Opinion
2:23-CV-673-ECM-KFP
08-02-2024
ADAM BUSH, et al., Plaintiffs, v. ALABAMA DEPARTMENT OF HUMAN RESOURCES, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
KELLY FITZGERALD PATE, UNITED STATES MAGISTRATE JUDGE.
Plaintiffs Adam Bush and Delsea Creel have sued the Alabama Department of Human Resources (DHR); Nancy Buckner, commissioner of DHR; Dan Williams, director of Montgomery County DHR; Estella Derico, case agent for Montgomery County DHR; Supervisor Presley, Derico's supervisor at Montgomery County DHR; Health Care Authority for Baptist Health d/b/a Baptist Medical Center East (Baptist); an unknown nurse at Baptist Medical Center East; and an unknown employee of Baptist Medical Center East.Doc. 1 at 1-4. All named individual Defendants (Buckner, Williams, Derico, and Presley) are sued in their individual capacities. Id. ¶¶ 8-11.
Defendant Presley's first name is unknown, and Plaintiffs have not served Presley, Buckner, or the two unknown defendants.
Before the Court are Motions to Dismiss by Baptist (Doc. 10), Danny Williams (Doc. 13), Alabama DHR (Doc. 14), and Estella Derico (Doc. 36). Based on the parties' filings and applicable case law, the undersigned RECOMMENDS as follows:
I. JURISDICTION AND VENUE
The Court has original subject matter jurisdiction under 28 U.S.C. § 1331 over Plaintiffs' federal claims of constitutional violations brought pursuant to 28 U.S.C. § 1983. The Court has supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. Personal jurisdiction is not contested, and the Court concludes venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.
II. STANDARD OF REVIEW
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” and each factual allegation should be “simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2) & (d)(1). To “‘state a claim to relief that is plausible on its face[,]'” a plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 570).
III. PLAINTIFFS' FACTUAL ALLEGATIONS
Only facts pertinent to resolving the Defendants' motions are included, and the Court has taken the facts alleged in the Complaint as true and construed them in the light most favorable to Plaintiffs, as it is required to do at this stage. Bailey v. Wheeler, 843 F.3d 473, 478 n.3 (11th Cir. 2016) (stating that court at motion-to-dismiss stage “must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor”).
Plaintiffs Adam Bush and Delsea Creel are the parents of minor children L.C. and H.E., who are also plaintiffs. Doc. 1 at 2. Plaintiffs allege they arrived at Baptist on November 12, 2021, for the birth of L.C., who was born that same day. Id. ¶ 15. Upon admission, the hospital tested Creel's urine by a peel strip panel urine test, which, according to the hospital, was positive for Buprenorphine. Id. Creel was under the care of a gynecologist, and the gynecologist prescribed the drug for her. Id.
After L.C. was born, an unknown nurse tested L.C.'s meconium without permission from Bush or Creel, and the test was positive for amphetamines. Id. ¶ 16. On November 17, 2021, DHR filed a dependency complaint in Montgomery County juvenile court seeking temporary removal and custody of L.C. Id. ¶ 17. Defendant Estella Derico, a DHR case worker, signed the complaint. Id. ¶ 10, 17. A hearing was held, of which the parents were given no notice, and on November 17 Judge Calvin Williams denied DHR's request for a pickup order. Id. ¶ 17. Judge Williams released L.C. to Plaintiff Bush, the child's father, but Derico told Bush and Creel that L.C. would be discharged to them if they would leave the hospital and take a drug screen with negative results. Id. ¶¶ 17-18. She also told them that “all they had to do was wait on [her] to arrive at the hospital so that she could follow [them] to their home for a walk through to see the condition of the home.” Id. ¶ 18.
The Complaint states that L.C.'s meconium tested positive for amphetamines but does not state whether it was positive for the same drug prescribed to Creel.
Bush and Creel agreed to a drug test but asked to go to LabCorp across the street from the hospital instead of Primed, which Creel believed to be unreliable. Id. ¶ 19. Derico insisted on sending them to Primed but gave them wrong directions, which caused them to take longer than expected to complete the drug tests. Id. However, they arrived back at the hospital within one hour, and the drug screens ultimately came back with negative results for both parents. Id.
While Bush and Creel were awaiting a phone call from Derico, a nurse came to get L.C. for a bilirubin test. Id. ¶ 21. Five minutes later, Defendant Presley, Derico's supervisor at DHR, called Bush and Creel and told them L.C. could not be released to them because they were uncooperative with DHR. Id. They were told to leave the hospital or security would be called. Id.
An unknown hospital employee then called the parents' room and told them to leave the room and that there was nothing Baptist could do, as “they were simply following protocol and following DHR's lead.” Id. ¶ 23. Bush and Creel left Baptist without L.C. and without knowing where she would be placed or who would be caring for her. Id.
After Bush and Creel arrived home, Derico called them and seemed confused because she thought L.C. had been allowed to leave with them. Id. ¶ 24. Derico had no knowledge of where L.C. had been placed. Id. ¶ 25. The following day, on November 18, 2021, Presley and Derico forced the parents and paternal grandparents to sign a safety plan under which L.C. was released to the paternal grandparents and the parents were given only supervised visitation. Id. ¶¶ 25, 59, 65.
Presley and Derico, knowing DHR's request for a pickup order had been denied and that Judge Williams had ordered L.C. to be released to her father, told Baptist not to let the parents leave with L.C. Id. ¶ 26. Bush, Creel, and the paternal grandparents fully complied with DHR at first; however, when they learned of Judge Williams's order, the parents picked up L.C. from the paternal grandparents and did not allow anyone from DHR to return to their home. Id. ¶¶ 27-28.
