Miller v. City of Philadelphia ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-26-1999
    Miller v. City of Philadelphia
    Precedential or Non-Precedential:
    Docket 98-1020
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    Recommended Citation
    "Miller v. City of Philadelphia" (1999). 1999 Decisions. Paper 109.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/109
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    Filed April 26, 1999
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 98-1020
    SANDRA MILLER; COREY MILLER, a Minor, by and
    through his Mother and Natural Guardian, SANDRA
    MILLER; THOMAS MILLER, a Minor, by and through
    his Mother and Natural Guardian, SANDRA MILLER;
    DAKOTA BRADLEY, a Minor, by and through his Mother
    and Natural Guardian, SANDRA MILLER;
    DAVID L. DERATZIAN, ESQUIRE
    v.
    THE CITY OF PHILADELPHIA; PHILADELPHIA
    DEPARTMENT OF HUMAN SERVICES; OWEN SCHEER;
    CHILDREN'S HOSPITAL OF PHILADELPHIA; HUTTON,
    OFFICER; MARC CARROLL, SGT.; RODNEY NICHOLAS
    Sandra Miller, Corey Miller, Thomas Miller
    and Dakota Bradley,
    Appellants
    APPEAL FROM THE
    UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    (D.C. No. 96-cv-03578)
    District Judge: William H. Yohn, Jr.
    ARGUED OCTOBER 6, 1998
    BEFORE: Becker, Chief Judge,
    Nygaard, and Noonan,* Circuit Judges.
    _________________________________________________________________
    *The Honorable John T. Noonan, Jr., Circuit Judge of the United States
    Court of Appeals for the Ninth Circuit, sitting by designation.
    (Filed April 26, 1999)
    David L. Deratzian, Esq. (Argued)
    2100 Locust Street
    Philadelphia, PA 19103
    Attorney for Appellants
    Richard G. Feder, Esq.
    Sarah E. Ricks, Esq. (Argued)
    City of Philadelphia Law Department
    1515 Arch Street
    One Parkway Building, 17th Floor
    Philadelphia, PA 19102
    Charles T. Roessing, Esq. (Argued)
    Mary G. March, Esq.
    White & Williams
    1500 Lancaster Avenue
    Suite 206
    Paoli, PA 19301
    Attorneys for Appellees
    OPINION OF THE COURT
    NYGAARD, Circuit Judge.
    Appellants, Sandra Miller, her three children (Corey
    Miller, Thomas Miller and Dakota Bradley), and their
    attorney, David Deratzian, Esq., sued the City of
    Philadelphia, the Philadelphia Department of Human
    Services ("DHS"), DHS social worker Owen Scheer
    (collectively, the "City defendants"), the Children's Hospital
    of Philadelphia ("CHOP") and two CHOP security guards
    (collectively, the "CHOP defendants"), alleging violations of
    their procedural and substantive due process rights under
    42 U.S.C. S 1983 and asserting various claims under state
    law.1 The claims arise from an emergency ex parte child
    _________________________________________________________________
    1. Deratzian, who represents Appellants in this appeal, alleged a
    violation of his own Fourth Amendment rights, as well as assault and
    battery by the CHOP security guards. However, Deratzian did not appeal
    from the grant of summary judgment for the defendants; therefore, his
    claims are not before us.
    2
    custody hearing after which the City defendants removed
    two of Miller's children from her custody. The District Court
    dismissed the procedural due process claim and granted
    summary judgment on the remaining claims. Appellants
    raise issues related to their procedural and substantive due
    process claims and assert that the District Court engaged
    in improper credibility determinations. We will affirm.
    I.
    Tiny Tot Daycare personnel reported to Scheer their
    suspicion that Corey and Thomas Miller were victims of
    abuse. Scheer and Reginald Jackson, another DHS social
    worker, visited the day care center. Thomas and Corey each
    indicated that they had been hit by both their mother and
    her boyfriend, Derrick Schill. The owner of the day care
    center informed the social workers that previous injuries to
    the children had concerned the day care workers and that
    the center had videotaped some of the injuries. The next
    day, Scheer and Jackson returned to the center with
    Scheer's supervisor. Corey and Thomas repeated their
    statements. At his supervisor's request, Scheer then had
    the Miller children brought to CHOP for an examination.
