Opinion
Civil Action 4:22-CV-1917
02-02-2023
GRACE M. DERR et al., Plaintiffs v. JOSEPH HOUSER, SR, et al., Defendants
BRANN, C.J.
REPORT & RECOMMENDATION
(PLAINTIFFS' AMENDED COMPLAINT, DOC. 11)
WILLIAM I. ARBUCKLE, U.S. MAGISTRATE JUDGE.
I. INTRODUCTION
Grace Derr, and her daughter Shelby Derr, initiated this pro se civil action on behalf of themselves and Shelby Derr's two minor children. In their amended complaint, Plaintiffs allege civil rights claims, and seek civil damages under the Wiretap Act. These claims, asserted against the father and several Northumberland County Children and Youth employees, are related to a safety plan and two reports of suspected child abuse made in October 2022 and November 2022. Plaintiffs have also filed motions requesting a temporary restraining order and preliminary injunction. (Docs. 4, 10).
Plaintiffs Grace and Shelby Derr have sought and been granted leave to proceed in forma pauperis. On December 19, 2022, we issued an order advising Plaintiffs that, in its present form, their original complaint would be subject to dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Doc. 7). Plaintiffs were given the opportunity to file an amended complaint on or before January 17, 2023. That amended complaint is now pending before the Court. (Doc. 11).
For the reasons explained herein, it will be RECOMMENDED that Plaintiffs' amended complaint be DISMISSED IN PART pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and their motions for preliminary injunction and temporary restraining order be DENIED as follows:
(1) Plaintiffs' Fourteenth Amendment Substantive Due Process claim should be DISMISSED;
(2) Plaintiffs' civil Wiretap Act claim should be DISMISSED;
(3) Plaintiffs' official capacity claims and their Monell claims should be DISMISSED;
(4) Only Plaintiff Grace and Shelby Derr's Fourth Amendment illegal entry claim against Defendants Wilkins and Ruiz-Ruiz should be permitted to proceed;
(5) The Clerk of Court should be DIRECTED to terminate Plaintiffs JMH Jr. and GMH, and Defendants Houser and Kurtz as parties to this case; and
(6) Plaintiffs motions requesting a temporary restraining order and preliminary injunction (Docs. 4, 10) should be DENIED.
II. BACKGROUND & PROCEDURAL HISTORY
On December 2, 2022, Plaintiffs lodged a pro se complaint. (Doc. 1). Only one Plaintiff (Grace Derr) filed a motion requesting leave to proceed in forma pauperis, and a motion for a temporary restraining order and preliminary injunction. (Docs. 2, 4). The motion for in forma pauperis was granted, and the complaint was reviewed pursuant to 28 U.S.C. § 1915(e)(2).
We issued a detailed order advising Plaintiffs that, as written, their complaint would be dismissed for failure to state a claim upon which relief could be granted. (Doc. 7). In the same order, Plaintiffs were advised that they could file an amended complaint on or before January 17, 2023. Id.
On January 17, 2023, Plaintiffs filed an amended complaint. (Doc. 11). Along with that amended complaint, Plaintiffs Grace and Shelby Derr filed motions requesting leave to proceed in forma pauperis, and a second motion requesting a temporary restraining order and preliminary injunction. (Docs. 8, 9, 10). We are now obligated to screen Plaintiffs' amended complaint under 28 U.S.C. § 1915(e)(2).
In their amended complaint, Plaintiffs name the following four Defendants:
(1) Joseph Houser, father to GMH and JMH Jr.;
(2) Jen Wilkins, a CYS caseworker;
(3) Amanda Kurtz, a CYS employee; and
(4) Kiera Ruiz-Ruiz, a CYS caseworker.
Defendants Wilkins, Kurtz, and Ruiz-Ruiz are sued in their individual and official capacities.
A. Allegations of Suspected Child Abuse
Plaintiff Shelby Derr and Defendant Joseph Houser are the parents of two minor children, JMH Jr. and GMH. (Doc. 11). In October and November of 2022, Defendant Houser reported a suspicion that his former paramour, Plaintiff Shelby Derr, was using drugs, had threatened their children with physical harm, and on at least one occasion allowed the children to be exposed to fentanyl. Along with his reports of suspected abuse, Defendant Houser apparently provided images of Shelby Derr, Facebook messages, and text messages, that corroborated his reports.Northumberland County CYS and its employees became involved.
Plaintiffs allege that the images and messages were manipulated by Defendant Houser as part of an elaborate scheme to obtain primary physical custody of the minor children.
On October 11, 2022, Defendant Kurtz went to Plaintiff Shelby Derr's home to investigate. As part of that investigation, Plaintiff Shelby Derr took a drug test. She tested positive for narcotics.