On December 28, 2021, Derico and Presley filed a second dependency complaint with sworn statements alleging both parents' hair follicle tests were positive for methamphetamine. Id. ¶ 29. Plaintiffs say this claim was false because they were never asked to submit to a hair follicle test and never did. Id. ¶¶ 29, 70. The second petition also asserted that the parents and parental grandparents refused to comply with DHR's safety plan. Id. ¶ 29. In response to this second complaint, Judge Lloria James issued a pickup order on December 28, 2021, and DHR went to the parents' home with police that same day to pick up L.C. Id. ¶¶ 30-31. Plaintiffs do not identify the person from DHR who came to their house to pick up L.C. Minor Plaintiff H.E., then seven years old, became scared when DHR arrived and took L.C. into a closet to hide. Id. ¶ 32. A few days later, Judge James held a hearing and “was standing up on her bench chastising Derico for allowing her superiors to send her into court with such misrepresentations and withholding information such as the first Order that was signed by Judge Williams releasing [L.C.] to [Bush].” Id. ¶ 34. Judge James returned L.C. to the parents. Id. ¶ 35.
Plaintiffs reference this second petition as Exhibit 3 to the Complaint (Doc. 1 ¶ 70), but it is not attached.
Plaintiffs allege the above actions caused their children to be deprived of the love and affection of their parents and each other and the ability to bond with their parents and each other as siblings. Id. ¶ 36. They allege the parents suffered economic loss, severe mental anguish and emotional distress, humiliation, and loss of custody of L.C. Id. ¶ 37. Their Complaint was filed November 17, 2023, two years after the day Creel was discharged from the hospital, and contains seven counts:
1. Count I: 42 U.S.C. § 1983 claim against all Defendants asserting that DHR's policies and procedures are unconstitutional and that Plaintiffs' Fourth, Fifth, Sixth, and Fourteenth constitutional rights were violated.
2. Count II: § 1983 claim asserting that DHR, Buckner, Williams, Derico, and Presley failed to follow DHR's policies and procedures in violation of Plaintiffs' Fourth, Fifth, Sixth, and Fourteenth Amendment rights.
3. Count III: Negligence and Wantonness against all Defendants.
4. Count IV: Intentional Infliction of Emotional Distress against all Defendants.
5. Count V: Negligent Supervision against DHR, Buckner, and Williams.
6. Count VI: Fraudulent Misrepresentation against DHR, Williams, Derico, and Presley.
7. Count VII: Fraudulent Misrepresentation against Baptist and the unknown Baptist employee.
In Alabama, intentional infliction of emotional distress is termed the “tort of outrage.” See Evans v. Waddell, 689 So.2d 23, 30 (Ala. 1997) (citing Am. Rd. Serv. Co. v. Inmon, 394 So.2d 361 (Ala. 1980)).
IV. PLAINTIFFS' FIFTH AND SIXTH AMENDMENT CLAIMS
Plaintiffs allege their due process rights under the Fifth Amendment and their right to counsel under the Sixth Amendment were violated. The due process clause of the Fifth Amendment applies only to conduct by officials of the federal government, Russell v. Redstone Fed. Credit Union, 710 Fed.Appx. 830, 832 (11th Cir. 2017) (citing Riley v. Camp, 130 F.3d 958, 972 n.19 (11th Cir. 1997)), and there is no indication that any defendant is a federal agent. The Sixth Amendment, which provides criminal defendants a right to counsel, does not apply in civil cases, Turner v. Rogers, 564 U.S. 431, 441 (2011), and there are no allegations that any defendant caused Plaintiffs to be arrested or criminally prosecuted. Therefore, the Court finds Plaintiffs have failed to state a § 1983 claim against any defendant for violations of their Fifth or Sixth Amendment rights, and these claims are due to be dismissed.
The Fifth Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The Complaint states the claims against the unknown nurse and unknown employee are brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), but the mere invocation of Bivens is insufficient to establish that these two defendants were federal officials. They are described as hospital employees, and nothing in the Complaint suggests they were federal officials.
Although none of the pending motions specifically addresses the merits of Plaintiffs' Fifth and Sixth Amendment claims because they raise various types of immunity as defenses to all claims, for the reasons stated above, the Court finds the Fifth and Sixth Amendment claims to be patently frivolous and subject to sua sponte dismissal. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (noting “[t]here is an exception to our general rule against dismissal without notice if the complaint is patently frivolous”). If a claim is not frivolous, a district court must provide the plaintiff with notice of its intent to dismiss or an opportunity to respond. Id.; see also Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 526-27 (11th Cir. 1983) (“The rule that emerges . . . is that courts exercise their inherent power to dismiss a suit that lacks merit only when the party who brought the case has been given notice and an opportunity to respond.”). Even though these claims are frivolous, this Recommendation provides notice of the dismissal to Plaintiffs, as the fourteen-day objection period discussed below will give them an opportunity to object to the Magistrate Judge's findings and conclusions and explain why all or any part of this case should not be dismissed. Shivers v. Int'l Bhd. of Elec. Workers Loc. Union 349, 262 Fed.Appx. 121, 125, 127 (11th Cir. 2008) (recognizing magistrate judge's issuance of a report and recommendation and opportunity to object provided sufficient notice and opportunity to respond to support sua sponte summary judgment).
V. LACK OF SERVICE AND FICTITIOUS DEFENDANTS
As mentioned above, Plaintiffs have not served Nancy Buckner, Supervisor Presley, the unknown nurse, or the unknown employee. This case was filed on November 17, 2023. Doc. 1. On February 21, 2024, when the Complaint had been pending for more than 90 days but the docket reflected no defendant had been served, the Court ordered Plaintiffs to show cause why the case should not be dismissed. Doc. 6. Plaintiffs immediately filed executed summonses showing that Alabama DHR, Defendant Williams, and Baptist had been served. Docs. 7, 8, 9. On March 6, 2024, Plaintiffs filed a show cause response describing their attempts to serve Nancy Buckner, Estella Derico, and Supervisor Presley and seeking additional time to perfect service. Doc. 18. The Court granted an extension to April 15, 2024. Doc. 21.
