Angel Santos v. Secretary Depart Human , 532 F. App'x 29 ( 2013 )

GLD-190 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4151
___________
ANGEL LUIS SANTOS;
G.L.S.;
S.N.S., minor child, also known as Bickings,
Appellants
v.
SECRETARY OF D.H.S.; LUTHERAN CHILDREN AND
FAMILY SERVICES OF EASTERN PENNSYLVANIA;
MARY LOUISE JOHNSON
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:10-cv-07266)
District Judge: Honorable Petrese B. Tucker
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 11, 2013
Before: FUENTES, FISHER and GREENBERG, Circuit Judges
(Opinion filed: April 24, 2013)
_________
OPINION
_________
PER CURIAM
Pro se Appellant Angel Luis Santos (“Santos”) appeals the District Court‟s orders
dismissing his complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure and
denying his motion for leave to amend the complaint and alter the judgment.1 For the
reasons set forth below, will summarily affirm the District Court‟s judgment. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
I.
Because we primarily write for the parties, we will only recite the facts necessary
for our discussion. Santos is a prisoner currently incarcerated in the United States
Medical Center for Federal Prisoners in Springfield, Missouri. He filed this pro se civil
rights action pursuant to 42 U.S.C. § 1983, alleging violations of his First, Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendment rights during the time when Santos‟ minor
children were first placed in foster care, and through the time when Santos‟ parental
rights were terminated on December 9, 2008. Santos named as defendants Secretary of
1
Santos initially filed a notice of appeal on behalf of himself and his minor
children. However, Santos cannot represent his minor children. It is well established in
this Circuit that the right to proceed pro se in federal court does not give non-lawyer
parents the right to represent their children in proceedings before a federal court. See
Osei-Afriyie ex rel. Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir.
1991). Because the children are not represented by counsel, this appeal only presents
Santos‟ individual claims.
2
the Philadelphia Department of Human Services (“DHS”),2 Lutheran Children and
Family Services (“LCFS”), a non-profit agency that contracts with DHS to provide foster
care services to children placed with DHS, and Mary Louis Johnson, the court-appointed
attorney who represented Santos during his parental rights termination proceedings.
Santos seek declaratory, injunctive, and monetary relief, including punitive damages,
against all of the defendants.
In November 2006, Santos was arrested and subsequently incarcerated for a
criminal violation. In December 2006, DHS placed his minor children in the custody of
their older sister, Alicia Santos. In January 2008, Santos was informed by his children
that Alicia Santos was being abused by her live-in boyfriend. Santos informed an agent
of LCFS and requested that the children be placed with another family member. In May
2008, Santos learned that LCFS placed the children in foster care within the home of
Michael and Deborah Bickings, and in October 2008, Santos received a notice for a
2
This defendant was never properly served. However, the District Court
considered the claims against the Secretary of DHS sua sponte, and held that the claims
fail because there are no allegations that the Secretary was personally involved in the
events at issue. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that
liability in a § 1983 action must be predicated on personal involvement, not on the basis
of respondeat superior). The District Court also found that there were no allegations that
a particular policy, custom or practice of DHS caused a constitutional violation, and
therefore, any claims against DHS failed. See Beck v. City of Pittsburgh, 89 F.3d 966,
971 (3d Cir. 1996) (municipal entities may be liable based on a suit brought pursuant to
§ 1983 only if “the alleged constitutional transgression implements or executes a policy,
regulation or decision officially adopted by the governing body or informally adopted by
custom.” ) (citation omitted). We agree with the District Court and conclude that the
claims against the Secretary of DHS were properly dismissed.
3
Petition for a Finding of Involuntary Termination of Parental Rights, and a notice
appointing Defendant Johnson as counsel. On December 9, 2008, Santos‟ parental rights
were terminated in proceedings before the Honorable Flora Barth Wolf in the Court of
Common Pleas of Philadelphia County, after which the Bickings adopted the children.
Defendants moved to dismiss the original complaint and in response, Santos filed
an amended complaint. The defendants again filed motions to dismiss, which the District
Court granted by order entered July 23, 2012. On August 14, 2012, Santos filed a motion
to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e), which was denied on
January 4, 2013.3 Santos filed a timely amended notice of appeal on January 29, 2013.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review
over the District Court‟s dismissal order. See Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000).4 To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),
3
The District Court erred in dismissing Santos‟ motion to amend or alter the
judgment as untimely under its Local Rule 7.1(g), when it was timely under the 28-day
time limit of Fed.R.Civ.P. 59(e). See In re Paoli R.R. Yard PCB Litig., 221 F.3d 449,
459 (3d Cir. 2000) (a local rule that conflicts with an applicable federal rule is generally
invalid). However, we agree with the District Court that the 59(e) motion does not meet
the requirements necessary to permit the District Court to alter or amend its judgment.
See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam).
4
“A timely appeal from a denial of a Rule 59 motion to alter or amend „brings up
the underlying judgment for review.‟” Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345,
348 (3d Cir. 1986) (quoting Quality Prefabrication v. Daniel J. Keating Co., 675 F.2d 77,
78 (3d Cir.1982)). Therefore, because Santos timely appealed the denial of his motion to
alter or amend the judgment, we will review the District Court‟s dismissal order, as well
as its denial of Santos‟ motion to amend or alter the judgment.
