Bruce Bayer, on his own behalf v. Monroe County Children

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4267
BRUCE BAYER, on his own behalf,
and on behalf of minor children
Gabriel Zhanay, Pedro Zhanay and John Bayer;
ANGELA BAYER, on her own behalf,
and on behalf of minor children
Gabriel Zhanay, Pedro Zhanay and John Bayer
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; DETECTIVE ROBSON;
SGT. BOWMAN; CHIEF JOHN LAMBERTON;
MARGHERITA WORTHINGTON;
PRESIDENT JUDGE RONALD E. VICAN;

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2
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 COUNTY
Sat Bahl and Heather Dry,
Appellants
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 04-cv-2505
(Honorable A. Richard Caputo)
Argued April 20, 2009
Before: SCIRICA, Chief Judge,
SLOVITER and FISHER, Circuit Judges.

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(Filed: August 14, 2009)
GERARD J. GEIGER, ESQUIRE (ARGUED)
Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri
712 Monroe Street, P.O. Box 511
Stroudsburg, Pennsylvania 18360
Attorney for Appellants
PETER G. LOFTUS, ESQUIRE (ARGUED)
The Loftus Law Firm
P.O. Box V, 1207 North Abington Road
Waverly, Pennsylvania 18471
Attorney for Appellees Bruce Bayer and Angela Bayer
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this action brought principally under 42 U.S.C. § 1983,
at issue is whether defendants, a social worker for the Monroe
County Children and Youth Services and her supervisor, are
entitled to absolute or qualified immunity in connection with an
allegedly unconstitutional delay in holding a dependency
hearing after the agency removed children from their mother’s
custody. The District Court determined defendants were entitled
to neither form of immunity, and denied their request for

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According to defendants, “[p]rior to January 14, 2003, P.Z.1
and G.Z. were interviewed not less than ten times by CYS
regarding allegations of abuse.” App. at 81. 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
4
summary judgment on those grounds. We disagree and will
reverse, holding that defendants are entitled to qualified
immunity.
I.
Plaintiffs P.Z. and G.Z. were minor children (9 and 11
years old, respectively) 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 father, Gabriel Zhanay, lived elsewhere
and had visitation rights. According to Angela Bayer’s
testimony, Zhanay was allowed to take the children for visits for
part of one day each month.
On Friday, January 10, 2003, a telephone call was placed
to Monroe County Children and Youth Services, reporting that
G.Z. and P.Z. had been sexually abused by their biological
father. On several prior occasions, the agency had received
reports that the biological father was harming the children. The1

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note that, when interviewed, the children “often recanted their
statements.” Id. at 81. Plaintiffs do not dispute the frequency
of prior contact with Monroe County Children and Youth
Services, but deny P.Z. and G.Z. “‘often’ recanted their stories.”
Id. at 284. 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.
5
parties dispute who made the January 10 telephone call.
Defendants contend the Bayers themselves reported that the
children’s biological father had been abusing the children and
was about to arrive at their home to exercise his visitation rights,
while the Bayers claim it was one of the children’s therapists
who telephoned. At the end of that day, the children were
placed in the custody of Monroe County Children and Youth
Services. The parties dispute whether the police took the
children into custody or whether Bruce and Angela Bayer
brought the children to Monroe County Children and Youth
Services. The Bayers were served with a notice of placement
regarding protective custody signed by Detective Michael
Robson of the Pocono Regional Police Department. Pursuant to
that order, P.Z. and G.Z. were removed from the Bayer home
and placed in protective custody with Monroe County Children

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Under 42 Pa. Cons. Stat. Ann. § 6324(3) (West 2001 &2
Supp. 2009), “[a] child may be taken into custody . . . [b]y a law
enforcement officer or duly authorized officer of the court if
there are reasonable grounds to believe that the child is suffering
from illness or injury or is in imminent danger from his
surroundings, and that his removal is necessary.”
The parties do not dispute that the Bayers agreed to
placing the children in the custody of Monroe County Children
and Youth Services; the Bayers assert, however, that they
“agreed for the children to be taken for the weekend only to
avoid contact with their biological father.” App. at 286–87
(emphasis removed).
According to defendants, at the time of these events the3
Monroe County Court of Common Pleas did not make judges
available on weekends to handle emergency dependency
6
and Youth Services while the children’s biological father was
investigated for alleged sexual abuse.2
On Monday morning, January 13, Defendant Heather
Dry, a caseworker at Monroe County Children and Youth
Services, forwarded to attorney Elizabeth Weekes, the agency’s
solicitor, information involving the alleged abusive conduct and
the removal of the children from the Bayer home, so that
Weekes could file an emergency petition in the Monroe County
Court of Common Pleas on behalf of the agency to take
protective custody of G.Z. and P.Z. The next day, Tuesday,3