    Dr. Henretig, a CHOP physician, examined the children
    that evening and reported to Scheer, Jackson, social worker
    Amy Frank, and Deratzian that he had found no evidence
    of injury to Thomas or Dakota, but had found bruises on
    Corey and felt that a mark on Corey's back was suspicious.
    Dr. Henretig indicated that the mark had been made within
    the last twenty-four hours; however, he could not be certain
    whether Corey's injuries resulted from abuse or accident.
    Scheer then called Assistant City Solicitor Debra Maser
    and told her what Dr. Henretig had said and what he had
    learned in his investigation. Maser next spoke with Dr.
    Henretig and then contacted an on-call emergency judge
    seeking an order to remove Miller's children from her
    custody, which the judge issued. At some point after
    Scheer's conversation with Maser, but before the order was
    issued, Scheer met with Dr. Henretig outside of the
    presence of Frank and Deratzian. Thereafter, the doctor
    issued a report of suspected abuse.
    3
    Approximately thirty-six hours after the removal order
    was issued, a detention hearing was held to determine
    whether the children should continue to remain in DHS
    custody. Before adjourning for the weekend, the attorney
    representing Miller at the hearing (not Deratzian) requested
    that Thomas Miller be released but conceded that a prima
    facie case of dependency had been established as to Corey.
    Thomas was returned to his mother's custody, but the
    judge upheld the restraining order and kept Corey in the
    custody of the state. Following a second day of testimony
    the next Monday, the judge dissolved the restraining order
    and returned Corey to his mother's custody, with the
    condition that Schill have no contact with Mrs. Miller or the
    children until a dependency hearing could be held to
    determine who should take custody of the children. Scheer
    was later reassigned from the Miller case. Thereafter, DHS
    sporadically pursued a dependency action against Miller,
    but ultimately dissolved the petition.
    In their suit, Appellants alleged that Scheer violated their
    rights to procedural due process by refusing to allow them
    to participate in his telephone conversation with the City
    Solicitor. They alleged that he violated their rights to
    substantive due process by pursuing the investigation
    without probable cause, misrepresenting facts to Solicitor
    Maser, inducing CHOP to falsify records, and attempting to
    suborn perjury by Dr. Henretig.2
    The District Court dismissed, under Fed. R. Civ. P.
    12(b)(6), Appellants' procedural due process claim against
    the City defendants and held that Scheer had qualified
    immunity from Appellants' substantive due process claims
    to the extent that they alleged he pursued the Millers' case
    without probable cause. The Court declined, however, to
    dismiss the section 1983 substantive due process claims
    against Scheer for allegedly misrepresenting Dr. Henretig's
    _________________________________________________________________
    2. In addition, they alleged civil rights, conspiracy, malicious
    prosecution, bodily injury and intentional infliction of emotional
    distress
    claims. Miller and Deratzian also alleged civil rights claims against the
    City and DHS independently for their policies and customs and for
    failure to adequately train their staff. The plaintiffs did not appeal
    from
    the District Court's grant of summary judgment on those claims, so
    those claims are not before us.
    4
    medical report, inducing the hospital to falsify records and
    attempting to suborn perjury. In doing so, the Court held
    that Scheer had neither absolute nor qualified immunity
    against these charges. The Court declined to dismiss the
    balance of the claims against the City. See Miller v. City of
    Philadelphia, 
    954 F. Supp. 1056
    , 1059-60 (E.D. Pa. 1997)
    [hereinafter Miller I].
    Following discovery, the District Court granted summary
    judgment for defendants on Appellants' claims against
    DHS, their state law claims against the City, their section
    1983 substantive due process claim and malicious
    prosecution claims against Scheer, and their section 1983
    substantive due process and malicious prosecution claim
    against the City to the extent that those claims related to
    Scheer. See Miller v. City of Philadelphia, No. CIV.A.96-
    3578, 
    1997 WL 476352
    , at *2-*3 (E.D. Pa. Aug. 19, 1997)
    [hereinafter Miller II]. After this order was entered,
    Appellants did not oppose motions for summary judgment
    by the CHOP defendants3 and by the City defendants on the
    remaining claims against them. The Millers now contend
    that the District Court erred by dismissing their procedural
    due process claim, by granting qualified immunity to
    Scheer, and by making impermissible credibility
    determinations.
