Estate of Bennett v. Philadelphia, (3rd Cir. 2007)

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PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

Nos. 06-2879 and 06-2978

ALEXUS BENNETT, ALIYAHA BENNETT,

P R IS C IL L A BENNETT, Minors, by and through

th e ir Guardian Ad Litem JONATHAN IRVINE,

Appellants in No. 06-2978

v. C IT Y OF PHILADELPHIA

THE ESTATE OF PORCHIA BENNETT,

D e c ed e n t, by and through the Administrator

o f the Estate, THOMAS BRUNO, Esq.,

Appellant in No. 06-2879

v. C IT Y OF PHILADELPHIA; JOE MAIDEN

On Appeal from the United States District Court

f o r the Eastern District of Pennsylvania

(D .C . Civil Nos. 03-cv-05685 and 05-cv-00833)

D is tric t Judge: Hon. Berle M. Schiller

Argued July 10, 2007

B e f o re : SLOVITER, WEIS, and ROTH, Circuit Judges

(F ile d August 22, 2007

T e ri B. Himebaugh (A rg u e d ) A b ra m so n & Deneberg, P.C.

1 2 0 0 Walnut Street, Sixth Floor P h ila d e lp h ia , PA 19107 A tto rn e y for Appellant, T h e Estate of Porchia Bennett C h ris to p h e r J. Culleton (A rg u e d ) A lla n H. Gordon K o ls b y, Gordon, Robin, Shore & Bezar 1 6 5 0 Market Street, 22 n d Floor O n e Liberty Place P h ila d e lp h ia , PA 19103 A tto r n e ys for Appellants, A lex u s Bennett, Aliyaha Bennett a n d Priscilla Bennett R o m u lo L. Diaz, Jr.

C ity Solicitor J a n e Lovitch Istvan (A rg u e d ) S e n io r Attorney, Appeals C ity of Philadelphia Law Department 1 5 1 5 Arch Street, 17 th Floor P h ila d e lp h ia , PA 19102-1595 A tto rn e ys for Appellee, C ity of Philadelphia R ic h a rd G. Tuttle, Esq.

A rc h e r & Greiner O n e South Broad Street, Suite 1620 P h ila d e lp h ia , PA 19107 Attorney for Appellee, Joe Maiden O P IN I O N OF THE COURT S L O V IT E R , Circuit Judge.

O n e of the essential principles inherent in a multi-layered ju d ic ia l system is the requirement to adhere to legal decisions p ro n o u n c e d by the highest court: in the case of the federal c o u r ts , that is the Supreme Court of the United States. Those d e c is io n s are supported by sound reasoning, and lower federal c o u rts generally have no difficulty in applying the precedent.

Occasionally, however, the factual situation in which the p rin c ip le is tested is heartrending, tempting the judge to seek a w a y to circumvent the principle. This is one such case.1 I.

W e borrow this background section almost verbatim from th e text of the unreported opinion of the District Court (Judge B e rle M. Schiller) because it is accurate and requires no e la b o ra tio n .

A . Iyonnah T iffa n y Bennett had five daughters: Alexus (born January 9 , 1993), Iyonnah (born October 29, 1994), Aliyaha (born O c to b e r 3, 1996), Priscilla (born January 12, 1999) and Porchia (b o rn July 7, 2000). In December 1994, Iyonnah suffered brain in ju rie s from being shaken while in the care of a babysitter. An in v e stig a tio n by the Philadelphia Department of Human Services (" D H S " ) concluded that Tiffany Bennett and Oliver Bynum, Jr., th e father of Iyonnah and Alexus, were "perpetrators by o m iss io n ," and therefore Iyonnah was permanently placed with an adoptive family. Tiffany Bennett and Oliver Bynum, Jr. s u b s e q u e n tly separated.

