The opinion of the court was delivered by: CINDRICH
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.
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 ...