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Kane v. Chester County Department of Children, Youth & Families

United States District Court, E.D. Pennsylvania

March 31, 2014

JEREMIAH F. KANE, as Guardian Ad Litem of K.J. and I.J.P also known as I.P., Both Minors, Plaintiff
v.
CHESTER COUNTY DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES; SARAH SCOTTO, Caseworker; SANDRA THOMAS, Supervisor; THE CHILDREN'S HOME OF READING YOUTH & FAMILY SERVICES, INC.; MICHAEL ROCK, CHOR Case Manager; TRISTA MORRISSEY; CARMEN RIVERA, Supervisor; KATHRYN REECE, Caseworker; NANCY WARWICK, Caseworker; and SHADELL QUINONES, Supervisor, Defendants

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NEIL E. JOKELSON, ESQUIRE, On behalf of Plaintiff.

GUY A. DONATELLI, ESQUIRE, On behalf of Defendants Chester County Department of Children, Youth and Families; Sarah Scotto; and Sandra Thomas.

JOSEPH L. TURCHI, ESQUIRE, On behalf of Defendants The Children's Home of Reading Youth & Family Services, Inc.; Michael Rock; Trista Morrissey; Carmen Rivera; Kathryn Reece; Nancy Warwick; and Shadell Quinones.

OPINION

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JAMES KNOLL GARDNER, United States District Judge.

TABLE OF CONTENTS

Section

Page

SUMMARY OF DECISION

JURISDICTION

VENUE

PROCEDURAL HISTORY

STANDARD OF REVIEW

FACTS

CONTENTIONS OF THE PARTIES

Contentions of CHOR Defendants

Contentions of CYF Defendants

Contentions of Plaintiff

DISCUSSION

Agency of County Improper Defendant

Count I - Section 1983

Monell Liability - Policy or Custom

Monell Liability - Failure to Train

Pattern-of-Violations Theory

Single-Violation Theory

State-Created Danger

Shocking the Conscience

Affirmative State Action

Count II - Intentional Infliction of Emotional Distress

Extreme and Outrageous Conduct

Physical Manifestation of Emotional Distress

Count III - Breach of Fiduciary Duty

Punitive Damages

Qualified Immunity

Individual Defendants in their Official Capacity

Individual Immunity -- Count I

Individual Immunity -- Counts II and III

Official Immunity

High Public Official Immunity

CONCLUSION

This matter is before the court on the Motion of Defendants, the Children's Home of Reading Youth and Family Services, Inc., Michael Rock and Trista Morrissey, to Dismiss Plaintiff's Second Amended Complaint Pursuant to Rule 12(b)(6) and (b)(1) of the Federal Rules of Civil Procedure, filed March 25, 2013

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(" CHOR Motion to Dismiss" ).[1] Also before the court is the Motion to Dismiss Second Amended Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure of Defendants The Chester County Department of Children, Youth and Families and Its Employees, Sarah Scotto, Sandra Thomas, Carmen Rivera, Nancy Reece, Katheryn Warwick and Shadell Quinones, filed March 26, 2013 (" CYF Motion to Dismiss" ).[2]

SUMMARY OF DECISION

In the within action, plaintiff Jeremiah F. Kane, as guardian ad litem of minors K.J. and I.J.P., asserts federal civil rights violations and state tort claims against defendants The Children's Home of Reading Youth and Family Services, Inc. (" CHOR" ), Michael Rock, and Trista Morrissey (collectively " CHOR defendants" ), and Chester County Department of Children, Youth & Families (" CYF" ), Sarah Scotto, Sandra Thomas, Carmen Rivera, Nancy Reece, Katherine Warwick, and Shadell Quinones (collectively " CYF defendants" ).

Plaintiff contends that defendants' failure to report an incident of sexual misconduct to the guardian ad litem and the court resulted in a deprivation of the minors' federal substantive due process rights because the minors remained in an environment where they were subjected to further abuse. Plaintiff further contends that such conduct constituted violations of the Pennsylvania state torts of intentional infliction of emotional distress and breach of fiduciary duties by defendants.

Both motions to dismiss seek to dismiss plaintiff's Second Amended Complaint in its entirety. For the reasons expressed below, the CYF Motion to Dismiss and the CHOR Motion to Dismiss are each granted in part and denied in part.

