The opinion of the court was delivered by: Judge Nora Barry Fischer
This civil rights action arises from the tragic death of minor MJP on June 6, 2008 at a privately owned day care facility. (Docket No. 20). Her mother and the executrix of her estate, Rhonda Moore, initiated the present action against state officials Estelle Richman, Harriet Dichter, Todd Klunk, Jennifer Lau, Michael Rodden, and Joni Ricketts (collectively, the "Named Defendants") seeking to recover for MJP‟s untimely death. (Id.). She invokes 42 U.S.C. § 1983 and claims that said state officials violated MJP‟s due process rights. (Id.). Plaintiff seeks damages against said state officials in their individual capacities under a "state-created danger" theory. (Id.). The Named Defendants have moved to dismiss Plaintiff‟s Amended Complaint, arguing that Plaintiff‟s claims fail as a matter of law and must be dismissed. (Docket Nos. 21, 22). The motion has been fully briefed and the Court heard oral argument from counsel on February 16, 2011. (Docket Nos. 21, 22, 23, 24). Upon consideration of the parties‟ positions, and for the following reasons, the Named Defendants‟ Motion  is granted and Plaintiff‟s Amended Complaint is dismissed, with prejudice.
A.Allegations in Plaintiff's Complaint
Bray‟s Family Day Care Center was a privately owned family day care center operated by proprietor Loretta C. Bray in her home at 5113 Dearborn Street, Pittsburgh, PA 15224. (Docket No. 20 at ¶ 17). Bray‟s daughter, Ashley Swann, also worked at the day care center and lived in her mother‟s home. (Id.). Day care services were provided in the family room basement of the home and the children were all housed together in that room during the day. (Id. at ¶ 30). Thus, the children were not grouped together and/or separated based upon their ages. (Id.).
Plaintiff Rhonda Moore took her 10-month old daughter, decedent MJP, to the day care center on occasion. On, June 6, 2008, Moore dropped off MJP at the day care center. (Id. at ¶ 27). Ms. Bray and Ms. Swann were both working at the day care center and six children were present on that day. (Id. at ¶¶ 28, 29). The ages of these children varied; MJP was the youngest child at 10 months and the oldest child was Bray‟s granddaughter KBT,*fn2 who was 7 years old. (Id. at ¶ 29). Swann‟s son was one of the children who were present. (Id. at ¶ 32). Both Bray and Swann had concerns regarding anger management issues of KBT and her prior conduct toward MJP. (Id. at ¶ 36).
At around 10:00 a.m. on June 6, 2008, Bray left the facility, leaving Swann as the sole provider of care for the six (6) children. (Id. at ¶ 31). Shortly thereafter, Swann left the basement family room with her son and proceeded to the third floor of the home, leaving the remaining five (5) children unsupervised in the basement. (Id. at ¶ 32). Swann was unable to see or hear the children from the third floor because the day care center did not have sound and/or camera observation capabilities. (Id. at ¶ 33, 34).
Swann returned to the basement around 12:00 p.m. and found MJP unresponsive and bleeding and she observed evidence of bruising. (Id. at ¶ 34). Swann immediately contacted Pittsburgh‟s 911 Call Center and emergency responders appeared and transported MJP to UPMC Children‟s Hospital. (Id. at ¶ 35). Medical professionals were unable to revive MJP and she was pronounced dead at UPMC Children‟s. (Id. at ¶ 36). "Examination of the Decedent by the staff of Children‟s Hospital and subsequently by the Medical Examiner of Allegheny County established that the Decedent sustained blunt force trauma to her head and abdomen; that she had suffered a fracture of the distal right radius; a skull fracture; and, had suffered multiple bruises and abrasions, all of which were said to have been caused by the actions of [KBT], who was seven (7) years of age." (Id.).
In order to operate, the day care center acquired a certificate of registration from the Commonwealth of Pennsylvania. The Pennsylvania Department of Public Welfare is tasked with the certification and/or licensing of child day care centers and family child day care homes throughout the Commonwealth. See 55 Pa.Code § 3270.1 et seq. Within the Department of Public Welfare, the Office of Child Development and Early Learning oversees the licensing, certifications and inspections of child day care centers and family child day care homes. (Docket No. 20 at ¶ 8). The actual inspections and certifications/licenses are issued by the Bureau of Certification Services of the Office of Child Development and Early Learning from one of its four regional offices. (Id. at ¶ 10). The regional office in the Pittsburgh area is the Southwest Regional Office. (Id.).
The Named Defendants are currently or were employed by the Commonwealth at one of these state entities. (Id. at ¶¶ 3-12). Estelle Richman was the Secretary of the Pennsylvania Department of Public Welfare from 2003 through December 31, 2009. (Id. at ¶ 4). Harriet Dichter was named acting Secretary of the Pennsylvania Department of Public Welfare on December 31, 2009 and was named Secretary in April of 2010. (Id. at ¶ 5). Ms. Dichter is also named as a defendant based on her role as former Deputy Secretary of the Pennsylvania Department of Public Welfare, Office of Child Development and Early Learning, a position which she held from 2004 through December 31, 2009. (Id. at ¶ 6). Todd Klunk is named as a defendant as the acting Deputy Secretary of the Office of Child Development and Learning. (Id. at ¶ 7). Jennifer Lau is the Director of the Bureau of Certification Services of the Office of Child Development and Early Learning. (Id. at ¶ 9). Michael Rodden was an inspector with the Southwest Regional Office from around 2008 through 2010. (Id. at ¶ 11). Joni Ricketts is also an inspector with that office. (Id. at ¶ 12).
