Opinion
CASE NO.: 1:19-CV-45 (LAG)
2021-03-24
Alexandria THOMPSON, Plaintiff, v. ALBANY AREA COMMUNITY SERVICE BOARD d/b/a ASPIRE and Eric Wimberly, Defendants.
F. Sean Simmons, Waycross, GA, Brent Savage, Savannah, GA, for Plaintiff. Annarita L. McGovern, Terry Lynn Long, Alpharetta, GA, Loretta L. Pinkston-Pope, Department of Law, Atlanta, GA, for Defendant Albany Area Community Service Board. Paul A. Henefeld, Atlanta, GA, for Defendant Eric Wimberly.
F. Sean Simmons, Waycross, GA, Brent Savage, Savannah, GA, for Plaintiff.
Annarita L. McGovern, Terry Lynn Long, Alpharetta, GA, Loretta L. Pinkston-Pope, Department of Law, Atlanta, GA, for Defendant Albany Area Community Service Board.
Paul A. Henefeld, Atlanta, GA, for Defendant Eric Wimberly.
ORDER
LESLIE A. GARDNER, JUDGE Before the Court are Defendants Albany Area Community Service Board (ASPIRE) and Eric Wimberly's (Wimberly) motions to dismiss Plaintiff's Amended Complaint. (Docs. 30, 33, 34). For the reasons articulated below, both motions are GRANTED in part and DENIED in part .
BACKGROUND
Plaintiff Alexandria Thompson initiated this action against Defendants. (Doc. 1). ASPIRE operates Touchstone Dual Diagnosis Residential Program (Touchstone), which provides treatment for adults experiencing co-occurring mental health and addictive disease challenges. (Id. ¶ 9). Wimberly was employed at ASPIRE as a Health Services Technician at all times relevant to the Complaint. (Id. ¶ 11). The action relates to Plaintiff's encounter with Wimberly while participating in Touchstone. (Id. ¶ 10). Plaintiff was court-mandated to complete the Touchstone program and admitted to the Touchstone facility around October 19, 2017. (Id. ). She alleges that Wimberly began making inappropriate comments and physical contact with her shortly after she was admitted. (Id. ¶ 11). Plaintiff further contends that, around November 2017, Wimberly began "using his power and authority to threaten and coerce [her] to engage in sexual activities with him at the ASPIRE Touchstone facility." (Id. ¶ 12). Plaintiff alleges these threats and coercion continued for approximately three weeks. (Id. ¶ 13). During this period, Plaintiff contends that Wimberly took Plaintiff into a closet and committed rape, sexual battery, assault, and sexual harassment on two separate occasions. (Id. ¶ 14). She alleges Wimberly told her that he has some control over whether an individual at the facility completes their program. (Id. ¶ 15). Plaintiff claims she has experienced mental anguish, humiliation, and physical and mental pain and suffering due to the actions and omissions by both Defendants. (Id. ¶ 18). She asserted the following counts in her original Complaint:
1. negligence against Wimberly;
2. intentional infliction of emotional distress against Wimberly;
3. assault against Wimberly;
4. battery against Wimberly;
5. negligence against ASPIRE;
6. negligent training and supervision against ASPIRE;
7. respondeat superior against ASPIRE;
8. liability for unconstitutional protocol, policies, practice, custom and usage and/or procedures under 42 U.S.C. § 1983 against ASPIRE;
9. violation of substantive due process rights under the Fourteenth Amendment in violation of § 1983 against Wimberly;
10. pain and suffering against both Defendants;
11. punitive damages against both Defendants; and
12. attorney's fees and expenses against both Defendants. (Id. ).
ASPIRE filed a motion to dismiss. (Doc. 9). ASPIRE also filed a motion to stay on the grounds that its motion to dismiss is potentially dispositive of all legal issues. (Doc. 13 ¶¶ 1, 4). Plaintiff then filed a motion to amend her Complaint, seeking to do the following:
• add facts concerning a prior incident at ASPIRE's facility involving inappropriate staff boundaries and threats Wimberly allegedly made to Plaintiff;
• clarify that her intentional infliction of emotional distress claim relates to threats made by Wimberly, not the sexual assault;
• attach a certificate of compliance with O.C.G.A. § 50-21-35 ; and
• clarify that (1) community service boards are public entities and instrumentalities of Georgia, and (2) Plaintiff does not allege or concede that Eleventh Amendment immunity applies to ASPIRE. (Doc. 18 at 2–3; see also Doc. 30).
The Court granted Plaintiff's motion to amend and ASPIRE's motion to stay and denied as moot ASPIRE's motion to dismiss. (Docs. 28, 31). Defendants subsequently filed their respective motions to dismiss Plaintiff's Amended Complaint. (Docs. 33, 34). Plaintiff responded to both motions, and Defendants replied. (Docs. 35–38). The motions are ripe for review. See M.D. Ga. L.R. 7.3.
