Judge grants in part, denies in part Montgomery County's motions to dismiss in case of foster parent sexually abusing youngster

By Jon Campisi | May 22, 2012

A federal judge in Philadelphia has granted in part, and denied in part a defense motion to dismiss certain counts in a lawsuit in which Montgomery County, its Board of Commissioners and the county’s Office of Children and Youth were sued by a man who claims he was sexually abused by a foster parent a decade ago.

The foster parent, Thomas D. Diamond, who is also named as a defendant in the ongoing litigation, is a pedophile, but the minor plaintiff, identified in the suit only as K.S.S., nor his biological grandparents, were ever told of Diamond’s abusive nature, the complaint alleges.

The complaint, which was filed in mid-February, claims that the county defendants placed K.S.S. in the foster care of Diamond in the summer of 2002, and for several years thereafter, the boy, who was 13 at the time, experienced sexual abuse and indecent assault at the hands of Diamond, and, on occasion, at the hands of Diamond’s live-in companion, identified only as “Alonzo.”

The Pennsylvania Record reported on the lawsuit shortly after its filing at the U.S. District Court in Philadelphia by attorney Jonathan M. Cohen.

Diamond was criminally charged in 2005 with various counts of sexual assault, and in the summer of 2006, after pleading guilty to some of the charges, the man was sentenced by a Montgomery County Common Pleas Court judge to five to 10 years in prison, according to the court record.

Diamond remains imprisoned in northeastern Pennsylvania.

Soon after the lawsuit was filed, the county defendants filed a motion seeking to dismiss certain counts against it due to immunity and other factors.

In the motion, the county defendants argued that the Montgomery County Office of Children and Youth is not a legal entity subject to suit; that the plaintiff’s claims against the county commissioners are duplicative of the claims against the county itself; that the plaintiff fails to state a Section 1983 claim against the county defendants; and that punitive damages are not permissible in Section 1983 actions.

On the first point, U.S. District Judge Ronald L. Buckwalter agreed, ruling that the county’s Office of Children and Youth is not subject to suit and would therefore be dismissed as an independent defendant in the instant litigation.

Similarly, Buckwalter dismissed claims against the county Board of Commissioners, who were being sued in their official capacities. Citing case law, Buckwalter wrote that when claims are asserted against government officers in their official capacity, “[s]uch claims effectively merge with claims against, the real party in interest, [the] County[.] [A] judgment against a public servant ‘in his official capacity’ imposes liability on the entity he represents.”

In the end, Buckwalter granted the defendants’ motion to dismiss all Section 1983 claims independently asserted against the Board of Commissioners and the Office of Children and Youth as entities separate from the County of Montgomery.

Buckwalter also granted the defendants’ motion to the extent that the plaintiff’s claims allege deprivations of his Fifth Amendment procedural and substantive due process rights; the judge granted the defendant’s motion to the extent that the plaintiff’s claims allege deprivations of his Fourteenth Amendment procedural due process rights, but denied to the extent the claims allege deprivations of the plaintiff’s Fourteenth Amendment substantive due process rights; and Buckwalter granted the defendants’ motion to dismiss the plaintiff’s request for punitive damages.

Lastly, the judge denied the defendants’ motion to dismiss the remainder of the plaintiff’s claims.

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