.2d at 850 (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990) (quoting Pem baur v. City of C incinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986))). A plaintiff may establish a custom, on the other hand," by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law." Id. (citing Andrews, 895 F.2d at 1480). In other words, custom m ay be established by proving knowledge of, and acquiescence to, a practice. Fletcher v. O 'Donnell, 867 F.2d 791, 793-94 (3d Cir.1989).

It is clear under either route that "a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom ." Bielevicz, 915 F.2d at 850 (citing Andrews, 895 F.2d at 1480).


In addition to proving that an unlawful policy or custom existed, a plaintiff also bears the burden of proving that such a policy or custom was the proximate cause of the injuries suffered. Bielevicz, 915 F.2d at 850 (citing Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir.1984)). As we have explained, "[a] sufficiently close causal link between ... a k nown but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by perm itted continuation of the custom ." Bielevicz, 915 F.2d at 851 (quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir.1987)).

Watson v. Abington Tp., 478 F.3d 144, 155-56 (3d Cir. 2007).

Here, Plaintiffs have alleged that O CY and Debra Liebel: * failed to properly staff, train and supervise caseworkers with regard to processing and assessing reports of suspected child abuse (Com plaint ¶ 85); * failed to adopt written standards for the agency's operations with regard to processing and assessing m ultiple referrals of suspected child abuse for a particular child and/or reports of suspected abuse against mentally disabled children (Com plaint ¶¶ 86-87); * maintained a custom or policy of tolerating incompetence, dysfunction and gross negligence in the handling of reported child abuse (Com plaint ¶ 88); * tolerated a pattern of noncompliance with legally mandated staff-to-family ratios (Complaint ¶ 89); and * tolerated staff mem bers' noncompliance with legally mandated standards and deadlines for the processing and assessment of reports of suspected child abuse (Com plaint ¶ 90).

Plaintiffs aver that the foregoing policies and customs were the "moving force" behind Brittany Legler's injuries in that they foreseeably encouraged the individual Defendants in this case to believe that their m isconduct in handling child abuse cases would continue unchallenged. (Com plaint ¶¶ 91-92.) It is this very misconduct which Plaintiffs claim was the sourc e of B rittany's injuries and dam ages. (Id. at ¶ 92.) Finally, Plaintiffs have alleged that these policies and custom s dem onstrated a deliberate indifference on the part of OCY and Liebel to the constitutional rights of children of Erie County with whom OC Y's em ployees were likely to com e into contact. (Id. at ¶ 84.) W e find these allegations sufficient to state a claim against OCY under § 1983.

Defendants protest that the Com plaint fails to comply with the requirements of Monell, supra, et al., inasmuch as "[t]here is no allegation that this type of incident was widespread" and "Plaintiffs have set forth no facts to show that what happened in the Legler tragedy was m ore than a single occurrence." (Def. Br. in Supp. of Mot. to Dismiss [4] at p. 21.) W e disagree. The very essence of Plaintiffs' theory, as set forth in the complaint, is that there was such a degree of sanctioned under-staffing, lack of training and incom petence in the handling of suspected child abuse cases at O CY -- including cases involving m entally impaired victims and/or multiple reports of suspected abuse against a particular child -- that the tragedy which befell Brittany Legler was entirely foreseeable and, indeed, proxim ately caused by the agency's policies. Moreover, Plaintiffs have alleged that this policy or custom evidenced a deliberate indifference on the part of OCY and Liebel, its chief policy m aker, tow ard children, like Brittany, with whom OCY's agents were likely to have contact. Plaintiffs are not required at this juncture to demonstrate that other children actually died at the hands of abusive parents in order to state a successful § 1983 claim against OC Y. See Leatherm an v. Tarrant C county N arcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993) (holding that there is no heightened pleading standard in § 1983 claim s against m unicipalities; R ule 8 of the Federal Rules of Civil Procedure requires only that the com plaint include "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.") (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

