United States District Court, Western District of Pennsylvania
REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO DISMISS (ECF No. 5)
Lisa Pupo Lenihan Chief U.S. Magistrate Judge
For the reasons set forth below, it is respectfully recommended that the Defendants’ October 3, 2013 Motion to Dismiss (ECF No. 5) be granted on jurisdictional grounds. Plaintiff’s pro se Complaint sets forth causes of action which, on its face, are clearly jurisdictionally barred under Rooker-Feldman and/or from which this Court should abstain in accordance with the Younger doctrine. Further, any opportunity to amend would be futile, given the facts of record, and the bases of liability asserted in Plaintiff’s Complaint.
II. FACTUAL AND PROCEDURAL HISTORY
Plaintiff Ruth Mutahi (“Mutahi”) has objected to the conduct of and determinations made by the Allegheny County Office of Children Youth and Family (hereafter “Allegheny CYF”), its employees, and the Allegheny County Court of Common Pleas in proceedings related to the custody of her minor son.
Plaintiff was granted in forma pauperis (“IFP”) status on July 31, 2013 and her Complaint in this action was filed that day (ECF No. 2). Mutahi complains that her minor son was placed in the custody of Allegheny CYF – on allegations of child abuse - in November, 2012 and that she met with Defendant Schemm the next day, “did not request housing or financial assistance”, but entered into a December 19, 2012 “contract” with Allegheny CYF which was a “family reunification plan” under which she was to be provided with housing and reunified with her son by June 19, 2013. The record of the Allegheny County Court indicates that Petition for Dependency hearings were convened, with Plaintiff present, on January 2, January 15 (at which point the Order also notes that Plaintiff was to “receive supervised visits”), and January 23 but were repeatedly continued – first for Petitioner to obtain counsel, then for the child to be present, and then to locate the father (who is in Kenya). Plaintiff did not appear for the February 12th Petition hearing and it was again continued for her to be present. Plaintiff did not appear for the February 21, 2013 hearing, but was represented by her then-counsel, David Sheldon.
Correspondence of record to Plaintiff from the Juvenile Court Project dated March 11, 2013 indicates that Plaintiff’s designated Parent Advocate was unable to reach her/had no current contact information and she was not present for this hearing; medical and educational rights were assigned to the foster caregiver, Ms. Washington; and the Permanency Review Hearing was scheduled for May 22, 2013 at which time the Court would assess progress made toward reunification. The actual Court of Common Pleas records reflect an Order of Adjudication and Dispostion dated February 21, 2013 (i.e., several months prior to the filing of this action) finding Plaintiff’s son to be “by clear and convincing evidence” a “dependent child” and ordering his transfer to foster care. The record also indicates that on March 27, 2013, Plaintiff’s Juvenile Court Project Parent Advocate, David Sheldon, filed a Motion to Withdraw, advising the Court that although she was accepted as a client on January 2, Plaintiff subsequently informed her Parent Advocate that she did not wish to be represented and notification was provided to her last known address. Plaintiff asserts that on March 27 she “sought protection and refuge” at a homeless shelter for women in Washington, D.C. Plaintiff did not appear for any interim hearings, and by Order of May 23, 2013, the Court of Common Pleas find that she had made “no compliance with the permanency plan” for reunification, that “reasonable efforts [had] been made by the Allegheny County Office of Children, Youth and Families”, and that Plaintiff had made “no progress toward alleviating the circumstances which necessitated the original placement”; accordingly, her minor son was to remain in foster care. Plaintiff attests that on June 7 she was arrested for failure to appear for a trial conference and that she was acquitted of charges regarding care of her minor son on July 26, 2013. The record of the Court of Common Please reflects a Permanency Review Order dated August 20, 2013 determining that Plaintiff was residing in D.C. and had no visits, that there was no progress toward alleviating the original relevant circumstances, that the child was doing well and was in agreement with placement, that the child would remain in foster care with visitations by Plaintiff if requested, and that the goal remained ultimate return to Plaintiff.
Plaintiff complains that she was not provided housing or reunited with her minor son and that he was placed in foster care, and rights for his care transferred, without her participation. She asserts causes of liability based on breach of contract (“To date Plaintiff continues to live in shelter because Defendant has failed in providing the promised housing and the child continues to live in foster care.”); negligence (“Any reasonable person would have foreseen that to harass plaintiff out of her home prior to obtaining alternative housing would have resulted to homelessness and inability to reunify parent and child.”); multiple violations of her civil rights under 42 U.S.C. Section 981 because she was “denied a right to be a party and to give evidence” in proceedings that resulted in changes to custody and legal rights as to her minor son; two violations of her rights under 42 Pa.C.S. Section 6301 et seq. on similar grounds and because placement of her son in foster care was contrary to the statutory requirement that separation “occur only when necessary for the child’s welfare, safety or health”; and three violations of her rights under 11 P.S. 2633 based on her son’s placement with a non-relative, in an environment that does not “maintain and reflect” his culture, and without visitation. The relief sought includes damages and the “release of [her son] from [the State Court ordered] placement”.
Defendants filed a Motion to Dismiss the Complaint on October 3, 2013 (ECF No. 5) to which Plaintiff’s response was due by October 25th. On October 16th, Plaintiff filed a Motion to Amend her Complaint. By text Order of December 30, 2013, this Court denied that Motion without prejudice, explaining to the pro se Plaintiff that the proposed amendments to her Complaint did “not address the issues raised in the Motion” to Dismiss, and granting her sua sponte an extension to January 31, 2014 to file a response to the Motion to Dismiss. Plaintiff has failed to file a response or any other pleading since October 16th.
III. STANDARD OF REVIEW
A Motion to Dismiss is an appropriate means of challenging the legal sufficiency of the Complaint. See, e.g., Sturm v. Clark, 835 F.2d 1009, 111 (3d Cir. 1987). It is to be granted where the Complaint fails to set forth facts stating “a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007). See also Ashcroft v. Iqbal, 129 S.Ct.1937, 1949 (May 18, 2009) (citing Twombly, 550 U.S. at 555-57). In Iqbal, the Supreme Court further explained that “[t]he plausibility standard is not akin to a ‘probability requirement’, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
Shortly therafter, in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. Aug. 18, 2009), the United States Court of Appeals for the Third Circuit described the Rule 12(b)(6) standard as requiring that civil complaints set out “sufficient factual matter” to “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Fowler, 578 F.3d at 210 (quoting Iqbal). And it set forth the following two-prong test:
First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’ In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts. . . . This ‘plausibility’ ...