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Walthour v. Child and Youth Services

July 14, 2010


The opinion of the court was delivered by: Slomsky, J.



This civil action arises from child dependency proceedings in the Court of Common Pleas of Delaware County, Pennsylvania, between Plaintiff Victor Walthour, Sr.*fn1 and Defendant Delaware County Children and Youth Services ("CYS") (improperly captioned as "Child and Youth Services"). The crux of Plaintiff's claim is that the state court proceeding, in which CYS obtained custody of Plaintiff's minor children, impinged on Plaintiff's constitutional rights as a parent.

Before the Court are five (5) Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and/or 12(b)(6).*fn2 On February 18, 2010, the first Motion to Dismiss (Doc. No. 21) was filed on behalf of six defendants (hereinafter "Judicial Defendants"): the Honorable Joseph P. Cronin, Jr., President Judge of the Court of Common Pleas of Delaware County, Pennsylvania; the Honorable Maureen Fitzpatrick, Michael F.X. Coll, James P. Bradley, and Mary Alice Brennan, Judges of the Court of Common Pleas of Delaware County; and David McNulty, court-appointed master in the Court of Common Pleas of Delaware County. On February 23, 2010, Plaintiff filed a pro se response in opposition in the form of a Motion requesting "that defendants request for dismissal on any basis be DENIED" (Doc. No. 24). This response in opposition is one page long; it does not cite to any legal authority; and it does not directly respond to Judicial Defendants' arguments for dismissal.

On March 2, 2010, the second Motion to Dismiss (Doc. No. 28) was filed on behalf of sixteen (16) defendants (hereinafter "CYS Defendants"): County of Delaware on behalf of its Children and Youth Services Department; Tamika Clarke, CYS Caseworker; Patricia McGettigan, CYS Caseworker Supervisor; Mary Germond, CYS Administrator; Howard Gallagher, Esquire, Solicitor for CYS; Michael Dignazio, Esquire, Assistant Solicitor for CYS; Barbara Scarlata, Guardian Ad Litem; Colleen Cox, Caseworker Supervisor for CYS; Beverly White, CYS Legal Department Court Representative; Becki Harris, CYS Caseworker; the Honorable John Whelan, County Council; Dorothy Klein, Director of the Delaware County Department of Human Services; the Honorable Andy Lewis, County Council; Linda Cartisano, County Council Chairperson; the Honorable Christine Fizzano Cannon, County Council; and the Honorable Thoms J. McGarrigle, County Council. On March 15, 2010, Plaintiff filed a pro se response in opposition to the CYS Defendants' Motion to Dismiss in the form of a Motion requesting that "any motions to dismiss [be] denied." (Doc. No. 33.) Like Plaintiff's previous response in opposition, this Motion is one page long; it does not cite to any legal authority; and it does not directly respond to any of CYS Defendants' arguments for dismissal.

On March 17, 2010, the third Motion to Dismiss (Doc. No. 36) was filed on behalf of Defendant Albert J. Lehmicke, M.D. (hereinafter "Dr. Lehmicke"). On the following day, March 18, 2010, the fourth Motion to Dismiss (Doc. No. 38) was filed on behalf of Defendant George B. Dawson. Thereafter, Plaintiff filed a pro se motion requesting "that any further request for dismissal be denied" (Doc. No. 39), which the Court will presume was intended to be a response in opposition to the Dr. Lehmicke and Dawson Motions to Dismiss. Once again, the Court notes that this response in opposition is one page long; it does not cite to any legal authority; and it does not directly respond to any of Dr. Lehmicke or Dawson's arguments for dismissal.

Finally, on May 4, 2010, the fifth Motion to Dismiss (Doc. No. 50) was filed on behalf of Defendant Gerard McShea, a Pennsylvania state trooper. Plaintiff did not file a response in opposition to this Motion and the time to file such a response has elapsed. However, the Court notes that Plaintiff's March 23, 2010 "Motion" (Doc. No. 39) appears to demonstrate Plaintiff's intent to request that any "pending next request" for dismissal be denied. Thus, the Court will infer that Plaintiff opposes Defendant McShea's Motion to Dismiss.

For the reasons that follow, the Court will grant the Motions to Dismiss (Doc. Nos. 21, 28, 36, 38, and 50) and dismiss all claims against all moving Defendants.