B. Plaintiff's Claim for Punitive Damages

Defendants contend that, to the extent Plaintiffs seek an award of punitive dam ages relative to their § 1983 claim s, such dam ages are not recoverable as against O CY or any individual Defendants in their official capacities. Punitive dam ages are not recoverable against m unicipalities under § 1983, City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), and this lim itation has been extended as well to counties. See Doe v. County of Centre, PA, 242 F.3d 437, 455 (3d C ir. 2001) (recognizing that City of Newport "stands for the proposition that municipalities, and more broadly, state and local government entities, are im m une from punitive dam ages" under § 1983). Since a claim against a county em ployee in his or her official capacity is the functional equivalent of a claim against the county itself, see, e.g., Duffy v. County of Bucks, 7 F. Supp. 2d 569, 581 (E.D. Pa. 1998) (official capacity suits against county correctional officers must be analyzed as suits against the County itself), Defendants maintain that the Plaintiffs' prayer for punitive damages against OCY and the individual Defendants in their official capacities should be dismissed.

Plaintiffs do not appear to be contesting this issue. Accordingly, we will strike the Plaintiffs' demand for punitive damages insofar as it relates to Plaintiffs' § 1983 claim against OCY and the individual Defendants in their official capacities.

C. Plaintiffs' State Law Claims

Counts 3 and 4 of the Com plaint assert claims under Pennsylvania law for negligence per se and gross negligence, respectively. Specifically, Count 3 alleges that Defendants Joseph, Valimont and the other individually named OCY caseworkers and supervisors had a duty pursuant to 55 Pa. Code § 3490.232(d)(1)-(3),*fn5 § 3490.232(e),*fn6 § 3490.232(g)*fn7 ; and § 3490.321(h)*fn8 to make an initial determination of the risk to Brittany upon receiving reports of suspected abuse and to mak e a risk assessm ent at the conclusion of the intake investigation within 60 calendar days. (Com plaint ¶ 75.) Plaintiffs aver that, in Brittany's case, a Risk Assessment was not completed until May 13, 2004, which was four days after her death and sixteen days after the individual Defendants had made the decision to close Brittany's case for the second tim e. (Id. at ¶ 76.) Plaintiffs allege that the Defendants' failure to conduct a proper and adequate investigation and to complete a timely risk assessm ent proximately resulted in her physical dam ages, em otional distress and loss of life. (Id. at ¶ 77.)

Count 4 of the Com plaint asserts a cause of action for gross negligence. Specifically, Plaintiffs allege that the Defendants were grossly negligent in failing to properly investigate the various reports of abuse, in failing to interview individuals with apparent knowledge of the abuse, and in failing to perform a m andated risk assessm ent for Brittany within the required 60-day period. (Com plaint at ¶¶ 79-80.) It is further alleged that Defendants' actions constituted reckless, wanton, and willful misconduct which prox imately caused the injuries suffered by Brittany. (Id. at ¶¶ 81-82.)

The individual Defendants contend that they are imm une from these claims under Pennsylvania's Political Subdivisions Tort Claims Act ("PSTCA "), 42 Pa. C.S.A. §§ 8541-8542. Sections 8541 and 8545 of the PSTCA provide a general grant of im m unity from tort liability as to local agencies and their employees and agents acting within the scope of their duties, subject only to certain enumerated exceptions. See 42 Pa.C.S.A. § 8541(a) ("Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an em ployee thereof or any other person."); id. at § 8545 (an agency employee acting within the scope of his duties is liable for civil damages only to the same extent as his employing agency). Plaintiffs do not appear to allege that any of the exceptions applicable to local agency imm unity are present here. See 42 Pa.C.S.A. § 8542(b)(1)-(8).

On the other hand, Plaintiffs do assert an exception to imm unity insofar as it relates to the individual Defendants. In particular, 42 Pa.C.S.A. § 8550 provides an exception to the general rule of imm unity afforded to local officials in cases where the injury caused by the official constitutes "a crime, actual fraud, actual malice or willful misconduct." Plaintiffs have alleged in ¶ 81 of the complaint that the "Defendants' actions and inactions am ounted to reck less, wanton and willful misconduct." (Com plaint ¶ 81.) See also Com plaint ¶ 59 ("Defendants acted with gross negligence, with reckless, wanton and willful misconduct, and/or with deliberate indifference toward Brittany Legler and her federal constitutional rights.").