DISCUSSION
Wimberly argues that the Court should dismiss all of Plaintiff's claims against him because he is immune from all tort claims under O.C.G.A. § 50-21-25(a) and Plaintiff fails to state a due process claim under § 1983. (Doc. 33-1 at 6–8). Similarly, ASPIRE argues that O.C.G.A. § 50-21-24(7), the Eleventh Amendment, and qualified immunity bar Plaintiff's claims against it. (Doc. 34-1 at 7, 10, 19). ASPIRE also asserts that Plaintiff fails to identify a community service board policy or custom that creates liability under § 1983. (Doc. 37 at 5). Plaintiff concedes that O.C.G.A. § 50-21-25(a) and sovereign immunity respectively bar the state law claims against Wimberly and ASPIRE but argues her § 1983 claims against Defendants remain viable. (Doc. 35 at 1–2; Doc. 36 at 1). Plaintiff specifically contends that ASPIRE is not an arm of the state under the Eleventh Amendment, and the Fourteenth Amendment creates a due process right to be free from sexually motivated physical assaults by state actors acting within their official authority. (Doc. 35 at 3; Doc. 36 at 3).
The Court may dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). When addressing a motion to dismiss, the Court "construes the complaint in the light most favorable to the plaintiff and accepts all well-pleaded facts alleged [ ] in the complaint as true." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1260 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). This construction, however, does not apply to legal conclusions. Ashcroft , 556 U.S. at 678, 129 S.Ct. 1937. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). When evaluating the sufficiency of a complaint, the Court must "make reasonable inferences in Plaintiff's favor;" however, the Court is " ‘not required to draw plaintiff's inference[s].’ " Sinaltrainal , 578 F.3d at 1260 (quoting Aldana v. Del Monte Fresh Produce, N.A., Inc. , 416 F.3d 1242, 1248 (11th Cir. 2005) (per curiam)). "Generally, the existence of an affirmative defense will not support a motion to dismiss." Hunt v. Aimco Props., L.P. , 814 F.3d 1213, 1225 n.8 (11th Cir. 2016) (citations omitted). "In some cases, however, [a] complaint may be dismissed if an affirmative defense ... appears on the face of the complaint." Id. (citation and quotation marks omitted).
I. State Law Claims Against ASPIRE and Wimberly
Defendants argue that state sovereign immunity bars Plaintiff's state law claims. (Doc. 33-1 at 6; Doc. 34-1 at 3–4). Plaintiff concedes that her state law claims against ASPIRE are barred by sovereign immunity. (Doc. 35 at 1). She also concedes that Wimberly is immune from suit on the state law claims under the Georgia Tort Claims Act. (Doc. 36 at 1). Accordingly, Plaintiff has failed to state a claim for which relief can be granted with regard to Counts 1–7 and, to the extent they are raised under state law, Counts 10–12.
II. Section 1983 Claim Against ASPIRE
A. Eleventh Amendment Immunity
Plaintiff claims ASPIRE is liable under 42 U.S.C. § 1983 for maintaining unconstitutional protocol, policies, practice, custom, and usage and/or procedures and lack thereof, which constituted a deliberate indifference to her substantive due process rights under the Fourteenth Amendment. (Doc. 30 ¶ 67). ASPIRE argues that, as an arm of the state, the Eleventh Amendment bars this claim. (Doc. 34 at 2). The Parties dispute whether ASPIRE is an arm of the state. (See id. ; Doc. 35 at 2).
The Eleventh Amendment generally prevents citizens from suing their own state in federal court. Ala. St. Conf. of NAACP v. Alabama , 949 F.3d 647, 649 (11th Cir. 2020) (citation omitted). Although Congress can abrogate state immunity, "Congress has not abrogated eleventh amendment immunity in section 1983 cases." Carr v. City of Florence , 916 F.2d 1521, 1525 (11th Cir. 1990) (citing Quern v. Jordan , 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) ). "To receive Eleventh Amendment immunity, a defendant need not be labeled a ‘state officer’ or ‘state official,’ but instead need only be acting as an ‘arm of the State,’ which includes agents and instrumentalities of the State." Harris v. Univ. of Ala. , 792 F. App'x 713, 715 (11th Cir. 2019) (per curiam) (quoting Manders v. Lee , 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc)). "A defendant's status as an arm of the State ‘must be assessed in light of the particular function in which the defendant was engaged when taking the actions out of which liability is asserted to arise.’ " Miller v. Advantage Behavioral Health Sys. , 677 F. App'x 556, 559 (11th Cir. 2017) (per curiam) (quoting Manders , 338 F.3d at 1308 ) (citation omitted). After defining the relevant context, the Court weighs four factors to determine whether an entity is an "arm of the State": "(1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity." Id. (quoting Manders , 338 F.3d at 1309 ). "The entity invoking Eleventh Amendment immunity bears the burden of demonstrating that the ... factors weigh in its favor." Id. (citation omitted). "[A]n entity need not meet all four factors to be entitled to immunity." Harris , 792 F. App'x at 715 (citation omitted). While federal law ultimately governs whether Eleventh Amendment immunity applies, the analysis is guided by how state law treats a public entity. Miller , 677 F. App'x at 559 (citing Lightfoot v. Henry Cnty. Sch. Dist. , 771 F.3d 764, 769–71 (11th Cir. 2014) ).