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petitions, despite its apparent obligation under 23 Pa. Cons. Stat.
Ann. § 6315(b) (West 2001 & Supp. 2009) to “insure that a
judge is available 24 hours a day, 365 days a year to accept and
decide . . . actions” such as these. Defendants note that this is
no longer the case; the court is now open during these times to
receive and address such petitions. Defs.’ Br. 4 n.3.
7
Weekes filed the petition. That same day, Monroe County Court
of Common Pleas Judge Margherita Worthington signed an
order continuing custody in Monroe County Children and Youth
Services and scheduling a hearing for Thursday, January 16.
On January 16, Judge Worthington held a hearing at
which both biological parents, as well as the children, were
present and represented by counsel. The parents agreed to a
continuance until February 20, 2003; in the interim, the children
remained in the custody of Monroe County Children and Youth
Services and underwent psychological evaluation. Angela
Bayer claims she was under duress when she agreed to the
continuance. On January 28, Monroe County Children and
Youth Services determined the sexual abuse case against the
biological father was unfounded, and at the hearing on February
20, recommended the court return the children to the Bayers’
custody. The court did so, finding that the agency’s custody
over the children in the period from January 10 to February 20
had been necessary due to the allegations of abuse and had been
in the best interests of the children.

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Among the claims dismissed were plaintiffs’ substantive due4
process claims under the Fourteenth Amendment, their
procedural and substantive due process claims under the
Pennsylvania Constitution, and their claims for punitive
damages. The court also dismissed, for lack of standing, all §
1983 claims brought by Bruce Bayer and J.B., the sibling of P.Z.
and G.Z.
8
On November 18, 2004, plaintiffs filed a complaint in
federal court raising forty-one claims against thirty-one
defendants under various provisions of state and federal law. In
earlier orders not at issue in this appeal, the District Court
dismissed many of those defendants and claims. In an order
filed October 15, 2007, the court granted the remaining
defendants’ motion for summary judgment in part, dismissing all
such defendants save two—caseworker Heather Dry and her
supervisor, Sat Bahl. The court also dismissed all claims against
these two defendants except the claim under 42 U.S.C. § 1983
that these defendants, under color of state law, deprived
plaintiffs of their Fourteenth Amendment right to procedural due
process. Viewing the record in the light most favorable to4
plaintiffs, the court found that plaintiffs’ “procedural due
process rights were violated based on the failure to receive a
post-deprivation hearing in a period which would satisfy due
process.” In the court’s view, this period extended no further
than 72 hours after the children were removed from their

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With respect to Bahl, the District Court recognized that he5
cannot be liable for this violation under § 1983 on a respondeat
superior theory, and that plaintiffs “instead must show that [he]
played a personal role in violating their rights.” See Andrews v.
City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990). The court
concluded that plaintiffs had created a triable issue “as to
whether Defendant Bahl had personal knowledge regarding the
Fourteenth Amendment procedural due process violation.”
In light of the Supreme Court’s recent decision in
Ashcroft v. Iqbal, No. 07-1015 (May 18, 2009), it is uncertain
whether proof of such personal knowledge, with nothing more,
would provide a sufficient basis for holding Bahl liable with
respect to plaintiffs’ Fourteenth Amendment claims under §
1983. See id., slip op. at 13 (“In a § 1983 suit or a Bivens
action—where masters do not answer for the torts of their
servants—the term ‘supervisory liability’ is a misnomer. Absent
vicarious liability, each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.
In the context of determining whether there is a violation of
clearly established right to overcome qualified immunity,
purpose rather than knowledge is required to impose Bivens
liability on the subordinate for unconstitutional discrimination;
the same holds true for an official charged with violations
arising from his or her superintendent responsibilities.”). We
need not resolve this matter here, however. As discussed infra,
we believe qualified immunity shields both Dry and Bahl from
9
mother’s custody. Defendants interposed alternative assertions5

