1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 09

- 4013

______________ BRUCE BAYER, on his own behalf, and on behalf of minor children G .Z., P.Z., and J.B. ; ANGELA BAYER, on her own behalf, and on behalf of minor children G.Z., P.Z., and J.B. Appellants

v. MONROE COUNTY CHILDREN AND YOUTH SERVICES; COMMONWEALTH OF PENNSYLVANIA; MONROE COUNTY; SAT BAHL; WILLIAM BROWNING; HEATHER DRY; BRENDA RANTE; P. J. GEESE; ELIZA LONCOLA

- HICKS; TARA SURRAGO; IRETHA NOLLS; DET ECTIVE ROBSON; SGT. BOWMAN; CHIEF JOHN LAMBERTON; MARGHERITA WORTHINGTON; PRESIDENT JUDGE RONALD V ICAN; ELIZABETH WEEKS; DAVID WILLIAMSON; BARRY COHEN; DAWN THORTON; ADEL HEINLEIN; DR. JUDY MUNOZ; DONNA ASURE; ROBERT NOTHSTEIN; WALTER CLATCH; ELLIS KARLE; DR. TAROLI; DR. COLEEN COPPER; DISTRICT ATTORNEY MARK PAZUHANICH, Former DA; DISTRICT ATTORNEY'S OFFICE MONROE COUNTY; REGIONAL CHILDREN AND YOUTH; FOSTER CARE DIVISION OF MONROE COUNTY2 ______________ On Appeal from the United States District Court for th e Middle District of Pennsylvania (D.C. Civil Action No. 3

- 04

- cv
- 0 2505) Honorable A. Richard Caputo, District Judge

______________ Argued December 16 , 2010 BEFORE: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges (Filed: February 9, 2011 )

______________ Peter G. Loftus (argued) Loftus Law Firm P.O. Box V, 1207 N. Abington Rd. Waverly, PA 18471 Attorney for appellants Gerald J. Geiger (argued) Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri 712 Monroe St. Stroudsburg, PA 1 8360 Attorneys for Monroe County appellees Harry T. Coleman (argued) 41 North Main St. 3 rd Floor Suite 316 Carbondale, PA 18407 Attorneys for Pocono Mountain Regional Police Department appellees
Calvin R. Koons John G. Knorr, III Of fice of the Attorney General Appellate Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 171023

Attorneys for Commonwealth of Pennsylvania ap pellee s

______________ OPINION OF THE COURT

______________ GREENBERG, Circuit Judge

. T his matter comes on before this Court on appeal from a series of seven orders the
District Court entered , the last o ne on September 23, 2009, granting the various defendants summary judgment and leaving plaintiffs

- appellants without any cognizable
claims a nd without any defendants against whom to assert any possible claims. In particular the order s from which plaintiffs appeal were entered on September 12, 2005, September 29, 2005, February 16, 2006, June 29, 2006, January 10, 2007, October 15, 2007, and S eptember 23, 2009. For the reasons we discuss in this opinion , w e will affirm all of the orders from which plaintiffs have appealed

. I

. Because this case ha s been before this Court on an earlier appeal , we rely in part on our prior opinion in this case in Bayer v. Monroe County Children and Youth
Serv ice s. , 57 7 F.3d 186 (3d Cir. 2009) , in reciting the relevant factual and procedural history. As we described in our prior opinion :

Plaintiffs P.Z. and G.Z. were minor children (9 and 11 years old, respecti vely) at the time of the events at issue in this case. Plaintiff Angela Bayer is their biological mother, and Bruce Bayer, Angela's second husband, is their stepfather. Angela Bayer had primary custody of the children, and the children's biological fathe r, Gabriel Zhanay, lived elsewhere and had visitation rights. According to4 Angela Bayer's testimony, Zhanay was allowed to take the children for visits for part of one day each month.
Id. at 188

- 89. On Friday, January 10, 2003 , an unidentified individua l placed a tele phone
call to the Monroe County Children and Youth Services (MCCYS) reporting that the two minor children, G.Z. and P.Z., had been abused sexually by their biological father , Gabriel Zhanay

. Id. at 189

. This call did not initiate the first contact between plaintiffs and MCCYS, as

[a]ccording to defendants, „ [p]rior to January 14, 2003, P.Z. and G.Z. were interviewed not less than ten times by CYS re garding allegations of abuse.‟ These allegations included that their biological father had been serving the children alcohol, teaching them to steal, physically abusing them, showing them pornography, engaging in sexual acts in their presence, and encouraging self