After Plaintiff Shelby Derr tested positive, Defendant Kurtz “insisted that a safety plan be signed.” (Doc. 11, p. 1). Plaintiffs allege that the safety plan gave Plaintiff Grace Derr temporary physical custody of the children, and that as a condition of this plan Plaintiff Shelby Derr “was to have no unsupervised contact with her children.” (Doc. 11, p. 2).
When Plaintiff Shelby Derr finished an inpatient rehab stint, Grace, Shelby and the minor children moved to “their primary residence” in Mount Carmel, Pennsylvania, where they resided with a Matthew Derr and his paramour Mary Baker. Id.
On November 12, 2022, Defendant Houser reported suspected child abuse a second time. Defendants Wilkins and Ruiz-Ruiz were dispatched to Plaintiffs' “primary residence” to investigate. When they arrived, the children were with Ms. Baker. Matthew Derr and Ms. Baker both attempted to deny Defendants Wilkins and Ruiz-Ruiz entry to the home. (Doc. 11, p. 3). Defendants Wilkins and Ruiz-Ruiz entered over their objections claiming that they could enter any home where there are children, and had a “standing warrant.” Id. Plaintiffs allege no standing warrant was ever produced, and assert that this intrusion violated their Fourth Amendment rights.
Defendant Wilkins called Plaintiff Shelby Derr, and Ms. Baker called Plaintiff Grace Derr. Id. Either during those telephone calls, or after they arrived home, Plaintiffs Grace and Shelby Derr were advised that:
there was an accusation of the children consuming fentanyl and [Defendant Wilkins] has text messages from [D]efendant Houser allegedly stating that GMH had split a bag. Defendant Wilkins also allegedly stated that [Plaintiff Shelby Derr] texted that she hated JMH [J]r. and wished him dead. All from Facebook Messenger.(Doc. 11, p. 2). Plaintiffs Grace and Shelby Derr, the children, and Ms. Baker all took drug tests. (Doc. 11, p. 3). Plaintiff Grace Derr was negative. Id. Plaintiff Shelby Derr tested positive for a drug prescribed as part of her substance abuse treatment. Id. Ms. Baker tested positive for THC (prescribed for a medical condition). Id. One or both of the children tested positive for fentanyl.
Plaintiffs argue in their amended complaint that the children were with Defendant Houser the day before, and also could have ingested the drug while in his custody. (Doc. 11, p. 3).
On November 17, 2022, Defendant Houser filed a petition for emergency or special relief in the Northumberland County Court of Common Pleas seeking custody of the children. (Doc. 5-1, pp. 1-2). On the same day, the family attended a rapid response family meeting with Northumberland County CYS. (Doc. 11, p. 4).
Ruling on Motions to dismiss, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). Because the standards for dismissal for failing to state a claim under 28 U.S.C. § 1915(e) are the same as under a 12(b)(6) motion, the court may consider matters of which it may take judicial notice under 28 U.S.C. §§ 1915(e) and 1915A and under 42 U.S.C. § 1997e(c).” Banks v. Cnty. of Allegheny, 568 F.Supp.2d 579, 588 (W.D. Pa. 2008) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994)). Therefore, we take judicial notice of the fact that Defendant Houser filed a petition for special relief in the Northumberland County Court of Common Pleas, and of the Judge's order addressing that petition.
On November 21, 2022, an order was issued granting Defendant Houser sole legal and physical custody of JMH Jr. and GMH. (Doc. 5-2, p. 3). A conciliation conference was scheduled to take place on December 6, 2022. Id.
B. Allegations Regarding Defendant Houser's Access to Derr Family Facebook Accounts
Plaintiffs allege that when Plaintiff Shelby Derr and Defendant Houser were in a relationship, Plaintiff Shelby Derr shared her Facebook username and password, and her email and email password with him. (Doc. 11, p. 4). After that relationship ended, Plaintiff Shelby Derr apparently did not change her account passwords. Plaintiffs allege that Defendant Houser “has been accessing” Plaintiff Shelby Derr's accounts. (Doc. 11, p. 4).
Plaintiffs allege that, on one occasion Plaintiff Grace Derr's husband sent his Facebook username and password to Plaintiff Shelby Derr. (Doc. 11, p. 4). Plaintiffs allege that Defendant Houser saw that message and obtained the login and password information while accessing Plaintiff Shelby Derr's Facebook account. Id.
Plaintiffs allege that Defendant Houser attempted to use the password to access Plaintiff Grace Derr's email account. Id. Plaintiffs allege that Defendant Houser made so many attempts to access the email account that Plaintiff Grace Derr was “locked out,” which caused “issues with Credit Card Student Loan Payments 1099 information Uber Doordash and other gig companies we work for as well as information pertinent to physician appointments tax information business records and a myriad of other personal information.” Id.
