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Denis F. Sheils v. Bucks County Domestic Relations Section

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


January 31, 2013

DENIS F. SHEILS
v.
BUCKS COUNTY DOMESTIC RELATIONS SECTION, ET AL.

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

MEMORANDUM

This action arises from disputes between pro se plaintiff Denis F. Sheils, a Pennsylvania citizen and licensed attorney,*fn1 and his ex-wife over their marital settlement agreement and ongoing disagreements about matters such as alimony adjustments and child support. Those controversies have been, and continue, in the Bucks County Court of Common Pleas and its Domestic Relations Section ("DRS").

Our attention here first focuses on the extent to which we may exercise jurisdiction over Sheils's claims. To the extent we have jurisdiction as to any party or not abstain, we must consider what, if any, liability each of the indisputably state actor defendants -- Bucks County Domestic Relations Section, Laura LoBianco (DRS's Director) and Daniel N. Richard (Director of the Bureau of Child Support Enforcement ("BCSE") and Pennsylvania Department of Public Welfare ("DPW")) -- faces as a result of Sheils's alleged "due process" violations that he claims have, among other things, arisen from the enforcement proceedings that have caused his wages to be garnished.

Pending now are DRS, LoBianco, and Richard's respective motions to dismiss Sheils's second amended complaint. Sheils opposes these motions and each of the defendants filed reply briefs. Pursuant to our January 17, 2012 Order, Sheils filed a memorandum of law addressing our concern that he has failed to state a viable claim under the Thirteenth Amendment. DRS filed a separate response in opposition to that supplemental memorandum and LoBianco and Richard's respective motions to dismiss present their views on this issue.

For the reasons set forth below, we will grant DRS, LoBianco, and Richard's motions to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

I. Procedural History

On May 20, 2011, Sheils filed his first complaint in

this Court. At that time, DRS was the only defendant. Shortly thereafter, DRS filed its first motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). On January 17, 2012, we granted DRS's motion to dismiss in part ("January 17 Order"),*fn2 but granted Sheils leave to file an amended complaint that would not offend Ex parte Young, 209 U.S. 123 (1908). We dismissed Counts VII and XI of the complaint as against DRS, and directed Sheils to file a brief responding to our concern that he failed to state a Thirteenth Amendment claim.

Sheils filed his first amended complaint two weeks later and for the first time named LoBianco and Richard as defendants. He also filed his supplemental Thirteenth Amendment memorandum.

DRS filed its second motion to dismiss in February of 2012 and LoBianco and Richard filed their first motions to dismiss by the end of that month. Sheils filed opposition responses to each of these motions, but in his March 19, 2012 opposition to LoBianco's motion to dismiss he requested leave to amend his complaint to assert a separate Bivens claim. On May 29, 2012, we granted Sheils's second request for leave to amend and denied as moot defendants' pending motions to dismiss.

Sheils then filed his second amended complaint ("SAC") on June 6, 2012. Two days later, DRS filed its third motion to dismiss ("DRS MTD"). On June 20, 2012, LoBianco and Richard filed their motions to dismiss ("LoBianco MTD" and "Richard MTD", respectively). Sheils then filed three responses in opposition to defendants' motions (each denoted here as "Resp. Defendant's Name MTD"). Each defendant filed a reply brief, with DRS concluding the voluminous briefing in this matter in July.

II. The January 17 Order Resolving DRS's First Motion to Dismiss

Construing DRS's motion to dismiss on Eleventh Amendment immunity grounds as a facial jurisdictional challenge, January 17 Order ¶ g, we held in that Order that all of Sheils's § 1983 claims against DRS (Counts I through VI and VIII through X of the first complaint) were barred by Eleventh Amendment immunity. See id. ¶¶ g-q.*fn3

We also held that Count I of Sheils's complaint -- alleging a stand-alone, private right of action under 15 U.S.C. § 1673 -- was barred by DRS's Eleventh Amendment immunity. Id.

¶¶ r-u. We noted that § 1673 was enacted pursuant to Congress's Commerce Clause and Bankruptcy powers, id. ¶ s, and stated that " Congress does not have the power to abrogate DRS's Eleventh Amendment immunity under its Commerce Clause or bankruptcy powers ", January 17 Order ¶ u (citing Wheeling & Lake Erie Ry. Co. v. Pub. Util. Comm'n, 141 F.3d 88, 92 (3d Cir. 1998) (in turn citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58-60 (1996))).

While there is no doubt that the Supreme Court has held that Congress's Commerce Clause power cannot be used to abrogate a state's Eleventh Amendment immunity, see, e.g., Wheeling & Lake Erie Ry., id. at 92, our January 17 Order imprecisely stated that Congress lacked the power to " abrogate " state sovereign immunity under the Bankruptcy Clause.

The Supreme Court held in Central Virginia Community College v. Katz, 546 U.S. 356, 378 (2006), that " [t]he scope of [the states'] consent [to suit in federal court] was limited; the jurisdiction exercised in bankruptcy proceedings was chiefly in rem -- a narrow jurisdiction that does not implicate state sovereignty to nearly the same degree as other kinds of jurisdiction. . . . In ratifying the Bankruptcy Clause, the States acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in [avoidance and recovery of preferential transfer] proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts. " Katz cabined its holding by explaining that " [w]e do not mean to suggest that every law labeled a 'bankruptcy' law could, consistent with the Bankruptcy Clause, properly impinge upon state sovereign immunity. " Id. at 378 n.15; see also id. at 369 n.9 ( " the ratification of the Bankruptcy Clause does represent a surrender by the States of their sovereign immunity in certain federal proceedings " (emphasis added)); In re Omine, 485 F.3d 1305, 1313 (11th Cir. 2007), withdrawn pursuant to settlement, No. 06-11655-II, 2007 WL 6813797 (describing these qualifications in Katz as creating a " remaining gray area " ).*fn4

Katz ultimately concluded that " the relevant 'abrogation' is the one effected in the plan of the Convention, not by [Congressionally enacted] statute " at 11 U.S.C. 106(a). Id. at 379. Thus, the issue that we addressed in our January 17 Order is not, strictly speaking, one of Congressional power to abrogate Eleventh Amendment immunity since the Supreme Court has held that the constitutional default requires no such action for certain core bankruptcy proceedings.

To be more precise, our January 17 Order's Bankruptcy Clause holding is better stated that § 1673 is not the sort of " 'bankruptcy' law . . ., consistent with the Bankruptcy Clause, [that] properly impinge[s] upon state sovereign immunity. " See id. at 378 n.15. Put another way, assuming § 1673 provides an implied right of action (a proposition we reject below), Katz teaches that Sheils's suit against DRS under this provision improperly impinges Eleventh Amendment immunity even though it was enacted, in part, pursuant to Congress's bankruptcy power.