- mutilation. Defendants note that, when interviewed, the children „ often recanted their statements. ‟ Plaintiffs do not dispute the frequency of prior contact with Monroe County Children and Youth Services, but deny P.Z. and G.Z. „“ o ften ” recanted their stories. ‟ The parties also dispute whether the Bayers, or the children themselves or their therapists, were responsible for reporting abusive conduct to Monroe County Children and Youth Services.
Id. at 189 n.1 (citations omitted) (alteration in original) . On th e s ame date as the telephone call, January 10 , 2003, as a result of the al legations , Detective Michael Robson of the Pocono Regional Police Department served plaintiffs Angela and Bruce Bayer, the mother and step

- father of G.Z. and P.Z., with a notice of placement regarding protective custody. Id. at 189. Pursuant to that noti ce , the children were removed from their home5

and placed in protective custody during an investigation of the children‟s biological
father concerning the allegations of sexual abuse. 1 Id. Three days later, on Monday January 13, MCCYS caseworker Heather D ry forwarded the information regarding the alleged abuse and removal of the children from
the home to Elizabeth Week s, the agency‟s solicitor. Id. The following day, January 14, Weeks filed an emergency petition in the Monroe County Court of Common Pleas seeking an order authorizing MCCYS to take custody of the children, and Common Pleas Judge Margherita Worthington granted the petition on t he same day. Id. at 189

- 90. Two days later, there was a hearing on the custody matter before Judge Worthington at which th e biological parent s , as well as the children , appeared and were represented by counsel. Id. at 190. At that hearing the parties reached an agreement that the children would remain in the custody of MCCYS and undergo psychological
evaluation and that there would be no contact between the parents and the children until
the next c ourt hearing on February 20. T h e biological parents stated on the record that they understood and consented to that agreement , though Angela Bayer claims that she
was unde r duress at that time. On January 28, MCCYS determined that the sexual assault allegations against the children‟s biological father were unfounded. 2 In accord with that finding, at the February

1 The parties dispute whether the police took the children into custody or whether Angela and Bruce Bayer brought the children to MCCYS. See Bayer , 577 F.3d at 189. It is not necessary for us to resolve tha t dispute on this appeal or to remand the case to the District Court for resolution of that question.6

20 hearing MCCYS recommended that MCCYS return the childre n to the Bayers‟ custody and t he Court concurred with that recommendation and ordered the return of the
children . The Court specifically not ed that there had been reasonable efforts to prevent placement with MCCYS, but that the parties agreed on protectiv e custody while represented by counsel . Moreover, the Court believed that the allegations of sexual abuse and the need for psychological evaluations showed that protective custody had been necessary and was in the best interest of the children.
In the aftermath of the foregoing proceedings, Angela and Bruce Bayer, on behalf
of themselves and the minor children , G.Z. and P.Z. , and the Bayers‟ biological son J.B.,
who was not removed from the home , filed a pro se complaint on November 18, 2004, asserting numerous claims against almost equally numerous defendants under various provisions of state a nd federal law

. 3 The District Court issued a series of six orders and associated written opinions in response to motions filed by the parties , the end result b eing that only plaintiffs‟ section 1983 procedural due process claims against two defendants

— Heather Dry, a caseworker

2 MCCYS continued its investigation into the psychological health of the children and investigated whether the children had been coached to claim that th eir father sexually abused them or had made up the stories on their own.

3 On December 22, 2004, the District Court ordered plaintiffs to retain an attorney to represen t the minor children, but plaintiffs did not comply with that order and consequently th e court dismissed the children f rom the suit on April 8, 2005. Subsequently, however, the children came to be represented and the Court reinstated them as plaintiffs on June 23, 2006. On January 10, 2007, the Court clarified that , although the minor chil dren had been reinstated as plaintiffs, they were entitled to pursue only the claims that had not been dismissed pri or to plaintiffs‟ June 23, 2006 motion to reinstate the minor children as plaintiffs. Plaintiffs do not challenge that ruling on appeal.7

at MCCYS, and Sat Bahl, her supervisor

— survived summary judgment. Th ough Dry and Bahl claimed that they were immune from plaintiffs‟ act ion , the District Court ruled
that neither w as entitled to either absolute or qualified immunity, and that plaintiffs could present evidence in support of their section 1983 Fourteenth Amendment procedural due process claim against them. The crux of plain tiffs‟ claim was that the failure to hold a court hearing until six days after the minor children had been removed from the Bayer household and placed in protective custody was a violation of plaintiffs‟ constitutional rights

. Dry and Bahl appealed to th is Court, and in an opinion dated August 14, 2009, we
reversed the order of the District Court denying Dry and Bahl immunity as we concluded
that they were entitled to at least qualified immunity. 4 Bayer , 577 F.3d at 191

