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Dennis v. DeJong

United States District Court, Third Circuit

June 14, 2013

REGINALD DENNIS, RENEE DENNIS and B.D., a minor, Plaintiffs
v.
ALLAN R. DEJONG, M.D.; COUNTY OF DELAWARE; MARY GERMOND; META WERTZ; BETH PRODOEHL; PATRICIA MCGETTIGAN; GINA GIANCRISTIFORO; and DR. DOE, Defendants

MARK D. FREEMAN, ESQUIRE On behalf of Plaintiffs

SARA PETROSKY, ESQUIRE On behalf of Defendants Allan R. DeJong, M.D.

SUZANNE MCDONOUGH, ESQUIRE On behalf of Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo

OPINION

JAMES KNOLL GARDNER, UNITED STATES DISTRICT JUDGE

OPINION TABLE OF CONTENTS

SUMMARY OF DECISION ..........................................2

JURISDICTION .................................................3

VENUE ........................................................3

PROCEDURAL HISTORY ...........................................4

STANDARD OF REVIEW ...........................................12

FACTS ........................................................14

CONTENTIONS OF THE PARTIES ...................................28

Contentions of Dr. DeJong ............................... 28

Contentions of Delaware County Defendants ............... 30

Contentions of Plaintiffs ...............................36

A. Claims against Dr. DeJong .......................36

B. Claims against the Delaware County defendants...37

APPLICABLE LAW ...............................................42

42 U.S.C. § 1983 ........................................42

Due Process in Child Abuse Cases ........................44

Immunities for Government Officials .....................47

Pennsylvania Law Governing Dependency Proceedings .......50

Intentional Infliction of Emotional Distress ............52

DISCUSSION ...................................................53

Count I .................................................53

Counts II-A and II-B ....................................53

Counts III and IV .......................................60

Count V .................................................66

Count VI ................................................68

Count VII ...............................................68

Count VIII ..............................................75

Count IX ................................................77

Count X .................................................77

CONCLUSION ...................................................78

This matter is before the court on three motions for summary judgment.

On December 16, 2012 plaintiffs filed their Notice of Motion, seeking partial summary judgment. On December 17, 2012 Defendants County of Delaware, Mary Germond, Meta Wertz, Beth Prodoehl, Patricia McGettigan and Gina Giancristiforo’s Motion for Summary Judgment was filed.[1] Also on December 17, 2012 the Motion of Defendant, Allan R. Dejong, M.D., to Dismiss Plaintiffs’ Amended Complaint Pursuant to Federal Rule of Civil Procedure 56 with Supporting Memorandum, in the nature of a motion for summary judgment, was filed.

SUMMARY OF DECISION

With plaintiffs’ consent, Counts I, VI and VII against defendant County of Delaware, and Count IX against defendant Dr. Doe, are dismissed from plaintiffs’ Amended Complaint, with prejudice.

For the following reasons, I grant the motion for summary judgment of the Delaware County defendants and the motion for summary judgment of Dr. DeJong, concerning the remaining Counts in plaintiffs’ Amended Complaint: Counts II-A, II-B, III, IV, V, VII (against defendant Dr. DeJong), VIII and X. In addition, I deny plaintiffs’ motion for partial summary judgment.

Specifically, I conclude that in each of the counts asserted against the Delaware County defendants, plaintiffs have failed to establish that Delaware County violated plaintiffs’ substantive or procedural due process rights pursuant to an official custom or policy. Moreover, I conclude that plaintiffs’ claims against the individual Delaware County defendants are barred by absolute or qualified immunity.

Furthermore, I conclude that defendant DeJong is entitled to summary judgment because plaintiffs have failed to establish that Dr. DeJong acted under the color of state law as required to pursue a claim pursuant to 42 U.S.C. § 1983. Moreover, plaintiffs have failed to establish that Dr. DeJong conducted himself in a manner that was extreme and outrageous or shocked the conscience.

Accordingly, plaintiffs’ cross-motion for partial summary judgment is denied.

