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August 26, 2010

Several dropped in ‘kids’ lawsuit

Psychiatrist, ex-judges’ wives won’t be defendants, federal court rules.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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SCRANTON – A federal judge on Wednesday dismissed psychiatrist Frank Vita and wives of former judges Mark Ciavarella and Michael Conahan as defendants in the “kids for cash” lawsuits, but let stand the bulk of counts filed against other defendants.

U.S. District Judge A. Richard Caputo said the plaintiffs had failed to allege sufficient facts to support their contention that Cindy Ciavarella, Barbara Conahan and Vita had participated in the alleged conspiracy to improperly incarcerate juveniles. Caputo rejected similar claims made by Robert Mericle, Robert Powell and corporate defendants, PA Child Care, Western PA Child Care, Mid Atlantic Youth Services, Vision Holdings and Mericle Construction. He did grant their motions to dismiss regarding one of the due process counts lodged against them, however.

The ruling frees Vita and the judges’ wives from liability in the case. The remaining defendants still face significant liability based on the remaining counts, which include racketeering, false imprisonment and violations of the due process rights of the juveniles and their parents.

The decision stems from a two lawsuits – a class action and an individual master complaint – filed last year by hundreds of juveniles who allege they were improperly incarcerated as part of a scheme to enrich Conahan, Ciavarella, Powell, Mericle and others. The suit was based on federal charges that were first filed against Conahan and Ciavarella in January 2009. Prosecutors say the former judges accepted more than $2.8 million from Mericle and Powell in exchange for rulings that benefited PA and Western PA Child Care. Conahan has pleaded guilty to racketeering conspiracy, while Ciavarella is awaiting trial.

In dismissing the ex-judges’ wives, Caputo said the plaintiffs sole allegation against the women was based on their roles as “owners” of the Pinnacle Group, a Florida corporation that federal prosecutors say was utilized to funnel illegal payments Mark Ciavarella and Michael Conahan had received from Powell, the one-time owner of the juvenile detention centers, and Mericle, who built the facilities.

Caputo said mere ownership of the corporation was not sufficient to prove that the women actively engaged in the conspiracy. He notes that the plaintiffs themselves allege that, while the women owned the corporation, it was their husbands who “controlled” it. “It is entirely possible that other actors in an entity, such as Pinnacle, could act on its behalf without the knowledge of its owner,” Caputo said. Vita, who is Michael Conahan’s brother-in-law, had been named as a defendant based on his role in performing psychological testing on juveniles who appeared before Ciavarella in juvenile court.

The plaintiffs alleged Vita, who had the exclusive contract for the testing, had conspired with the ex-judges to create a backlog in testing, resulting in juveniles being incarcerated in Powell-owned facilities for a longer period of time.

But Caputo said the plaintiffs had failed to provide a factual basis for that allegation. The fact that Vita had the contract and there was a backlog was not, by itself, sufficient to support the claims against him, Caputo said.

Powell, Mericle and the corporate defendants had also sought dismissal from the suits based on several legal principles, including claims that the statute of limitations had expired and that the plaintiffs had failed to show that they engaged in a conspiracy that is the basis of the racketeering counts in the suit. They further argued that the parents of the affected juveniles could not seek damages because it was their children, and not themselves, who were the alleged “victims.”

Caputo rejected each of those claims. The defendants maintained the suit should be dismissed because many of the defendants had failed to meet the statute of limitations, which requires a plaintiff to file suit within two years of the date they became aware their rights were violated. The defendants argued that time began to run once the juveniles were sentenced.

But Caputo agreed with attorneys for the plaintiffs, who maintained the statute should be tolled because the juveniles had no way to know their rights had been violated until Conahan and Ciavarella were charged in January 2009.

Regarding the conspiracy, Caputo noted the plaintiffs will be required to provide evidence that the conspiracy existed. The litigation is still in its early phases, he said, and he believes they had presented sufficient allegations at this point to sustain their legal burden.

As for the claims filed by parents, Caputo said he believes the parents of the juveniles had sufficiently alleged that they suffered financial harm in the form of fines, court cost and the cost of incarceration they were required to pay. Caputo did grant a motion to dismiss one count that sought damages for violations of the parents’ due process rights based on interference with the parent-child relationship. Caputo said that while the plaintiffs allege the defendants deliberately acted to place juveniles, they do not allege that they deliberately sought to interfere with the parent-child relationship.

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