- 93. We held that even assuming “t hat plaintiffs had a constitutional right to a post

- deprivation hearing within 72 hours and that this right was clearly established at the relevant time, we consider it objectively reasonable for defendants to have believed, under the law existing
at the t ime, that their particular conduct in this case was lawful and in keeping with this right.” Id. at 193. We agreed with Dry and Bahl

that they could reasonably have believed they had discharged their responsibilities with respect to plaintiffs‟ procedura l due process rights by advancing the case to the point where a hearing could take place within the constitutionally prescribed time frame, and could reasonably have expected that their

4 Although we discussed the issue, we did not decide whether Dry and Bahl were entitled to absolute immunity because our ruling that they were entitled to qual ified immunity rendered a determination with respect to absolute immunity unnecessary to a resol ution of the case.8 attorney and the court would hold the hearing in a timely fashion.
Id

. (citation and internal quotation marks omitted). We explicitly declined to impose a duty on MCCYS employees to “intervene in the court‟s scheduling of the subsequent dependency hearing.” Id. On remand, the District Court on September 23, 2009, entered an order granting Dry and Bahl summary judgment. Inasmuch as the District Court had dismissed plaintiffs‟ case against all of the defendants except for Dry and Bahl before their appeal, t h e order on remand left plaintiffs without any claims to assert and without any defendants against whom to assert

a ny possible claim

. Plaintiffs now appeal to this Court, contending that the District C ourt erred in: (1) dismissing their section 1983 Fourteenth Amendment procedural due process claims; (2) dismissing their section 1983 Fourteenth Amendment substantive due process claims; (3) ruling that certain defendants were entitled to qualified immunity; (4) invoking the Rooker

- Feldman doctrine; (5) dismissing their claims brought pursuant to Pennsylvania state law; and (6) ruling that punitive damages were not appropriate i n the
circumstances of this case

. 5 At oral argument plaintiffs‟ counsel clarified that they were limiting their challenges to the District Court‟s rulings with respect to the following
defendants: P .J. Geese, a caseworker at MCCYS; Detective Michael Robson of the Pocono Mountain Regional Police ; and Monroe County/ MCCYS

. The District Court

5 Plaintiffs also challenge the District Court‟s determination that Bruce Bayer, the step

father of P.Z. and G.Z., lacked standing to bring suit. Here, the crux of plaintiffs‟ complaint relates to the custody of P.Z. and G.Z., and, bec ause Bruce Bayer lacked any legal or other right to custody of those children, we conclude that the District Court correctly ruled that he lacked standing to bring this suit.9

had jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343 and w e have jurisd iction pursuant to 28 U.S.C

. § 1291. We exercise plenary review of the order of the District Court and, to the extent that the Court dismissed this case under Fed. R. Civ. P. 12(b)(6), we review the complaint to ascertain if it contains sufficient factual matter, that, accepted as t rue, states a claim for relief that is plausible on its face. Ashcroft v. Igbal , 129 S.Ct. 1937, 1949 (2009).
II. A district court‟s decision on a motion for summary judgment is subject to plenary
review. See McKenna v. City of Phila

. , 582 F.3d 447, 460 (3d Cir 2009). Summary judgment is only appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed

. R. Civ. P. 56(c). On the appeal we view all of the facts in the light most favorab le to the nonmoving party.
Gottshall v. Consolidated Rail Corp. , 56 F.3d 530, 533 (3d Cir. 1995).
III

. We will analyze plaintiffs‟ section 1983 due process claims first, because they are the only federal law claims that they maintain on appeal. P laintif fs , however, did not name Detective Robson as a defendant in the counts of their complaint asserting Fourteenth Amendment procedural and substantive due process violations under section
198 3. We therefore will not analyze those claims as to him

. As we hav e discussed, i n our prior decision in Bayer w e held that MCCYS caseworker Dry and her supervisor, Bahl, were entitled to qualified immunity. 577 F.3d
at 191

- 93. Plaintiffs now appeal the dismissal of their claims against MCCYS10

caseworker P.J. Geese. But p laintiffs do not raise any claims against Geese separate and distinct from those they brought against Dry and Bahl or allege that Geese was involved
in the underlying matter in a manner different than Dry and Bahl had been

. 6 Therefore,
Geese is entitle d to qualified immunity just as we held that Dry and Bahl were
. Th e foregoing determination leaves Monroe County/MCCYS as the sole potential remaining defendant with respect to plaintiffs‟ section 1983 procedural and substantive due process claims. “[A] l ocal government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983 .” Monell v. Dep‟t of Soc. Servs. of City of New York , 436 U.S. 658, 694, 98 S. Ct. 2018, 2037

- 38 (1978). A plaintiff can
show a local government‟s custom and/or policy in the following manner:

Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifi cally endorsed or authorized by law, is so well

- settled and permanent as virtually to constitute law. In either instance, a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a p olicy or acquiescence in a well

- settled custom.