Plaintiff avers that Rodden and Ricketts "inspected Bray‟s Family Day Care in connection with the initial granting of a certificate of registration for the operation of such entity and/or thereafter in connection with periodic inspections or another renewal of the certificate of registration." (Id. at ¶¶ 11, 12).
As noted, the Commonwealth has codified regulations governing the operation and licensing requirements for family child day care homes at 55 Pa.Code. § 3290, et seq. The stated purpose of the regulations "is to provide standards to aid in protecting the health, safety and rights of children and to reduce the risks to children in family day care homes" and the regulations identify the "minimum level of compliance necessary to obtain the Department‟s certificate of registration." 55 Pa.Code § 3290.2. A "family child day care home" is a "[a] home other than the child‟s own home, operated for profit or not-for-profit, in which child day care is provided at any one time to four, five or six children unrelated to the operator." 55 Pa.Code. § 3290.4. The Department of Public Welfare has the authority to deny the issuance of a certificate of registration or to revoke a previously issued certificate due to an individual‟s or facility‟s failure to comply with the requirements of section 3290. See 55 Pa.Code § 3920.12.
Plaintiff claims that a number of these requirements were violated by Bray‟s Family Day Care, including the following. All staff personnel must meet certain age requirements and must complete a minimum number of hours of approved training. 55 Pa.Code § 3290.31. The maximum number of children in care at a family child day care center cannot exceed six (6) children at any one time who are unrelated to the operator. 55 Pa.Code § 3290.51. In addition, The operator may provide care to no more than five related and unrelated infants and toddlers at any one time. No more than two related and unrelated infants may receive care at any one time. The following numbers of infants and toddlers are permitted in a family day care home:
(1) If no infants are in care, five toddlers are permitted.
(2) If one infant is in care, four toddlers are permitted.
(3) If two infants are in care, three toddlers are permitted. 55 Pa.Code. § 3290.52. An "infant" is defined as "a child from birth to 1 year of age." 55 Pa.Code § 3290.4. A "young toddler" is "a child from 1 to 2 years of age." 55 Pa.Code § 3290.4. An "older toddler" is defined as "a child from 2 to 3 years of age." 55 Pa.Code § 3290.4.
The regulations further provide that "children on the facility premises . shall be supervised by a staff person at all times." 55 Pa.Code § 3290.113. To supervise is "to be present in the child care facility with the children or with the facility person under supervision. Supervision is critical oversight in which the supervisor can see, hear, direct and assess the activity of the supervisee." 55 Pa.Code § 3290.4. Operators are also required to maintain comprehensive general liability insurance to cover the individuals on the premises, but the registration does not specify minimum coverage requirements. 55 Pa.Code § 3270.18.
Plaintiff has not sued Bray, Swann or Bray‟s Family Day Care in this action.*fn3 (See Docket No. 20). Instead, she claims that the injuries to her daughter, MJP, and damages sustained were proximately caused by the negligence, gross negligence, or willful misconduct of the Named Defendants in violation of MJP‟s constitutional rights. (Id. at ¶¶ 70-75). Specifically, Plaintiff alleges that the Named Defendants failed to promulgate effective regulations to insure that: children were protected from harm; the day care center was timely inspected; regulations concerning staff ratios, training and grouping of children were enforced; and children were properly supervised. (Id.). Plaintiffs also complain that the Named Defendants failed to discover the alleged deficiencies at Bray‟s Family Day Care prior to MJP‟s death. (Id.).
Plaintiff filed her initial complaint in this action on June 6, 2010. (Docket No. 1). Plaintiff sued not only the Named Defendants but also the Commonwealth of Pennsylvania, the Department of Public Welfare and each of the other state entities referenced in her Amended Complaint. (Id.). She advanced claims under §1983 asserting violations of MJP‟s constitutional rights seeking damages and injunctive relief as well as claims of wrongful death and survival under Pennsylvania law against these defendants. (Id.). Defendants filed a motion to dismiss Plaintiff‟s Complaint on November 10, 2010. (Docket Nos. 10, 11). In response, Plaintiff conceded that many of the Defendants‟ arguments were meritorious and agreed to dismiss certain claims, but also sought leave to amend her complaint. (Docket Nos. 14, 16).
Upon consideration of these arguments, the Court granted, in part and denied, in part, Defendants‟ motion to dismiss. (Docket No. 17). The Court further ordered the following: (1) Plaintiff‟s claims against Defendants, the Commonwealth of Pennsylvania; the Pennsylvania Department of Public Welfare; Office of Child Development and Early Learning; Bureau of Certification Services, Office of Child Development and Early Learning; Southwest Regional Office, Bureau of Certification Services, Office of Child Development and Early Learning were dismissed, with prejudice given that these entities were entitled to immunity under the Eleventh Amendment and were not "persons" subject to suit under 42 U.S.C. § 1983; (2) Plaintiff‟s claims against the Named Defendants, sued in their official capacities and requesting any form of monetary relief, were dismissed, with prejudice; (3) Plaintiff‟s claims asserted under Pennsylvania‟s Wrongful Death and Survival statutes were dismissed, with ...