When this deadline passed but Plaintiffs had filed nothing indicating that service had been perfected, the Court issued a second show cause order on April 25, 2024. Doc. 27. Two weeks later on May 9, 2024, Plaintiffs filed a copy of the executed summons showing Derico had been served on April 15. Doc. 33. They offered no explanation for the delay between serving Derico on April 15 and filing the executed summons on May 9; however, they described additional attempts to serve Buckner and Supervisor Presley. Doc. 34. According to Plaintiffs, they tried to serve Buckner at her office, but the process servers were told repeatedly that Buckner was unavailable or not in the office. Id. ¶ 3. Defendant Presley no longer works at DHR. Id. ¶ 4. Plaintiffs do not know her first name, but they state in their show cause response that discovery will be required to determine her full name and properly serve her. Id. ¶¶ 4-5. More than two months have since passed, and neither Buckner nor Presley have been served. Plaintiffs have made no further filings addressing this lack of service.
A. Nancy Buckner
Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Good cause exists “only when some outside factor[,] such as reliance on faulty advice, rather than inadvertence or negligence, prevented service.” Tidwell v. Dunn, No. 5:21-CV-461-LSC-SGC, 2024 WL 1241980, at *4 (N.D. Ala. Mar. 1, 2024), report and recommendation adopted, No. 5:21-CV-461-LSC-SGC, 2024 WL 1241948 (N.D. Ala. Mar. 22, 2024) (quoting Lepone-Dempsey v. Carroll Cty. Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (internal quotations omitted). Absent good cause, a court still has discretion to extend the service deadline. Id.
Plaintiffs' claims have a two-year statute of limitations. Gorman v. Wood, 663 So.2d 921, 922 (Ala. 1995) (stating Alabama's two-year statute of limitations applies to § 1983 claims); Ala. Code § 6-2-38(l) (residual subsection requiring that all actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in § 6-2-38 be brought within two years). Plaintiffs waited two years to the day before filing this lawsuit, and it has now been pending more than eight months. The Court granted an extension of time to perfect service and issue two show cause orders indicating the potential for dismissal (Docs. 6, 27), but Buckner still has not been served. While the Court understands that service can be difficult, Plaintiffs seem content to live with a lack of service, no matter how long the delay. And the delay here has not been minimal.
To the extent that Buckner is, in fact, avoiding service, as Plaintiffs allege:
The Federal Rules of Civil Procedure state that unless it is contrary to federal law, one of the ways that service may be made upon individuals within a judicial district of the United States is “pursuant to the law of the state in which the district court is located. . .” Fed.R.Civ.P. 4(e)(1). Thus, when a suit is filed in federal district court in the Middle District of Alabama, a plaintiff may serve on a defendant a copy of the complaint and a summons by any means authorized by Alabama law. The question for the court is whether the facts of this case present an occasion where Alabama law would authorize service by publication. See Beasley v. U.S., 162 F.R.D. 700 (M.D. Ala. 1995).
Alabama Rule of Civil Procedure 4.3 describes the circumstances in which service by publication is authorized. While Alabama courts acknowledge that interpreting Rule 4.3 is a difficult task, Alabama courts have indicated that service by publication is permissible in two circumstances. First, service by publication is permitted where a resident defendant has avoided service and cannot be located, and second, where service is sought upon a corporation having one of its principal places of business within the state. See Shaddix v. Shaddix, 603 So.2d 1096, 1098 (Ala. Civ. App. 1992) (citing Wise v. Siegel, 527 So.2d 1281 (Ala. 1988)).Thomas v. Morgan, 1 F.Supp.2d 1424, 1425 (M.D. Ala. 1998). Nothing in the record indicates that Plaintiffs were prevented from serving Buckner by publication, and nothing in the record indicates they tried. In Veazey v. Young's Yacht Sale andServ., Inc., 644 F.2d 475 (5th Cir. 1981), when the plaintiff waited almost two years before serving certain defendants and those defendants moved for a dismissal, the district court granted the motion. The appellate court affirmed, noting:
Delay alone can infuse an adverse element into the proper flow of litigation: evidence deteriorates or disappears, memories fade, and witnesses die or move away. If the delay is unjustified, the court can and must act to redress the balance.
...
To permit a delay in service when the complaint is served immediately prior to the running of the statute of limitations undercuts the purposes served by the statute. Once the statute has run, a potential defendant who has not been served is entitled to expect that he will no longer have to defend against the claim. If service can be delayed indefinitely once the complaint is filed within the statutory period, these expectations are defeated and the statute of limitations no longer protects defendants from stale claims.Id. at 476-77 (citation omitted). Accordingly, the appellate court found the district court did not abuse its discretion in granting the dismissal with prejudice for want of prosecution. Id. at 478-79; see also Tidwell, 2024 WL 1241980, at *3 (when plaintiff's counsel had two surgeries and his mother passed away within a nine-month period, finding no good cause, refusing to extend 4(m) deadline, as plaintiff's response to show cause order did not indicate counsel was unable to work during service window, and finding grant of discretionary extension was not warranted because of other delays in case). As the Tidwell court stated:
The plaintiff's delay in filing, serving, and prosecuting this lawsuit places it at the intersection between the statute of limitations and the time limits imposed on service; it also sits in the vicinity of Rule 41(b). While the delay in service here was not as prolonged as the plaintiffs' respective delays in Veazey and Stephens, the rationale expressed in those cases applies nonetheless. Statutes of limitation “represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” United States v. Kubrick, 444 U.S. 111, 117 (1979) (internal quotation marks omitted). Surely the mere filing a of complaint-without timely service-does not indefinitely toll a statute of limitations. See Rudder v. Williams, 47 F.Supp.3d 47, 52 (D.D.C. 2014). Plaintiffs who wait until late in the limitation period to file a lawsuit are well-advised to exercise vigilance-or at least diligence-in perfecting service.2024 WL 1241980, at *6 (emphasis added). See Roberts v. Anderson, No. 23-12824, 2024 WL 1364698, at *2 (11th Cir. Apr. 1, 2024) (finding court did not abuse discretion in dismissing claims against defendants under Rule 4(m) because plaintiffs, despite multiple warnings and extensions, failed to perfect service more than a year after filing initial complaint and concluding district court properly considered circumstances that could have warranted further extension of time, such as running of the statute of limitations) (citing Lepone-Dempsey, 476 F.3d at 1282).
