United States District Court, W.D. Pennsylvania
JAMES K. VUKICH, Plaintiff,
TONI ROITZ, et al, Defendants.
Stewart Cercone United States District Judge.
James K. Vukich (“Plaintiff”) commenced this
pro se action on April 27, 2015, by filing a Motion
for Leave to Proceed In Forma Pauperis (ECF No. 1)
with an attached Complaint. ECF No. 1-1. In his Complaint,
Plaintiff alleges that his Fourth Amendment rights were
violated when he was illegally detained, and his child
unlawfully removed from his custody, during an interaction
with police on April 25, 2013. Compl. ¶¶ 88-91.
Plaintiff further alleges that caseworkers for the Lawrence
County Children and Youth Services Agency (“CYS”)
deprived him of his due process rights in various ways
following the removal of his child from his custody.
Id. ¶¶ 92-97. Plaintiff names three CYS
caseworkers - Toni Roitz, Stephanie Kelly, and Miss Matteo -
and several New Castle police officers as defendants.
Id. ¶¶ 4-8.
Standard for Review
United States Court of Appeals for the Third Circuit has
instructed the district courts to utilize a two-step analysis
to determine whether to direct service of a complaint where
the plaintiff seeks to proceed in forma pauperis.
See Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir.
1990). “First, the district court evaluates a
litigant's financial status and determines whether (s)he
is eligible to proceed in forma pauperis under §
1915(a). Second, the court assesses the complaint under
[§ 1915(e)(2)] to determine whether it is
frivolous.” Id. (citing Sinwell v.
Shapp, 536 F.2d 15 (3d Cir. 1976)); Schneller v.
Abel Home Care, Inc., 389 F. App'x 90, 92 (3d Cir.
2010), cert. denied, __ U.S. __, 131 S.Ct. 1477, 179
L.Ed.2d 302 (2011). The Court finds the Plaintiff to be
without sufficient funds to pay the required filing fee.
Thus, he will be granted leave to proceed in forma
U.S.C. § 1915(e)(2), as amended, states in relevant
part: “[t]he court shall dismiss the case at any time
if the court determines that-... (B) the action or appeal-(i)
is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” A
claim is frivolous if it: 1) is based upon an indisputably
meritless legal theory and/or, 2) contains factual
contentions that are clearly baseless. Neitzke v.
Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d
338 (1989). Whether a complaint fails to state a claim under
§ 1915(e) is governed by the same standard applicable to
motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999), which requires the court to determine
whether the complaint contains “sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quotations omitted). However, before dismissing a complaint
for failure to state a claim upon which relief may be granted
pursuant to § 1915, a court must grant the plaintiff
leave to amend his complaint, unless the amendment would be
inequitable or futile. See Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
March 28, 2013, Plaintiff's son, James K. Vukich II
(“JKV”), was born. Compl. ¶ 10. The mother
of the child, Dolly Brown, does not have custody of any of
her other four children. Id. ¶¶ 11-12.
Brown's fourth child, Fiona Hunt, is the subject of an
open case with CYS. Id. ¶ 13. Consequently,
Plaintiff and Brown agreed that Brown would have full custody
of JKV. Id. ¶ 14.
April 25, 2013, Plaintiff and JKV were in New Castle,
Pennsylvania, for a doctor's appointment and to visit
Brown. Id. ¶ 24. While at a local mall,
Plaintiff and JKV were detained by police officers and told
that CYS agents wanted to speak with him. Id. ¶
27. Roitz and Matteo arrived and accused Plaintiff of being
homeless. Id. ¶ 28. Based on this allegation,
which Plaintiff denied, Roitz and Matteo directed officers to
seize JKV and remove him from Plaintiff's custody.
Id. ¶¶ 34-36. JKV has not been returned to
Plaintiff. Id. ¶ 80.
72-hour hearing was apparently held on April 29, 2013.
Id. ¶ 72. Plaintiff was not informed of the
hearing or present for the hearing. Id. ¶¶
72, 75. An adjudication hearing was held on November 19 or
20, 2013. Id. ¶ 76. A termination hearing was
held on February 12, 2015. Id. ¶ 37.
the course of the proceedings, Roitz presented Plaintiff with
a parenting plan for JKV that was apparently a copy of the
parenting plan for Brown's fourth child, Fiona Hunt.
Id. ¶ 63. Kelley later presented Plaintiff with
the same parenting plan. Id. ¶ 79. Plaintiff
refused to sign the parenting plan because he disagreed with
various provisions therein, including the requirement that he
seek a drug and alcohol evaluation, a mental health
evaluation, and attend parenting classes. Id. ¶
65. Plaintiff contends that he was not permitted to
participate in the drafting of the parenting plan or advised
of his right to appeal the parenting plan. Id.
on the foregoing allegations, Plaintiff filed the instant
ten-count Complaint. In Counts I through IV, Plaintiff
contends that Roitz, Matteo, and the police officer
defendants violated his Fourth Amendment rights during an
unlawful detention on April 25, 2013. In Count V, Plaintiff
contends that Roitz and Matteo violated his due process
rights by depriving him of a prompt post-deprivation hearing
after his child was removed from his care. In Counts VI
through X, he asserts that Roitz and Kelley violated his
constitutional rights by giving him parenting plans based on
those used for other children, refusing to allow him to
participate in drafting a parenting plan for his child, and
failing to inform him of his right to appeal the parenting
initial matter, the Court notes that Plaintiff's Fourth
Amendment allegations (set forth in Counts I through IV) are
untimely. The statute of limitations for claims pursuant to
42 U.S.C. § 1983 in Pennsylvania is two years. Kach
v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (citing 42
Pa.Con.Stat. § 5524(2)). Plaintiff's Complaint was
filed on April 27, 2015, over two ...