Opinion
CASE NO.: 1:19-CV-45 (LAG)
2022-08-08
Alexandria THOMPSON, Plaintiff, v. ALBANY AREA COMMUNITY SERVICE BOARD, d/b/a ASPIRE, et al., Defendants.
F. Sean Simmons, Waycross, GA, Brent J. Savage, Jr., Winston Andrew Edwards, I, Brent Savage, Sr., 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 J. Savage, Jr., Winston Andrew Edwards, I, Brent Savage, Sr., 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 Defendant Albany Area Community Service Board d/b/a ASPIRE's Motion for Summary Judgment (Doc. 51) and Defendant Eric Wimberly's Motion for Summary Judgment (Doc. 54). For the reasons stated below, ASPIRE's Motion for Summary Judgment (Doc. 51) is GRANTED, and Wimberly's Motion for Summary Judgment (Doc. 54) is DENIED.
FACTUAL BACKGROUND
Plaintiff Alexandria Thompson was ordered to participate in ASPIRE's Touchstone Dual Diagnosis Residential Program in October 2017 as part of a probation revocation sentence. (Doc. 51-2 ¶ 5; Doc. 56 ¶ 5). The yearlong program provides residential treatment for adults with dual mental-health and substance-abuse diagnoses. (Doc. 51-2 ¶ 3; Doc. 56 ¶ 3). ASPIRE, a statutorily created state agency, offers residential, crisis, and outpatient programs to individuals in southwest Georgia needing mental health, disability, or addiction treatment. (Doc. 51-2 ¶ 1; Doc. 56 ¶ 1). During the relevant time, Wimberly worked as a health service technician at ASPIRE, supervising Touchstone residents and providing counseling services. (Doc. 51-2 ¶ 4; Doc. 56 ¶ 4). This action arises out of Plaintiff's allegation that Wimberly raped her at ASPIRE's facility while she was a Touchstone patient.
The Court derives the relevant facts from ASPIRE's Statement of Material Facts (Doc. 51-2), Wimberly's Statement of Material Facts (Doc. 54-2), Plaintiff's responses (Docs. 55, 58), and the record. When evaluating the Motions for Summary Judgment, the Court construes the facts in the light most favorable to Plaintiff, the nonmoving party. See Fed. R. Civ. P. 56; Jacoby v. Baldwin County, 835 F.3d 1338, 1342 (11th Cir. 2016) (citations omitted).
Wimberly's Statement of Material Facts contains twenty-eight paragraphs, twenty-seven of which are taken verbatim from ASPIRE's Statement of Material Facts but not with directly corresponding paragraph numbers. (Compare Doc. 54-2, with Doc. 51-2). When referencing a fact that appears in both Defendants' filings, the Court cites only to ASPIRE's Statement of Material Facts.
The alleged rape occurred in a gymnasium closet in the ASPIRE facility while another Touchstone patient named Brittany waited outside the gymnasium door. (Doc. 51-2 ¶ 9; Doc. 56 ¶ 9). Defendants claim that the incident was consensual and that Plaintiff did not try to leave or yell when Wimberly pulled her into the closet. (Doc. 51-2 ¶¶ 11, 26). Plaintiff claims, however, that Wimberly "grabbed [her] arm" and "pulled [her] into the closet." (Doc. 55-1 at 72:3-6). She testified that she didn't say no "at first" but that she used her hands to block her body when Wimberly "was trying to reach down [her] pants." (Id. at 68:8-11). Plaintiff added that she told Wimberly "to stop" and that she "didn't want to" after he put her hand on his groin and pulled down his pants, but he continued despite her protest. (Id. at 68:11-17).
Several days later, Brittany reported the encounter to an ASPIRE social service technician. (Doc. 51-2 ¶ 13; Doc. 56 ¶ 13). Plaintiff did not report the encounter or tell anyone about it. (Doc. 51-2 ¶ 14; Doc. 56 ¶ 14). Plaintiff testified that she asked Brittany not to report the incident because she was afraid to get in trouble with ASPIRE and "have to go to prison and be away from [her] kids." (Doc. 55-1 at 86:10-17). Plaintiff further reported that before the alleged rape, Wimberly "threatened her by saying that he could get her kicked out of the program" if she told anyone about the incident. (Doc. 51-6 at 3). Elsa Harrison, the administrative operations director at ASPIRE, subsequently interviewed both Plaintiff and Brittany. (Doc. 51-2 ¶ 21; Doc. 51-5 at 3:21-23; Doc. 56 ¶ 21). Harrison testified that Plaintiff consented to the encounter with Wimberly and that Brittany was watching outside the gymnasium door at Plaintiff's request during the incident. (Doc. 51-5 at 16:12-16). Plaintiff, however, testified that Wimberly, not Plaintiff, told Brittany to act as a lookout. (Doc. 55-1 at 68:1-5). Dana Glass, the CEO of ASPIRE, also interviewed both Plaintiff and Brittany. (Doc. 51-2 ¶ 25; Doc. 56 ¶ 25). Glass testified that Plaintiff told her she had at least two sexual encounters with Wimberly, which began consensually before Plaintiff decided "she did not want to continue." (Doc. 51-3 at 12:1-14). Glass added, however, that romantic relationships between ASPIRE employees and patients violate ASPIRE's rules and regulations. (Id. at 12:15-18).
Plaintiff claims that, before the incident occurred, she informed an ASPIRE employee that Wimberly made her feel uncomfortable. (Doc. 56 ¶¶ 19, 29; see Doc. 55-1 at 59:10-61:2). She testified that she told an ASPIRE staff member that Wimberly was giving her extra attention and becoming flirtatious in a way that made her uneasy. (Doc. 55-1 at 61:3-19). Plaintiff further testified that the staff member said she would "handle it," but Plaintiff does not know if ASPIRE took any action at the time. (Id. at 61:21-62:3).