Georgia has not waived its sovereign immunity under the Eleventh Amendment. O.C.G.A. § 50-21-23(b) ; Clarke v. McMurry , 763 F. App'x 899, 900 (11th Cir. 2019) (per curiam).
Here, Plaintiff's § 1983 claim arises from an alleged sexual assault by an ASPIRE employee in ASPIRE's facility. (Doc. 30 ¶¶ 65–68). Plaintiff appears to allege that Defendant's policies, procedures, and lack thereof constitute deliberate indifference to Plaintiff's Fourteenth Amendment substantive due process rights. (Id. ¶ 67). Specifically, Plaintiff alleges that Defendant's failure properly to investigate employees prior to hiring, failure properly to train employees and the failure properly to supervise employees resulted in the violation of Plaintiff's right to substantive due process. (Id. ¶ 68). Thus, the pertinent question is whether ASPIRE acts as an arm of the State in hiring and firing employees "in the ordinary course of business" and maintaining policies to train, supervise, and investigate their staff. Edenfield v. Gateway Behavioral Health Servs. , No. 2:16-cv-170, 2018 WL 6199685, at *4 (S.D. Ga. Nov. 18, 2018) (citation omitted); see also McMillian v. Monroe Cnty. , 520 U.S. 781, 785–86, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (citations omitted) (demonstrating that the relevant question is not whether defendant acts for the state "in some categorical, ‘all or nothing’ manner" but rather "in a particular area, or on a particular issue"); Manders , 338 F.3d at 1305, 1308–09 (defining sheriff's functions as "promulgating force policy and training and discipling deputies in that regard" where Plaintiff sued sheriff under § 1983 for injuries allegedly caused by the force policy and the sheriff's "failure to train and discipline his deputies in that regard"). The Court will review each of the Manders factors in this context.
1. State Law Definition of Community Service Boards
In Miller , the Eleventh Circuit analyzed the statutory language regarding community service boards and Georgia case law interpreting the statutes when considering the first Manders factor. See Miller , 677 F. App'x at 560–65. The Miller Court first considered the statutory language which states that community service boards " ‘shall be considered public agencies’ " and " ‘shall not be considered agencies of the state,’ [but] shall ‘have the same immunity as provided for counties.’ " Id. at 559–60 (first quoting O.C.G.A. § 37-2-6(a) ; and then quoting O.C.G.A. § 37-2-11.1(c)(1) ). The Court of Appeals then considered Youngblood v. Gwinnett Rockdale Newton Community Service Board , 273 Ga. 715, 545 S.E.2d 875 (2001), in which the Georgia Supreme Court "unambiguously held that [community service boards] are arms of the State for purposes of State constitutional immunity[.]" Id. at 560 (citing Youngblood , 545 S.E.2d at 877, 877 n.2 ). Ultimately, the Miller court held, "[the] effect of Youngblood in our analysis is to tip the balance toward a finding that Georgia state law views [community service boards] as arms of the State." Id.
ASPIRE, like the community service board at issue in Miller , provides mental health and substance abuse treatment services in Georgia. It is constituted under the same statute, O.C.G.A. § 37-2-6, and is governed accordingly. There is, thus, no meaningful distinction between ASPIRE and Advantage. Considering the well-reasoned decision in Miller , the Court finds that Georgia state law views community service boards as arms of the state for analysis of the Manders factors. As did the Miller Court, the Court "reserve[s] [its] analysis of the practical function of community service boards under the state's statutory scheme for the remaining Manders factors." Id. at 560.
2. Degree of Control
"The second Manders factor requires [the Court] to determine the degree of control the State maintains over the activity from which the defendant's alleged liability arises." Id. Thus, the relevant question is whether Georgia exerts "meaningful control" over ASPIRE's hiring and firing decisions "in the ordinary course of business" and over ASPIRE's policies regarding training, supervising, and investigating their staff. Id. "As a general matter, [community service boards] in Georgia are managed at the local level and without significant state involvement." Id. at 561. The communities served by each community service board appoint members to a local governing board, which controls the operations of the community service board. Id. (citing O.C.G.A. § 37-2-6(b) ). "While state law defines the mechanism by which Board members are appointed and provides guidance regarding the selection of members, the State is not entitled to oversee or control the appointment process in any capacity." Id. (citing O.C.G.A. §§ 37-2-6(b)(1), 37-2-6(c) ). This limited authority also applies to state regulatory agencies. Although the Commissioner of the Department must approve of the appointment and compensation of the community service board's Executive Director, "the Governing Board retains sole authority to remove and replace the Director." Id. (citing O.C.G.A. §§ 37-2-6.1(a)(1), 37-1-1(3) ). Moreover, "[t]he State has no authority to review staff hiring or firing activity or to alter the [community service board]’s provision of compensation or benefits." Id. "Nor is the State empowered to train, discipline, or terminate [community service board] staff, to dismiss a community service board Executive Director, or to replace locally appointed Governing Board members." Id. (citing Lake v. Skelton , 840 F.3d 1334, 1343 (11th Cir. 2016) ).