B . Alexus and Aliyaha In 1997, DHS determined that Tiffany Bennett, a su b sta n c e abuser who did not provide her children with n e c es s a ry medical attention, posed a risk of serious harm to her c h ild re n . Tiffany Bennett compounded this risk by actively a v o id in g contact with DHS. On May 30, 1997, DHS petitioned th e family court to rule Alexus and Aliyaha dependent children b e c a u se Tiffany Bennett was not cooperating with DHS in im p lem e n tin g a plan for their care. On June 4, 1997, the family c o u rt deferred adjudication of dependency but ordered DHS s u p e rv is io n of Alexus and Aliyaha. In December 1997, the f a m ily court learned Alexus was living in North Carolina with h e r father and ordered DHS to assess her situation. The North C a ro lin a Department of Social Services visited Alexus in her n e w home and provided DHS with a positive report. The family co u rt then discharged Alexus' dependency petition on February 1 9 , 1998.

In July 1998, Aliyaha was temporarily committed to DHS a n d placed in foster care for two days because Tiffany Bennett w a s expelled from the shelter where they had been living. The f a m ily court returned Aliyaha to her mother and ordered Tiffany B e n n e tt to enter another shelter, undergo a mental health e v a lu a tio n , and cooperate with DHS. Tiffany Bennett and A liya h a lived at the Salvation Army Shelter from August 1998 u n til May 1999. During that stay, Priscilla was born on January 1 2 , 1999.

C . The Bennetts Leave the Shelter O n May 10, 1999, Tiffany Bennett left the Salvation A rm y Shelter with Priscilla and Aliyaha. Two days later, DHS so cial worker Yolanda Grant learned of Tiffany Bennett's u n a u th o riz e d departure from the shelter. On June 1, 1999, Grant c h e ck e d the Department of Public Administration's ("DPA") c o m p u te r records and discovered that Tiffany Bennett's DPA b en ef its were still being sent to the Salvation Army Shelter. In a n effort to locate Tiffany Bennett, Grant spoke with a DPA re p re se n ta tiv e who confirmed that Bennett's benefits would be ter m in a ted on June 10, 1999, and that if Tiffany Bennett c o n ta c te d DPA for benefit reinstatement she would be told she m u s t first contact DHS. However, when Tiffany Bennett sought b e n e f it reinstatement, DPA allowed her to reinstate her benefits w ith o u t contacting DHS. Grant made several other efforts to lo ca te Tiffany Bennett, including: (1) contacting Priscilla's p e d iatric ian ; (2) visiting a former address at West Master Street; (3 ) speaking with Adiam Debesai, a social worker who had w o rk e d with Tiffany Bennett at the Salvation Army Shelter and w h o had spoken with Tiffany Bennett's mother, Dale Geiger; a n d (4) trying to contact Dale Geiger and Alexus' father by te le p h o n e .

O n September 14, 1999, DHS petitioned family court to d is c h a rg e DHS supervision and the dependency petition for A liya h a . At the hearing, the Child Advocate 2 objected based on c o n c ern for Aliyaha's safety. Judge James Murray Lynn refused to terminate DHS' involvement and stated, "I don't want [this c a s e ] just sitting on a desk somewhere. I want to see work done.

I want people to continue to look . . . . I want DHS to vigilantly lo o k for the baby [Aliyaha]. When they get the baby, I want them to take the baby." B y early 1999, Alexus and her father had returned to P h ila d e lp h ia , where Alexus attended public school. She lived w ith her paternal grandfather for a period of time, before re tu rn in g to her mother's control.3 In March 2003, Tiffany B e n n e tt directed Alexus' school not to permit contact between A lex u s and her grandfather.

D . Bennett Case Reassigned & Discharged In November 1999, the Bennett DHS case was reassigned to social worker Iris Dejesus. On the case assignment sheet, s o c ia l work supervisor Patricia Wilson wrote, "If you cannot lo c a te family by Nov. 14 [1999] request an early listing for d is c h a rg e of this case, again, as floater SW [social worker] did.

If you do locate family, J. Lynn made an order to take Aliyaha in to DHS custody!!!" Dejesus did not try to locate the Bennetts u n til late March of 2000. On March 27, 2000, Dejesus sent s e a rc h letters to the Department of Public Welfare and to the O f f ic e of Services to the Homeless and Adults. On April 17, 2 0 0 0 , Dejesus checked DPA's computer records and learned that T if f an y Bennett was receiving DPA benefits at a Grandsback S tre e t address in Philadelphia. That same day, Dejesus visited th e Grandsback Street address, but the house appeared a b a n d o n ed .

