                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2005

Brown v. Daniels
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3664




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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 No. 04-3664
                              ________________

                              KEVIN E. BROWN;
                               ERICA BROWN,

                                             Appellants

                                       v.

                    TINA DANIELS; BRANDY NEIDER;
                 BERKS COUNTY CHILDREN AND YOUTH
                               SERVICES
                  ___________________________________

                 On Appeal From the United States District Court
                     For the Eastern District of Pennsylvania
                           (D.C. Civ. No. 03-cv-04242)
                   District Judge: Honorable Petrese B. Tucker
                 _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                                April 4, 2005

          BEFORE: ALITO, SMITH and BECKER, CIRCUIT JUDGES

                             (Filed April 25, 2005)

                          _______________________

                                 OPINION
                          _______________________

PER CURIAM

    Kevin Brown and Erika Brown (collectively, “the Browns”) appeal pro se from the
order of the United States District Court for the Eastern District of Pennsylvania

dismissing their action filed pursuant to 42 U.S.C. § 1983. For the reasons that follow,

we will affirm in part and vacate in part the District Court’s judgment.

       Because we write only for the parties, we will briefly summarize only those facts

essential to our disposition of this appeal. On May 21, 2003, the Browns’ minor child,

Travonne Lydell Wilson, was removed from their home by his maternal aunt, Catherine

Smith. Smith then transported Travonne to Berks County Children and Youth Services

(“BCCYS”), where he was interviewed and examined by BCCYS employee, Tina

Daniels. At that time, Daniels, who had received a report that Travonne was being

physically abused by Kevin Brown, observed multiple bruises on Travonne’s upper rear

thighs. According to the Browns, Daniels then contacted them at work, advised them that

Travonne had been placed with his maternal grandmother pursuant to Pennsylvania state

law, and that they should “stay away” from Travonne until the completion of her

investigation. Approximately one week later, Daniels notified the Browns in writing of

the alleged physical abuse report. It is unclear from the record what transpired until July

9, 2003, when a Juvenile Court hearing was conducted. At the July 9 hearing, the

Juvenile Court directed the family to begin counseling, and ordered Travonne to “remain

in residence with his grandmother under protective supervision of [BCCYS].”

       On August 11, 2003, the Browns filed the underlying complaint in the District

Court for the Eastern District of Pennsylvania. The Browns alleged that Daniels,



                                             2
Supervisor Brandy Neider and BCCYS (collectively, “the appellees”) violated their

substantive due process rights by examining Travonne; notifying Kevin Brown’s

employer of the abuse allegations; and harassing them “during the healing process.” The

Browns further alleged that the appellees violated their procedural due process rights by

removing Travonne from their home without a court order or hearings as required by

Pennsylvania law.1 The Browns sought punitive and compensatory damages for their

“mental anguish and physical suffering.” The appellees filed a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6).2 On August 13, 2004, the District

Court granted the motion to dismiss, determining that the Browns had failed to state a

claim alleging violations of their due process rights or of the Child Protective Services

Law, 23 Pa.C.S.A. § 6301 et seq., and that, in any event, the appellees were entitled to



       1
          In their complaint, the Browns vaguely alleged that their other minor child,
Trista Lynn Wilson, was “ordered to stay with” the maternal grandmother in an “unsafe
environment.” The Browns failed to elaborate factually or legally on this claim either in
the District Court or on appeal. Such conclusory allegations are simply insufficient to
state a claim. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)
(stating that “a court need not credit a complaint’s bald assertions or legal conclusions
when deciding on a motion to dismiss”) (internal quotations omitted). Accordingly, the
District Court properly dismissed the Browns’ claims to the extent that they related to
Trista.
       2
         Thereafter, the appellants filed a motion for leave to amend their complaint,
seeking to add as defendants: juvenile court judge, Maryann Campbell; court-appointed
expert, Thomas G. Baker, Ph.D.; and BCCYS caseworker, James Trump. On February
26, 2004, the District Court denied in part and dismissed without prejudice in part the
appellants’ motion to amend. The appellants neither challenge this ruling on appeal, nor
have they provided any factual or legal support for claims against these putative
defendants.

                                             3
qualified immunity. This timely appeal followed.

       Our standard of review of the District Court’s dismissal under Rule 12(b)(6) is

plenary. See Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). “We must

determine whether, under any reasonable reading of the pleadings, the plaintiffs may be

entitled to relief, and we must accept as true the factual allegations in the complaint and

all reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65

(3d Cir. 1996).

       The Browns challenge two of the District Court’s procedural rulings on appeal.

First, the Browns argue that the District Court erred in considering materials outside of

the pleadings when it granted the appellees’ motion to dismiss. “In deciding motions to

dismiss pursuant to Rule 12(b)(6), courts generally consider only allegations in the

complaint, exhibits attached to the complaint, matters of public record, and documents

that form the basis of a claim.” Lum v. Bank of America, 361 F.3d 217, 222 n. 3 (3d Cir.