Georgia does not exercise meaningful control over ASPIRE's hiring, firing, training, supervision, or investigation of staff. ASPIRE points to O.C.G.A. §§ 37-1-20(26), 37-2-6.1(b)(3) and (i) and the Department's policies 13-201, 13-208, and 4-118 to show that Georgia exercises meaningful control over it. (Doc. 34-1 at 13). These statutes and policies, however, create only minimal standards and authorize state involvement under narrow circumstances relating to community service boards’ fiscal management, range of services provided, and investigations of misconduct.
Regarding fiscal management, O.C.G.A. § 37-1-20(26) requires the Department to "[e]stablish policies and procedures governing fiscal standards and practices of community service boards and their respective governing boards." See also O.C.G.A. § 37-1-1(7) (defining "Department" as the Department of Behavioral Health and Developmental Disabilities). Additionally, O.C.G.A. § 37-2-6.1(i) requires each community service board to "keep books of account reflecting all funds received, expended, and administered by the community service board in accordance with generally accepted accounting principles." Further, the Department's 13-208 policy provides that the Department will continuously monitor the fiscal stability of community service boards "against the risk of critical safety-net services interruptions." But these statutes do not mitigate the broad authority community service boards have to self-govern their fiscal management as evidenced by O.C.G.A. § 37-2-6.1(b)(2), which empowers the governing board of each community service board to "review and approve the annual budget of the community service board and ... establish the general policies related to such budget to be followed by the community service board." O.C.G.A. § 37-2-6.1(b)(4) and (9) also demonstrates that community service boards primarily govern their own fiscal management by permitting them to "make and enter into all contracts necessary and incidental to the performance of its duties and functions" and "establish and maintain a personnel program for its employees and fix the compensation and terms of compensation of its employees[.]"
Dep't of Behavioral Health & Development Disabilities , Community Service Board Risk Assessment, Mitigation and Intervention, 13-208 (Mar. 13, 2017), https://gadbhdd.policystat.com/policy/3373278/latest/.
In terms of the range of services community service boards are expected to make available, O.C.G.A. § 37-2-6.1(b)(3) requires community service boards to provide an adequate range of disability services "as prescribed by the department[.]" Additionally, the Department's 13-201 policy provides that the Department will partner with the community service boards, "where appropriate, to develop objectives, identify challenges and opportunities, and to develop strategies to achieve [the Department's] vision of ‘Easy Access to High Quality Services[.]’ " The policy also provides that the Department will supply resources, technical assistance, and expertise to the community services boards "where needed and practicable" and "[e]xercise adequate oversight of the network of Community Service Boards" that encompasses "any appropriate activities necessary to ensure" compliance with state law. But neither O.C.G.A. § 37-2-6.1(b)(3) nor policy 13-201 interfere with community service boards’ ability to set their own policies for managing personnel. In fact, § 37-2-6.1(b)(1) requires the governing board of each community service board to adopt bylaws for the conduct of its affairs and those of their community service boards. Additionally, as mentioned above, § 37-2-6.1(b)(9) requires each community service board to create and maintain an employee personnel program and fix the terms of its employees.
Id., Community Service Board Oversight: Authority and General Responsibilities, 13-201 (last reviewed Mar. 13, 2017), https://gadbhdd.policystat.com/policy/3394542/latest/.
Id.
Regarding investigations of misconduct, the Department's 4-118 policy requires community service boards to investigate or address incidents involving alleged criminal acts, "abuse or neglect," or "negligent or deficient conduct" by a community provider. If a provider or its staff or contractor fail to report an "incident of suspected abuse, neglect, or exploitation," or fail "to intervene, when reasonably possible, to prevent abuse, neglect or exploitation," the state may take corrective action against the community provider. But "[the Department's] limited, high-level involvement in the structure and function of community service boards" does not indicate that ASPIRE is an arm of the state, and reporting requirements "don't speak directly to the [state's] ‘degree of control.’ " Miller , 677 F. App'x at 562–63 ; Freyre v. Chronister , 910 F.3d 1371, 1383 (11th Cir. 2018) (citation omitted). O.C.G.A. §§ 37-1-20(26), 37-2-6.1(b)(3) and (i) and the Department's policies 13-201, 13-208, and 4-118 ultimately illustrate the state's deference toward community service boards’ self-governance.
Id., Investigating Deaths and Other Incidents Services, 04-118 (last reviewed Sept. 10, 2019), https://gadbhdd.policystat.com/policy/6915405/latest/; id., Community Service Board Oversight: Authority and General Responsibilities, 13-201 (last reviewed Sept. 10, 2019).
Id.