O n April 18, 2000, DHS again petitioned family court to d is c h a rg e DHS supervision and Aliyaha's dependency petition b e c a u se the "family is unable to be located." The child advocate d id not object, and DHS supervision and the dependency petition w e re discharged by agreement.

E . Porchia In late 1999, Tiffany Bennett and her daughters began liv in g periodically with Dale Geiger. Porchia was born on July 7 , 2000. The Bennett sisters were exposed to unsuitable, u n s ta b le living conditions and to unfit care givers. For example, J a ys o n Chambers, a convicted child sex offender, was a b a b ys itte r for the Bennett sisters. Beginning in the fall of 2002, T if f a n y Bennett paid Jerry Chambers, who suffered from a s c h iz o a ff e ctiv e bipolar type disorder and a history of drug and a lc o h o l abuse, fifty to eighty dollars per week to look after her c h ild re n . With rare visits from their mother, the four Bennett s is te rs lived with Jerry Chambers and his girlfriend, Candace G eig e r, who was Tiffany Bennett's younger sister.

T h ro u g h its telephone hotline, DHS received a report at 7 :2 5 p.m. on August 14, 2003 that Jerry Chambers beat the B e n n e tt sisters.4 The hotline report was classified as a General P r o te c tiv e Services report, which applies to allegations of n e g lec t, and a DHS social worker was required to respond within tw e n ty-f o u r hours. During the morning of August 15, 2003, D H S social worker Joe Maiden was assigned to investigate the h o tlin e report. Maiden reported that he visited the Bennett s is te rs ' home twice on August 16, 2003, leaving a note at the f irst visit, and once on August 17, 2003, but he never got a r e sp o n s e at the door. The facts surrounding Maiden's response to the hotline report are disputed, but the parties agree that M a id e n did not respond as he reported in his case progress notes.

O n August 17, 2003 at approximately 1 p.m., emergency p erso n n el rushed a brutally beaten Porchia to a hospital, where s h e was pronounced dead shortly after arrival. Alexus described th e events leading to Porchia's death as follows.

S H E STATED THAT ON SATURDAY PORTIA [ s ic ] GOT A BEATING FROM JERRY WITH A N EXTENSION CORD. SHE STATED THAT P O R T IA 'S [sic] WOUNDS WERE SO SEVERE T H A T SHE COULD NOT LAY DOWN AND G O TO SLEEP. JERRY BEAT HER AGAIN F O R MAKING NOISE. HE PICKED HER UP A N D SLAMMED HER TO THE FLOOR IN THE C O R N E R . HE TOLD HER TO STAND UP IN T H E CORNER ALL NIGHT BUT THE SLAM T O THE FLOOR HAD INJURED HER LEG A N D SHE COULD NOT STAND UP. HE THEN C H O K E D AND KICKED HER. SHE STATED T H A T THEY ALL WENT TO SLEEP AND IN T H E MORNING THEY FOUND PORTIS [sic] W E D G E D BETWEEN THE MATTRESS AND T H E RADIATOR. "WE COULD NOT WAKE H E R ." P o r c h ia 's cause of death was listed as multiple blunt tra u m a , asphyxia and inanition.5 Porchia's autopsy revealed m a ln o u ris h m e n t, laceration of the liver, "[m]ultiple blunt force in ju rie s to the head, chest, abdomen, back and extremities," and " [ m ] u ltip l e scars and healing injuries of varying ages from past e p is o d e s of blunt force injuries to head, trunk and extremities." Alexus, Aliyaha and Priscilla were admitted to the Children's H o s p ita l of Philadelphia ("CHOP"), and they were given a d m i s s io n and discharge diagnoses of child abuse. Alexus had f a c ia l injuries, a fractured eye socket, bruised and swollen eyes, s c a b b ed -o v e r back lesions, and scars on her buttocks. Aliyaha a n d Priscilla also had scars, lesions, and bruises.