We reach this conclusion because none of Sheils's claims arises under the Bankruptcy Code found in Title 11 of the United States Code, in contrast with the claims in Katz and Tennessee Student Assistance Corp. v. Hood, 541 U.S. 449 (2004), that the Supreme Court found not to violate state sovereignty. Accord Shieldalloy Metallurgical Corp. v. N.J. Dep't of Env'tl Prot., 743 F. Supp. 2d 429, 438-40 (D.N.J. 2010). Additionally, Sheils's claims fail to implicate one of the "[c]ritical features of every bankruptcy proceeding[:] . . . the exercise of exclusive jurisdiction over all of the debtor's property. " Katz, 546 U.S. at 363-64 (emphasis added) (citing Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934)).

Indeed, § 1673 only applies to the garnishment of one's wages. Sheils fails to allege that there is at issue here a debtor's estate over which we can exercise in rem jurisdiction. Moreover, Sheils's claims cannot be considered " to effectuate the in rem jurisdiction of the bankruptcy courts " since there is no threshold core bankruptcy jurisdiction. Katz, 546 U.S. at 378 (emphasis added); see also SAC ¶ 2 (citing only to 28 U.S.C. § 1331). Since § 1673's function cannot fairly be regarded as a core bankruptcy proceeding -- or, for that matter, any proceeding necessary to effectuate that already-present jurisdiction -- it does not " properly impinge upon state sovereign immunity " under Katz. Id. at 378 n.15.

We are fortified in our decision by Sheils's averment that DRS " administers, collects, and enforces . . . court support orders once they are established. . . . [and] collects and disburses all support payments received to the proper payment beneficiaries of the court order, and maintains a record of same. " SAC Compl. ¶ 5 (emphasis added). At bottom, Sheils contends that DRS is impermissibly exercising its administrative authority over him in violation of § 1673 and his claim is one of due process, not bankruptcy. There is nothing in Katz or Hood that " undermines the state's sovereign immunity for this kind of claim. " See Village of Rosemount v. Jaffe, 482 F.3d 926, 937 (7th Cir. 2007) (reasoning in dicta that where there is no contention that the state "wants to adjudicate a claim to funds that might or might not be part of [an] estate " and the state "instead has consistently argued that it is entitled to exercise [its] regulatory authority " , neither Katz nor Hood " undermine[] the state's sovereign immunity " ).

In the margins of our January 17 Order we also expressed doubt as to whether § 1673 supplies an implied right of action. See id. ¶ u n.12 (collecting cases). We found it unnecessary to reach that question as to DRS, however, because the authority under which § 1673 was enacted failed to strip DRS of its Eleventh Amendment immunity for the clarified reasons canvassed above.*fn5

We also assumed for the sake of argument that 45 C.F.R. § 303.101 created an implied right of action*fn6 and held that Sheils's claim under this Social Security regulation was barred by Eleventh Amendment immunity. We ignored Sheils's § 5 of the Fourteenth Amendment argument since the Social Security laws were enacted pursuant to Congress's spending powers. We rejected his argument that Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 197-98 (3d Cir. 2008), led to the inescapable conclusion that Pennsylvania waived its Eleventh Amendment immunity " by accepting the terms of the 'contract,' and [DRS] receiv[ed] federal funds under Title IV-D of the Social Security Act. " Resp. DRS's First MTD 7; see January 17 Order ¶¶ p n.8, v-aa (grounding our decision in Sossamon v. Texas, 131 S. Ct. 1651, 1662-63 (2011)).*fn7

III. The Second Amended Complaint

Counts I through VI and VIII through X of Sheils's second amended complaint ("SAC") allege that LoBianco and Richard violated and continue to violate many of his constitutional and federal statutory rights under 42 U.S.C. § 1983.*fn8 Count I also asserts that the allegedly offended 15 U.S.C. § 1673 provides a stand-alone, implied right of action against LoBianco and Richard. Count II also claims that the

Thirteenth Amendment creates a private right of action against DRS, LoBianco, and Richard for a violation of its self-effecting substantive right.*fn9 Count VII contends that LoBianco and Richard's alleged violation of federal regulation 45 C.F.R. § 303.101 gives rise to a cause of action. Count XI is a demand for accounting.*fn10 Finally, Count XII is a claim for Fifth Amendment due process and equal protection violations against LoBianco and Richard under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Sheils sues LoBianco and Richard in their official and individual capacities. SAC ¶¶ 6-7.

IV. The Motions to Dismiss, Generally

Defendants' motions to dismiss proceed under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). After we recite the relevant standards, we will first consider those claims over which the defendants assert we lack jurisdiction or should refrain from exercising our jurisdiction in light of an abstention doctrine. These claims are considered below and encompass the sole remaining Thirteenth Amendment claim against DRS and the official capacity claims against LoBianco and Richard that seek damages and retrospective injunctive relief, as well as prospective relief.

We conclude by analyzing those claims over which we undoubtedly have jurisdiction: the section 1673 and section 303.101 implied private rights of action claims, Sheils's individual capacity § 1983 and Bivens damages claims and self-effecting Thirteenth Amendment claims against LoBianco and Richard.

A. Rule 12(b)(1) Standard

For Facial Attack On Jurisdiction

In deciding a motion to dismiss on Rule 12(b)(1) grounds alleging a facial attack on jurisdiction, we look to "whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court." Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (internal quotations omitted). In Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000), our Court of Appeals explained that "[i]n reviewing a facial attack, the court [may also] consider . . . documents referenced [in the complaint] and attached thereto, [and construe all allegations] in the light most favorable to the plaintiff."

B. Rule 12(b)(6) Standard For Failure To State A Claim And Abstention

Our Court of Appeals has summarized the post-Twombly Rule 12(b)(6) analysis as follows:

To determine whether a complaint meets the pleading standard, our analysis unfolds in three steps. First, we outline the elements a plaintiff must plead to [] state a claim for relief. See [Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009); Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir. 2011).] Next, we peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth. [See Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73]. Finally, we look for well-pled factual allegations, assume their veracity, and then " determine whether they plausibly give rise to an entitlement to relief. " [Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73]. This last step is " a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. " [Iqbal, 556 U.S. at 679].

Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). We are obliged to draw all reasonable inferences therefrom in favor of the plaintiff. McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009). And " [t]o decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record ". PBGC v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

C. Preface

All twelve counts of Sheils's complaint succumb to dismissal as to DRS, LoBianco, and Richard. At the outset, we dismissed count XI (demand for accounting). See fn. ten, supra. All of Sheils's claims against DRS are barred by Eleventh Amendment immunity, and fortified by alternative holdings as to counts I and VII as explained above. See also January 17 Order ¶ q n.10 (noting that DRS is not a " person " under § 1983 such that any § 1983 claims should be dismissed for failure to state a claim).

As to the claims against LoBianco and Richards, the § 1983 official capacity claims are barred either by the Eleventh Amendment or Younger abstention. Thus, the official capacity aspect of the § 1983 claims in counts I through VI and VIII through X must succumb to dismissal.

