Bruce Bayer v. Monroe County Children and You ( 2011 )


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  •                                           NOT PRECEDENTIAL
    
       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                ______________
    
                    No. 09-4013
                  ______________
    
          BRUCE BAYER, on his own behalf,
            and on behalf of minor children
                 G.Z., P.Z., and J.B.;
         ANGELA BAYER, on her own behalf,
            and on behalf of minor children
                  G.Z., P.Z., and J.B.
    
                                                      Appellants
    
                         v.
    
                 MONROE COUNTY
         CHILDREN AND YOUTH SERVICES;
       COMMONWEALTH OF PENNSYLVANIA;
           MONROE COUNTY; SAT BAHL;
        WILLIAM BROWNING; HEATHER DRY;
            BRENDA RANTE; P. J. GEESE;
      ELIZA LONCOLA-HICKS; TARA SURRAGO;
        IRETHA NOLLS; DETECTIVE ROBSON;
     SGT. BOWMAN; CHIEF JOHN LAMBERTON;
           MARGHERITA WORTHINGTON;
         PRESIDENT JUDGE RONALD VICAN;
      ELIZABETH WEEKS; DAVID WILLIAMSON;
          BARRY COHEN; DAWN THORTON;
         ADEL HEINLEIN; DR. JUDY MUNOZ;
        DONNA ASURE; ROBERT NOTHSTEIN;
          WALTER CLATCH; ELLIS KARLE;
          DR. TAROLI; DR. COLEEN COPPER;
                DISTRICT ATTORNEY
           MARK PAZUHANICH, Former DA;
           DISTRICT ATTORNEY'S OFFICE
                 MONROE COUNTY;
         REGIONAL CHILDREN AND YOUTH;
    FOSTER CARE DIVISION OF MONROE COUNTY
    
                         1
                                         ______________
    
                        On Appeal from the United States District Court
                            for the Middle District of Pennsylvania
                            (D.C. Civil Action No. 3-04-cv-02505)
                         Honorable A. Richard Caputo, District Judge
                                       ______________
    
                                     Argued December 16, 2010
    
        BEFORE: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges
    
                                     (Filed: February 9, 2011)
                                          ______________
    
    Peter G. Loftus (argued)
    Loftus Law Firm
    P.O. Box V, 1207 N. Abington Rd.
    Waverly, PA 18471
    
       Attorney for appellants
    
    Gerald J. Geiger (argued)
    Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri
    712 Monroe St.
    Stroudsburg, PA 18360
    
       Attorneys for Monroe County appellees
    
    Harry T. Coleman (argued)
    41 North Main St.
    3rd Floor Suite 316
    Carbondale, PA 18407
    
       Attorneys for Pocono Mountain Regional
       Police Department appellees
    
    Calvin R. Koons
    John G. Knorr, III
    Office of the Attorney General
    Appellate Litigation Section
    15th Floor, Strawberry Square
    Harrisburg, PA 17102
    
                                                2
          Attorneys for Commonwealth of Pennsylvania appellees
    
                                         ______________
    
                                   OPINION OF THE COURT
                                       ______________
    
    GREENBERG, Circuit Judge.
    
           This matter comes on before this Court on appeal from a series of seven orders the
    
    District Court entered, the last one on September 23, 2009, granting the various
    
    defendants summary judgment and leaving plaintiffs-appellants without any cognizable
    
    claims and without any defendants against whom to assert any possible claims. In
    
    particular the orders from which plaintiffs appeal were entered on September 12, 2005,
    
    September 29, 2005, February 16, 2006, June 29, 2006, January 10, 2007, October 15,
    
    2007, and September 23, 2009. For the reasons we discuss in this opinion, we will affirm
    
    all of the orders from which plaintiffs have appealed.
    
                                                 I.
    
           Because this case has been before this Court on an earlier appeal, we rely in part
    
    on our prior opinion in this case in Bayer v. Monroe County Children and Youth
    
    Services., 
    577 F.3d 186
     (3d Cir. 2009), in reciting the relevant factual and procedural
    
    history. As we described in our prior opinion:
    
                         Plaintiffs P.Z. and G.Z. were minor children (9 and 11
                  years old, respectively) at the time of the events at issue in
                  this case. Plaintiff Angela Bayer is their biological mother,
                  and Bruce Bayer, Angela's second husband, is their
                  stepfather. Angela Bayer had primary custody of the
                  children, and the children's biological father, Gabriel Zhanay,
                  lived elsewhere and had visitation rights. According to
    
                                                 3
                  Angela Bayer's testimony, Zhanay was allowed to take the
                  children for visits for part of one day each month.
    
