NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ____________

                             No. 16-1229
                            ____________

                      VICKIE JOY FETTERMAN,
 Administratrix of the Estate of Natalee Kay Mibroda, a minor decedent,
                                                              Appellant

                                   v.

       WESTMORELAND COUNTY CHILDRENS BUREAU;
WESTMORELAND COUNTY; DEANNA SUPANCIC, individually and as
       an employee of Westmoreland County Children’s Bureau;
       SHANNON HAYWOOD, individually and as a supervisor
  of Westmoreland County Children’s Bureau; CLAYTON MIBRODA;
       KAYLA JO LICHTENFELS; BETTY JO LICHTENFELS




            On Appeal from the United States District Court
                for the Western District of Pennsylvania
                (D. C. Civil Action No. 2-15-cv-00773)
            District Judge: Honorable Terrence F. McVerry



              Submitted under Third Circuit LAR 34.1(a)
                         on October 7, 2016

       Before: SHWARTZ, COWEN and ROTH, Circuit Judges


                    (Opinion filed: March 6, 2017)
                                   ________________

                                       OPINION*
                                   ________________


ROTH, Circuit Judge

       Vicki Joy Fetterman appeals the District Court’s order dismissing her Amended

Complaint with prejudice. For the reasons set forth below, we will affirm.

                                             I.

       The facts underlying this matter are complicated, and involve the tragic death of

Fetterman’s granddaughter Natalee. Natalee was born on December 7, 2011, six weeks

premature and with a severe opiate addiction as a result of her mother Kayla Jo’s chronic

drug use during pregnancy. Because of Natalee’s addiction, the hospital sent a social

worker to conduct a safety investigation at Kayla Jo’s residence. The investigation

concluded that Natalee would be at risk because Kayla Jo and Natalee’s father Clayton

“cannot or will not control their behavior.” Despite being advised of these findings, the

Westmoreland County Children’s Bureau (WCCB) took no action, and Natalee was

released into her parents’ custody on December 9, 2011. The next day, Kayla Jo gave

Natalee to Fetterman, although no formal legal guardianship was established. Three days

later on December 12, defendant Deanna Supancic visited the residence of Kayla Jo and

Clayton in her capacity as a case worker with WCCB. During this visit, she learned that

Clayton was on probation, that there were previous reports of domestic violence

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
involving Kayla Jo and Clayton, and that Indiana County Children and Youth Services

(ICCYS) had previously investigated Kayla Jo and Clayton about their other child,

Caden.

         An ICCYS case worker visited Fetterman on December 13 and instructed

Fetterman not to return Natalee to Kayla Jo and Clayton. The ICCYS caseworker

expressed concern to Supancic that same day, noting that “risk may be higher if child was

with natural parents.” These concerns were echoed by Fetterman who called and left

numerous messages for Supancic and her supervisor, defendant Shannon Haywood,

expressing concern that Natalee would be at risk if returned to Kayla Jo and Clayton.

Although Supancic did not return these calls, she made notes of these concerns in her

files. In addition, Natalee’s pediatrician called and spoke with both Supancic and

Haywood and voiced his concerns about Natalee’s health and safety. On December 15,

2011, Supancic directed Fetterman to return Natalee to Kayla Jo and Clayton, which

Fetterman did that evening.

         WCCB made no efforts to check in on Natalee immediately after her return to her

parents, despite numerous concerned calls from Fetterman. Twelve days later, on

December 27, Natalee died as a result of multifocal blunt force head trauma which

resulted in subdural and bilateral hemorrhaging. The autopsy also revealed numerous

broken bones and other injuries.

         Fetterman commenced the instant suit against WCCB 1 on May 28, 2015, and


1
 The original complaint also included claims against Kayla Jo and Clayton, and against
Natalee’s other grandmother. Those claims were subsequently remanded to state court.
                                             3
amended her complaint to add Haywood, Supancic, and the County as defendants on

September 10, 2015. On January 6, 2016, upon the defendants’ motion, the District

Court dismissed the suit against Haywood and Supancic as untimely, and determined that

the Supreme Court’s decision in DeShaney v. Winnebago County Department of Social

Services2 precluded recovery against the County. This appeal followed.

                                            II.3

       Fetterman appeals both rulings of the District Court, arguing that the Amended

Complaint “relates back” to the original complaint under Rule 15 of the Federal Rules of

Civil Procedure and that DeShaney is not controlling here because WCCB’s conduct

constituted a “state-created danger.” Both arguments are addressed below.

                                             A.

       We first address whether the District Court erred in finding the Amended

Complaint untimely with respect to Supancic and Haywood. In Pennsylvania, the statute

of limitations for claims brought pursuant to 42 U.S.C. § 1983 is two years, which begins

running when the plaintiff suffers an injury. 4 In order to add new parties to a timely

commenced action outside of this limitations period, an amended pleading must “relate

back” to the original pleading under Rule 15(c) of the Federal Rules of Civil Procedure. 5

An amended pleading that adds a new party “relates back” where, among other

2
  

(1989).
3
  The District Court had jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and
1367. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. We review de
novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6). Mandel v. M &
Q Packaging Corp., 

, 163 (3d Cir. 2013).
4
  Kach v. Hose, 

, 634 (3d Cir. 2009).
5
  Arthur v. Maersk, Inc., 

, 207 (3d Cir. 2006)
                                             4
requirements, “the party to be brought in by amendment . . . knew or should have known

that the action would have been brought against it, ‘but for a mistake concerning the

proper party’s identity.’”6

       The core of Rule 15’s relation back inquiry is “what the prospective defendant

knew or should have known” after the initial pleading was filed. 7 Thus, where a plaintiff

“plainly indicate[s] such a misunderstanding [as to the newly added defendant’s identity

or role],” an amended pleading may relate back for statute of limitations purposes. 8 On

the other hand, a plaintiff who “mak[es] a deliberate choice to sue one party instead of

another while fully understanding the factual and legal differences between the two

parties” will be barred from asserting her claims against the new defendant. 9

       Here, the District Court found that the Amended Complaint did not adequately

relate back under Rule 15 with respect to defendants Supancic and Haywood.