The remaining aspects of counts I through VI and VIII through X -- alleging individual capacity § 1983 claims under the supervisory liability theory -- also fail to state a claim. Sheils's Bivens (count XII) and the self-effecting Thirteenth Amendment claims against LoBianco and Richard (count II), too, will not survive Rule 12(b)(6) scrutiny. Lastly, the stand-alone claims under § 1673 (Count I) and § 303.101 (Count VII) fail to state a claim because neither source of law affords an implied private right of action.

V. Jurisdiction-Related Claims and Threshold Issues*fn11 : The Thirteenth Amendment Claim Against DRS And The Official Capacity § 1983 Claims Against LoBianco and Richard

A. The Lone Thirteenth Amendment

Claim Remaining Against DRS (Count II)

We held in our January 17 Order that Sheils's Thirteenth Amendment § 1983 claim -- along with every other claim save his self-executing Thirteenth Amendment claim -- was barred by Eleventh Amendment immunity and granted DRS's Rule 12(b)(1) motion on that basis. In declining to reach the self-executing Thirteenth Amendment claim at that time, we noted the infirmity stemming from Sheils's possible failure to state a claim under the " self-executing" Thirteenth Amendment. In response, Sheils claims that he has stated a Thirteenth Amendment claim under section one of that Amendment. Thirteenth Amendment Mem. 1. He also asserts that, as to DRS, the Eleventh Amendment does not bar his Thirteenth Amendment claim. Resp. DRS MTD 9-10.

Turning to the question of whether we have jurisdiction over this claim against DRS -- an arm of the Commonwealth of Pennsylvania for purposes of the Eleventh Amendment immunity analysis, see January 17 Order ¶ l -- we assume (for the sake of argument only) that there exists a private right of action under section one of the Thirteenth Amendment.*fn12

We nevertheless hold that the Thirteenth Amendment did not abrogate DRS's Eleventh Amendment immunity from suit under its assumed private-right-of-action-creating first section. As

the Court of Appeals for the District of Columbia persuasively put it, " [n]othing in § 1 of the Thirteenth Amendment so much as hints at a federal court suit by a private party to enforce the prohibition against badges and incidents of slavery against Indian tribes. " See Vann v. Kempthorne, 534 F.3d 741, 748 (D.C. Cir. 2008); id. at 746 & n.2 (describing tribal sovereign immunity as " flow[ing] from a tribe's sovereign status in much the same way as it does for the States and for the federal government " and noting that " [t]he States also count the Eleventh Amendment as a source of sovereign immunity " ); Cato v. United States, 70 F.3d 1103, 1110 (9th Cr. 1995) (citing Hohri v. United States, 586 F. Supp. 769, 782 (D.D.C. 1984), aff'd, 847 F.2d 779 (Fed. Cir. 1988), and describing the district court's affirmed and essentially adopted-on-appeal opinion as holding that "sovereign immunity bars claim against the United States brought directly under, among other things, the Thirteenth Amendment " ); cf. Seminole Tribe, 517 U.S. at 55 (abrogating sovereign immunity requires an " 'unequivocal[] express[ion of] . . . intent to abrogate the immunity' " (quoting Green v. Mansour, 474 U.S. 64, 68 (1985))).

We will grant DRS's Rule 12(b)(1) motion to dismiss on this basis, DRS MTD 2-4, and, having disposed of the last live claim against DRS, we will dismiss it from this suit.

B. Official Capacity Section 1983

Claims Against LoBianco and Richard

1. Claims For Retrospective

Injunctive And Declaratory Relief And Damages

Sheils's claims seeking retrospective injunctive and declaratory relief and damages against state employees in their official capacities are tantamount to suits against the Commonwealth itself. The Eleventh Amendment immunity therefore applies. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978); Ex parte Young, 209 U.S. 123, 159-60 (1908)*fn13 ; Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010) ("Individual state employees sued in their official capacity are also entitled to Eleventh Amendment immunity because 'official-capacity suits generally represent only another way of pleading an action' against the state.") (quoting Hafer, 502 U.S. at 25). Sheils's claims against LoBianco, in her official capacity as the DRS Director, consequently fail because she and DRS enjoy the same Eleventh Amendment immunity from suit for retrospective injunctive and declaratory relief and damages under § 1983. See generally January 17 Order; section V.A, supra.

Though Sheils does not name BCSE or DPW as defendants, in describing Richard he alleges that BCSE " is part of the Pennsylvania Department of Public Welfare " . SAC ¶ 7. Our Court of Appeals has held that DPW and state agencies like BCSE enjoy Eleventh Amendment immunity. See Betts, 621 F.3d at 253, 255 (affirming district court's conclusion that DPW and a state agency like BCSE were entitled to Eleventh Amendment immunity where plaintiff conceded DPW "regulated, monitored and maintained " the agency); accord Addlespurger v. Corbett, 461 F. App'x 82, 85-86 (3d Cir. 2012) (per curiam) (holding that official capacity claims against "Daniel Richards [sic] of the Pennsylvania Department of Public Welfare's Bureau of Child Support Enforcement " were barred by Eleventh Amendment immunity in case where husband brought pro se § 1983 suit against multiple state defendants, among others, for violating his due process rights by prosecuting him and imprisoning him pursuant to child support and contempt orders). Consequently, the official capacity § 1983 claims seeking retrospective injunctive and declaratory relief and damages against Richard are also barred by Eleventh Amendment immunity. We will therefore grant LoBianco's and Richard's Rule 12(b)(1) motions. LoBianco MTD 7-9; Richard MTD 4 n.1.

2. The Younger Abstention Doctrine Bars Claims For Prospective Injunctive And Declaratory Relief Under Ex parte Young Against LoBianco and Richard Sheils alleges that his " § 1983 claims for prospective injunctive relief that have been asserted against defendant[s] LoBianco [and Richard], in [their] official capacit[ies], are not barred by Eleventh Amendment immunity. " Resp. LoBianco MTD 17. The parties do not dispute that " a state employee may be sued in his official capacity only for 'prospective' injunctive relief, because 'official-capacity actions for prospective relief are not treated as actions against the State.' " Iles, 638 F.3d at 177-78 (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n.10 (1989) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Ex parte Young, 209 U.S. 123, 159--60 (1908))); see LoBianco MTD 12; Richard MTD 7; Resp. LoBianco MTD 17-19.

Sheils's response to Richard's motion to dismiss clarifies that " [a]lthough alimony payments ceased in April, 2012 [thus rendering relief on this basis retrospective], plaintiff's wages continue to be garnished for child support. " Resp. Richard MTD 6 n.2. Thus, as to the garnishment issue, Sheils has limited the scope of the prospective garnishment-related injunctive relief that he seeks. See SAC Prayer for Relief ¶ (b)(i) (implicitly challenging the agencies' application of 23 Pa. Cons. Stat. Ann. § 4348). Sheils also wants to enjoin LoBianco and Richard from (a) " e ntering an order seeking to incarcerate plaintiff for any purported failure to make any support payments until this matter is finally adjudicated " , id. ¶ (b)(ii) (emphasis added)*fn14 (same as to 23 Pa. Cons. Stat. Ann. § 4345), (b) "reporting any purported delinquencies in plaintiff's support payments and notifying the credit reporting agencies " , id. ¶ (b)(iii) (23 Pa. Cons. Stat. Ann. § 4303), and (c) "taking any actions that would interfere, revoke or seize plaintiff's passport " , id. ¶ (b)(iv) (23 Pa.