ASPIRE has an established reporting and complaint procedure for patients through its case coordinator, which Plaintiff learned about when she entered the Touchstone program. (Doc. 51-2 ¶ 18; Doc. 56 ¶ 18). Plaintiff claims, however, that she was not provided with a reporting form "to put her complaints in writing" when she complained to an ASPIRE staff member and that she was not given sufficient information about the "complaint procedures or relevant paperwork." (Doc. 56 ¶¶ 18, 20). Plaintiff did not use the reporting and complaint procedure to report Wimberly's behavior. (Doc. 51-2 ¶¶ 18, 20; Doc. 56 ¶¶ 18, 20).
Glass testified that ASPIRE's first step after learning of the sexual encounter between Wimberly and Plaintiff was to remove Wimberly's access to ASPIRE's patients. (Doc. 51-3 at 10:19-23; see also Doc. 51-6 at 6). Then, per a policy from the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD), ASPIRE reported the incident to DBHDD. (Doc. 51-2 ¶ 31; Doc. 56 ¶ 31; see Doc. 51-6 at 2). A State employee subsequently investigated the incident. (Doc. 51-2 ¶ 32; Doc. 56 ¶ 32; see Doc. 51-6). As part of the investigation, Plaintiff reported that she and Wimberly had sex twice and that the first time was consensual. (Doc. 51-6 at 12). She further stated that the second time was nonconsensual, and she participated because she "felt she had no choice" because Wimberly "could send her back to jail." (Id. at 12-13). Wimberly reported that he hugged and kissed Plaintiff and rubbed her "body underneath her clothing" in the gymnasium closet, but that he did not have sex with her because they did not have a condom. (Id. at 15). He stated that he would have had sex with Plaintiff if he had a condom. (Id.). Wimberly also admitted "that he swatted" Plaintiff "on her buttocks several times." (Id. at 22). Finally, he denied threatening Plaintiff but admitted that he told Plaintiff he could help her "advance in successfully completing" the Touchstone program. (Id.). The DBHDD investigation concluded that Wimberly's "alleged sexual abuse of" Plaintiff was "substantiated." (Doc. 51-6 at 22-23). ASPIRE subsequently terminated Wimberly's employment. (Doc. 51-2 ¶ 34; Doc. 56 ¶ 34). After the alleged rape, Plaintiff's parents successfully petitioned her sentencing court to allow Plaintiff to complete an outpatient program at home rather than continue her treatment at ASPIRE. (Doc. 51-2 ¶ 35; Doc. 56 ¶ 35; Doc. 55-1 at 94:23-95:1).
PROCEDURAL BACKGROUND
Plaintiff initiated this action against ASPIRE and Wimberly on March 25, 2019. (Doc. 1). ASPIRE and Wimberly each moved to dismiss the claims against them. (Docs. 9, 29). On July 22, 2019, Plaintiff filed an Amended Complaint, and the Court denied the Motions to Dismiss as moot. (Docs. 28, 30, 32). The Amended Complaint raised state law claims against Wimberly and ASPIRE, a 42 U.S.C. § 1983 claim for unconstitutional policy and custom against ASPIRE, and a 42 U.S.C. § 1983 due process claim against Wimberly. (Doc. 30 ¶¶ 25-76). On August 5, 2022, ASPIRE and Wimberly each moved to dismiss the claims in the Amended Complaint. (Docs. 33-34). On March 24, 2021, the Court granted the Motions to Dismiss as to Plaintiff's state law claims but allowed Plaintiff's 42 U.S.C. § 1983 claims to proceed. (Doc. 40 at 20). ASPIRE and Wimberly filed the present Motions for Summary Judgment on January 3 and 18, 2022. (Docs. 51, 54). Plaintiff responded to both Motions for Summary Judgment, and ASPIRE and Wimberly replied. (Docs. 55, 58-60). Accordingly, the Motions for Summary Judgment are now ripe for review. See M.D. Ga. L.R. 7.3.1(A).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate where "the evidence shows 'that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc). "A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor." Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (citation omitted). "An issue of fact is 'material' if it is a legal element of the claim under the applicable substantive law which might affect the out-come of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citations omitted). "An issue of fact is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1311 (11th Cir. 2018) (quoting Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004)). At summary judgment, the Court views the evidence "in the light most favorable to the non-moving party" and resolves factual disputes for the non-moving party when doing so is supported by sufficient evidence. Gogel, 967 F.3d at 1134 (quoting Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007)); Whitehead v. BBVA Compass Bank, 979 F.3d 1327, 1328 (11th Cir. 2020).
The movant bears the initial burden of showing, by reference to the record, that there is no genuine issue of material fact. See Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018); Whitehead, 979 F.3d at 1328. The movant can meet this burden by presenting evidence showing that there is no genuine dispute of material fact or by demonstrating that the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (per curiam). If the movant meets their initial burden, the nonmoving party must demonstrate that there is a genuine dispute for trial. Gogel, 967 F.3d at 1134 (citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). The nonmovant must "go beyond the pleadings and . . . present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating specific facts showing a genuine issue for trial." Lamar v. Wells Fargo Bank, 597 F. App'x 555, 557 (11th Cir. 2014) (per curiam) (first citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); and then citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). "All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate." M.D. Ga. L.R. 56; see Mason v. George, 24 F. Supp. 3d 1254, 1260 (M.D. Ga. 2014).