The Fifth Circuit issued Veazey on May 4, 1981, before the Eleventh Circuit split; accordingly, it is binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (adopting as binding precedent all decisions of the former Fifth Circuit issued through September 30, 1981).
Here, neither vigilance nor diligence was exercised by Plaintiffs after their initial attempts at service were unsuccessful. Service by publication is a well-known tool of plaintiffs in the diligent prosecution of a case when a defendant cannot be served, but it is not the Court's responsibility to instruct Plaintiffs' counsel when to use it or even to use it at all. Plaintiffs waited until the final day before the expiration of the statute of limitations to file this case, and they made no efforts to overcome the initial difficulties encountered when trying to serve Defendant Buckner at her office. Accordingly, the claims against Buckner are due to be dismissed without prejudice under Federal Rule of Civil Procedure Rule 4(m).
Under the circumstances of this case, the Court concludes the running of the statute of limitations does not warrant an extension of the time for service. See Boston v. Potter, 185 Fed.Appx. 853, 854 (11th Cir. 2006) (“While the running of the limitations period is a factor the district court may consider in determining whether to dismiss a complaint under Rule 4(m), the district court is not required to give this controlling weight.”); Lepone-Demsey, 476 F.3d at 1282 (stating district court must consider running of statute of limitations but that factor “does not require that the district court extend time for service of process under Rule 4(m)”); Grier v. Lee Cnty. Comm'n, No. 3:16-CV-931-SRW, 2019 WL 919005, at *4 (M.D. Ala. Feb. 25, 2019) (noting that excusing plaintiff's failure to comply with Rule 4(m) “at this juncture would permit the exception to swallow the rule[] and would be inconsistent with the purpose of the civil rules, which is to secure the just, speedy, and inexpensive determination of every action and proceeding”) (quotation and internal quotations omitted).
B. Fictitious Defendants
The Complaint asserts claims against three fictitious defendants: Supervisor Presley, an unknown nurse, and an unknown administrative employee of Baptist. Generally, “fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). The Eleventh Circuit “has never permitted John Doe pleading solely on the ground that discovery might reveal an unnamed defendant's identity. Instead, our precedent has always required an unambiguous description of a defendant that enables service of process.” Vielma v. Gruler, 808 Fed.Appx. 872, 880 (11th Cir. 2020) (citing Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992)). The “highly generic (e.g., ‘a male detective,' ‘one of the officers at the hospital,' or ‘an FBI Agent') to the ever-so-slightly less generic (e.g., ‘[a] female white officer about 5 feet 10-11 inches in height' or ‘a middle-aged white male [officer]')” are insufficient descriptions because they “fail[ ] to describe the [Doe] defendants with enough specificity to enable service of process.” Id.; see also Beaty v. Dunn, No. 2:20-CV-279-ECM, 2022 WL 1721249, at *5 (M.D. Ala. May 27, 2022) (“In this case, Beaty has identified categories of unknown officers, and has pleaded that they were on duty. This identification does not rise to the level of specificity identified by the Eleventh Circuit.”); Daniel v. Howell, No. 2:20-CV-145-WKW, 2020 WL 7029152, at *2 (M.D. Ala. Nov. 30, 2020) (dismissing the fictitious party claims and holding plaintiffs' labels of fictitious defendants as “officers 1, 2, and 3” were ambiguous and lacked necessary specificity to qualify under the limited exception.
The Eleventh Circuit has recognized a narrow exception permitting fictitious pleading and allowing discovery where the plaintiff's description of the fictitious defendant is specific enough to be considered surplusage, at the minimum. Dean, 951 F.2d at 121516. The exception is meant to encompass instances when, for “one reason or another, the plaintiff is unwilling or unable to use a party's real name.” Taylor v. Brooks, No. 5:20-CV-467-CLS, 2020 WL 3129862 (N.D. Ala. 2020) (quoting Dean, 951 F.2d at 1215). In Huffman v. Dunn, No. 4:20-CV-1293-CLM, 2021 WL 2533024, at *9 (N.D. Ala. June 21, 2021), Judge Maze succinctly summarized the exception this way:
The cases discussing the exception seem to turn on whether the description of the fictitious defendant (a) allows the reader to point to a specific individual or (b) leaves the reader wondering which person(s) out of a group fits the bill. The former is allowed; the latter is not.Id. (comparing Dean, 951 F.2d at 1215 (holding plaintiff's pleading of “Chief Deputy of the Jefferson County Jail John Doe” sufficient because it pointed to knowable, singular defendant) with Richardson, 598 F.3d at 738 (holding plaintiff's identification as “John Doe (Unknown Legal Name), Guard, Charlotte Correctional Institute” insufficient in identifying defendant “among the many guards employed [there]”)). Where a plaintiff's descriptions leave the reader “unable to identify the particular individual described,” it will fall outside the narrow exception for fictitious party pleading. Huffman, 2021 WL 2533024, at *9 (holding insufficient plaintiff's descriptions of two groups: “Each of Defendants Unknown Shift Commanders was a shift commander on duty in the L/M and P/Q Blocks at the St. Clair Prison on the date of Mr. Pettiway's murder on September 2, 2018” and “Defendants Unknown Correctional Officers were correctional officers at the St. Clair Prison at the time of the events at issue [and] were responsible for supervising and monitoring Mr. Pettiway's housing unit and the areas where these events took place at the St. Clair Prison on September 2, 2018”). While not binding precedent on this Court, the summary of the Eleventh Circuit's exception to the general prohibition is instructive, and this Court agrees with it.
