Weems v. Children's Hosp. of Phila.

1

MARGO A. WEEMS, Plaintiff, v. CHILDREN'S HOSP. OF PHILA., et al., Defendants.

Civil Action No. 22-3961

United States District Court, E.D. Pennsylvania

December 28, 2023

MEMORANDUM

GERALD J. PAPPERT, J.

Margo Weems filed this lawsuit on behalf of herself and ostensibly, her minor daughter TMW against fifty-five people and entities.^[1] Her complaint is a lengthy and rambling narrative that seems to pertain to the custody of her child. Weems alleges that in September 2016, she brought her daughter to Childrens' Hospital of Philadelphia with a fever. CHOP staff, apparently believing Weems had neglected the child and had “mental issues,” contacted the City of Philadelphia's Department of Human Services. DHS initiated dependency proceedings against Weems in the Juvenile Division of the Philadelphia County Court of Common Pleas (“family court”). The family court terminated Weems's parental rights in April 2019, but the Pennsylvania Superior Court subsequently vacated the termination order. The proceedings in family court apparently remain ongoing.

Weems believes all defendants conspired in various ways to take her daughter away from her, violating her parental rights under the First, Second,^[2] Fourth, Fifth and Fourteenth Amendments and, because she is of “Native American heritage,” under the Indian Child Welfare Act (“ICWA”). She also seems to assert various state law claims. Seven groups of Defendants have filed motions to dismiss, (ECF Nos. 32, 43, 44, 45, 47, 57 and 61), to which Weems has now responded. (ECF Nos. 84, 85, 86, 87, 88, 89, 90 and 97.) The Court resolves the motions in this Memorandum as follows and specifies in the accompanying Order how Weems, if she chooses to do so, may amend her Complaint.

I

To avoid dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead factual allegations sufficient to state a claim that is facially “plausible.” Ashcroft v. Iqbal 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the facts pleaded permit a court to make the reasonable inference that the defendant is liable for the alleged misconduct. Id. The “mere possibility of misconduct” is not enough; the complaint “must contain sufficient factual matter, accepted as true ‘to state a claim to relief that is plausible on its face.'” Id. at 678-79 (quoting Twombly, 550 U.S. at 570).

Determining plausibility is a “context-specific task” requiring a court to use its “judicial experience and common sense.” Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (quotation omitted). In making this determination, the court assumes well-pleaded facts are true, construes those facts in the light most favorable to the plaintiff, and draws reasonable inferences from them. Connelly v. Lane Constr. Corp., 809 F.3d 780, 790 (3d Cir. 2016). However, “conclusory assertions of fact and legal conclusions” are not entitled to the same presumption of truth. Schuchardt, 839 F.3d at 347. This presumption attaches only to those allegations supported by sufficient facts. Id. (quotation omitted).

Because Weems is proceeding pro se, the Court liberally construes the Complaint. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021). However, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Id. (quoting Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)).

II

A

Weems cannot state a claim under the Fourth Amendment, which protects against unreasonable searches and seizures. United States v. De Castro, 905 F.3d 676, 678 (3d Cir. 2018). Although courts have allowed parents to assert Fourth Amendment claims on their children's behalf, see, e.g., Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999); Hollingsworth v. Hill, 110 F.3d 733, 738 (10th Cir. 1997), again, Weems may not do so as a pro se litigant. See Osei-Afriye, 937 F.2d at 882-83; see also Gilyeat v. Morales, No. 13-2496, 2015 WL 505801, 2015 U.S. Dist. LEXIS 14399, at *6-7 (D. Kan. Feb. 6, 2015). Nor can Weems separately assert her own Fourth Amendment claim based on TMW's alleged “seizure.” See K.K. v. Berks Cnty., No. 15-0475, 2016 WL 1274052, 2016 U.S. Dist. LEXIS 44257, at *30 n.9 (E.D. Pa. Mar. 31, 2016).

