174 F.3d 368 (3rd Cir. 1999), 98-1020, Miller v. City of Philadelphia

Docket Nº:98-1020.
Citation:174 F.3d 368
Party Name:Sandra MILLER; Corey Miller, a Minor, by and through his Mother and Natural Guardian, Sandra Miller; Thomas Miller, a Minor, by and through his Mother and Natural Guardian, Sandra Miller; Dakota Bradley, a Minor, by and through his Mother and Natural Guardian, Sandra Miller; David L. Deratzian, Esquire, v. The CITY OF PHILADELPHIA; Philadelphia Dep
Case Date:April 26, 1999
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 368

174 F.3d 368 (3rd Cir. 1999)

Sandra MILLER; Corey Miller, a Minor, by and through his

Mother and Natural Guardian, Sandra Miller; Thomas Miller,

a Minor, by and through his Mother and Natural Guardian,

Sandra Miller; Dakota Bradley, a Minor, by and through his

Mother and Natural Guardian, Sandra Miller; David L.

Deratzian, Esquire,


The CITY OF PHILADELPHIA; Philadelphia Department of Human

Services; Owen Scheer; Children's Hospital of

Philadelphia; Hutton, Officer; Marc

Carroll, Sgt.; Rodney Nicholas,

Sandra Miller, Corey Miller, Thomas Miller and Dakota

Bradley, Appellants.

No. 98-1020.

United States Court of Appeals, Third Circuit

April 26, 1999

Argued Oct. 6, 1998.

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[Copyrighted Material Omitted]

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David L. Deratzian (Argued), Philadelphia, PA, for Appellants.

Richard G. Feder, Sarah E. Ricks (Argued), City of Philadelphia Law Department, Philadelphia, PA, Charles T. Roessing (Argued), Mary G. March, White & Williams, Paoli, PA, for Appellees.

Before: BECKER, Chief Judge, NYGAARD and NOONAN, [*] Circuit Judges.


NYGAARD, Circuit Judge.

Appellants, Sandra Miller, her three children (Corey Miller, Thomas Miller and Dakota Bradley), and their attorney, David Deratzian, Esq., sued the City of Philadelphia, the Philadelphia Department of Human Services ("DHS"), DHS social worker Owen Scheer (collectively, the "City defendants"), the Children's Hospital of Philadelphia ("CHOP") and two CHOP security guards (collectively, the "CHOP defendants"), alleging violations of their procedural and substantive due process rights under 42 U.S.C. § 1983 and asserting various claims under state law. 1 The claims

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arise from an emergency ex parte child custody hearing after which the City defendants removed two of Miller's children from her custody. The District Court dismissed the procedural due process claim and granted summary judgment on the remaining claims. Appellants raise issues related to their procedural and substantive due process claims and assert that the District Court engaged in improper credibility determinations. We will affirm.


Tiny Tot Daycare personnel reported to Scheer their suspicion that Corey and Thomas Miller were victims of abuse. Scheer and Reginald Jackson, another DHS social worker, visited the day care center. Thomas and Corey each indicated that they had been hit by both their mother and her boyfriend, Derrick Schill. The owner of the day care center informed the social workers that previous injuries to the children had concerned the day care workers and that the center had videotaped some of the injuries. The next day, Scheer and Jackson returned to the center with Scheer's supervisor. Corey and Thomas repeated their statements. At his supervisor's request, Scheer then had the Miller children brought to CHOP for an examination.

Dr. Henretig, a CHOP physician, examined the children that evening and reported to Scheer, Jackson, social worker Amy Frank, and Deratzian that he had found no evidence of injury to Thomas or Dakota, but had found bruises on Corey and felt that a mark on Corey's back was suspicious. Dr. Henretig indicated that the mark had been made within the last twenty-four hours; however, he could not be certain whether Corey's injuries resulted from abuse or accident.

Scheer then called Assistant City Solicitor Debra Maser and told her what Dr. Henretig had said and what he had learned in his investigation. Maser next spoke with Dr. Henretig and then contacted an on-call emergency judge seeking an order to remove Miller's children from her custody, which the judge issued. At some point after Scheer's conversation with Maser, but before the order was issued, Scheer met with Dr. Henretig outside of the presence of Frank and Deratzian. Thereafter, the doctor issued a report of suspected abuse.

Approximately thirty-six hours after the removal order was issued, a detention hearing was held to determine whether the children should continue to remain in DHS custody. Before adjourning for the weekend, the attorney representing Miller at the hearing (not Deratzian) requested that Thomas Miller be released but conceded that a prima facie case of dependency had been established as to Corey. Thomas was returned to his mother's custody, but the judge upheld the restraining order and kept Corey in the custody of the state. Following a second day of testimony the next Monday, the judge dissolved the restraining order and returned Corey to his mother's custody, with the condition that Schill have no contact with Mrs. Miller or the children until a dependency hearing could be held to determine who should take custody of the children. Scheer was later reassigned from the Miller case. Thereafter, DHS sporadically pursued a dependency action against Miller, but ultimately dissolved the petition.

In their suit, Appellants alleged that Scheer violated their rights to procedural due process by refusing to allow them to participate in his telephone conversation with the City Solicitor. They alleged that he violated their rights to substantive due process by pursuing the investigation without probable cause, misrepresenting facts to Solicitor Maser, inducing CHOP to falsify records, and attempting to suborn perjury by Dr. Henretig. 2

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The District Court dismissed, under Fed.R.Civ.P. 12(b)(6), Appellants' procedural due process claim against the City defendants and held that Scheer had qualified immunity from Appellants' substantive due process claims to the extent that they alleged he pursued the Millers' case without probable cause. The Court declined, however, to dismiss the section 1983 substantive due process claims against Scheer for allegedly misrepresenting Dr. Henretig's medical report, inducing the hospital to falsify records and attempting to suborn perjury. In doing so, the Court held that Scheer had neither absolute nor qualified immunity against these charges. The Court declined to dismiss the balance of the claims against the City. See Miller v. City of Philadelphia, 954 F.Supp. 1056, 1059-60 (E.D.Pa.1997) [hereinafter Miller I ].

Following discovery, the District Court granted summary judgment for defendants on Appellants' claims against DHS, their state law claims against the City, their section 1983 substantive due process claim and malicious prosecution claims against Scheer, and their section 1983 substantive due process and malicious prosecution claim against the City to the extent that those claims related to Scheer. See Miller v. City of Philadelphia, No. CIV.A.96-3578, 1997 WL 476352, at * 2-* 3 (E.D.Pa. Aug.19, 1997) [hereinafter Miller II ]. After this order was entered, Appellants did not oppose motions for summary judgment by the CHOP defendants 3 and by the City defendants on the remaining claims against them. The Millers now contend that the District Court erred by dismissing their procedural due process claim, by granting qualified immunity to Scheer, and by making impermissible credibility determinations.

II. Procedural Due Process

The first issue is narrow. Although Appellants argue that their procedural due process rights were violated, they do not challenge the constitutionality of the Pennsylvania statute that sets forth the procedure to be followed in emergency child custody hearings, 4 nor do they contend that DHS personnel failed to follow the statutory procedures for taking a child into custody. Instead, Appellants contend that the procedures adopted by DHS to implement the state...

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