Specifically the CYF Motion to Dismiss is granted to the extent that it seeks to dismiss claims against CYF as an improper defendant. Accordingly, I dismiss all claims against CYF and grant plaintiff leave to amend his complaint and include Chester County itself as the proper defendant.

Additionally, the CYF Motion to Dismiss is granted to the extent that it seeks dismissal of the following claims in Count I which plaintiff has not adequately pled: (1) a Monell [3] municipal liability claim based on policy or custom; (2) Monell municipal liability for failure to train under a pattern-of-violation theory; and (3) state-created-danger liability. Accordingly, I dismiss such claims against the CYF

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defendants from Count I of the Second Amended Complaint.

The CHOR Motion to Dismiss is granted to the extent that it seeks dismissal of Count I based on state-created-danger liability because plaintiff's Second Amended Complaint does not adequately state such claim. Accordingly, I dismiss that claim against the CHOR defendants from Count I of the Second Amended Complaint

Furthermore, the CYF Motion to Dismiss is granted to the extent that it seeks dismissal of plaintiff's claims for intentional infliction of emotional distress and breach of fiduciary duty against defendant CYF because such claims are barred by the Pennsylvania Political Subdivision Tort Claims Act.

The CYF Motion to Dismiss and the CHOR Motion to Dismiss are each granted to the extent that they seek dismissal of minor I.J.P.'s claim for intentional infliction of emotional distress because plaintiff has failed to adequately state that claim. Accordingly I dismiss I.J.P.'s claim for intentional infliction of emotional distress against the individual CYF defendants and the CHOR defendants from Count II of the Second Amended Complaint.

Furthermore, the CYF Motion to Dismiss and the CHOR Motion to Dismiss are each granted to the extent that they seek qualified immunity for all claims against the individual defendants in their official capacities. In addition, the CYF Motion to Dismiss and the CHOR Motion to Dismiss are each granted to the extent that they seek qualified immunity for the claims in Count I against the individual defendants in their individual capacities.

However, in all other respects, the CYF Motion to Dismiss and the CHOR Motion to Dismiss are each denied.

Accordingly, as a result of these rulings, the following claims remain in plaintiff's Second Amended Complaint: (1) a claim in Count I of the Second Amended Complaint against CYF for Monell municipal liability under a single-violation theory of liability; (2) a claim in Count II of the Second Amended Complaint against CHOR, the individual CHOR defendants in their individual capacities, and the individual CYF defendants in their individual capacities for intentional infliction of emotional distress to minor K.J.; and (3) a claim in Count III of the Second Amended Complaint against CHOR, the individual CHOR defendants in their individual capacities, and the individual CYF defendants in their individual capacities for breach of fiduciary duty.

JURISDICTION

This court has original jurisdiction over the subject matter of plaintiff's 42 U.S.C. § 1983 claim based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. This court has supplemental jurisdiction over plaintiff's Pennsylvania pendent state-law claims pursuant to 28 U.S.C. § 1367.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to these claims occurred in Boyertown, Berks County, Pennsylvania, which is located in this judicial district. See 28 U.S.C. § § 118, 1391(b).

PROCEDURAL HISTORY

Plaintiff Jeremiah F. Kane, as guardian ad litem of minors K.J. and I.J.P., commenced this action on November 28, 2012 by filing a Complaint against the CYF defendants and the CHOR defendants.[4]

On December 31, 2013, the CYF defendants filed their Motion to Dismiss Pursuant

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to Rule 12(b)(6) of the Federal Rules of Civil Procedure of Defendants the Chester County Department of Children, Youth and Families and Its Employees, Sarah Scotto, Sandra Thomas, Carmen Rivera, Nancy Reece, Katheryn Warwick and Shadell Quinones.[5]

On January 25, 2013, the CHOR defendants filed their Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure of Defendants, The Children's Home of Reading Youth and Family Services, Inc., Michael Rock and Trista Morrissey.[6]

On February 6, 2013, plaintiff filed Plaintiff's Amended Complaint.[7] On February 20, 2013, the CHOR defendants filed their Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure of Defendants, The Children's Home of Reading Youth and Family Services, Inc., Michael Rock and Trista Morrissey.[8] On February 20, 2013, the CYF defendants filed their Motion to Dismiss Amended Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure of Defendants the Chester County Department of Children, Youth and Families and Its Employees, Sarah Scotto, Sandra Thomas, Carmen Rivera, Nancy Reece, Kathryn Warwick, and Shadell Quinones.[9]

