The opinion of the court was delivered by: Kauffman, J.
Plaintiff J.T.M. ("Plaintiff") brings this action alleging violations of his substantive and procedural due process rights. Now before the Court are three separate Motions to Dismiss by Defendants (1) Estelle B. Richman; (2) Sandra Steiker; and (3) Delaware County Department of Children and Youth Services, Delaware County, and Angela Albano. For the reasons that follow, the Motions will be granted in part and denied in part.
The facts, as alleged in the Complaint, are as follows. Plaintiff is the natural father and legal guardian of the three minor children, M.M., C.M. and D.M. Plaintiff shares legal custody of the children with S.M., his wife and his children's mother. Am. Compl. ¶ 1. S.M. enjoys primary custody while Plaintiff has limited, supervised custodial rights. Id. ¶ 2. In May 2004, S.M. allegedly witnessed two of her children, M.M. and C.M., engage in "hyper-sexual" behavior. In August 2004, she took M.M. to Defendant Sandra Steiker, a licensed clinical social worker and a paid contractor and consultant of the Delaware County Department of Children and Youth Services ("CYS"). Id. ¶ 42; Ex. E. Defendant Steiker claims she possesses the ability to interpret childrens' activities, such as crayon drawings, to identify individual perpetrators of abuse. Id. ¶ 42. On March 3, 2005, Defendant Steiker provided an oral report stating her opinion that Plaintiff committed child abuse against his daughter M.M. Id.; Ex. A. Plaintiff alleges that Defendant Steiker's actions in assisting S.M. were at all times in accordance with the custom and policy of CYS and Defendant Delaware County.*fn1 Id. ¶ 52. Plaintiff and S.M. separated in March 2005 and filed for divorce in April 2005 following S.M.'s allegations that Plaintiff had sexually molested both M.M. and C.M. Id. Ex. E. Since March 2005, Plaintiff has been afforded a maximum of eight hours per week of supervised visitation with his children and has been involved in ongoing litigation with his ex-wife over their custody. Id. ¶¶ 48-49.
Pennsylvania's Child Protective Services Law, 23 Pa. C.S. §§ 6301-6386 ("CPSL"), mandates that the Pennsylvania Department of Public Welfare ("DPW") maintain a "[s]tatewide central register of child abuse." 23 Pa. C.S. § 6331(3); Am. Compl. ¶ 13. The CPSL requires local family service agencies to submit a document called a Form CY-48 Child Protective Service Investigation Report to the statewide ChildLine registry ("ChildLine"), the DPW's abuse register, to report the results of their investigations into claims of child abuse. Local child protective services agencies may report these claims of abuse as either "unfounded," "indicated," or "founded." Id. ¶ 16.
An "indicated report" is an executive agency declaration that "substantial evidence" exists to support an allegation of abuse against an individual accused of child abuse based on (1) medical evidence, (2) a child protective service investigation, or (3) an admission of acts of abuse by a perpetrator. 23 Pa. C.S. § 6303; Am. Compl. ¶ 14. Pennsylvania law defines "substantial evidence" as evidence that outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion. 23 Pa. C.S. § 6303; Am. Compl. ¶ 15. Judicial or administrative hearings are not held before an indicated report is accepted by the DPW and the name of the accused individual is added to ChildLine. Am. Compl. ¶ 17.
On or about May 2, 2005, Defendant CYS, through its employee Angela Albano, transmitted to the DPW a Form CY-48 naming Plaintiff a perpetrator of child abuse against M.M.*fn2 Id. ¶ 25. As a result of the submission by CYS, Plaintiff was registered as a child abuser on ChildLine. Id. ¶ 26. On or about June 2005, Plaintiff requested that the Secretary of the DPW expunge the record of indicated abuse filed against him. Id. ¶ 27. His request was denied, and in July 2005 Plaintiff requested an administrative hearing. Id. ¶ 28. In October 2005, prior to the hearing, CYS notified the Secretary's designated hearing officer that it would not pursue its case against Plaintiff. Id. ¶ 29. On November 1, 2005, the administrative law judge issued a recommendation that the indicated report of abuse be expunged. The recommendation was adopted by the Regional Manager for the Bureau of Hearings and Appeals on November 7, 2005, approximately 6 months after Plaintiff's name was added to the registry. Id. ¶¶ 30-31. On December 28, 2005, Plaintiff was notified by letter that the report of abuse had been expunged. Id. ¶ 32.
On January 3, 2007, following an eight-day custody trial, the Delaware County Court of Common Pleas found as a matter of fact that the evidence presented against Plaintiff was insufficient to meet the preponderance of the evidence standard, and granted him a maximum of eight hours per week of supervised visitation with his children. Id. Ex. E.
Plaintiff alleges six causes of action in his Amended Complaint. His First and Second Causes of Action are against Defendant Estelle B. Richman, in her official capacity as Secretary of State of the Commonwealth of Pennsylvania, Department of Public Welfare, for injunctive relief for denial of procedural due process under the CPSL. Plaintiff's Third Cause of Action is against Defendants Sandra Steiker and Angela Albano for damages under 42 U.S.C. § 1983. His Fourth Cause of Action is against Defendants Delaware County and CYS for damages under 42 U.S.C. § 1983. His Fifth Cause of Action is against all Defendants for declaratory relief under 28 U.S.C. § 2201 and 42 U.S.C. § 1983. His Sixth Cause of Action is against Defendant Steiker for damages for professional malpractice.