DISCUSSION
I. ASPIRE's Motion for Summary Judgment
ASPIRE argues that it is entitled to summary judgment because it is an arm of the state of Georgia entitled to Eleventh Amendment immunity from suit, and even if it is not entitled to sovereign immunity, Plaintiff has not established that ASPIRE violated her constitutional rights. (Doc. 51-1 at 12-20). In response, Plaintiff argues that (1) issues of material fact about whether ASPIRE is an arm of the State preclude summary judgment, and (2) ASPIRE deprived her of her right to substantive due process and was deliberately indifferent to her complaints of sexual harassment. (Doc. 55 at 6-12).
A. Eleventh Amendment Immunity
The U.S. Constitution's Eleventh Amendment protects states and their officers from lawsuits brought "by the state's own citizens" in federal court "unless a state has waived its sovereign immunity or Congress has abrogated it." Freyre v. Chronister, 910 F.3d 1371, 1380 (11th Cir. 2018) (first quoting U.S. Const. amend. XI; and then quoting Hans v. Louisiana, 134 U.S. 1, 15-16, 10 S.Ct. 504, 33 L.Ed. 842 (1890)); Cassady v. Hall, 892 F.3d 1150, 1152 (11th Cir. 2018) (per curiam) (citation omitted). Georgia has not waived its sovereign immunity in cases arising under § 1983, and Congress has not abrogated it. See O.C.G.A § 50-21-23(b); Nichols v. Ala. State Bar, 815 F.3d 726, 731 (11th Cir. 2016) (per curiam) (citation omitted). Municipalities, however, do not enjoy sovereign immunity. Freyre, 910 F.3d at 1380 (citing Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 405 F.3d 1298, 1301 (11th Cir. 2005)). Government officers are thus "entitled to Eleventh Amendment immunity" when they act as arms of the state, but not when they act as arms of the county. Id. (citing Stanley v. Israel, 843 F.3d 920, 924 (11th Cir. 2016)).
In Manders v. Lee, the Eleventh Circuit enumerated four factors for courts to analyze when determining 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." 338 F.3d 1304, 1309 (11th Cir. 2003) (en banc) (citations omitted). As part of the Manders analysis, courts consider whether a defendant acted "as an arm of the state 'in light of the particular function in which the defendant was engaged when taking the actions out of which liability is asserted to arise.' " Freyre, 910 F.3d at 1380 (citing Manders, 338 F.3d at 1308) (other citation omitted). Thus, the inquiry is not whether ASPIRE is an arm of the state of Georgia generally but whether ASPIRE acts as an arm of the State when administering the Touchstone program. See id. at 1381. ASPIRE bears the burden of proving, by reference to the record, that there is no genuine dispute of material fact about its status as an arm of the State. See Shaw, 884 F.3d at 1098.
At the motion to dismiss stage, the Court held that although Georgia law views community service boards as arms of the State, the second, third, and fourth Manders factors weighed against finding that ASPIRE is entitled to Eleventh Amendment immunity. See Thompson v. Albany Area Cmty. Serv. Bd., 555 F. Supp. 3d 1344, 1354-60 (M.D. Ga. 2021). With the benefit of discovery, the Court now revisits the Manders factors.
1. Georgia Law Definition of Community Service Boards
The first Manders factor requires the Court to consider how Georgia law defines community service boards. The Parties do not dispute that Georgia's statutory scheme classifies community service boards as state agencies. (Doc. 51-1 at 13-14; Doc. 55 at 7). Further, the Eleventh Circuit has explained that "the Georgia Supreme Court's classification of CSBs [(community service boards)] as state agencies is clear and definitive." Miller v. Advantage Behav. Health Sys., 677 F. App'x 556, 560 (11th Cir. 2017) (per curiam); see also Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875, 877 (2001); O.C.G.A. § 37-2-6(a) (community service boards in Georgia are "considered public agencies"). Thus, the first Manders factor weighs in favor of holding that ASPIRE is an arm of the State entitled to sovereign immunity.
2. Degree of Control Georgia Maintains over ASPIRE
The second Manders factor requires the Court to consider how much control Georgia exercises over the activity from which ASPIRE's alleged liability arises. Plaintiff alleges that ASPIRE is liable for having unconstitutional policies and customs surrounding patient safety that subjected Plaintiff to "threats, sexual assault, rape, and other harms," which deprived her of her right to substantive due process. (Doc. 30 ¶¶ 62-71). Plaintiff further alleges that ASPIRE is liable for failing to "investigate employees" properly before hiring them and for failing to train and supervise employees properly. (Id. ¶ 68). Thus, the question in this case is whether Georgia "exercises meaningful control over" ASPIRE's patient-safety policies and customs as well as ASPIRE's employee hiring, training, and supervision. See Miller, 677 F. App'x at 560. ASPIRE argues that it is an arm of the State because Georgia controls its patient-safety policies, hiring and firing decisions, and employee-misconduct investigations. (Doc. 51-1 at 14-15). Plaintiff responds that ASPIRE's day-to-day operations are controlled by the counties in which ASPIRE works and ASPIRE's employees, not the State. (Doc. 55 at 7-8).
Community service boards in Georgia are "managed at the local level and without significant state involvement." Miller, 677 F. App'x at 561. Routine operations of community service boards like ASPIRE are controlled by local governing boards, "whose members are appointed by authorities of the" counties the community service board serves. See id. (citing O.C.G.A. § 37-2-6(b)); (Doc. 51-3 at 3:19-24). Georgia law grants local governing boards the power to appoint "an executive director to serve as its" CEO and, if necessary, remove the CEO. O.C.G.A. § 37-2-6.1(a)(1). The CEO is responsible for directing "the day-to-day operations of the community service board." Id. The State lacks authority "to oversee or control the appointment process in any capacity." Miller, 677 F. App'x at 561 (citing O.C.G.A. § 37-2-6(b)(1)). The State, however, through DBHDD, has authority to review and approve the CEO's selection "and all terms of compensation." See O.C.G.A. § 37-2-6.1(a)(1); (see also Doc. 51-1 at 14).