JURISDICTION

Jurisdiction in this case is based on federal question jurisdiction pursuant to 28 U.S.C. § 1331. This court has supplemental jurisdiction over plaintiffs’ pendent state-law claims. See 28 U.S.C. § 1367.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff’s claims allegedly occurred within Delaware County, Pennsylvania, which is located within this judicial district.

PROCEDURAL HISTORY

This case arises out of a child abuse investigation which resulted in plaintiffs Reginald and Renee Dennis temporarily losing custody of their infant son, B.D. Mr. Dennis was separated from his son for over one year, and Mrs. Dennis was separated from her son for nine months.

On November 19, 2010 plaintiffs filed their initial Complaint, which asserted 19 Counts against sixteen defendants[2]Fifteen of those defendants formed five groups of defendants, and each group filed a motion to dismiss. The sixteenth defendant, whose name is unknown and who is identified as “Dr. Doe”, did not file a motion to dismiss the Complaint.

By Order and Opinion dated and filed September 30, 2011 the motion to dismiss filed by the Delaware County defendants was granted in part and denied in part. The other four motions to dismiss were granted. Pursuant to the September 30, 2011 Opinion, certain counts were dismissed with prejudice, and certain counts were dismissed without prejudice for plaintiff to file a more specific amended complaint.[3]

As a result of the September 30, 2011 Order and Opinion, the following claims remained in plaintiffs’ original Complaint and were permitted to be included in the amended complaint without change as authorized by the September 30, 2011 Order and Opinion:

Count II: plaintiffs’ Fourteenth Amendment substantive and procedural due process claims against defendant Delaware County;
Count III: plaintiffs’ Fourteenth Amendment procedural due process claim against defendants Germond and Delaware County; Count
IV: plaintiffs’ Fourteenth Amendment procedural due process claim against defendant McGettigan; and Count
V: plaintiffs’ Fourteenth Amendment substantive due process claim against defendant Delaware County.

The following claims were dismissed from plaintiffs’ original Complaint without prejudice for plaintiffs to file an amended complaint in accordance with the September 30, 2011 Order and Opinion:

Count I: plaintiffs’ Fourteenth Amendment substantive and procedural due process claims against defendant Delaware County for deputizing an employee of Delaware County Children and Youth Services to act as a deputy clerk of court for all dependency matters in place of the county’s Office of Judicial Support;
Count II: plaintiffs’ Fourteenth Amendment substantive and procedural due process claims against CYS employees, defendants Wertz, McGettigan, and Giancristiforo, for an alleged delay in filing an ex parte memorandum with the court concerning termination of plaintiff parents’ parental rights;
Count IV: plaintiffs’ Fourteenth Amendment procedural due process claim against defendant Delaware County for the alleged policy of delaying the scheduling of dependency hearings;
Count VI: plaintiffs’ Fourteenth Amendment substantive due process claim against defendant Delaware County for CYS’s reliance on defendant Dr. DeJong’s investigations, reports and testimony;
Count VII: plaintiffs’ Fourteenth Amendment substantive due process claim against defendant Dr. DeJong for multiple misrepresentations of medical findings to support false accusations of child abuse and related actions;
Count VIII: plaintiffs’ claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985 against defendants Dr. DeJong, Wertz, McGettigan and Speedling for conspiring to deprive plaintiffs of their equal protection and due process rights based on gender bias and racial animus in their entirety;
Count IX: plaintiffs’ Fourteenth Amendment procedural due process claim against defendants Dr. DeJong, Germond, Wertz, McGettigan, Giancristiforo, and Delaware County for adopting the medical presumption that a subdural hematoma is caused by abuse as a legal presumption in dependency and criminal cases;
Count X: plaintiffs’ Fourteenth Amendment substantive and procedural due process claims against defendant Delaware County for failing to properly train CYS workers, supervisors and administrators about dependency proceedings;
Count XI: plaintiffs’ claims pursuant to 42 U.S.C. §§ 1981 and 1985 against defendants Dr. DeJong, Dr. Christian, Dr. Boal and Deputy District Attorney Galantino for conspiring to misrepresent medical evidence concerning the age of B.D.’s subdural hematoma to deprive Mr. Dennis of his equal protection and due process rights;
Count XV: plaintiffs’ Pennsylvania state-law negligence claim against defendant Dr. Doe in its entirety; and
Count XIX: plaintiffs’ Pennsylvania state-law claim against defendant Dr. DeJong for intentional infliction of emotional distress.