Cons. Stat. Ann. § 4355; see also 42 U.S.C. § 654(31)). Sheils also seeks an order that would (d) oblige defendants to " notify[] the credit reporting agencies . .. that plaintiff is not delinquent . . . and, to thereafter remove plaintiff from the list of names of those persons being reported ", id. ¶ (b)(iii) (emphasis added)*fn15 (23 Pa. Cons. Stat. Ann. § 4303), and (e) " take actions to insure [sic] that plaintiff's passport will not be revoked, seized or not renewed, " id. ¶ (b)(iv) (23 Pa. Cons. Stat. Ann. § 4355).

Peeling away the Ex parte Young pleading fictions reveals that Sheils's requested prospective injunctive relief would require us to enjoin the DRS and BCSE/DPW -- both state agencies -- in ongoing child support proceedings and enforcement actions.*fn16 The defendants contend that the Younger v. Harris, 401 U.S. 37 (1971), abstention doctrine -- which applies " when federal jurisdiction has been invoked for the purpose of restraining certain state proceedings, " Nat'l City Mortg. Co. v. Stephen, 647 F.3d 78, 83 (3d Cir. 2011) (internal quotations omitted) -- precludes us from exercising jurisdiction over Sheils's requests for prospective injunctive and declaratory relief here. See LoBianco MTD 14; Richard MTD 8 n.2; see also DRS MTD 4. We agree.

a. Sheils's Younger

Abstention Waiver Argument Fails

We may readily dispose of Sheils's Younger abstention waiver argument, Resp. LoBianco MTD 23-24, because it lacks any factual or legal foundation. Sheils has been on notice of Younger abstention arguments since DRS filed its first motion to dismiss. See DRS's June 13, 2011 MTD 3-4. After we granted Sheils's two requests for leave to amend his complaint to add new defendants and claims and denied as moot pending motions to dismiss in light of the amended complaints, the enlarged group of defendants has (unsurprisingly) reasserted Younger abstention arguments. See LoBianco MTD 14; Richard MTD 8 n.2; DRS MTD 4. Though the Supreme Court and many Courts of Appeal have held that abstention may be waivable,*fn17 the record here shows that defendants have repeatedly and vigorously asserted their Younger abstention contentions. Defendants have urged us not to reach the merits of Sheils's claims. See O'Neill, 511 F.3d at 641-43. Indeed, our Court of Appeals has, sua sponte, invoked Younger abstention where neither the parties nor the district court touched the issue. Dongon v. Banar, 363 F. App'x 153, 155 n.1 & 156 (3d Cir. 2010) (per curiam) (invoking the Younger abstention doctrine sua sponte where district court and defendant's motion to dismiss, D.N.J., C.A. No. 08-5331 at docket entry # 15-1, did not raise or address the Younger abstention doctrine).

Sheils also resurrects his Eleventh Amendment immunity arguments to claim that the Younger abstention doctrine was "abrogated" when section 5 of the Fourteenth Amendment was ratified " and/or" the defendants "waived [the Younger abstention doctrine] by . . . accept[ing] the terms of the 'contract' " . Resp. LoBianco MTD 24. We detect no authority to support Sheils's attempt to import Eleventh Amendment immunity principles into the Younger abstention jurisprudence. Moreover, the Sixth Circuit's elucidation of relevant Supreme Court jurisprudence on this subject in O'Neill v. Coughlan, persuades us that a party may waive Younger abstention only when the " state . . . affirmatively urge[s] the federal court to proceed to the merits of a constitutional claim despite the possible application of Younger abstention. " 511 F.3d at 641-43. Under this convincing reasoning we fail to see how Congress can " abrogate " this doctrine or bar states from invoking it when they accept federal funds.

Even assuming that Congress could, " pursuant to a valid exercise of power " abrogate the Younger abstention doctrine, in looking to the same Eleventh Amendment jurisprudence that Sheils's arguments rely upon he cannot point to any evidence -- and we most certainly cannot find any -- that " Congress has 'unequivocally expresse[d] its intent to abrogate' " this abstention doctrine here. See Seminole Tribe, 517 U.S. at 55-56 (quoting Green, 474 U.S. at 68). Sheils also fails to establish the Commonwealth's consent to suit "merely by accepting federal funds " . See A.W., 341 F.3d at 240; fn. seven, supra; see also Williams v. Gov't of V.I. Bd. of Medical Examiners, 360 F. App'x 297, 300-01 (3d Cir. 2010) (rejecting the Younger waiver argument and noting that plaintiff offered " absolutely no authority for " it).

b. Younger Abstention Bars The Prospective Injunctive And Declaratory Relief Sheils Seeks

As to the merits of defendants' Younger abstention argument, the Supreme Court has explained that the doctrine " does not arise from lack of jurisdiction in the District Court, but from strong policies counseling against the exercise of such jurisdiction where particular kinds of state proceedings have already been commenced. " Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., ("Dayton Schools"), 477 U.S. 619, 626 (1986). This abstention doctrine, like its cousins, " is the exception, not the rule " when it comes to a federal court's exercise of federal jurisdiction. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). Younger is grounded " both on equitable principles, and on the 'more vital consideration' of the proper respect for the fundamental role of States in our federal system" . Dayton Schools at 626-27 (citing and quoting Younger, 401 U.S. at 43-44)).*fn18

In this controversy -- where plaintiff seeks to enjoin the actions of two state agencies*fn19 -- it is particularly noteworthy that the Supreme Court has held that Younger is applicable to " s tate administrative proceedings in which important state interests are vindicated, so long as in the course of those proceedings the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim " . Id. at 627; see also Ford Motor Co. v. Ins. Com'r of Pa., 874 F.2d 926, 931-35 (3d Cir. 1989) (holding that Younger abstention may apply in the context of administrative proceedings).

Since it is " our concerns for comity and federalism " that guide our Younger analysis, Dayton Schools, 477 U.S. at 626, " [t]he appropriate focus of a court's inquiry when the question of Younger abstention is raised, therefore, is whether the state proceeding provides an adequate forum for the resolution of the federal claims that have been asserted, and whether deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted. " Ford Motor, 874 F.2d at 932 (internal citations and footnote omitted). It is well-settled that " [t]his rule has been extended to include non-judicial state court proceedings that provide a full and fair opportunity for hearing of the federal claims. " Id. at 932 n.9.

Our Court of Appeals has distilled Younger's requirements to three: " (1) there are ongoing state proceedings that are [quasi-judicial administrative] in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise the federal claims." Lazaridis, 591 F.3d at 670 (modified in light of Ford Motor's extension of Younger to the quasi-judicial administrative context).