1. Supervisor Presley
Supervisor Presley is described in the Complaint as the “[s]upervisor responsible for overseeing employee Derico and [ ] an employee/agent of [Alabama DHR].” The Court finds that Plaintiffs' description of this fictitious defendant is similar to the description in Dean above (“Chief Deputy of the Jefferson County Jail”) and that it fits the narrow exception of fictitious party pleading because it points to a knowable, singular defendant. Taylor v. Brooks, 2020 WL 3129862 (N.D. Ala. 2020) (quoting Dean, 951 F.2d at 1215).
However, the record reflects no attempt by Plaintiffs to discover this individual's full identity in order to serve her. The reasoning applied above to the lack of service on Buckner applies equally to Presley. It is no secret that our courts “recognize[] that a plaintiff may properly seek early discovery pursuant to Rule 26(d), prior to the completion of the Rule 26(f) conference by court order, and the situation in which a plaintiff is unable to name any defendant without such discovery appears to be a valid situation in which such relief might be granted.” Quad Int'l, Inc. v. Doe, No. 12-CV-673-N, 2013 WL 105253, at *3 (S.D. Ala. Jan. 7, 2013); see also Taylor, 2020 WL 3129862, at *3-4 (allowing early, narrowly tailored limited discovery where fictitious defendants were real parties whose names were unknown to plaintiff but could be easily identified by defendant); King v. Alabama Dep't of Corr., No. 2:12-CV-294-WHA, 2012 WL 2568162, at *3 (M.D. Ala. July 2, 2012) (finding exception to rule on fictitious-party pleading applied where “individual has identified real parties and used specific descriptors which could readily lead to identification of the unknown parties after discovery”).
Plaintiffs have made no request for limited discovery, and, again, it is not the Court's responsibility to instruct Plaintiffs on how to move this lawsuit forward. During the two years that followed the conduct described in the Complaint and the eight months since it was filed, Plaintiffs have failed to seek limited discovery to determine the identity Presley, a person “whose name[] [is] unknown by plaintiff[s] but [ ] who can be easily identified by defendants].” Taylor, 2020 WL 3129862, at *3. Accordingly, for the same reasons set forth above with respect to Buckner, the claims against Presley are due to be dismissed. See White v. City of Birmingham, Ala., 96 F.Supp.3d 1260, 1281 (N.D. Ala. 2015), as amended (May 27, 2015) (“Represented parties are given less leeway to utilize fictitious party pleading than pro se plaintiffs....Further, failure to use discovery tools to discover information necessary to substitute a fictitiously named party militates against sufficient identification.”) (citing Dean, 951 F.2d at 1215-16, and Moulds v. Bullard, 345 Fed.Appx. 387, 390 (11th Cir. 2009)); see also Stevens v. Holder, No. 1:12-CV-1352-ODE, 2014 WL 12799005, at *11 (N.D.Ga. Jan. 31, 2014) (addressing Rule 4(m) in the context of fictitious parties and stating plaintiff's “single attempt to obtain information concerning [a named defendant's] contact information coupled with her passive reliance on the actions of [that defendant's] counsel concerning the waiver of the service of summons falls short of a showing of good cause warranting an extension in this case [and that] efforts to identify the Doe Defendants and Inspector Doe and to obtain [the named defendant's] contact information [were] strikingly inadequate”).
2. Unknown Nurse and Unknown Employee
Plaintiffs describe the “unknown nurse” in the Complaint as follows:
[The nurse] who was directly involved in this case, is an employee/agent of Baptist whose true name is unknown at this time, but will be ascertained as soon as possible. She is the nurse who tested the meconium of Infant Child....Doc. 1 ¶ 13. They describe the “unknown employee” as follows:
[The employee] who was directly involved in this case, is an employee/agent of Baptist and works in Hospital Administration, whose true name is unknown at this time, but will be ascertained as soon as possible. Defendant is an employee in Hospital Administration who stated that Parents needed to pack up their things and leave the room, that there was nothing Baptist could do, as they were simply following protocol and following DHR's lead, who did so simply on the word of DHR employees/agents but failed to obtain proper paperwork from DHR to show that DHR had the care, custody and control of Infant Child.Id. ¶ 14. Unlike Supervisor Presley, who is a knowable, singular person, Plaintiffs' descriptions of these two individuals fall short because they leave the reader “unable to identify the particular individual described.” Huffman, 2021 WL 2533024, at *9. These descriptions are similar or less descriptive than the “female white officer about 5 feet 10- 11 inches in height,” the unknown shift commanders “on duty in the L/M and P/Q Blocks at the St. Clair Prison on the date of Mr. Pettiway's murder on September 2, 2018,” and the “correctional officers at the St. Clair Prison at the time of the events at issue . . . responsible for supervising and monitoring Pettiway's housing unit and the areas where these events took place,” all of which were found to be inadequate to fit the narrow exception of fictitious pleading. Accordingly, the unknown nurse and unknown employee are due to be stricken from the Complaint.