6 In fact, if anything, Geese was less involved in this matter than Dry and Bahl.11

Bielevicz v. Dubinon , 915 F.2d 845, 850 (3d Cir. 1990) (internal citations and quotation marks omitted) (alteration in original)

. The District Court dismissed Monroe County /MCCYS as a defendant because ,

rea ding the C omplaint in the light most favorable to the Plaintiffs , no policy, practice, or custom of Monroe County has been alleged. Plaintiffs make only conclusory allegations that MCCYS has a policy of profiting illegally from removing children from thei r homes, however, the crux of Plaintiffs‟ allegations is that Defendants overstepped the bounds of current procedures governing the removal of children. Plaintiffs simply do not allege a direct causal link between a policy, practice, or custom of Monroe C ounty and the alleged violations of their constitutional rights. App. at 42 . We agree with the District Court that plaintiffs ‟ conclusory allegations are insufficient to support their contention that Monroe County/MCCYS has a policy, custom, or practice of “seiz [ ing ] minor children from their parents without prior judicial authorization, and without any reasonable basis to believe such a seizure is necessary to protect children fro m imminent harm.” App

. at 300, 305. We therefore will affirm the
Court‟s judgment dismissing Monroe County/MCCYS as a defendant in plaintiffs‟ complaint for failure to state a cognizable claim upon which relief may be granted insofar

as the complaint asserted section 1983 procedural and substantive due process claims.
Because of our disposition of plaintiffs‟ section 1983 procedural and substant ive due process claims, which, as mentioned , are the only federal claims that plaintiffs
maintain on appeal, we need not discuss in detail the remainder of the issues that they
raise on appeal. We , however, do add the following.12

P laintiffs, in their brief on this appeal , argue that the District Court erred in ruling
that some defendants , not specified by name in the brief , were entitled to immunity. But,
because a t oral argument plainti ffs‟ counsel clarified that the ir arguments on appeal were limited to Geese, R obson and Monroe County/MCCYS, and the District Court did not rule that any of those defendants were entitled to immunity, there is no reason for us to
address the issue

. Plainti ffs‟ brief also urges that the District Court erred in dis missing their state law claims. Plaintiffs do not, however, specify which state law claims should not have been
dismissed

. In any event , w e do not find any error in the Court‟s dismissal of the va rious state law claims, and , as plaintiffs do not provide any supporting rationale for their argument to the contrary , 7 we will not reverse the District Court‟s rulings with respect to
the state law claims

. Although plaintiffs challenge the District Court‟ s application of the Rooker

Feldman doctrine in this case, t o the extent that the Court relied on the Rooker

- Feldman doctrine, it did so only with respect to defendants Dry, Geese, and Robson. But, as we have discussed, both Dry and Geese are entitled to q ualified immunity, and Robson was

7 Plaintiffs claim that the District Court “dismissed the State Pendente Claims without a discussion on the validity of each claim based upon the Rooker

- Feldman doctrine.” Appellants‟ br. at 21. That characterization of the Court‟s reasoning is incorrec t, as the Court analyzed each of plaintiffs‟ state law claims in its written opinions. The only state law claim that the Court ruled that the Rooker

- Feldman doctrine barred was plaintiffs‟ substantive due process claim pursuant to Article I, Section 1 of the Pennsylvania Constitution. But even without regard for the Rooker

- Feldman doctrine, the Court found that that claim also was barred because there is no private right of action for damages arising from violations of the Pennsylvania Constitution. Thus , a reversal of the application of the Rooker

- Feldman doctrine would not help plaintiffs.13

not named as a defendant in the counts of plaintiffs‟ complaint alleging section 1983 procedural and subs tantive due process violations

— the only federal claims that pla intiffs maintain on appeal

— so we need not review the Dist r ict Court‟ s appli cation of the
Rooker

- Feldman doctrine. 8
IV. In summary, because our affirmance of the District Court‟s orders leaves plaintiffs
without any viable claims or any defendants against whom to assert any possible claims
their case must fai l. Therefore we will affirm the District Court‟ s orders of September 12, 2005, September 29, 2005, February 16, 2006, June 29, 2006, January 10, 2007, October 15, 2007, and September 23, 2009. Thus, we are affirming the orders granting summary judgment a nd dismissing plaintiffs ‟ case in its entirety.

8 Of course, in view of our outcome plaintiffs are not entitled to punitive damages or, indeed, compensatory damages either.