First, Sheils's allegations as to the child support proceedings pending before the agencies implicate the garnishment of his wages, the threat of incarceration, the reporting of information to credit reporting bureaus, and his passport eligibility --- the focus of his sought-after prospective injunctive and declaratory relief -- are indisputably ongoing. Sheils himself admits that his "wages continue to be garnished for child support. " Resp. Richard MTD 6 n.2; see also SAC ¶ 71 ( " amount[s] for . . . child support . . . continue[s] to exceed that permitted by 15 U.S.C. § 1673"). He alleges that as to the reports to the consumer credit reporting bureaus, " he is in the computer and 'cannot get out.' " SAC ¶ 72. Moreover, he avers that there is great ongoing uncertainty as to the status of his passport. SAC ¶ 70 & n.3. He has attached as an exhibit an " Order of Court " warning him that "IF [HE] DO[ES] NOT APPEAR IN PERSON, THE COURT MAY ISSUE A WARRANT FOR YOUR ARREST AND YOU MAY BE COMMITTED TO JAIL. " See January 26, 2013 Thirteenth Amendment Br. 4 n.1 & Ex. A; see also Resp. LoBianco MTD 36 ( " to have the United States Treasury intercept most of plaintiff's federal income tax refund, to report purported arrearages to the credit bureaus and apparently certifying the matter to the United States Secretary of State to revoke, restrict or limit plaintiff's passport, without providing plaintiff a due process hearing or administrative review after it had been timely demanded, all of this with the prospect of prison looming in the background undoubtedly raises this matter to the level of involuntary servitude prohibited by the Thirteenth Amendment " (emphasis added)).

Sheils's allegations and representations, in light of DRS and BCSE/DPW's ongoing state and federal statutory obligations under 23 Pa. Cons. Stat. Ann. § 4301, et seq.,*fn20 and 42 U.S.C. § 654, fortify our conclusion that the proceedings before the two agencies are ongoing and that the issues Sheils complains of do and will continue. He does not represent to us that any of these agency matters have been corrupt -- to the contrary, he continues vigorously to pursue prospective declaratory and injunctive relief against the agencies. See Anthony v. Council, 316 F.3d 412, 419 & n.9 (3d Cir. 2003)

(rejecting contention that proceedings were not ongoing or pending largely because " child support orders . . . endure for many years . . . . [and] state courts [and their enforcement agencies] continually monitor, enforce and modify child support orders ").

Second, there can be no doubt that child support-related proceedings are quintessential " domestic relations [proceedings that] are traditionally the domain of state courts " and their agencies, thus implicating important state interests. See Yang v. Tsui, 416 F.3d 199, 204 (3d Cir. 2005). Unlike Yang -- where our Court of Appeals found the plaintiff's petition was "not one of custody, but rather one for return of a child under the Hague Convention and [the International Child Abduction Remedies Act], which is a federal statutory matter " , id. -- what is at issue here involves plain vanilla child support enforcement proceedings. In Anthony v. Council, 316 F.3d 412, 418 (3d Cir. 2003), our Court of Appeals left no doubt that " [e]nsuring the provision of child support is a function particular to the states " and cited New Jersey law granting its courts " the authority to order and direct the payment of child support. " See also id. at 421-22 (canvassing Supreme Court cases). Pennsylvania law grants Pennsylvania courts and agencies much the same powers Anthony identified. See 23 Pa. Cons. Stat. § 4341 ( " Commencement of support actions or proceedings " ); fn. 21, supra.

Third, the Commonwealth's quasi-judicial administrative proceedings afford Sheils an adequate opportunity to raise his federal claims.*fn21 Our Court of Appeals in Ford Motor held that two Pennsylvania statutory provisions -- 2 Pa. Cons. Stat. Ann. §§ 702*fn22 and 703(a)*fn23 -- provided just such an opportunity for hearing federal claims. In Ford Motor the challenge was to a statute's constitutionality, see 874 F.2d at 933. For only marginally different reasons we hold that these same provisions render the administrative proceedings adequate for the application of Younger abstention.

Here, Sheils seeks to enjoin DRS and BCSE/DPW because he alleges that they are depriving him of certain statutory and constitutional protections that are largely due process-based. As § 703(a) makes clear, Sheils is statutorily obliged to raise any question other than the validity of the statute directly to the agency in the first instance. Whether the agency is " competent to resolve such [a] question " is irrelevant. § 703(a). Moreover, 23 Pa. Cons. Stat. Ann. § 4305(d) provides that " [s]ubject to general rules which may be promulgated by the Supreme Court, each court shall establish due process and judicial review procedures for domestic relations sections exercising powers under this section. " See also Pa. R. Civ. P. 1910.1 et seq.; see also Bucks Cnty. R. of Crim. P. 5001.

In short, since Pennsylvania has codified a mechanism by which Sheils can obtain judicial review of the DRS and BCSE/DPW's decisionmaking, Younger without question applies. Cf. Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 412 (3d Cir. 2005) ( " 2 Pa. Cons. Stat. Ann. § 754(b) allows for reversal of a[] [local] administrative action by the reviewing court if there has been a violation of constitutional rights "); id. at 412 n.12; Anthony, 316 F.3d at 422 (reasoning under New Jersey law).

Though all three Younger predicates are satisfied here, Sheils -- never one to take the path of least resistance -- contends that he has carried his burden of showing that the exception to the Younger exception applies here because he " can establish that (1) the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other extraordinary circumstances exist . . . such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted. " Anthony, 316 F.3d at 418 (quoting Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989)). The crux of Sheils's bad faith, harassment, or other extraordinary circumstances argument is that the agencies deprived him of the opportunity to dispute several of its determinations by "ignoring " his requests. See, e.g., Resp. LoBianco MTD 24, 28. But Sheils has fallen far short of carrying his burden here and indeed misapprehends the relevant inquiry.*fn24

As the Supreme Court has explained, Younger " contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts. Such a course naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved. " Gibson v. Berryhill, 411 U.S. 564, 577-79 (1973) (holding that where " the State Board of Optometry was incompetent by reason of bias to adjudicate the issues pending before it [due to prejudgment of the facts and personal pecuniary interest]. . . . the District Court[] . . . need not defer to the Board " ); see also id. at 575 n.14 (noting inadequacy of administrative proceeding " because of delay by the agency " in resolving the merits of a claim, see Smith v. Ill. Bell Tel. Co., 270 U.S. 587, 591 (1926), or " because of some doubt as to whether the agency was empowered to grant effective relief " ). Since we are to " assume that state procedures will afford an adequate remedy, " Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14-15 (1987), " t he key question is whether the state allows for [plaintiffs] to raise their objections, not whether the state agrees with those objections. " Nivens v. Gilchrist, 444 F.3d 237, 243 (4th Cir. 2006).

