                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-1999

Miller v. City of Philadelphia
Precedential or Non-Precedential:

Docket 98-1020




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Filed April 26, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1020

SANDRA MILLER; COREY MILLER, a Minor, by and
through his Mother and Natural Guardian, SANDRA
MILLER; THOMAS MILLER, a Minor, by and through
his Mother and Natural Guardian, SANDRA MILLER;
DAKOTA BRADLEY, a Minor, by and through his Mother
and Natural Guardian, SANDRA MILLER;
DAVID L. DERATZIAN, ESQUIRE

v.

THE CITY OF PHILADELPHIA; PHILADELPHIA
DEPARTMENT OF HUMAN SERVICES; OWEN SCHEER;
CHILDREN'S HOSPITAL OF PHILADELPHIA; HUTTON,
OFFICER; MARC CARROLL, SGT.; RODNEY NICHOLAS

Sandra Miller, Corey Miller, Thomas Miller

and Dakota Bradley,
       Appellants

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 96-cv-03578)
District Judge: William H. Yohn, Jr.

ARGUED OCTOBER 6, 1998

BEFORE: Becker, Chief Judge,
Nygaard, and Noonan,* Circuit Judges.
_________________________________________________________________

*The Honorable John T. Noonan, Jr., Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
(Filed April 26, 1999)

       David L. Deratzian, Esq. (Argued)
       2100 Locust Street
       Philadelphia, PA 19103

        Attorney for Appellants

       Richard G. Feder, Esq.
       Sarah E. Ricks, Esq. (Argued)
       City of Philadelphia Law Department
       1515 Arch Street
       One Parkway Building, 17th Floor
       Philadelphia, PA 19102

       Charles T. Roessing, Esq. (Argued)
       Mary G. March, Esq.
       White & Williams
       1500 Lancaster Avenue
       Suite 206
       Paoli, PA 19301

        Attorneys for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellants, Sandra Miller, her three children (Corey
Miller, Thomas Miller and Dakota Bradley), and their
attorney, David Deratzian, Esq., sued the City of
Philadelphia, the Philadelphia Department of Human
Services ("DHS"), DHS social worker Owen Scheer
(collectively, the "City defendants"), the Children's Hospital
of Philadelphia ("CHOP") and two CHOP security guards
(collectively, the "CHOP defendants"), alleging violations of
their procedural and substantive due process rights under
42 U.S.C. S 1983 and asserting various claims under state
law.1 The claims arise from an emergency ex parte child
_________________________________________________________________

1. Deratzian, who represents Appellants in this appeal, alleged a
violation of his own Fourth Amendment rights, as well as assault and
battery by the CHOP security guards. However, Deratzian did not appeal
from the grant of summary judgment for the defendants; therefore, his
claims are not before us.

                                  2
custody hearing after which the City defendants removed
two of Miller's children from her custody. The District Court
dismissed the procedural due process claim and granted
summary judgment on the remaining claims. Appellants
raise issues related to their procedural and substantive due
process claims and assert that the District Court engaged
in improper credibility determinations. We will affirm.

I.

Tiny Tot Daycare personnel reported to Scheer their
suspicion that Corey and Thomas Miller were victims of
abuse. Scheer and Reginald Jackson, another DHS social
worker, visited the day care center. Thomas and Corey each
indicated that they had been hit by both their mother and
her boyfriend, Derrick Schill. The owner of the day care
center informed the social workers that previous injuries to
the children had concerned the day care workers and that
the center had videotaped some of the injuries. The next
day, Scheer and Jackson returned to the center with
Scheer's supervisor. Corey and Thomas repeated their
statements. At his supervisor's request, Scheer then had
the Miller children brought to CHOP for an examination.

Dr. Henretig, a CHOP physician, examined the children
that evening and reported to Scheer, Jackson, social worker
Amy Frank, and Deratzian that he had found no evidence
of injury to Thomas or Dakota, but had found bruises on
Corey and felt that a mark on Corey's back was suspicious.
Dr. Henretig indicated that the mark had been made within
the last twenty-four hours; however, he could not be certain
whether Corey's injuries resulted from abuse or accident.

