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Livingston v. Allegheny County

January 27, 2010

FREDERICK LIVINGSTON, PLAINTIFF,
v.
ALLEGHENY COUNTY, ALLEGHENY COUNTY OFFICE OF CHILDREN, FAMILY AND YOUTH ("OCYF"), NICOLE LUBATTI, OCYF CASEWORKER, BETSY CAREOFF, OCYF CASEWORKER, KAREN NEPPACH, OCYF CASEWORKER, DEBORAH SADLER-KIMES, OCYF CASEWORKER, KELLY HITCHENS, OCYF CASEWORKER, AMANDA ORR, OCYF CASEWORKER, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; KOZLOWSKI, ALLEGHENY COUNTY DETECTIVE, SEAN KELLY, ALLEGHENY COUNTY DETECTIVE, JEFF CORCHECK, ALLEGHENY COUNTY DETECTIVE, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; CHARLES MOFFAT, SUPERINTENDENT OF THE ALLEGHENY COUNTY POLICE DEPARTMENT, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; FAMILYLINKS, A PENNSYLVANIA NONPROFIT CORPORATION; ADELLA DIXON, BOTH INDIVIDUALLY AND IN HER CAPACITY AS A EMPLOYEE OF FAMILYLINKS DEFENDANTS



The opinion of the court was delivered by: Magistrate Judge Lenihan

Doc. No. 48

MEMORANDUM AND OPINION

Lenihan, M.J.

Frederick Livingston ("Livingston") commenced this civil rights action against Allegheny County, the Allegheny County Office of Children, Family and Youth ("CYF") and certain of its law enforcement and child caseworker personnel in their official and individual capacities, FamilyLinks, a non-profit corporation, and Adella Dixon, a FamilyLinks employee. Livingston contends that the defendants participated in an unwarranted investigation of sex abuse charges against him which resulted in his false arrest, false imprisonment, and malicious prosecution that violated his constitutional right of protection from unreasonable search and seizure guaranteed by the Fourth Amendment and his substantive due process rights under the Fourteenth Amendment. Alleged concerted nature of the county employees' activity forms the basis for Livingston's conspiracy claim under 42 U.S.C. § 1985. Livingston's complaint also included state law claims for false arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution, and negligence. The defendants have filed a motion for summary judgment claiming that there is no evidence that they violated Livingston's constitutional rights and that, in any event, they are entitled to immunity.

After careful consideration, the defendants' motion for summary judgment (Docket. No. 48) will be granted*fn1

I. Facts

Livingston, a police officer employed by Edgewood Borough, and Carmen Williams ("Williams") are the parents of two daughters, N.W. and B.W. Livingston and Williams are not married, but lived together off and on for a number of years.

On or about March 6, 2002, B.W., then fourteen years old, informed a school nurse that her father was physically abusing her. The allegations were referred to and investigated by CYF and were determined to be unfounded. On April 24, 2002, CYF informed Livingston that it had concluded its assessment and the matter would be closed.

On May 6,2002, Livingston filed a dependency petition against B.W., alleging that she was disruptive in school and was failing seventh grade. He also asserted that his daughter was non-responsive to discipline and required a mental health evaluation. Livingston eventually withdrew this petition, but on May 28, 2003, filed a second petition averring that B.W. continued to be a discipline problem. This petition was filed shortly after B.W. was arrested and charged with criminal mischief after she cut up some of Livingston's police uniforms with a razor blade. This petition was dismissed and the case was closed on September 10, 2003.

Livingston filed a third dependency petition regarding B.W. describing further disruptive behavior and poor academic achievement. Around this time, Nicole Lubatti ("Lubatti"), a CYF caseworker, was assigned to the case. After a hearing, on July 28, 2004, B.W. was adjudicated delinquent in the Court of Common Pleas of Allegheny County. The court ordered that B.W. remain with her mother and have no contact with Livingston, who had moved out of the house. The parents were referred to counseling.

Problems with B.W. continued, however, and she ran away from home in August 2004. CYF requested a shelter hearing to determine an appropriate placement for B.W. and, after a hearing on August 20, 2004, she was placed in a shelter and was ordered to undergo a drug and alcohol and mental health evaluation. B.W.'s parents were allowed visitation rights subject to a recommendation by a family therapist. On September 22, 2004, B.W. was released from the shelter to live with her mother and she was ordered to continue family therapy with both her mother and father.

On November 15, 2004, B.W was again placed in a shelter. Supervised parent visits were permitted only if B.W. consented. B.W.'s therapy was to continue and CYF was directed to schedule family therapy. On January 25, 2005, B.W. was granted permission to live with her maternal grandmother. Additionally, Lubatti and her supervisor, Betsy Careoff ("Careoff") referred the family to the Family Group Decision Making, a CYF unit designed to assist families in addressing their domestic conflicts.

Adella Dixon ("Dixon") was the Family Advocate assigned to assist the Livingston/Williams family to work towards reunification of B.W. with either of her parents. Dixon separately explained to B.W., Livingston, and Williams that all parties must be willing to participate in the program and all three agreed to cooperate. On March 28, 2005, the family developed a plan, in part, to facilitate visitation by Livingston that included an agreement that the family would be evaluated by a psychologist. B.W. insisted that she be permitted to visit the psychologist on her own and her parents agreed to this modification.

