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Florence Wallace, et al v. Robert J. Powell

November 30, 2011


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are motions to dismiss filed by Robert Powell (Doc. 922), MAYS, PA Child Care, and Western PA Child Care (Doc. 927), Sandra Brulo (Doc. 929), Sam Guesto, Luzerne County, Luzerne County Department of Juvenile Probation, Greg Skrepenak, and Todd Vanderheid (Doc. 931), and Robert Mericle and Mericle Construction (Doc. 932). For the reasons stated below, these motions will be granted in part and denied in part.


Angela Rimmer Belanger, Kelly Farmer, Joseph Rimmer, and Zane Farmer ("Belanger plaintiffs") in their proposed class action, allege the following.

All four named plaintiffs live in Luzerne County, Pennsylvania. Defendants Mark A. Ciavarella and Michael T. Conahan are former Luzerne County Court of Common Pleas judges. Defendant Luzerne County is a county government organized under the laws of the state of Pennsylvania. Defendant Sam Guesto is the former County Manager/Chief Clerk of Luzerne County and held that position until January 2008. Following his resignation, he was hired by defendant Ciavarella as a court administrator. Defendants Gregory Skrepenak and Todd Vonderheid are former members of the Luzerne County Board of Commissioners. Defendant Sandra Brulo is a former Deputy Director of Forensic Programs of the Luzerne County Department of Probation. Defendant Luzerne County Department of Juvenile Probation is the Department of Juvenile Probation for Luzerne County. Defendant Robert Powell is a former partner in PA Child Care, LLC and Western PA Child Care, LLC. Defendant Robert Mericle is the owner of Mericle Construction, Inc. Defendant Mericle Construction is a close corporation registered under the laws of Pennsylvania. Defendant PA Child Care LLC and Western PA Child Care, LLC are limited liability companies registered under the laws of Pennsylvania. Defendant Mid-Atlantic Youth Services, Inc. ("MAYS") is a Pennsylvania corporation with its principal place of business in Emlenton, PA.

Defendants Powell and Mericle paid approximately $2.6 million in bribes to defendants Ciavarella and Conahan to ensure the placement of juveniles in PA Child Care and Western PA Child Care -- facilities built by Mericle and run by Powell. In Pennsylvania, juveniles retain the same rights as other criminal defendants, including the right to due process of law and the right to counsel. Specifically, the bribes facilitated a "Placement Guarantee Agreement" that guaranteed substantial annual payments from Luzerne to the juvenile facilities operated by defendant Powell. To ensure placements in these facilities, defendant Ciavarella often sentenced juveniles to terms of incarceration for minor offenses. Ciavarella also typically adjudicated these cases without any of the procedural protections normally associated with juvenile cases, including giving the juveniles legal counsel to protect their rights. Juveniles who appeared before Ciavarella were provided with a waiver of counsel form, prepared by defendant Brulo, which was insufficient and illegal on its face. Of the juveniles who waived counsel before Ciavarella, over half were incarcerated, compared with roughly ten percent of juveniles who waived counsel in the rest of the state. At least 5,000 children were adjudicated by Ciavarella during the period relevant to the complaint. During that time, Luzerne County had the highest rate of juvenile incarceration in Pennsylvania by several orders of magnitude. Thousands of childrens' lives were negatively affected by defendants' conduct, and the childrens' parents were similarly affected.

The Belanger plaintiffs further allege that several Luzerne County officials helped facilitate the bribery scheme. Luzerne County initially rejected PA Child Care's unsolicited proposal in 2000 to build a juvenile detention facility in Pittston and to lease it to the County for $37 million over thirty years. Although the County had an adequate juvenile facility, after Judge Conahan announced that juveniles would no longer be sent to it because of its deplorable conditions, the County made plans to build its own facility. However, after the elections of Gregory Skrepenak and Todd Vonderheid as County Commissioners in 2004, the County agreed to contract with PA Child Care for $58 million over 20 years to house adjudicated juveniles. Through this period, Skrepenak and Vonderheid, allied politically and socially with Chivarella and Conahan and aware of the bribery scheme, abdicated their oversight responsibilities regarding personnel, budget, and contract decisions relating to juvenile detention, giving Ciavarella and Conahan a free hand. The County's lease with PA Child Care was roundly criticized as grossly overpriced. However, Skrepenak and Vonderheid continued to support it. When Steve Flood, the Luzerne County Controller, launched an investigation into the matter, Skrepenak and Vonderheid obstructed his investigation. Additionally, Sam Guesto, a member of the conspiracy closely aligned with both Skrepenak and the Judges, in his position as Luzerne County manager, participated in the decision to hire PA Child Care and helped draft the agreement. Sandra Brulo, Deputy Director for Forensic Services for the Luzerne County Probation Department, was also a member of the bribery conspiracy. She used her position to implement Conahan's "zero tolerance policy" regarding juvenile crimes -- initiated just days after the opening of the PA Child Care facility. Brulo instructed Luzerne County probation officers that all juveniles supervised in Luzerne County had to have their probation violated. Such a policy was to ensure that PA Child Care would remain full. She also recommended juveniles be placed in rehabilitation facilities in order to legitimize placements made by Conahan and Chivarella and altered probation reports to ensure further detention.