    II. Procedural Due Process
    The first issue is narrow. Although Appellants argue that
    their procedural due process rights were violated, they do
    not challenge the constitutionality of the Pennsylvania
    statute that sets forth the procedure to be followed in
    emergency child custody hearings,4 nor do they contend
    _________________________________________________________________
    3. The Millers' claims against the CHOP defendants, based on an alleged
    conspiracy with the City defendants, were not addressed in the
    statement of issues in Appellants' brief or in the briefs themselves.
    Although Appellants asserted at oral argument that these claims were
    being appealed, we hold that they have been waived. See Southwestern
    Pa. Growth Alliance v. Browner, 
    121 F.3d 106
    , 122 (3d Cir. 1997)
    ("[A]ppellate courts generally should not address legal issues that the
    parties have not developed through proper briefing.").
    4. Initiating child custody proceedings by ex parte orders is generally
    constitutional if a prompt post-deprivation hearing is held. See, e.g.,
    5
    that DHS personnel failed to follow the statutory
    procedures for taking a child into custody. Instead,
    Appellants contend that the procedures adopted by DHS to
    implement the state statute are faulty because they did not
    ensure that either Miller or Deratzian, who were both
    present at the hospital and therefore clearly available, had
    the opportunity to participate in the emergency hearing
    before the judge. Our review of the District Court's decision
    to dismiss is plenary. In our view, this argument fails to
    raise a valid procedural due process claim.
    Appellants contend that when a parent, or the parent's
    attorney, is available when the government applies for a
    restraining order, the government must allow the parent or
    the attorney to take part in the hearing. Such a
    requirement, they argue, would protect the parent's interest
    in the custody of their child without any significant burden
    on the government.
    "The fundamental requirement of due process is the
    opportunity to be heard ``at a meaningful time and in a
    meaningful manner.' " Mathews v. Eldridge, 
    424 U.S. 319
    ,
    333, 
    96 S. Ct. 893
    , 902 (1976) (quoting Armstrong v.
    Manzo, 
    380 U.S. 545
    , 552, 
    85 S. Ct. 1187
    , 1191 (1965)).
    Assessing whether due process has been given involves a
    weighing of the factors set forth by the Supreme Court in
    Mathews:
    first, the private interest that will be affected by the
    official action; second, the risk of an erroneous
    deprivation of such interest through the procedures
    _________________________________________________________________
    Jordan v. Jackson, 
    15 F.3d 333
    , 343 (4th Cir. 1994) ("Due process . . .
    does not always require prior process."); Fitzgerald v. Williamson, 
    787 F.2d 403
    , 408 (8th Cir. 1986). Pennsylvania's Child Protective Services
    Law, 23 Pa. Cons. Stat. Ann. S 6301 et seq., and Juvenile Court Act, 42
    Pa. Cons. Stat. Ann. S 6301 et seq., require that a hearing be held within
    seventy-two hours after an ex parte hearing that results in a child's
    removal from the home. See 23 Pa. Cons. Stat. Ann. S 6315(d); 42 Pa.
    Cons. Stat. Ann. S 6332(a). Although we have not considered
    Pennsylvania's statutory procedure, district courts in this circuit have
    found it constitutional. See Miller 
    I, 954 F. Supp. at 1061
    (citing
    various
    cases in the Eastern District of Pennsylvania).
    6
    used, and the probable value, if any, of additional or
    substitute procedural safeguards; and finally, the
    Government's interest, including the function involved
    and the fiscal and administrative burdens that the
    additional or substitute procedural requirement would
    entail.
    
    Id. at 335,
    96 S. Ct. at 903.
    The private interest at stake springs from the parent-
    child relationship. The Supreme Court has recognized a
    "fundamental liberty interest of natural parents in the care,
    custody, and management of their child." Santosky v.
    Kramer, 
    455 U.S. 745
    , 753, 
    102 S. Ct. 1388
    , 1394-95
    (1982); see also Croft v. Westmoreland County Children &
    Youth Serv., 
    103 F.3d 1123
    , 1125 (3d Cir. 1997). This
    interest, however, must be balanced against the state's
    interest in protecting children suspected of being abused.