Scheer then called Assistant City Solicitor Debra Maser
and told her what Dr. Henretig had said and what he had
learned in his investigation. Maser next spoke with Dr.
Henretig and then contacted an on-call emergency judge
seeking an order to remove Miller's children from her
custody, which the judge issued. At some point after
Scheer's conversation with Maser, but before the order was
issued, Scheer met with Dr. Henretig outside of the
presence of Frank and Deratzian. Thereafter, the doctor
issued a report of suspected abuse.

                                3
Approximately thirty-six hours after the removal order
was issued, a detention hearing was held to determine
whether the children should continue to remain in DHS
custody. Before adjourning for the weekend, the attorney
representing Miller at the hearing (not Deratzian) requested
that Thomas Miller be released but conceded that a prima
facie case of dependency had been established as to Corey.
Thomas was returned to his mother's custody, but the
judge upheld the restraining order and kept Corey in the
custody of the state. Following a second day of testimony
the next Monday, the judge dissolved the restraining order
and returned Corey to his mother's custody, with the
condition that Schill have no contact with Mrs. Miller or the
children until a dependency hearing could be held to
determine who should take custody of the children. Scheer
was later reassigned from the Miller case. Thereafter, DHS
sporadically pursued a dependency action against Miller,
but ultimately dissolved the petition.

In their suit, Appellants alleged that Scheer violated their
rights to procedural due process by refusing to allow them
to participate in his telephone conversation with the City
Solicitor. They alleged that he violated their rights to
substantive due process by pursuing the investigation
without probable cause, misrepresenting facts to Solicitor
Maser, inducing CHOP to falsify records, and attempting to
suborn perjury by Dr. Henretig.2

The District Court dismissed, under Fed. R. Civ. P.
12(b)(6), Appellants' procedural due process claim against
the City defendants and held that Scheer had qualified
immunity from Appellants' substantive due process claims
to the extent that they alleged he pursued the Millers' case
without probable cause. The Court declined, however, to
dismiss the section 1983 substantive due process claims
against Scheer for allegedly misrepresenting Dr. Henretig's
_________________________________________________________________

2. In addition, they alleged civil rights, conspiracy, malicious
prosecution, bodily injury and intentional infliction of emotional
distress
claims. Miller and Deratzian also alleged civil rights claims against the
City and DHS independently for their policies and customs and for
failure to adequately train their staff. The plaintiffs did not appeal
from
the District Court's grant of summary judgment on those claims, so
those claims are not before us.

                               4
medical report, inducing the hospital to falsify records and
attempting to suborn perjury. In doing so, the Court held
that Scheer had neither absolute nor qualified immunity
against these charges. The Court declined to dismiss the
balance of the claims against the City. See Miller v. City of
Philadelphia, 954 F. Supp. 1056, 1059-60 (E.D. Pa. 1997)
[hereinafter Miller I].

Following discovery, the District Court granted summary
judgment for defendants on Appellants' claims against
DHS, their state law claims against the City, their section
1983 substantive due process claim and malicious
prosecution claims against Scheer, and their section 1983
substantive due process and malicious prosecution claim
against the City to the extent that those claims related to
Scheer. See Miller v. City of Philadelphia, No. CIV.A.96-
3578, 1997 WL 476352, at *2-*3 (E.D. Pa. Aug. 19, 1997)
[hereinafter Miller II]. After this order was entered,
Appellants did not oppose motions for summary judgment
by the CHOP defendants3 and by the City defendants on the
remaining claims against them. The Millers now contend
that the District Court erred by dismissing their procedural
due process claim, by granting qualified immunity to
Scheer, and by making impermissible credibility
determinations.

II. Procedural Due Process

The first issue is narrow. Although Appellants argue that
their procedural due process rights were violated, they do
not challenge the constitutionality of the Pennsylvania
statute that sets forth the procedure to be followed in
emergency child custody hearings,4 nor do they contend
_________________________________________________________________

3. The Millers' claims against the CHOP defendants, based on an alleged
conspiracy with the City defendants, were not addressed in the
statement of issues in Appellants' brief or in the briefs themselves.
Although Appellants asserted at oral argument that these claims were
being appealed, we hold that they have been waived. See Southwestern
Pa. Growth Alliance v. Browner, 121 F.3d 106, 122 (3d Cir. 1997)
("[A]ppellate courts generally should not address legal issues that the
parties have not developed through proper briefing.").

