1

In its motion to dismiss, Lehigh County correctly points out that OCYS is not a legal entity separate and

apart from Lehigh County, is not a political entity, and is simply a department of Lehigh County. OCYS shall be

dismissed as a separate defendant, and any action alleged to have been taken by OCYS shall be imputed to Lehigh

County. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ISAIAH HARRIS, by and : CIVIL ACTION

through his Guardian ad litem, :

STEVEN A. LITZ, ESQUIRE :

Plaintiff :

:

v. : NO. 04-CV-3890

:

LEHIGH COUNTY OFFICE OF :

CHILDREN & YOUTH SERVICES, :

et al., :

Defendants :

M E M O R A N D U M

STENGEL, J. June 16 , 2005

Isaiah Harris, a four-year old child, was severely and permanently injured while a

passenger in a car driven by his foster father. Through a newly-appointed guardian ad

litem, Isaiah Harris brought this action against the Lehigh County Office of Children and

Youth Services (“OCYS”),1

 the County of Lehigh, Topton House, LLC, transacting as

Topton House, Topton Management Services, Inc., the Lutheran Home at Topton

(“Lutheran”), his former guardian ad litem Jane Detra Davenport, Esquire, and his foster

father Peter Norton. The Complaint alleges: 1) violations of his Fourteenth Amendment

rights with remedies afforded under 42 U.S.C. §§ 1981, 1983, and 1988; 2) violations of

Article I, Section 1 of the Pennsylvania Constitution; and 3) state law tort claims. The

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 1 of 14
2At argument, it was apparent that the Defendants strongly contest the Plaintiff’s characterization of this

incident as a “near drowning.” For purposes of a motion to dismiss, the court considers the facts as pleaded by

Plaintiff as true.

2

parties have stipulated to dismiss Topton House and Topton Management Services from

the case, and to dismiss Isaiah Harris’s claims brought under 42 U.S.C. § 1981 and the

Pennsylvania Constitution. The remaining four Defendants have each filed motions to

dismiss. For the following reasons, I will deny the motions.

I. BACKGROUND

The following facts from the Complaint are presented in the light most favorable

to Isaiah Harris as the non-moving party. On November 20, 1998, Isaiah Harris was

adjudicated a dependent child, and his legal and physical custody was relinquished to

OCYS, a division of Lehigh County’s Department of Human Services. OCYS enlisted

the services of Lutheran for the purpose of placing Isaiah Harris in a foster home, and the

court appointed Defendant Jane Detra Davenport, Esquire, guardian ad item on Isaiah

Harris’s behalf. He was placed with the Norton family. 

The Complaint alleges that during the summer of 2002, Isaiah Harris “nearly

drowned” while under the care of the Nortons.2 OCYS, Lutheran, and Attorney

Davenport conducted an investigation and decided to continue the placement of Isaiah

Harris with the Norton household over the strong objections of his biological mother. 

On December 28, 2002, Isaiah Harris was an unrestrained passenger in the

backseat of a car driven by Mr. Norton. Mr. Norton crossed the center line of the

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 2 of 14
3

roadway and struck another vehicle head-on. This accident resulted in Isaiah Harris’s

suffering severe and permanent injuries, including complete paraplegia.

II. DISCUSSION

A. The Legal Standard for Deciding a Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a Defendant may move to dismiss

a Complaint for “failure to state a claim upon which relief can be granted.” The rule is

designed to screen out cases where “a Complaint states a claim based upon a wrong for

which there is clearly no remedy, or a claim which the Plaintiff is without right or power

to assert and for which no relief could possibly be granted.” Port Auth. v. Arcadian

Corp., 189 F.3d 305, 311-312 (3d Cir. 1999). Under Rule 12(b)(6), a Complaint should

not be dismissed for failure to state a claim “unless it appears beyond doubt that the

Plaintiff can prove no set of facts in support of his claim which would entitle him to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The issue, therefore, is not

whether the Plaintiff will ultimately prevail, but whether he is entitled to offer evidence to

support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Maio v.

Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).