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liability for their conduct in this case; thus, Bahl would be
entitled to such immunity whether his alleged liability under §
1983 were to derive from his own conduct or from his
knowledge of Dry’s conduct.
10
of absolute and qualified immunity, which the court rejected.
Defendants filed a timely notice of appeal. They
challenge only the District Court’s rulings that they are not
entitled to either qualified or absolute immunity with respect to
plaintiffs’ Fourteenth Amendment procedural due process
claims.
II.
The District Court exercised jurisdiction under 28 U.S.C.
§ 1331. Under the collateral order doctrine, 28 U.S.C. § 1291
confers appellate jurisdiction over the District Court’s denial, at
the summary-judgment stage, of defendants’ claim that they are
entitled to absolute or qualified immunity, to the extent that
denial turns on questions of law. Walter v. Pike County, 544
F.3d 182, 190 (3d Cir. 2008) (citing Mitchell v. Forsyth, 472
U.S. 511, 530 (1985)); see also id. (noting that, in this context,
“‘we lack jurisdiction to consider whether the district court
correctly identified the set of facts that the summary judgment
record is sufficient to prove; but we possess jurisdiction to
review whether the set of facts identified by the district court’
supports a claim beyond the bounds of the immunity at issue”

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11
(quoting Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir.
2002))).
“We review the denial of a motion for summary judgment
de novo. We apply the same test required of the district court
and view inferences to be drawn from the underlying facts in the
light most favorable to the nonmoving party.” Haybarger v.
Lawrence County Adult Prob. & Parole, 551 F.3d 193, 197 (3d
Cir. 2008) (internal quotation marks and citation omitted); see
also Walter, 544 F.3d at 190 (noting that although the scope of
our review in this context is limited, “we still apply the standard
for summary judgment”).
III.
“The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’”
Pearson v. Callahan, No. 07-751, slip op. at 5–6 (Jan. 21, 2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). At
the time the District Court filed its opinion, Saucier v. Katz, 533
U.S. 194 (2001), provided the controlling standard for analyzing
claims of qualified immunity. Under Saucier’s two-step inquiry,
[f]irst, the court must determine whether the facts
alleged show that the defendant’s conduct
violated a constitutional or statutory right. If so,
the court must then determine whether the
constitutional or statutory right allegedly violated

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12
by the defendant was “clearly established.” If the
court concludes that the defendant’s conduct did
violate a clearly established constitutional or
statutory right, then it must deny the defendant the
protection afforded by qualified immunity.
Williams v. Bitner, 455 F.3d 186, 190 (3d Cir. 2006) (citing
Saucier, 533 U.S. at 201). Subsequently, however, the Supreme
Court in Pearson clarified that “the Saucier procedure should
not be regarded as an inflexible requirement.” No. 07-751, slip
op. at 1. Rather, “[t]he judges of the district courts and the
courts of appeals should be permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Id., slip op. at 10.
Applying Saucier, the District Court first found that,
“[v]iewing the entire record in the light most favorable to
Plaintiffs, . . . Plaintiffs’ procedural due process rights were
violated based on the failure to receive a post-deprivation
hearing in a period which would satisfy due process.” Although
“the Third Circuit Court of Appeals has not established a bright-
line rule,” the court noted that “[o]ther circuits, and indeed other
district courts in this circuit, have held that delay in post-
deprivation process of seventy-two (72) hours or greater is
unconstitutional.” Referencing this case law, the court found
that “[t]he procedural due process right to a prompt post-
deprivation hearing within the boundaries of seventy-two (72)
hours was clearly established at the time of the violation. That

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a hearing held almost one week after the children were placed
in custody violates due process was certainly clearly
established.” Furthermore, the court found that “the actions of
the Defendant Dry [were] not objectively reasonable.” Noting
that the children were taken into the custody of Monroe County
Children and Youth Services on January 10, and that plaintiffs
were not afforded a hearing at which they could be present until
January 16, almost a week later, the court determined “[i]t was
not reasonable for the Defendant Dry to take the minors into
protective custody without providing the Plaintiffs with a
prompt hearing. This delay was clearly not reasonable, and
Defendant Dry should have acted to have a hearing within a
period of time that would comport with due process. Therefore,
the Court finds Defendant Dry is ineligible for qualified
immunity on the post-deprivation procedural due process
claim.” Similarly, the court found that “[t]here is no evidence
presented that Defendant Bahl made any effort to expedite the
hearing so that it would occur within a time that would comport
with procedural due process. Therefore, if it is found that
Defendant Bahl had actual knowledge or acquiescence of the
procedural due process claim, he too would be ineligible for
qualified immunity.”
On appeal, defendants do not challenge the court’s
conclusion that plaintiffs were entitled, as a matter of procedural
due process, to a post-deprivation hearing within 72 hours. And
in light of Pearson, we need not reach this issue, as we find that,
under the “clearly established” prong of the Saucier test,

