NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-3378 __________

ROBERT J. HARPER, Appellant

v.

COUNTY OF DELAWARE; BOROUGH OF RIDLEY PARK; DENISE V. STEWART; DONNA SMITH; MATHEW HYATT; KENNETH R. CARROLL; JOSHUA POWLEY ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-17-cv-04679) District Judge: Honorable Mitchell S. Goldberg ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) August 8, 2019 Before: CHAGARES, BIBAS, and GREENBERG, Circuit Judges

(Opinion filed: August 12, 2019) ___________

OPINION * ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Robert J. Harper appeals from the order of the District Court dismissing his

complaint under Fed. R. Civ. P. 12(6). We will affirm.

I.

Harper alleges that, after his father passed away, he lived with and cared for his

elderly mother in her home until 2015. In that year, the Delaware County (Pennsylvania)

Office of Services for the Aging began investigating Harper’s mother’s living conditions

and care. The Office ultimately petitioned the Delaware County Orphans’ Court to

adjudicate his mother incompetent and appoint a guardian. After an evidentiary hearing,

in which Harper participated while represented by counsel, the Orphans’ Court granted

that relief. Harper appealed, but the Pennsylvania Superior Court affirmed. See In re

Harper, No. 91 EDA 2016,

(Pa. Super. Ct. Jan. 5, 2017). During that

process, the Office arranged for Harper’s mother’s placement in a nursing home. The

Office did so with the consent of her other son, whom Harper describes without

elaboration as “estranged.”

About 10 months later, Harper filed pro se the federal complaint at issue here. He

named as defendants Delaware County, the Borough of Ridley Park, and several social

workers and other county employees who were involved in the investigation. He raised

several kinds of claims, but his principal contention was that the defendants violated his

constitutional rights by unlawfully removing his mother from her home. He did not

allege that defendants restricted his ability to visit her in the nursing home in any way.

2 On the basis of Harper’s allegations, he asserted several causes of action under

for defendants’ alleged violation of his due process and other rights,

including claims against the individual defendants and claims against the municipal

defendants for municipal liability under Monell v. Department of Social Services,

(1978). He also asserted a state-law claim for intentional infliction of emotional

distress. Harper sought damages against all defendants and injunctive and declaratory

relief 1 against Delaware County. On defendants’ motions to dismiss, the District Court

dismissed Harper’s federal claims with prejudice under Rule 12(b)(6) and dismissed his

state-law claim without prejudice and with leave to amend. Harper appeals. 2

II.

In the District Court, Harper sought both monetary damages and injunctive and

declaratory relief. As Harper has informed us, his mother unfortunately passed away

after he filed his complaint. Thus, Harper’s claim for any injunctive or declaratory relief

1 Harper’s complaint included a cause of action against Delaware County titled as one for “declaratory relief,” but his only specific request was for an injunction prohibiting Delaware County from applying its alleged and allegedly unconstitutional policies regarding the removal of elders from their homes. (ECF No. 3 at 23-25.) 2 The District Court’s decision is final notwithstanding its dismissal of Harper’s state-law claim without prejudice because Harper did not amend within the time permitted and instead stands on his complaint. See Hoffman v. Nordic Nats., Inc.,

, 279 & n.49 (3d Cir. 2016). Thus, we have jurisdiction under

. Our review is plenary. See S.H. ex rel. Durrell v. Lower Merion Sch. Dist.,

(3d Cir. 2013). “To survive a motion to dismiss, a complaint must contain sufficient factual allegations that, when taken as true, state a claim to relief that is plausible on its face.”

(quotation marks omitted).

3 that he may have had standing to pursue is moot. That leaves Harper’s federal claims for

damages against the individual defendants and the municipal defendants. We will affirm

the District Court’s dismissal of those claims.

A. The Individual Defendants

Harper’s federal claims turn on his assertion that he had a constitutional right to

live with and care for his mother in her home. The District Court concluded that Harper

had no such right. We need not decide that issue because, assuming that such a right

could exist under some circumstances, the individual defendants are entitled to qualified

immunity on the ground that such a right was not clearly established. See Bryan v.

United States,

(3d Cir. 2019) (“In considering whether a government

official is entitled to qualified immunity, a court can determine whether a constitutional

right was violated or in the alternative, whether that right was clearly established.”) 3

Harper claims that the individual defendants violated his rights by removing his

mother from her home. In “venturing into the murky area of unenumerated constitutional

rights,” McCurdy v. Dodd,

(3d Cir. 2003), we must identify the

alleged right “carefully and precisely,”

. And for qualified immunity purposes,

3 The individual defendants argued below that they were entitled to qualified immunity. They do not repeat that argument on appeal, but they argue that Harper did not have the right he claims at all, which necessarily would mean that the right was not clearly established. Moreover, even if the individual defendants could be deemed to have forfeited the defense of qualified immunity on appeal, that circumstance does not prevent us from affirming on this alternative and purely legal ground. See TD Bank N.A. v. Hill, — F.3d —, No. 16-2897,

, at *9 n.9 (3d Cir. July 1, 2019).

4 we must define the alleged right at an appropriate level of specificity. See Bryan,

. In this case, Harper invokes various generalized rights, such as the right to

familial association. The specific right that he claims, however, is the right of an adult

child to live with and care for an elderly parent in the parent’s home. Even defining the

right for Harper’s benefit at that relatively high level of generality, that right was not

clearly established at the time of defendants’ alleged conduct.

