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A v. Nutter

August 27, 2010

A, A MINOR, AND B, A MINOR, AND C, A MINOR, D, A MINOR, AND E, A MINOR, BY AND THROUGH THEIR NATURAL MOTHER, PARENT 1, ON THEIR OWN BEHALF AND ON: BEHALF OF ANY AND ALL SIMILARLY SITUATED PERSONS; AND PARENT 1, ON HER OWN BEHALF, AND ON BEHALF OF ANY AND ALL SIMILARLY SITUATED PERSONS; AND, N, A MINOR, BY AND THROUGH HIS NATURAL MOTHER, PARENT 9, ON HER OWN BEHALF AND ON BEHALF OF ANY AND ALL SIMILARLY SITUATED PERSONS; AND PARENT 9, ; ON HER OWN BEHALF, AND ON BEHALF OF ANY AND ALL SIMILARLY SITUATED PERSONS, PLAINTIFFS,
v.
MICHAEL NUTTER, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF PHILADELPHIA; ANNE MARIE AMBROSE, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF HUMAN SERVICES ("DHS") OF THE CITY OF PHILADELPHIA; ESTELLE B. RICHMAN, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE ("DPW") OF THE COMMONWEALTH OF PENNSYLVANIA EDWARD G. RENDELL, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, AND JOHN/JANE DOES # # 1-100, DEFENDANTS.



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

MEMORANDUM

I. INTRODUCTION....................................................... 2

II. FACTUAL BACKGROUND. ............................................. 3

III. LEGAL STANDARD. ................................................... 7

A. Rule 12(b)(1) Motions to Dismiss ..................................... 7

B. Rule 12(b)(6) Motions to Dismiss ..................................... 7

IV. DISCUSSION. .......................................................... 9

A. Jurisdictional Challenges Under Rule 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Article III Standing. ......................................... 9

a. Injury In Fact. ....................................... 10

b. Causation. .......................................... 15

(i) City Defendants. ............................... 15

(A) Plaintiff A. .............................. 16

(B) Plaintiff C. .............................. 17

(C) Plaintiff E. .............................. 18

(ii) Commonwealth Defendants. . . . . . . . . . . . . . . . . . . . . . 20

c. Redressability. ....................................... 21

2. Rooker-Feldman............................................ 22

B. Challenges Under Rule 12(b)(6). .................................... 27

1. Plaintiffs' Third Amended Complaint States a Cause of Action Under Monell Against the City Defendants. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

2. Plaintiffs' Third Amended Complaint States a Claim Against the Commonwealth Defendants. ................................. 31

a. Plaintiffs Plead Sufficient Facts to Support a Claim Against Commonwealth Defendants. ........................... 31

b. Plaintiffs Plead Facts Sufficient to Confer Subject Matter Jurisdiction Over the Claims Against the Governor. . . . . . . . 32

c. Plaintiffs Have Sufficiently Alleged Involuntary State Custody. ............................................ 34

d. Plaintiff Parent 1 Has Not Alleged a Violation of Her Own Rights, and Her Individual Claims Against All Defendants Must Be Dismissed . .................................. 35

V. CONCLUSION. ....................................................... 36

I. INTRODUCTION

In this case, plaintiffs, minor children in the custody of the City of Philadelphia's Department of Human Services ("DHS") and their natural parents, assert claims under 42 U.S.C. § 1983 against defendants, Michael Nutter, the Mayor of Philadelphia, and Anne Marie Ambrose, the Commissioner of DHS ("City Defendants"); Estelle B. Richman, the Secretary of the Department of Public Welfare of Pennsylvania ("DPW"),*fn1 and Edward G. Rendell, the Governor of Pennsylvania ("Commonwealth Defendants"); and John and Jane Does # 1-100. Specifically, plaintiffs claim that their Fourteenth Amendment rights have been violated by a twenty-two year pattern and practice of unsafe child welfare policies, and seek declaratory and injunctive relief on behalf of a class of similarly situated children and parents.

Presently before the Court are two motions: (1) City Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint, filed September 17, 2009, and (2) Commonwealth Defendants' Motion to Dismiss the Third Amended Complaint, filed September 24, 2009. Plaintiffs concede in their response to the City Defendants' motion that plaintiffs B, D, N and Parent 9 do not have Article III standing to pursue this case.*fn2 Thus, the claims of plaintiffs B, D, N and Parent 9 are voluntarily dismissed, and the Court will not address arguments pertaining to those named plaintiffs in this Memorandum.

For the reasons set forth below, City Defendants' motion is denied. Commonwealth Defendants' motion is granted in part, and denied in part. The Court grants Commonwealth Defendants' motion with respect to Parent 1's individual claims, and dismisses the individual claims of Parent 1 and her claims on behalf of similarly situated parents against all defendants. In all other respects, Commonwealth Defendants' motion is denied.