As a result of the defendants' actions, the lives of the Belanger plaintiffs have been dramatically affected. After Zane Farmer was arrested following a verbal altercation with his mom, Kelly Farmer, Judge Ciavarella sentenced him to six months incarceration without due process or being advised of his right to counsel. Joseph Rimmer, after being charged with vandalism, was sentenced to thirty days incarceration -- later increased to several months -- by Judge Ciavarella after a summary proceeding in which he was denied due process. Angela Rimmer Belanger, Joseph's mother, was later sued by Luzerne County for child support during Joseph's incarceration.

In their complaint, the Belanger plaintiffs bring the following claims: conspiracy to violate 42 U.S.C. § 1983 (count I), against all defendants; violation of 42 U.S.C. § 1985 (count II), against all defendants; violation of 42 U.S.C. § 1986 (count III), against the Luzerne County defendants; violation of 42 U.S.C. § 1983 (count IV), against the Luzerne County defendants; violation of right to substantive due process under 42 U.S.C. § 1983 (count V), against the Luzerne County defendants; unconstitutional policies and practices under 42 U.S.C. § 1983 (count VI) against the Luzerne County defendants; wrongful taking under 42 U.S.C. § 1983 (count VII) against Sandra Brulo, the Luzerne County Department of Juvenile Probation, and Luzerne County; violation of the Juvenile Justice and Delinquency Prevention Act of 1974 under 42 U.S.C. § 1983 (count VIII) against Sandra Brulo and the Luzerne County Department of Juvenile Probation; injunctive relief for wrongful payment to municipality (count IX), against Luzerne County and the Luzerne County Department of Juvenile Probation; wrongful payment to municipality of child support (count X), against Sandra Brulo, Luzerne County, and the Luzerne County Department of Juvenile Probation, and punitive damages against all defendants except Luzerne County and the Luzerne County Department of Juvenile Probation.

The Belanger plaintiffs have amended their complaint twice. Following the second set of amendments, defendants re-filed their motions to dismiss. Each motion has been briefed and is ripe for review. Each will be discussed in turn below.


Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).


I. Defendant Powell's Motion to Dismiss (Doc. 922)

Defendant Robert Powell moves to dismiss the three claims against him in the Belanger plaintiffs' second amended complaint: (1) the claim that Powell conspired to deny plaintiffs of their rights to due process, an impartial tribunal, and familial relations, in violation of their Fifth, Sixth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 (count I); (2) the 42 U.S.C. § 1985(3) claim (count II); and (3) the punitive damages claim. Since the Court has already ruled that allegations similar to those underlying the § 1983 conspiracy -- as they relate to the procedural due process and impartial tribunal claims -- and punitive damage claims were sufficient under Fed. R. Civ. P. 12(b)(6), see Clark v. Conahan, 737 F.Supp.2d 239 (M.D.Pa. 2010), these counts will not be dismissed as to defendant Powell. The Court will, however, grant defendant Powell's motion to dismiss the § 1985(3) claim and the aspect of the § 1983 conspiracy claim relating to the interference with familial relations.

A. The § 1983 conspiracy claim

This Court previously held in Clark that allegations stemming from the same events stated claims under 12(b)(6) for violations of juveniles' Fifth, Sixth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. Powell, incorporating arguments made by defendant Mericle in his motion to dismiss, argues that this ruling was wrong. The Court does not agree.

The Supreme Court has repeatedly held that a plaintiff cannot bring a cognizable claim pursuant to 42 U.S.C. § 1983 if a judgment in favor of the plaintiff "would necessarily imply the invalidity of his conviction or sentence," unless the plaintiff can demonstrate that the conviction or sentence has been invalidated. Edwards v. Balisok, 520 U.S. 641, 643, (1997) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)). As to Plaintiffs' Fifth, Sixth and Fourteenth Amendment claims, although the precise contours of those claims are unclear at this stage of the proceeding, those claims necessarily will imply the invalidity of the underlying juvenile conviction and sentences.