The separation of the Department and community service board's governance further demonstrates ASPIRE's autonomy from the state. O.C.G.A. § 37-2-6 prevents the Department's employees from serving on community service board's governing boards. In fact, ASPIRE's own website says it was established out of a movement to serve local communities, separate from state-run facilities. The website also states that ASPIRE "developed internal policies and procedures to allow individuals access to care." The statutory authorizations and independence granted to community service boards demonstrate that ASPIRE has a significant amount of discretion to manage policies that govern their personnel and facilities. But see Pellitteri v. Prine , 776 F.3d 777, 781 (11th Cir. 2015) (finding second factor weighing in favor of immunity over county sheriff where State conducted significant oversight over sheriff's hiring and firing power); Ross v. Jefferson Cnty. Dep't of Health , 701 F.3d 655, 660 (11th Cir. 2012) (per curiam) (finding Eleventh Amendment immunity over county health department where state controlled and supervised personnel decisions, including terminations); Manders , 338 F.3d at 1310 (applying eleventh amendment immunity to county sheriff after finding "counties exercise no authority or control over the sheriff's force policy").
ASPIRE, The History of ASPIRE , https://aspirebhdd.org/history-and-overview/ (last visited May 13, 2020); see also (Doc. 35 at 7).
Id.
While the Department's policies give the Department certain oversight responsibilities related to community service boards and authorize the Department to intervene in a community service board's management under narrow circumstances, they do not undermine the ability of ASPIRE's governing board to hire and fire personnel or investigate, supervise, and train its employees on its own. See Stanley v. Israel , 843 F.3d 920, 921, 928 (11th Cir. 2016) (finding second factor weighed against immunity over county sheriff where state set minimum hiring qualifications for deputies but such control was "counterbalanced by a county's unilateral ability to designate its" chief correctional officer). But see McCurdy v. Ala. Disability Determination Serv. , 753 F. App'x 784, 790–91 (11th Cir. 2018) (finding substantial state control over disability determination service where state superintendent was "final decisionmaker" over the service's personnel decisions); Manders , 338 F.3d at 1320–21 (finding second factor in favor of immunity over sheriff where state required annual specialized training of sheriffs and Georgia Governor had broad investigation and suspension powers over sheriff misconduct). Nor does the fact that the Department's policies require community service boards to investigate and address alleged criminal acts, such as homicide and sexual abuse, indicate that the state exercises greater control than the local entity. See Freyre , 910 F.3d at 1383 (finding that even "strong indicia of state control" may not "outweigh the indicia of local control").
See generally Dep't of Behavioral Health & Development Disabilities , supra notes 2–6.
See Dep't of Behavioral Health & Development Disabilities , supra note 5, at Attachment A.
ASPIRE attempts to distinguish itself by arguing that it is similar to the community service board at issue in Edenfield , where the court held the Eleventh Amendment applied to a community service board where there was an accusation of physical abuse of a patient. 2018 WL 6199685, at *7. As explained previously, a defendant's status as an arm of the State must be determined in light of its function or role in a particular context in which the defendant was engaged when taking the actions from which the alleged liability arose. Miller , 677 F. App'x at 559 ; Edenfield , 2018 WL 6199685 at *3 (citation omitted). Although the analysis in Edenfield was also in the context of "hiring and firing decisions in the ordinary course of business" and "conducting training, investigation, and supervision of its employee," the facts of that case clearly are distinguishable. See Edenfield , 2018 WL 6199685 at *4. In Edenfield , the Department, with the governor's agreement, appointed a manager to operate Gateway—the defendant community service board—and to dissolve Gateway's Board. Id. at *5 (citations omitted). Gateway operated under the Department's direction for at least five years, with the State controlling "minute, day-to-day operations." Id. (citation omitted). The State also controlled employment hiring by requiring Gateway to conduct criminal background checks on its employees and submit the results to the Department for approval before hiring an employee. Id. (citation omitted). The Edenfield court, therefore, found that the Department made decisions that are typically made by a local governing board and held that the second Manders factor pointed towards Gateway being an arm of the state. Id. (citing Miller , 677 F. App'x at 561 ). Unlike in Edenfield , the State has not assumed control, via the Department, of ASPIRE. ASPIRE's governing board has not been disbanded, and the Department is not conducting an ongoing supervision. Thus, the second factor weighs against immunity.
3. Origin of Community Service Board Funds
The third factor focuses primarily on the "quantum of funding the State provides to the defendant entity." Miller , 677 F. App'x at 563 (citing Stanley , 843 F.3d at 930–31 ). Courts may also consider the degree of control the state exerts over the defendant's funding structure, budget, and overall financial autonomy where relevant. Id. (citing Pellitteri , 776 F.3d at 782–83 ) (citations omitted). But "the fact that the state maintains some control over the budget review process" does not outweigh any strong indicators of local control. See Stanley , 843 F.3d at 929. Even if the defendant receives most funding from the state, it does not qualify for immunity under the third factor if it maintains substantial control over its own budget. See Lightfoot , 771 F.3d at 776–77.