F . The Aftermath from the Bennett Sisters' Tragedy In relation to Porchia's death, Jerry Chambers was c o n v ic te d of first-degree murder and sentenced to death and s e v e n ty-th re e to one hundred forty-six years in prison. Candace G e ig e r was convicted of third-degree murder and sentenced to s e v e n te e n to thirty-four years in prison. Tiffany Bennett was c o n v ic te d of conspiracy and endangering the welfare of her c h ild re n , and she was sentenced to twenty to forty years in p ris o n .

A DHS Employee Violation Report was filed on Maiden fo r his activities related to the Bennett hotline report. The report s ta te d that Maiden was being disciplined for failing to make re a so n a b le efforts to access the Bennetts' home, for failing to n o tif y his supervisors that he did not make the required home v is it within twenty-four hours, and for making false and m is le a d in g representations regarding his response to the hotline re p o rt. Maiden resigned before DHS could proceed with its d is c ip lin a ry process. Since August 2003, Alexus, Aliyaha and P r is c illa have required a variety of mental health services, and th e y remain severely traumatized.

II.

A s we stated in note 1, two actions were filed following P o r c h ia 's death, and the appeals in both cases were argued to g e th e r. Three Bennett sisters, Alexus, Aliyaha and Priscilla, th ro u g h their guardian ad litem, sued the City of Philadelphia, D H S and its Director, and social workers Dejesus, Grant, and W ils o n . They assert a claim under 42U.S.C. § 1983 for v io latio n of their due process right to bodily integrity from harm in f lic te d by private parties under the state-created danger d o c tr in e .

T h e Estate of Porchia Bennett also filed a suit against the C ity and Maiden under 42U.S.C. § 1983, asserting in addition c o n sp ira c y, wrongful death and survival action claims. The D istric t Court ordered that the Estate's case and the Bennett s is te r s' case be tried simultaneously, but granted the defendants' m o tio n for summary judgment before trial.6 Plaintiffs in both c a se s appeal.7 T h e "state-created danger" doctrine emanates from la n g u a g e in DeShaney v. Winnebago County Department of S o c ia l Services, 489 U.S. 189 (1989), a case where the United S tate s Supreme Court confronted a factual scenario markedly s im ila r to that presented here. There, the county Department of S o cial Services ("DSS") and several of its social workers re c eiv e d complaints that a child, Joshua, was being abused by h is father. The caseworker assigned to Joshua recorded her o b s e rv a tio n s in her files, along with her continuing suspicions th a t someone in the DeShaney household was physically abusing J o s h u a , but she did nothing more. Id. at 193. The caseworker w a s later notified that Joshua had been treated again for injuries th a t appeared to have been the result of child abuse. She made tw o visits to the DeShaney household, but was informed that J o s h u a was too ill to see her and the department again took no a c tio n . Id. Joshua was eventually beaten so badly that he su f f e re d permanent brain damage and was rendered profoundly re ta rd e d . Id.

J o s h u a and his mother brought an action under 42U.S.C.

§ 1983 against the county, DSS, and various individual e m p l o ye e s of the department. "The complaint alleged that re sp o n d e n ts had deprived Joshua of his liberty without due p ro c e ss of law, in violation of his rights under the Fourteenth A m e n d m e n t , by failing to intervene to protect him against a risk o f violence at his father's hands of which they knew or should h a v e known." Id. The district court granted summary judgment App. at 40; and (2) wrongful death and survival act claims against th e City and Maiden on the ground that they are immune from tort liab ility pursuant to Pennsylvania's Political Subdivision Tort C la im s Act, 42 Pa. Cons. Stat. § 8541 et seq. We do not consider th e se rulings in this appeal because they have not been raised in the A p p e lla n ts ' brief. See Couden v. Duffy, 446 F.3d 483, 492 (3d C ir. 2006).