    See, e.g., 
    Croft, 103 F.3d at 1125
    ; Millspaugh v. County
    Dept. of Public Welfare, 
    937 F.2d 1172
    , 1175-77 (7th Cir.
    1991).
    Appellants assert that ensuring that a parent (or her
    representative) will be heard under the instant
    circumstances would create little cost for the state. They
    point to the required flexibility of the due process standard
    for support. See 
    Mathews, 424 U.S. at 334
    , 96 S. Ct. at 902
    (" ``[D]ue process is flexible and calls for such procedural
    protections as the particular situation demands.' " (quoting
    Morrissey v. Brewer, 
    408 U.S. 471
    , 481, 
    92 S. Ct. 2593
    ,
    2600 (1972))). The Supreme Court has cautioned, however,
    that "[t]he interpretation and application of the Due Process
    clause are intensely practical matters," Gross v. Lopez, 
    419 U.S. 565
    , 578, 
    95 S. Ct. 729
    , 738 (1975) (emphasis added),
    and we must consider the results that a ruling for the
    Appellants here would have on all ex parte child custody
    hearings.
    Here, the cost to the state is not the minimal one that
    Appellants suggest. The District Court specifically
    considered the practicality of requiring "the government to
    adopt special procedures depending on who was within the
    vicinity of the government official when he or she requests
    an emergency restraining order." Miller 
    I, 954 F. Supp. at 1062
    .
    7
    [Appellants'] proposed procedure would require case-
    by-case analysis, and would raise new issues such as
    the nature of the pre-deprivation hearing that the state
    would have to provide and when exactly a parent was
    available on site. Pre-deprivation hearings would
    frustrate the purpose of the Juvenile Act and would
    bog down the statute with "procedural technicalities
    and costly litigation." Consequently, although it may be
    preferable for DHS to allow the parent to participate in
    the request for an emergency order when he or she is
    present, the facts as alleged by plaintiffs do not
    establish a constitutional violation of the right to
    procedural due process.
    
    Id. (citations omitted).
    We agree. Although Appellants' argument is intuitively
    appealing, its strength lies in its pragmatic nature rather
    than its constitutional validity. We do not discount parents'
    strong interest in the custody of their children, but
    requiring that a parent or his attorney be included in
    emergency pre-deprivation hearings "when available" or
    "when at hand" would build delay into these time-sensitive
    hearings and encourage litigation over "availability." Such a
    requirement would thus inhibit, deter and, at times,
    subvert the crucial function of ex parte custody hearings --
    protecting children who are in imminent danger of harm.
    We therefore conclude that the holding sought by
    Appellants would create a burden on the state that would
    not be justified by commensurate relief to the affected
    parents' rights.
    III. Substantive Due Process
    Appellants next challenge the District Court's dismissal
    of their substantive due process claim. The District Court
    held that Scheer was protected by qualified immunity
    against the claim that he pursued the investigation without
    probable cause.5 In its ruling, the court declined to apply
    _________________________________________________________________
    5. The District Court denied Scheer qualified immunity for other acts
    alleged by Appellants, including misrepresenting Dr. Henretig's report to
    the City Solicitor and attempting to suborn perjury by the doctor. We
    8
    our decision in Croft v. Westmoreland County Children &
    Youth 
    Serv., 103 F.3d at 1123
    . Our review of this decision
    is also plenary.
    By basing the dismissal on qualified immunity-- an
    affirmative defense -- the District Court presumed the
    validity of the alleged due process violation. The proper
    approach, however, is to ascertain whether a constitutional
    violation has been alleged before determining if qualified
    immunity is available. See Siegert v. Gilley, 
    500 U.S. 226
    ,
    232, 
    111 S. Ct. 1789
    , 1793 (1991); Larsen v. Senate of the
    Commonwealth of Pa., 
    154 F.3d 82
    , 86 (3d Cir. 1998)
    ("[W]hen a qualified immunity defense is raised a court first
    should determine whether the plaintiff has asserted a
    violation of a constitutional right at all.").