On March 6, 2013, plaintiff filed the operative pleading, Plaintiff's Second Amended Complaint (" Second Amended Complaint" ).[10] By Order dated March 15, 2013 and filed March 18, 2013, I approved the parties' Stipulation of Consent Pursuant to F.R.C.P. 15(a)(2) by All Defendants to the Filing of a Second Amended Complaint and ordered that plaintiff's Second Amended Complaint be deemed appropriately filed.[11]

On March 25, 2013 the CHOR defendants filed the within CHOR Motion to Dismiss. On March 26, 2013 the CYF defendants filed the within CYF Motion to Dismiss.

STANDARD OF REVIEW

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for " failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, exhibits attached to the complaint, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires " a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly,

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550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949.[12]

In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although " conclusory" or " bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide " enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a " plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 173 L.Ed.2d at 884).

Ultimately, this two-part analysis is " context-specific" and requires the court to draw on " its judicial experience and common sense" to determine if the facts pled in the complaint have " nudged [plaintiff's] claims" over the line from " [merely] conceivable [or possible] to plausible." Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 173 L.Ed.2d at 884-885.

A well-pled complaint may not be dismissed simply because " it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).

FACTS

Based upon the averments in plaintiff's Second Amended Complaint, which I must accept as true under the applicable standard of review discussed above, the pertinent facts are as follows.

In December 2008 the mother of minors K.J. and I.J.P. placed the minors with defendant Chester County Department of Children, Youth, and Families.[13] CYF determined that the minors needed to be moved to a foster home and placed them with Angelica and David Hernandez.[14] Defendant The Children's Home of Reading Youth and Family Services, Inc. was

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responsible for supervising the activities in the Hernandez foster home placement.[15]

On January 8, 2009 plaintiff Jeremiah F. Kane, Esquire, was appointed as the guardian ad litem of the minors.[16] On January 23, 2009, the minors were adjudicated dependent and CYF and CHOR were charged with the duty to provide for their protection and safety.[17] Additionally, on January 8, 2009, Judge Jacqueline C. Cody of the Chester County Court of Common Pleas issued an Order which provided:

Any individual or agency having relevant information pertinent to the child(ren), including but not limited to medical, psychological and educational information, is hereby ordered and directed to release the same, if requested, to the above referenced attorney/guardian ad litem, pursuant to Section 6311(b)(2).[18]

Plaintiff Kane made clear to CHOR and CYF that he needed to be informed of all material information relating to the well-being and welfare of the minors.[19] Guardian ad litem Kane periodically met with representatives of CHOR and CYF to receive updates concerning the care and treatment of the minors.[20]

On February 2, 2009, CYF caseworker Kathryn Reece received a phone call from Trista Morrissey of CHOR. On that call Ms. Morrissey told Ms. Reece that during her last visit to the Hernandez foster home, Mrs. Hernandez notified her of an incident where another child, I.S., was displaying sexual behaviors toward K.J. which consisted of I.S. " humping" K.J. while both children were clothed and asking K.J. if he liked it.[21]

Ms. Morrissey told Mrs. Hernandez that she should not leave the children alone and that CHOR will be monitoring the situation very closely to ensure that nothing further occurs.[22] Ms. Reece recorded the information in the CYF Chronology (case file). As a result, Carmen Rivera, Ms. Reece's supervisor, should have been aware of the incident because she is required to review the chronology with her caseworker.[23]

Defendants CHOR, CYF, Reece, Morrissey, and Rivera all made a deliberate decision not to inform either the guardian ad litem or the court of the incident. Rather, they concealed the incident from Mr. Kane.[24]

Defendants concealed the incident from Mr. Kane many times from February 2009 until February 2010 when defendants Reece, Rivera, Scotto, and Thomas prepared numerous reports on behalf of CYF and had contact with plaintiff Kane wherein they failed to mention the incident of sexual misconduct which occurred on February 2, 2009.[25] Such withholding of information was a deliberate and conscious decision which prevented plaintiff Kane and the court from attempting to remediate

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past harm and prevent future harm to K.J. and I.J.P.[26]