    Id. at 188-89. On Friday, January 10, 2003, an unidentified individual placed a telephone
    
    call to the Monroe County Children and Youth Services (MCCYS) reporting that the two
    
    minor children, G.Z. and P.Z., had been abused sexually by their biological father,
    
    Gabriel Zhanay. Id. at 189. This call did not initiate the first contact between plaintiffs
    
    and MCCYS, as
    
                  [a]ccording to defendants, „[p]rior to January 14, 2003, P.Z.
                  and G.Z. were interviewed not less than ten times by CYS
                  regarding allegations of abuse.‟ These allegations included
                  that their biological father had been serving the children
                  alcohol, teaching them to steal, physically abusing them,
                  showing them pornography, engaging in sexual acts in their
                  presence, and encouraging self-mutilation. Defendants note
                  that, when interviewed, the children „often recanted their
                  statements.‟ Plaintiffs do not dispute the frequency of prior
                  contact with Monroe County Children and Youth Services,
                  but deny P.Z. and G.Z. „“often” recanted their stories.‟ The
                  parties also dispute whether the Bayers, or the children
                  themselves or their therapists, were responsible for reporting
                  abusive conduct to Monroe County Children and Youth
                  Services.
    
    Id. at 189 n.1 (citations omitted) (alteration in original). On the same date as the
    
    telephone call, January 10, 2003, as a result of the allegations, Detective Michael Robson
    
    of the Pocono Regional Police Department served plaintiffs Angela and Bruce Bayer, the
    
    mother and step-father of G.Z. and P.Z., with a notice of placement regarding protective
    
    custody. Id. at 189. Pursuant to that notice, the children were removed from their home
    
    
    
    
                                                  4
    and placed in protective custody during an investigation of the children‟s biological
    
    father concerning the allegations of sexual abuse.1 Id.
    
           Three days later, on Monday January 13, MCCYS caseworker Heather Dry
    
    forwarded the information regarding the alleged abuse and removal of the children from
    
    the home to Elizabeth Weeks, the agency‟s solicitor. Id. The following day, January 14,
    
    Weeks filed an emergency petition in the Monroe County Court of Common Pleas
    
    seeking an order authorizing MCCYS to take custody of the children, and Common Pleas
    
    Judge Margherita Worthington granted the petition on the same day. Id. at 189-90.
    
           Two days later, there was a hearing on the custody matter before Judge
    
    Worthington at which the biological parents, as well as the children, appeared and were
    
    represented by counsel. Id. at 190. At that hearing the parties reached an agreement that
    
    the children would remain in the custody of MCCYS and undergo psychological
    
    evaluation and that there would be no contact between the parents and the children until
    
    the next court hearing on February 20. The biological parents stated on the record that
    
    they understood and consented to that agreement, though Angela Bayer claims that she
    
    was under duress at that time.
    
           On January 28, MCCYS determined that the sexual assault allegations against the
    
    children‟s biological father were unfounded.2 In accord with that finding, at the February
    
    
    
    1
     The parties dispute whether the police took the children into custody or whether Angela
    and Bruce Bayer brought the children to MCCYS. See Bayer, 577 F.3d at 189. It is not
    necessary for us to resolve that dispute on this appeal or to remand the case to the District
    Court for resolution of that question.
    
                                                  5
    20 hearing MCCYS recommended that MCCYS return the children to the Bayers‟
    
    custody and the Court concurred with that recommendation and ordered the return of the
    
    children. The Court specifically noted that there had been reasonable efforts to prevent
    
    placement with MCCYS, but that the parties agreed on protective custody while
    
    represented by counsel. Moreover, the Court believed that the allegations of sexual abuse
    
    and the need for psychological evaluations showed that protective custody had been
    
    necessary and was in the best interest of the children.
    