On December 16, 2011 plaintiffs filed a 141-page Amended Complaint. Based upon its captions and subheadings, the Amended Complaint asserts the following eleven counts against eight defendants:[4]

Count I: Fourteenth Amendment Substantive and Procedural Due Process Claim Against Delaware County Delaware County’s Deputization of CYS to Act as Clerk of Juvenile Court and Failure to Properly Train the CYS Employee Acting as Court Clerk Violates Due Process and Resulted in the Delegation of Ministerial Function of Scheduling the First Day of Dependency Trials to Fellow CYS Employee (¶¶ 109-151)
Count II-A: Fourteenth Amendment Substantive and Procedural Due Process Claim Against Delaware County Delaware County’s Policy of Insisting on Placement with Strangers When Parents Maintain Their Innocence, Failure to Timely Schedule Shelter Care Hearing and Misrepresenting Facts and Law to Obtain Ex Parte Orders Finding that there are No Family or Community Caregivers Available to Care for the Child Violates Due Process (¶¶ 152-214)
Count II-B: Fourteenth Amendment Procedural and Substantive Due Process Claims Against Meta Wertz, Patricia McGettigan and Gina Giancristiforo Defendants Decision Not to Seek A Pre-Deprivation Hearing and Delay in Filing Ex Parte Memorandum and Insistence on Placement of B.D. with Strangers in Foster Care when Reggie and Renee Maintained Their Innocence Violates Due Process (¶¶ 215-218)
Count III: Fourteenth Amendment Procedural Due Process Claim Against Delaware County and Mary Germond Policy of Excessive Delay in Filing Dependency Petition Violates Due Process (¶¶ 219-234)
Count IV: Fourteenth Amendment Procedural Due Process Claim Against Delaware County, Patricia McGettigan and Gina Gian-cristiforo Excessive Delay in Scheduling Dependency Hearings and in Providing Discovery Months After the Filing of Dependency Petition Violates Due Process (¶¶ 235-271)
Count V: Fourteenth Amendment Substantive Due Process Claim Against Delaware County CYS’s Refusal to Allow More Time with B.D. and Refusal to Place B.D. with Renee Even After CYS’s Own Parent Educator Reported Renee had “Top Notch” Parenting Skills and CYS’ Own Psychologist Reported that if Anything Renee was “Overprotective” of B.D. was Retaliation for Renee Maintaining Innocence and Violates Due Process (¶¶ 272-284)
Count VI: Substantive Due Process Claim Against Delaware County Reliance on Dr. DeJong in the Face of Dr. DeJong’s Long History of Biased and Unreliable Investigations, Reports and Testimony Violates Due Process (¶¶ 285-348)
Count VII: Substantive Due Process Claim Against Delaware County and Dr. DeJong Dr. DeJong’s Pattern of Mu[l]tiple Reckless Misrepresentations of Medical Findings to Support False Allegations of Child Abuse is Not Objectively Reasonable, Constitutes Bad Faith and Shocks the Conscience and His Acts are Fairly Attributable to Delaware County (¶¶ 349-531)
Count VIII: Failure to Train Under the Fourteenth Amendment Against Delaware County Defendants Denied Reggie, Renee and B.D. of Due Process Under the Law by Failing to Properly Train and Supervise Intake Case Workers, Supervisors and Administrators about Procedural Due Process Regarding the Filing of Dependency Petitions and Scheduling of Dependency Trials, the Appropriate Use of Ex Parte Communication with the Court, the Duty of Candor to the Court in Ex Parte Communications (¶¶ 532-549)
Count IX State[-]Law Claim Negligence Against Dr. Doe Dr. Doe Negligently Evacuated the Wrong Side of B.D.’s Head (¶¶ 550-567)
Count X: State[-]Law Claim Against Dr. DeJong Intentional Infliction of Emotional Distress (¶¶ 568-578).