    As noted, the Supreme Court has recognized a
    "fundamental liberty interest of natural parents in the care,
    custody, and management of their child." 
    Santosky, 455 U.S. at 753
    , 102 S. Ct. at 1394-95; see also Lehr v.
    Robertson, 
    463 U.S. 248
    , 257-58, 
    103 S. Ct. 2985
    , 2991
    (1983). We, and other courts of appeals, have recognized
    this as a protectable interest. See, e.g., 
    Croft, 103 F.3d at 1125
    ; Gottlieb v. County of Orange, 
    84 F.3d 511
    , 517 (2d
    _________________________________________________________________
    agree with the Court's holding that, even if Scheer did misrepresent the
    doctor's report to Solicitor Maser, Appellants failed to establish a
    causal
    connection between the alleged misrepresentation and the Judge's
    decision to grant a separation order. See Miller II, 
    1997 WL 476352
    , at
    *4. Our precedents establish the necessity of a causal link between an
    alleged unconstitutional act and the harm that a plaintiff claims followed
    it. See, e.g., Hamilton v. Leavy, 
    117 F.3d 742
    , 746 (3d Cir. 1997) (noting
    that causation is a necessary element to a section 1983 claim). As the
    District Court noted, Appellants failed to produce any evidence that
    Scheer lied to Maser or attempted to convince Dr. Henretig to lie in his
    report of suspected abuse. See Miller II, 
    1997 WL 476352
    , at *4.
    Although there was ample opportunity, Appellants did not depose either
    Dr. Henretig or Solicitor Maser, both of whom would have had direct
    knowledge of any misstatements or misdeeds by Scheer. Moreover,
    Solicitor Maser spoke independently with Dr. Henretig to ascertain his
    opinion. This conversation should have served to expose any lies on the
    part of Scheer. In sum, any subsequent misstatements by Maser to the
    Judge during their telephone hearing would not have been caused by
    Scheer.
    9
    Cir. 1996); Darryl H. v. Coler, 
    801 F.2d 893
    , 901 (7th Cir.
    1986) (recognizing the "legitimate expectations of the
    parents or other caretakers, protected by the fourteenth
    amendment, that their familial relationship will not be
    subject to unwarranted state intrusion"). To determine
    whether this right has been abridged, we must consider the
    governmental acts in question.
    "The touchstone of due process is the protection of the
    individual against arbitrary action of government." Wolff v.
    McDonnell, 
    418 U.S. 539
    , 558, 
    94 S. Ct. 2963
    , 2976 (1974).
    In cases like this, where abusive action by a member of the
    executive branch is alleged, "only the most egregious official
    conduct can be said to be arbitrary in the constitutional
    sense." County of Sacramento v. Lewis, 
    118 S. Ct. 1708
    ,
    1716 (1998) (citation and internal quotation marks
    omitted). To generate liability, executive action must be so
    ill-conceived or malicious that it "shocks the conscience."
    
    Id. at 1717
    (citing, inter alia, Rochin v. California, 
    342 U.S. 165
    , 172-73, 
    72 S. Ct. 205
    , 209-10 (1952)). Critically,
    under this standard, officials will not be held liable for
    actions that are merely negligent. See 
    Lewis, 118 S. Ct. at 1718
    .
    Although the "shocks the conscience" standard is
    problematic standing alone, it serves to "mark the
    beginning point in asking whether or not the objective
    character of certain conduct is consistent with our
    traditions, precedents, and historical understanding of the
    Constitution and its meaning." See 
    id. at 1722
    (Kennedy,
    J., concurring). The exact degree of wrongfulness necessary
    to reach the "conscience-shocking" level depends upon the
    circumstances of a particular case. In Lewis, wherein the
    parents of a motorcyclist who was killed in the course of a
    high speed chase by police alleged a due process violation
    by the police, the Supreme Court reviewed the standards
    that determine the liability of government actors in varying
    circumstances. Recognizing that negligence alone was never
    enough, the Court observed that activity "at the other end
    of the culpability spectrum" was more likely to lead to
    liability, but also recognized that liability may arise from
    the mid-range of culpability measurement. See 
    id. 10 The
    Court compared the position of prison officials, who
    risk liability when they act with deliberate indifference to a
    prisoner's medical needs, see Estelle v. Gamble, 
    429 U.S. 97
    , 104, 
    97 S. Ct. 285
    , 291 (1976), with the position of the
    police involved in the high-speed chase of the motorcyclist.