II. FACTUAL BACKGROUND

Plaintiffs initiated this case by filing a class action complaint against defendants on August 25, 2008. Pursuant to a joint stipulation, plaintiffs filed a First Amended Complaint on December 17, 2008, and a Second Amended Complaint on March 4, 2009. Thereafter, City Defendants filed a motion to dismiss the Second Amended Complaint on April 24, 2009, and Commonwealth Defendants filed a motion to dismiss on May 1, 2009. On June 25, 2009, plaintiffs filed a response to these motions, and attached a Proposed Third Amended Complaint. By order dated August 3, 2009, the Court granted plaintiffs "one final opportunity to submit a complaint which addresses the issues raised in defendants' Motions to Dismiss the Second Amended Complaint." On August 18, 2009, plaintiffs filed the Third Amended Complaint that is at issue in the pending motions to dismiss.

Plaintiffs in this action are minor children currently in the custody of DHS and their natural parents. (3d Am. Compl. ¶¶ 24, 33.) Specifically, the Third Amended Complaint identifies plaintiffs as: minor children A, B, C, D, and E, by and through their natural mother, Parent 1, and on behalf of all similarly situated minor children; minor child N, by and through his natural mother, Parent 9, and on behalf of all similarly situated children; and Parents 1 and 9, on their own behalf, and on behalf of all similarly situated parents.*fn3 (Id. ¶¶ 31, 32.) As noted above, the claims of plaintiffs B, D, N and Parent 9 are voluntarily dismissed, and the Court will only address arguments pertaining to plaintiffs A, C, E, and Parent 1 in this Memorandum.

Plaintiffs define the proposed plaintiff class as: "All children currently in custody of DHS, or who come into DHS custody during the pendency of this action and during the pendency of any final judgment granting relief for the benefit of class members in this action, including the parents or guardians of those children." (Id. ¶ 54.) More than 41,000 children and approximately 82,000 parents currently receive services from DHS, and "a significant percentage of those approximately 41,000 children are currently in DHS custody." (Id. ¶ 56.) Plaintiffs allege that individually and as a class, they are "subject to DHS's dangerous practices and policies that violate [the] Constitutional right to reasonable safety while in DHS custody." (Id. ¶ 57.)

Defendants in this case are Mayor Nutter and Commissioner Ambrose, in their official capacities ("City Defendants"); Governor Rendell and Secretary Richman, in their official capacities ("Commonwealth Defendants"); and defendants Jane and John Does # 1-100.

In the Third Amended Complaint, plaintiffs present averments related to the violation of named plaintiffs' constitutional rights, which are described in full below. See Part IV.A.1. Plaintiffs also present factual allegations that DHS has engaged in a twenty-two year pattern and practice of unsafe child welfare policies, stating that "on a consistent basis since [] or around the year 1987, DHS has been an agency in persistent, systemic crisis, the results of which have included abuse, neglect and death of children receiving services from the agency." (3d Am. Compl. ¶ 64.) Plaintiffs cite a number of reports, commissions, and legal proceedings,*fn4 and claim that these materials identify common areas for reform at DHS, including the implementation of greater child safety protections. (See id. ¶¶ 53-174.)

In addition to claims against the City Defendants, plaintiffs allege that Commonwealth Defendants"act[ed] pursuant to an affirmative Pennsylvania state policy of purposeful refusal to compel DHS to comply with reasonably safe child welfare practices." (Id. ¶ 141.) In support of this claim, plaintiffs state that DPW revoked DHS's full child welfare program licenses in 1988, 1992, and 2007, as a result of DHS's failure to operate a safe child welfare agency. On all three occasions, plaintiffs aver that DPW granted DHS a six-month provisional license, which was renewed three times, and then restored DHS's full license despite the fact that DHS was not a reasonably safe child welfare agency. (Id. ¶¶ 76-82, 102-114, 127-133.) Plaintiffs further allege that DPW restored the full licenses for the sole reason that Pennsylvania allows the renewal of provisional licenses only three times, and if DPW did not restore the full license to DHS, it "would have been required by law to take over responsibility for DHS operations." (Id. ¶ 135.)

Plaintiffs aver that this pattern and practice of misconduct has deprived both individual named plaintiffs and the proposed class of their Fourteenth Amendment rights, including "the right not to be harmed while in state custody" and "reasonable protection from harm or substantial risk of imm[i]ent harm while in state custody"; "the right to basic safety and medical care while in state custody" and "to an agency capable of ensuring the appropriate medical treatment"; "the right not to be placed in substantial risk of imm[i]ent harm through participation in a flawed state system [that] lack[s] appropriate safety controls" and "engag[es] in widespread falsification of records"; and "the right to a safe and appropriate agency that operates pursuant to reasonable professional standards and within the bounds of prudent professional judgment." (Id. ΒΆ 300.) As a result of these alleged harms, plaintiffs seek certification as a ...


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