On January 4, 2012 the Delaware County defendants answered plaintiffs’ Amended Complaint.[5] On January 12, 2012 defendant DeJong answered the Amended Complaint.[6]

After conducting discovery, plaintiffs filed a motion for partial summary judgment on December 16, 2012. In their motion, plaintiffs seek judgment on Counts II-A, II-B, III, IV, V and VII.[7]

On December 17, 2012 the Delaware County defendants[8]and defendant DeJong[9] each filed a motion for summary judgment seeking judgment on all claims asserted against them.

On December 27, 2012 the Delaware County defendants responded in opposition to plaintiffs’ motion for partial summary judgment.[10] On January 9, 2013 defendant DeJong filed his response in opposition to plaintiffs’ motion for partial summary judgment.[11] Also on January 9, 2013 plaintiffs filed responses in opposition to the Delaware County defendants’ summary judgment motion[12] and Dr. DeJong’s summary judgment motion.[13]

In plaintiffs’ response to the Delaware County defendants’ motion for summary judgment, plaintiffs consent to the dismissal of Counts I, VI and VII against the Delaware County defendants.[14] Additionally, at oral argument on April 18, 2013 plaintiffs’ consented to dismissal of Count IX, which asserts a state-law negligence claim against Dr. Doe.[15]

On January 30, 2013 the Delaware County defendants filed a reply brief in response to plaintiffs’ memorandum of law in opposition to the Delaware County defendants’ motion for summary judgment motion.[16]

On April 18, 2013 I heard argument on the three within motions for summary judgment and took the matter under advisement.[17] Hence this Opinion.

STANDARD OF REVIEW

Rule 56(a) of the Federal Rules of Civil Procedure permits a party to seek summary judgment with respect to a claim or defense, or part of a claim or defense. Rule 56(a) provides, in pertinent part, that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); National Association for the Advancement of Colored People "NAACP" v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2012).

For a fact to be considered material, it “must have the potential to alter the outcome of the case.” Id. (citing Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)). Disputes concerning facts which are irrelevant or unnecessary do not preclude the district court from granting summary judgment. Id.

Where a party asserts that a particular fact is, or cannot be, genuinely disputed, the party must provide support for its assertion. Fed.R.Civ.P. 56(c)(1). Rule 56(c)(1) provides that party may support its factual assertions by

(A) citing particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

When considering a motion for summary judgment, the district court must view the facts and record evidence presented “in the light most favorable to the non[-]moving party.” North Hudson, 665 F.3d at 475 (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).

If the moving party shows that there is no genuine issue of fact for trial, “the non-moving party then bears the burden of identifying evidence that creates a genuine dispute regarding material facts.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Where a defendant seeks summary judgment, the plaintiff cannot avert summary judgment with speculation, or by resting on the allegations in his pleadings, but rather he must present competent evidence from which a jury could reasonably find in his favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995)(Reed, J.).

“Ultimately, [w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Id. (quoting Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (internal quotations omitted and alteration in original).

FACTS

My September 30, 2011 Opinion granting in part and denying in part defendants’ motions to dismiss, set forth in considerable detail the facts alleged in plaintiff’s initial Complaint, which Opinion I incorporate here. Because the standard of review for purposes of adjudicating the within summary judgment motions is not the same as the standard employed in my September 30, 2011 Opinion, which adjudicated multiple motions to dismiss, I only recount here the facts pertinent to the within summary judgment motions.

Accordingly, upon consideration of the pleadings, record papers, exhibits, declarations, and depositions, and drawing all reasonable inferences in favor of the non-moving party[18], as required by the forgoing standard of review, the pertinent facts are as follows.

Plaintiffs are Reginald Dennis and Renee Dennis, husband and wife, and their son, B.D., a minor. B.D. was an infant during the time relevant to these causes of action.