2004); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997) (emphasis omitted) (explaining that a document forms the basis of a claim if it is

“integral to or explicitly relied upon in the complaint”). Here, the Browns attached to

their reply to the appellees’ motion to dismiss a number of documents, including

pleadings and orders filed in the Court of Common Pleas of Berks County. In granting

the appellees’ motion to dismiss, the District Court relied upon several of the Browns’

documents. However, the District Court only relied upon those documents which are a



                                              4
matter of public record or were integral to the Browns’ claims. Moreover, the District

Court’s consideration of the documents was not unfair to the Browns because, by

themselves relying upon the documents, the Browns were on notice that they would be

considered. See id. Under these circumstances, we conclude that the District Court did

not improperly rely upon documents submitted by the Browns. Second, the Browns argue

that the District Court improperly granted the appellees’ motion to dismiss without first

requiring the appellees to file an answer to their complaint. A Rule 12(b)(6) defense for

failure to state a claim may be raised in a pre-answer motion. See Fed. R. Civ. P. 12(b).

“If the court denies the motion, . . . the [answer must] be served within 10 days after

notice of the court’s action.” Fed. R. Civ. P. 12(a)(4)(A). If, however, the District Court

grants the motion, as it did here, the plaintiff’s action is dismissed and an answer is no

longer required. Accordingly, because the District Court granted the appellees’ motion to

dismiss, the appellees were not required to file an answer to the Browns’ complaint.

       Turning to the merits of the complaint, we will affirm the District Court’s

dismissal of the Browns’ claims against Neider and the BCCYS, although for different

reasons than those provided by the District Court. See Nicini v. Morra, 212 F.3d 798, 805

(3d Cir. 2000) (en banc) (concluding that we may affirm the District Court on any

grounds supported by the record). The Browns’ complaint contains no allegation of

Neider’s involvement in the alleged constitutional violations, but rather attempts to hold

her responsible merely because of her supervisory position within the BCCYS. It is well-



                                              5
established, however, that liability in a § 1983 action must be predicated upon personal

involvement, not on the basis of respondeat superior. See Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1998). Likewise, in order to establish liability on the part of the

BCCYS, the Browns would have to show that it had an established policy or custom that

resulted in the alleged constitutional violations. See Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 690-91 (1978). The Browns’ complaint failed to identify any such customs or

policies.

       The District Court also did not err in dismissing the Browns’ claims that Daniels

violated their rights by examining Travonne for bruises, notifying Kevin Brown’s

employer of the abuse allegations, and harassing them “during the healing process.”

Parents have a liberty interest in the care, custody, and management of their children. See

Croft v. Westmoreland County Children & Youth Serv., 103 F.3d 1123, 1125 (3d Cir.

1997). “This interest, however, must be balanced against the state’s interest in protecting

children suspected of being abused.” Miller v. City of Philadelphia, 174 F.3d 368, 373

(3d Cir. 1999); see also Croft, 103 F.3d at 1125 (“The right to familial integrity, in other

words, does not include a right to remain free from child abuse allegations.”). “In cases

like this, where abusive action by a member of the executive branch is alleged, ‘only the

most egregious official conduct can be said to be arbitrary in the constitutional sense.’”

Miller, 174 F.3d at 375 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846

(1998) (citation and internal quotation marks omitted)). Thus, to generate liability, the



                                              6
executive action alleged must be so “ill-conceived or malicious,” Miller, 174 F.3d at 175,

that it “shocks the conscience.” Lewis, 523 U.S. at 846.

       Even if all of the facts alleged by the Browns are true, Daniels did not act in a way

that shocks the conscience. The Browns do not dispute that Daniels received a report that

Travonne was being physically abused by Kevin Brown, or that Travonne told Daniels

that he was afraid to return home. Likewise, the Browns do not dispute that Travonne

had bruising on his thighs consistent with repeatedly being hit with a belt. Under these

circumstances, where Daniels had a reasonable belief that Travonne was in danger, she

did not act in a way that shocks the conscience by viewing Travonne’s upper thighs.

Moreover, we agree with the District Court that while notifying Kevin Brown’s employer

about her investigation may have been “ill-advised or an exercise in poor judgment,”

Daniels’ alleged actions do not rise to the level of a due process violation. Additionally,

the Browns’ conclusory allegations of harassment by Daniels “during the healing

process” are insufficient to state a claim. See Morse, 132 F.3d at 906 (3d Cir. 1997).

       The Browns also alleged that Daniels violated their procedural due process rights

when she took Travonne into custody on May 21, 2003, without: (1) obtaining a court

order; (2) notifying them in writing within 24 hours of his whereabouts; and (3)

conducting an informal hearing within 72 hours, all in violation of state law. See 42 Pa.

C.S.A. § 6324 (providing methods for taking child into custody) and § 6332 (requiring an

informal hearing within 72 hours of the child’s placement in protective custody); 23 Pa.



                                             7
C.S.A. § 6315(b) (providing that no child may be held in protective custody for more than

24 hours without a court order) and § 6315(c) (providing for parental notification within

24 hours of child’s whereabouts). The Browns do not challenge the constitutionality of

the Pennsylvania laws governing protective custody. However, they do claim that by

failing to comply with the procedures required by state law, especially with regard to the

72 hour limit for holding a post-deprivation informal hearing, Daniels violated their

procedural due process rights. See, e.g., Miller, 174 F.3d at 372-374; Patterson v.

