                                                          NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 12-3263
                                    ___________

       J.R.; J.E.R., JR.; A.M., Individually and as natural parents on behalf of
                      J.G.R., A.S.R., M.J.R., and S.M.R., Minors,


                                          v.

LEHIGH COUNTY; DONALD T. CUNNINGHAM, JR.; LEHIGH COUNTY OFFICE OF
  CHILDREN & YOUTH SERVICES; PAMELA BUEHRLE; CYNTHIA CLAY; AMY
DOWD; PINEBROOK SERVICES FOR CHILDREN AND YOUTH, INC.; ROBERT M.
 JACOBS; FOSTER PARENTS JOHN DOE 1, JANE DOE 1, JOHN DOE 2, AND JANE
  DOE 2; CARBON LEHIGH INTERMEDIATE UNIT 21; ROBERT KEEGAN; JOHN
 HOUSER; COLLEEN BESZ; VANCE FERRELL; SALISBURY TOWNSHIP; LARRY
UNGER; JAMES BROWN; NORMA CUSICK; ROBERT MARTUCCI; MARY YODER;
    LINDA MINGER; ALLEN STILES, Police Chief; KEVIN SOBERICK; KYLE
                  REHATCHEK; OFFICER JOHN DOE 3;
                         OFFICER JOHN DOE 4


                   Jason Rose; James E. Rose, Jr.; Adriane Mills,
                                                        Appellants
                    ____________________________________

                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                      (D.C. Civil Action No. 5-09-cv-06207)
                   District Judge: Honorable Legrome D. Davis
                   ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  July 26, 2013

          Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges

                           (Opinion filed: August 2, 2013)
                                        ___________

                                         OPINION
                                        ___________
PER CURIAM

      Appellants appeal from an order of the District Court granting summary judgment in

favor of Lehigh County, Donald T. Cunningham, Jr., the Lehigh County Office of Children

and Youth Services, Pamela Buehrle, Cynthia Clay, Amy Dowd (collectively “county

Appellees”), Colleen Besz, and Vance Ferrell.1 For the following reasons, we will affirm the

grant of summary judgment.

      Appellants, individually and as natural parents on behalf of several minor children, filed

suit against the Appellees seeking $14 million in damages for alleged violations of their

constitutional rights, 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and state tort law. The claims

arose from an incident in January 2008 in which minor children of the adult Appellants were

taken into protective custody pursuant to an oral, ex parte order from a judge of the Lehigh

County Court of Common Pleas.

      During the morning of Friday, January 25, 2008, then eleven-year-old G.L.R.

(Appellant J.E.R., Jr.’s daughter) told her teacher and teacher’s assistant (Appellees Besz and

Ferrell) that her father’s attorney had fondled her and her father did nothing to protect her.

Besz and Ferrell, who as teachers are required by state law to report sexual abuse complaints,


1
  Appellants’ claims against the other defendants named in the caption of this case were
previously dismissed by the District Court. With the exception of the claim discussed in note
4, infra, the previously dismissed claims are not before the Court. We consider only those
claims addressed in the briefs filed by Appellants J.E.R., Jr and A.M., the sole appellants who
may proceed in this appeal.

                                            2
filed a report with the state’s child abuse hotline. The Lehigh County Office of Children and

Youth Services (“OCYS”) evaluated the complaint. According to OCYS policy, G.L.R.’s

firsthand report of abuse made directly to a mandated reporter constituted a “reliable referral.”

OCYS sought an emergency court order to remove minor children from Appellants’ home

based on the report of sexual abuse and the family’s history with OCYS. OCYS obtained an

oral, ex parte court order and took custody of Appellants’ minor children on Friday, January

25, 2008, placing them in two separate foster homes. The children did not remain in foster

care for long. One child was released on Saturday, January 26th. Another was released after a

hearing on Monday, January 28th.        The remaining children were released the next day,

Tuesday, January 29th, after G.L.R. admitted her claim was false.

       In her deposition, G.L.R. said she made up the claim because she wanted to live with

her mother. She gave no indication to her teachers that she was lying, even though she knew

her conduct was wrong. G.L.R. also testified that several weeks before she reported the lie,

she told Appellee Ferrell that she wanted to live with her mother and he responded that she

should make up a story to get out of her father’s home. However, G.L.R. admitted that Ferrell

did not give her specifics about what to say and that it was solely her decision to make up the

claim of sexual abuse.2

       Despite the short stay in foster care, Appellants claimed that their children were injured

when they were removed from their home against their will, and that one child was placed in a

home without necessary medication and was exposed to allergens. Although the Appellants


2
 Ferrell denied telling G.L.R. to make up a story, but the District Court assumed the truth of
G.L.R.’s account for purposes of evaluating the summary judgment motions.
                                            3
alleged numerous violations of their rights, only a few claims remained against the Appellees

at the time they filed for summary judgment. These were due process claims stemming

primarily from Appellants’ allegation that the teachers and OCYS acted on G.L.R.’s complaint

despite knowing that it was false.      By order entered July 20, 2012, the District Court

determined that the complained of actions did not rise to the level of due process violations and

granted the Appellees’ motions for summary judgment. This appeal followed.

