County, and no final judicial decree of adoption was entered pursuant to 23 Pa. Cons. Stat. Ann. §§ 2901-10. I certainly empathize with the pain plaintiffs must feel from the untimely loss of Schreffler, but I cannot and will not transgress clearly marked legislative boundaries in order to uphold a claim for relief.
In short, at the time of Schreffler's death, his adoption by plaintiffs remained incomplete. Plaintiffs cannot, therefore, maintain claims for interference with their liberty interest in a relationship with Schreffler, or the child's liberty interest in a relationship with them. In the parlance of the Rule 12(b)(1) standard of review, I conclude that these constitutional claims are "'implausible . . . [and] foreclosed by prior decisions . . . [and thus do not] involve a federal controversy.'" Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)). Accordingly, these claims shall be dismissed with prejudice.
2) Interference with Schreffler's Liberty Interests in Life
As noted above, plaintiffs also assert, as administrators for Schreffler's estate, that defendants' conduct violated the child's fundamental liberty interest in life. In analyzing this claim, the elements plaintiffs' must meet can be divided, just as with an ordinary tort claim, into two separate parts. First, they must show that defendants owed Schreffler a duty of care. Second, plaintiffs must be able to demonstrate that defendants' actions or inactions failed to fulfill their duty of care and that this failure led proximately to the deprivation of the child's constitutional rights. Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1144 (3d Cir. 1990).
In their motion, defendants have focused their energies on the first part of the foregoing test, arguing that they owed Schreffler no constitutional duty of care. They assert that the Court of Appeals for the Third Circuit, following Supreme Court case law, has limited the situations in which the state owes a duty of care and protection to so-called "special relationship" cases, where an individual's personal liberty has been restricted by incarceration or institutionalization against his will. Defendants' Memo. at pp. 5-7; Defendants' Reply at pp. 2-3. They contend that here, Schreffler was not in state custody at the time of his injury, but was awaiting adoption in a foster home, a setting in no way analogous to incarceration or institutionalization. Id.
The leading Supreme Court case discussing when a state has a duty to provide care and protection for its citizens is DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989). In DeShaney, the Court explained that nothing in the Due Process Clause of the Fourteenth Amendment required a state to protect the life, liberty and property of its citizens. Id. at 195. Rather, the Clause is phrased as a limitation on the power of the state to act, not as a guarantee of certain minimal levels of safety and security. Id.
The DeShaney Court stated that only in limited circumstances does the Constitution impose upon a state affirmative duties of care and protection. DeShaney, 489 U.S. at 198. As examples, it pointed to its decision of Estelle v. Gamble, 429 U.S. 97 (1976), where the Court held that the Eighth Amendment's protection against cruel and unusual punishment, made applicable to the states through the Fourteenth Amendment's Due Process Clause, required a state to provide adequate medical care to incarcerated prisoners, and Youngberg v. Romeo, 457 U.S. 307 (1982), wherein the Court held that the substantive component of the Due Process Clause of the Fourteenth Amendment required a state to provide involuntarily committed mental patients with care necessary to ensure their reasonable safety from themselves and others. DeShaney, 489 U.S. at 198-99.
Together, the Court explained, Estelle and Youngberg stood for the proposition that once the state takes a person into its custody and holds him there against his will, the Constitution imposes upon the state a corresponding duty to assume some responsibility for his safety and general well-being. DeShaney, 489 U.S. at 199-200. The Court stated that
it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the 'deprivation of liberty' triggering the protections of the Due Process Clause.
Id. at 200. Further, the Court in DeShaney cautioned that "the Due Process Clause of the Fourteenth Amendment . . . does not transform every tort committed by a state actor into a constitutional violation." Id. at 202 (citations omitted). In dictum, the Court noted that a situation analogous to incarceration or institutionalization giving rise to an affirmative duty to protect may arise when a state places a child in a foster home. Id. at 201 n.9.
The Court of Appeals for the Third Circuit recently revisited DeShaney and its progeny in D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992). There, the court of appeals stated that it had read DeShaney primarily as applying to scenarios involving a state's physical custody of a person. Id. at 1370 (citing Philadelphia Police & Fire Ass'n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 167 (3d Cir. 1989), and Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459 (3d Cir. 1990)). The court held that the authority of officials of a vocational-technical school over plaintiffs as students during the day did not create the type of physical custody required to bring the state within the special relationship described in DeShaney. Id. at 1372. The school-children plaintiffs in D.R. by L.R., the court of appeals explained, did not resemble prisoners or the involuntarily committed, because these children remained residents in their private homes, and thus could turn to persons unrelated to the state for help on a daily basis. Id. The state did nothing to restrict the plaintiffs' liberty after school hours and, accordingly, did not deny them meaningful access to sources of help. Id.