On August 11, 2009, Plaintiff, filed a pro se civil rights complaint (Doc. No. 1) against numerous defendants including Delaware County CYS, employees of CYS, various law enforcement officials, and several judicial officers. In the following months, prior to serving any Defendants, Plaintiff filed several additional documents with the Court, styled as Amendments and/or Exhibits to the Complaint, which added or replaced various plaintiffs and defendants in the caption of each submission and asserted new allegations. (See Doc. Nos. 2, 3, 5, and 7.) On December 21, 2009, due to the nonconforming and confusing nature of Plaintiff's numerous filings, the Court ordered Plaintiff to file a complete amended complaint in accordance with the Federal Rules of Civil Procedure and informed Plaintiff that each Defendant must be served with a copy of this filing. (Doc. No. 9.) On January 11, 2010, in response to the Court's Order, Plaintiff filed an Amended Complaint (Doc. No. 10) and Exhibits (Doc. No. 14) which will hereinafter be referred to collectively as Plaintiff's "Amended Complaint."*fn3

On February 19, 2010, the Court granted Plaintiff's Motion for voluntary dismissal of two Defendants: Lauren Lonsdale and Thomas Gilhool. (See Doc. Nos. 19 and 23.) Additionally, as noted at footnote two, supra, Defendant Green was voluntarily dismissed on April 13, 2010. (Doc. No. 46.) On March 8, 2010, CYS Defendants filed a Motion for Protective Order pursuant to Fed. R. Civ. P. 26(c) (Doc. No. 32) to stay discovery pending resolution of their Motion to Dismiss (Doc. No. 28). On March 31, 2010, the Court granted this Motion. (Doc. No. 40.)

At present, there are twenty-five (25) remaining defendants in this action. The five (5) Motions to Dismiss now pending before the Court were filed on behalf of these remaining Defendants and are now ripe for resolution.


The factual allegations contained in the Amended Complaint are liberally construed, as pleadings filed by pro se plaintiffs are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Fed. R. Civ. P. 8(e) ("[p]leadings must be construed so as to do justice"). Thus, if the Court:

[C]an reasonably read [the] pleadings to state a valid claim on which [Plaintiff] could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or [Plaintiff's] unfamiliarity with pleading requirements.

Wilberger v. Ziegler, No. 08-54, 2009 WL 734728, *3 (W.D. Pa. Mar. 19, 2009); see also Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam) (noting that pro se pleadings should be construed liberally, however inartful they may be). In light of this standard, Plaintiff's allegations are discussed below.

The Amended Complaint is largely adrift in a sea of legal conclusions not anchored to supporting factual statements. However, the crux of Plaintiff's argument is that Defendants "caused undue hardship upon the Walthour family" by conducting state court proceedings leading to an unlawful "divorce without consent" and unlawful removal of Plaintiff's minor children from his home in order to place them in the care of CYS. (Amend. Compl. 1, 3-12.) The underlying facts are apparent only through a review of the exhibits attached to the Amended Complaint, primarily consisting of official documents from the Delaware County Department of Human Services, the Delaware County Court of Common Pleas, and Delaware County CYS.*fn4

According to these documents, on May 14, 2009, CYS received a referral from the high school attended by Plaintiff's daughter (hereinafter referred to as "S.W."). Through this referral, CYS was informed that S.W. was beaten with an extension cord resulting in bruises to her arms and legs. (Amend. Compl. Ex. "Allegations of Dependency.") CYS believed this beating was inflicted by S.W.'s father, Plaintiff. (Id.) CYS reported that on May 18, 2009, S.W. was seen by a pediatrician, Dr. Lehmicke,*fn5 who stated that the injuries were significant and rose to the level of child abuse. (Amend. Compl. Ex. "CPS Services Form CY 48-0695, Page 2.")

On May 29, 2009, Defendant Judge Coll issued a Protective Custody Order granting CYS temporary custody of S.W. and V.W., Plaintiff's daughter and son. (Amend. Compl. Ex. "Allegations of Dependency.") On June 30, 2009, after conducting a hearing, Defendant McNulty, in his role as court-appointed master, recommended to the Court of Common Pleas that protective custody and temporary legal and physical custody of V.W. remain with CYS. (Amend. Compl. Ex. "July 30, 2009 Order of David W. McNulty, Esquire, Master.") On August 12, 2009, a similar recommendation was made regarding both S.W. and V.W. (Amend. Compl. Ex. "Aug. 12, 2009 Order.")