           In the aftermath of the foregoing proceedings, Angela and Bruce Bayer, on behalf
    
    of themselves and the minor children, G.Z. and P.Z., and the Bayers‟ biological son J.B.,
    
    who was not removed from the home, filed a pro se complaint on November 18, 2004,
    
    asserting numerous claims against almost equally numerous defendants under various
    
    provisions of state and federal law.3
    
           The District Court issued a series of six orders and associated written opinions in
    
    response to motions filed by the parties, the end result being that only plaintiffs‟ section
    
    1983 procedural due process claims against two defendants—Heather Dry, a caseworker
    
    2
      MCCYS continued its investigation into the psychological health of the children and
    investigated whether the children had been coached to claim that their father sexually
    abused them or had made up the stories on their own.
    3
      On December 22, 2004, the District Court ordered plaintiffs to retain an attorney to
    represent the minor children, but plaintiffs did not comply with that order and
    consequently the court dismissed the children from the suit on April 8, 2005.
    Subsequently, however, the children came to be represented and the Court reinstated
    them as plaintiffs on June 23, 2006. On January 10, 2007, the Court clarified that,
    although the minor children had been reinstated as plaintiffs, they were entitled to pursue
    only the claims that had not been dismissed prior to plaintiffs‟ June 23, 2006 motion to
    reinstate the minor children as plaintiffs. Plaintiffs do not challenge that ruling on appeal.
    
                                                  6
    at MCCYS, and Sat Bahl, her supervisor—survived summary judgment. Though Dry
    
    and Bahl claimed that they were immune from plaintiffs‟ action, the District Court ruled
    
    that neither was entitled to either absolute or qualified immunity, and that plaintiffs could
    
    present evidence in support of their section 1983 Fourteenth Amendment procedural due
    
    process claim against them. The crux of plaintiffs‟ claim was that the failure to hold a
    
    court hearing until six days after the minor children had been removed from the Bayer
    
    household and placed in protective custody was a violation of plaintiffs‟ constitutional
    
    rights.
    
              Dry and Bahl appealed to this Court, and in an opinion dated August 14, 2009, we
    
    reversed the order of the District Court denying Dry and Bahl immunity as we concluded
    
    that they were entitled to at least qualified immunity.4 Bayer, 577 F.3d at 191-93. We
    
    held that even assuming “that plaintiffs had a constitutional right to a post-deprivation
    
    hearing within 72 hours and that this right was clearly established at the relevant time, we
    
    consider it objectively reasonable for defendants to have believed, under the law existing
    
    at the time, that their particular conduct in this case was lawful and in keeping with this
    
    right.” Id. at 193. We agreed with Dry and Bahl
    
                    that they could reasonably have believed they had discharged
                    their responsibilities with respect to plaintiffs‟ procedural due
                    process rights by advancing the case to the point where a
                    hearing could take place within the constitutionally prescribed
                    time frame, and could reasonably have expected that their
    
    
    4
      Although we discussed the issue, we did not decide whether Dry and Bahl were entitled
    to absolute immunity because our ruling that they were entitled to qualified immunity
    rendered a determination with respect to absolute immunity unnecessary to a resolution
    of the case.
                                                   7
                  attorney and the court would hold the hearing in a timely
                  fashion.
    
    Id. (citation and internal quotation marks omitted). We explicitly declined to impose a
    
    duty on MCCYS employees to “intervene in the court‟s scheduling of the subsequent
    
    dependency hearing.” Id. On remand, the District Court on September 23, 2009, entered
    
    an order granting Dry and Bahl summary judgment.
    
           Inasmuch as the District Court had dismissed plaintiffs‟ case against all of the
    
    defendants except for Dry and Bahl before their appeal, the order on remand left
    
    plaintiffs without any claims to assert and without any defendants against whom to assert
    
    any possible claim. Plaintiffs now appeal to this Court, contending that the District Court
    
    erred in: (1) dismissing their section 1983 Fourteenth Amendment procedural due
    
    process claims; (2) dismissing their section 1983 Fourteenth Amendment substantive due
    
    process claims; (3) ruling that certain defendants were entitled to qualified immunity; (4)
    
    invoking the Rooker-Feldman doctrine; (5) dismissing their claims brought pursuant to
    