Notably, Sheils does not allege any facts to suggest that the agencies here were " incompetent " (as Gibson informs the meaning of that term) or failed to provide an "adequate opportunity " , Anthony, 316 F.3d at 418, or " a full and fair opportunity " , Dayton Schools, 477 U.S. at 627, or that the agencies here prevented him from raising his objections. Put another way, he fails to claim " that he will not receive fair treatment before" the agencies if he were to attempt to raise his due process-deprivation claims before them as 2 Pa. Cons. Stat. Ann. §§ 702 and 703(a) allow him to do. See Getson v. New Jersey, 352 F. App'x 749, 755 (3d Cir. 2009) (citing Gibson, 411 U.S. at 578-79).

Nor does Sheils allege that he attempted to, or was prevented from, asserting these claims before a court upon a " due cause " showing under § 703(a). Though he alleges that the agencies " ignored " his requests for " administrative review " of the agencies' determination of past-due support on "at least three " occasions, Resp. LoBianco MTD 24,*fn25 he misapprehends the relevant " adequate " or " full and fair opportunity " for purposes of the Younger analysis. See Dayton Schools, 477 U.S. at 627; Anthony, 316 F.3d at 422 (noting under analogous-to-Pennsylvania New Jersey law that "there is a continuing, open and available forum to raise any [due process] issues " ). As the party bearing the burden of showing that state procedural law barred him from presenting these claims, Pennzoil Co., 481 U.S. at 14, his argument flounders.*fn26 See Anthony, 316 F.3d at 423 (finding unavailing a judicial decision that " demonstrate[d] that the New Jersey courts are resistant to adjudicating " the claims at issue in that case).

As all three Younger predicates exist and Sheils having failed to show bad faith, harassment, or any other extraordinary circumstance, we will abstain from exercising our jurisdiction over Sheils's residual claims seeking prospective declaratory and injunctive relief. Accord Dongon, 363 F. App'x at 156 (holding that Younger abstention precluded any request for injunctive relief since " it appears that state court proceedings are pending or ongoing in Dongon's child support matter, [thus] it would be inappropriate for this Court to interfere with the state's interest in administering its own family court " (citing Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir. 2006)).*fn27

Thus, as to Sheils's efforts to obtain prospective injunctive and declaratory relief in these ongoing proceedings, we will grant defendants' motions to dismiss on Younger abstention grounds Sheils's claims to the extent he seeks such relief. See LoBianco MTD 14-15; DRS MTD 5-6; Richard MTD 4 n.1.

VII. Claims Over Which We Undoubtedly Have Subject Matter Jurisdiction: The § 1673 and § 303.101 Implied

Private Right Of Action Claims, Individual

Capacity § 1983 Damages Claims, Bivens Claim, And Thirteenth Amendment Claim Against LoBianco and Richard LoBianco and Richard assert that Sheils's damages claims fail to state a claim under Rule 12(b)(6).*fn28 See LoBianco MTD 30-33; Richard MTD 4-6, 10-14; see also LoBianco Reply 4-6. We agree.

A. Section 1673*fn29 (Count I)

Though our January 17 Order did not reach the question of whether § 1673 provides an implied right of action separate from § 1983,*fn30 we noted that " the courts touching this issue have largely answered this question in the negative. " January 17 Order ¶ u n.12 (collecting cases). We now hold that since 15 U.S.C. § 1676 provides that " [t]he Secretary of Labor, acting through the Wage and Hour Division of the Department of Labor, shall enforce the provisions of this subchapter " including § 1673, it is plain that " Congress [did not] intend[] to create [under § 1673] a personal remedy for " Sheils and other similarly situated plaintiffs. See McGovern v. City of Philadelphia, 554 F.3d 114, 116 (3d Cir. 2009) (citing Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (holding that the touchstone of the implied private right of action remedy inquiry is " [s]tatutory intent ")); Three Rivers Ctr. v. Hous. Auth. of the City of Pittsburgh, 382 F.3d 412, 421 (3d Cir. 2004)).*fn31

For these reasons, we will grant defendants' Rule 12(b)(6) motion to dismiss Count I, LoBianco MTD 16-17; Richard MTD 4 n.1, because there is no basis to create an implied private right of action under § 1673.

B. Section 303.101 (Count VII)*fn32

There is also no private right of action to be implied under 45 C.F.R. § 303.101.*fn33 Sheils alleges that he was deprived of basic due process rights that States " must have in effect and use . . . to . . . modify . . . support orders. " SAC ¶ 119 (quoting 45 C.F.R. § 303.101(b)). He contends that " § 303.101(c) provides that there must be 'Safeguards,' ensuring that the due process rights of the parties involved are protected. " Id. In particular, he alleges a lack of " expedited process[es] ". Id. ¶ 120.

In the face of Sheils's reliance on this regulation, the Supreme Court held in Alexander v. Sandoval, 532 U.S. 275, 291 (2001), that "[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. " Thus, our inquiry here must focus on 42 U.S.C. § 666, the enabling statute for § 303.101. See Three Rivers Ctr. for Indept. Living, 382 F.3d at 423-24. Though Sheils addresses the text of § 666, Resp. LoBianco MTD 9-12, we find his arguments unavailing under controlling precedent. Since § 666 is a " [s]tatute[] that focus[es] on the person [or entity] regulated rather than the individuals protected [it] create[s] 'no implication of an intent to confer rights on a particular class of persons.' " See id. at 289 (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981).

Section 666 is entitled " [r]equirement of statutorily prescribed procedures to improve effectiveness of child support enforcement. " It provides in subsection (a) that "[i]n order to satisfy section 654(20)(A) [that sets forth requirements for " State plan[s] for child and spousal support " ], each State must have in effect laws requiring the use of the following procedures . . . to increase the effectiveness of the program which the State administers under this part " . Each subsection of § 666 sets forth the procedures that the States as regulated entities must adopt. See § 666(a) (describing " [t]ypes of procedures required " ); § 666(b) (procedures for " [w]ithholding from income of amounts payable as support " ); § 666(c) (governing " [e]xpedited procedures "). Notably, the subsection on expedited procedures obliges the states to incorporate " due process safeguards ", but the statutory text stops well short of vesting any individuals with new procedural rights. See text following § 666(c)(1)(H). Similarly, section 666(c)(2) establishes some additional " [s]ubstantive and procedural rules " by which the States as regulated entities must abide.

Section 666 is one step " removed from the individuals who will ultimately benefit from" its protections. See Sandoval, 532 U.S. at 288-89. Thus § 666 is similar to the " twice removed " section 602 of Title VI of the Civil Rights Act of 1964 that the Supreme Court held does not create a private right of action because it lacks the " rights-creating " language present in § 601 of Title VI. Id.; compare 42 U.S.C. § 2000d-1 ( "[e]ach Federal department and agency . . . is authorized and directed to effectuate the provisions of § 601"), and, 42 U.S.C. § 666(a) ( " [i]n order to satisfy section 654(20)(A) of this title, each State must have in effect laws requiring the use of the following procedures " ), with 42 U.S.C. § 2000d ( " [n]o person . . . shall . . . be subjected to discrimination " ). We thus conclude that since " Congress [did not] intend[] to create a person right in the plaintiff," McGovern, 554 F.3d at 116 (citing Sandoval, 532 U.S. at 286), it created no implied private right of action under § 666.