In Miller v. Advantage Behavioral Health Systems, the Eleventh Circuit explained that the State generally lacks authority "to review staff hiring or firing activity" or "to train, discipline, or terminate" community service board employees. 677 F. App'x at 561 (citations omitted). Outside of community service boards, however, state involvement in the hiring process has weighed in favor of Eleventh Amendment immunity. For example, in Pellitteri v. Prine, the fact that Georgia law provided requirements for deputy sheriff hiring, including "a moral character investigation, as well as a physical, emotional, and mental examination," led the Eleventh Circuit to conclude that the sheriff's "power to hire and fire his deputies [was] subject to a significant amount of oversight by the state," which weighed in favor of immunity. 776 F.3d 777, 781 (11th Cir. 2015) (citations omitted).
DBHDD policy requires prospective ASPIRE employees whose duties would "involve direct care, treatment, custodial responsibilities, or any combination thereof" to undergo a criminal background check with the results submitted to DBHDD for approval. (Doc. 51-10 ¶ 7, pp. 79-80). The background-check requirement constitutes more state control over ASPIRE's hiring decisions than was present in Miller, where "the second Manders factor weigh[ed] against" immunity because the State had no control over the community service board's "personnel decisions." 677 F. App'x at 562-63. Here, however, the State does not have the level of control present in Pellitteri, in which the state-mandated "physical, emotional, and mental examination" and sheriff "academy entrance exam" for new hires were far more onerous than the background-check requirement for prospective ASPIRE employees. See 776 F.3d at 781 (citation omitted); see also Freyre, 910 F.3d at 1383 (explaining that the state "[e]stablishing minimum requirements is not sufficient to demonstrate [state] control" (alterations in original) (citing Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d 764, 773 (11th Cir. 2014))). Further, despite some state involvement in ASPIRE's hiring process, the ASPIRE CEO and governing board, not the State, are "directly responsible for hiring and firing" employees and determining "whether and how to provide employee benefits." See Miller, 677 F. App'x at 561 (first citing O.C.G.A. § 37-2-6.1(a)(1); and then citing O.C.G.A. § 37-2-6.1(b)(7)). ASPIRE also maintains "a personnel program for its employees" and sets its employees' "terms of compensation." See O.C.G.A. § 37-2-6.1(b)(9).
ASPIRE argues that DBHDD's authority to review and approve any CEO selected by ASPIRE's board weighs in favor of immunity. (Doc. 51-1 at 14 (citing O.C.G.A. § 37-2-6.1(a)(1))). DBHDD reviews and approves the ASPIRE board's CEO appointments "for adherence to minimum qualifications" and reviews the CEO's "terms of compensation." O.C.G.A. § 37-2-6.1(a)(1). But ASPIRE's board members—who are "appointed by the governing authorities of the counties within" ASPIRE's service area—have more authority than the State over the CEO. See O.C.G.A. § 37-2-6(b). The board selects the CEO, sets the CEO's duties, and establishes the CEO's "terms of compensation." O.C.G.A. § 37-2-6.1(a)(1). That those actions are subject to DBHDD review and approval does not hand control over ASPIRE's CEO selection to the State.
In support of its argument that the State controls ASPIRE's hiring, ASPIRE also cites O.C.G.A. § 37-2-10(c)(3). (Doc. 51-1 at 15). ASPIRE argues that the statute shows that the DBHDD Commissioner can remove the ASPIRE CEO, manage ASPIRE's day-to-day operations, terminate ASPIRE's board members, and hire and fire ASPIRE's employees. (Id. at 14-15). Under the statute, however, after misconduct by a community service board, the DBHDD Commissioner and Georgia Governor can appoint "a manager or management team" who can take the actions ASPIRE lists. O.C.G.A. § 37-2-10(c)(1), (c)(3). There is no allegation that the DBHDD Commissioner and Georgia Governor appointed a manager or management team here. Thus, O.C.G.A. § 31-2-10(c)(3) does not apply.
As to whether the State controls ASPIRE employee training, the ASPIRE administrative operations director testified that new ASPIRE employees receive training from ASPIRE's Human Resource Department—not the State—before beginning to work with patients. (Doc. 51-5 at 5:2-5, 6:10-13). Regarding employee supervision, ASPIRE argues that the State controls supervision because DBHDD oversees employee-misconduct reporting and has discretion to investigate employee misconduct. (Doc. 51-1 at 15). As discussed above, however, the ASPIRE CEO—not the State—oversees ASPIRE's "day-today operations." See O.C.G.A. § 37-2-6.1(a)(1). Dana Glass, ASPIRE's CEO at the relevant time, testified that certain incidents must be reported to the State "through a process that's called critical incident reporting." (Doc. 51-3 at 9:8-13; see Doc. 51-10 ¶ 7). Glass testified that the incident here—Wimberly sexually assaulting Plaintiff—was required to be turned over to DBHDD for investigation, although ASPIRE had "the option to conduct a concurrent internal investigation." (Doc. 51-3 at 11:5-10). But not every employee incident must be reported to DBHDD. ASPIRE employees must report "critical incidents" of "suspected abuse" or "neglect or exploitation," and the State may take "corrective action" against ASPIRE employees who fail to report such incidents. The State, in turn, must investigate "incidents involving alleged criminal acts, abuse or neglect, negligent or deficient conduct," or "serious injuries to an individual." The requirement to report serious employee incidents involving patient harm to DBHDD, however, does not mean that the State supervises ASPIRE employees.
Reporting Deaths and Other Incidents in Community Services, 04-106, Ga. Dep't of Behav. Health & Developmental Disabilities, https://gadbhdd.policystat.com/policy/6915384/latest (last visited August 2, 2022); (Doc. 51-10 at 94-95).