VI. SHOTGUN PLEADING
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Complaints that do not meet this requirement sometimes fall into the category of “shotgun” complaints, which the Eleventh Circuit described as follows:
Though the groupings cannot be too finely drawn, we have identified four rough types or categories of shotgun pleadings. The most common type-by a long shot-is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint. The next most common type, at least as far as our published opinions on the subject reflect, is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief. Fourth, and finally, there is the relatively rare sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against. The unifying characteristic of all types of shotgun pleadings is that they fail to one degree
or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1321-23 (11th Cir. 2015) (emphasis added). As explained below, a portion of Plaintiff's Complaint meets the third and fourth criteria above and fails to give Defendants adequate notice of the claims against them and the grounds on which those claims rest.
“The Eleventh Circuit has repeatedly and vehemently condemned shotgun pleadings” and “strongly encourages ‘a district court that receives a shotgun pleading [to] strike it and instruct counsel to replead the case-even if the other party does not move the court to strike the pleading.'” Davis v. Joel's Pinson, LLC, No. 2:20-CV-732-AMM, 2020 WL 9261762, at *2 (N.D. Ala. Nov. 4, 2020) (citing Est. of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1356-58 n.3 (11th Cir. 2020) and Weiland, 792 F.3d at 1321).
A. Count I: DHR's Policies Violate the Constitution
Count I is labeled as a 42 U.S.C. § 1983 claim. Plaintiffs repeatedly assert that DHR's policies and procedures are unconstitutional, but the Complaint identifies only one policy: DHR Protocol to Allegations Involving Substance Affected - Exposed Children.They contend DHR, Buckner, and Williams were responsible for creating and implementing this policy and that DHR's “policies and procedures” fail to give parents and children “their constitutional right against unreasonable searches and seizures i.e. consent to search, consent to the testing, consent to review any medical records or judicial review, i.e. probable cause for the same without a warrant; and the right to counsel.” Doc. 1 ¶¶ 38, 40, 43. Along with this language about the creation and implementation of policies and procedures, there are only two descriptions of conduct in this count: (1) the unknown nurse's testing of L.C.'s meconium without parental consent and (2) the unknown employee's failure to obtain documentation of DHR's custody and reliance instead on the “verbal word” of DHR and its employees. Id. ¶ 41. Thus, as best the Court can tell, Count I alleges that DHR's protocol regarding children exposed to substances-which may or may not be set out in full in Count II-is unconstitutional; that DHR, Buckner, and Williams created and implemented this policy; and this policy, along with the unknown nurse's testing of meconium and the unknown employee's failure to get proper paperwork, caused violations of Plaintiffs' due process rights under the Fourteenth Amendment by every Defendant except Buckner. Id. ¶¶ 41-44.
The Complaint references the policy as Exhibit 1, but the only attachments to the Complaint are the civil cover sheet and six proposed summonses. See Docs. 1-1 through 1-7. This same policy is referenced again in Paragraph 47 under Count II and quoted in Paragraph 49, but the Court has no way of knowing (1) if this quoted language is the entirety of the “policies and procedures” claimed to be unconstitutional or (2) which part of this quoted policy allegedly violates the United States Constitution.
The allegation that a policy or procedure is unconstitutional suggests Plaintiffs may have intended to seek a declaratory judgment on the issue of constitutionality, but the Complaint's only mention of this relief is a request for a declaratory judgment that Plaintiffs' rights were violated, not that a particular policy or procedure is unconstitutional.
Count I asserts that Buckner is responsible for the actions and inactions of all DHR employees (Doc. 1 ¶ 43) but concludes by stating that DHR, Williams, Derico, Presley, Baptist, Unknown Nurse, and Unknown Employee-every defendant except Buckner-deprived Plaintiffs of their constitutional rights (id. ¶ 44). And despite the inclusion of Derico and Presley in this list of defendants, there are no factual allegations against them in Count I. Id.
B. Count II: DHR Failed to Follow Policy that Violates the Constitution
After alleging in Count I that DHR's policy regarding children exposed to substances is unconstitutional and that Plaintiffs' constitutional rights were violated by this policy, Count II alleges a § 1983 claim based on DHR's failure to follow this same policy. Doc. 1 ¶¶ 47-50. Plaintiff sets forth the policy as follows:
Per policy (CA/N Allegations And Definitions), when the report is received before the infant is discharged from the hospital, child welfare staff must: make in-person contact with the mother, the infant, hospital medical staff
prior to the infants discharge, the mother's and infant's address must be verified (e.g., relatives, Medicaid records, and a home visit must be made within twelve (12) hours after the infants discharge. During this investigative process it is necessary to determine whether the child may remain safely in the home while treatment and services are provided to address the conditions which place the child at risk of serious harm. Safety assessment involves identifying and evaluating safety threats, and assessing parents' or primary caregivers' protective capacities. Child welfare staff shall be alert to safety threats and implement safety plans (in home, out-of-home [non foster care]) as needed at any time during the assessment.Doc. 1 ¶ 49. A party cannot simultaneously follow a policy and fail to follow a policy- with both resulting in constitutional violations-and Plaintiffs offer no details allowing the reader to reconcile these two claims. They state in a conclusory manner that DHR and its employees failed to follow protocol by not doing “any of their required steps” and “immediately implementing] a Safety Plan removing Infant Child from Parents' custody,” but they fail to factually develop this claim. The only steps identified in the policy are making in-person contact with the mother, infant, and hospital staff; verifying the mother's and infant's address within 12 hours after discharge; and, during the investigative process, determining whether the child may remain safely at home while treatment and services are provided. Plaintiffs' allegations seem to establish that Derico or Presley made in-person contact with the mother and hospital staff, but there are no factual allegations addressing the remaining steps.
