United States District Court, W.D. Pennsylvania
June 13, 2014
JANE DOE 1 and JANE DOE 2, a minor child, by JANE DOE 2's next friend andparent, JANE DOE 1, Plaintiffs,
COUNTY OF FAYETTE and ANGELA ZIMMERLINK, in her official capacity and individually, Defendants.
MEMORANDUM OPINION AND ORDER
MARK R. HORNAK, District Judge.
In this case, the Plaintiff Doe # 1, on behalf of herself and a minor child, Doe #2, brings federal Constitutional claims (Fourth, Ninth and Fourteenth Amendments), and related supplemental Pennsylvania law statutory and common law claims against the County of Fayette (PA) and one of its three-member Board of County Commissioners, Angela Zimmerlink.
Doe #1 asserts that she sent an email to another Commissioner (we can call him Commissioner #2) complaining to him about what Doe #1 thought was unsatisfactory performance by the County's Children and Youth Services ("CYS") Department in dealing with reports of child abuse. She says that she set out the given name of the minor child Doe #2 in that email. She also says that Commissioner #2 then forwarded that email to a number of others inside and outside of County government to set up a meeting/instigate a discussion about the matters raised in that citizen complaint. Doe #1 then says that Zimmerlink sent the email along to "a number" of local newspapers. She does not plead that any newspaper publicized the given names of either Doe, she does not tell us what (if anything) any newspaper wrote about any of this, she does not specifically say what the email or resulting email chain said, she does not attach to her Complaint (or set out the sum and substance ot) any emails, not even the one that she sent, she does not tell the Court or the parties who specifically received it or what they did with it, she does not name the newspapers, and she never sets out what purported privacy right of hers (as opposed to Doe #2) was allegedly violated. She provides no facts upon which this Court can conclude, or not, that the Complaint alleges the claimed Constitutional violation.
In sum, the Does have filed a Complaint short on the specific, plausible facts that could make out a claim in this context. The principle of "where there is smoke, there must be fire" no longer works (if it ever did) in the context of federal civil pleading. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations here are general and to a large degree speculative as to the claims asserted, and do not, as pled, "raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]". See Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
Based on the Court's consideration of the papers filed of record, the stipulations of the parties, and the matters presented to the Court at the hearing/argument on June 11, 2014 in open Court as to the Defendants' Motions to Dismiss [ECF Nos. 11 and 16], it is ORDERED as follows.
Pursuant to the stipUlations of the parties on the record in open Court, all claims as to all Defendants allegedly arising under the Pennsylvania Constitution (Count II) are DISMISSED with prejudice; all claims against Defendant Angela Zimmerlink allegedly arising under 42 U.S.C. § 1983 and the United States Constitution made against her in her official capacity (a portion of Count I) are DISMISSED with prejudice, in that all such claims merge with such claims against the County of Fayette; all claims against the County of Fayette for an alleged violation of the Pennsylvania Child Services Protection Law ("CSPL"), 23 Pa. Cons. Stat. § 6340 (Count III), are DISMISSED with prejudice as being barred by the doctrines of governmental/sovereign immunity under the Pennsylvania Political Subdivision Tort Claims Act ("TCA"), 42 Pa. Cons. Stat. §§ 8541-8564; all claims alleged on behalf of Plaintiff Doe #1 for common law invasion of privacy against Defendant Zimmerlink (Count IV) are DISMISSED with prejudice as being barred as a matter of law by the applicable Pennsylvania statute of limitations.