Defendants contend that this exception has no applicability here. They refer us to Robbins v. Cum berland County Children and Youth Services, 802 A.2d 1239 (Pa. Com mw . 2002), wherein the Pennsylvania C om m onw ealth C court observed that:

"[w]illful misconduct, for the purposes of tort law, has been defined by our Supreme Court to mean conduct whereby the actor desired to bring about the result that followed or at least was aware that it was substantially certain to follow, so that such desire can be im plied." Evans v. Philadelphia Transportation Com pany, 418 Pa. 567, 212 A.2d 440 (1965). In other words, the term "willful m isconduct" is synonymous with the term "intentional tort." See W . Prosser, Handbook of The Law of Torts, 31 (4th ed. 1971).

802 A.2d at 1252-53 (quoting King v. Breach, 540 A.2d 976, 981 (Pa. Com mw . 1988)). The Robbins Court further advised that, "[t]o prove willful m isconduct, a plaintiff m ust establish that the ac tor desired to bring about the result that followed, or at least it was substantially certain to follow, i.e., specific intent." Id. at 1253 (citing Diaz v. Houck, 632 A.2d 1081, 1085 (P a. Com m w. 1993)). Robbins was a case in which the adoptive parents of an abused child brought state and federal claims against the Cum berland C county Office of Children and Youth Services and certain of its employees stemm ing from injuries which the abused child had suffered at the hands of his natural mother. In concluding that the agency's employees were entitled to im m unity under the PST CA, the Com m onwealth Court agreed with the trial court's assessm ent that:

[A] fair reading of the factual allegations regarding the Defendants' conduct, and the reasonable inferences to be drawn therefrom , if believed, do not support a conclusion that any of the individual defendants acted with m alignant feelings or a wick ed disregard of the interests of the m inor plaintiff. Nor do they support a conclusion that any such defendant acted with an intent that the minor plaintiff be injured, or with an awareness that his injuries were substantially certain to occur. At most, the complaint presents a series of events in which an error of judgment by a defendant in failing to recognize an unusual personality disorder in the minor plaintiff's mother resulting in the most tragic of consequences. 802 A.2d at 1253.

Defendants also refer this Court to Bryan v. Erie C county Office of C hildren & Youth, No. Civ. A. 03-259 Erie, 2006 WL 2850446 (W .D. Pa. Sept. 29, 2006). In Bryan, foster parents sued the Erie C county Office of Children & Youth Services ("ECOCY") and various of its employees as the result of a sexual assault which their natural son suffered at the hands of a foster child placed within their home. Am ong other things, the plaintiffs in Bryan alleged that ECOCY and certain of its em ployees knew or should have known of the foster child's sexually abusive and violent behavior toward others and failed to apprise plaintiffs of the serious risk he posed to the minor children in the plaintiffs' home. The plaintiffs claimed that the agency's employees had failed to perform a m andated risk assessment relative to the foster child's placem ent; alternatively, they claimed that the defendants had deliberately or reck lessly disregarded or failed to disclose the information obtained pursuant to the assessment. W ith respect to the plaintiffs' state law claims, which included allegations of intentional infliction of emotional distress, negligence per se, and assault and battery, the district court ruled that the ECOCY defendants were entitled to imm unity under the PS TC A. The court specifically found that the plaintiffs had failed to adequately allege "willful misconduct" on the part of the individual defendants for purposes of asserting § 8550's statutory exception to im m unity, notw ithstanding the fact that the plaintiffs had asserted, inter alia, that the individual defendants had acted "recklessly and with deliberate indifference in failing to perform their duties" and that the defendants' "acts/omissions were 'outrageous, intentional, reckless and negligent.'" Id. at *24. Citing Robbins' discussion on the type of behavior which constitutes "willful misconduct," the Bryan court noted that the concept of "willful m isconduct" under Pennsylvania law is synonymous with "intentional tort," id. at * 23 (citation omitted), and incorporates a requirement that the individual employees "acted with the specific intent to injure plaintiffs." Id. at *24 (citation omitted) (emphasis in the original). The Bryan court found that the plaintiffs had alleged "a serious error in judgm ent and negligence, rather than a specific intent to harm ." Id. at *24.