In considering whether a Complaint should be dismissed for failure to state a claim

upon which relief can be granted, a court must consider only those facts alleged in the

Complaint and accept all of the allegations as true, drawing all reasonable inferences in

the Plaintiff’s favor. ALA v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also Lum

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 3 of 14
3

The Due Process Clause of the Fourteenth Amendment provides that no State shall deprive any person of

life, liberty, or property, without due process of law. 

4

v. Bank of America, 361 F.3d 217, 222 (3d Cir. 2004) (in deciding motions 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). 

B. The Section 1983 Claim

In Count I of the Amended Complaint, Isaiah Harris charges OCYS, Lehigh

County, Lutheran, and Attorney Jane Detra Davenport with violations of substantive due

process under the Fourteenth Amendment of the United States Constitution, and 42

U.S.C. §§ 1983 and 1988. 

In order to maintain a Section 1983 claim, “a Plaintiff must show that the

Defendants deprived him of a right or privilege secured by the Constitution or laws of the

United States while acting under color of state law.” Williams v. Borough of West

Chester, 891 F.2d 458, 464 (3d Cir. 1989). Analysis of a Section 1983 claim begins by

identifying the “exact contours of the underlying right said to have been violated” and

then determining “whether the Plaintiff has alleged a deprivation of a constitutional right

at all.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). 

Isaiah Harris has a liberty interest in his personal security and well-being, an

interest protected by the Fourteenth Amendment.3

 Youngberg v. Romeo, 457 U.S. 307,

315-319 (1982)(the substantive component of the Fourteenth Amendment’s Due Process

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 4 of 14
5

Clause requires the State to provide involuntarily committed patients with such services

as are necessary to ensure their “reasonable safety” from themselves and others). He

claims that his adjudication as a dependent by Lehigh County and his placement into the

Norton household gave rise to the constitutional right of protection and reasonable

physical safety, a right which was violated by the “utter lack of oversight” of that

placement.

Generally, the government has no affirmative duty under the Constitution to take

action to assure that each citizen is able to exercise, enjoy, or realize the benefits of a

particular right. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189,

195 (1989). However, exceptions to the DeShaney rule exist when the State has placed

sufficient restraints on a person’s liberty to create a “special relationship” with the

individual. A substantive due process right arises out of the affirmative duties created by

that special relationship. A State’s intervention under the foster care system sufficiently

imposes upon a child’s liberty interest to provide a substantive due process right. Nicini

v. Morra, 212 F.3d at 808. When the State places a child in State-regulated foster care,

the State has entered into a “special relationship” with that child which imposes upon it

certain affirmative duties. Id. Failure to perform such duties can give rise, under

sufficiently culpable circumstances, to liability under Section 1983. Id. 

In order to establish liability on the part of Lehigh County for the actions of

OCYS, Isaiah Harris would have to show that it had an established policy or custom that

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 5 of 14
4

Some of the policies or customs Isaiah Harris cites include: poor training of personnel, chronic

understaffing, dangerously deficient monitoring of children, dangerously deficient screening of foster parents, and a

lack of thorough investigations.

6

resulted in the alleged constitutional violations. Brown v. Daniels, 2005 U.S. App.

LEXIS 7132 (3d Cir. April 25, 2005)(citing Monell v. Department of Social Services, 436

U.S. 658, 690-691 (1978)). Isaiah Harris contends that OCYS operated under policies or

customs which “negatively impacted” the safety of foster children.4

A municipality may be liable for failing to train its employees if that failure

amounts to deliberate indifference. City of Canton v. Harris, 489 U.S. 378, 389-390

(1989) (failure to train may amount to a policy or custom that is actionable under § 1983

when in light of the duties assigned to specific employees, the need for more or different

training is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can reasonably be said to have been

deliberately indifferent to the need). The deficiency of a municipality’s training program

must be closely related to the Plaintiff’s ultimate injuries. Id. at 391. Isaiah Harris

alleges that these policies, customs, and deficiencies including the poor training of

OCYS’s staff “negatively impacted” his safety and caused his injuries.