C. Allegations Regarding Defendant Houser's Use of Plaintiff Grace Derr's Kindle
Plaintiffs allege that a Kindle went missing from Plaintiff Grace Derr's car before Defendant Houser made the two reports of suspected child abuse. (Doc. 11, p. 5). They imply that Defendant Houser stole the Kindle from Plaintiff Grace Derr's car and used it. They allege Defendant Houser later agreed to return the Kindle. (Doc. 11, p. 4).
D. Legal Claims in the Amended Complaint & Relief Requested
Plaintiffs assert the following legal claims in their amended complaint:
First Federal Question
Did defendant Amanda Kurtz deprive Shelby Derr of her constitutional right to parent as has been established starting with Peirce v. Sisters and forcing the signing of a safety plan which this court has long established as unconstitutional starting with Westmoreland and thusly violate her 1st amendment rights.
Second Federal Question:
Did Wilkens and Ruiz Ruiz violate the 4th amendment rights of all plaintiffs by forcing their way into the home shared by the Plaintiffs and Matthew derr and Mary Baker by alleging a “standing order of court”
Third Federal Question:
Did defendants houser kurttz and wilkins violate The Electronic Privacy Act which specifically states “The Electronic Communication Privacy Act (ECPA) has 3 specific sections. Title 1 specifically (paraphrased) “of the ECP A~which is often referred to as the Wiretap Act, prohibits the intentional actual or attempted interception, use, disclosure, or “procure[ment] (o]f any other person to intercept or endeavor to intercept any wire, oral, or electronic communication.”
Title I also prohibits the use of illegally obtained communications as evidence.” 18 USC 2520 states (a) In General.-Except as provided in section 2511(2Xa)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate. (b) Relief.-In an action under this section, appropriate relief includes-(1) such preliminary and other equitable or declaratory relief as may be appropriate;(2) damages under subsection (c) and punitive damages in appropriate cases; and(3) a reasonable attorney's litigation costs reasonably incurred” in this case.
4th Federal Question:
Does Amanda Kurtz, Jen Wilkins, and Keira Ruiz bear Monell Liability under USC 1983 in that this court has long put on notice that safety plans are inherently unconstitutional. And courts have long rule that use of electronics communications are protected and require a warrant.(Doc. 11, pp. 4-5) (typographical errors in original).
As relief, Plaintiffs request:
1. Motion for preliminary injunctive relief and a Temporary Restraining order attached hereto along with evidence of Defendants accessing our social media and acquiring our devices deviously be granted to enjoin all defendants from further accessing using altering or disclosing any information to date or at any date in the future as forbidden by the ECP A “Injunctive relief is written into the law and plaintiffs pray this honorable court will grant this request.
2. Should the plaintiffs prevail on their constitutional claims that the court will render a decision that the continued use of safety plans absent procedural safeguards shall be discontinued and the county CYS shall stop threatening people with their utilization as there is already well established precedent to rule them unconstitutional.
3. Plaintiffs currently have negligible monetary damages but Plaintiffs seek punitive damages as to be awarded by the court as prescribed by law in ECPA.
4. Plaintiff's request that the court appoint counsel to assist plaintiffs in this matteras.(Doc. 11, p. 7) (typographical errors in original).
With this background in mind, we now turn to the appropriate legal standards.
III. LEGAL STANDARDS
A. Statutory Screening Obligation Under 28 U.S.C. § 1915(e)(2)
Plaintiffs Grace and Shelby Derr have been granted leave to proceed in forma pauperis. Therefore, their amended complaint is subject to the screening provisions in 28 U.S.C. § 1915(e)(2). Under this statute the Court is required to conduct a preliminary review of complaints brought by plaintiffs who have requested leave to proceed in forma pauperis and must dismiss a case sua sponte if: (i) the allegation of poverty is untrue, (ii) the action is frivolous or malicious, (iii) the complaint fails to state a claim upon which relief may be granted, or (iv) the complaint seeks money damages from a defendant who is immune from suit. The screening procedures set forth in the statute apply to in forma pauperis complaints filed by prisoners and nonprisoners alike.
See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007).
When conducting this screening analysis, district courts apply the standard governing motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. At this early stage of the litigation, the district court must:
See, e.g., Endrikat v. Ransom, No. 1:21-CV-1684, 2022 WL 4111861, at *2 (M.D. Pa. Sept. 8, 2022) (“In dismissing claims under §§ 1915(e), 1915A, and 1997e, district courts apply the standard governing motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.”).
“accept the facts alleged in [a plaintiff's] complaint as true,” “draw[ ] all reasonable inferences in [his or her] favor,” and “ask only whether [that] complaint, liberally construed, . . . contains facts sufficient to state a plausible . . . claim.” Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015).A court need not “credit a complaint's ‘bald assertions' or ‘legal conclusions,'” and does not need to assume that a plaintiff can prove facts not alleged.
Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021).
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted); Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Furthermore, a pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
B. Fed. R. Civ. P. 8: Requirements For A Complaint
A civil complaint must comply with the requirements of Rule 8(a) of the Federal Rules of Civil Procedure, which directs that a complaint must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Under this rule, a well-pleaded complaint must recite factual allegations which are sufficient to raise the plaintiffs' claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action. It requires a “showing that ‘the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); see also Phillips v. Ctny. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing BellAtl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)).
Furthermore, a document filed by plaintiffs proceeding pro se is “to be liberally construed.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
C. Claims Under 42 U.S.C. § 1983
“Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” “It is well settled that § 1983 does not confer any substantive rights, but merely ‘provides a method for vindicating federal rights elsewhere conferred.'” To establish a claim under § 1983, a plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law.
Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).
Williams v. Pa. Hum. Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Cnty., 757 F.3d 99, 104 (3d Cir. 2014)).
Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Plaintiffs have asserted two constitutional claims against Defendants in their individual capacity in their amended complaint: (1) that Defendant Kurtz impermissibly interfered with Shelby Derr's constitutional right to familial integrity when the safety plan was put in place; and (2) Defendants Wilkins and Ruiz-Ruiz violated all Plaintiffs fourth amendment rights by entering Plaintiffs' primary residence on November 12, 2022.
1. Fourteenth Amendment: Substantive Due Process & Government Infringement on Familial Rights
The Fourteenth Amendment guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. Amend. XIV, cl. 1.
The Supreme Court of the United States has recognized that parents have a protected liberty interest in the care, custody, and control of their children. The “liberty interest in familial integrity is limited by the compelling governmental interest in the protection of children.”
Troxel v. Granville, 530 U.S. 57, 65 (2000) (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925)). This right, however, is not absolute. Clayworth v. Luzerne Cnty. Pa., 513 Fed.Appx. 134, 137 (3d Cir. 2013) (citing Croft v. Westmoreland Cty. CYS, 103 F.3d 1123, 1125 (3d Cir. 1997)).
Clayworth, 513 Fed.Appx. at 137.
As explained in Billups v. Penn State Milton S. Hershey Med. Ctr.:
To prevail on a substantive due process claim premised on the unwarranted infringement of familial rights, parents must demonstrate that the government action at issue was so egregious or ill conceived that it “shocks the conscience.” Miller [v. City of Phila., 174 F.3d 368, 375 (3d Cir. 1999)]; see also Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). This “conscience-shocking” standard is not satisfied by demonstrating that the government action was merely negligent. Id. Rather, the government action must “exceed both negligence and deliberate indifference, and reach a level of gross negligence or arbitrariness that indeed ‘shocks the conscience.' ” Id. at 375-76. In assessing this issue, the “fundamental liberty interests of the family unit” must be balanced against “the compelling interests of the state in protecting children from abuse.” Croft, 103 F.3d at 1125. “[Disruption or disintegration of family life” due to a child abuse investigation “does not, in and of itself, constitute a constitutional deprivation.” Id. at 112526. In fact, a government actor may constitutionally override parents' rights to the care, custody, and control of their children if he or she possesses “some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse.” Id. at 1126. When a government actor possesses such evidence, his or her removal of a child from the parents' custody does
not infringe on the parent's rights, even if evidence produced during the course of an investigation demonstrates that no abuse occurred. Id. To the contrary, a government actor infringes on the parents' rights by removing a child from their custody if he or she “consciously disregard[s] a great risk that there had been no abuse .” Ziccardi v. City of Phila., 288 F.3d 57, 66 (3d Cir. 2002) (citing Miller, 174 F.3d at 375).
Billups v. Penn State Milton S. Hershey Med. Ctr., No. 1:11-CV-01784, 2012 WL 1392294, at *8 (M.D. Pa. Apr. 23, 2012).
2. Fourth Amendment: Illegal Entry
Plaintiffs allege a claim of illegal entry under the Fourth Amendment to the United States Constitution. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” “To search a person's home and belongings, police officers ordinarily must first seek a warrant based on probable cause supported by oath or affirmation. Warrantless searches are presumptively unreasonable under the Fourth Amendment.” However, the warrant requirement may be excused in certain situations, such as when there are exigent circumstances or where they have been given consent to search.
U.S. Const. amend. IV (emphasis added).
Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996).
Id.
D. Claims Under Title I of the Electronic Communication Privacy Act
In their amended complaint, Plaintiffs assert a claim under Title I of the Electronic Communications Privacy Act, also referred to as the Wiretap Act, 18 U.S.C. §§ 2510 to 2523. A plaintiff pleads a case under the Act “by showing that the defendant ‘(1) intentionally (2) intercepted, endeavored to intercept or procured another person to intercept or endeavor to intercept (3) the contents of (4) an electronic communication, (5) using a device.'” “[O]rdinarily, no cause of action will lie against a private person ‘where such a person is a party to the communication or where one of the parties to the communication has given prior consent to such interception.'”