       We exercise jurisdiction under 28 U.S.C. § 1291 and review de novo the District

Court’s order granting summary judgment to Appellees.           See Barefoot Architect, Inc. v.

Bunge, 632 F.3d 822, 826 (3d Cir. 2011). “Summary judgment should be granted only when

the record ‘shows that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.’”       Id. (quoting Fed. R. Civ. P. 56(c)).

Summary judgment is appropriate when “the nonmoving party has failed to make a sufficient

showing on an essential element of [the] case with respect to which [the nonmovant] has the

burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

       Before turning to the due process claims, we must address two preliminary matters.

First, we agree with the District Court’s dismissal of all claims brought on behalf of the 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, such as the Appellants, 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).        Second, we also agree with the District Court’s

application of the sham affidavit doctrine to reject an affidavit from G.L.R. “A sham affidavit


                                             4
is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story

or is willing to offer a statement solely for the purpose of defeating summary judgment.”

Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). The timing of the

affidavit, whether there is a plausible explanation for the contradictory statements, and whether

there is independent evidence in the record supporting the affidavit, may be considered when

determining whether an affidavit is a sham. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d

253, 268-69 (3d Cir. 2010). In this case, G.L.R. submitted an affidavit that conflicted with her

prior deposition testimony after the close of discovery and after the Appellees filed summary

judgment motions. Whereas G.L.R. testified that only her teacher’s assistant, Ferrell, told her

to make up a story, in her affidavit she also implicated her teacher, Besz. In addition, she

averred that Besz told her that “if your father hits you, it would be a way for you to get out of

his home,” contradicting her deposition testimony that she was never told what to say. No

explanation was given for these contradictory accounts. In light of the questionable timing of

the affidavit and the unexplained conflict with the prior deposition testimony, the District

Court did not err by concluding that the affidavit was offered for the purpose of defeating

summary judgment. Appellant J.E.R., Jr.’s contention that the District Court was “hostile” to

G.L.R. does not undermine the court’s reasonable application of the sham affidavit doctrine to

reject her affidavit.

       We now turn to Appellants’ remaining claims against the teachers and the county

Appellees. To establish a claim under 42 U.S.C. § 1983, “plaintiffs must show that the

defendant, under the color of state law, deprived them of a federal constitutional or statutory


                                              5
right.” Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (citation omitted). As the District

Court noted, Appellants’ claims regarding the fabricated tale of abuse and the responsive

actions taken by Appellees sound in substantive due process. It is well-recognized that natural

parents have a fundamental liberty interest in the care, custody, and management of their

children. See Miller v. City of Philadelphia, 174 F.3d 368, 374 (3d Cir. 1999). But this liberty

interest must be balanced against the government’s compelling interest to protect children, and

“does not include a right to remain free from child abuse investigations.”             Croft v.

Westmoreland Cnty. Children & Youth Serv., 103 F.3d 1123, 1125 (3d Cir. 1997) (citation

omitted).   “[O]nly the most egregious official conduct” violates substantive due process.

Miller, 174 F.3d at 375 (citation omitted). In other words, the complained of action “must be

so ill-conceived or malicious that it ‘shocks the conscience.’” Id. (citation omitted). Although

this is a contextual analysis, we have warned that parents “cannot maintain a due process

violation when the conduct complained of was devoid of any form of constraint or

compulsion.” Anspach ex rel. Anspach v. Philadelphia Dep’t of Public Health, 503 F.3d 256,

264 (3d Cir. 2007).

      Appellants claimed that the teacher’s assistant, Ferrell, violated their rights by

manipulating G.L.R. into lying about sexual abuse. The District Court concluded that G.L.R.’s

decision to lie was her own, and that there was no evidence that she had been compelled or

coerced to do so. The court relied on the facts that G.L.R. admitted that it was her decision to

make up the lie; she knew what she was doing was wrong, and Ferrell did not give her

specifics about what to say, and did not in any way control her. Moreover, accepting G.L.R.’s


                                            6
version of events as true, Ferrell did not initiate the intrusion into G.L.R.’s family. Instead she

came to him to find a way out of her father’s home. Finally, Ferrell did not plant a new idea in

G.L.R.’s mind: G.L.R. knew that the ploy might work because she had a prior history of

fabricating allegations of abuse that resulted in removal from her father’s home. Under these

facts, the District Court concluded that G.L.R. had not been compelled or coerced by Besz and

Ferrell to lie and, therefore, their actions did not shock the conscience in the constitutional

sense.