Armstrong Cty. Children & Youth Services, 141 F.Supp.2d 512, 531-540 (W.D. Pa.

2001).

         It is well-settled that “in emergency circumstances which pose an immediate threat

to the safety of a child, officials may temporarily deprive a parent of custody without

parental consent or an order of the court.” Hollingsworth v. Hill, 110 F.3d 733, 739 (10th

Cir. 1997). However, “in those extra-ordinary situations where deprivation of a protected

interest is permitted without prior process, the constitutional requirements of notice and

an opportunity to be heard are not eliminated, but merely postponed.” Suboh v. District

Attorney’s Office of Suffolk, 298 F.3d 81, 92 (1st Cir. 2002). Thus, “[w]hen the state

removes a child from [his] parents, due process guarantees prompt and fair post-

deprivation judicial review.” Berman v. Young, 291 F.3d 976, 985 (7th Cir. 2002); see

also Miller, 174 F.3d at 372 n. 4; Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994)

(noting that “the requirements of due process may be delayed where emergency action is



                                              8
necessary to avert imminent harm to a child, provided that post-deprivation process to

ratify the emergency action is promptly accorded”) (internal citations omitted).

       Although there is no bright-line rule for deciding whether a post-deprivation

hearing is sufficiently “prompt,” the delay should ordinarily be measured in hours and

days, as opposed to weeks. See Tower v. Leslie-Brown, 326 F.3d 290, 299 (1st Cir.

2003) (approving a post-deprivation hearing that occurred three days after children were

removed from parents’ home where child protective worker sought ex parte review of the

removal decision within hours of the removal); Berman, 291 F.3d at 985 (concluding that

a 72-day delay in the proceedings was “rather outrageous,” but finding no actual damages

resulting from the delay in the post-deprivation hearing); Whisman v. Rinehart, 119 F.3d

1303, 1310 (8th Cir. 1997) (concluding that under the facts before it, a hearing held 17

days after the state had taken custody was not “prompt”); Jordan, 15 F.3d at 351

(concluding that a 65-hour delay in judicial review of an emergency removal was

constitutionally permissible, but that the 65-hour period was “near, if not at, the outer

limit of permissible delay”); Cecere v. City of New York, 967 F.2d 826, 829-30 (2d Cir.

1992) (approving a 4 day delay); Lossman v. Pekarske, 707 F.2d 288, 290 (7th Cir. 1983)

(approving a post-deprivation hearing that occurred 12 days after the state took custody,

but noting that the hearing would have taken place earlier had the parents not requested

additional time to prepare).

       Assuming all of the Browns’ allegations to be true, as we must, Travonne was



                                              9
placed in protective custody with his maternal grandmother without a court order on May

21, 2003. However, based upon the sparse record on appeal, it appears that post-

deprivation proceedings may not have been conducted until July 9, 2003, approximately

seven weeks after Travonne was placed with his maternal grandmother. Without

commenting on the ultimate merits of the claim, we conclude that, on this record, the

Browns sufficiently alleged a violation of their procedural due process rights against

Daniels.

       Finally, on this record we cannot conclude that Daniels is entitled to the defense of

qualified immunity. Although qualified immunity is an affirmative defense, “a complaint

may be subject to dismissal under Rule 12(b)(6) when an affirmative defense appears on

its face. Thus, qualified immunity will be upheld on a 12(b)(6) motion only when the

immunity is established on the face of the complaint.” Leveto v. Lapina, 258 F.3d 156,

161 (3d Cir. 2001) (quotations and citations omitted). Under the doctrine of qualified

immunity, “government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional laws of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right may be clearly

established even if there is no “previous precedent directly in point.” Good v. Dauphin

County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989) (denying

qualified immunity and citing case law from other jurisdictions). “The ultimate issue is



                                             10
whether . . . reasonable officials in the defendants’ position at the relevant time could

have believed that, in light of what was in the decided case law, that their conduct would

be lawful.” Id. Accepting the allegations in the complaint as true and drawing all

inferences in the Browns’ favor, a reasonable BCCYS employee could not have believed

that a post-deprivation hearing conducted seven weeks after the removal of a child from

his parents’ home complied with due process. See, e.g., Miller, 174 F.3d at 372 n. 4

(explaining that initiating child custody proceedings by ex parte order is generally

constitutional if a prompt post-deprivation hearing is held, and noting Pennsylvania’s 72

hour requirement); see also Patterson, 141 F.Supp.2d at 540-42 (rejecting qualified

immunity defense where defendants failed to provide plaintiffs with a prompt and

adequate judicial hearing within 72 hours of taking child into protective custody).

       Accordingly, we will vacate the District Court’s August 13, 2004, judgment as to

the Browns’ procedural due process claim against Daniels. We will affirm the District

Court’s judgment in favor of all the appellees as to the remainder of the claims.




                                             11
