Pearson v. Miller

• Decision Date: 31 December 1997
• Docket Number: No. 4:CV-97-0764.,4:CV-97-0764.
• Citation: 988 F.Supp. 848
• Parties: Jacqueline PEARSON, Plaintiff, v. Bruce MILLER and Luzerne County Children and Youth, Inc., Defendants, v. KIDSPEACE NATIONAL CENTERS FOR KIDS IN CRISIS, INC., Third party defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

988 F.Supp. 848

Jacqueline PEARSON, Plaintiff, v. Bruce MILLER and Luzerne County Children and Youth, Inc., Defendants, v. KIDSPEACE NATIONAL CENTERS FOR KIDS IN CRISIS, INC., Third party defendant.

No. 4:CV-97-0764.

United States District Court, M.D. Pennsylvania.

December 31, 1997.

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Richard Morris Hughes, III, Dudick, Decker, Shovlin & Hughes, P.C., Forty Fort, PA, for Plaintiff.

John M. Kunsch, Philadelphia, PA, Barbara A. O'Connell, J. Michael Kunsch, Sweeney & Sheehan, Philadelphia, PA, for Defendant Luzerne County Children & Youth Services.

Bruce Miller, Frackville, PA, pro se.

Richard F. Stevens, James M. Flood, Stevens & Johnson, Allentown, PA, for Kidspeace Nat. Centers for Kids in Crisis, Inc.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND:

Plaintiff Jacqueline Pearson brings this section 1983 action¹ in her individual capacity and as parent and natural guardian of Lindsay Pearson.² Plaintiff alleges that Lindsay, a minor, was abducted and sexually assaulted by defendant Bruce Miller.³ The alleged incident occurred while Miller was under the custody, care and supervision of the Luzerne County Children and Youth Services, Inc. (Luzerne County C & Y). Plaintiff brings this action against Luzerne County C & Y and against Miller.

On August 4, 1997, Luzerne County C & Y joined Kidspeace National Centers for Kids in Crisis, Inc. (Kidspeace) as a third party defendant. Kidspeace filed an answer to the third party complaint on November 20, 1997.

Plaintiff filed an amended complaint on June 16, 1997. It appears from the record before us that plaintiff had no right to amend the complaint without first obtaining leave of court. Federal Rule of Civil Procedure 15(a) allows a party to amend only if no responsive pleading has been filed, or if no responsive pleading is permitted. Neither circumstance applies here. Defendant's motion to dismiss was filed on June 2, 1997, before plaintiff filed the amended complaint. There is nothing in the court record to indicate that the plaintiff received written consent from the defendant to file an amended complaint. Leave of court was, therefore, required, but never sought. However, in the interest of expediency and in recognition of the liberal standards applicable to motions for leave to amend, we will overlook the failure to seek leave of court and consider the amended complaint as properly before us.

Plaintiff's amended complaint asserts the following claims: 1) a section 1983 claim purportedly based on vicarious liability of Luzerne County C & Y "for the acts or omissions committed by its's (sic) agents, servants and*or employees" (Plaintiff's amended complaint, ¶ 33) (Count I); 2) a civil rights claim asserting that plaintiff was denied equal protection of the law (Count II); 3) a section 1986 claim, 42 U.S.C. § 1986, asserting that defendants conspired to deprive plaintiff of equal protection of the law (Count III); 4) a claim for attorney's fees under section 1988, 42 U.S.C. § 1988 (Count IV); 5) a state law claim against Miller (Count V); 6) a state law claim against Luzerne County C & Y (Count VI); 7) a claim for punitive damages against Luzerne County C & Y (Count VII); 8) a claim for conduct allegedly constituting "an intentional, physical intrusion upon the solitude, seclusion and privacy of the minor plaintiff" which fails to specify whether it is grounded in federal or state law (Count VIII); 9) a second claim for punitive damages, this one being asserted against both defendants (Count IX).