On September 15, 2009, after a home visit conducted by defendant Michael Rock on behalf of CHOR and defendant Sarah Scotto on behalf of CYF, Mr. Rock and Ms. Scotto reported that K.J. still gets angry in the home and was quiet and not interested in conversations. Defendants failed to correlate this this information with any reference to the sexual misconduct.[27]

On November 25, 2009, I.J.P. underwent a psychological evaluation by Dale K. Horst, M.A. in order to assess I.J.P.'s medical necessity for behavioral health rehabilitation services.[28] Although all defendants had knowledge of the sexual misconduct, they knowingly failed to communicate such information to Mr. Horst so that a proper evaluation could be done for I.J.P.[29]

On December 11, 2009, CYF transferred the minors' case internally from the CYF unit for foster case to the CYF adoption unit where Nancy Warwick and her supervisor Shadell Quinones worked.[30] Defendants Warwick and Quinones had the duty to review the entire CYF Chronology upon transfer of the case. Yet neither defendant informed the guardian ad litem or the court about the sexual misconduct.[31]

On January 7, 2010, K.J. was psychologically evaluated by Michael Boerger, M.S. who stated that K.J.'s primary clinical concerns are related to his mood disturbance.[32] The report stated that the issues were believed to be related to his history of trauma as well as placement in foster care.[33]

On February 8, 2010 Mrs. Hernandez, the foster mother, told defendant Rock that K.J. and his brother I.J.P. were getting undressed in the bedroom and while they were naked, K.J. came up behind I.J.P., who had leaned over, and K.J. had his penis hear I.J.P.'s rear buttocks and motioned as if he was having sex with his brother.[34]

On March 25, 2010, K.J. underwent a psychiatric evaluation by Marco Ercole, M.D., whose evaluation report stated that there was no material in the record concerning a history of presenting problems and that K.J.'s " problematic behavior is something of a mystery. It is not clear to me what may be driving his problem behavior in school and at home" .[35] Defendants did not provide Dr. Ercole with any information concerning the sexual behavior and contacts of K.J.[36]

On April 5, 2010, defendant Rock filed an incident report which stated that the two boys were " humping each other" all weekend long and that both boys were aroused by the act.[37] The report failed to describe the conduct on February 8, 2010.[38]

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The CYF Chronology described another incident where:

[another foster child] was on top of K.J., humping him, and saying " you be the girl and I'll be the boy" and " say you like it, say you like it" . Mrs. Hernandez said when she [c]aught them she took the blanket off them and separated them. She stated that their pan[t]s were on but unbuttoned. Both children had erections. Mrs. Hernandez stated that this incident was provoked by [the other foster child] and that K.J. looked like he was going along with it.[39]

On April 12, 2010, Judge John L. Hall of the Court of Common Pleas of Chester County terminated the parental rights of both parents of each minor.[40] At this time, guardian ad litem Kane was first informed about the sexual activity taking place in the foster home.[41]

Plaintiff Kane then reviewed the CYF Chronology and read about the sexual activity which had taken place in the foster home.[42] Plaintiff Kane then contacted CYF and defendant Warwick and told her to remove the minors from their foster placement as soon as possible.[43] The minors were removed from the Hernandez home on April 15, 2010.[44]

During an interview at the Joseph J. Peters Institute on July 23, 2010, minor I.J.P. disclosed that he was abused by another foster child in the Hernandez home, that he was touched in the private parts and that he touched the other child's private parts.[45] I.J.P. further disclosed that the boys performed oral sex on one another and would put their genitals on one another with their clothes on.[46]

After interviewing K.J., Dr. Linda Shope drafted a report dated August 26, 2010 which stated:

Because the first incident between [the other foster child] and K.J. 'flew under the radar' and was never addressed formally, it is possible that a 'message' was thus given to the Hernandez's that this incident and those behaviors were not of enough concern to require intervention. If other sexualized behaviors had occurred, a foster family might conclude, after the lack of response to the first incident, that the behaviors were not serious, or that if they did report them, nothing would happen.[47]

The report went on to state " As such K.J. is assigned a diagnosis of PTSD ...." [48]

CONTENTIONS OF THE PARTIES

Contentions of CHOR Defendants

The CHOR Motion to Dismiss seeks to dismiss the Second Amended Complaint on the grounds that the conduct of the CHOR defendants is discretionary conduct and, as such, is protected by the doctrine of qualified immunity. The CHOR defendants further argue that Count I should be dismissed because plaintiff fails to state a Section 1983 claim. ...


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