768 F.2d 503 (3rd Cir. 1985), 84-5231, Estate of Bailey by Oare v. York County

Docket Nº:84-5231.
Citation:768 F.2d 503
Party Name:ESTATE OF Aleta V. BAILEY, by Richard OARE, Administrator and Cameron C.R. Bailey, Appellants, v. COUNTY OF YORK, York County Children and Youth Services and Ora G. Gruver, York County Children and Youth Services Administrator, Individually and in her official capacity.
Case Date:June 27, 1985
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 503

768 F.2d 503 (3rd Cir. 1985)

ESTATE OF Aleta V. BAILEY, by Richard OARE, Administrator

and Cameron C.R. Bailey, Appellants,


COUNTY OF YORK, York County Children and Youth Services and

Ora G. Gruver, York County Children and Youth

Services Administrator, Individually and

in her official capacity.

No. 84-5231.

United States Court of Appeals, Third Circuit

June 27, 1985

Argued Nov. 26, 1984.

Rehearing Denied July 19, 1985.

Page 504

Richard Oare (Argued), York, Pa., pro se.

Wentworth Darcy Vedder, Bishop Nichlas Kauffman Morris, Vedder & Ream, York, Pa., for appellants.

Robert G. Schwartz (Argued), Philadelphia, Pa., amicus curiae.

Page 505

Roger T. Shoop (Argued), Thomas & Thomas, Harrisburg, Pa., for appellee County of York and York County Children and Youth Services.

John B. Mancke (Argued), Mancke, Lightman & Wagner, Harrisburg, Pa., for appellee Gruver, York County Children and Youth Services Administrator, individually and in her official capacity.

Before ADAMS, HIGGINBOTHAM and SLOVITER, Circuit Judges.


SLOVITER, Circuit Judge.


This action was brought pursuant to 42 U.S.C. Sec. 1983 by Richard Oare, the administrator of Aleta V. Bailey's estate, and by Cameron C.R. Bailey, father of Aleta V. Bailey, against York County, York County Children and Youth Services (YCCYS), and Ora G. Gruver, the agency's administrator. In the complaint plaintiffs allege that Aleta Bailey's death from child abuse was the result of the actions of defendants who thereby deprived Aleta Bailey and her father of their constitutional rights.

The facts, as set forth in the complaint, are that five-year-old Aleta lived with her mother, Jo Ellen Bailey Naylor, and Larry Hake, Naylor's "paramour and cohabitant". On January 3, 1982 Carol Anne Stough and Theresa Tobling, relatives of Aleta, found severe bruises and other evidence of abuse on the child's body. On January 11, Tobling discovered additional bruises and telephoned the Child Hotline. On the same day another relative notified the police of the same information.

The next day, Beverly Mackerath, a YCCYS employee, took Aleta to York Hospital where the examining physician advised Mackerath that Hake's actions in striking Aleta were excessive, that he should not have access to the child, and that she should be taken from her mother if necessary to deny Hake access to her. That same day, Aleta was released from the hospital and placed with Carol Adams, her mother's aunt. Mackerath told Naylor that she had twenty-four hours to make arrangements for Hake to move from her home and that after arrangements were made to deny Hake access to Aleta, she would be returned to Naylor's custody and control.

The next night, YCCYS returned Aleta to her mother's custody. The complaint alleges that YCCYS undertook no independent investigation to determine the whereabouts of Aleta, Naylor, and Hake, and that they lived together both on a farm and in Naylor's home within the county. A month later Aleta died from physical injuries inflicted on her by Hake and her mother. 1

In the complaint, plaintiffs allege that YCCYS disregarded the advice of the examining physician and treated Aleta, her mother, and Hake as a family unit, and failed to invoke the procedures of the state's Child Protective Services Law, 11 Pa.Stat.Ann. Secs. 2208, 2223 (Purdon Supp.1984). These sections provide a mechanism for judicial determination of the necessity for protective custody of abused children and appointment of a guardian ad litem for the child.

