NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3981
__________
WEIH STEVE CHANG, individually and as guardian for A.B., C.D., and E.F.; A.B. a
minor child; C.D., a minor child; E.F., a minor child,
Appellants
v.
STATE OF DELAWARE DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH,
AND THEIR FAMILIES, DIVISION OF FAMILY SERVICES, SARAH MARLOWE,
individually and in her official capacity; BAHU GILLIAM, individually and in her
official capacity; CHILDREN’S ADVOCACY CENTER OF DELAWARE, CITY OF
WILMINGTON, a municipal corporation of the State of Delaware; CITY OF
WILMINGTON POLICE DEPARTMENT; MARY QUINN, individually and in her
official capacity
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D. Del. Civil Action No. 1-15-cv-00963)
District Judge: Honorable Leonard P. Stark
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 11, 2018
Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges
(Opinion filed: October 4, 2019)
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OPINION*
___________
PER CURIAM
Weih Steve Chang, proceeding pro se, appeals an order of the United States
District Court for the District of Delaware granting the defendants’ motions to dismiss his
amended complaint. For the reasons that follow, we will affirm the judgment of the
District Court.
Chang and his three minor children, through counsel, filed suit against the State of
Delaware, Department of Services for Children, Youth, and Their Families, Division of
Family Services (“DFS”) and two employees thereof, the City of Wilmington, the City of
Wilmington Police Department, Officer Mary Quinn, and the Children’s Advocacy
Center of Delaware. The amended complaint, which is related to a custody case in
Delaware Family Court, alleges that Chang reported incidents of abuse and neglect by the
children’s mother to DFS and the Wilmington Police Department. Officer Quinn
interviewed Chang and the children’s mother, observed a Children’s Advocacy Center
employee interview the children, and prepared reports.
Chang and his children aver that DFS determined that Chang had told the children
to make false allegations against their mother and filed a petition against him in Family
Court alleging emotional abuse or neglect. The Family Court found that the evidence did
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
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not support the petition and dismissed the matter. An order attached to the original
complaint reflects that the Family Court noted that the incidents, which had occurred
years earlier, were true, but that Chang’s motive for reporting them just before a custody
transfer was suspect.
Chang and his children claimed violations of their civil rights under 42 U.S.C.
§ 1983 and state law based on these proceedings and the alleged continued denial of
custody to Chang. The District Court granted the defendants’ motions to dismiss the
amended complaint and this appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is
plenary. Palakovic v. Wetzel, 854 F.3d 209, 219 (3d Cir. 2017). Chang raises three
issues for our review.
Chang first contends that the District Court erred in dismissing a breach of
contract claim. The amended complaint alleges that the Children’s Advocacy Center, the
Wilmington Police Department, the Delaware Department of Justice, and the State of
Delaware were parties to a Memorandum of Understanding that addressed the
investigation of child abuse allegations and services for victims. The amended complaint
avers that the defendants breached this contract by failing to perform their obligations
thereunder and thereby injured the children, who are allegedly third-party beneficiaries of
the contract. In dismissing this claim, the District Court ruled that the Memorandum of
constitute binding precedent.
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Understanding is a set of guidelines, not a contract, and that it reflects no intent to
compensate the public for any failure to perform.
Appellees argue that Chang lacks standing to challenge the dismissal of this claim
because it was asserted by his children, who are not parties to the present appeal. We
agree. The amended complaint alleges that the children are the third-party beneficiaries
of the Memorandum of Understanding and that they were injured by its breach. Chang
was notified that he may not pursue claims on behalf of his children in this appeal. See
Osei-Afriyie v. Medical College of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991). His
arguments that the District Court erred is dismissing this claim are not properly before us.
Chang also contends that the District Court erred in relying on an out-of-court
custody agreement in dismissing his civil rights claims. Although his argument is not
entirely clear, Chang appears to take issue with the District Court’s reliance on a Family
Court order reflecting that he agreed to transfer full custody to the children’s mother in
support of its dismissal of his substantive due process claim against Officer Quinn. The
District Court ruled that Officer Quinn was entitled to qualified immunity in part because
the amended complaint did not suggest that her involvement caused a denial of a
constitutional right where Chang had consented to the mother’s custody of the children
before the investigation.
Chang argues that he did not relinquish his constitutional rights by agreeing to
transfer custody to the children’s mother. He states that he had custody initially and that
custody orders can be modified at any time. Chang’s agreement to transfer custody
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before the investigation may not preclude his constitutional claim insofar as he alleges
the continued denial of custody, but Officer Quinn is entitled to qualified immunity
because Chang does not sufficiently allege a violation of his substantive due process
rights. See Bland v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018) (setting forth inquiry
for resolving questions of qualified immunity).
The amended complaint alleges that Officer Quinn interfered with Chang’s
parental rights by improperly allowing the children’s mother’s friend to assist her in her
interview, failing to investigate the claims further, and initiating or causing the initiation
of proceedings against him knowing that the children’s mother had admitted to acts of
abuse in her interview. The amended complaint also avers that Officer Quinn issued a
report that concluded without reasonable basis that Chang had told the children to lie. As
recognized by the District Court, the right to familial integrity does not include the right
to remain free from child abuse investigations. Croft v. Westmoreland Cty. Children and
Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). Chang’s allegations are insufficient to
state a plausible claim that Officer Quinn violated his substantive due process rights. See
Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999) (explaining conduct must
be so ill-conceived or malicious that it “shocks the conscience”).1
1
To the extent Chang disputes the dismissal of his malicious prosecution claim based on
his custody agreement, as discussed below that claim was properly dismissed for other
reasons. To the extent Chang disputes the dismissal of his malicious prosecution claim
against DFS employee Sarah Marlowe, he does not challenge the primary ruling below
that she is entitled to absolute immunity and it is thus unnecessary to address the District
Court’s other reasons for dismissing his claim.
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Finally, Chang contends that the District Court erred in considering documents
outside the pleadings in granting the motions to dismiss. We read his brief as asserting
that the District Court erred in relying on such documents in finding probable cause and
dismissing his malicious prosecution claim against Officer Quinn. In adjudicating this
claim, the District Court referred to the City of Wilmington’s brief, which relied upon
Officer Quinn’s police report and the transcripts of the family’s interviews that were
submitted in support of the motion to dismiss. The District Court ruled that it could
consider these documents without converting the motion to a summary judgment motion.
We need not resolve this issue because, even if we were to agree with Chang that
the District Court erred in considering these documents without converting the motion,
dismissal of his malicious prosecution claim was warranted on other grounds. In support
of his claim, Chang averred that he “suffered a deprivation of his due process right to
liberty, the right to the integrity of his family and the fellowship of his children.” Am.
Compl. at 21. To the extent he relies on a violation of his right to substantive due
process, as the City defendants asserted below, such a violation cannot provide the basis
for a malicious prosecution claim. Merkle v. Upper Dublin School District, 211 F.3d
782, 792 (3d Cir. 2000). Chang also argued below that he stated a claim because he was
seized within the meaning of the Fourth Amendment when he was required to defend the
child abuse charges. However, to the extent his malicious prosecution claim can be based
upon the civil proceeding brought against him, there was no seizure absent pretrial
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custody or onerous pretrial restrictions, which have not been alleged here. DiBella v.
Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005).
Accordingly, we will affirm the judgment of the District Court.2
2
Chang’s motion for leave to add the proposed theory of white privileges on appeal is
denied as the theory was not presented in District Court prior to the judgment. The City
of Wilmington and other City Appellees’ motion to seal their appendix is granted.
Chang’s motion to use his children’s full names is denied. Chang’s motion to stay his
appeal is also denied.
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