7 The District Court had jurisdiction under 28U.S.C. § 1 3 3 1 . This court has jurisdiction under 28U.S.C. § 1291. f o r defendants, and the Court of Appeals affirmed, holding that p e titio n e rs had failed to state an actionable § 1983 claim. The U n ite d States Supreme Court granted certiorari to remedy in c o n sis te n t approaches taken by appellate courts in determining w h e n , if ever, the failure of a local governmental entity or its a g e n ts to provide an individual with adequate protective services c o n stitu te s a violation of the individual's due process rights. Id. a t 194.

T h e Court explained that because the harms that Joshua s u f f e re d did not occur while he was in the State's custody, but o c c u rre d while he was in the custody of his natural father, who w a s not a state actor, his claim could not succeed. Id. at 201.

The Court concluded that: W h ile the State may have been aware of the d a n g e rs that Joshua faced in the free world, it p la ye d no part in their creation, nor did it do a n yth in g to render him any more vulnerable to th e m . That the State once took temporary custody o f Joshua does not alter the analysis, for when it re tu rn e d him to his father's custody, it placed him in no worse position than that in which he would h a v e been had it not acted at all; the State does not b ec o m e the permanent guarantor of an individual's s a f ety by having once offered him shelter. Under th e se circumstances, the State had no c o n stitu tio n a l duty to protect Joshua.

Id . (emphasis added).

J u s tic e Blackmun began the last paragraph of his dissent w ith the now memorable words, "Poor Joshua!" He continued, V ic tim of repeated attacks by an irresponsible, b u llyin g , cowardly, and intemperate father, and a b a n d o n ed by respondents who placed him in a d a n g e ro u s predicament and who knew or learned w h a t was going on, and yet did essentially nothing e x c e p t, as the Court revealingly observes, ante, at 1 9 3 , "dutifully recorded these incidents in [their] f ile s." It is a sad commentary upon American life, a n d constitutional principles ­ so full of late of p a trio tic fervor and proud proclamations about " lib e rty and justice for all" ­ that this child, Joshua D e S h a n e y, now is assigned to live out the re m a in d e r of his life profoundly retarded. Joshua a n d his mother, as petitioners here, deserve ­ but n o w are denied by this Court ­ the opportunity to h a v e the facts of their case considered in the light o f the constitutional protection that 42U.S.C. § 1 9 8 3 is meant to provide.

Id . at 213 (Blackmun, J., dissenting).

N o tw ith s ta n d in g the views of the dissenting Justices (B re n n a n and Marshall, in addition to Blackmun), the statec re a te d danger doctrine has become a staple of our constitutional la w . As this court recently held, to establish a claim based on th e state-created danger doctrine, a plaintiff must satisfy the f o llo w in g elements: (1) the harm caused was foreseeable and f a irly direct; (2) a state actor acted with a degree of culpability th a t shocks the conscience; (3) some relationship existed b e tw e e n the state and the plaintiff that renders plaintiff a f o re se e a b le victim; and (4) "a state actor affirmatively used his o r her authority in a way that created a danger to the citizen or th a t rendered the citizen more vulnerable to danger than had the s ta te not acted at all." Bright v. Westmoreland County, 443 F.3d 2 7 6 , 281 (3d Cir. 2006).

T h is court has consistently adhered to the Supreme C o u rt's pronouncements in DeShaney. For example, in Kaucher v . County of Bucks, 455 F.3d 418 (3d Cir. 2006), this court s ta te d that petitioners must allege affirmative acts that were the " b u t for cause" of the risks they faced, id. at 433 n.10, and noted th a t we have held that failures to act cannot form the basis of a v a lid § 1983 claim. See id. at 433 n.10 (citing Bright, 443 F.3d a t 283-84 (failure to hold revocation hearing for an individual in v io latio n of his parole prior to killing an eight-year-old girl); M o rs e v. Lower Merion Sch. Dist., 132 F.3d 902, 907-08 (3d C ir. 1997) (failure to prevent mentally disturbed individual from e n te rin g school and attacking teacher); D.R. v. Middle Bucks A re a Vocational Tech. Sch., 972 F.2d 1364, 1376 (3d Cir. 1992) (f a ilu re of school officials to investigate and stop instances of s e x u a l abuse of students) (en banc); Brown v. Grabowski, 922 F .2 d 1097 (3d Cir. 1990) (failure to file criminal charges against a n individual who repeatedly threatened and assaulted former g irlf rie n d , despite reports to the police by the victim and her f a m i l y) ) .

