NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____ ______ No. 16

- 3981

__________ WEIH STEVE CHANG , individually and as guardian for A.B., C.D., and E.F.; A.B. a

minor child; C.D., a minor child; E.F., a minor child , Appellant s

v. STATE OF DELAWARE DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH, AND THE IR FAMILIES, DIVISION OF FAMILY SERVICES, SARAH MARLOWE, individually and in her official capacity; BAHU GILLIAM, individually and in her official capacity; CHILDREN’S ADV OCACY CENTER OF DELAWARE, CITY OF WILMINGTON, a municipal corporation of the State of Delaware; CITY OF WILMINGTON POLICE DEPARTMENT; MARY QUINN, individually and in her official capacity

____________________________________ On Appeal from the United Stat es District Court

for the District of Delaware (D. Del . Civil Action No. 1

- 15

- cv
- 0096 3 ) District Judge: Honorable Leonard P. Stark

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

December 11, 2018
Before: GREENAWAY, JR. , RESTREPO and FUENTES, Circuit Judges

(Opinion filed : October 4, 2019 )2 ___________ OPINION *

_ __________ PER CURIAM Weih Steve Chang, proceeding pro se , appeals an order of the United States District Court for the District of Delaware granting the defendants’ mot ion s to dismiss his
amended complaint. For the reasons that follow, w e will affirm t he judgment of the
District Court. Chang and his three minor children, through counsel, filed suit against the State of Delaware, Department of Services for Children, You th, and Their Families, Division of Family Services (“DFS”) and two employees thereof , the City of Wilmington, the City of Wilmington Po lice Department, O fficer Mary Quinn , and the Children’s Advocacy
Center of Delaware

. The amended complaint , which is re lated to a custody case in Delaware Family Court , alleges that Chang reported inciden ts of abuse and neglect by the children’s mother to DFS and the Wilmington Police Department. O fficer Quinn interviewed Chang and the children’s mother , observed a Childr en’s Advocacy Center employee interview the children , and prepared report s
. Chang a nd his children aver that DFS determined that Chang had told the children to make false allegations against their mother and filed a petition against him in Family
Court a lleging emotional abuse or neglect

. The Family Court found that the evidence did

* This disposition is n ot an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not3

not support the petition and dismissed the matter. An order attached to the original complaint reflects that t he Family Court noted that the incidents, which had occurred
ye ars earlier , were true, but that Chang’s motive for reporting them just before a cust ody transfer was suspect. Chang and his children claimed violations of their civil rights under 42 U.S.C. § 1983 and state law based on these proceedings and the alleged continued denial of custody to Chang . The District Court granted the defendants’ mot ions to dismiss the amended complaint and this appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standa rd of review is plenary. Palakovic v. Wetz el , 854 F.3d 209, 219 (3d Cir. 2017). Chang raises three
issues for our review.
Chan g first contends that the District Court erred in dismissing a breach of
contract claim. The amended complaint alleges that the Children’s Advocacy Center, the Wilmington Police Department, the Delaware Department of Justice, and the State of
Delaware wer e parties to a Memorandum of Understanding that addressed the investigation of child ab use allegations and services for victims

. The amended complaint
avers that the defe ndants breached this contract by failing to perfo rm their obligations
thereunder and thereby injured the children, who are alleged ly third

- party beneficiaries of
the contract

. In dismissing this claim, the District Court ruled that the Memorandum of

constitute binding precedent.4

Under standing is a set of guidelines, not a contract, and that it reflects no intent to

co mpensate the public for any failure to perform

. Appellees argue that Chang lacks standing to challenge the dismissal of th is claim
because it was asserted by his children, who are not parties to the present appeal. We agree. The amended complaint alleges that the children are the third

- part y beneficiaries
of the Memorandum of Understanding and that they were injured by its breach

. Chang was notified that he may not pursu e claims on behalf of his children in this appeal. See
Osei

- Afriyie v. Medical Colle ge of Pa. , 937 F.2d 876, 882

- 83 (3d Cir. 1991). H is argument s that the District Court erred is dismissing this claim are not properly before us

. Chang also contends that the District Court erred in relying on a n out

- of

- court custody agreement in dismissin g his civil rights claim s
. Although his argument is not entirely clear, Chang appears to take issue with the District Court’s reliance on a Family Court order reflecting that he agree d to transfer full custody to the children’s mother in support of its di smissal of his substantive due process claim against Officer Quinn