Investigating Deaths and Other Incidents in Community Services, 04-118, Ga. Dep't of Behav. Health & Developmental Disabilities, https://gadbhdd.policystat.com/policy/6915405/latest/ (last visited August 2, 2022).
Finally, ASPIRE argues that the State controls its "operational activities like safety compliance" because DBHDD can take adverse action against ASPIRE or its employees who do not comply with DBHDD's "safety and operational requirements." (Doc. 51-1 at 15). But the DBHDD provision ASPIRE cites regarding adverse action states that "[n]on-compliance with safety issues may result in adverse action against the facility," not against individual employees. (See id.; Doc. 51-10 ¶ 7, p. 94). ASPIRE adds that "[t]raining staff to follow DBHDD safety and operational requirements is an essential part" of ASPIRE operations. (Doc. 51-1 at 15). But as explained above, the ASPIRE administrative operations director testified that ASPIRE, not the State, trains new employees before they are allowed to interact with patients. (See Doc. 51-5 at 5:2-5). That DBHDD sets policies for ASPIRE to follow and may discipline ASPIRE for safety infractions does not indicate that DBHDD controls ASPIRE's operational activities.
As the Court explained at the motion to dismiss stage, DBHDD's "limited, high-level involvement in" ASPIRE's "structure and function" does not mean "that ASPIRE is an arm of the state." Thompson, 555 F. Supp. 3d at 1356 (first citing Miller, 677 F. App'x at 562-63; and then citing Freyre, 910 F.3d at 1383). Considering that ASPIRE retains the bulk of control over employee hiring, CEO selection, compensation, and employee training and supervision, the State does not maintain "ultimate control over ASPIRE's" employee hiring, training, and supervision as ASPIRE asserts. (See Doc. 51-1 at 14). The second Manders factor thus weighs against immunity.
3. Where ASPIRE Derives its Funds
The third Manders factor requires the Court to consider where ASPIRE derives its funds. To determine the source of ASPIRE's funding, the Court focuses "primarily on the quantum of funding the State provides." Miller, 677 F. App'x at 563 (citing Stanley, 843 F.3d at 930-31). But receiving "significant funding from the State" is not enough to satisfy the third Manders factor. Lightfoot, 771 F.3d at 776 (first citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); and then citing Holz v. Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1182, 1189 (9th Cir. 2003)). The Court "may also consider the level of control the State exercises over" ASPIRE's "funding structure, budget, and overall financial autonomy." Miller, 677 F. App'x at 563 (citations omitted).
Georgia law does not require community service boards "to contract with the DBHDD or other state departments" for funding. Id. (citing O.C.G.A. § 37-2-6(a)). Instead of relying on state funding, a community service board may become "a private nonprofit, a unit of a local county, or an arm of a hospital," and the State lacks "authority to approve or reject such changes." Id. (citing O.C.G.A. § 37-2-6.4(a)). Further, a community service board's governing board "enjoy[s] broad autonomy to allocate funds on personnel matters." Id. at 564. The governing board "is entitled to review and approve" the community service board's "annual budget" and "determine[s] 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(a), (b)(2), (b)(7), (b)(9), (f)(2)). Moreover, a community service board generally has "unfettered discretion to design its own funding mix." 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.
Glass testified that "approximately sixty-five percent (65%) of ASPIRE's operating budget comes directly from State funds through contracts with" DBHDD. (Doc. 51-10 ¶ 3). ASPIRE's income statement for the fiscal year ending June 30, 2017, which was prepared by independent auditors, corroborates that DBHDD provides about 65% of ASPIRE's revenue. (Id. at 12, 25). The remainder of ASPIRE's funding comes from sources such as counties, Medicaid, client fees, contracts, private insurance, and the federal government. (Id. at 25). Thus, Georgia provides more than half of ASPIRE's funding. Glass also testified that although DBHDD does not directly provide ASPIRE's Medicaid funding, which composes about 29% of ASPIRE's budget, DBHDD "must both approve ASPIRE as a provider and audit ASPIRE's compliance with Medicaid funding regulations." (Id. ¶ 3, p. 25). Additionally, ASPIRE must spend its revenue on providing DBHDD-approved services to clients. (Id. ¶ 4). Further, DBHDD audits ASPIRE's finances. (Id. ¶ 8). ASPIRE also cannot issue bonds without DBHDD's approval. (Id. ¶¶ 8-9). ASPIRE claims that its "use of state funds is contingent upon its compliance with DBHDD policies, which govern 'every aspect' of its operations." (Doc. 51-1 at 16). As explained above, however, by statute, the ASPIRE CEO, not the State, governs ASPIRE's day-to-day operations. See O.C.G.A. § 37-2-6.1(a)(1).
Plaintiff's sole argument as to the third Manders factor is that there is "factual ambiguity as to [ASPIRE's] source of funding" that "should be resolved in favor of" Plaintiff. (Doc. 55 at 8). Although the Court views the facts in the light most favorable to Plaintiff as the nonmoving party, there is no ambiguity as to ASPIRE's funding, which is set forth in the record. (See Doc. 51-10 at 25). Although ASPIRE has a great deal of control over its structure, budget, and financial autonomy, the State provides most of its funding. Accordingly, this factor weighs in favor of immunity.
4. Who is Responsible for Judgments against ASPIRE
The final Manders factor requires the Court to consider "whether the state treasury would be burdened by a judgment against" ASPIRE "in this matter." Freyre, 910 F.3d at 1384. This factor is "the most important of the Manders calculus." Id. (citations omitted). ASPIRE argues that this factor weighs in favor of immunity because, if it had to pay a judgment to Plaintiff, it "would need to seek additional funds for its operating budget from the State, and those funds would ultimately come from Georgia taxpayers." (Doc. 51-1 at 18). ASPIRE adds that because paying a judgment would reduce its budget, which is composed primarily of state funding, the State would be incentivized or obligated "to step in to assist ASPIRE to ensure the continuation of the provision of social services." (Id.). Plaintiff responds that there is a factual dispute about "whether a judgment against Defendant ASPIRE would draw money from its own operational budget, from the State treasury, or from insurance funds" such that summary judgment is inappropriate. (Doc. 55 at 8).
