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Jeremiah Wodarski v. Erie Office of Children and Youth Services

February 23, 2012

JEREMIAH WODARSKI,
JULIA CALIPO, JANET CALIPO, JADEN CALIPO, JACKSON CALIPO, AND LILY CALIPO, PLAINTIFFS,
v.
ERIE OFFICE OF CHILDREN AND YOUTH SERVICES, RETA TOBIN,
MICHELLE CURRY AND ERIC HACKWELDER, DEFENDANTS.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.

MEMORANDUM OPINION

Plaintiffs, Jeremiah Wodarski ("Wodarski") and Julia Calipo ("Calipo"), proceeding pro se, filed this civil rights action on December 13, 2010 against Defendants Erie Office of Children and Youth Services ("OCY"), Reta Tobin ("Tobin"), Michelle Curry ("Curry") and Eric Hackwelder ("Hackwelder"), for alleged violations of their federal civil rights.*fn1 Presently pending before the Court is the Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) [ECF No. 18] filed on March 21, 2011, and renewed on September 1, 2011 [ECF No. 24]. The matter has been fully briefed and is ripe for disposition. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND

According to the allegations set forth in the Amended Complaint,*fn2 this lawsuit stems from the temporary removal of Calipo's children from her custody by OCY in December 2010.

In March 2010, Wodarski and Calipo lived together in Erie County, Pennsylvania, along with Calipo's four children. See [ECF No. 20] pp. 6-7. On March 30 or 31, 2010, Tobin, a caseworker for OCY, came to the Plaintiffs' home and informed Calipo that a referral had been made to OCY based on an abuse claim lodged against Wodarski by his estranged wife concerning their two minor daughters. Id. at pp. 5-6; 10.

Wodarski was subsequently arrested by the Butler County, Pennsylvania, police on April 9, 2010 and charged with two counts of indecent exposure and two counts of corruption of minors. See Comm. v. Wodarski, Criminal Docket No. CP-10-CR-0000729-2010, in the Court of Common Pleas of Butler County, Pennsylvania. *fn3 The conditions of his bond prohibited him from having contact with the alleged victims or other children. Id. at p. 5, Entry 2/2. He was also required to live with his mother in Erie, Pennsylvania. Id.; see also [ECF No. 20] p. 12. Calipo contends that OCY contacted the Butler County District Attorney's Office on April 22, 2010 and reported that Wodarski had been in contact with her children. See [ECF No. 20] p. 16-17. Calipo claims this constituted "harassment" on OCY's part, but acknowledged that Wodarski had, in fact, been in her home, but had "very rarely" been in contact with minor children and had been "monitored" by her. Id. On May 26, 2010, the Commonwealth's motion to revoke Wodarski's bond in the criminal case was denied without prejudice. Id.; see also Comm. v. Wodarski, Criminal Docket No. CP-10-CR-0000729-2010, in the Court of Common Pleas of Butler County, Pennsylvania, p. 6, Entry 12/1.

On December 8, 2010, three of Calipo's children were temporarily removed from her home and placed in foster care pursuant to a court order signed by Erie County Judge John Trucilla. See [ECF No. 20] p. 14. The removal was based on a report that Wodarski had been present in Calipo's home. Id. At the hearing on the request for a temporary restraining order in this action, Calipo conceded that Wodarski had been at her house, but stated he was not living with her and had no contact with her children. See [ECF No. 20] p. 19.

A hearing was subsequently held before a Master concerning the temporary removal of Calipo's children by OCY. See [ECF No. 20] p. 20. The Master recommended that Calipo maintain physical custody of her children, but that OCY retain temporary legal custody. Id. at pp. 19-20; 22. Judge Trucilla signed an order to that effect on December 22, 2010 and Calipo's children were returned to her care. Id. at pp. 4; 21-23. Calipo sought reconsideration of that order, and following a hearing in January or February of 2011, legal custody was restored to her. See [ECF No. 25] pp. 4-5.

On March 9, 2011, Wodarski pled nolo contendere to one count of corruption of minors, and was subsequently sentenced on May 24, 2011 to time already served followed by probation for 24 months. See [ECF No. 25] p. 3; Comm. v. Wodarski, No. CP-10-CR-0000729-2010, in the Court of Common Pleas of Butler County, Pennsylvania, pp. 4; 9-10, Entry 40/1 and 45/1. Wodarski appealed this sentence on October 11, 2011, but the appeal was dismissed by the Superior Court on December 12, 2011 for failure to comply with Pa.R.C.P. 3517.*fn4 See Comm. v. Wodarski, No. 1633 WDA 2011, in the Superior Court of Pennsylvania.