Moreover, no provision in § 666 supplies any enforcement methods, evidencing Congress's lack of intention to create a private remedy. See Sandoval, 532 U.S. at 289. Indeed, 42 U.S.C. § 609(a)(5) and § 609(a)(8)'s Secretary-empowering penalty powers for any state failure to conform with Title IV-D's duties " tend[s] to contradict a congressional intent to create privately enforceable rights through " § 666 itself. Sandoval, 532 U.S. at 290. Cf. Blessing, 520 U.S. at 343 (holding in context of § 1983 suit that " the requirement that a State operate its child support program 'in substantial compliance'[, 42 U.S.C. § 609(a)(8),] with Title IV-D [of the Social Security Act governing Child Support and Establishment of Paternity], was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right " but to create a " yardstick for the Secretary [of Health and Human Services] to measure the systemwide performance of a State's Title IV--D program " ); Cuvillier v. Taylor, 503 F.3d 397, 405-06 (5th Cir. 2007); Hughlett v. Romer-Sensky, 497 F.3d 557, 563-65 (6th Cir. 2006).

To the extent Sheils claims that the DRS Consumer

Credit Bureau Notice, SAC ¶ 54, evidences a personal right, its source is state statutory law, but not federal law. Compare 23 Pa. Cons. Stat. Ann. § 4303(1) (" The information shall be available only after the obligor owing the arrearages has been notified of the proposed action and given a period not to exceed 20 days to contest the accuracy of the information ", thus vesting the obligor with a newly-minted statutory right to notice), with 42 U.S.C. § 666(a)(7)(B) (ensuring that parents are given residual " due process required under State law " , stopping well short of creating new procedural rights).*fn34

We will dismiss Count VII for failure to state a claim for relief pursuant to Rule 12(b)(6) since the regulation and its enabling statute do not create an implied right of action.

C. Individual Capacity

Supervisory Liability § 1983 Claims

Sheils's individual capacity claims against LoBianco and Richard implicate their roles as supervisors, SAC ¶¶ 5-7, and we will address his claims as asserting supervisory liability.

It is well-settled that supervisory liability cannot be predicated solely on a respondeat superior theory, see Evancho v. Fisher, 423 F.3d 347, 35 (3d Cir. 2005), and it is a species of individual liability that exists in two forms. See Santiago v. Warminster Twp., 629 F.3d 121, 127 n.5 (3d Cir. 2010).

The first form requires a plaintiff to aver with sufficient factual support that " with deliberate indifference to the consequences, [the supervisor] established and maintained a policy, practice or custom which directly caused [the] constitutional harm. " A.M. ex rel. J.M.K. v. Luzerne Cnty.

Juv. Detention Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (internal quotations omitted). The second type of supervisory liability claim requires a plaintiff to plead facts that plausibly suggest that the supervisors " participated in violating plaintiff's rights, directed others to violate them, or, as the person[s] in charge, had knowledge of and acquiesced in [their] subordinates' violations. " Santiago, 629 F.3d at 129 n.5 (internal quotation marks omitted).

Sheils has not alleged any plausible supervisory liability claims against LoBianco or Richard.

As to the " policy, practice or custom " claim, our Court of Appeals in McTernan v. City of York, 564 F.3d 636 (3d Cir. 2009), held in the municipal liability context that for a "policy" or "custom" claim to survive a motion to dismiss in post-Twombly § 1983 pleadings, a plaintiff "must identify a custom or policy, and specify what exactly that custom or policy was." 564 F.3d at 658 (affirming district court's dismissal of complaint because it " g[ave] no notice as to the Defendant[]'s improper conduct, simply alleg[ing] that [plaintiff's] rights were violated due to the City's policy of ignoring First Amendment right[s.] " ) (internal quotations omitted). This reasoning applies with equal force to supervisory liability claims premised on a " policy, practice or custom" theory. See Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001) ( "the elements of a supervisory liability claim. . . . [require the] plaintiff . . . [to plead facts that, among other things,] identify the specific supervisory practice or procedure that the supervisor failed to employ, and show that . . . the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury ").

Though the SAC alleges that LoBianco and Richard were responsible for crafting policies as a general matter, SAC ¶¶ 5-7, it gives no flesh to these supposed policies, practices, or customs. As to the claims against LoBianco, though the SAC is replete with references to the conduct of " the DRS ", SAC ¶¶ 5, 50-54, 56-58, 60-61, 63, 66-67, these faceless-DRS-entity averments merely confirm that Sheils's complaint is with DRS's administration, collection, and enforcement of court support orders and related contempt proceedings stemming from a single cantankerous domestic relations support proceeding before the Bucks County Court of Common Pleas. SAC ¶¶ 13-72; id. ¶ 69 ( "[P]laintiff's counsel sent a letter to Judge Scott advising her of the support enforcement procedures that had been initiated. Plaintiff's counsel requested that the enforcement procedures be suspended pending a final hearing in the matter. " (emphasis added)). Not one of Sheils's allegations describes " exactly " -- let alone discernibly -- the substance of a DRS policy or custom except in the most conclusory terms.

Sheils's policy and custom claims against Richard as Director of the Bureau of Child Support Enforcement are weaker still. Sheils's sole factual allegation implicating the Bureau of Child Support Enforcement claims that " Plaintiff contacted the [BCSE] in Harrisburg, which confirmed the intercept [of funds for allegedly outstanding child support amounts]. It also informed plaintiff that the DRS submitted reports regarding plaintiff to the consumer credit bureaus. " Id. ¶ 66. The SAC contains no other fact suggesting that BCSE was in any way involved in this matter and, to the extent BCSE is named, Sheils alleges that it provided information to him without taking any other independent action.

Moreover, the fact that Sheils's SAC tells only a story of " [a] single incident . . . [of DRS and BCSE's alleged conduct in enforcing the court's order that] usually provides an insufficient basis upon which to assign supervisory liability " to LoBianco and Richard. Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989) disposes of this, as the Eighth Circuit there persuasively reasoned in the pre-Twombly era that "[a]s the number of incidents grow, and a pattern begins to emerge, a finding of tacit authorization or reckless disregard becomes more plausible " .

Nor do we find Sheils's thinly-veiled attempts to personify his gripes against DRS and BCSE availing. Sheils transparently attempts to impute knowledge and personal participation in rights-violating conduct to LoBianco and Richard without the slightest factual foundation.*fn35 As already noted, the SAC alleges that LoBianco and Richard were responsible for crafting policies only as a general matter. SAC ¶¶ 5-7. Tellingly, the factual background section names LoBianco once and does not even mention Richard's name. As usual, Sheils's allegations focus on the conduct of DRS -- the original sole defendant in this matter that the Eleventh Amendment makes immune. In the portion of the SAC that enumerates the twelve Counts, Sheils's allegations impute action to LoBianco and Richard because of their general job descriptions absent any other facts.*fn36 Put another way, though Sheils's complaint is long, it offers precious little of substance for purposes of surviving a motion to dismiss post-Twombly.

