The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Plaintiffs, Eric M. Betts ("Eric") and his mother Susan Betts ("Mrs. Betts")(collectively "Plaintiffs"), filed the instant action pursuant to 42 U.S.C. § 1983, alleging violations of their rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States by Defendants, the New Castle Youth Development Center (the "YDC"), Kenneth Went ("Went"), Charles Mitcham ("Mitcham"), David Tomocheck ("Tomocheck"), Omar Stewart ("Stewart"), Willia Blue ("Blue"), and Tammy A. Odem ("Odem")(collectively "Defendants"). The Defendants have filed a motion for summary judgment, the Plaintiffs have responded and the matter is now before the Court.
II. STATEMENT OF THE CASE
The YDC at New Castle, Pennsylvania is one of several facilities in the Pennsylvania Department of Welfare's Bureau of Juvenile Justice Services (the "BJJS") which is conducted for youths who have been adjudicated delinquent and committed to the care and custody of the BJJS by Pennsylvania Juvenile Courts. Defendants' Concise Statement of Undisputed Material Facts (hereinafter "Def. CSUMF") ¶ 1. Pursuant to an Order by the Court of Common Pleas of Allegheny County, Pennsylvania, Eric was committed to the YDC's Secure Treatment Program in February of 2006. Def. CSUMF ¶ 2. The Secure Treatment Program is a maximum security program for males adjudicated delinquent for serious offenses. Def. CSUMF ¶ 3. The Secure Treatment Program has eleven (11) youth development aides ("YDAs"), three (3) counselors, a counselor supervisor, two (2) managers and a director. Plaintiffs' Statement of Material Facts (hereinafter "Pl. SMF") ¶ 2. During Eric's confinement, Mitcham was the Director of the Secure Treatment Program. Id.
At the YDC at New Castle, there are five (5) cottages within the Secure Treatment Program with approximately fifteen (15) or sixteen (16) residents per cottage. Def. CSUMF ¶ 4. The counselors and YDAs worked in the residential cottages, and were required to accompany the residents at all times. Pl. SMF ¶ 2; Def. CSUMF ¶ 7. Eric was assigned to cottage 2B and defendant Stewart was his counselor. Def. CSUMF ¶ 5. On weekends, Eric and the other residents had "free time" after they were finished with morning chores, and they were free to decide what they wanted to do with their time - watch television, participate sports activities, etc. - but YDC staff had to be present. Def. CSUMF ¶¶ 8 & 9. The residents had access to indoor and outdoor basketball courts, several gyms, weight training equipment, a swimming pool and a fairly large grass field between cottages 2A and 2B (the "Field") for football or other activities. Def. CSUMF ¶ 10. The Field was visible from inside cottages 2A and 2B, and could be partially seen from Director Mitcham's office. Pl. SMF ¶ 3; Def. Response to Pl. SMF (Def. Resp.") ¶ 3.
On Saturday, April 29, 2006, the residents of 2B asked the staff to allow them to play football in the Field behind the cottages. Def. CSUMF ¶ 18. The staff agreed, and at about 9:15 a.m., ten (10 residents including Eric went out to the Field. Def. CSUMF ¶ 20. Because the YDC requires a ratio of one (1) staff member to six (6) residents, two (2) staff members, Blue and Odem, went outside with the boys playing football, and one (1) staff member, Stewart, remained inside the cottage with the five (5) or six (6) residents who were not playing. Def. CSUMF ¶¶ 22, 23 & 24. The football game was organized such that one team was made up of residents from Philadelphia and the other team consisted of residents from Pittsburgh. Deposition of Rajhib Hankerson ("Hankerson Dep.") p. 14; Deposition of Diante Wilson ("Wilson Dep.") pp. 11-12. As was normally the case when the residents played football, it was a game of tackle football. Hankerson Dep. pp. 11-16; Wilson Dep. pp. 10-12.
During the game, Eric ran down field during a kick-off*fn1 , collided with another resident who had picked up the ball, fell to the ground and was unable to get up. Pl. SMF ¶¶ 10 & 11. Eric was transferred by ambulance to a local hospital where a medical helicopter was waiting to take him to St. Elizabeth's Hospital in Youngstown, Ohio. Def. CSUMF ¶ 44. Eric suffered spinal cord injuries resulting in quadriplegia. Complaint ¶ 25.
III. LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to FED. R. CIV. P 56(c), summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).
A. Eleventh Amendment Immunity
Defendants argue that YDC and the individual defendants acting in their official capacities as employees of a state agency are protected by sovereign immunity. Generally, states are immune from suit by private parties in the federal courts. The Eleventh Amendment of the United States Constitution provides: "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Eleventh Amendment, therefore, bars the federal courts from entertaining suits by private parties against states, state agencies, and state officials and employees acting in their official capacities, unless the state has consented to the filing of such suit. See e.g., Edelman v. Jordan, 415 U.S. 651, 662, (1974); Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 238 (3d Cir. 2005); Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3d Cir. 1981).
The Commonwealth of Pennsylvania has not expressly waived its rights under the Eleventh Amendment. See 42 PA. CONS. STAT. ANN. § 8521(b) ("Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States."). The Pennsylvania Department of Public Welfare (the "DPW") is an agency that does not have an existence apart from the state and is thus entitled to Eleventh Amendment protection. See 71 PA. CONS. STAT. ANN. § 61 (establishing the Department of Public Welfare as an administrative department of the Commonwealth). See also Nelson v. Pennsylvania Dept. of Public Welfare, 244 F. Supp. 2d 382, 390 (E.D. Pa. 2002). Plaintiff agrees that the YDC is ...