In re Google Inc. Cookie Placement Consumer Priv. Litig, 806 F.3d 125, 135 (3d Cir. 2015) (quoting In re Pharmatrak, Inc., 329 F.3d 9, 18 (1st Cir. 2003) (citing 18 U.S.C. § 2511(1)(a)); see also 18 U.S.C. § 2520 (creating a civil cause of action).
In re Google Inc. Cookie Placement Consumer Priv. Litig, 806 F.3d at 135 (citing 18 U.S.C. § 2511(2)(d)).
In this context, “intercepting” means “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Liability attaches only if the interception occurs contemporaneously with the communication's transmission. Once the transmission of the electronic communication ends, the communication is considered to be in electronic storage and it is subject to Title II of the ECPA, also known as the Stored Communications Act, 18 U.S.C. §§ 2701 to 2713.
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003).
Examples of contemporaneous interception include acquiring communications through the use of a web-based software that contemporaneously forwards communication sent from a device to a private server where it is stored for later review, and using a key logger program.
Luis v. Zang, 833 F.3d 619 (6th Cir. 2016); Rich v. Rich, No. BRCV200701538, 2011 WL 3672059, at *5 (Mass. Super. July 8, 2011).
E. Municipal Liability Under 42 U.S.C. § 1983
The United States Supreme Court has held that municipalities and other local governmental units are “persons” subject to liability under 42 U.S.C. § 1983. Municipal liability under § 1983, however, may not be premised on the mere fact that the municipality employed the offending official (i.e., through the application of respondeat superior). Instead, a municipality may be liable under § 1983 only when its policy, practice or custom inflicts the injury. This requirement distinguishes acts of the municipality from acts of its employees, thereby limiting liability under § 1983 for acts which the municipality is actually responsible.
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).
Id. at 694.
Id.
As this court has explained:
A municipal policy is a “statement, ordinance, regulation, or decision officially adopted and promulgated by [a local governing] body's officers.” See City of Canton v. Harris, 489 U.S. 378, 385 (1989). A custom is “an act ‘that has not been formally approved by an appropriate decision maker,' but is ‘so widespread as to have the force of law.' ” See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Bd. of the Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)). “[A] policy or custom may also exist where ‘the policymaker has failed to act affirmatively at all, [though] the need to take some action to control the agents of the government is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.' ” Id. In order to recover from a municipality under this theory of liability, a Plaintiff must show “a direct causal link between the municipal policy or custom and the alleged constitutional deprivation.” See City of Canton, 489 U.S. at 385.
McPherson v. Cnty. of Dauphin, No. 1:19-CV-1865, 2020 WL 1558206, at *4 (M.D. Pa. Mar. 24, 2020).
F. Fed. R. Civ. P. 65: Temporary Restraining Orders & Requests for Preliminary Injunctions
Plaintiffs have filed motions in this case requesting a preliminary injunction and temporary restraining order based on their Wiretap Act claim. The purpose of a preliminary injunction is to “preserve the status quo until the rights of the parties can be fairly and fully litigated and determined by strictly legal proofs and according to the principles of equity.” A temporary restraining order may be appropriate in cases where irreparable injury may occur before a hearing for a preliminary injunction can be held.
Harrison v. Little, No. 1:22-CV-105-SPB-RAL, 2022 WL 18359430 at *2 (W.D. Pa. Dec. 5, 2022) (citing Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980)).
See 11A Wright & Miller, Federal Practice and Procedure, § 2951 (3d ed, Apr. 2022 update).
Rule 65 of the Federal Rules of Civil Procedure governs the issuance of temporary restraining orders and preliminary injunctions. Such requests are typically reviewed using the same standards. One notable difference between a preliminary injunction and temporary restraining order is that:
The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.In contrast, the court may issue a preliminary injunction only on notice to the adverse party.
A party seeking preliminary injunctive relief, or a temporary restraining order, must satisfy four elements to obtain this type of emergency relief:
(1) a likelihood of success on the merits; (2) he or she will suffer irreparable harm if the injunction is denied; (3) granting relief will not result in even greater harm to the non-moving party; and (4) the public interest favors such relief.The first two elements of this analysis are critical. “Only if these ‘gateway factors' are satisfied may the court consider the third and fourth factors, which aim to balance the equities by examining the potential for harm to others if relief is granted and whether the public interest favors injunctive relief.”
Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (citing Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004)).
Camacho Lopez v. Lowe, 452 F.Supp.3d 150, 157 (M.D. Pa. 2020) (citing Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017)).