4. Initiating child custody proceedings by ex parte orders is generally
constitutional if a prompt post-deprivation hearing is held. See, e.g.,

                               5
that DHS personnel failed to follow the statutory
procedures for taking a child into custody. Instead,
Appellants contend that the procedures adopted by DHS to
implement the state statute are faulty because they did not
ensure that either Miller or Deratzian, who were both
present at the hospital and therefore clearly available, had
the opportunity to participate in the emergency hearing
before the judge. Our review of the District Court's decision
to dismiss is plenary. In our view, this argument fails to
raise a valid procedural due process claim.

Appellants contend that when a parent, or the parent's
attorney, is available when the government applies for a
restraining order, the government must allow the parent or
the attorney to take part in the hearing. Such a
requirement, they argue, would protect the parent's interest
in the custody of their child without any significant burden
on the government.

"The fundamental requirement of due process is the
opportunity to be heard `at a meaningful time and in a
meaningful manner.' " Mathews v. Eldridge, 424 U.S. 319,
333, 96 S. Ct. 893, 902 (1976) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965)).
Assessing whether due process has been given involves a
weighing of the factors set forth by the Supreme Court in
Mathews:

       first, the private interest that will be affected by the
       official action; second, the risk of an erroneous
       deprivation of such interest through the procedures
_________________________________________________________________

Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994) ("Due process . . .
does not always require prior process."); Fitzgerald v. Williamson, 787
F.2d 403, 408 (8th Cir. 1986). Pennsylvania's Child Protective Services
Law, 23 Pa. Cons. Stat. Ann. S 6301 et seq., and Juvenile Court Act, 42
Pa. Cons. Stat. Ann. S 6301 et seq., require that a hearing be held within
seventy-two hours after an ex parte hearing that results in a child's
removal from the home. See 23 Pa. Cons. Stat. Ann. S 6315(d); 42 Pa.
Cons. Stat. Ann. S 6332(a). Although we have not considered
Pennsylvania's statutory procedure, district courts in this circuit have
found it constitutional. See Miller I, 954 F. Supp. at 1061 (citing
various
cases in the Eastern District of Pennsylvania).

                               6
       used, and the probable value, if any, of additional or
       substitute procedural safeguards; and finally, the
       Government's interest, including the function involved
       and the fiscal and administrative burdens that the
       additional or substitute procedural requirement would
       entail.

Id. at 335, 96 S. Ct. at 903.

The private interest at stake springs from the parent-
child relationship. The Supreme Court has recognized a
"fundamental liberty interest of natural parents in the care,
custody, and management of their child." Santosky v.
Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95
(1982); see also 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.
See, e.g., Croft, 103 F.3d at 1125; Millspaugh v. County
Dept. of Public Welfare, 937 F.2d 1172, 1175-77 (7th Cir.
1991).

Appellants assert that ensuring that a parent (or her
representative) will be heard under the instant
circumstances would create little cost for the state. They
point to the required flexibility of the due process standard
for support. See Mathews, 424 U.S. at 334, 96 S. Ct. at 902
(" `[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.' " (quoting
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593,
2600 (1972))). The Supreme Court has cautioned, however,
that "[t]he interpretation and application of the Due Process
clause are intensely practical matters," Gross v. Lopez, 419
U.S. 565, 578, 95 S. Ct. 729, 738 (1975) (emphasis added),
and we must consider the results that a ruling for the
Appellants here would have on all ex parte child custody
hearings.

Here, the cost to the state is not the minimal one that
Appellants suggest. The District Court specifically
considered the practicality of requiring "the government to
adopt special procedures depending on who was within the
vicinity of the government official when he or she requests
an emergency restraining order." Miller I, 954 F. Supp. at
1062.

                                7
       [Appellants'] proposed procedure would require case-
       by-case analysis, and would raise new issues such as
       the nature of the pre-deprivation hearing that the state
       would have to provide and when exactly a parent was
       available on site. Pre-deprivation hearings would
       frustrate the purpose of the Juvenile Act and would
       bog down the statute with "procedural technicalities
       and costly litigation." Consequently, although it may be
       preferable for DHS to allow the parent to participate in
       the request for an emergency order when he or she is
       present, the facts as alleged by plaintiffs do not
       establish a constitutional violation of the right to
       procedural due process.

Id. (citations omitted).