In Miller, the Eleventh Circuit explained that Georgia law establishes that "the liabilities, debts, and obligations of a community service board shall not constitute liabilities, debts, or obligations of the state or any county or municipal corporation and neither the state nor any county or municipal corporation shall be liable for any liability, debt, or obligation of a community service board." 677 F. App'x at 564 (quoting O.C.G.A. § 37-2-6(a)); see also O.C.G.A. § 37-2-6.3(d). Community service boards are thus fiscally autonomous and liable for legal judgments. Further, although adverse judgment against an entity need not actually drain the state treasury for a finding of immunity, "the statutory limitation of state liability for any judgment against" ASPIRE "weighs strongly against finding it an arm of the State." Miller, 677 F. App'x at 564 (citing Manders, 338 F.3d at 1327).
Here, ASPIRE has not established that the state treasury will be burdened by any adverse judgment rendered. In support of its argument, ASPIRE cites only an affidavit from Glass saying that a "judgment entered in this case against ASPIRE would either result in an actual drain" or an "indirect drain" on the state treasury. (See Doc. 51-1 at 10 (citing Doc. 51-10 ¶ 10)). As to an actual drain on the treasury, Glass testified that a judgment against ASPIRE would result in "a payment by the State's self-insurance funds managed by the Department of Administrative Services." (Doc. 51-10 ¶ 10). But, by statute, the State is not required to pay "the liabilities, debts, and obligations of a community service board." O.C.G.A. § 37-2-6(a). Moreover, as the Court acknowledged in its Order denying ASPIRE's Motion to Dismiss, Georgia "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." Thompson, 555 F. Supp. 3d at 1360 (citing O.C.G.A. § 45-9-20). The Court explained, however, that because ASPIRE did not present "evidence that it is in fact insured by the State" against civil-rights lawsuits, the Court could not find that the State is liable for judgments against ASPIRE. Id.
There is still no evidence showing that ASPIRE purchased liability insurance from Georgia. While Glass' testimony seems to imply that it did, ASPIRE has not provided further documentation or even a clear statement about its insurance. Thus, although it is possible that purchasing Georgia insurance would point towards immunity, there is no evidence establishing this. Cf. Freyre, 910 F.3d at 1384 (explaining that the fact that a sheriff's office was self-insured, rather than insured through Florida's state liability insurance, weighed against immunity).
Further, there is no evidence here "that the State of Georgia would be obligated or incentivized to prop up" ASPIRE "in the event of its financial distress or insolvency." Miller, 677 F. App'x at 565. In her affidavit, Glass explained that if ASPIRE had to pay a "substantial judgment[,] . . . the State would ultimately have to choose between increasing its appropriation to make up the shortfall or shirking its statutorily recognized duty to provide for its needy mental health and disabled citizens." (Doc. 51-10 ¶ 10). The Eleventh Circuit, however, expressly rejected this argument in Miller. There, the Eleventh Circuit explained that Georgia is free to "alter and merge the boundaries of" a community service board's "service area as it deems necessary." Miller, 677 F. App'x at 565 (citing O.C.G.A. § 37-2-3(a)-(b)). Further, the State could "contract with a private provider" to administer ASPIRE's services. See id. Thus, although "such a service transition would not be costless for the State," it is far from clear that Georgia would have to foot the bill for a judgment against ASPIRE to avoid "leaving vulnerable citizens without needed care." See id. Accordingly, the fourth Manders factor weighs against immunity.
Here, the first and third Manders factors weigh in favor of immunity for ASPIRE and the second and fourth factors weigh against immunity. Because the fourth factor is "the most important of the Manders calculus," the Manders factors here weigh against sovereign immunity. See Freyre, 910 F.3d at 1384 (citations omitted). Thus, ASPIRE has not met its burden of establishing that it is an arm of the State entitled to Eleventh Amendment immunity, and the Court will analyze Plaintiff's claims against ASPIRE.
B. Claims Against ASPIRE
Plaintiff claims that ASPIRE, acting under color of state law (1) employed policies, customs, and practices that constituted deliberate indifference that deprived her of her substantive due process right to bodily integrity, and (2) failed to investigate prospective employees properly and to train and supervise employees after hiring. (Doc. 30 ¶¶ 65-71). ASPIRE argues that Plaintiff's substantive due process claim fails because she was not in custody in the Touchstone program and did not have a protected liberty interest in her bodily integrity, and because ASPIRE could not have acted with deliberate indifference because it did not know of any strong likelihood of harm to Plaintiff. (Doc. 51-1 at 18-20). Plaintiff responds that she was in ASPIRE's custody, that she had a protected liberty interest in her bodily integrity, and that ASPIRE acted with deliberate indifference towards her complaints of sexual harassment. (Doc. 55 at 9-12).