Generally, Georgia does not require community service boards to contract with state departments for funding purposes. See Miller , 677 F. App'x at 563 ; O.C.G.A. § 37-2-6(a). Community service boards’ governing boards may end their state contracts by transforming to a private nonprofit, local county unit, or an "arm of a hospital." Miller , 677 F. App'x at 563 (citing O.C.G.A. § 37-2-6.4(a) ). "The State has no authority to approve or reject such changes." Id. "The Board of each [community service board] is entitled to review and approve the [community service board's] annual budget." Id. at 564 (citing O.C.G.A. § 37-2-6.1(a), (b)(2) ). "The Board is further empowered to determine when and how to provide employment benefits ... to fix employee compensation, ... and to raise revenues to support daily operations." Id. (citing O.C.G.A. §§ 37-2-6.1(b)(7), (b)(9), (f)(2) ). The State's only personnel-related oversight involves reviewing and approving the governing board's employment offer to the community service board Executive Director and any major changes to the Director's compensation. Id. (citing O.C.G.A. § 37-2-6.1(a)(1) ). The Executive Director, however, "exercises daily managerial authority as delegated by the Governing Board." Id. (citing O.C.G.A. § 37-2-6.1(a)(1) ). Thus, governing boards generally "enjoy broad autonomy to allocate funds on personal matters." Id.
ASPIRE has "unfettered discretion to design its own funding mix." Id. It can control its funding sources by contracting with either private organizations or state agencies. See id. "This level of autonomy precludes the State from dictating [ASPIRE's] funding portfolio and limits the State's control over [ASPIRE's] financial decision-making." Id. Further, ASPIRE has not provided any evidence showing the ratio of state to non-state funding it receives. See, e.g., Freyre , 910 F.3d at 1384 (finding sheriff's office met third factor where state provided all funding for child-protective investigations, even though Florida sheriff's offices are generally funded completely by county taxes). "In the absence of such evidence, [the Court] also consider[s] the State's involvement in [ASPIRE's] financial operations." Miller , 677 F. App'x at 563. As previously explained, ASPIRE retains a substantial amount of self-management and is free to choose the entities with which it contracts. "The fact that the Governing Board, not the State, exercises primary control over [ASPIRE's] financial decision-making—especially in the arena of personnel management—weighs against immunity." Id. (citations omitted). This is so especially when combined with the State's limited involvement in ASPIRE's financial operations.
4. Responsibility of Judgment
The fourth factor requires courts to determine "whether the State would bear ultimate responsibility for an adverse judgment." Miller , 677 F. App'x at 564 (quoting Lightfoot , 771 F.3d at 777 ). While not dispositive, it is the most important factor as it bears on the Eleventh Amendment's primary concern that the state will be required to pay an adverse judgment. Freyre , 910 F.3d at 1384 (footnote omitted); Keene v. Prine , 477 F. App'x 575, 579 (11th Cir. 2012) (per curiam) (citation omitted). "Georgia law speaks directly to this factor, establishing that ‘the liabilities, debts, and obligations of a community service board shall not constitute liabilities, debts, or obligations of the state ... and ... the state ... shall [not] be liable for any liability, debt, or obligation of a community service board.’ " Miller , 677 F. App'x at 564 (quoting O.C.G.A. § 37-2-6(a) ). In some instances, "special conditions may arise through which the state treasury is indirectly implicated in the defendant entity's liabilities." Edenfield , 2018 WL 6199685, at *6. "These circumstances include where an office is subject to direct state control and is financially dependent on the state." Id. (citing Manders , 338 F.3d at 1327–28 ). "The Eleventh Circuit has also stated that if the State of Georgia were obligated or incentivized to prop-up a [community service board] in the event of its financial distress or insolvency, such an incentive would cut in favor of finding it an arm of the state." Id. (citing Miller , 677 F. App'x at 565 ).
Here, Defendant has not established that the state will bear the ultimate responsibility for any judgment rendered against ASPIRE. As explained above, ASPIRE is free to receive funding from diverse sources, and there is no evidence that taxpayer dollars will pay for any judgment against ASPIRE as ASPIRE suggests. (See Doc. 34-1 at 14–15). Nor is there evidence that the State is incurring any costs related to defending ASPIRE in this lawsuit. O.C.G.A. § 37-2-11.1(c)(2) states a community service board "shall be authorized to appoint legal counsel to represent the community service board and its employees." It does not require ASPIRE to be represented by the state. And, § 37-2-1101(c)(2) provides that "Community service boards may exercise any authority granted in Article 2 of Chapter 9 of Title 45, relating to indemnification, defense, and insuring of members and employees of public bodies." O.C.G.A. § 37-2-11.1(c)(2). Thus, the regulations suggest that ASPIRE has various options for obtaining counsel and defending against this action. ASPIRE, therefore, must present evidence that the state is in fact bearing the cost of the defense in this matter for this factor to tip in its favor. ASPIRE has presented no such specific evidence. More importantly, however, even if the Georgia Department of Administrative Services were providing counsel to Defendant ASPIRE in this action, this is not evidence that the state will pay for any judgment against ASPIRE.
The Supreme Court of Georgia has struck down the part of § 37-2-11.1(c)(1) that denotes community service boards as "unclassified public entities" and, instead, held that they are "unit[s] of State government." Youngblood , 545 S.E.2d at 877 ; Langston v. Lookout Mountain Cmty. Servs. , 775 F. App'x 991, 996 n.8 (11th Cir. 2019) (per curiam) (citation omitted).
