CINDRICH, District Judge
September 30, 1997
Plaintiff ("Andrea") is a minor who became pregnant while placed in a foster home. The father is a natural son of the foster parents, also a minor at the time of the relevant events. In this action Andrea makes claims involving violations of her right to liberty and substantive due process of law, violations of Pennsylvania child welfare law, and common law negligence. Defendants Community Alternatives, Inc. ("CAI"), and Tammi Baxter have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, we will grant the motion in part and deny it in part.
We take the facts from the Complaint. Andrea was born in July 1981. On September 14, 1995, Andrea's mother, referred to as Mrs. B. in the Complaint, reported her missing. The State Police found Andrea the same night and took her to Children and Youth Services of Lawrence County ("CYS"). Defendant Merlino was the CYS caseworker assigned to Andrea's case. CYS has a contract with CAI, a non-profit corporation, for CAI to assist CYS with foster care placements and related social services. Defendant Baxter was the CAI social worker assigned to Andrea's case.
On September 16, 1995, CAI placed Andrea with a foster family, the Moyers. At the time, the Moyers had three boys living with them, ages 16, 14, and 12. In a letter dated September 25, 1995, Mrs. B. wrote the CYS director that Andrea was sexually active, and stated that she required close supervision. On November 8, 1995, Andrea was given a psychological test that revealed "an extremely strong libido." Compl. P 32. In March 1996, Ms. Moyer notified Baxter that Andrea and the Moyers' 17 year old son Ricky may have become sexual partners. Baxter met with Andrea and Ricky Moyer and "told them not to get caught, to lie low and to be discreet." Compl. P 35. In June 1996, it was discovered that Andrea was pregnant, and that Ricky Moyer was the father. In July 1996, CYS asked the court of common pleas to approve a transfer of Andrea from a foster home to an institution.
Andrea filed her Complaint here in January 1997. Her claims are set forth in four counts. The federal claims are brought pursuant to 42 U.S.C. § 1983. Count One is against all defendants for violations of Andrea's rights to liberty and substantive due process as guaranteed by the Fourteenth Amendment. Count Two is against CYS and Lawrence County for maintaining policies resulting in deliberate indifference to Andrea's rights. Count Three is against all defendants for violating several Pennsylvania child welfare statutes and regulations. Count Four is against all defendants for negligence.
As stated above, CAI and Baxter have moved to dismiss Counts One and Three for failure to state a claim. As to Count One, defendants argue that Andrea's injury does not involve a constitutionally protected right, and that they were not state actors. Andrea responds that there is a special relationship between dependents of local governments and their agencies that creates affirmative duties of insuring health and safety. Defendant failed to observe these duties, which led to a violation of her constitutional rights. We will first address the section 1983 claim under Count One, which may dispense with the need to consider the motion as to Count Three.
II. STANDARD OF DECISION
In deciding a Rule 12(b)(6) motion, we accept all well pleaded facts as true and draw all inferences in favor of the non-moving party. We focus on the pleadings in addressing the motion, but we may also consider matters of public record, orders, exhibits attached to the complaint, and items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 and n. 2 (3d Cir. 1994). A claim should not be dismissed unless it appears beyond doubt that the non-moving party can prove no set of facts in support of its allegations which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); City of Philadelphia v. Lead Industries Ass'n, 994 F.2d 112, 118 (3d Cir. 1993). Even a defective complaint will not be dismissed unless it appears to a certainty that the defect in the complaint cannot be cured by amendment. See, e.g., Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989).
"In order to establish a section 1983 claim, a plaintiff 'must demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law.'" Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995), cert. denied, 516 U.S. 858, 133 L. Ed. 2d 107, 116 S. Ct. 165 (1995)). "Generally, the first issue in a § 1983 case is whether a plaintiff sufficiently alleges a deprivation of any right secured by the constitution." D.R. v. Middle Bucks Area School, 972 F.2d 1364, 1367 (3d Cir. 1992) (en banc). We will consider the existence of a constitutional right first.
Because of the source of Andrea's constitutional claim, we must approach this task with caution. The Supreme Court
has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. . . . The doctrine of judicial self restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. It is important, therefore, to focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake and what the city allegedly did to deprive her husband of that right.
Collins v. City of Harker Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 273, 112 S. Ct. 1061 (1992) (citation omitted); Reno v. Flores, 507 U.S. 292, 302, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993) ("'Substantive due process' analysis must begin with a careful description of the asserted right . . . .") (citing Collins).
The right Andrea seeks to vindicate is stated in alternative ways. Most broadly, she claims a substantive due process right to placement in an appropriate, safe setting. See Compl. P 43; Plaintiff's Brief in Opposition, Doc. No. 7, at 7. She refines this description, as the factual averments of her Complaint dictate, in stating that the "defendants' outrageous conduct in failing to protect Andrea from becoming pregnant at age 14 violated her constitutional rights to liberty and substantive due process of law," Compl. at 2; "the failure of the defendants to protect Andrea from getting pregnant while she was in the government's protective custody constitutes intentional disregard and/or reckless indifference for her safety and/or liberty," id. P 48. We thus think a fair statement of the right at stake in this case is the right of a 14 year old foster child to be protected from conditions under which she might become pregnant.
A brief review of the precedent from which this alleged right might evolve will be helpful. The Supreme Court recognized prisoners' rights to adequate medical care under the Eighth Amendment in Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Outside the criminal context, the Court applied this principle through the Fourteenth Amendment to mentally retarded persons involuntarily committed to state institutions in Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). Youngberg involved repeated physical injuries, self-inflicted and inflicted by others, to a profoundly retarded man. Hence, beyond the prison or jail environment, the liberty interests of persons involuntarily confined to mental institutions are constitutionally protected by an "unquestioned duty" of the state "to provide reasonable safety for all residents and personnel within the institution." Id. at 324; Shaw v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990) ("no question that . . . the right to safe conditions of confinement -- [is] encompassed within the 'liberty' substantively protected by the fourteenth amendment due process clause," citing Youngberg).
The Supreme Court had occasion to review these principles in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). In DeShaney, Wisconsin child welfare workers, after learning of a report to police of child abuse and three trips to the emergency room by the child, and making monthly home visits which revealed suspicious injuries, allowed a four-year-old boy to remain with his father. The father later beat the child brutally, sending him into a coma, and inflicting permanent severe brain damage. The Supreme Court denied that the state had a constitutional duty to protect the child because he was not in the state's custody. "In the substantive due process analysis, 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, not its failure to act to protect his liberty interests against harms inflicted by other means." DeShaney, 489 U.S. at 201; see also Ford v. Johnson, 899 F. Supp. 227 (W.D. Pa. 1995) (applying DeShaney in case of death of child at hands of natural father).
The Court in DeShaney included a footnote that is significant for our case.
Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. See Doe v. New York City Dept. Of Social Services, 649 F.2d 134, 141-142 (CA2 1981), after remand, 709 F.2d 782, cert denied sub nom Catholic Home Bureau v. Doe, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 . . . (1983); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-797 (CA11 1987) (en banc) . . . . We express no view on the validity of this analogy, however, as it is not before us in the present case.