For a right to be clearly established, Supreme Court authority, Circuit authority or

(perhaps) a consensus among the courts of appeals must be sufficient to place the

existence of the right “beyond debate.” Sauers v. Borough of Nesquehoning,

(3d Cir. 2018) (citation omitted). The Supreme Court has recognized the “right

of parents to make decisions concerning the care, custody, and control of their children.”

Mammaro v. N.J. Div. of Child Prot. & Permanency,

(3d Cir. 2016)

(citation omitted). But Harper has not cited and we have not located any Supreme Court

or Circuit authority addressing, much less clearly establishing, the right of an adult child

to live with and care for his or her parents.

To the contrary, our authority arguably suggests that such a right does not exist.

In McCurdy, we held that “the fundamental guarantees of the Due Process Clause do not

extend to a parent’s interest in the companionship of his independent adult children.”

. The precise scope of that holding may be open to debate. See

Robertson v. Hecksel,

(11th Cir. 2005) (discussing McCurdy). If

5 parents generally do not have a right to the companionship of their adult children,

however, then it at least arguably follows that adult children do not have a right to the

companionship of their parents, let alone the specific right to live with and care for them. 4

Indeed, one District Court in a similar case relied heavily on McCurdy in reaching

that very conclusion. See Evans v. Pitt Cty. Dep’t of Soc. Servs.,

(E.D.N.C. 2013), vacated in part on other grounds by Evans v. Perry,

(4th Cir. 2014) (per curiam). In that case, the plaintiff claimed that defendants

wrongfully obtained an order removing her from her elderly mother’s home and

authorizing a governmental agency, rather than the plaintiff, to provide her mother’s care.

The plaintiff alleged that defendants thereby violated the “right of grown children to care

for their elderly parents.” Id. at 791.

The court, drawing on McCurdy, concluded that there was no such right. See id.

at 792-95. The court did so even though, unlike in this case, the plaintiff also alleged that

defendants restricted her ability to visit her mother and wrongfully revoked her status as

her mother’s attorney-in-fact. See id. at 786. We express no opinion on whether Evans

4 Harper relies on one case recognizing the right of adult children to companionship with a parent. See Smith v. City of Fontana,

(9th Cir. 1987), overruled in part on other grounds by Hodgers-Durgin v. De La Vina,

, 1040 n.1 (9th Cir. 1999) (en banc). In that case, the Ninth Circuit held that an adult child could state a claim for deprivation of that right when police officers used lethal force against a parent. See id. at 1418-19. We question whether that decision is consistent with the law of this Circuit under McCurdy, which similarly involved a claim of lethal force. Even if it is, however, the recognition of a general right to companionship with a parent in that Circuit and under the particular facts of that non-analogous case does not clearly establish the specific right that Harper claims in this one. 6 was correctly decided. For present purposes, however, McCurdy and Evans show that

the right Harper claims was not clearly established at the time of defendants’ alleged

conduct. 5

B. The Municipal Defendants

Our conclusion that the right Harper claims was not clearly established does not

resolve his claims against the municipal defendants, which cannot assert a qualified

immunity defense to claims under § 1983. See Owen v. City of Independence,

(1980). To state a claim of municipal liability under Monell, Harper had to

allege that his claimed injury resulted from either an official policy or custom. See

McTernan v. City of York,

(3d Cir. 2009). Municipal liability also

can be established by a failure to train. See Estate of Roman v. City of Newark,

(3d Cir. 2019), petition for cert. filed (U.S. Apr. 30, 2019) (No. 18-1372).

The District Court dismissed these claims because it concluded that Harper’s

allegations of a policy or custom were too conclusory. Harper does not challenge that

ruling or even mention his Monell claims in his opening brief. Instead, he raises

arguments addressed to those claims for the first time in reply. Thus, we could deem

these claims forfeited.

5 Qualified immunity is a defense to claims for damages but not for injunctive or declaratory relief. See Panzella v. Sposato,

(2d Cir. 2017); Montanez v. Sec’y Pa. Dep’t of Corr.,

(3d Cir. 2014). Harper appears to have sought injunctive and declaratory relief only against Delaware County as noted above. To the extent that his complaint could be construed to seek such relief against the individual defendants, however, his claims for such relief are moot as also noted above. 7 Nevertheless, we agree that Harper’s allegation in this regard were too conclusory.

Harper referred generally to “policies, procedures, customs and/or practices” without

identifying any specific policies or otherwise providing any reason to believe that they

exist, let alone that they caused his claimed injury. (E.g., ECF No. 3 at 15 ¶ 67.) These

conclusory allegations are insufficient. See McTernan,

. Harper’s

conclusory allegations of failure to train are deficient as well because he alleged nothing

suggesting a failure to train, let alone that the failure was a “deliberate or conscious

choice.” Estate of Roman,

(citation omitted). Nor has Harper raised

anything suggesting that he could cure these deficiencies by amendment.

III.

For these reasons, we will affirm the judgment of the District Court. We have no

doubt that the removal of Harper’s mother from her home was emotionally taxing for him

or that he would have preferred to continue living with her and providing her with care.

Federal law, however, does not provide Harper with the relief he seeks under the

circumstances presented here.

8