Nor does the fact that the state insures community service boards for civil rights claims establish that the state will bear ultimate responsibility for any adverse judgment. O.C.G.A. § 45-9-20 allows community service boards to purchase insurance liability or indemnity contracts to protect their governing bodies and employees against liabilities based on alleged civil violations arising out of the performance of their duties. In Freyre , the Eleventh Circuit found that the fourth factor weighed against immunity after acknowledging that Florida law authorizes sheriffs to buy liability insurance but finding the defendant sheriff's office to be self-insured. 910 F.3d at 1384. Here, while there is no evidence that ASPIRE is self-insured, Defendant has not presented evidence that it is in fact insured by the State against such lawsuits.
In lieu of obtaining liability insurance or indemnity contracts, community service boards may use their discretion to adopt policies regarding whether they will defend all or certain civil, criminal, or quasi-criminal actions against their entities or employees and the terms and conditions under which they will pay. O.C.G.A. § 45-9-21(a). They also have the option of adopting a policy regarding how they will pay for a civil judgment. Id. § 45-9-22(a). While any disbursements may be paid from state funds, this method is neither a requirement nor a given as disbursements may also be paid from federal or local funds. See id. With no evidence of the source of ASPIRE's funds, the Court cannot determine whether the state is, in fact, required to satisfy ASPIRE's judgments. See Freyre , 910 F.3d at 1384 (weighing fourth factor against immunity over sheriff's office after finding "no provision of Florida law provides state funds to a Florida sheriff to satisfy a judgment against the sheriff" (citation omitted)). There is also no evidence that Georgia would be required or incentivized to "prop up" ASPIRE if ASPIRE experienced a financial crisis. See Miller , 677 F. App'x at 565. If anything, the evidence points to ASPIRE being financially independent and free to generate its own revenue. See id. at 565. But see Manders , 338 F.3d at 1328 (finding fourth factor in favor of local sheriff's office where office was directly controlled by state, financially dependent on state, and unable to decrease its budget in light of an adverse judgment). Thus, the fourth factor weighs against immunity.
Because three factors definitively weigh against immunity, ASPIRE is not an arm of the state in this context, and Plaintiff's § 1983 claim is not barred by the Eleventh Amendment.
B. Qualified Immunity
ASPIRE alternatively argues that qualified immunity bars Plaintiff's action because ASPIRE did not violate a clearly established law. (Doc. 34-1 at 19). Plaintiff contends no reasonable state official could believe that the Constitution permits sexual assault under color of law. (Doc. 35 at 12). ASPIRE replies that no clearly established law requires it to properly train, hire, or constantly supervise its staff to prevent all possibility of staff having sexual relations with a patient. (Doc. 37 at 8–9).
"Qualified immunity protects government employees from suit in their individual capacities for discretionary actions in which they engage in the course of their duties." Alcocer v. Mills , 906 F.3d 944, 950–51 (11th Cir. 2018) (citations omitted). "A local government entity like the board is not entitled to assert qualified immunity." Cox v. Clayton Cnty. Sch. Dist. , 763 F. App'x 817, 819 n.1 (11th Cir. 2019) (per curiam) (citing Owen v. City of Indep. , 445 U.S. 622, 649–50, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) ). Because ASPIRE is a local entity, not an employee being sued in an individual capacity, qualified immunity does not apply.
C. Plaintiff has Stated a § 1983 Claim
ASPIRE alternatively argues that Plaintiff has failed to state a § 1983 claim because she does not identify an official policy, final policymaker, or sufficiently allege a widespread or longstanding custom. (Doc. 34-1 at 16–18). Plaintiff argues her Amended Complaint alleges enough facts to satisfy the pleading standard, and there is no need to identify a policymaking official at this stage. (Doc. 35 at 10). An individual may sue a governing body "for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body's official decisionmaking channels." Torres-Bonilla v. City of Sweetwater , 805 F. App'x 839, 839 (11th Cir. 2020) (per curiam) (citation omitted); see also Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "To succeed ... [the Plaintiff] must show a ‘widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law.’ " Torres-Bonilla , 805 F. App'x at 840 (citation omitted). "[F]or constitutional violations to be sufficiently ‘widespread’ for a governmental supervisor to be held liable, they need occur with frequency ... and need not necessarily be committed by several people within a department or agency." Holloman ex rel. Holloman v. Harland , 370 F.3d 1252, 1294 (11th Cir. 2004) (citations omitted). "When rights are systematically violated on a near-daily basis, such abuses are sufficiently egregious to warrant supervisory liability, even if it is a single ‘bad apple’ engaging in the repeated pattern of unconstitutional behavior." Id. (citation omitted).