         Appellant J.E.R., Jr. argues that this case is akin to Morris v. Dearborne, 181 F.3d 657

(5th Cir. 1999), where a teacher’s conduct was held to shock the conscience. That case,

however, is factually distinguishable. In Morris, the teacher herself fabricated a story of abuse

that the four-year-old alleged victim was incapable of doing on her own. Id. at 668. Here, an

eleven-year-old was given the suggestion to lie, something she had already done in the past.

Even taking into account G.L.R.’s emotional problems, as the District Court did, the fact still

remains that she admitted she voluntarily lied. Accordingly, the District Court appropriately

granted summary judgment to Besz and Ferrell because there was no issue of material fact

regarding coercion.

         Appellants contended that the county Appellees violated their substantive due process

rights by seeking the ex parte court order for protective custody despite knowing that the report

of abuse was false. They also contended that the Appellees refused to take instructions

regarding one child’s medical needs, and placed the children in foster homes where they were

exposed to allergens and insects and referred to as “white.” The District Court concluded that


                                              7
these complained of actions did not “shock the conscience” because (1) there was no evidence

in the record suggesting that the Appellees knew the report of abuse was false at the time they

sought the court order; (2) there was uncontested evidence that OCYS informed the foster

parents of the child’s allergies and that the foster parents obtained his medication; and (3) any

exposure to allergens and insects was limited because the children were returned to their

natural parents within days. We agree with the District Court’s analysis and conclude that the

grant of summary judgment to the county Appellees on these claims was appropriate.

       Finally, Appellants claimed that the county Appellees violated their procedural due

process rights by not following a state statutory mandate to see G.L.R. immediately after

receiving the report of abuse. They reason that, if this had happened, G.L.R. would have

admitted the lie and the children would not have been taken into protective custody. The

statute Appellants rely on states, in part, that “[u]pon receipt of each report of suspected child

abuse, the county agency shall immediately commence an appropriate investigation and see the

child immediately if emergency protective custody is required.” 23 Pa. Cons. Stat. Ann. §

6368(a). G.L.R. apparently was not seen by OCYS until four days after the report of abuse.

Whether OCYS followed a procedure required by state law, however, is not determinative of

whether the agency violated Appellants’ procedural due process rights under the Constitution.

“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful

time and in a meaningful manner.’” Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (citation

omitted). In the child protective custody context, initiating proceedings by an ex parte court

order is generally constitutional if a prompt post-deprivation hearing is held. See Miller, 174


                                             8
F.3d at 372 n. 4. Although there is no bright-line rule for determining whether a post-

deprivation hearing is prompt, the delay between taking a child into protective custody and

holding a hearing should be measured in hours or days, rather than weeks. See e.g., Tower v.

Leslie-Brown, 326 F.3d 290, 299 (1st Cir. 2003); Jordan v. Jackson, 15 F.3d 333, 351 (4th Cir.

1994). Here, a removal hearing was held on Monday, January 28, 2008, within seventy-two

hours of the children being taken into protective custody.3 No genuine issue of material fact

exists as to whether the hearing was prompt in this case, and the District Court’s grant of

summary judgment in favor of the county Appellees on the procedural due process claim was

appropriate.

       For these reasons, we will affirm the judgment of the District Court.4 We will dismiss

the appeal as to Appellant J.R. for failure to prosecute. See L.A.R. 107.2.




3
 We note that the hearing took place within the timeframe required by state statute. See 23 Pa.
Cons. Stat. Ann. § 6315(d). Appellants do not challenge the constitutionality of that statute.
Nor do they challenge the OCYS policy that required OCYS to deem the report in this case to
be a “reliable referral,” which, in combination with the family’s history with the agency,
caused OCYS to seek emergency protective custody.
4
  Appellant J.E.R., Jr. also argues that police officers who assisted OCYS workers in removing
the minor children violated his Fourth Amendment rights because they acted without probable
cause. The District Court previously dismissed this claim because the officers acted pursuant
to a court order and Appellants had not alleged any facts suggesting reckless disregard for the
truth, fraud, or bad faith on the part of the officers in carrying out the order. We will affirm the
District Court’s disposition of this claim.
                                                9