    Pennsylvania state law; and (6) ruling that punitive damages were not appropriate in the
    
    circumstances of this case.5 At oral argument plaintiffs‟ counsel clarified that they were
    
    limiting their challenges to the District Court‟s rulings with respect to the following
    
    defendants: P.J. Geese, a caseworker at MCCYS; Detective Michael Robson of the
    
    Pocono Mountain Regional Police; and Monroe County/ MCCYS. The District Court
    
    
    5
     Plaintiffs also challenge the District Court‟s determination that Bruce Bayer, the step-
    father of P.Z. and G.Z., lacked standing to bring suit. Here, the crux of plaintiffs‟
    complaint relates to the custody of P.Z. and G.Z., and, because Bruce Bayer lacked any
    legal or other right to custody of those children, we conclude that the District Court
    correctly ruled that he lacked standing to bring this suit.
                                                  8
    had jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343 and we have
    
    jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the order of the
    
    District Court and, to the extent that the Court dismissed this case under Fed. R. Civ. P.
    
    12(b)(6), we review the complaint to ascertain if it contains sufficient factual matter, that,
    
    accepted as true, states a claim for relief that is plausible on its face. Ashcroft v. Igbal,
    
    
    129 S. Ct. 1937
    , 1949 (2009).
    
                                                  II.
    
           A district court‟s decision on a motion for summary judgment is subject to plenary
    
    review. See McKenna v. City of Phila., 
    582 F.3d 447
    , 460 (3d Cir 2009). Summary
    
    judgment is only appropriate if there are no genuine issues of material fact and the
    
    moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On the
    
    appeal we view all of the facts in the light most favorable to the nonmoving party.
    
    Gottshall v. Consolidated Rail Corp., 
    56 F.3d 530
    , 533 (3d Cir. 1995).
    
                                                  III.
    
           We will analyze plaintiffs‟ section 1983 due process claims first, because they are
    
    the only federal law claims that they maintain on appeal. Plaintiffs, however, did not
    
    name Detective Robson as a defendant in the counts of their complaint asserting
    
    Fourteenth Amendment procedural and substantive due process violations under section
    
    1983. We therefore will not analyze those claims as to him.
    
           As we have discussed, in our prior decision in Bayer we held that MCCYS
    
    caseworker Dry and her supervisor, Bahl, were entitled to qualified immunity. 577 F.3d
    
    at 191-93. Plaintiffs now appeal the dismissal of their claims against MCCYS
    
                                                   9
    caseworker P.J. Geese. But plaintiffs do not raise any claims against Geese separate and
    
    distinct from those they brought against Dry and Bahl or allege that Geese was involved
    
    in the underlying matter in a manner different than Dry and Bahl had been.6 Therefore,
    
    Geese is entitled to qualified immunity just as we held that Dry and Bahl were.
    
             The foregoing determination leaves Monroe County/MCCYS as the sole potential
    
    remaining defendant with respect to plaintiffs‟ section 1983 procedural and substantive
    
    due process claims. “[A] local government may not be sued under § 1983 for an injury
    
    inflicted solely by its employees or agents. Instead, it is when execution of a
    
    government's policy or custom, whether made by its lawmakers or by those whose edicts
    
    or acts may fairly be said to represent official policy, inflicts the injury that the
    
    government as an entity is responsible under § 1983.” Monell v. Dep‟t of Soc. Servs. of
    
    City of New York, 
    436 U.S. 658
    , 694, 
    98 S. Ct. 2018
    , 2037-38 (1978). A plaintiff can
    
    show a local government‟s custom and/or policy in the following manner:
    
                    Policy is made when a decisionmaker possess[ing] final
                    authority to establish municipal policy with respect to the
                    action issues an official proclamation, policy, or edict.
                    Custom, on the other hand, can be proven by showing that a
                    given course of conduct, although not specifically endorsed or
                    authorized by law, is so well-settled and permanent as
                    virtually to constitute law.
    
                           In either instance, a plaintiff must show that an official
                    who has the power to make policy is responsible for either the
                    affirmative proclamation of a policy or acquiescence in a
                    well-settled custom.
    
    
    
    
    6
        In fact, if anything, Geese was less involved in this matter than Dry and Bahl.
                                                   10
    Bielevicz v. Dubinon, 
    915 F.2d 845
    , 850 (3d Cir. 1990) (internal citations and quotation
    
    marks omitted) (alteration in original).
    