In Bright, this court relied on DeShaney in rejecting a p p e llan t's claim that a police officer's knowledge of a danger to th e victim creates an affirmative duty to protect the victim from th a t harm. Rather, we explained that DeShaney clearly holds th at "no affirmative duty to protect arises from the State's k n o w le d g e of the individual's predicament." Bright, 443 F.3d at 2 8 4 (internal citation and quotation marks omitted). "Liability re q u ire s affirmative state action; mere `failure to protect an in d iv id u a l against private violence' does not violate the Due P ro c ess Clause." Id. (quoting DeShaney, 489 U.S. at 197).

In granting summary judgment to the defendants, the D is tric t Court concluded that Plaintiffs in both cases had failed to meet their burden of establishing a genuine issue of material f a ct with regard to the fourth element of their state-created d a n g e r claims ­ that a state actor affirmatively used his or her a u th o rity to render the citizen more vulnerable to danger than h a d the state not acted at all.

In Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), the one ca se that has often been cited as deviating from the court's o th e rw is e unbroken series of holdings following the statec re a te d danger doctrine, we expressly stated that "we adopt the `s ta te -c re a te d danger' theory as a viable mechanism for e sta b lis h in g a constitutional violation under 42U.S.C. § 1983." Id. at 1201. The Kneipps, who were returning on foot from a n ig h t of drinking at a neighborhood tavern, were stopped by the p o lice on the highway for causing a disturbance. They were o n e -th ird of a block from their home. Mr. Kneipp requested and w a s given permission by the police to go home to relieve the b a b ys itte r. He assumed that because Mrs. Kneipp was in e b ria ted , the police would take her either to the hospital or to th e police station, and therefore he proceeded home without her.

In s te a d , the police officer sent her on her way alone; she never re a ch e d home, but instead ended up unconscious at the bottom o f an embankment next to a parking lot across the street from her h o m e . As a result of her exposure to the cold, she suffered p e r m a n e n t brain damage impairing many basic body functions.

T h is court did not rely on the state-created danger d o c trin e to affirm the district court's grant of summary judgment to the City defendants. Instead, we reversed, holding that there w a s sufficient evidence in the record to show that the police o f f ice rs used their authority to create a dangerous situation or to m a k e Mrs. Kneipp more vulnerable to harm than had they not in te rv e n e d . The court explained, It is conceivable that, but for the intervention of th e police, [Mr. Kneipp] would have continued to e sc o rt his wife back to their apartment where she w o u ld have been safe. A jury could find that [Mrs.

K n e ip p ] was in a worse position after the police in te rv e n e d than she would have been if they had n o t done so.

Id . at 1209 (emphasis added).

T h e Bennett sisters contend that the closing of their d e p e n d e n c y case rendered them more vulnerable to harm by their m o th e r and acquaintances because closing the case effectively p re v e n te d a private source of aid, the Child Advocate, from lo o k in g for the children. They argue that the District Court erred in concluding "that DHS' misrepresentation and the subsequent d isc h a rg e of supervision and Aliyaha's dependency [petition] did n o t violate the Bennett sisters' substantive due process rights by m ak in g them more vulnerable to danger from inappropriate care g iv e rs than if DHS had not acted at all." Appellants' Br. at 242 5 (quoting Dist. Ct. Op. at 16).

T h e District Court's conclusion that DHS' case closure d id not prevent the Child Advocacy Unit from searching for the c h ild re n is supported by the record. It remained free to search f o r the Bennett children even after the case was closed. We m u st agree with the District Court that Appellants failed to d e m o n stra te a material issue of fact that the City used its a u th o rity to create an opportunity for the Bennett sisters to be a b u se d that would not have existed absent DHS intervention.