Even before Twombly, our Court of Appeals in Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005), affirmed the district court's dismissal of a complaint that " merely hypothesiz[ed] that [a supervisory official] may have been somehow involved simply because of his position as the head of the Office . . .. This conclusion, however, is not a reasonable inference to be drawn from the facts alleged " . The panel found it " not possible" for the supervisory official, " in his individual capacity, to frame an answer to . . . [the] complaint because it allege[d] no specific act by " that official. Id. Sheils's SAC's attempt to allege supervisory liability claims against LoBianco and Richard fails for the same reasons.*fn37 We will grant defendant LoBianco and Richard's Rule 12(b)(6) motion to dismiss Sheils's § 1983 supervisory liability claims for failure to state a claim.

D. Bivens Claim Against LoBianco and Richard Sheils claims that he has an implied cause of action under the Bivens doctrine because LoBianco and Richard " were and are acting as agents for the federal government " and " depriv[ed] plaintiff of his liberty and property without due process in violation of the Fifth Amendment to the United States Constitution. " SAC ¶¶ 151-152.

Our Court of Appeals recently in Bistrian v. Levi, 696 F.3d 352, 365-66, explained that "[i]n Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, [403 U.S. 388 (1971),] the Supreme Court recognized an implied private right of action for damages against federal officials who have violated a person's Fourth Amendment rights. The Court has extended the Bivens implied right of action to suits for damages brought under the equal protection component of the Due Process Clause of the Fifth Amendment . . . . [T]he Court has consistently refused to extend Bivens liability to any new context or new category of defendants. " 696 F.3d at 365-66 (internal citations and quotation marks omitted); id. at 366 (describing a Bivens action as a federal analog to suits against state officials under § 1983).

Our Court of Appeals in Bistrian also left no doubt that unlike other legal contexts, "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. " Id. " Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. "

Id. at 366.

Sheils's Bivens claim fails for two separate but independently fatal reasons. First, Sheils conclusorily alleges that LoBianco and Richard are federal agents under the reasoning of Ellis v. Blum, 643 F.2d 68, 84 n.17 (2d Cir. 1981) (Friendly, J.). SAC ¶¶ 150-151. Sheils contends that " [f]or the reasons articulated in Ellis " , we should find that LoBianco and Richard are federal agents. Resp. LoBianco MTD 20. But modern Rule 8 jurisprudence teaches that we "are not bound to accept as true a legal conclusion couched as a factual allegation", Iqbal, 556 U.S. at 678. Consequently, we need not credit this averment on a motion to dismiss.

Though Sheils less-than-lucidly alleges that LoBianco and Richard are federal agents by operation of Title IV-D of the Social Security Code, he cannot take any factual support from Ellis's legal conclusion that under Title II of the Social Security Act the Secretary of Health and Human services delegated authority to make disability benefit eligibility determinations to certain state officials and thereby transformed them into (unwitting) federal agents. Id. at 70, 84 n.17. This is pointedly inapt where, in contrast to Ellis, LoBianco and Richard apply the Pennsylvania child support enforcement scheme that we canvassed at length above*fn38 and not purely " federal law and federal regulations in accordance with procedures prescribed by " the federal HHS Secretary. Ellis, 643 F.2d at 84 n.17.

Equally fatal to his Bivens claim is Sheils's failure to plead enough factual matter to establish that "each Government-official defendant, through the official's own individual actions, has violated the Constitution. " Bistrian, 696 F.3d at 366 (emphasis added). As already noted, a Bivens claim is the federal analog to a § 1983 claim against a state official. We have already concluded that Sheils has failed adequately to state a claim for LoBianco and Richard's § 1983 supervisory liability. For precisely the same reasons, his Bivens claim must also succumb to dismissal.

E. Self-Executing Thirteenth Amendment Claims Finally, we turn now to Sheils's assumed-to-exist " self-executing" section one Thirteenth Amendment claim for damages against these two individual defendants. Sheils alleges that " [t]he actions of [LoBianco and Richard] and, among other things, garnishing virtually all of plaintiff's disposable income and intercepting his federal income tax refund, is in violation of [section one of] the Thirteenth Amendment to the United States Constitution " . SAC ¶ 88.

We have already explained that Sheils's SAC fails to adequately plead individual capacity § 1983 claims against LoBianco and Richard because his allegations against them are conclusory and lack the requisite factual support to explain how they were personally involved in bringing about his alleged harms. Against this backdrop, we conclude that Sheils's Thirteenth Amendment claims fail for cognate Rule 8 pleading deficiency reasons.*fn39

Sheils's conclusory allegations as to LoBianco or Richard's " actions " preclude us from finding that these defendants did anything to Sheils, much has offending his imagined Thirteenth Amendment rights.*fn40 Notably, in his response to LoBianco's argument in favor of dismissing the Thirteenth Amendment claim, Sheils contends that her " actions constitute nothing less than . . . unlawful coercion and intervention in the negotiating process between plaintiff and his ex-wife while the competing motions for modification of support were pending " but he cites paragraphs we have already described as merely naming the faceless DRS entity or conclusorily and hypothetically alleging rights violations without factual support. Resp. LoBianco MTD 36 (citing SAC ¶¶ 20, 21, 47-67, 70, 86-138).*fn41

We will also grant defendants' Rule 12(b)(6) motions as to Sheils's self-executing Thirteenth Amendment claims.

VIII. Conclusion

We will thus grant DRS, LoBianco, and Richard's Rule 12(b)(1) and 12(b)(6) motions to dismiss.

To recapitulate this saga, at the outset we dismissed count XI (demand for accounting). All of Sheils's claims against DRS are barred by Eleventh Amendment immunity, and fortified by alternative holdings as to counts I and VII as explained above. See also January 17 Order ¶ q n.10 (noting that DRS is not a "person " under § 1983 such that any § 1983 claims should be dismissed for failure to state a claim).

As to the claims against LoBianco and Richards, the § 1983 official capacity claims are barred either by the Eleventh Amendment or Younger abstention. Thus, the official capacity part of the § 1983 claims in counts I through VI and VIII through X must succumb to dismissal. The remaining claims of counts I through VI and VIII through X alleging individual capacity § 1983 claims under the supervisory liability theory fail to state a claim. Sheils's Bivens (count XII) and the self-effecting Thirteenth Amendment claims against LoBianco and Richard (count II) fail to state a claim for relief under Rule 12(b)(6). And the stand-alone claims under § 1673 (Count I) and § 303.101 (Count VII) fail to state a claim because the sources Sheils cites do not create any implied private rights of action.

All twelve counts of Sheils's SAC will therefore be dismissed.*fn42

BY THE COURT:

STEWART DALZELL, J.


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