           The District Court dismissed Monroe County/MCCYS as a defendant because,
    
                  reading the Complaint in the light most favorable to the
                  Plaintiffs, no policy, practice, or custom of Monroe County
                  has been alleged. Plaintiffs make only conclusory allegations
                  that MCCYS has a policy of profiting illegally from removing
                  children from their homes, however, the crux of Plaintiffs‟
                  allegations is that Defendants overstepped the bounds of
                  current procedures governing the removal of children.
                  Plaintiffs simply do not allege a direct causal link between a
                  policy, practice, or custom of Monroe County and the alleged
                  violations of their constitutional rights.
    
    App. at 42. We agree with the District Court that plaintiffs‟ conclusory allegations are
    
    insufficient to support their contention that Monroe County/MCCYS has a policy,
    
    custom, or practice of “seiz[ing] minor children from their parents without prior judicial
    
    authorization, and without any reasonable basis to believe such a seizure is necessary to
    
    protect children from imminent harm.” App. at 300, 305. We therefore will affirm the
    
    Court‟s judgment dismissing Monroe County/MCCYS as a defendant in plaintiffs‟
    
    complaint for failure to state a cognizable claim upon which relief may be granted insofar
    
    as the complaint asserted section 1983 procedural and substantive due process claims.
    
           Because of our disposition of plaintiffs‟ section 1983 procedural and substantive
    
    due process claims, which, as mentioned, are the only federal claims that plaintiffs
    
    maintain on appeal, we need not discuss in detail the remainder of the issues that they
    
    raise on appeal. We, however, do add the following.
    
    
    
    
                                                11
           Plaintiffs, in their brief on this appeal, argue that the District Court erred in ruling
    
    that some defendants, not specified by name in the brief, were entitled to immunity. But,
    
    because at oral argument plaintiffs‟ counsel clarified that their arguments on appeal were
    
    limited to Geese, Robson and Monroe County/MCCYS, and the District Court did not
    
    rule that any of those defendants were entitled to immunity, there is no reason for us to
    
    address the issue.
    
           Plaintiffs‟ brief also urges that the District Court erred in dismissing their state law
    
    claims. Plaintiffs do not, however, specify which state law claims should not have been
    
    dismissed. In any event, we do not find any error in the Court‟s dismissal of the various
    
    state law claims, and, as plaintiffs do not provide any supporting rationale for their
    
    argument to the contrary,7 we will not reverse the District Court‟s rulings with respect to
    
    the state law claims.
    
           Although plaintiffs challenge the District Court‟s application of the Rooker-
    
    Feldman doctrine in this case, to the extent that the Court relied on the Rooker-Feldman
    
    doctrine, it did so only with respect to defendants Dry, Geese, and Robson. But, as we
    
    have discussed, both Dry and Geese are entitled to qualified immunity, and Robson was
    
    7
      Plaintiffs claim that the District Court “dismissed the State Pendente Claims without a
    discussion on the validity of each claim based upon the Rooker-Feldman doctrine.”
    Appellants‟ br. at 21. That characterization of the Court‟s reasoning is incorrect, as the
    Court analyzed each of plaintiffs‟ state law claims in its written opinions. The only state
    law claim that the Court ruled that the Rooker-Feldman doctrine barred was plaintiffs‟
    substantive due process claim pursuant to Article I, Section 1 of the Pennsylvania
    Constitution. But even without regard for the Rooker-Feldman doctrine, the Court found
    that that claim also was barred because there is no private right of action for damages
    arising from violations of the Pennsylvania Constitution. Thus, a reversal of the
    application of the Rooker-Feldman doctrine would not help plaintiffs.
    
                                                  12
    not named as a defendant in the counts of plaintiffs‟ complaint alleging section 1983
    
    procedural and substantive due process violations—the only federal claims that plaintiffs
    
    maintain on appeal—so we need not review the District Court‟s application of the
    
    Rooker-Feldman doctrine.8
    
                                                     IV.
    
           In summary, because our affirmance of the District Court‟s orders leaves plaintiffs
    
    without any viable claims or any defendants against whom to assert any possible claims
    
    their case must fail. Therefore we will affirm the District Court‟s orders of September
    
    12, 2005, September 29, 2005, February 16, 2006, June 29, 2006, January 10, 2007,
    
    October 15, 2007, and September 23, 2009. Thus, we are affirming the orders granting
    
    summary judgment and dismissing plaintiffs‟ case in its entirety.
    
    
    
    
    8
     Of course, in view of our outcome plaintiffs are not entitled to punitive damages or,
    indeed, compensatory damages either.
                                                13