IV. DISCUSSION
A. Plaintiff Shelby Derr's Fourteenth Amendment Substantive Due Process Claim Should be Dismissed
Plaintiffs allege that Defendant Houser made two reports of suspected child abuse against his former paramour, Plaintiff Shelby Derr. Those reports included allegations that Plaintiff Shelby Derr was using illegal drugs, her children were exposed to those drugs, and that Plaintiff Shelby Derr threatened her children with serious bodily harm. Defendant Houser provided Facebook messages sent by Plaintiff Shelby Derr, text messages sent by Plaintiff Shelby Derr, and images to support his accusations.
As noted in the Background Section (p. 4, supra), Plaintiffs allege that, on October 11, 2022, Defendant Kurtz “appeared at the home of Plaintiff Shelby Derr and demanded a drug test.” (Doc. 11, p. 1). Plaintiff Shelby Derr tested positive for narcotics. Id. That evening, Plaintiff Shelby Derr signed a voluntary safety plan. Pursuant to that plan, the children were removed from Plaintiff Shelby Derr's home and given over into the care of Plaintiff Grace Derr while Plaintiff Shelby Derr attended rehab. Plaintiff Shelby Derr now alleges that the safety plan, under which her children were removed from her home, violated her substantive due process right to care, retain custody of and control her children.
Based on the facts alleged in Plaintiffs' amended complaint, we find that Plaintiffs have failed to plead facts that could give rise to a plausible substantive due process claim. It appears, based on the face of the amended complaint, that Defendant Kurtz received a report of suspected child abuse, was given evidence (text messages and photographs) to support that report, and independently confirmed some of those reports when Plaintiff Shelby Derr tested positive for narcotics. Taken as true, these facts suggest that Defendant Kurtz had a reasonable belief supported by evidence that the children were in danger of abuse when she removed them from Plaintiff Shelby Derr's home. Defendant Kurtz's actions are not egregious and do not shock the conscious.
Even if, as Plaintiffs allege, the reports of child abuse and evidence provided to Defendant Kurtz were falsified by Defendant Houser, this claim should still be dismissed. Once in possession of evidence giving rise to a reasonable belief that the children were in danger of abuse, removal of the children does not infringe on Plaintiff Shelby Derr's rights, even if it is later determined that no abuse occurred.
B. Plaintiffs' Fourth Amendment Claim
1. Plaintiffs Grace and Shelby Derr's Fourth Amendment Claim Should be Permitted to Proceed
On November 12, 2022, after receiving reports that the children had ingested illegal narcotics, Defendants Wilkins and Ruiz-Ruiz went to the Derr residence to investigate. Two adults (Matthew Derr and Mary Baker) present at the time advised them that no one was permitted entry into the home without a warrant. (Doc. 11, p. 3). Plaintiffs allege Defendants Wilkins and Ruiz-Ruiz told them “they did not need a warrant where any child resides and they have a ‘standing warrant.'” (Doc. 11, p. 3). Plaintiffs allege that, despite the reference to a standing warrant, Defendants did not produce one. Id.
Applying the liberal standard applicable to pro se pleadings, making all reasonable inferences in Plaintiffs' favor, and considering the specific allegations, Plaintiffs have pleaded sufficient facts to support their Fourth Amendment claim. To the extent Plaintiffs allege that Defendants Wilkins and Ruiz-Ruiz entered their residence on November 12, 2022, based on allegations that they could enter any home where a child resides, or misrepresented that they had a “standing warrant” when they did not, this claim should be permitted to proceed on behalf of Plaintiffs Grace and Shelby Derr only.
2. The Fourth Amendment Claim Asserted on Behalf of JMH Jr. and GMH should be Dismissed
In the amended complaint, this Fourth Amendment claim is asserted on behalf of all Plaintiffs. To the extent that includes minor children JMH Jr. and GMH, this claim should be dismissed. Although a litigant has a right to act as his or her own counsel, see 28 U.S.C. § 1654, this right does not extend to claims brought by pro se litigants on behalf of a minor child. Accordingly, the Court recommends dismissal without prejudice of any potential Fourth Amendment claims against Defendants Wilkins and Ruiz-Ruiz on behalf of Plaintiff Shelby Derr's children (JMH Jr. and GMH), in the event that those claims may be asserted in another lawsuit with the assistance of professional legal counsel.
See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991) (holding that pro se litigant is not permitted to represent his minor children); Williams v. United States, 477 Fed.Appx. 9, 11 (3d Cir. 2012) (not precedential) (per curiam) (holding that plaintiff with power of attorney for her father is not permitted to represent her father pro se in federal litigation); see also Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (“We hold that under Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney.”).
