The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Arthur Nelson IV and Marie Nelson bring this civil rights action pursuant to 42 U.S.C. § 1983 on behalf of minors D.N. and S.N.*fn1 The complaint raises claims under three doctrines of due process liability: the special relationship theory, the state-created danger theory, and the Monell theory of municipal liability. Defendants have filed a motion to dismiss, arguing that the complaint fails to state a claim upon which relief may be granted. (Doc. 13.) For the reasons that follow, the motion will be granted in part and denied in part.
I. Statement of Facts*fn2
Plaintiffs Arthur Nelson IV ("Arthur") and Marie Nelson ("Marie") are the adoptive parents of plaintiffs D.N. and S.N., both of whom are currently seven years old. (Doc. 1 ¶¶ 1-2, 4-5.) Defendant Kevin Snyder ("Snyder") is the chief of police for North Londonderry Township (the "Township"), and Gordon Watts ("Watts") is the Township Manager. (Id. ¶¶ 7-8.) The Township is also named as municipal defendant. (Id. ¶ 9.) Michael Fernsler ("Fernsler") is not a defendant in this action, but his alleged criminal misconduct lies at the heart of the injuries plaintiffs claim to have suffered.
In March 2005, Fernsler was employed as a police officer by the North Londonderry police department. (Id. ¶ 14.) When Fernsler entered the office on March 3, he learned that his computer had been removed by police personnel for examination. (Id. ¶ 15.) Fernsler apparently began to panic and he immediately sought the counsel of Jerry Cassel ("Cassel"), a fellow police officer who also served as president of the North Londonderry Township Police Officer's Association. (Id. ¶ 16.) Fernsler explained that he was using the computer to view child pornography. (Id. ¶ 28.) Cassel was understandably concerned by this disclosure, and on March 7, he approached Snyder and relayed Fernsler's revelation. (See id. ¶¶ 29-30.) Snyder allegedly replied that "if Fernsler had confessed to viewing child pornography, the Township would have to act." (Id. ¶ 31.) After his meeting with Cassel, Snyder contacted Watts to debrief him on the situation. (See id. ¶¶ 34-35.) Later that evening, Snyder contacted Cassel and stated that Fernsler's termination "was a done deal." (Id. ¶ 34.)
Fernsler and Cassel met with Snyder and Watts on March 8, 2005. (Id. ¶ 36.) Watts allegedly presented Fernsler with a termination agreement, under which Fernsler assented to resign from the department and the Township agreed to provide Fernsler's prospective employers with neutral employment references. (Id. ¶ 36.) Furthermore, the department agreed to take no action with respect to the pornographic images purportedly contained within the seized computer's hard drive; the department would not investigate the matter, and the contents of the computer would remain unexamined. (See id. ¶¶ 36-37.) Fernsler accepted these terms, signed the agreement, and thereafter resigned from his position with the department. (Id. ¶ 36.) Plaintiffs claim that defendants later destroyed the hard drive of Fernsler's computer. (Id. ¶ 37.)
Aside from Fernsler's admission regarding the child pornography, the complaint contains two critical allegations regarding Snyder and Watts' knowledge at the time that the agreement was executed. First, both defendants allegedly knew that Fernsler recently applied to become a foster parent with the Pennsylvania Department of Welfare. (See id. ¶¶ 41, 52.) Second, Snyder and Watts purportedly were aware that Fernsler possessed a history of domestic violence. (Id. ¶¶ 23, 42.) According to the complaint, defendants nonetheless agreed to cover up Fernsler's misconduct. (Id. ¶ 82.) When the chief of the Annville Township police department contacted Cassel requesting information regarding Fernsler's employment, Snyder purportedly instructed Cassel "not to release any information about Fernsler." (Id. ¶¶ 43, 46.) Shippensburg University contacted Snyder at some point prior to March 2006 and, true to the termination agreement, Snyder allegedly provided nothing more than the duration of Fernsler's employment. (Id. ¶ 63.)
On March 23, 2006-one year after Fernsler admitted to defendants that he was viewing child pornography on a department computer-Fernsler sexually assaulted D.N. and S.N. (Id. ¶ 1.) At the time, D.N. and S.N. were four years old and dependents of the Pennsylvania Department of Welfare. (Id. ¶¶ 1-2; 52.) Both minors were under the immediate care of Arthur and Marie, who were their foster parents at the time. (Id. ¶¶ 54-55.) Fernsler was the acting foster parent to D.N. and S.N.'s biological brothers. (Id. ¶ 53.) On the day of the assault, Fernsler brought his two boys to Arthur and Marie's home, ostensibly to visit their sisters. (See id.) Shortly after the assault, Fernsler was arrested and, on August 10, 2007, he pled guilty to involuntary deviate sexual intercourse, indecent assault, corrupting the morals of a minor, and unlawful contact with a minor. (Id. ¶ 71.)
On March 21, 2008, plaintiffs commenced the instant action by filing a complaint with this court. (Doc. 1.) Plaintiffs allege that defendants are responsible for the violation of D.N. and S.N.'s rights to substantive due process. The complaint advances three potential theories of civil rights liability: (1) the special relationship theory, (2) the state-created danger theory, and (3) the Monell theory of municipal liability. On May 21, 2008, defendants filed a motion to dismiss the complaint for failure to state a cognizable cause of action. (Doc. 13.) The motion has been fully briefed and is ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "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 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
Section 1983 affords a right to relief where official action causes a "deprivation of rights protected by the Constitution." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). The statute is not an independent source of substantive rights, but merely "provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws." Kopec v. Tate, 361 F.3d 772, 775-76 (3d Cir. 2004); see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002). To establish a claim under § 1983, the plaintiff must demonstrate (1) the deprivation of a constitutional right, and (2) that a "person acting under the color of ...