The complaint further alleges that YCCYS established, accepted and used "defective institutional policies and/or procedures"; that the County of York failed to properly evaluate the performance, policies and procedures of the agency and its director; and that Ora G. Gruver, the director, abused her position and power by establishing, accepting and employing the policies and procedures. As a result, the defendants are alleged to have deprived Aleta of her constitutional rights to counsel 2 and to life and to have deprived her

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father of his constitutional right to parenthood.

Defendants filed answers to the complaint denying most of the factual allegations and setting forth numerous affirmative defenses. During discovery, defendants filed motions to dismiss arguing, inter alia, that plaintiffs failed to state a claim upon which relief could be granted, and that they were entitled to immunity on a variety of grounds.

The district court granted the motions, holding that "there was no constitutional deprivation by the state such as would support a cause of action in this court." Estate of Bailey v. County of York, 580 F.Supp. 794, 797 (M.D.Pa.1984). The district court reasoned that there are only two circumstances in which the state and its agencies are chargeable with allegedly unconstitutional conduct resulting from omissions: if injuries occur "while the injured party is in the legal custody of the state" or if the person "whose affirmative conduct causes the harm is under the direct control or supervision of the state." Id. Since Aleta was not in the legal custody of the state when she was murdered, nor were her mother and Hake under state control or supervision, the court concluded that the complaint stated no cause of action. 3


To sustain a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), "we must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff," and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief. Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir.1977) (per curiam). As the Supreme Court stated, a federal court reviewing the sufficiency of a complaint has a limited task. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

The complaint in this case alleges that the promulgation and implementation by YCCYS of "policies and procedures" led to Aleta Bailey's death. As explained in Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), although a municipality may not be sued under Sec. 1983 on a respondeat superior theory for an injury inflicted solely by its employees or agents, "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 Sec. 1983." In an appropriate case, even in the absence of formal agency conduct, an "official policy" may be inferred "from informal acts or omissions of supervisory municipal officials." Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). "The issue of authorization, approval or encouragement is generally one of fact, not law." Id. at 201. See also Owen v. City of Independence, 445 U.S. 622, 633-34 & n. 13, 655 n. 39, 100 S.Ct. 1398, 1406-07 & n. 13, 1417 n. 39, 63 L.Ed.2d 673 (1980).

It does not follow from these principles that the mere description of an act as a "policy" or "procedure" meets the threshold for a Sec. 1983 claim. Nor does every agency policy open it to Sec. 1983 liability. In Davidson v. O'Lone, we noted that

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"Sec. 1983 plays an effective role ... in providing a federal forum to challenge an established state procedure that infringes upon an individual's liberty or property interests." 752 F.2d 817, 828 (3d Cir.1984) (in banc), cert. granted sub nom. Davidson v. Cannon, --- U.S. ----, 105 S.Ct. 2673, 85 L.Ed.2d 692 (1985). Only if there is a plausible nexus between the policy or established state procedure and the infringement of constitutional rights can a Sec. 1983 action be maintained. See City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 2435, 85 L.Ed.2d 791 (1985) (Rehnquist, J.); id. at 2439 (Brennan, J.). An apt illustration appears in Black v. Stephens, 662 F.2d 181 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982). There, the chief of police and the city were held liable because the chief's promulgation and implementation of a regulation delaying any disciplinary investigation of an officer's conduct until the underlying arrest was resolved was found to have caused the police officer to file unwarranted charges against the plaintiffs in order to delay any disciplinary investigation into an instance of use of excessive force.

Plaintiffs here have listed 15 "policies" of YCCYS in their complaint, many of which have little facial connection to the alleged deprivations. At least some of the others are, if proven, a potential basis for a claim of deprivation of a constitutional interest. 4 The complaint alleges that Aleta died "as a result of said defective institutional policies and procedures established, accepted and employed by York County Children and Youth Services in investigating the factors harming the child, in determining who was responsible for the child's welfare, and/or in taking appropriate steps to remedy and correct the child's environment so as to secure the child's welfare." Moreover, it does not appear, at least from the complaint, that plaintiffs are seeking to infer such policies through evidence of a single incident of unconstitutional conduct, a claim that would be precluded by the Supreme Court's decision in City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

The complaint also alleges that plaintiffs' harm was caused by the...

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