T h e Estate makes a slightly different argument. It c o n ten d s that because Maiden asked his superiors at DHS to a ss ig n the Bennett case to him, although it was destined for a n o th e r social worker, he was responsible for the type of af firm ativ e act for which the City should be held responsible. It is undisputed that after he was assigned the case Maiden did not p e rf o rm the duties vis-à-vis Porchia that were incumbent upon a d e d ic a te d social worker. Although we believe Maiden's actions (o r more accurately, inactions) were beyond the pale, we c o n c lu d e that in essence the Estate's argument is no more than a n o th e r effort to circumvent the state-created danger doctrine.

W e are not free to do that.

T h e District Court did not err in concluding that the City did not take action in the constitutional sense. Maiden's actions d id not result in the creation of dangers by the state, but rather th o s e dangers already existed. Maiden was therefore not the " b u t for" cause of the harm to Porchia Bennett in this case.

I I I.

W e return to the point made at the beginning of this o p in io n . If a municipality, state or other public body is to be lia b le under the Constitution for harm caused by private parties to persons not in custody, the liability would be unlimited.

There is no legal doctrine that supports imposition of such liab ility. Without legislative activity, we are not prepared to h o ld that a city that fails to respond promptly to a 911 call must p a y for the harm that befalls the caller as a result of the failure.

T h e fact is that most 911 calls are answered, that the police use th e ir best efforts in many cases, and that they prevent egregious h arm . We have less personal experience with DHS but are w illin g to assume, for this purpose, that this is also true of DHS s o c ia l workers, notwithstanding the well-publicized cases of f a ilu re s in that connection.

H o w e v e r, it is not the role of the courts, certainly not the f e d era l courts, to rectify the failures that do happen. That is the re sp o n s ib ility of the citizens of the body politic, who elect the le a d ers of the executive branch of the respective city, state or m u n ic ip a lity. If the public raises its voice and demands a c c o u n t a b ility, and is willing to use the ballot to support those d em an d s, then change and improvement can and will occur.

U n f o rtu n a tely, it will be too late for Porchia Bennett.

IV .

F o r the reasons set forth above, we will affirm the ju d g m e n t of the District Court.

1 There are two related appeals in this case. One appeal is b y the Estate of Porchia Bennett (06-2879), and the other is by A le x u s Bennett, Aliyaha Bennett, and Priscilla Bennett, by and th ro u g h their Guardian Ad Litem Jonathan Irvine (06-2978).

2 A Child Advocate is member of the Child Advocacy Unit o f the Defender Association of Philadelphia.

3 The length of time Alexus lived primarily with her p a te rn a l grandfather is in dispute, but it is not material to the issue b e f o r e us.

4 The DHS Report Referral Data Narrative, which refers to C h a m b e rs as "Smokie," reads: RFRL REPORTER ALLEGED THAT "SMOKIE" (FAT) B E A T S THE CHILDREN LIKE THEY ARE MEN. A C C O R D IN G TO THE REPORTER FAT HANDS ARE S W O L L E N FROM BEATING ON THE CHILDREN. F A T MAKES THE GIRLS STAY IN THE HOUSE ALL T H E TIME. REPORTER STATED THAT RECENTLY S H E SAW THE OLDEST GIRL COME TO THE DOOR A N D SHE HAD A SWOLLEN EYE. HOWEVER, R E P O R T E R HAS NEVER SEEN OR HEARD THE C H IL D R E N BEING BEAT.

5 Inanition "covers not getting enough food; or in very s tre ss e d infants, even if they get enough food and they are forced to digest it, they just don't derive any nourishment from it. It's a p e c u liar condition, well recognized in neglected and abused infants an d children." Young children "have to receive emotional support a n d feel safe; and when they don't, you tend to see this phenomena o f wasting away. We call that inanition, for want of a better term."

6 The District Court also granted summary judgment in the C ity's favor as to the Estate's: (1) § 1983 conspiracy claim on the g ro u n d s that its "vague and unsubstantiated allegations fail[ed] to cre ate a genuine issue of material fact that a conspiracy existed[,]"

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