Moving on to the matters not the subject of a stipulation, all claims against Defendant Zimmerlink for violation of 23 Pa. Cons. Stat. § 6340 (Count III) are hereby DISMISSED with prejudice. The allegations of the Complaint are that Zimmerlink disseminated to one or more Uniontown (PA) newspapers an email containing a report of alleged child abuse including the name of the child victim. The Complaint further alleges that Zimmerlink received that email directly from a fellow elected member of the Fayette County (PA) Board of Commissioners, who had received it directly from Doe #1. The confidentiality provisions of Section 6339 of the CSPL make such materials confidential only when in the possession of the Pennsylvania Department of Welfare or the county child welfare agency. 23 Pa. Cons. Stat. §§ 6303, 6339. See also Burns v. Alexander, 776 F.Supp.2d 57, 67-68 (W.D. Pa. 2011); Dauphin Cty. Soc. Servs. for Children & Youth v. Dep't ofPub. Welfare, 855 A.2d 159, 164-65 (Pa.Commw. Ct. 2004). Consequently, the materials alleged to be received and then disseminated by Zimmerlink are not covered by the statutory confidentiality provisions of Section 6339. Further, because the claim alleged against Zimmerlink in this Count of the Complaint is not one falling within the exceptions to governmental immunity under the TCA, 42 Pa. Cons. Stat. §§ 8545, 8550, and because as a matter of law, such conduct is not rendered illegal by the CSPL, such immunity would also be applicable as to the claims against Zimmerlink. See Sameric Corp. v. City of Phila., 142 F.3d 582, 600-01 (3d Cir. 1998). For the same reason, the claim alleged against Zimmerlink at Count IV of the Complaint as to Jane Doe 2 is likewise DISMISSED with prejudice.
The remaining claims alleged in Count I of the Complaint against the County of Fayette and Zimmerlink in her individual capacity (an allegedly unconstitutional invasion of privacy) are DISMISSED without prejudice and with leave to amend (once). See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 FJd 247, 253 (3d Cir. 2007).
Why is that the right course?
This Count alleges in conclusory terms an alleged custom, policy, and/or practice of the County, without any plausible factual specificity as to the contours of those allegations, or the custom, practice, and/or policy at issue. Further, while the heart of the allegations is the content of an email, there are no specific allegations of the content of such email and related emails, nor the scope or nature of their initial or subsequent dissemination, such that the Court is in any position to determine, as it must, whether Count I alleges a Constitutional violation by the County and/or Zimmerlink of the Plaintiffs' right of privacy. The Court also therefore has no basis to assess whether the Complaint at Count I alleges the violation of a clearly established Constitutional right in order to determine, as it must, whether the claims alleged in Count I as to Zimmerlink are barred by the doctrine of qualified immunity. See Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2083 (2011).
Further, the allegations of Count I of the Complaint are so generalized, vague, and conclusory so as to provide no plausible factual basis for or notice of the alleged custom, policy, or practice of the County that would allow it to be liable, vel non, in a claim asserted via 42 U.S.C. § 1983, as opposed to on the basis of a generalized notion of respondeat superior, which may not form the basis for such liability. See Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690 (1978). Likewise, there are no sufficient plausible factual allegations that would allow for the conclusion that the actions allegedly taken by one member of a three-member Board of County Commissioners can be fairly attributed to the County for purposes of Section 1983. See Pembauer v. City ofCincinnati, 475 U.S. 469, 478-484 (1986).
That all said, the conduct that is alleged, albeit in a conclusory fashion, does at least raise the specter of the possible implication of the Constitutional right of privacy as recognized by our Court of Appeals. Zimmerlink is concededly an elected County Commissioner, which would check the "state action/color of state law" pleading box, and the Complaint does generally allege a communication to one or more persons plausibly outside of the "need to know" group in County government of what may tum out to be information entitled to coverage by a recognized right of privacy (at least as to Doe #2). Whether any of that can be pled with the requisite specificity, whether it will demonstrate a "clearly established" Constitutional right that would allow the Does to dodge the application of qualified immunity as to Zimmerlink, and whether there is a plausible factual basis to support the legal conclusion that the County could be on the hook for Zimmerlink's conduct all remains to be seen. Given all of that, however, the Court cannot conclude that any effort to amend the Complaint would be futile as a matter of law. Our Circuit precedent teaches that in such a case, allowing at least one effort at amendment is the proper course.
Plaintiffs may therefore file an amended Complaint, once, in conformity with the matters set forth above, on or before July 1, 2014. Should they fail to do so, the dismissal of Count I will be deemed to be with prejudice without further Order of this Court, which would end the case. Should they do so, the Defendants shall then respond as permitted by Fed.R.Civ.P. 12 within 21 days of the date of the filing of such Amended Complaint.