Here, Plaintiff has sufficiently alleged a § 1983 claim for an unconstitutional custom. ASPIRE constitutes a government actor subject to § 1983. See Langston v. Lookout Mountain Cmty. Servs. , 775 F. App'x 991, 996 (11th Cir. 2019) (per curiam) (finding community service board is a government actor). Plaintiff asserts that Wimberly, an ASPIRE employee, "bragged to Plaintiff and others that he had previously ‘gotten away’ with improper sexual behavior at prior jobs," threatened and coerced Plaintiff to engage in sexual activities with him at ASPIRE's facility over a period of approximately three weeks, and committed rape, sexual battery, assault, and sexual harassment against Plaintiff on two separate occasions. (Doc. 30 ¶¶ 10–19). Plaintiff also alleges that a similar offense previously occurred at ASPIRE. (Id. ). The alleged facts plausibly give rise to an entitlement to relief.
Additionally, Plaintiff does not need to identify a final policymaker in her Amended Complaint to survive a Rule 12(b)(6) motion. Hoefling v. City of Miami , 811 F.3d 1271, 1280 (11th Cir. 2016). All she needed to do was "allege a policy, practice, or custom of [ASPIRE] which caused" her injury, and she has adequately done so. See id.
III. Section 1983 Claim Against Wimberly
Wimberly argues Plaintiff's § 1983 claim fails for two reasons: (1) only state law creates and remedies the substantive rights Plaintiff seeks to vindicate; and (2) Plaintiff fails to carefully describe the fundamental liberty interest Wimberly allegedly violated and how that interest is objectively, deeply rooted in the United States’ history or tradition. (Doc. 33-1 at 9–10). Wimberly further argues that, as a health technician at a public corporation, he has no governmental authority. (Doc. 38 at 5).
" Section 1983 provides a remedy against ‘any person’ who, under color of state law, deprives another of rights protected by the Constitution." Collins v. City of Harker Heights , 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). "A person acts under color of state law when he acts with authority possessed by virtue of his employment with the state." Almand v. DeKalb Cnty. , 103 F.3d 1510, 1513 (11th Cir. 1997) (citation omitted). "[A] § 1983 plaintiff must allege a specific federal right violated by the defendant." Doe v. Sch. Bd. of Broward Cnty. , 604 F.3d 1248, 1265 (11th Cir. 2010). "[T]he conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience shocking in a constitutional sense." Waldron v. Spicher , 954 F.3d 1297, 1306 (11th Cir. 2020) (quoting Waddell v. Hendry Cnty. Sheriff's Off. , 329 F.3d 1300, 1304 (11th Cir. 2003) ). Rape of a person by a state actor can violate the Constitution for purposes of § 1983 if the state actor performs the action under color of state law. Almand , 103 F.3d at 1513 (citations omitted).
Here, Plaintiff has sufficiently alleged a substantive due process claim against Wimberly. After being court-mandated to complete the treatment program at ASPIRE, Plaintiff alleges Wimberly raped her. (Doc. 30 ¶¶ 10, 18–19). She, therefore, claims Wimberly violated her substantive right to bodily integrity under the Fourteenth Amendment. (Doc. 10 ¶ 75). Thus, Plaintiff adequately alleges a specific federal right as required by § 1983. See Doe , 604 F.3d at 1266 (assuming for purpose of appeal that the Fourteenth Amendment recognizes a right to be free from sexual abuse by state official acting under color of law). She also alleges that Wimberly told her that he could get her kicked out of the program and sent to prison if she either failed to comply with his demands or reported him, and he made her aware that he partially controls whether an individual successfully completes the program. (Doc. 30 ¶¶ 15, 20). As an employee of a community service board, Wimberly acts on behalf of a government actor. See Langston , 775 F. App'x at 996 n.8 (stating it makes no difference whether a community service board is a government actor on the state or local level for purposes of § 1983 ). "The ‘Due Process Clause was intended to prevent government officials from abusing [their] power, or employing it as an instrument of oppression.’ " Waldron , 954 F.3d at 1306 (alteration in original) (citation omitted). While, "[t]he federal constitution does not protect against injuries by purely private individuals—that is, individuals who cannot be considered as acting for state or local government"—here Defendant was not acting as a purely private individual. Howard v. Wal-Mart , 175 F. App'x 282, 283 (11th Cir. 2006) (per curiam) (citations omitted). Plaintiff, therefore, sufficiently has alleged that Wimberly deprived her of a constitutional right under color of state law. See Arnold v. Bd. of Educ. of Escambia Cnty. Ala. , 880 F.2d 305, 315 (11th Cir. 1989) (finding plaintiff sufficiently alleged that challenged conduct was under color of state law because school employees "apparently operated with the authority of the state"), overruled on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit , 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) ; (Doc. 30 ¶ 74).
CONCLUSION
In light of the foregoing, Wimberly's motion to dismiss (Doc. 33) and ASPIRE's motion to dismiss (Doc. 34) are GRANTED in part and DENIED in part . Plaintiff's state law claims are DISMISSED without prejudice . Plaintiff's § 1983 claims may proceed against both Defendants. The stay is hereby lifted. The Parties are ORDERED to submit an amended Scheduling and Discovery Order within fourteen (14) days of the date of this Order.
SO ORDERED , this 24th day of March, 2021.