To establish that a local government entity is liable for constitutional violations under 42 U.S.C. § 1983, the plaintiff must establish that the alleged constitutional violations resulted from the entity's custom, policy, or practice. Underwood v. City of Bessemer, 11 F.4th 1317, 1333 (11th Cir. 2021) (quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)); see also Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A local government entity's custom, policy, or practice may underlie a 42 U.S.C. § 1983 claim even though it "has not received formal approval through the body's official decisionmaking channels" if the plaintiff shows it is sufficiently "widespread" as to "constitute a custom or usage with the force of law." Torres-Bonilla v. City of Sweetwater, 805 F. App'x 839, 840 (11th Cir. 2020) (per curiam) (first citing Monell, 436 U.S. at 690-91, 98 S.Ct. 2018; and then citing Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991)). A local government entity, however, "cannot be found liable under a theory of respondeat superior." Underwood, 11 F.4th at 1333 (citing City of Canton v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). "Instead, the plaintiff must demonstrate" that the local government entity's "policy or custom was the 'moving force' behind the alleged constitutional violation." Id. (first citing Harris, 489 U.S. at 389, 109 S.Ct. 1197; and then citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). "[R]andom acts or isolated incidents" are generally "insufficient to establish a custom or policy." Khoury v. Mia.-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1131 (11th Cir. 2021) (citation omitted).
The Parties do not dispute that ASPIRE is a local government entity that may be held liable under 42 U.S.C. § 1983. (See Doc. 51-1 at 13-14, 18-20); see also Langston v. Lookout Mountain Cmty. Servs., 775 F. App'x 991, 996 (11th Cir. 2019) (per curiam) (holding that a community service board was a "government actor"). In Griffin v. City of Opa-Locka, the Eleventh Circuit held that a city was liable for constitutional violations where "sexual harassment was the on-going, accepted practice" of the city and "the City Commission, Mayor, and other high ranking City officials knew of, ignored, and tolerated the harassment." 261 F.3d 1295, 1308 (11th Cir. 2001). Here, however, Plaintiff has neither identified an official ASPIRE custom, policy, or practice condoning sexual assault by its employees nor an informal policy that was the moving force behind her constitutional harm. Plaintiff argues that ASPIRE owed her a duty to ensure her "reasonable safety" but does not explain how any ASPIRE custom, policy, or practice violated her right to substantive due process. (See Doc. 55 at 10).
Plaintiff's claim that ASPIRE acted with deliberate indifference towards her complaints of Wimberly's sexual harassment is similarly deficient. Plaintiff asserts that she reported Wimberly's behavior that made her uncomfortable to an ASPIRE staff member and that no one ever "followed up to escalate the matter or to initiate an investigation." (Id. at 11-12; Doc. 56 ¶¶ 16-17). But Plaintiff does not argue that ASPIRE had a custom, policy, or practice of ignoring complaints of sexual harassment, which is required to hold ASPIRE liable for her alleged constitutional harm. Even if Plaintiff had argued that ASPIRE had such a custom, policy, or practice, by her own admission she only reported Wimberly's conduct to one ASPIRE staff member. (See Doc. 55-1 at 60:19-61:22). One incident of an employee failing to act after a report of misconduct is generally "insufficient to establish a custom or policy." See Khoury, 4 F.4th at 1131 (citation omitted). Viewing the evidence in the light most favorable to Plaintiff, there is no genuine issue of material fact as to whether ASPIRE maintained a custom, policy, or practice that led to the alleged constitutional violations. Accordingly, ASPIRE is entitled to summary judgment on Plaintiff's claims.
II. Wimberly's Motion for Summary Judgment
Wimberly argues that he is entitled to summary judgment because he was not acting under color of state law as an ASPIRE employee and because his alleged conduct did not rise to the level of a substantive due process violation. (Doc. 54-1 at 7-13). Plaintiff responds that the issue of fact regarding whether she consented to the sexual encounters with Wimberly precludes summary judgment, that Wimberly acted under color of state law as an ASPIRE employee, and that she has established a violation of her substantive due process rights because Wimberly's conduct shocks the conscience. (Doc. 58 at 5-14).
To prevail in a civil-rights action under 42 U.S.C. § 1983, the plaintiff "must show that they were 'deprived of a federal right by a person acting under color of state law.' " Leake v. Drinkard, 14 F.4th 1242, 1247 (11th Cir. 2021) (quoting Griffin, 261 F.3d at 1303), cert. denied, — U.S. —, 142 S. Ct. 1443, 212 L.Ed.2d 538 (2022). "A person acts under color of state law when he acts with authority possessed by virtue of his employment with the state." Stephens v. DeGiovanni, 852 F.3d 1298, 1314 (11th Cir. 2017) (quoting Griffin, 261 F.3d at 1303). As previously explained, Georgia law classification of community service boards as "public agencies" and "instrumentalit[ies] of the state" is "clear and definitive." See Langston, 775 F. App'x at 996 (alteration in original) (quoting O.C.G.A. §§ 37-2-6(a), 37-2-6.3(a)); Miller, 677 F. App'x at 560. Thus, the Eleventh Circuit has treated community service boards as government actors for purposes of 42 U.S.C. § 1983 claims. See Langston, 775 F. App'x at 996; Collier v. Clayton Cnty. Cmty. Serv. Bd., 236 F. Supp. 2d 1345, 1368-69 (N.D. Ga. 2002), aff'd sub nom. Collier v. Clayton County, 82 F. App'x 222 (11th Cir. 2003) (mem.). Plaintiff's allegations against Wimberly are for actions he took while he was working at ASPIRE's facility. Accordingly, Wimberly—who acting with authority possessed by virtue of his employment at the time of the incident—is a state actor for purposes of Plaintiff's claims. See Griffin, 261 F.3d at 1303-07 (explaining that a government employee who used his authority to commit sexual assault was acting under color of state law).