4
“a complaint must contain 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 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court affirms a district
court‟s dismissal for failure to state a claim “only if, accepting all factual allegations as
true and construing the complaint in the light most favorable to the plaintiff, we
determine that the plaintiff is not entitled to relief under any reasonable reading of the
complaint.” McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009). We
review the District Court‟s order denying the Rule 59(e) motion for an abuse of
discretion. See Max‟s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). We
may summarily affirm if the appeal does not present a substantial question, and may do
so on any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir.
2011) (per curiam).
III.
We agree with the District Court‟s dismissal of the amended complaint. First, to
the extent that Santos seeks an order granting him custody of his children and reinstating
his parental rights, the District Court properly dismissed the complaint pursuant to the
Rooker-Feldman doctrine. See Great W. Mining & Mineral Co. v. Fox Rothschild LLP,
615 F.3d 159, 166-67 (3d Cir. 2010) (explaining that the Rooker-Feldman doctrine
deprives lower federal courts of jurisdiction over suits that are essentially appeals from
state-court judgments). Second, the District Court properly dismissed the claims against
Johnson because she is not a state actor and is thus not a proper defendant under § 1983.
5
See Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (To establish a claim under § 1983, a
plaintiff “must establish that she was deprived of a federal constitutional or statutory right
by a state actor.”); Polk County v. Dodson, 454 U.S. 312, 318 (1981) (a court-appointed
defense attorney is not a state actor for purposes of a § 1983 action simply “by virtue of
being an officer of the court . . . .”).
Turning to the allegations that LCFS violated Santos‟ constitutional rights, we
agree with the District Court that the amended complaint fails to plead sufficient facts to
support the claims and we conclude that the amended complaint was properly dismissed. 5
In the amended complaint, Santos asserts violations of the First Amendment because his
children were prohibited from testifying at his criminal trial. The District Court properly
noted that there is no constitutional right under the First Amendment to testify as a
witness during the trial of another person. To the extent that the Sixth Amendment
guarantees defendants the right to call witnesses to testify on their behalf, and to compel
those witnesses to testify if they refuse, there is no evidence that Santos requested that his
children be subpoenaed during his criminal trial. Moreover, we agree with the District
Court that Santos‟ claims that LCFS censored and blocked his correspondence to the
children in violation of the First Amendment fail as a matter of law.
5
We also agree with the District Court that Santos failed to sufficiently plead a
conspiracy among the defendants to violate his civil rights and that he failed to allege
sufficient facts to support his request for punitive damages.
6
Santos‟ allegations of Fourth Amendment violations are based on the fact that his
children were not allowed to attend Santos‟ criminal trial, the fact that his children were
prevented from visiting Santos unless accompanied by a representative of LCFS or DHS,
and the fact that LCFS failed to keep Santos informed and denied his requests for
information. However, none of these claims fall within the ambit of conduct protected by
the Fourth Amendment, which guards against “unreasonable searches and seizures.”
U.S. CONST. Amend. IV. Similarly, the Fifth Amendment applies to actions of the
federal government, not state actions, Citizens for Health v. Leavitt, 428 F.3d 167, 178
n.11 (3d Cir. 2005). Therefore, because the alleged Fifth Amendment violations,
including LCFS‟ failure to close the case once the children were living with their sister,
are alleged against state actors, these claims fail. Santos also alleges that LCFS failed to
provide medical care and counseling for his children in violation of the Eight
Amendment. However, the Eighth Amendment only protects those convicted of crimes,
not people like Santos‟ children, who are under the custody of the state, but not prisoners.
See Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005).
Finally, Santos alleges violations of the Due Process Clause and Equal Protection
Clause of the Fourteenth Amendment. We agree with the District Court that the amended
complaint fails to allege that Santos‟ procedural due process rights were violated. To
state a claim for a procedural due process violation, a plaintiff must allege that (1) he was
deprived of a liberty interest encompassed within the Fourteenth Amendment and (2) the
procedures used did not provide due process of law. Hill v. Borough of Kutztown, 455
7
F.3d 225, 234 (3d Cir. 2006). Here, Santos confirms that he received notice about the
hearing to terminate his parental rights prior to the hearing and there are no allegations
that the defendants prevented Santos from voicing his concerns during this hearing. With
respect to Santos‟ substantive due process claim, there are no allegations that DHS failed
to demonstrate, by clear and convincing evidence, that Santos‟ parental rights should be
terminated pursuant to the standard for involuntary termination in Pennsylvania set forth
in 23 Pa.C.S. §2511 (2011). See Santosky v. Kramer, 455 U.S. 745, 768-69 (1982)
(holding that due process requires at least clear and convincing evidence before a state
may terminate parental rights). Additionally, regarding Equal Protection violations, the
amended complaint asserts blanket, non-specific allegations that Santos was treated
differently because of his race and/or gender. There are no specific allegations
illustrating how Santos was treated differently than those similarly situated. Accordingly,
the Equal Protection claims also fail. See Shuman ex rel. Shertzer v. Penn Manor Sch.
Dist., 422 F.3d 141, 151 (3d Cir. 2005) (in order to bring a successful § 1983 claim for
denial of Equal Protection, a plaintiff must show that she received different treatment
than other similarly situated individuals).
IV.
For the foregoing reasons, no substantial question is presented and we will affirm
the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
8