Plaintiffs do not plead Counts I and II alternatively. In other words, they do not plead that, in the event the Court finds the identified policy to be constitutional, DHR and its employees failed to follow it. See Doc. 1 ¶ 47 (“Even if these policies and procedures are subsequently found to be unconstitutional, DHR and its agents failed to follow their own protocol.”)
Additionally, Count II is directed at DHR, Buckner, Williams, Derico, and Presley. Doc. 1 at 11. Plaintiffs allege DHR, Buckner, and Williams are responsible for the supervision of their employees and that all of these defendants failed to follow protocol, knew Judge Williams had denied a pickup order, failed to tell the parents about the denial, would not allow L.C. to be released to her father, and forced Plaintiffs to sign a safety plan under threat of foster care. Not only do Plaintiffs fail to specify which defendants were responsible for specific actions, but they conclude Count II by stating their constitutional rights were violated by all of the DHR defendants plus Baptist, the unknown nurse, and the unknown employee. Doc. 1 ¶ 55 (emphasis added). Nothing in the Complaint suggests that Baptist or its employees had a duty to follow DHR policies or that they failed to follow DHR policies, and Plaintiffs have set forth no basis for suing Baptist and its employees for “fail[ure] to follow [DHR's] own protocol.” Doc. 1 ¶ 47. Thus, Plaintiffs fail to specify- in a manner that can be understood-which Defendants are responsible for which acts or omissions and which Defendants the claim is brought against. Adding this shortcoming to the conflicting allegations in Count I that Defendants violated Plaintiffs' rights by following this same allegedly unconstitutional policy, Count II fails to “give the defendant[s] fair notice of what the claim is and the grounds upon which it rests.” Alford v. Consol. Gov't of Columbus, Ga., 438 Fed.Appx. 837, 838 (11th Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations and ellipses omitted)).
C. Remainder of Complaint
Additionally, the Complaint states that all Plaintiffs were harmed by every alleged action or omission, and all Plaintiffs seek damages in every count in the Complaint. To illustrate why this fails to give Defendants fair notice of the claims against them, no facts in the Complaint support a claim that the nurse who tested L.C.'s meconium breached a duty of care owed to L.C.'s older sibling (Count III) or “intentionally and consciously” disregarded his rights by intentionally inflicting emotional distress on him (Count IV). Similarly, no facts allege that a defendant made a fraudulent misrepresentation to the minor children or that they relied any such misrepresentations to their detriment. Thus, as written, the Complaint is not “a short and plain statement of the claim showing that the pleader is entitled to relief” and “fails to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” Nonetheless, the Court will address Defendants' pending motions while accepting all well-pleaded factual allegations as true and drawing all reasonable inferences in Plaintiffs' favor.
VII. WILLIAMS'S MOTION TO DISMISS
Defendant Williams's Motion to Dismiss (Doc. 13) seeks dismissal on the ground that, although he is currently the director of the Montgomery County DHR, he was not the director at the time of the events alleged in the Complaint. Doc. 13 at 7. Plaintiffs conceded this point and agreed that the allegations against Defendant Williams should be dismissed. Doc. 26 at 2.
VIII. ALABAMA DHR'S MOTION TO DISMISS
The Complaint asserts the following claims against Alabama DHR: Count I (DHR's policies are unconstitutional and Plaintiffs' constitutional rights were violated); Count II (DHR failed to follow its policies); Count III (negligence and wantonness); Count IV (intentional infliction of emotional distress); Count V (negligent supervision); and Count VI (fraudulent misrepresentation).
“The Eleventh Amendment protects the immunity of not only the states, but of state agencies and entities that function as an ‘arm of the state.'” Ross v. Jefferson Cnty. Dept. of Health, 701 F.3d 655, 659 (11th Cir. 2012) (citing Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003)). This immunity extends to monetary and injunctive relief. Id. at 661 (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996)). As the Eleventh Circuit has held:
[T]he Eleventh Amendment prohibits federal courts from entertaining suits by private parties against States and their agencies. There are two exceptions to this prohibition: where the state has waived its immunity or where Congress has abrogated that immunity. A State's consent to suit must be unequivocally expressed in the text of [a] relevant statute. Waiver may not be implied. Likewise, Congress' intent to abrogate the States' immunity from suit must be obvious from a clear legislative statement.Selensky v. Alabama, 619 Fed.Appx. 846, 848 (11th Cir. 2015) (internal citations and quotation marks omitted). Alabama has not waived its Eleventh Amendment immunity in § 1983 cases, and Congress has not abrogated it. Id. (citing Alabama v. Pugh, 438 U.S. 781, 782 (1978) and Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990)). Because Alabama DHR is a state agency, the Eleventh Amendment immunizes it from this action, and Plaintiffs' claims against it must be dismissed. See Ross v. State of Ala., 893 F.Supp. 1545, 1550 (M.D. Ala. 1995) (finding Houston County DHR to be division of state and, accordingly, entitled to immunity under Eleventh Amendment).