On September 16, 2009, a subpoena was issued under the authority of Defendant Cronin, President Judge of the Court of Common Pleas of Delaware County, and signed by the Clerk of Court, which commanded Plaintiff to appear before a Judge of the Delaware County Juvenile Court for a CYS Court Hearing on November 4, 2009. (Amend. Compl. Ex. "Sept. 16, 2009 Ltr. from CYS" and "Sept. 16, 2009 Subpoenas.")

Following a hearing on December 22, 2009, Defendant Judge Bradley issued Orders authorizing CYS to sign all required consents for the medical care of V.W. and S.W. (Amend. Compl. Ex. "Dec. 23, 2009 Orders of James P. Bradley, Judge, Court of Common Pleas of Delaware County, Pennsylvania.") As of the date of this Opinion, the Court presumes that Plaintiff's children remain in CYS custody.

Plaintiff's Amended Complaint asserts constitutional claims under 42 U.S.C. § 1983 for violations of Plaintiff's rights under the Due Process Clause, the Privileges or Immunities Clause, the Equal Protection Clause, the Takings Clause, and the Confrontation Clause; and for unreasonable search and seizure and "[e]ngag[ing] in Insurrection or Rebellion, or [giving] aid or comfort to the enemies of the Constitution." (Amend. Compl. 3-13.) Plaintiff additionally claims that his right to counsel was violated, which the Court will interpret to be a state law claim under the Juvenile Act, 42 Pa. C.S.A. § 6337,*fn6 because the Sixth Amendment right to representation is limited to indigent defendants in criminal proceedings. Gideon v. Wainwright, 372 U.S. 335, 342-43 (1963). Finally, Plaintiff asserts a claim for violations of "The Children Act of 1989," which appears to be a British law and is therefore beyond the jurisdiction of this Court.*fn7 (Amend. Compl. 1.) The relief sought by Plaintiff consists of (1) the immediate return of his minor children, (2) removal of Defendants' decision-making authority, and (3) monetary damages.


Defendants have moved to dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Judicial Defendants have also moved to dismiss Plaintiff's Amended Complaint for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The standards for dismissal under these distinct subsections of Rule 12 are quite different. Mortensen v. First Fed. Savings and Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977).

A. Standard Under Rule 12(b)(1): Lack of Subject-Matter Jurisdiction

A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) challenges a court's very power to hear the case. Id. As the party asserting jurisdiction, Plaintiff bears the burden of showing that his claims are properly before the Court. Id. In deciding a Rule 12(b)(1) motion, a court must first determine whether "the attack on its jurisdiction is a facial attack or a factual attack." Van Tassel v. Lawrence County Domestic Relations Section, 659 F. Supp.2d 672, 687 (W.D. Pa. 2009). A facial attack challenges the sufficiency of Plaintiff's pleadings. Id. When a defendant makes a facial attack, "a court must accept the allegations contained in the plaintiff's complaint as true." Id. Conversely, when a defendant makes a factual attack on the court's jurisdiction, "the court does not attach a presumption of truthfulness to the plaintiff's allegations, and the existence of disputed material facts does not preclude the court from deciding for itself the jurisdictional issues raised in the motion to dismiss." Id.

Judicial Defendants do not explicitly state whether their Rule 12(b)(1) challenge is facial or factual. However, Judicial Defendants' arguments relying upon the Rooker-Feldman doctrine demonstrate their intent to make a factual challenge to subject-matter jurisdiction. Thus, on the jurisdictional issues raised in the Motion to Dismiss filed by Judicial Defendants, the Court need not credit Plaintiff's allegations with a presumption of truthfulness.

B. Standard Under Rule 12(b)(6): Failure to State a Claim

The motion to dismiss standard under Rule 12(b)(6) has been the subject of recent examination, culminating with the Supreme Court's Opinion in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). After Iqbal it is clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" in defeating a Rule 12(b)(6) motion to dismiss. Id. at 1949; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Applying the principles of Iqbal, the Third Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) articulated a two part analysis that district courts in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss. See also Edwards v. A.H. Cornell & Son, Inc., No. 09-3198, 2010 WL 2521033, *2 (3d Cir. June 24, 2010). First, the factual and legal elements of a claim should be separated, meaning "a District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler, 578 F.3d at 210-11. Second, the Court must determine whether the facts alleged in the complaint demonstrate that the plaintiff has a "plausible claim for relief." Id. at 211. In other words, a complaint must do more than allege a plaintiff's entitlement to relief, it must "show" such an entitlement with its facts. Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the ...

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