See Norman v. Greenwood Cnty. Sch. Dist. 52, No. 8:13-421-TMC-JDA, 2013 WL 1281926, at *2 (D.S.C. Mar. 4, 2013) (summarily dismissing a complaint filed by a pro se plaintiff asserting injuries suffered by minor child and advising plaintiff that “if, following summary dismissal of th[e] improperly brought case, [p]laintiff still wants to pursue [the minor child's] alleged constitutional claims, professional legal counsel must be obtained to represent the minor child in any such lawsuit”), report and recommendation adopted, 2013 WL 1281922.
C. Plaintiffs' Wiretap Act Claims Should be Dismissed
To the extent Plaintiffs allege a civil Wiretap Act claim on behalf of the minor children, they have failed to allege any facts to support it. Accordingly it should be dismissed.
With respect to Plaintiff Shelby Derr, Plaintiffs allege that Plaintiff Shelby Derr gave her Facebook account information to Defendant Houser, then did not change her passwords after they became estranged. They allege that Defendant Houser logged in to Plaintiff Shelby Derr's account and acquired old pictures and messages, which he allegedly altered. Plaintiffs have not alleged any facts that suggest contemporaneous acquisition or “interception” of any communications. Accordingly, the Wiretap Act claim should be dismissed as to Plaintiff Shelby Derr.
With respect to Plaintiff Grace Derr, Plaintiffs allege that Defendant Houser interfered with Plaintiff Grace Derr's email account by entering incorrect passwords. This resulted in the account being temporarily “locked.” Plaintiffs have alleged no facts that would support a reasonable inference that Defendant Houser was attempting to “intercept” communications. These allegations, without more, are not sufficient to state a plausible civil Wiretap Act claim.
D. Plaintiffs' MONELL Claims Should be Dismissed
Plaintiffs have sued the Northumberland County CYS employees in their official capacity. This amounts to a claim against Northumberland County itself. Plaintiffs assert that Northumberland County has a policy of using unconstitutional safety plans and of allowing use of intercepted communications, and is therefore liable under the Fourteenth Amendment and Wiretap Act. As explained in Sections IV(A) and (C) of this Report, Plaintiffs have not alleged plausible Fourteenth Amendment or Wiretap Act claims. Absent any underlying violation of Plaintiffs' rights, the Monell claims should also be dismissed.
The Court construes the Amended Complaint as alleging Monell claims against the Northumberland County Defendants. All other claims are construed as brought against these Defendants in their individual capacities only.
Plaintiffs do not plead any violation of their Fourth Amendment rights in their Monell claim. (Doc. 11, p. 5). They reference only the “safety plan” and the Wiretap Act claim as a basis for Monell liability.
Bittner v. Snyder Cnty., No. 08-CV-707, 2009 WL 179776, at *8 (M.D. Pa. Jan. 26, 2009).
E. Plaintiffs' Request for Counsel Should Be Denied
As relief in their complaint, Plaintiffs' request that the court appoint counsel to represent them in this action.
Although litigants have no constitutional or statutory right to appointment of counsel in a civil case, the court has discretion to request “an attorney to represent any person unable to afford counsel.” Under § 1915(e)(1), the court may request an attorney to represent any person unable to employ counsel. The district court's decision to appoint counsel is discretionary and must be made on a case-by-case basis.
28 U.S.C. § 1915(e)(1); see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993); Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997).
Tabron, 6 F.3d at 157-58.
The United States Court of Appeals for the Third Circuit has stated that appointment of counsel for indigent litigants should be made when circumstances indicate “the likelihood of substantial prejudice to [them] resulting, for example, from [their] probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case.” The initial determination to be made by the court in evaluating the expenditure of the “precious commodity” of volunteer counsel is whether the plaintiff's case has some arguable merit in fact and law. If a plaintiff overcomes this threshold hurdle, other factors to be examined are:
Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).
Montgomery, 294 F.3d at 499.
(1) the plaintiff's ability to present his or her own case; (2) the difficulty of the particular legal issues; (3) the degree to which factual investigation will be necessary and the ability of the claimant to pursue investigation; (4) the plaintiff's capacity to retain counsel on his or her own behalf; (5) the extent to which the case is likely to turn on credibility determinations; and (6) whether the case will require testimony from expert witnesses.
Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57).
Another practical consideration must also be taken into account when considering a request to appoint counsel. As the Third Circuit has observed:
. . . we must take note of the significant practical restraints on the district courts' ability to appoint counsel: the ever-growing number of prisoner civil rights actions filed each year in the federal courts; the lack of funding to pay appointed counsel; and the limited supply of competent lawyers who are willing to undertake such representation without compensation. We have no doubt that there are many cases in which district courts seek to appoint counsel but there is simply none willing to accept appointment. It is difficult to fault a district court that denies a request for appointment under such circumstances.
Tabron, 6 F.3d at 157.