Before the court are motions by C & Y to dismiss plaintiff's original and amended complaints. We will consider the motion to dismiss the amended complaint as superseding the motion to dismiss the original complaint, and will deny the latter as moot. For the reasons which follow, we will enter an order granting the motion to dismiss the amended complaint to the extent of the relief.

DISCUSSION

Rule 12(b)(6) motion

In deciding defendants' motion, we are "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant." Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir.1994). "In determining whether a claim should be dismissed under Rule 12(b)(6)," we look "only to the facts alleged in the complaint and its attachments without reference to other parties of the record." Id. Dismissal is not appropriate unless "it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id.

The court is not, however, required to credit or lend credence to "`bald assertions'" or "`legal conclusions.'" Morse v. Lower Merion School District, 132 F.3d 902, 905 (3d Cir.1997), quoting In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.1997). In ruling on a Rule 12(b)(6) motion, courts can and should reject "`legal conclusions,'" "`unsupported conclusions'", "`unwarranted inferences,'", "`unwarranted deductions,'" "`footless conclusions of law,'" and "`sweeping legal conclusions in the form of factual allegations.'" Id. at 906 n. 8, citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1357 (2d ed.1997). "[L]egal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Id., quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993).

MOTION TO DISMISS FILED BY LUZERNE COUNTY C & Y

To prevail under section 1983, plaintiffs must establish the violation of a federally protected statutory or constitutional right by an individual acting under color of state law. Morse, 132 F.3d at 905. Here, the abuse was not committed by a state actor. Miller, the perpetrator of the alleged abuse, was committed to foster care.⁴ Individuals in foster care are not agents or employees of the state, and therefore are not, in any sense of the term, state actors. See generally: K.H. Through Murphy v. Morgan 914 F.2d 846, 852 (7th Cir.1990) (Foster parents, even if paid by the state, are not state actors.) For that reason, liability can attach to the county only if the plaintiff can demonstrate a basis for recovery not dependent upon a showing that Miller was a state actor.⁵ See: McComb v. Wambaugh, 934 F.2d 474, 478 (3d Cir.1991) ("The distinction between harm inflicted by a state agent and injury caused by a private individual is critical.")

In general, there is no constitutional duty on the part of the state to protect citizens from abuses or crimes committed by other private citizens. Morse, 132 F.3d at 906 and Kneipp v. Tedder, 95 F.3d 1199, 1210 (3d Cir.1996). That was the holding of the United States Supreme Court in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).

In DeShaney, a young boy was physically abused by his father, to the point of suffering severe, permanent injuries. The abuse was reported to county child welfare authorities, but the child was not taken into protective custody. The child and his mother sued the county, its department of social services, and several employees of the department for their failure to protect the boy. 489 U.S. at 191-193, 109 S.Ct. at 1000-01. The Supreme Court held that no substantive due process right exists to require the states to provide protective services:

Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.... If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

489 U.S. at 196-197, 109 S.Ct. at 1003-1004 (citations, footnote omitted and emphasis added.).

The courts have recognized only two exceptions to the general rule established by the holding in DeShaney. Liability can arise under section 1983 for acts committed by a private citizen only if: 1) the danger or risk of harm which led to plaintiff's injury was created by the state; or 2) the state entered into a special relationship with the plaintiff under which it assumed a duty to ensure plaintiff's continued well-being. Morse, 132 F.3d at 905 and Kneipp, 95 F.3d at 1205-09.

In Kneipp, the Third Circuit adopted a four-part test for applying the state-created danger theory. In surveying the rulings of other courts applying the theory, the Third Circuit found that they typically share four common elements:

(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; [and] (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.

Kneipp, 95 F.3d at 1208, quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir.), cert. denied, 516 U.S. 858, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995). In addition to these four factors, the plaintiff must allege and prove that the state acted with deliberate indifference. Morse, 132 F.3d at 910.

Liability arises under the state-created danger theory only if a state agent or employee knowingly placed the plaintiff, in particular, in a position where he or she was likely to come to harm and created or substantially contributed to the circumstances...