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Virginia Dicesare v. Office of Children

July 12, 2012


The opinion of the court was delivered by: Hon. Joy Flowers Conti United States District Judge

Pending before the court is the motion to dismiss (ECF No. 15) filed by defendant Office of Children, Youth & Families ("CYF"). CYF is seeking to dismiss the pro se complaint (ECF No. 1) filed by plaintiff Virginia Dicesare's ("Plaintiff"). In a response (ECF No. 23) to a motion filed by Plaintiff seeking a restraining order (ECF No. 17), CYF raised the issue whether the court should abstain. This memorandum opinion will address (1) the motion to dismiss and (2) CYF's contention that the court should abstain from exercising jurisdiction. For the reasons set forth below, the motion to dismiss filed by CYF is GRANTED without prejudice. With respect to abstention, as further set forth below, this case is STAYED, pending resolution of Plaintiff's state court proceedings.

Factual and Procedural History

Plaintiff filed a pro se complaint against CYF in this court on August 1, 2011. (Complaint (ECF No. 1) at 1.) In the complaint, Plaintiff alleges that CYF took custody of Plaintiff's daughter on September 17, 2010 because of the lack of cleanliness of her home. (Id.) On September 20, 2010, Plaintiff had a seventy-two-hour shelter hearing. (Id.) Plaintiff did not explicitly assert any legal arguments; rather, the complaint contains general accusations that: (1) Plaintiff achieved the goals set for her by the state court but her daughter was not returned to her as promised; (2) several court dates were rescheduled with little or no notice; and (3) CYF does not intend to return Plaintiff's daughter to her. (Id. at 1-2.) Plaintiff requests the return of her daughter and $100,000,000 in damages. (Id. at 2.) On the civil cover sheet, Plaintiff indicated that the nature of the suit was "Other Civil Rights." (ECF No. 1-1.)

On October 6, 2011, CYF filed a motion to dismiss. (ECF No. 15.) In the accompanying brief, CYF argued that (1) Plaintiff failed to state a claim under 28 U.S.C. § 1983 because she did not allege any constitutional injuries, and (2) CYF is not subject to suit under § 1983 because "it has no separate corporate identity separate and apart from that of Allegheny County." (Br. Supp. Mot. Dismiss (ECF No. 16) at 2-3.)

On the same day, October 6, 2010, without responding to the motion to dismiss, Plaintiff filed a "motion to request a restraining order" against several employees of CYF and two Pennsylvania judges involved in her case. (ECF No. 17) She claimed CYF was harassing her and the father of her daughter, asking for child support, sending at least one letter, and sending a state constable to Plaintiff's home to deliver the letter. (Id.) Plaintiff filed a response to the motion to dismiss on October 13, 2011, without raising any legal issues in her response, and requested a hearing. (ECF No. 22.)

On December 6,*fn1 2011, Plaintiff's parental rights were terminated during her state court proceedings. (ECF No. 30 at 3.) CYF represented to the court that Plaintiff appealed that decision to the Superior Court of Pennsylvania. (ECF No. 38 at 1.) On December 13, 2011, Plaintiff responded to the court's order to show cause. (ECF No. 30) On January 3, 2012, CYF filed its reply to Plaintiff's response to show cause order. (ECF No. 32)

On January 9, 2012, Plaintiff filed a "MOTION FOR EXBHITS [sic] FOR COURT ORDERS." (ECF No. 33) The court denied the motion without prejudice on January 12, 2012 because there was no action required by the motion. (ECF No. 34.) Plaintiff filed a motion for recusal (ECF No. 36) on January 10, 2012, which the court subsequently denied, finding that plaintiff's arguments for recusal, based upon disagreements with the court's legal conclusions and case management, would not lead a reasonable person to have any doubt regarding the court's impartiality. (ECF No. 39.)


A.Subject-Matter Jurisdiction

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may file a motion to dismiss an action if the court lacks subject-matter jurisdiction over the complaint.

FED. R. CIV. P 12(b)(1). Although CYF did not submit a 12(b)(1) motion-the motion to dismiss refers only to rule (12)(b)(6)-the court has an ongoing duty to determine whether subject-matter jurisdiction is proper upon its own initiative or the suggestion of the parties. FED. R. CIV. P 12(h). Challenges to subject-matter jurisdiction under Rule 12(b)(1) may be facial or factual in form. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); Gould Elec. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). A facial challenge attacks the complaint on its face and requires the court to consider only the complaint's allegations and to do so in the light most favorable to the plaintiff. Mortensen, 549 F.2d at 891. A factual challenge contests the existence of subject-matter jurisdiction, apart from any pleadings. Id. In reviewing a factual challenge, the court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case," even where disputed material facts exist. Id. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists. Id.; Gould, 220 F.3d at 178.

B.Failure to State a Claim

A 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level" and "sufficient to state a claim for relief that is plausible on its face." Id. "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the ...

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