B

Although Weems does not specify which provision of the Fifth Amendment she alleges the defendants violated, she cannot state a claim under any of them. The Fifth Amendment guarantees criminal defendants a right to indictment by a grand jury in federal prosecutions, United States v. Greenspan, 923 F.3d 138, 152-53 (3d Cir. 2019) (quotation omitted), and prohibits the government from prosecuting or punishing the same criminal defendant more than once for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). The Fifth Amendment further prevents the government from compelling people to incriminate themselves, Renchenski v. Williams, 622 F.3d 315, 332 (3d Cir. 2010), but Weems has not alleged she was compelled to provide any incriminating information. And in any event, family court proceedings are civil rather than criminal in nature, so these rights do not apply. Interest of J.T., 983 A.2d 771, 774 (Pa. Super. Ct. 2009).

On the civil side, the Fifth Amendment prohibits the taking of private property for public use without just compensation. Nekrilov v. City of Jersey, 45 F.4th 662, 669 (3d Cir. 2022) (quotation omitted). While Weems alleges her child should not have been taken from her, children do not fall within the definition of “property” under the Takings Clause. Walthour v. Child & Youth Servs., 728 F.Supp.2d 628, 636 (E.D. Pa. 2010). Finally, because Weems has sued only state and private actors, she cannot state a claim against them for violations of the Fifth Amendment's Due Process Clause, which applies to actions taken by the federal government, rather than state or local governments. B&G Constr. Co. v. Dir., OWCP, 662 F.3d 233, 246 n.14 (3d Cir. 2011); Duffy v. Cnty. of Bucks, 7 F.Supp.2d 569, 576 (E.D. Pa. 1998).

C

Finally, Weems claims the family court “denied me my Native American Heritage,” violating her rights under ICWA. (Compl. at 15.)^[3] But based on the Complaint's allegations, neither Weems nor her daughter (to the extent a claim could be brought on her behalf) are protected by ICWA. The statute defines an “Indian child” as an unmarried person under eighteen who is either a “member of an Indian tribe,” or eligible for membership in an Indian tribe and is “the biological child of a member of an Indian tribe.” Haaland v. Brackeen, 143 S.Ct. 1609, 1623 (2023); 25 U.S.C. § 1903(4). Similarly, “Indian” means “any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 7 of the Alaska Native Claims Settlement Act.” 25 U.S.C. § 1903(3). Weems's passing reference to her “Native American Heritage” does not establish that either she or her child are covered by the statute.

III

Because she alleges violations of her constitutional rights, Weems appears to bring a claim under 42 U.S.C. § 1983. Section 1983 imposes liability on those who deprive others of federal constitutional or statutory rights “under color of any statute, ordinance, regulation, custom, or usage,” of a state. 42 U.S.C. § 1983; see also Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005). To state a claim under Section 1983, Weems must allege “two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived [her] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011). Additionally, Weems must allege the defendants' “personal involvement” in the alleged wrongdoing. Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)).

Construing her complaint liberally, Weems may be alleging that various defendants violated her parental rights under the Fourteenth Amendment's Due Process Clause. Parents have a constitutionally protected liberty interest in the “custody, care and management of their children.” Croft v. Westmoreland Cnty. Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). Conduct violates this liberty interest if it reaches “a level of gross negligence or arbitrariness that indeed ‘shocks the conscience.'” Mulholland v. Gov't Cnty. of Berks, 706 F.3d 227, 241 (3d Cir. 2013) (quoting Miller v. City of Phila., 174 F.3d 368, 375 (3d Cir. 1999)). A state “has no interest in protecting children from their parents unless it has some reasonable and articulable evidence” creating a reasonable suspicion that the child needs protection from abuse or neglect. Croft, 103 F.3d at 1125. Reasonable suspicion is lacking where a child welfare agency has “consciously disregarded a great risk that there had been no abuse” or neglect. Ziccardi v. City of Phila., 288 F.3d 57, 66 (3d Cir. 2002).

IV

Weems's constitutional claims against several defendants fail because she has not adequately alleged their personal involvement. Defendants in civil rights actions “must have personal involvement in the alleged wrongs.” Rode, 845 F.2d at 1207. Their liability cannot be “predicated solely on the operation of respondeat superior.” Id. The plaintiff “must aver facts to show the defendants' personal involvement in the alleged misconduct.” Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020). “A plaintiff makes sufficient allegations of a defendant's personal involvement by describing the defendant's participation in or actual knowledge of and acquiescence in the...