On March 30, 2005, Dr. Pat Piercy conducted a counseling session with B.W. During this session, B.W. disclosed that Livingston had sexually abused her older sister, N.W., then seventeen years old. When the abuse allegations were reported to CYF, Careoff called in a Child Line Report to the Child Protective Services unit of CYF, where the investigation was referred to Karen Neppach ("Neppach"), an intake caseworker. Careoff also dispatched two Family Service caseworkers, Kelly Hitchens and Amanda Orr Dunmeyer, to N.W.'s school to interview her. When N.W. confirmed that she had been sexually abused by Livingston, CYF became responsible for N.W.'s safety and an emergency custody authorization was procured entrusting B.W. to her maternal grandmother's care.

In accordance with the Pennsylvania Child Protective Services Law, 23 Pa. C.S. §6301 et seq., CYF initiated an investigation of the allegations against Livingston. Additionally, the matter was referred to the Allegheny County Police where Detectives Sean Kelly ("Kelly") and Dennis Kozlowski ("Kozlowski") conducted a parallel, but separate investigation.

On April 13, 2005, Dr. Susan Nathan, a licensed psychologist, conducted a forensic interview with N.W. at the Mercy Children's Medical Center. Detective Kelly, Neppach and Hitchens observed the interview. At its conclusion, N.W. was administered the Trauma Symptom Checklist for Children and Adolescents where:"[N.W.] scored in the clearly significant range on 9 of 10 scales, indicating anxiety, depression, anger, post-traumatic stress, disassociation, and sexual concerns." Pl's App. Exhibit FF, Dr. Susan Nathan's Forensic Report 4. Dr. Nathan concluded that there was "a probable likelihood that N.W. was a victim of chronic sex abuse by her father." Id.

Dr. Nathan discussed her findings with Neppach who then interviewed Livingston. Neppach also made several unsuccessful attempts to contact Williams. When Neppach concluded her investigation, she discussed her findings with her supervisor and it was determined that a report of abuse was indicated.

In their investigation, Detectives Kelly and Kozlowski, accompanied by Deputy District Attorney Laura Ditka, the head of the District Attorney's Office Child Abuse Unit, conducted an interview with N.W. to clarify portions of N.W.'s disclosure not fully explored during the forensic interview. Kelly and Kozlowski also questioned Livingston, Williams, and B.W. B.W told the detectives that, approximately five years earlier, N.W. told Williams that Livingston molested her. Williams confirmed that N.W. made this disclosure, but stated that N.W. described the ordeal as a dream. Livingston for his part denied the allegations and characterized N.W. as promiscuous. Livingston produced a bill from Children's Hospital contending it was related to N.W.'s attempt to procure an abortion. A check of the date of the invoice revealed that it coincided with a suicide attempt by N.W. The detectives also attempted to interview R. B., a friend of N.W.'s, and a possible witness, but were unable to schedule an interview with her.

The detectives discussed the results of their investigation with Ms. Ditka to determine if there were sufficient grounds to file a criminal complaint. Ms. Ditka recommended that charges be filed and Livingston was arrested and charged with criminal offenses connected to his alleged abuse of N.W. After a jury trial, Livingston was acquitted of the charges and the indicated report of child abuse was expunged.

On July 7, 2007, Livingston filed the instant lawsuit asserting a variety of claims premised on federal and state law against numerous defendants. Count one alleges that the detective defendants violated his constitutional rights by falsely arresting, imprisoning, and prosecuting him without probable cause for the arrest. Livingston also asserts in this count that all defendants, individually, officially, and in concert with one another violated his substantive due rights under 42 U.S.C. §§ 1983 and 1985 by conducting a constitutionally deficient investigation of the sex abuse charges which they knew were fabricated. Livingston contends that the reason for the cursory investigation was traceable to an Allegheny County policy, practice, or custom of failing to adequately train its caseworkers and detectives in investigating allegations of sexual abuse. Counts two through six outline Livingston's state law claims of false arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution, and negligence.

All defendants filed a motion for summary judgment arguing that Livingston failed, as a matter of law, to establish that any of his constitutional rights were violated. The defendants additionally assert that the claims raised against them in their individual capacities are barred by absolute or qualified immunity and that the state law claims are barred by the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541. Defendant Allegheny County urges dismissal of the claims against it, citing the lack of evidence to support a failure to train theory and Superintendent Moffatt disputes the availability of respondeat superior liability in section 1983 actions.

II. Legal Standard

Under Fed.R.Civ.P.56(c), "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law[,]" summary judgment should be granted. The threshold inquiry is whether there are any genuine factual issues that can be properly resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250(1986). A court may grant summary judgment if the non-moving party fails to make a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corporation v. Catrett, 477 U.S. 317, 322(1986). In making this determination, the non-moving party is entitled to all reasonable inferences. Lawrence v. ...


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