The Fourteenth Amendment's "Due Process Clause protects individuals against arbitrary exercises of government power." T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty., 610 F.3d 588, 598 (11th Cir. 2010) (citing County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)); Doe v. Moore, 410 F.3d 1337, 1342 (11th Cir. 2005). Substantive due process bars any abuse of power by a state actor that "shocks the conscience" and protects individuals' liberty interest in their bodily integrity. Lewis, 523 U.S. at 846, 118 S.Ct. 1708; Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). "[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscious-shocking level." T.W., 610 F.3d at 598 (alteration in original) (quoting Lewis, 523 U.S. at 849, 118 S.Ct. 1708). Not every harm inflicted by "someone cloaked with state authority," however, constitutes a substantive due process violation. Id. (citing Lewis, 523 U.S. at 848, 118 S.Ct. 1708). "[O]nly the most egregious official conduct" will shock the conscience, and 42 U.S.C. § 1983 cannot be used "to convert state tort claims into federal causes of action." Id. (quoting Lewis, 523 U.S. at 846, 848, 118 S.Ct. 1708) (other citation omitted). Conscious-shocking action occurs "only at the [high] end[ ] of the tort law spectrum of culpability." Waldron v. Spicher, 954 F.3d 1297, 1311 (11th Cir. 2020) (quoting Lewis, 523 U.S. at 848, 118 S.Ct. 1708) (alterations in original); T.W., 610 F.3d at 598 (citation omitted). Thus, a state actor's tortious conduct violates substantive due process "only if it also 'shocks the conscience.' " Waddell v. Hendry Cnty. Sheriff's Off., 329 F.3d 1300, 1305 (11th Cir. 2003) (quoting Dacosta v. Nwachukwa, 304 F.3d 1045, 1048 (11th Cir. 2002) (per curiam)).
The Eleventh Circuit recently explained that "all sexual misconduct is egregious." Johnson v. White, 989 F.3d 913, 915 n.1 (11th Cir. 2021). Further, the Eleventh Circuit has assumed for the purpose of appeal that individuals have a substantive due process right "not to be sexually abused by a state official acting under color of law." See Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1265-66 (11th Cir. 2010); Hartley v. Parnell, 193 F.3d 1263, 1268 (11th Cir. 1999). The Eleventh Circuit has also explained that "under certain circumstances, a rape of a person by a police officer or other state actor could violate the Constitution." Almand v. DeKalb County, 103 F.3d 1510, 1513 (11th Cir. 1997) (citations omitted). Thus, while not explicitly stating that rape by a state actor is a substantive due process violation, circumstances such as these where the state actor used the power of his position to commit sexual assault are not only egregious but also shock the conscience.
Other circuit courts that have considered the issue have held that sexual assault by a state actor violates a plaintiff's right to substantive due process. For example, in the qualified immunity context, it is "clearly established in" the Eighth Circuit "that the commission of a sexual assault by a government official acting under color of law constitutes a violation of due process that shocks the conscience." Johnson v. Phillips, 664 F.3d 232, 239 (8th Cir. 2011) (first citing Rogers v. City of Little Rock, 152 F.3d 790, 796 (8th Cir. 1998); and then citing Haberthur v. City of Raymore, 119 F.3d 720, 723 (8th Cir. 1997)). The Fourth, Fifth, Sixth, and Seventh Circuits have reached similar conclusions. See Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (explaining that an officer who raped the plaintiff after a traffic stop violated her "substantive due process right under the Fourteenth Amendment not to be subjected by anyone acting under color of state law to the wanton infliction of physical harm" (citations omitted)); United States v. Dillon, 532 F.3d 379, 386-87 (5th Cir. 2008) (holding that an assistant city attorney acted under color of state law and violated the plaintiff's right to bodily integrity when he sexually assaulted her); United States v. Morris, 494 F. App'x 574, 581 (6th Cir. 2012) (explaining that "it is more than obvious that the right to not be raped by a law enforcement officer lies at the core of the rights protected by the Due Process Clause" (citation omitted)); Wudtke v. Davel, 128 F.3d 1057, 1063 (7th Cir. 1997) (holding that the plaintiff stated a substantive due process violation by alleging that her "assaulter [w]as enabled to take his actions because of his governmental position").
Plaintiff argues that Wimberly violated her right to bodily integrity by sexually assaulting her while she was an ASPIRE patient. (Doc. 58 at 8-10). As discussed above, the parties dispute whether Plaintiff consented to the sexual encounters with Wimberly. Viewing the facts in the light most favorable to Plaintiff—which the Court is required to do at summary judgment—Wimberly grabbed Plaintiff's arm, pulled her into a closet, and forced himself on her even after she blocked her body with her hands and told him to stop. (Doc. 58-1 ¶ 11); see Gogel, 967 F.3d at 1134 (quoting Thomas, 506 F.3d at 1363). Wimberly further used his position at ASPIRE and Plaintiff's custodial conditions to coerce her into unwanted sex.
No governmental interest justifies Wimberly's sexual encounters with Plaintiff while she was a patient at ASPIRE. Further, as an ASPIRE employee, he had the ability to impact Plaintiff's experience in the Touchstone program and "made it very clear" that "he could get people kicked out" of the program "if he wanted to." (See Doc. 55-1 at 73:14-25). Viewing the facts in the light most favorable to Plaintiff, Wimberly used his authority as an ASPIRE employee to sexually assault her despite her non-consent. This violated her substantive due process right to bodily integrity, and, considering the power imbalance between Wimberly as a state actor and Plaintiff as a patient in the Touchstone program, satisfies the conscious-shocking standard. Further, Georgia tort law provides for remedies for sexual assault and sexual battery under the general tort provisions for assault and battery. See Johnson, 989 F.3d at 916 n.3; see generally O.C.G.A. §§ 51-1-13, 51-1-14. Considering the lack of consent and power differential, this case is sufficiently at the high end of the tort culpability spectrum to shock the conscience. Thus, Wimberly's Motion for Summary Judgment is DENIED.
CONCLUSION
Accordingly, ASPIRE's Motion for Summary Judgment (Doc. 51) is GRANTED, and Wimberly's Motion for Summary Judgment (Doc. 54) is DENIED.
SO ORDERED, this 8th day of August, 2022.