We agree. Although Appellants' argument is intuitively
appealing, its strength lies in its pragmatic nature rather
than its constitutional validity. We do not discount parents'
strong interest in the custody of their children, but
requiring that a parent or his attorney be included in
emergency pre-deprivation hearings "when available" or
"when at hand" would build delay into these time-sensitive
hearings and encourage litigation over "availability." Such a
requirement would thus inhibit, deter and, at times,
subvert the crucial function of ex parte custody hearings --
protecting children who are in imminent danger of harm.
We therefore conclude that the holding sought by
Appellants would create a burden on the state that would
not be justified by commensurate relief to the affected
parents' rights.

III. Substantive Due Process

Appellants next challenge the District Court's dismissal
of their substantive due process claim. The District Court
held that Scheer was protected by qualified immunity
against the claim that he pursued the investigation without
probable cause.5 In its ruling, the court declined to apply
_________________________________________________________________

5. The District Court denied Scheer qualified immunity for other acts
alleged by Appellants, including misrepresenting Dr. Henretig's report to
the City Solicitor and attempting to suborn perjury by the doctor. We

                               8
our decision in Croft v. Westmoreland County Children &
Youth Serv., 103 F.3d at 1123. Our review of this decision
is also plenary.

By basing the dismissal on qualified immunity-- an
affirmative defense -- the District Court presumed the
validity of the alleged due process violation. The proper
approach, however, is to ascertain whether a constitutional
violation has been alleged before determining if qualified
immunity is available. See Siegert v. Gilley, 500 U.S. 226,
232, 111 S. Ct. 1789, 1793 (1991); Larsen v. Senate of the
Commonwealth of Pa., 154 F.3d 82, 86 (3d Cir. 1998)
("[W]hen a qualified immunity defense is raised a court first
should determine whether the plaintiff has asserted a
violation of a constitutional right at all.").

As noted, the Supreme Court has recognized a
"fundamental liberty interest of natural parents in the care,
custody, and management of their child." Santosky, 455
U.S. at 753, 102 S. Ct. at 1394-95; see also Lehr v.
Robertson, 463 U.S. 248, 257-58, 103 S. Ct. 2985, 2991
(1983). We, and other courts of appeals, have recognized
this as a protectable interest. See, e.g., Croft, 103 F.3d at
1125; Gottlieb v. County of Orange, 84 F.3d 511, 517 (2d
_________________________________________________________________

agree with the Court's holding that, even if Scheer did misrepresent the
doctor's report to Solicitor Maser, Appellants failed to establish a
causal
connection between the alleged misrepresentation and the Judge's
decision to grant a separation order. See Miller II, 1997 WL 476352, at
*4. Our precedents establish the necessity of a causal link between an
alleged unconstitutional act and the harm that a plaintiff claims followed
it. See, e.g., Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (noting
that causation is a necessary element to a section 1983 claim). As the
District Court noted, Appellants failed to produce any evidence that
Scheer lied to Maser or attempted to convince Dr. Henretig to lie in his
report of suspected abuse. See Miller II, 1997 WL 476352, at *4.
Although there was ample opportunity, Appellants did not depose either
Dr. Henretig or Solicitor Maser, both of whom would have had direct
knowledge of any misstatements or misdeeds by Scheer. Moreover,
Solicitor Maser spoke independently with Dr. Henretig to ascertain his
opinion. This conversation should have served to expose any lies on the
part of Scheer. In sum, any subsequent misstatements by Maser to the
Judge during their telephone hearing would not have been caused by
Scheer.

                                9
Cir. 1996); Darryl H. v. Coler, 801 F.2d 893, 901 (7th Cir.
1986) (recognizing the "legitimate expectations of the
parents or other caretakers, protected by the fourteenth
amendment, that their familial relationship will not be
subject to unwarranted state intrusion"). To determine
whether this right has been abridged, we must consider the
governmental acts in question.

"The touchstone of due process is the protection of the
individual against arbitrary action of government." Wolff v.
McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2976 (1974).
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." County of Sacramento v. Lewis, 118 S. Ct. 1708,
1716 (1998) (citation and internal quotation marks
omitted). To generate liability, executive action must be so
ill-conceived or malicious that it "shocks the conscience."
Id. at 1717 (citing, inter alia, Rochin v. California, 342 U.S.
165, 172-73, 72 S. Ct. 205, 209-10 (1952)). Critically,
under this standard, officials will not be held liable for
actions that are merely negligent. See Lewis, 118 S. Ct. at
1718.