    The Court noted the vast differences in the circumstances
    surrounding the two types of executive actions:
    [I]n the custodial situation of a prison, forethought
    about an inmate's welfare is not only feasible but
    obligatory under a regime that incapacitates a prisoner
    to exercise ordinary responsibility for his own welfare.
    . . .
    [But] indifference may well not be enough for liability in
    the different circumstances of a case like this one. We
    have, indeed, found that deliberate indifference does
    not suffice for constitutional liability (albeit under the
    Eighth Amendment) even in prison circumstances
    when a prisoner's claim arises not from normal
    custody but from response to a violent 
    disturbance. 118 S. Ct. at 1719
    .
    Therefore, "[d]eliberate indifference that shocks in one
    environment may not be so patently egregious in another,"
    
    id. at 1718,
    and the circumstances of each case are critical.
    A much higher fault standard is proper when a government
    official is acting instantaneously and making pressured
    decisions without the ability to fully consider their risks. In
    such instances, liability will only be applied when a
    "purpose to cause harm" is demonstrated. 
    Id. at 1720.
    We recognize that a social worker acting to separate
    parent and child does not usually act in the hyper-
    pressurized environment of a prison riot or a high-speed
    chase. However, he or she rarely will have the luxury of
    proceeding in a deliberate fashion, as prison medical
    officials can. As a result, in order for liability to attach, a
    social worker need not have acted with the "purpose to
    cause harm," but the standard of culpability for substantive
    due process purposes must exceed both negligence and
    deliberate indifference, and reach a level of gross negligence
    or arbitrariness that indeed "shocks the conscience."
    11
    In 
    Croft, 103 F.3d at 1123
    , we considered governmental
    intervention into the parent-child relationship. Based on a
    telephoned accusation, a social worker threatened to
    remove a child from the home if the father himself did not
    leave. By threatening this action, the social worker
    effectively removed the child from the parents' custody. This
    was done even though the social worker did not have
    grounds to believe that the child had been abused or was
    in imminent danger of being abused. See 
    id. at 1126-27.
    Indeed, the social worker was acting solely on the basis of
    a sixth-level hearsay statement and had not personally
    formed an opinion as to whether abuse was likely. Breaking
    the parent-child bond under these circumstances, we held,
    was an arbitrary abuse of government power. See 
    id. at 1127.
    Although the plaintiffs argue that some of our language
    in Croft can be interpreted to sound in negligence, the
    holding may not be read to suggest that mere negligence by
    a social worker will violate a parent's or a child's
    substantive due process right. See 
    Lewis, 118 S. Ct. at 1718
    ("[L]iability for negligently inflicted harm is
    categorically beneath the threshold of constitutional due
    process."). Croft assessed liability when a social worker
    acted to separate parent and child without any valid basis
    for doing so. In other words, decision-making by a social
    worker that is so clearly arbitrary, as was that in Croft, can
    properly be said to "shock the conscience" and, therefore,
    violates the substantive due process rights of the affected
    family. Thus, to the extent that Appellants claimed a
    violation of their due process rights because Scheer acted
    negligently or lacked objectively reasonable grounds to
    pursue the case against them (and their appeal indeed
    focuses on this issue), they did not state a valid claim.6
    _________________________________________________________________
    6. Because we determine that Appellants' argument on appeal does not
    assert a valid claim of a constitutional violation, we do not reach the
    issue of qualified immunity. While Appellants' original complaint may be
    construed to assert that Scheer acted without any grounds for doing so,
    their appeal focuses on the application of Croft and argues that its
    holding "require[s] inquiry into the reasonableness of the actions of the
    social worker." Appellants' Brief at 23.
    12
    Viewing the facts adduced against Scheer in the light
    most favorable to the plaintiffs, Scheer asked the children
    leading questions when he first visited their day care center
    in response to allegations of abuse. He requested that Miller
    produce her three children for examination at the hospital
    even though he suspected that only one of the children was
    being abused. He met in secret with a hospital social
    worker. He excluded Deratzian from the area outside the
    examination room. Though he was informed by Dr.