Specifically, it noted that Fetterman’s original complaint alleged substantially all of

Supancic and Haywood’s conduct, yet failed to include them as defendants. In the

absence of any evidence that Fetterman made a mistake as to the legal or factual

circumstances surrounding Supancic and Haywood’s involvement in Natalee’s death, the

District Court drew the reasonable inference that Fetterman made the conscious decision

to only sue WCCB.

6
  

R. CIV. P. 15(c)) (emphasis added).
7
  Krupski v. Costa Crociere S. p. A., 

, 548 (2010) (emphasis in original).
8
  

9
  

accord Garvin v. City of Philadelphia, 

, 221-22 (3d Cir. 2003)
(“Of course, an amended complaint will not relate back if the plaintiff had been aware of
the identity of the newly named parties when she filed her original complaint and simply
chose not to sue them at that time.”).
                                              5
       Fetterman argues on appeal that she made no such deliberate choice, but alleges no

facts indicating that the failure to include Supancic and Haywood in the initial complaint

was the result of a mistake as to identity. In the continued absence of any evidence that

Fetterman was operating under a mistaken factual or legal premise at the time she filed

the initial complaint, we will affirm the District Court’s finding that the Amended

Complaint does not relate back with respect to Supancic and Haywood. 10

                                             B.

       We turn next to whether the District Court erred in treating DeShaney v.

Winnebago County Department of Social Services as controlling. In DeShaney, the

mother of a child who was repeatedly abused by his father for years brought suit against

the municipal social services agency, alleging that the municipality’s failure to respond to

numerous reports of abuse from neighbors, family members, and doctors violated the

child’s due process rights. In rejecting the mother’s claims, the Supreme Court held that,

as a general matter, the Fourteenth Amendment imposes no affirmative obligation on

states to intervene to protect private citizens from private violence. 11 A narrow exception

to this general rule does exist, however, under the “state-created danger” theory, which

allows a claim to proceed “when the state acts in a way that makes a person substantially


10
   Fetterman dedicates a large portion of her briefing to the question of whether Supancic
and Haywood had constructive notice of the initial complaint. However, the question of
notice is entirely separate from that of whether the failure to include a party was the result
of a mistake. See 

(noting that the “notice” and “mistake”
requirements are separate for Rule 15 purposes). Because we affirm the District Court’s
analysis as to the “mistake” element, we need not determine whether any of Fetterman’s
arguments about notice have merit.

.
                                              6
more vulnerable to injury from another source than he or she would have been in the

absence of the state intervention.” 12 To make out a case for such liability, a plaintiff must

establish: (1) the harm suffered was foreseeable and fairly direct, (2) a state actor acted

with a degree of culpability that “shocks the conscience”, (3) the existence of a special

relationship between the state and the victim, and (4) the affirmative use of authority in a

way that created the danger or made the victim more vulnerable to danger.13

       The District Court found no meaningful distinction between the instant case and

DeShaney, holding that Fetterman had failed to allege any affirmative exercise of

authority by WCCB or the County which “shocks the conscience.” We agree. Fetterman

alleges that WCCB and the County failed to respond to numerous complaints and reports

explaining the danger that Natalee faced with her parents. Fetterman also alleges that

Supancic affirmatively ordered Fetterman to return Natalee to her parents. These actions

clearly do not shock the conscience; indeed, they do not even rise to the level of the

municipality’s conduct in DeShaney, which the Supreme Court characterized as merely

negligent.14 In DeShaney, the county ignored numerous reports of actual abuse—

compared to the mere risk of abuse at issue here—and affirmatively exercised its

authority to return the child to his abusive father even after a court order for the child’s

removal from the home. In the absence of more egregious conduct on the part of the

County or WCCB, we will affirm the District Court’s determination that DeShaney is

12
   Schieber v. City of Philadelphia, 

, 416 (3d Cir. 2003).
13
   Bright v. Westmoreland Cnty., 

, 281 (3d Cir. 2006).
14
   

(“The most that can be said of the state functionaries in this
case is that they stood by and did nothing when suspicious circumstances dictated a more
active role for them.”).
                                               7
controlling and that the state-created danger exception does not apply.

                                             III.

       While we are sympathetic to the horrible circumstances surrounding Fetterman’s

loss, we are not free to ignore clear, binding precedent from the Supreme Court of the

United States even in such emotionally charged cases. Because we find that the District

Court correctly applied Rule 15 to dismiss defendants Supancic and Haywood, and

properly treated DeShaney as controlling to dismiss WCCB and the County, we will

affirm the judgment of the District Court.




                                              8