This Court held in Clark that:

Defendants argue that Kossler v. Crisanti, 564 F.3d 181 (3d Cir.2009), stands for the proposition that a favorable termination must be indicative of actual innocence. While it is true that Kossler does stand for this proposition, it is unclear whether Kossler, which very explicitly limited its holding to the facts of that case, applies with equal force to § 1983 claims that are brought under a claim other than malicious prosecution. See Kossler, 564 F.3d at 187, 192. Assuming without deciding that Kossler does require an indication of actual innocence, the Third Circuit Court of Appeals went on to list six (6) ways in which a plaintiff may indicate his innocence:1) discharge by a magistrate at a preliminary hearing, 2) the refusal of a grand jury to indict, 3) the formal abandonment of the proceedings by the prosecutor, 4) the quashing of an indictment or information, 5) acquittal, or 6) a final order in favor of the accused by a trial or appellate court. Id. at 187--88 (citing Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir.2002)).

In the instant case, the adjudications of probation violations that occurred after January 1, 2003 were vacated by the Pennsylvania Supreme Court's order of October 29, 2009. Thus, [plaintiff] was the beneficiary of a final order in favor of the accused by an appellate court, which is one of the terminations of a criminal proceeding that indicates innocence. As [plaintiff] has received a favorable termination of these adjudications, he is not barred by Heck and may bring actions pursuant to § 1983 for any injury arising from the actions taken against him after January 1, 2003.

Clark, 737 F.Supp.2d at 260.

The Court applies the same findings here and will deny defendant Powell's motion to dismiss the § 1983 conspiracy claims relating to violation of the Belanger plaintiffs' rights to due process and an impartial tribunal.

However, the Belanger plaintiffs' substantive due process stemming from interference with the family relationship will be denied. In Wallace v. Powell, which dealt with the same underlying allegations, this Court held that:

It is by now well-settled that the Due Process Clause protects certainly narrowly defined fundamental rights of parents in their relationships with their children." McCurdy v. Dodd, 352 F.3d 820, 826 (3d Cir.2003). To sufficiently state a due process claim for interference with the parent-child relationship, a plaintiff must allege deliberate conduct that the defendant sought to harm that relationship. Chambers ex rel. Chambers v. School Dist. Of Philadelphia Bd. Of Educ., 587 F.3d 176, 192 (3d Cir.2009). In McCurdy, the Third Circuit Court of Appeals rejected a parent's substantive due process claim for interference with the parent-child relationship arising from the fatal shooting of plaintiff's adult son. McCurdy, 352 F.3d at 830. While the court ultimately held that the plaintiff's claim was barred because the decedent was an adult, the court stated that it was "hesitant to extend the Due Process Clause to cover official actions that were not deliberately directed at the parent-child relationship." Id. at 829. The court also noted that "it would ... stretch the concept of due process too far if we were to recognize a constitutional violation based upon official actions that were not directed at the parent-child relationship." Id. at 830. Subsequently in Chambers the Third Circuit Court of Appeals explicitly held that this requirement that defendant's conduct be deliberately directed at the parent-child relationship also extends to situations involving minor and un-emancipated children. Chambers, 587 F.3d at 192. Applying this requirement to the present case, while Plaintiffs allege that the Defendants deliberately acted to place the Juvenile Plaintiffs' into PACC and WPACC, they do not allege that Defendants' deliberately sought to interfere with the Parent Plaintiffs' parent-child relationships. While it must be said that placing juveniles into PACC and WPACC would be disruptive to the parent-child relationship, given that the disruption caused by the death of a child is insufficient to create a substantive due process claim for a parent unless the defendant deliberately sought to interfere in the parent-child relationship, the conduct alleged here does not rise to the level of a substantive due process violation. Therefore, Defendants' motion to dismiss this claim will be granted.

No. 3:09-CV-286, 2010 WL 3398995 (M.D.Pa. Aug. 24, 2010). For the same reasons, the Court will grant defendant Powell's motion to dismiss that part of the § 1983 conspiracy claim dealing with the substantive due process\interference with familial relations allegations.

B. The § 1985(3) claim

The Court will also dismiss the ยง 1985 claim against defendant Powell because juveniles are not a discrete and insular minority who have historically ...

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