Although the "shocks the conscience" standard is
problematic standing alone, it serves to "mark the
beginning point in asking whether or not the objective
character of certain conduct is consistent with our
traditions, precedents, and historical understanding of the
Constitution and its meaning." See id. at 1722 (Kennedy,
J., concurring). The exact degree of wrongfulness necessary
to reach the "conscience-shocking" level depends upon the
circumstances of a particular case. In Lewis, wherein the
parents of a motorcyclist who was killed in the course of a
high speed chase by police alleged a due process violation
by the police, the Supreme Court reviewed the standards
that determine the liability of government actors in varying
circumstances. Recognizing that negligence alone was never
enough, the Court observed that activity "at the other end
of the culpability spectrum" was more likely to lead to
liability, but also recognized that liability may arise from
the mid-range of culpability measurement. See id.

                               10
The Court compared the position of prison officials, who
risk liability when they act with deliberate indifference to a
prisoner's medical needs, see Estelle v. Gamble, 429 U.S.
97, 104, 97 S. Ct. 285, 291 (1976), with the position of the
police involved in the high-speed chase of the motorcyclist.
The Court noted the vast differences in the circumstances
surrounding the two types of executive actions:

       [I]n the custodial situation of a prison, forethought
       about an inmate's welfare is not only feasible but
       obligatory under a regime that incapacitates a prisoner
       to exercise ordinary responsibility for his own welfare.

       . . .

       [But] indifference may well not be enough for liability in
       the different circumstances of a case like this one. We
       have, indeed, found that deliberate indifference does
       not suffice for constitutional liability (albeit under the
       Eighth Amendment) even in prison circumstances
       when a prisoner's claim arises not from normal
       custody but from response to a violent disturbance.

118 S. Ct. at 1719.

Therefore, "[d]eliberate indifference that shocks in one
environment may not be so patently egregious in another,"
id. at 1718, and the circumstances of each case are critical.
A much higher fault standard is proper when a government
official is acting instantaneously and making pressured
decisions without the ability to fully consider their risks. In
such instances, liability will only be applied when a
"purpose to cause harm" is demonstrated. Id. at 1720.

We recognize that a social worker acting to separate
parent and child does not usually act in the hyper-
pressurized environment of a prison riot or a high-speed
chase. However, he or she rarely will have the luxury of
proceeding in a deliberate fashion, as prison medical
officials can. As a result, in order for liability to attach, a
social worker need not have acted with the "purpose to
cause harm," but the standard of culpability for substantive
due process purposes must exceed both negligence and
deliberate indifference, and reach a level of gross negligence
or arbitrariness that indeed "shocks the conscience."

                               11
In Croft, 103 F.3d at 1123, we considered governmental
intervention into the parent-child relationship. Based on a
telephoned accusation, a social worker threatened to
remove a child from the home if the father himself did not
leave. By threatening this action, the social worker
effectively removed the child from the parents' custody. This
was done even though the social worker did not have
grounds to believe that the child had been abused or was
in imminent danger of being abused. See id. at 1126-27.
Indeed, the social worker was acting solely on the basis of
a sixth-level hearsay statement and had not personally
formed an opinion as to whether abuse was likely. Breaking
the parent-child bond under these circumstances, we held,
was an arbitrary abuse of government power. See id. at
1127.

Although the plaintiffs argue that some of our language
in Croft can be interpreted to sound in negligence, the
holding may not be read to suggest that mere negligence by
a social worker will violate a parent's or a child's
substantive due process right. See Lewis, 118 S. Ct. at
1718 ("[L]iability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process."). Croft assessed liability when a social worker
acted to separate parent and child without any valid basis
for doing so. In other words, decision-making by a social
worker that is so clearly arbitrary, as was that in Croft, can
properly be said to "shock the conscience" and, therefore,
violates the substantive due process rights of the affected
family. Thus, to the extent that Appellants claimed a
violation of their due process rights because Scheer acted
negligently or lacked objectively reasonable grounds to
pursue the case against them (and their appeal indeed
focuses on this issue), they did not state a valid claim.6
_________________________________________________________________

6. Because we determine that Appellants' argument on appeal does not
assert a valid claim of a constitutional violation, we do not reach the
issue of qualified immunity. While Appellants' original complaint may be
construed to assert that Scheer acted without any grounds for doing so,
their appeal focuses on the application of Croft and argues that its
holding "require[s] inquiry into the reasonableness of the actions of the
social worker." Appellants' Brief at 23.

