L.Ed.2d 605 (1983) (Eighth Amendment protection not available
when no formal adjudication of guilt was made against person shot
by police officer).
Echoing the Supreme Court, the U.S. Court of Appeals for the
Third Circuit ruled that protection under the Eighth Amendment is
appropriate only in the context of a formal adjudication of guilt
in a criminal prosecution, and, particularly, is not an
appropriate source for determining the rights of the
involuntarily committed. Romeo v. Youngberg, 644 F.2d 147, 156
n. 8, (3d Cir. 1980) (en banc), vacated on other grounds,
457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). See also
Marshall v. Borough of Ambridge, 798 F. Supp. 1187, 1193 (W.D.Pa.
1992); Ford v. Johnson, 899 F. Supp. 227, 230 (W.D.Pa. 1995);
A.S.A.S. By and Through Blalock v. Tellus, 22 F. Supp.2d 1217
(D.Kan. 1998). Given the established law on this issue,
defendants' motion to dismiss plaintiffs' Eighth Amendment claims
will be granted.
E. Federal Statutes
Plaintiffs also rely on two federal statutes, the Federal
Adoption Assistance and Child Welfare Act, 42 U.S.C. § 670, et
seq. ("FAACWA"), and the Child Abuse Prevention and Treatment
Act, 42 U.S.C. § 5101, et seq. ("CAPTA"), in Counts X and XI of
their complaint. Defendants argue that these claims fail to state
a claim upon which relief can be granted because plaintiffs have
not identified the relevant statutory provisions. Under the
liberal federal pleading rules, the fact that a complaint does
not cite the specific statutory provisions does not require
dismissal. See Northrop v. Hoffman of Simsbury, Inc.,
134 F.3d 41 (2nd Cir. 1997); Thomas v. New York City, 814 F. Supp. 1139
(E.D.N.Y. 1993). See generally 5A Charles A. Wright & Arthur R.
Miller § 1357 at 337. The well-established rule is that a
complaint survives a motion to dismiss as long as it contains a
set of facts for which relief may be granted. Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80; Ransom v.
Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
Plaintiffs invoke the FAACWA in asserting that they were
deprived by the defendants of the following rights protected
under this statute: placement in foster homes that conform to
nationally recommended standards; appropriate services; placement
in the least restrictive, most family-like setting; proper care
while in custody; protection; planning and services that will
assure their permanent placement; regular judicial or
administrative reviews; and the receipt of services in a
child-welfare system with an adequate information system (Compl.
¶ 119, Am. Compl. ¶ 122). Although we conform to the general rule
stated above that identification of statutory provisions is not
essential to state a complaint, it is necessary in the case at
hand. Plaintiffs' failure to identify the specific statutory
provisions is problematic because of the conflicting decisions on
whether the FAACWA allows a private right of action. A landmark
Supreme Court decision, Suter v. Artist, 503 U.S. 347, 355-63,
112 S.Ct. 1360, 1366-70, 118 L.Ed.2d 1 (1992), held that a
private individual could not bring a § 1983 claim to enforce §
671(a)(15) of the FAACWA.*fn4 In dicta, the Court stated that
Section 671(a)(9) was unenforceable as well. Id. at 359, 112
The Court, however, did not rule on the enforceability of other
provisions of the statute. Some courts have extended the Suter
decision to other provisions of the statute. Baby Neal v.
Casey, 821 F. Supp. 320, 328 (E.D.Pa. 1993), rev'd on other
grounds, 43 F.3d 48 (3d Cir. 1994) (holding unenforceable as a
private action plaintiff's claims under §§ 627(a)(2)(A), (B), and
(C), 627(b)(3), and 671(a)(15)); Thomas v. New York City,
814 F. Supp. 1139, 1152 (E.D.N.Y. 1993) (ruling that there is "no
private right of action under the Federal Adoption Assistance and
Child Welfare Act"); Doe By and Through Guardians and Next
Friends G.S. v. Johnson, CIV. No. 92 C 7661, 1993 WL 50845
(N.D.Ill. Feb. 24, 1993) (dismissing plaintiff's action under
Section 671(a) pursuant to Suter decision). However, other
courts have interpreted the 1994 Social Security Amendments of
Congress*fn5 to allow provisions of the FAACWA enforceable as a
private action. Jeanine B. ex rel. Blondis v. Thompson,
877 F. Supp. 1268, 1285 (E.D.Wis. 1995) (motion to dismiss denied for
claims brought under sections other than 671(a)(15)); Marisol A.
by Forbes v. Giuliani, 929 F. Supp. 662, 683 (S.D.N.Y. 1996),
aff'd, 126 F.3d 372 (2nd Cir. 1997) (Court found "no evidence
that Congress has indicated its intent to preclude private
plaintiffs from seeking to enforce provisions of the Adoption
Assistance Act other than § 671(a)(15))".
Clearly, we cannot rule on the viability of plaintiffs' claims
under this statute without identification of the specific
provisions sought for redress. Thus, we shall dismiss Counts X
and XI as they pertain to the FAACWA, as well as the relevant
portions of Counts VII, VIII, and IX which allege defendants'
negligence per se under this statute. However, we grant leave to
plaintiffs to amend these Counts in order to identify the
relevant provisions of the FAACWA under which relief is sought.