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defendants should be afforded qualified immunity with respect
to this claim. See Pearson, No. 07-751, slip op. at 18 (forgoing
the first Saucier step and finding the defendants “are entitled to
qualified immunity because [their conduct] did not violate
clearly established law”). “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at
202. “This inquiry . . . must be undertaken in light of the
specific context of the case, not as a broad general proposition,”
id. at 201, and “turns on the ‘objective legal reasonableness of
the action, assessed in light of the legal rules that were clearly
established at the time it was taken.’” Pearson, No. 07-751, slip
op. at 18–19 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)
(internal quotation marks omitted)); see also Walter, 544 F.3d
at 191 (noting that we have characterized the second prong of
the Saucier test as comprising two questions: “whether the right
alleged to have been violated was clearly established in the
existing law at the time of the violation; and . . . whether a
reasonable official knew or should have known that the alleged
action violated the plaintiffs’ rights” (quoting Rouse v. Plantier,
182 F.3d 192, 196–97 (3d Cir. 1999))). “If the law did not put
the officer on notice that his conduct would be clearly unlawful,
summary judgment based on qualified immunity is appropriate.”
Saucier, 533 U.S. at 202.
Even if we assume that plaintiffs had a constitutional
right to a post-deprivation hearing within 72 hours and that this

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right was clearly established at the relevant time, we consider it
objectively reasonable for defendants to have believed, under
the law existing at the time, that their particular conduct in this
case was lawful and in keeping with this right. Here, it is
undisputed that the children were taken into the custody of
Monroe County Children and Youth Services at the end of the
day on Friday and that Dry forwarded the relevant information
to the agency’s solicitor on Monday morning, leaving the
remainder of the day for the petition to be filed and hearing to
be held within the prescribed 72-hour period. The agency’s
solicitor did not file the petition until Tuesday morning, after
that period had elapsed, but there is no indication that Dry or
Bahl was responsible for this delay. Furthermore, we have not
found, and neither the able District Court nor plaintiffs have
identified, anything in the record or law indicating that once Dry
had forwarded the relevant information to the solicitor, either
she or Bahl, in their respective capacities at Monroe County
Children and Youth Services, had the authority or affirmative
duty to intervene in the court’s scheduling of the subsequent
dependency hearing. Nor would we impose such a duty.
Accordingly, we agree with defendants that they could
reasonably have believed they had discharged their
responsibilities with respect to plaintiffs’ procedural 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 attorney and the
court would hold the hearing” in a timely fashion. Defs.’ Br. 19.
As we do not believe “the law . . . put [defendants] on notice

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Plaintiffs identify various statutory provisions of6
Pennsylvania law to impugn defendants’ conduct. For instance,
plaintiffs note that Pennsylvania law requires “[a]n informal
hearing . . . be held promptly by the court or master and not later
than 72 hours after the child is placed in detention or shelter care
to determine whether his detention or shelter care is required.”
42 Pa. Cons. Stat. Ann. § 6332(a) (West 2001 & Supp. 2009);
see also 23 Pa. Cons. Stat. Ann. § 6315(d) (West 2001 & Supp.
2009) (“In no case shall protective custody under this chapter be
maintained longer than 72 hours without an informal hearing
under 42 Pa. C.S. § 6332 . . . .”). Furthermore, 23 Pa. Cons.
Stat. Ann. § 6315(b) (West 2001 & Supp. 2009) prohibits any
child from “be[ing] held in protective custody for more than 24
hours unless the appropriate county agency . . . obtains an order
from a court of competent jurisdiction permitting the child to be
held in custody for a longer period.”
Whether defendants are liable under state law for
violating these provisions is not before us. To the extent
plaintiffs point to these provisions to substantiate a finding of a
constitutional violation in this case or to demonstrate the
objective unreasonableness of defendants’ conduct, such
reliance is misplaced. As the District Court acknowledged,
“[f]ederal constitutional standards rather than state statutes
define the requirements of procedural due process” for purposes
16
that [their] conduct would be clearly unlawful,” we find
“summary judgment based on qualified immunity is
appropriate” in this case. Saucier, 533 U.S. at 202.6