In reaching its conclusion regarding the custodial status of the student-plaintiffs in D.R. by L.R., the court of appeals compared them to foster children. Like the DeShaney Court, the court noted that several courts of appeals had imposed a constitutional duty on the state to protect foster children by analogy to involuntarily institutionalized individuals. D.R. by L.R., 972 F.2d at 1372. The court stated that the relationship between the state and foster children stems from the state's affirmative act of finding these children and placing them with state-approved families. Id. (citing Taylor by and through Walker v. Ledbetter, 818 F.2d 791, 794-97 (11th Cir. 1987), cert. denied, 489 U.S. 1065 (1989)). In undertaking this action, "the state assumes an important continuing, if not immediate, responsibility for the child's well-being. In addition, the child's placement renders him or her dependent upon the state, through the foster family, to meet the child's basic needs." Id. (citing Taylor, 818 F.2d at 794-97).
The D.R. by L.R. court explained that minor students, by contrast, do not depend on the schools to provide their basic human needs. They are required under Pennsylvania law to spend only 180 six-hour days in the classroom per year, and their parents, even during the school day, remain their primary caretakers and decisionmakers. D.R. by L.R., 972 F.2d at 1372 (citations omitted). The court thus concluded that the custodial status of the plaintiffs, public school students, did not resemble the special relationship the state has with foster children. Id.
Plaintiffs, as administrators of the estate of Schreffler, a foster child at the time of his death, claim that misrepresentations and omissions made by the defendants contributed to the death of this child. See Plaintiffs' Memo. at pp. 8 and 15. This claim may not have survived the scrutiny of a Rule 12(b)(6) motion to dismiss for failure to state a claim and may very well not emerge intact from a subsequent motion attacking the merits. I am constrained, however, by the Rule 12(b)(1) procedural posture in which I have been placed by the defendants. As discussed above, the standards of review under Rule 12(b)(1) and Rule 12(b)(6) are different. The threshold to withstand a motion to dismiss under Rule 12(b)(1) is lower than what is required to withstand a motion under Rule 12(b)(6). I simply cannot find, based on the case law surveyed above, that in the words of the Rule 12(b)(1) standard, the theory of a deprivation of constitutional rights asserted on behalf of Schreffler is "'so insubstantial, implausible, foreclosed by prior [court] decisions . . . , or otherwise completely devoid of merit as not to involve a federal controversy.'" Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)). Accordingly, I conclude that this Court has subject matter jurisdiction over the claim of a violation of Schreffler's constitutional rights.
C. Supplemental Jurisdiction
In light of my determination that this Court does not have subject matter jurisdiction over plaintiffs' claims of interference with the constitutionally protected right of familial association, I will briefly examine whether this Court may retain supplemental jurisdiction over plaintiffs' state law claims.
Both pendent and ancillary jurisdiction were merged under the heading of "supplemental jurisdiction" by the Judicial Improvements Act of 1990. The pertinent section of this statute provides that "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a).
"Claims are part of the same constitutional case if they 'derive from a common nucleus of operative fact,' and 'are such that [the plaintiff] would ordinarily be expected to try them all in one judicial proceeding . . . .'" Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). Plaintiffs' state law claims include intentional misrepresentation, negligent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, wrongful death, and restitution. I have read each of these claims and conclude that this Court may properly exercise supplemental jurisdiction over them, because they are derived from the same facts which underlie the surviving federal claim plaintiffs have alleged on behalf of Schreffler, and "'are such that [plaintiffs] would ordinarily be expected to try them all in one judicial proceeding . . . .'" Sinclair, 935 F.2d at 603 (citation omitted).
For the foregoing reasons, the motion of the defendants pursuant to Rule 12(b)(1) to dismiss plaintiffs' complaint for lack of subject matter jurisdiction will be granted in part and denied in part. The motion shall be granted with prejudice insofar as plaintiffs assert claims of interference with their liberty interest in a relationship with Schreffler and the child's liberty interest in a relationship with them, and denied to the extent that plaintiffs' assert a claim for the deprivation of Schreffler's constitutional rights.
An appropriate order follows.
AND NOW, this 3rd day of May 1993, upon consideration of the motion of the defendants to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction (Document No. 3), the response of the plaintiffs thereto, and the reply of the defendants, and for the reasons stated in the attached memorandum, it is hereby ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as follows:
1) The motion is GRANTED insofar as plaintiffs assert constitutional claims of interference with their own personal liberty interest in a relationship with Allan Schreffler ("Schreffler" or "the child") and the child's liberty interest in a relationship with them personally. Accordingly, the parts of Counts One and Two describing these claims, including, but not limited to, Count One at PP 37-38 and 43 and the ad damnum clause and Count Two at PP 45-47 and 49 a) and b) and the ad damnum claus, are DISMISSED WITH PREJUDICE.