In the case at bar, the individual Defendants claim that the allegations against them , like those in Bryan and Robbins, do not meet the standard for abrogating official imm unity. They claim the alleged m isdeeds constitute serious errors of m isjudgm ent and perhaps negligence, but not a specific intent to harm Brittany Legler.

Plaintiffs, on the other hand, maintain that they should be permitted to pursue their negligence per se claim based upon the holding of U.S. ex rel. Fear v. Rundle, 506 F.2d 331 (3d Cir. 1974). In that case, the T hird C circuit Court of Appeals entertained an appeal of a jury aw ard in favor of a P ennsylvania state prisoner who had received negligent medical care from two prison physicians relative to a wrist injury the plaintiff had sustained while incarcerated. On appeal, the principal inquiry was whether the physicians were imm une from liability as officers of the Com monwealth. In upholding the verdict against the physicians, the Court of Appeals held that the prison physicians were not entitled to qualified immunity:

As low officials, the defendants' liability to plaintiff for their tortious action or failure to act is dependent, under Montgom ery [v. Philadelphia, 140 A.2d 100 (Pa. 1958)] and Am mlung [v. City of Chester, 302 A.2d 491 (Pa. Super. 1973)], upon whether their decision to act or to refrain from acting was left to their discretion by state law. W ere defendants performing a discretionary function when they caused plaintiff's injury, they would only be liable to plaintiff, under Pennsylvania law, if their action or failure to act was reckless, malicious or wanton. W ere the defendants perform ing a non-discretionary function, we believe they could be held liable to plaintiff, under Pennsylvania law, if their action or om ission was m erely negligent.

506 F.2d at 335. Noting that the defendant physicians were required under 61 P.S. § 372 to make inquiries concerning the health of each prisoner and to inform the warden of any physical infirmity affected by prison treatment, the court of appeals determ ined that the defendants had a non-discretionary duty to comply with the statute. The court further concluded that the defendants were therefore "low officials" who failed to perform a non-discretionary act and, as such, their conduct was subject to liability under the negligence standard generally applied in comm on law malpractice actions, rather than by the "reckless, wan ton or m alicious " standard. Id. at 335-36.

To the extent Plaintiffs here are arguing that the individual Defendants should be held to a standard of ordinary negligence pursuant to Rundle, we are not persuaded. That case did not involve any application or interpretation § 8550 of the PSTCA, as the defendants in that case were state employees rather than local officials; in fact Rundle appears to predate the enactment of § 8550. Accordingly, Rundle provides no guidance with respect to our application of § 8550 to the allegations in this case.

Plaintiffs also rely on the decision of Ford v. Johnson, 899 F. Supp. 227 (W .D. Pa. 1995), in defense of their state law claims. In Ford, as we have previously discussed, the mother of a child who was beaten to death by the child's father sued individual mem bers of the Allegheny County Children and Youth Services ("C YS") based upon their role in helping to place the child with the father. W ith respect to her pendent state law claim , the plaintiff argued that the claim should be permitted to survive under 42 Pa.C.S.A. § 8550 because she had alleged "gross negligence" -- a term which has been statutorily defined as "reckless, willful or wanton m isconduct." See 899 F. Supp. at 234 (citing 42 Pa.C.S.A. § 8336(d).) The district court ruled that, to the extent the plaintiff was alleging acts of willful misconduct on the part of the individual CYS defendants, such claim could be m aintained pursuant to 42 Pa.C.S.A. § 8550. Plaintiffs here claim that, because of their allegations of gross negligence, their state law claim should similarly survive.