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of a § 1983 action alleging a Fourteenth Amendment violation.
Robison v. Via, 821 F.2d 913, 923 (2d Cir. 1987); see also
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540–41
(1985); Swipies v. Kofka, 419 F.3d 709, 716–17 (8th Cir. 2005).
Accordingly, these state-law provisions do not inform our
assessment of qualified immunity here—namely, whether 72
hours is the “clearly established” delineation of a
constitutionally prompt post-deprivation hearing in this case, or
whether defendants behaved in an objectively reasonable
manner with respect to that right. See Robison, 821 F.2d at
922–23 (“reject[ing] the district court’s view that [the
defendants] were not entitled to qualified immunity because
their taking of the children violated state statutes,” and finding
that “[s]ince the taking of the children was undeniably
objectively reasonable under the pertinent federal standards, [the
defendants] were entitled to summary judgment dismissing [the
plaintiff’s] § 1983 claim based on that taking”).
17
IV.
As noted, defendants also contend that they are entitled
to absolute immunity for their actions in this case. “[T]he
Supreme Court has consistently held that [42 U.S.C. § 1983] did
not abolish long-standing common law immunities from civil
suits.” Ernst v. Child & Youth Servs. of Chester County, 108
F.3d 486, 493 (3d Cir. 1997) (citing Burns v. Reed, 500 U.S.
478, 484 (1991); Imbler v. Pachtman, 424 U.S. 409, 418

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(1976)). “Where the official claiming immunity occupies a
governmental position that did not exist at common law, he may
still be entitled to immunity if he performs official functions that
are analogous to functions performed by those who were
immune at common law.” Id. at 494 (citing Butz v. Economou,
438 U.S. 478 (1978)). Under this “‘functional’ approach . . . we
examine the nature of the functions with which a particular
official or class of officials has been lawfully entrusted, and we
seek to evaluate the effect that exposure to particular forms of
liability would likely have on the appropriate exercise of those
functions.” Forrester v. White, 484 U.S. 219, 224 (1988). For
example, “[i]n Burns, the [Supreme] Court held that a
prosecutor was absolutely immune from liability for his
presentation of evidence in a probable cause hearing but was not
absolutely immune for the provision of legal advice to police
officers investigating a case.” Ernst, 108 F.3d at 495; see also
Van de Kamp v. Goldstein, No. 07-854, slip op. at 3–6 (Jan. 26,
2009) (discussing the development of this functional approach).
In Ernst, we extended this rationale to social workers,
holding that the defendants in that case were “entitled to
absolute immunity for their actions in petitioning and in
formulating and making recommendations to the state court
because those actions are analogous to functions performed by
state prosecutors, who were immune from suit at common law.”
108 F.3d at 493; see also Meyers v. Contra Costa County Dept.
of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987). At the same
time, “[l]ike our sister courts,” we stated our “unwilling[ness] to

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accord absolute immunity to ‘investigative or administrative’
actions taken by child welfare workers outside the context of a
judicial proceeding.” Ernst, 108 F.3d at 497 n.7.
Applying Ernst, the District Court found defendants
“have absolute immunity in this case with respect to whether to
bring a child dependency hearing. However, caseworkers do not
qualify for absolute immunity when investigating or
administering cases. Therefore, we must consider if the CYS
caseworkers are protected under qualified immunity.” Thus, the
court appears to have determined that some of defendants’
challenged actions in this case were investigative or
administrative, thereby falling outside the ambit of the quasi-
prosecutorial immunity recognized in Ernst. The court did not,
however, specify which actions these were, a noticeable
omission in light of our functional approach to assessing
absolute immunity. Defendants characterize the actions in
question as “either (a) failing to immediately return custody to
Angela Bayer and, in so doing, explicitly ignoring a court order;
or (b) failing to file a second petition asking the court to move
up the hearing date,” and thus contend they are being sued for
“prosecutorial acts that are properly shielded by absolute
immunity.” Defs.’ Br. 14. We note, however, that the court
may also have viewed defendants’ conduct as the failure to act
more quickly in initiating the dependency-hearing process (e.g.,
by forwarding the relevant material to the agency’s solicitor)
once the decision had been made to take the children into the
custody of Monroe County Children and Youth Services and

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seek such a hearing—a characterization that might cast
defendants’ conduct in a more ministerial rather than
prosecutorial light. As we find defendants are entitled to
qualified immunity in this case, we need not resolve this
ambiguity in the District Court’s analysis nor determine whether
defendants are entitled to absolute immunity with respect to
their actions here.
V.
For the foregoing reasons, defendants are entitled to
qualified immunity with respect to plaintiffs’ procedural due
process claims. Accordingly, we will reverse the District
Court’s denial of summary judgment and remand for
proceedings consistent with this opinion.

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