    Henretig that Henretig could not be sure whether Corey
    received his bruises accidentally or whether he was
    physically abused, Scheer still called City Solicitor Maser so
    that she could seek a restraining order for the children. A
    Child Advocate Social Worker thought, based on Henretig's
    statements, that the children would be allowed to go home
    _________________________________________________________________
    We reject the City's argument that, based on our recent decision in
    Ernst v. Child & Youth Services, 
    108 F.3d 486
    , 494 (3d Cir.), cert.
    denied,
    
    118 S. Ct. 139
    (1997), Scheer is absolutely immune for his actions. This
    case is distinguishable from Ernst. Absolute immunity protects
    government officials for certain acts they perform that are closely
    associated to the judicial process. See, e.g., Imbler v. Pachtman, 
    424 U.S. 409
    , 430, 
    96 S. Ct. 984
    , 995 (1976). In Ernst, we held that social
    workers were absolutely immune "for their actions on behalf of the state
    in preparing for, initiating, and prosecuting dependency hearings." 
    Ernst, 108 F.3d at 495
    . The immunity extended to "the formulation and
    presentation of recommendations to the court in the course of such
    proceedings." 
    Id. We reasoned
    that "the functions performed by [child
    social workers] in dependency proceedings are closely analogous to the
    functions performed by prosecutors in criminal proceedings." 
    Id. The District
    Court found that Scheer's "alleged tortious conduct . . .
    took place during the investigative phase of the child custody
    proceeding." See Miller 
    I, 954 F. Supp. at 1063
    . As we recognized in
    Ernst, absolute immunity does not extend to investigative or
    administrative acts. 
    See 108 F.3d at 497
    n.7. Here, Scheer passed the
    information he had gathered on to Solicitor Maser. Maser also gathered
    information from other sources, including Dr. Henretig and social worker
    Jackson, and then presented the evidence she had to the Judge. Scheer
    made no presentations or recommendations to the court. As a result,
    Scheer's acts were not analogous to those court-related functions
    normally performed by a prosecutor, and at times performed by social
    workers, and he cannot receive absolute immunity.
    13
    following the doctor's examination. Finally, Scheer received
    reviews in his DHS personnel evaluations indicating that he
    had problems with co-workers and did not always follow
    proper procedures.
    We conclude that, even if all of the facts alleged above
    were true, Scheer did not act in a way that shocks the
    conscience. Scheer's progress reports are inapposite to his
    mindset in this case, and the social worker's statements
    were based solely on the doctor's opinion following the
    examination. In contrast, substantial evidence indicated
    that Scheer reasonably believed that the children were in
    danger of abuse, including the day care center's videotapes
    of bruises on Corey, Dr. Henretig's opinion, and the lengthy
    history of Corey's abuse by Schill. In a properly supported
    motion for summary judgment, the non-movant must
    produce some (that is, more than a "scintilla" of) evidence
    in support of his position. See Anderson v. Liberty Lobby,
    Inc., 
    477 U.S. 242
    , 257, 
    106 S. Ct. 2505
    , 2514 (1986)
    (noting that "[t]his is true even where the evidence is likely
    to be within the possession of the defendant, as long as the
    plaintiff has had a full opportunity to conduct discovery").
    On these facts, we conclude that the plaintiffs have failed to
    state a viable substantive due process claim.7
    IV.
    In sum, we will affirm because the Appellants' procedural
    due process rights were not violated and because
    Appellants have not pointed to sufficient evidence of the
    predicate conscience-shocking behavior to support a
    substantive due process claim. Finally, there was no error
    _________________________________________________________________
    7. Plaintiffs also contend on appeal that the District Court erred by
    making credibility judgments in its summary judgment ruling.
    Specifically, they argue that the District Court should not have
    determined that the actions of Scheer were reasonable or made in good
    faith. We reject this argument summarily. As discussed above, plaintiffs
    proffered no evidence of acts by Scheer that rose to a level of
    arbitrariness that shocks the conscience and therefore failed to state the
    kind of deprivation that might rise to the level of a constitutional
    violation.
    14
    in the District Court's construction of Scheer's behavior in
    this case.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    15