Counts X and XI allege violations of CAPTA. CAPTA in part
requires states to implement procedures for investigation of
child abuse and protection of children in order to receive
federal funds. 42 U.S.C. § 5106a(b)(2). Although plaintiffs'
complaint does not identify the specific provisions of CAPTA
under which they seek redress, we can easily infer that their
claims fall under §§ 5106a(b)(2) and (3).*fn6
The majority of courts, including the two appellate level
courts to address this issue, have ruled that CAPTA does not
create a private right of action. Baby Neal, 821 F. Supp. at 329
(holding that CAPTA is a "mere federal-state funding statute
which did not create enforceable rights under
42 U.S.C. § 1983."); Doe v. District of Columbia, 93 F.3d 861 (D.C.Cir.
1996); Tony L. v. Childers, 71 F.3d 1182 (6th Cir. 1995)
(McKay, J., 10th Cir. Judge, sitting by designation); A.S. By
and Through Blalock v. Tellus, 22 F. Supp.2d 1217 (D.Kan. 1998);
Eric L. By and Through Schierberl v. Bird, 848 F. Supp. 303
(D.N.H. 1994); Matter of Baby K., 832 F. Supp. 1022 (E.D.Va.
1993), aff'd 16 F.3d 590, cert. denied 513 U.S. 825, 115
S.Ct. 91, 130 L.Ed.2d 42. But see Marisol A., 929 F. Supp. at
684; Jeanine B. By Blondis v. Thompson, 877 F. Supp. at 1286.
Relying on a prior Supreme Court case, the Sixth Circuit
applied a three-part test to determine whether § 5106a(b)(2)
creates enforceable rights within the meaning of § 1983:(1)
whether the provision in question was intended to benefit the
plaintiff, (2) whether the statutory provision in question
creates binding obligations on the defendant governmental unit
rather than merely expressing a congressional preference,
and (3) whether the interest the plaintiff asserts is specific
enough to be enforced judicially, rather than being "vague" and
amorphous. Tony L., 71 F.3d at 1187 (citing Wilder v. Virginia
Hosp. Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110
L.Ed.2d 455 (1990)). Finding that the relevant provision of
CAPTA, 42 U.S.C.A. § 5106a(b)(2), satisfied the first two prongs
of the test, the Sixth Circuit found that the statute lacked
sufficient guidelines to satisfy the third prong. Tony L., 71
F.3d at 1189. Section 5106a(b)(2) of CAPTA requires an
investigation to be initiated promptly upon receipt of a child
abuse report and for immediate steps to be taken to protect the
abused child. Despite this language, the Sixth Circuit found that
CAPTA fails to mandate a particular means of investigation or
state what type of actions must be taken to protect abused or
neglected children. Id. at 1189, thus rendering the provision
"vague and amorphous." Wilder, 496 U.S. at 509, 110 S.Ct. 2510.
In dicta, the Sixth Circuit suggested that § 5106a(b)(3) does not
create an enforceable right as the Supreme Court in Suter
rejected a similar provision. Id. at 1188, n. 12.
We are persuaded by the view of the majority on this issue.
Since the CAPTA clearly does not create a private right of action
under 42 U.S.C. § 1983, we grant defendants' motion to dismiss
the claims under Counts X and XI of plaintiffs' complaint
pertaining to the CAPTA. Accordingly, we also dismiss the claims
in Counts VII, VIII, and IX seeking redress for defendants'
alleged negligence per se under this statute.
An appropriate order follows.
AND NOW, this 14th day of September, 1999, upon consideration
of the Motion of Defendants, Marlene H. Rivers, Tinea Mimms, and
the Women's Christian Alliance to Dismiss Counts I through XII of
Plaintiffs' Complaint and for the reasons set forth in the
preceding Memorandum, it is hereby ORDERED that the Motion is
GRANTED in part and DENIED in part. It is further ORDERED that:
1. Defendants'*fn1 Motion to Dismiss the First, Second and
Third Counts is DENIED as MOOT;
2. Defendants Motion to Dismiss the Fourth, Fifth and Sixth
Counterclaims is DENIED;
3. Defendants' Motion to Dismiss the Negligence Per Se claims
is DENIED as it relates to the Pennsylvania Child Protective
Services Law and GRANTED as it relates to the Child Abuse
Prevention and Treatment Act ("CAPTA") and the Federal Adoption
Assistance and Child Welfare Act ("FAACWA"). As such, the CAPTA
and FAACWA Negligence Per Se claims against the Defendants are
hereby DISMISSED. Plaintiffs, however, are granted leave to file
an amended complaint within twenty (20) days of the date of this
order to identify the relevant provisions of the FAACWA under
which relief is sought;
4. Defendants' Motion to Dismiss the Gross Negligence claims is
GRANTED in so much as they are wholly separate claims and not
merely claims under the general negligence theory with gross
negligence as the alleged standard of care violated. With such
qualifications, the Gross Negligence claims against the
defendants are hereby DISMISSED;
5. Defendants' Motion to Dismiss the Fifth Amendment claims is
GRANTED and these claims against the defendants are hereby
6. Defendants' Motion to Dismiss the Eighth Amendment claims is
GRANTED and these claims against the defendants are hereby
7. Defendants' Motion to Dismiss the Fourteenth Amendment
claims is DENIED;
8. Defendants' Motion to Dismiss the FAACWA claims against the
defendants is GRANTED with leave for the plaintiffs to file an
amended complaint within twenty (20) days of the date of this
order to identify the relevant provisions of the statute under
which they seek relief;
9. Defendants' Motion to Dismiss the CAPTA claims against the
defendants is GRANTED and these claims against the defendants are
10. Defendants' Motion to Dismiss the Vicarious Liability
claims against the defendants is GRANTED and these claims against
the defendants are hereby DISMISSED.