Lehigh County contends that the facts of this case accepted as true do not rise to

the standard required, i.e., whether Lehigh County acted with such deliberate indifference

as to shock one’s conscience. In Nicini, the Third Circuit held that: 

“. . . a plaintiff seeking to establish a constitutional violation must

demonstrate that the official’s conduct shocks the conscience in the

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 6 of 14
5

In addition to Count I of the Amended Complaint, Attorney Davenport is named in Count IV (Negligence)

and Count VI (Intentional Infliction of Emotional Distress). She seeks immunity from all counts against her.

7

particular setting in which that conduct occurred. In some circumstances,

conduct that is deliberately indifferent will shock the conscience. Indeed, in

the foster care context, most of the courts of appeals have applied the

deliberate indifference standard, although they have defined that standard in

slightly different ways.” 

Nicini v. Morra, 212 F.3d at 810. Lehigh County adds that “in the Nicini case, the Court

concluded that the conduct did not rise to that standard and dismissed the Complaint.” 

However, the Nicini case was brought on appeal of the District Court’s grant of a

summary judgment motion, not a motion to dismiss as here. Notice pleading only

requires a Plaintiff to state a claim for which relief might be granted, not to prove his case

entirely. I find that Isaiah Harris has successfully stated a claim for which relief might be

granted under Section 1983, and is entitled to offer evidence to support his claims. Maio

v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000) (quoting Scheuer v. Rhodes, 416 U.S.

232, 236 (1974)). 

C. The Claim Against the Guardian Ad Litem

Attorney Davenport argues that as guardian ad litem at the time of Isaiah Harris’s

injury, she is entitled to absolute immunity.5

 A guardian ad litem is appointed by the

court to represent a minor child in particular litigation. The function of the guardian is to

represent and protect unrepresented minors and their interests. See In re Kenna’s Estate,

34 A.2d 617, 619 (1943); see also Estate of Pew, 655 A.2d 521, 536 (Pa. Super. 1994);

Hughes v. Long, 242 F.3d 121, 127 (3d Cir. 2001). 

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 7 of 14
8

Section 1983 does not expressly provide for immunity. See Tower v. Glover, 467

U.S. 914, 920 (1984) (although Section 1983 on its face admits no immunities, the

Supreme Court in recent decades has consistently recognized that doctrines of immunity

may limit the relief available in Section 1983 litigation). The Supreme Court has

provided absolute immunity for judges, see Pierson v. Ray, 386 U.S. 547 (1967);

legislators, see Tenney v. Brandhove, 341 U.S. 367 (1951); prosecutors, see Imbler v.

Pachtman, 424 U.S. 409 (1976); and witnesses, see Briscoe v. LaHue, 460 U.S. 325

(1983). However, the Supreme Court has yet to decide the issue of whether a guardian

ad litem is absolutely immune, nor is there an established common-law tradition of

absolute immunity for court-appointed guardians. 

Even if an official did not enjoy absolute immunity at common law, she may still

be entitled to immunity if she performs “special functions” that are similar or analogous

to functions that would have been immune when Congress enacted Section 1983. Butz v.

Economou, 438 U.S. 478, 506 (1978). This functional approach looks to the nature of the

function performed, not the identity of the actor who performed it, and evaluates the

effect that exposure to particular forms of liability would likely have on the appropriate

exercise of that function. Forrester v. White, 484 U.S. 219, 224 (1988). The official

seeking immunity bears the burden of showing that it is justified by the function in

question. Id. 

The Third Circuit Court of Appeals has adopted the functional approach in

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 8 of 14
6

Title 42 Pa.C.S. § 6311 provides that the guardian ad litem is charged with representation of the legal

interests and the best interests of the child at every state of the proceedings:

(1) Meet with the child as soon as possible following appointment pursuant to § 6337 (relating to right

to counsel) and on a regular basis thereafter in a manner appropriate to the child’s age and

maturity.

(2) On a timely basis, be given access to relevant court and county agency records, reports of

examination of the parents or other custodian of the child pursuant to this chapter and medical,

psychological and school records.

(3) Participate in all proceedings, including hearings before masters, and administrative hearings and

reviews to the degree necessary to adequately represent the child.