                               12
Viewing the facts adduced against Scheer in the light
most favorable to the plaintiffs, Scheer asked the children
leading questions when he first visited their day care center
in response to allegations of abuse. He requested that Miller
produce her three children for examination at the hospital
even though he suspected that only one of the children was
being abused. He met in secret with a hospital social
worker. He excluded Deratzian from the area outside the
examination room. Though he was informed by Dr.
Henretig that Henretig could not be sure whether Corey
received his bruises accidentally or whether he was
physically abused, Scheer still called City Solicitor Maser so
that she could seek a restraining order for the children. A
Child Advocate Social Worker thought, based on Henretig's
statements, that the children would be allowed to go home
_________________________________________________________________

We reject the City's argument that, based on our recent decision in
Ernst v. Child & Youth Services, 108 F.3d 486, 494 (3d Cir.), cert.
denied,
118 S. Ct. 139 (1997), Scheer is absolutely immune for his actions. This
case is distinguishable from Ernst. Absolute immunity protects
government officials for certain acts they perform that are closely
associated to the judicial process. See, e.g., Imbler v. Pachtman, 424
U.S.
409, 430, 96 S. Ct. 984, 995 (1976). In Ernst, we held that social
workers were absolutely immune "for their actions on behalf of the state
in preparing for, initiating, and prosecuting dependency hearings." Ernst,
108 F.3d at 495. The immunity extended to "the formulation and
presentation of recommendations to the court in the course of such
proceedings." Id. We reasoned that "the functions performed by [child
social workers] in dependency proceedings are closely analogous to the
functions performed by prosecutors in criminal proceedings." Id.

The District Court found that Scheer's "alleged tortious conduct . . .
took place during the investigative phase of the child custody
proceeding." See Miller I, 954 F. Supp. at 1063. As we recognized in
Ernst, absolute immunity does not extend to investigative or
administrative acts. See 108 F.3d at 497 n.7. Here, Scheer passed the
information he had gathered on to Solicitor Maser. Maser also gathered
information from other sources, including Dr. Henretig and social worker
Jackson, and then presented the evidence she had to the Judge. Scheer
made no presentations or recommendations to the court. As a result,
Scheer's acts were not analogous to those court-related functions
normally performed by a prosecutor, and at times performed by social
workers, and he cannot receive absolute immunity.

                               13
following the doctor's examination. Finally, Scheer received
reviews in his DHS personnel evaluations indicating that he
had problems with co-workers and did not always follow
proper procedures.

We conclude that, even if all of the facts alleged above
were true, Scheer did not act in a way that shocks the
conscience. Scheer's progress reports are inapposite to his
mindset in this case, and the social worker's statements
were based solely on the doctor's opinion following the
examination. In contrast, substantial evidence indicated
that Scheer reasonably believed that the children were in
danger of abuse, including the day care center's videotapes
of bruises on Corey, Dr. Henretig's opinion, and the lengthy
history of Corey's abuse by Schill. In a properly supported
motion for summary judgment, the non-movant must
produce some (that is, more than a "scintilla" of) evidence
in support of his position. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257, 106 S. Ct. 2505, 2514 (1986)
(noting that "[t]his is true even where the evidence is likely
to be within the possession of the defendant, as long as the
plaintiff has had a full opportunity to conduct discovery").
On these facts, we conclude that the plaintiffs have failed to
state a viable substantive due process claim.7

IV.

In sum, we will affirm because the Appellants' procedural
due process rights were not violated and because
Appellants have not pointed to sufficient evidence of the
predicate conscience-shocking behavior to support a
substantive due process claim. Finally, there was no error
_________________________________________________________________

7. Plaintiffs also contend on appeal that the District Court erred by
making credibility judgments in its summary judgment ruling.
Specifically, they argue that the District Court should not have
determined that the actions of Scheer were reasonable or made in good
faith. We reject this argument summarily. As discussed above, plaintiffs
proffered no evidence of acts by Scheer that rose to a level of
arbitrariness that shocks the conscience and therefore failed to state the
kind of deprivation that might rise to the level of a constitutional
violation.

                               14
in the District Court's construction of Scheer's behavior in
this case.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