Defendants are Allan R. DeJong, M.D., the Medical Director of the Child at Risk Evaluation (“CARE”) team at A.I. duPont Hospital for Children in Wilmington, Delaware;[19] the County of Delaware; and employees of the Delaware County Children and Youth Services (“CYS”). These CYS defendant employees are Mary Germond, Director; Meta Wertz, intake administrator; Beth Prodoehl, kinship administrator; Patricia McGettigan, intake supervisor; and Gina Giancristiforo, intake case-worker.[20]

Defendant Dr. Doe remains unidentified.

B.D., the first and only child of Mr. and Mrs. Dennis, was born at Christiana Hospital on September 17, 2008 following a prolonged labor and delivery.[21]

At the time of the child’s birth, an attending physician at Christiana Hospital noted that B.D.’s head was in a right occipital posterior position noted and that he had “overriding sutures”, which means that the plates of his skull had not yet completely moved to the abutting position from the overlapping position during delivery because of the extreme compression and molding of B.D.’s head during the lengthy labor and delivery.[22]

B.D. had multiple visits to pediatricians following his birth, and no evidence of pain or bruising was present. However, on two separate occasions, Mrs. Dennis noticed a single red mark, one appearing on B.D.’s collar bone, and one appearing on his back. In each instance the red mark disappeared the following morning.[23]

On November 20, 2008 Mrs. Dennis noticed a momentary episode of arm limpness and one-sided facial drooping in B.D. Additionally, B.D. was fussy and vomiting. The next day, on November 21, 2008 Mr. and Mrs. Dennis took B.D. to their family physician, who attributed B.D.’s behavior to a negative reaction to a vaccination he had recently received. However, plaintiffs’ doctor did not note any bruising or concern for trauma.[24]

B.D.’s symptoms did not improve, and on November 22, 2008, Mr. and Mrs. Dennis took B.D. to Christiana Hospital. At Christiana Hospital, a computed tomography scan (“CT scan”) of B.D. was performed, which revealed that B.D. had a left frontal subdural hematoma.[25]

Although the examination did not reveal a definite skull fracture or any bruising or external signs of trauma, Christiana Hospital issued a Report of Suspected Child Abuse and referred the matter to CYS and transferred B.D. to A.I. duPont Hospital for Children.[26]

On November 22, 2008 B.D. was admitted to duPont Hospital. When B.D. was admitted, he required assisted ventilation, but at the time of his admission, his oxygen level remained stable and he was not placed on a traditional ventilator.[27]

On November 24, 2008 B.D. was given a follow-up CT scan, Magnetic Resonance Imaging (“MRI”) and a full skeletal x-ray. B.D. was placed on a conventional ventilator for administration of the MRI. On November 26, 2008 B.D. was removed from the ventilator, but had difficulty breathing. Accordingly, he was placed back on the ventilator until November 28, 2008.[28]

Because child abuse was suspected, Dr. DeJong, who served as the medical director of the CARE team, was assigned as a consultant to evaluate whether B.D.’s injuries were caused by abuse. Multiple doctors at duPont Hospital, including Dr. DeJong, analyzed B.D.’s medical records and CT scan, MRI and x-ray reports.[29]

The doctors who analyzed B.D.’s reports identified B.D. as potentially suffering from a skull fracture, subdural hematoma, and rib fractures. However, not all the doctors who analyzed B.D.’s records agreed on the specific age of B.D.’s injuries or the whether a skull fracture could be conclusively identified.[30]

On November 24, 2008, Dr. DeJong and former defendant Edward Speedling, a social worker who worked on the CARE team at duPont, interviewed Mrs. Dennis. Mrs. Dennis told Dr. DeJong and Mr. Speedling that her labor lasted 38 hours and explained that neither she nor Mr. Dennis had done anything to harm B.D.[31]

However, Mrs. Dennis also told Dr. DeJong and Mr. Speedling about the small red marks she observed on B.D. and revealed that she had spoken to Mr. Dennis ...


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