(4) Conduct such further investigation necessary to ascertain the facts.

(5) Interview potential witnesses, including the child’s parents, caretakers and foster parents, examine

and cross-examine witnesses, and present witnesses and evidence necessary to protect the best

interests of the child.

(6) At the earliest possible date, be advised by the county agency having legal custody of the child of:

(i) any plan to relocate the child or modify custody or visitation arrangements,

including the reasons therefor, prior to the relocation or change in custody or

visitation; and

(ii) any proceeding, investigation or hearing under 23 Pa.C.S. Ch. 63 (relating to

child protective services) or this chapter directly affecting the child.

(7) Make specific recommendations to the court relating to the appropriateness and safety of the

child’s placement and services necessary to address the child’s needs and safety.

(continued...)

9

determining immunity questions:

We would agree that a guardian should be absolutely immune when

acting as an “integral part of the judicial process.” Briscoe, 406

U.S. at 335. Furthermore, Supreme Court precedent in analogous

cases and the reasoning of the soundly decided Circuit cases,

discussed above, counsels the adoption of a functional approach to

determining whether a guardian ad litem is absolutely immune.

Under this approach, a guardian ad litem would be absolutely

immune in exercising functions such as testifying in Court,

prosecuting custody or neglect Petitions, and making reports and

recommendations to the Court in which the guardian acts as an

actual functionary or arm of the Court, not only in status or

denomination, but in reality. This does not exhaust the list of

functions which would be absolutely immune and each function

would have to analyzed on a case-by-case basis.

Gardner v. Parson, 874 F.2d 131, 146 (3d Cir. 1989) (emphasis added). In Pennsylvania,

the powers and duties of a guardian ad litem are statutorily defined.6

 These include

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 9 of 14
6

(...continued)

(8) Explain the proceedings to the child to the extent appropriate given the child’s age mental

condition and emotion condition.

(9) Advise the court of the child’s wishes to the extent that they can be ascertained and present to the

court whatever evidence exists to support the child’s wishes. When appropriate because of the age

or mental and emotional condition of the child, determine to the fullest extent possible the wishes

of the child and communicate this information to the court. A difference between the child’s

wishes under this paragraph and the recommendations under paragraph (7) shall not be considered

a conflict of interest for the guardian ad litem.

10

representation of the child in all court proceedings, investigating to discern the best

interests of the child, making recommendations to the court, and advising the court of the

child’s wishes, where possible. 

The exact functions performed by Attorney Davenport during this process are as

yet unknown. Allegedly, she was part of an investigation of the “near drowning” and

supported the decision to continue Isaiah Harris’s placement with the Norton household. 

Without more, it is premature to determine whether her actions or inactions relating to

Isaiah Harris could be considered an “integral part of the judicial process.” See Hughes v.

Long, 242 F.3d 121, 125 (3d Cir. 2001) (immunity is provided only for actions involving

the initiation and prosecution of child custody or dependency proceedings); see also

Gardner v. Parson, 874 F.2d at 146 (guardian ad litem would be immune in exercising

such functions as making reports and recommendations to the court in which the guardian

acts as an actual functionary or arm of the court). After discovery is completed, an

analysis of the functions performed by Attorney Davenport would enable a determination

of whether those functions warrant immunity under the foregoing analysis.

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 10 of 14
7

Lutheran is also named in Counts III and VI of the Amended Complaint which set forth causes of action

for negligence and intentional infliction of emotional distress, respectively. The motion seeks only the dismissal of

Counts I and VI. 

11

D. The Claims Against Lutheran Home

Lutheran claims that it should be dismissed from the case because Isaiah Harris

failed to show that Lutheran acted under color of State law. Lutheran assisted Lehigh

County in the placement of Isaiah Harris in the Norton household.7 Lutheran contends

that this issue turns on whether or not Isaiah Harris was voluntarily or involuntarily

placed with the county. See Donlan v. Ridge, 58 F.Supp.2d 604 (E.D. Pa. 1999) (the

State has an affirmative duty to protect children in foster care when it placed them there,

but has no such obligation when the children are voluntarily put in foster care); see also

Estate of Earp v. Doud, 1997 WL 255506 (E.D. Pa. 1997) (only the State can provide a

safe haven to a child whom the State removed from his home; to the extent that a foster

care agency undertook to carry out the State’s obligation, it became a State actor). 

