SARA L. COON, Administratrix of the Estate of Maxwell Schollenberger v. County of Lebanon

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-3443
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SARA L. COON, Administratrix of the Estate
of Maxwell Schollenberger, and in her own right,
Appellant
v.
COUNTY OF LEBANON; JAMES HOLTRY; ERIN M.
MOYER; ROBERT J. PHILLIPS; JOSEPHINE C. AMES,
Executrix of the Estate of William E. Ames, deceased; JO
ELLEN LITZ; SCOTT SCHOLLENBERGER, JR.;
KIMBERLY MAURER
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:22-cv-00322)
District Judge: Honorable Jennifer P. Wilson
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Submitted Under Third Circuit L.A.R. 34.1(a)
on April 11, 2024
Before: BIBAS, MONTGOMERY-REEVES, and ROTH,
Circuit Judges

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(Filed: August 5, 2024)
Joseph Auddino
Steven F. Marino
MARINO A SSOCIATES
301 Wharton Street
Philadelphia, PA 19147
Counsel for Appellant
Frank J. Lavery, Jr.
Andrew W. Norfleet
Murray J. Weed
L AVERY LAW
225 Market Street, Suite 304
Harrisburg, PA 17101
Counsel for Appellees
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Not every statutory duty creates a corresponding right to
enforcement. A twelve-year-old boy’s father and stepmother
abused and killed him. His bereaved mother sued the county,
arguing that it had known about the abuse and had a state-law
duty to protect the boy from it. But because Pennsylvania’s
legislature did not create a property interest in having the
county agency protect him from child abuse, the District Court
properly dismissed this case.

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I. LEBANON C OUNTY FAILS
TO P ROTECT MAXWELL FROM ABUSE
On this motion to dismiss, we take the complaint’s factual
allegations as true. In 2007, Scott Schollenberger and Sara
Coon had a son, Maxwell. After a custody battle, Maxwell
went to live with his father and stepmother, Kimberly Maurer.
Roughly three years later, when Scott’s mother, Lorie, vis-
ited Maxwell, she saw signs of child abuse. Kimberly admitted
to Lorie that she had repeatedly hit Maxwell with a metal spoon
and isolated him for a long stretch. Another time, Lorie saw
Maxwell’s legs and buttocks bruised, swollen, and discolored.
But when she tried to intervene, Scott and Kimberly cut off
contact and later moved away with Maxwell to Lebanon
County, Pennsylvania.
In 2015, someone warned Lorie that Maxwell was still being
locked away in a room for long stretches. Armed with this
information, she called the Lebanon County Children and
Youth Services agency three times in two days, repeatedly tell-
ing them that she feared that Maxwell was being abused. But
the county did nothing.
In 2020, Lorie’s worst fears came true: Maxwell was found
in a locked room in his father’s house, dead. He had been
beaten, neglected, starved, and dehydrated and was covered in
feces. Scott and Kimberly were arrested and charged with kill-
ing him.
Sara Coon sued Lebanon County and several county offi-
cials on behalf of herself and Maxwell’s estate. She asserted
federal claims under 42 U.S.C. § 1983 as well as state-law ones.

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But the District Court dismissed the federal claims, reasoning
that Pennsylvania’s Child Protective Services Law did not cre-
ate a property interest in having the county agency protect
Maxwell from child abuse. And it remanded the state claims to
state court. Because the District Court dismissed this case on
the pleadings, we review de novo. Clark v. Sec’y of the U.S.
Navy, 102 F.4th 658, 661 (3d Cir. 2024).
II. PENNSYLVANIA LAW D OES N OT CREATE
A P ROPERTY INTEREST IN HAVING A C OUNTY A GENCY
P ROTECT A C HILD FROM A BUSE
Due process protects people’s interests in life, liberty, or
property. To state a claim for violating procedural due process,
Coon must allege that Lebanon County’s procedures did not
adequately safeguard a protected property interest. In re Energy
Future Holdings Corp., 949 F.3d 806, 822 (3d Cir. 2020). For
a property interest to be protected, a plaintiff must show “a
legitimate claim of entitlement to it.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972). Though state law cre-
ates that entitlement, whether it counts as a protected property
interest depends on federal constitutional law. Town of Castle
Rock v. Gonzales, 545 U.S. 748, 756–57 (2005).
An entitlement is not a protected property interest “if gov-
ernment officials may grant or deny it in their discretion.” Id.
at 756. For instance, in Castle Rock, the Supreme Court held
that Colorado law did not confer a property interest in enforc-
ing a restraining order. Id. at 750–51, 756, 768. Though Colo-
rado’s statute required police to “use every reasonable means
to enforce a restraining order,” its mandatory phrases “shall
use” or even “shall arrest” were not enough to create a property

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interest. Id. at 758–59, 761. We have held likewise. Burella v.
City of Philadelphia, 501 F.3d 134, 145–46 (3d Cir. 2007)
(holding that “shall arrest” language in the Pennsylvania Protec-
tion from Abuse Act, 23 Pa. Cons. Stat. § 6113(a), was not
enough).
These precedents foreclose Coon’s claim. She relies on the
agency’s statutory duty: after someone reports child abuse,
“the county agency shall ensure the safety of the child.”
§ 6368(a) (emphasis added). But that is just like the mandatory
language in Castle Rock and Burella, which did not suffice. As
with the statute in Burella, this law is “silent as to whether a
victim can request, much less demand,” enforcement of the
mandate. 501 F.3d at 145. Indeed, this mandate is even weaker
than the one in Burella—if a county agency violates it, the vic-
tim cannot seek to penalize the agency with civil or criminal
contempt. Cf. id. (discussing §§ 6113.1(a), 6114.1(a)). And the
legislature said nothing about giving victims a property interest
in enforcement. We cannot read its silence as speech.
* * * * *
Though Maxwell’s death was tragic, that tragedy does not
change the law. County agencies have a duty under Pennsylva-
nia law to protect children from abuse. But because nothing in
that law gives victims a property right to enforce that duty,
Coon cannot state a procedural-due-process claim. We will
affirm the District Court’s order dismissing the federal claims
and remanding the state claims to state court.

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