This Court is not persuaded that Plaintiffs have adequately alleged willful misconduct within the meaning of 42 Pa.C.S.A. § 8550. Having reviewed all of the aforecited cases, the Court finds that the holdings of Robbins and Bryan are the more persuasive authority relative to this particular legal issue. Not only are those decisions more recent than Ford, but they also involve m ore detailed analyses of § 8550's meaning and application. Like the courts in Robbins and Bryan, we conclude that the misconduct alleged in this case certainly bespeaks a deliberate disregard for the rights and welfare of Brittany Legler, but not the kind of intentional wrongdoing and specific intent to harm as is required by § 8550.

Plaintiffs seek to distinguish Robbins and Bryan by suggesting that those cases -- unlike the present case -- did not involve specific allegations of willful misconduct. However, the Robbins plaintiffs had asserted claims against the individual CYS defendants for, among other things, intentional infliction of emotional distress (an intentional tort), had sought punitive damages, and had raised allegations of "gross negligence," "willful disregard" and "deliberate indifference" to the child-victim's safety. See Robbins, 802 A.2d at 1252. In Bryan, the plaintiffs had asserted that the individual defendants acted with "deliberate[] or reckless[] disregard[]" for their statutory duties, see Bryan, supra, at *1 and *24, and that the defendants' acts/om issions were "outrageous, intentional, reckless, and negligent." Id. at *24. Such allegations are not materially distinguishable from the type of allegations being raised here. Moreover, Plaintiffs' mere incantation of the term "willful misconduct" does not by itself entitle them to defeat the PSTCA's general grant of imm unity. Instead, we will consider the substance of Plaintiffs' allegation as it bears on the Defendants' alleged m isconduct. See 2 Jam es W m . Moore, Moore's Federal Practice § 12.34[1][b], at 12-61 to 12-63 (3d ed. 2001) ("Liberal construction has its limits ... conclusory allegations or legal conclusions m asquerading as fac tual conclusions will not suffice to prevent a motion to dism iss. W hile facts m ust be acce pted as alleged, this does not autom atically extend to bald assertions, subjective characterizations, or legal conclusions.") (cited in General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 333 (3d Cir. 2001)). Because Plaintiffs have failed to allege "willful misconduct" on the part of the individual Defendants, the state law claims against the individual Defendants will be dismissed.


Based upon the foregoing disc ussion, the Defendants' m otion to dism iss will be granted with respect to Plaintiffs' claim under 42 U.S.C. § 1983 for the alleged violation of Brittany Legler's F ourteenth Am endment substantive due process rights insofar as said claim is premised upon a "special relationship" theory. In addition, Defendants' motion is granted as to Plaintiffs' prayer for punitive dam ages insofar as it relates to Plaintiffs' § 1983 claim s against the individual Defendants in their official capacities. Finally, Defendants' motion is granted with respect to Counts 3 and 4 of the Complaint, which are founded on state law claims of negligence per se and gross negligence, respectively. In all other respects, Defendants' motion to dismiss will be denied.

An appropriate order follows.


AND NOW , to wit, this 29th day of June, 2007, for the reasons stated in the accompanying Mem orandum Opinion,

IT IS HEREB Y OR DER ED that Defendants' Motion to Dismiss C om plaint [3] is GRANT ED in part and DENIED in part as follows:

1. Defendants' motion to dismiss is GRAN TED with respect to Plaintiffs' claim under 42 U .S.C. § 1983 for the alleged violation of Brittany Legler's Fourteenth Am endment substantive due process rights insofar as said claim is premised upon a "special relationship" theory;

2. Defendants' motion is GRAN TED as to Plaintiffs' prayer for punitive damages insofar as it relates to Plaintiffs' § 1983 claims against OCY and the individual Defendants in their official capacities;

3. Defendants' motion is GRAN TED with respect to Counts 3 and 4 of the Com plaint, which are founded on state law claims of negligence per se and gross negligence, respectively; and

4. In all other respects, Defendants' motion to dismiss is DENIED.

SEAN J. McLAUGHLIN United States District Judge

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