In response to Defendants Delaware County, CYS, and Albano's Motion to Dismiss, Plaintiff has consented to the dismissal of Defendant Albano in her official capacity and Defendant CYS.*fn3 In response to Defendant Steiker's Motion to Dismiss, Plaintiff has withdrawn with prejudice the Fifth Cause of Action as against Defendant Steiker and withdrawn without prejudice the Sixth Cause of Action.
The remaining claims to be resolved are those pending against Defendants Richman in the First, Second, and Fifth Causes of Action; Sandra Steiker in the Third Cause of Action; and Delaware County in the Fourth and Fifth Causes of Action.
II. SUBJECT MATTER JURISDICTION
Because several Defendants challenge the Court's jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the Court will address those jurisdictional questions first. See, e.g., Trent Realty Assocs. v. First Fed. Sav. & Loan Ass'n, 657 F.2d 29, 36 (3d Cir. 1981) ("A federal court is bound to consider its own jurisdiction preliminary to consideration of the merits."). As with a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court considering a "facial attack" on subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) must accept all well pleaded allegations in the complaint as true. See, e.g., Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) (contrasting a "facial attack" on jurisdiction, in which the allegations of the complaint are assumed to be true, with a "factual attack" on jurisdiction, in which "no presumptive truthfulness attaches to plaintiff's allegations"). A "facial attack" contends "that the complaint fails to allege subject matter jurisdiction, or contains defects in the jurisdictional allegations." Jiricko v. Bennett, Bricklin & Saltzburg, LLP, 321 F. Supp. 2d 636, 639 (E.D. Pa. 2004) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1250, at 212-18 (2d ed. 1990)). Because Defendants contend that the Amended Complaint is facially insufficient to support subject matter jurisdiction, the Court will consider the 12(b)(1) motion as a "facial attack" and accept the truth of all well-pleaded allegations of the Amended Complaint.
Defendant Richman contends that Plaintiff's claims for injunctive and declaratory relief-the First, Second, and Fifth Causes of Action-must be dismissed as moot. "[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Int'l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915 (3d Cir. 1987) (citing Powell v. McCormack, 395 U.S. 486 (1969) (stating that federal courts are "without power to decide questions that cannot affect the rights of litigants in the case before them")). Defendant Richman contends that Plaintiff's case is no longer "live" because his name is no longer on the statewide central register of child abuse. Richman Mot. at 14.
Plaintiff agrees, but notes that the Supreme Court recognizes an "established exception to mootness for disputes capable of repetition, yet evading review." FEC v. Wis. Right to Life, Inc., 127 S.Ct. 2652, 2662 (2007) (citing Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)). An assertion of jurisdiction on the basis that a dispute is "capable of repetition, yet evading review" is limited to application only in "exceptional situations" in which "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation marks and alteration omitted). "Both of these conditions must be met if a case is to be saved from mootness." N.J. Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 31 (3d Cir. 1985).
Plaintiff fails to meet either prong of the Lyons exceptional situations test. First, he has failed to assert that he would lack sufficient time to bring a federal action for injunctive relief if he were identified in a future indicated report. Plaintiff instead argues that the Anti-Injunction Act would prevent him from seeking relief in this Court during a state proceeding.*fn4 However, the Supreme Court in Mitchum v. Foster held that § 1983 actions, like the one Plaintiff has asserted here, are excepted from the Act. 407 U.S. 225, 242-43 (1972) ("[W]e conclude that, under the criteria established in our previous decisions construing the anti-injunction statute, § 1983 is an Act of Congress that falls within the 'expressly authorized' exception of that law.").
Second, there is no reason to expect that Plaintiff will be subject to the same action again. In Murphy v. Hunt, the Supreme Court stated that "[t]he Court has never held that a mere physical or theoretical possibility was sufficient to satisfy [the second prong of the mootness exception]." 455 U.S. 478, 481 (1982). To meet this requirement, the complaining party must show there is a "'reasonable expectation' or a 'demonstrated probability' that the controversy will recur involving the same complaining party." Id. at 482 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). The controversy must be "capable of repetition," which is "not a synonym for 'mere speculation;' it is a substantive term on which the moving party must provide a reasonable quantity of proof-perhaps even by the preponderance of the evidence." N.J. Tpk. Auth., 772 F.2d at 33. Plaintiff speculates that his name will be placed in the ChildLine registry again because he believes the first accusation was made against him in bad faith and without reasonable cause, and because he is engaged in highly contentious ongoing litigation concerning the custody rights of his children. Am. Compl. ¶¶ 59, 69. However, litigation in Plaintiff's child custody case was resolved on January 3, 2007 by court order. Id. Ex. E. For his name to be placed on the registry again, (1) Plaintiff must first regain unsupervised visitation custody rights, (2) new bad faith allegations of abuse must be reported, (3) the County must find that there is sufficient evidence to support these new allegations, and (4) the County must file an indicated report against him. The above series of speculative events cannot constitute a reasonable expectation that Plaintiff will be subject to the same action again.
Because the Court finds Plaintiff's claims for injunctive and declaratory relief are moot, the Court lacks jurisdiction over Counts One, ...