Lutheran argues that because Isaiah Harris’s Amended Complaint does not aver that he

was involuntarily removed from his home by the State, he does not plead the facts

necessary to state a claim under Section 1983 against Lutheran.

Lutheran’s reliance on these cases is misplaced. In Nicini, the Third Circuit Court

of Appeals did not distinguish between the involuntary removal or voluntary removal of a

child from his home. In that case, a teenager fled his family home to escape a physically

abusive father, and after a series of events, found refuge with a neighbor family. The

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 11 of 14
12

State temporarily approved that location as a placement, and asked the youth’s father to

sign a document permitting him to remain in the State’s custody. While at the neighbor’s

home, the boy was sexually abused. He brought an action which included § 1983 and

state law claims. The District Court disposed of the case at the pretrial stage. Upon

appeal, the Third Circuit was persuaded by the numerous decisions of the other Courts of

Appeals finding that foster children, like the incarcerated or the involuntarily committed,

are placed in a custodial environment and are unable to seek alternative living

arrangements, and held that the State has an affirmative duty to protect a child in foster

care. Nicini v. Morra, 212 F.3d at 808. The court did not limit this holding to foster

children who were forcibly removed from the family home. 

Generally, a contractor and its employees are not State actors simply because they

are carrying out a State-sponsored program and the contractor is being compensated by

the State. Nor does the fact that the activity being performed is a public function render

the contractor and its employees State actors. Instead, the function performed must have

been traditionally the exclusive prerogative of the State. Black v. Indiana Area School

District, 985 F.2d 207 (3d Cir. 1993). Foster care agencies perform such a function,

namely the removal of children from their homes. Donlan v. Ridge, 58 F.Supp.2d at 609. 

Thus, whether or not Isaiah Harris was forcibly taken from his home, Lutheran acted

under color of State law when it assisted Lehigh County in the placement of Isaiah Harris.

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 12 of 14
13

E. The Foster Father’s Motion to Dismiss

Peter Norton moves for his dismissal from the case pursuant to Rule 12(b)(6) and

28 U.S.C. § 1367(a). He contends that since all federally-based claims against him have

been eliminated in the Amended Complaint, there is no basis for the court to assert

supplemental jurisdiction over the State law claims. I disagree.

Congress provided that “in any civil action of which the district courts have

original jurisdiction, the district court shall have supplemental jurisdiction over all other

claims that are so related to the claims in the action within such original jurisdiction that

they form part of the same case or controversy under Article III of the United States

Constitution.” 42 U.S.C. § 1367. Here, Isaiah Harris’s civil rights claims arose out of the

same case and controversy as his claims against Mr. Norton. I will deny Mr. Norton’s

motion and assert supplemental jurisdiction over the State law claims against him.

III. CONCLUSION

To withstand a 12(b)(6) motion, Isaiah Harris need only make out a claim upon

which relief can be granted. See Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 168 (1993) (the notice pleading standard of Rule 8

requires only a short and plain statement of the claim showing that the pleader is entitled

to relief). If more facts are necessary to resolve or clarify the disputed issues, the parties

may avail themselves of the civil discovery mechanisms under the Federal Rules. 

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (the simplified notice pleading

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 13 of 14
14

standard relies on liberal discovery rules to define disputed facts and issues and to dispose

of unmeritorious claims). Upon the completion of discovery, a more comprehensive

analysis of Isaiah Harris’s Section 1983 claims and his State law claims will be possible. 

Accepting the allegations in the Amended Complaint as true and drawing all inferences in

Isaiah Harris’s favor, I find that Isaiah Harris has successfully stated claims for which

relief might be granted. I will deny the motions to dismiss.

An appropriate Order follows.

Case 2:04-cv-03890-TR Document 48 Filed 06/16/05 Page 14 of 14