. The
District Court ruled that Officer Quinn was entitled to qualified immunity in part because
the ame nded complaint did not suggest that her involvement caused a denial of a
constitution al right where Chang had consented to the mother’s custody of the children
before the investigation. Chang argues that he did not relinquish his constitutional rights by agreeing to transfer custody to the children’s mother . He states that he had custody initially and that custody orders can be modified at any time. Chang’s agreement to transfer custody5

before the investigation may not preclude his constitutional claim i nsofar as he alleges
the continued denial of custody, but Officer Quinn is entitled t o qualified immunity because Chang does not sufficiently allege a violation of his substantive due process right s
. See Bland v. City of Newark , 900 F.3d 77, 83 ( 3d Cir. 2 018) (setting forth inquiry for resolving questions of qualified immunity).
The amend ed complaint alleges that Officer Quinn interfered with Chang’s parental rights by improperly allow ing the children’s moth er’s friend to assist her in her interview, faili ng to investigate the claims further, and initiat ing or caus ing the initiation of pro ceedings against him knowing that the children’s mother had admitted to acts of
abuse in her interview

. The amended complaint also avers that Officer Quinn issued a
repor t that concluded without reasonable basis that Chang had told the children to lie. A s recognized by the District Court, the right to familial integrity does not include the right to remain free from child abuse investigations. Croft v. Westmoreland Cty

. C hildren and
Youth Servs. , 103 F.3d 1123, 1125 (3d Cir. 1997). Chang’s allegations a re insufficient to state a plausible claim that Officer Quinn violat ed his substantive due process rights. See Miller v. City of Philadelphia , 174 F.3d 368, 3 75 (3d Cir. 1999) ( explaining conduct must be so ill

- conceived or malicious that it “shock s the c onscience”). 1

1 To the extent Chang disputes the dismissal of his malicious prosecution claim based on his custody agreement , as discussed below that claim was properly dism issed for other reasons
. T o the extent Chang disputes the dismissal of his malicious prosecution claim against DFS employee Sarah Marlowe , he does not challenge the prima ry ruling below that she i s entitled to absolute immunity and it is thus unnecessary to address the District Court’s other reasons for dismissing his claim

.6

Finally, Chang contends that the District Court erred in considering documents outside the pleadings in granting the motions to dismiss. We read his brief a s asserting that the District Court erred in relying on such documents in finding pro bable cause and
d ismissing his malicious prosecution claim against Officer Quinn . In adjudicating this claim, the District Court referred to the City of Wilmington’s brie f, which relied upon Officer Quinn’s police report and the transcripts of the family’ s interviews that were submitted in support of the motion to dismiss. The District Court ruled that it could consider these documents without converting the motion to a s ummary judgment motion. We need not resolve this issue because, even if we were to a gree with Chang that
the District Court erred in consider ing the se documents without converting the motion , dismissal of his malicious prosecution claim was warranted on o ther grounds. In support of his claim, Chang averred that he “suffered a deprivation of his due process right to liberty, the right to the integrity of his family and the fellowship of his children.” Am. Compl. at 21. To the extent he relies on a violat ion of his right to substantive due process, as the City defendants asserted below, s uch a violation cannot provide the basis for a malicious prosecution claim. Merkle v. Upper Dublin School District , 211 F.3d 782, 792 ( 3d Cir. 2000). Chang also argued b elow that he stated a claim because he was seized within the meaning of the Fourth Am endment when he was required to defend the child abuse charges. However, to the extent his malicious prosecution claim can be based
upon the civil proceeding brought agai nst him , there was no seizure absent pretrial7

custody or onerous pre trial restriction s , which have not been alleged here

. DiBella v. Borough of Beachwood , 407 F.3d 599, 6 03 (3d Cir. 2005). Accordingly, we will affirm the judgment of the District Court. 2

2 Chang’s motion for leave to add the proposed theory of white privileges on appeal is denied as the theory was not presented in District Court prior to the judg ment . The City of Wilmi ngton and other City Appellees’ motion to seal their appendix is granted. Chang’s motion to use his children’s full names is denied. Chang’s motion to stay his appeal is also denied.