In the instant lawsuit, Plaintiffs allege that various actions taken by the Defendants in connection with the above court proceedings violated their constitutional rights, were discriminatory, were defamatory, and were taken by the Defendants pursuant to a "conspiracy under §§ 1983." See [ECF No. 22] p. 2. Specifically, Plaintiffs allege that on "numerous occasions" Tobin, Curry and Hackwelder made "purgerous" (sic) statements" in court or in writing that were "premeditated to cause severe damage to character, social standing, civil rights and protections under the Amendments." Id. at pp. 2-3. According to the Plaintiffs, Tobin "lied in court and in written form as to what [the] events and situation were." Id. at p. 3. In addition, Hackwelder allegedly committed perjury when he "falsely stated" to an Administrative Law Judge that there were criminal charges pending against Wodarski relating to the OCY complaints. Id. Plaintiffs allege that "[i]t is well settled that Attorney Hackewelder and O.C.Y. agents have a mutual understanding and meeting of the minds to go to great lengths to achieve their own brand of justice against the plaintiffs." Id. at p. 4.

Plaintiffs further allege: . O.C.Y. is out of control and destroys families based on heresay, rumors, inferences, and false allegations. They are insensitive to the capability of false reporting and are quick to judge persons as indicated or founded. These labels destroy peoples lives and certain livelyhoods, they are the leapers of society being megans law and sex offender listed with no court conviction. Functioning under rules they compose, alter, and makeup to their benefit as situations require.

[ECF No. 22] p. 3.

II.STANDARD OF REVIEW

Defendants have moved for dismissal of the Plaintiffs' claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6), a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3rd Cir. 2008). Because Plaintiffs are proceeding pro se, their complaint must be "'liberally construed'" and "'held to less stringent standards than formal pleadings drafted by lawyers[.]'" Brown v. City of Long Branch, 380 Fed. Appx. 235, 238 (3rd Cir. 2010) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Nevertheless, a complaint, even one that is pro se, must be dismissed if it does not allege "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Thakar v. Tan, 372 Fed. Appx. 325, 328 (3rd Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, __ , 129 S.Ct. 1937, 1949 (2009)). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Iqbal, 129 S.Ct. at 1949). However, the court is "'not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 129 S.Ct. at 1949. In determining the sufficiency of a complaint under Twombly and Iqbal, the court conducts a three step inquiry:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id.

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3rd Cir. 2010) (footnote omitted); see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3rd Cir. 2011); Thornton v. City of Pittsburgh, 777 F. Supp. 2d 946, 950 (W.D.Pa. 2011).

III.DISCUSSION

Plaintiffs' claims are premised on 42 U.S.C. § 1983, which provides a private right of action to: [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. .

42 U.S.C. § 1983. In order to state a viable claim under § 1983, "a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); see also Kneipp v. Tedder, 95 F.3d 1199, 1204 (3rd Cir. 1996).

In addition, to succeed on a conspiracy claim under § 1983, a plaintiff must prove both the deprivation of a constitutional right and the existence of a conspiracy to violate that right. See Ridgewood Bd. Of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3rd Cir. 1999) ("In order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law conspired to deprive him of a federally protected right.") superseded by statute on other grounds as stated in P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 730 (3rd Cir. 2009). "'[T]o sufficiently allege a conspiracy, a plaintiff must show 'a combination of two or more person[s] to do a criminal act, or to do a lawful act by unlawful means or for an unlawful purpose.'" Marchese v Umstead, 110 F. Supp. 2d 361, 371 (E.D.Pa. 2000) (quoting Panayotides v. Rabenold, 35 F. Supp. 2d 411, 419 (E.D.Pa. 1999)). A plaintiff must make "'specific factual allegations of combination, agreement, or understanding among all or between any of the defendants to plot, plan, or conspire to carry out the alleged chain of events.'" Id. (quoting Hammond v. Creative Financial Planning Org., 800 F. Supp. 1244, 1248 (E.D.Pa. 1992)). A "mere incantation of the words 'conspiracy' or 'acted in concert' does not talismanically satisfy the [pleading requirements]" for a conspiracy claim. Sung Tran v. Delavau, LLC, 2008 WL 2051992 at *10 (E.D.Pa. 2008) (alterations added) (quoting Loftus v. Southeastern Pennsylvania Transp. Authority, 843 F. Supp. 981, 987 (E.D.Pa. 1994)).

Finally, to the extent the Plaintiffs are attempting to assert a claim for municipal liability under § 1983, they must plead the existence of a municipal policy or custom, and that said policy or custom caused the alleged constitutional violation. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); McTernan v. City of York, 564 F.3d 636, 657 (3rd Cir. 2009). Liability may not be imposed solely on a respondeat superior theory. Monell, 436 U.S. at 691. Section § 1983 only "imposes liability on a government that, under color of some official policy, 'causes' an employee to violate another's constitutional rights." Id. at 692.

Plaintiffs' ยง 1983 claims are based primarily on the contention that Wodarski was, in fact, innocent of the criminal charges lodged against him and consequently, OCY's temporary removal of Calipo's children was unjustified and actionable. At the hearing on the Plaintiffs' request ...


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