At this stage of litigation, the Court cannot determine with any degree of certainty that Plaintiffs have set forth a claim where they are likely to prevail. Even if Plaintiffs met this threshold, however, Plaintiffs would not suffer prejudice if required to litigate this case without the assistance of counsel at the present time.
Plaintiffs are proceeding in forma pauperis in this case. Therefore, they are unlikely to be able to afford counsel. However, they have demonstrated an ability to present their own case, the legal and factual issues raised in their Fourth Amendment claim do not appear especially complex. Furthermore, it does not appear that Plaintiffs would be unable to pursue factual investigation of their claims. The Court cannot, at this early stage, determine the extent to which the case is likely to turn on credibility determinations. It seems unlikely, however, that an expert witness will be required. Considering the balance of these factors, we find that Plaintiffs would not be prejudiced if required to litigate this case without the assistance of counsel at this time.
However, if further proceedings demonstrate a need for counsel, Plaintiffs may renew their request by filing another motion to appoint counsel.
F. Plaintiffs' Motions for Temporary Restraining Orders & Preliminary Injunction Should be Denied
Along with their original and amended complaints, Plaintiffs filed motions requesting a temporary restraining order and preliminary injunction. (Docs. 4, 10).
In the first motion for preliminary injunction and temporary restraining order, Plaintiff Grace Derr requests that the Court enjoin:
Defendants Houser SR, Northumberland County Children and Youth et al, from destroying or disposing of phones and other devices that document the utilization of messages from facebook. Further. Plaintiffs ask the court to enjoin defendants the intentional actual or attempted interception, use, disclosure, or ‘procurement of any other person to intercept or endeavor to intercept any wire, oral or electronic communication.(Doc. 4) (errors in original).
In the second motion for preliminary injunction and temporary restraining order, Plaintiffs Grace and Shelby Derr similarly request that the Court enjoin:
defendants Joseph Houser SR, Northumberland County Children and Youth et al, from destroying or disposing of phones and other devices that document the utilization of messages from Facebook. Further. Plaintiffs ask the court to enjoin defendants the intentional actual or attempted interception, use, disclosure, or “procurement of any other person to intercept or endeavor to intercept any wire, oral, or electronic communication.(Doc. 11) (errors in original).
Plaintiffs generally allege that Defendant Houser and several Northumberland County CYS employees violated the Wiretap Act, and that Plaintiffs will be irreparably harmed if the information that was “intercepted” is used against them. They also argue that they will “establish claims at trial,” and have attached exhibits to offer substantial proof that 18 U.S.C. § 2520 has been violated.
Plaintiffs, through their requests for an injunction and temporary restraining order, apparently hope to achieve two purposes. First, they seek to suppress evidence for use in what appears to be an ongoing state court custody matter. Second, they seek the preservation of evidence to support an implausible legal claim under the Wiretap Act. Their requests should be denied.
To the extent Plaintiffs request injunctive relief related to an ongoing state court custody matter, it may also be appropriate to abstain under the principles of Younger. Shallenberger v. Allegheny Cnty. CYS, No. 2:20-CV-73, 2020 WL 1465853 at *7 (W.D. Pa. Mar. 26, 2020).
Plaintiffs' requests for a temporary restraining order are not supported by a signed affidavit or verified complaint signed under penalty of perjury. They also have not certified in writing any efforts made to give notice of their request to Defendants or offered any reason why that notice is not required. Therefore, their requests for a temporary restraining order do not comply with Rule 65(b) of the Federal Rules of Civil Procedure.
Even if Plaintiffs properly presented their requests for a temporary restraining order to the Court, however, the requests for both a temporary restraining order and preliminary injunction should be denied. There is no likelihood of success on the merits of Plaintiffs' Wiretap Act claim. As explained supra, this claim has not been plausibly pleaded in Plaintiffs' original or amended complaint. We have recommended it be dismissed. Therefore, Plaintiffs' requests for preliminary injunctive relief and a temporary restraining order should also be denied.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that Plaintiffs' amended complaint be DISMISSED IN PART pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and their motions for preliminary injunction and temporary restraining order be DENIED as follows:
(1) Plaintiffs' Fourteenth Amendment Substantive Due Process claim should be DISMISSED;
(2) Plaintiffs' civil Wiretap Act claim should be DISMISSED;
(3) Plaintiffs' Monell claims should be DISMISSED;
(4) Only Plaintiffs Grace and Shelby Derr's Fourth Amendment illegal entry claim against Defendants Wilkins and Ruiz-Ruiz should be permitted to proceed;
(5) The Clerk of Court should be DIRECTED to terminate Plaintiffs JMH Jr. and GMH, and Defendants Houser and Kurtz as parties to this case; and
(6) Plaintiffs motions requesting a temporary restraining order and preliminary injunction (Docs. 4, 10) should be DENIED.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.