Plaintiffs argue suit is not barred against a state agency when Plaintiff seeks injunctive relief, that their intent was to sue DHR for injunctive relief, and that they can clarify their claims through an amended complaint:
The present case is, in part, for injunction to require DHR and State officials to perform their legal duties and ministerial acts pursuant to Federal and State law for damages against State officials because of fraud, bad faith, acts beyond authority, under mistaken interpretation of law, and other wrongful acts not covered by immunity. Dismissal should, therefore, be denied.Doc. 25 ¶ 12. However, while the Eleventh Amendment does not bar suits against state officials in their official capacities for injunctive relief, “the Supreme Court has held that actions for injunctive relief against a state or its instrumentalities [are] not an exception to the Eleventh Amendment bar.” Williams v. Alabama State Univ., 865 F.Supp. 789, 792 (M.D. Ala. 1994) (emphasis added) rev'd on other grounds, Williams v. Alabama State Univ., 102 F.3d 1179 (11th Cir. 1997) (citing Alabama v. Pugh, 438 U.S. 781 (1978) and Ex parte Young, 209 U.S. 123, 159-60 (1908); see also Stevens v. Gay, 864 F.2d 113, 11415 (11th Cir. 1989) (recognizing Eleventh Amendment bars suit against state officials acting in official capacities when state is the real party in interest . . . but does not insulate state officials acting in their official capacities from suit for prospective injunctive relief); United States v. State of Alabama, 791 F.2d 1450, 1457 (11th Cir. 1986) (holding Eleventh Amendment barred suit against board of education but not against individual members); Garrett v. Talladega Cnty. Drug & Violent Crime Task Force, 983 F.Supp.2d 1369, 137778 (N.D. Ala. 2013) (“Consistent with this approach, and the Supreme Court's statement in Pennhurst, the court concludes that the Eleventh Amendment serves to immunize the Task Force from the plaintiff's claims, even to the extent they may arguably seek a form of prospective injunctive relief.”); Ex parte Alabama Dep't of Hum. Res., 999 So.2d 891, 896 (Ala. 2008) (“The Court of Civil Appeals erred insofar as it held that an action against a State agency, such as DHR, to compel the agency to perform its legal duties is not barred by the doctrine of sovereign immunity.”)
Every count in the Complaint demands “injunctive relief,” but nowhere do Plaintiffs describe the injunctive relief they seek.
Accordingly, Alabama DHR is immune from suit as to all claims against it, and the claims are due to be dismissed.
IX. BAPTIST'S MOTION TO DISMISS
Plaintiffs list Baptist as a Defendant in Count I (constitutionality of DHR's policies and violations of Plaintiffs' constitutional rights), Count III (negligence/wantonness), Count IV (intentional infliction of emotional distress), and Count VII (fraudulent misrepresentation) against Baptist.
A. Constitutional Claim
Claims brought under 42 U.S.C. § 1983 relate to the deprivation of civil rights by state actors. A plaintiff must allege two elements: (1) a right secured by the Constitution or laws of the United States was violated and (2) the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiffs allege Baptist is a “domestic non-profit corporation” and “acted under the color of law” as a “quasi-agent” of the state. Doc. 1 ¶ 41, Doc. 59. They contend this “quasiagent” relationship existed because the unknown nurse seized L.C.'s meconium without parental consent and the unknown employee failed to obtain proper paperwork showing DHR had custody of L.C. Baptist argues these allegations fail to show it was acting as a quasi-agent of the state, and the Court can discern nothing establishing an agency relationship. Plaintiffs' response to Baptist's motion fails to address the issue at all; thus, the Court deems the argument waived. Fleeton v. O'Malley, No. 2:23-CV-62-JTA, 2024 WL 235216, at *6 (M.D. Ala. Jan. 22, 2024) (holding plaintiff's statements, which were “nothing more than conclusory and unsupported arguments,” were deemed waived); BMO Harris Bank, N.A. v. Spencer Transportation LLC, No. 6:18-CV-01-LSC, 2018 WL 1431647, at *2 (N.D. Ala. Mar. 22, 2018) (noting failure to cite authority waives argument) (citing U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007) (citing Flanigan's Enters., Inc. v. Fulton Cnty., Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding party waives argument if it “fail[s] to elaborate or provide any citation of authority in support” of the argument))). Accordingly, Plaintiffs have failed to allege that Baptist was a state actor or an agent of the state when the unknown nurse tested L.C.'s meconium or the unknown administrative employee failed to obtain appropriate paperwork regarding L.C.'s custody. As a result, Plaintiffs § 1983 claim against Baptist fails.
Perhaps due to the shotgun approach of Count I, Baptist's motion states that the Complaint asserts only three state-law causes of action against it and its unnamed employees. See Doc. 10 at 3. However, in addressing these claims, Baptist asserts the lack of factual allegations establishing its status as an agent of the state. Id. at 5.
B. State Law Claims
Plaintiffs allege state law claims of negligence, wantonness, outrage, and fraudulent misrepresentation against Baptist. As set forth above, the only actions by Baptist or one of its employees described in the Complaint are the nurse's testing of L.C.'s meconium and the administrative employee's failure to obtain a written order from DHR regarding the custody of L.C.
1. Immunity under Alabama Code § 26-14-9
Alabama Code § 26-14-9 provides immunity to those participating in the “good faith report” of child abuse or “in the removal of a child” pursuant to the report. Plaintiffs argue their claims are not based on the mandatory report of child abuse but, instead, on the unknown employee's failure to require DHR to produce paperwork before removing the child from Plaintiffs' custody.
It is undisputed that Creel tested positive for Buprenorphine upon admission, L.C.'s meconium tested positive for amphetamines, and a child abuse report was made based on these test results. DHR then began an investigation into the suspected child abuse. Plaintiffs do not allege that anyone at Baptist knew Judge Williams denied DHR's first petition for a pickup order or knew Plaintiffs' second drug tests came back negative. They do not allege anyone at Baptist did anything outside the acts covered by the statute-the good faith report of child abuse and removal of L.C. based on that report. This statute was analyzed in Brown v. Pound, 585 So.2d 885, 886 (Ala. 1991):
Only one case to date has thoroughly addressed the issue of immunity in suspected child abuse or neglect cases. In Harris v. City of Montgomery, 435 So.2d 1207 (Ala. 1983), the examining physician filed a report with the Montgomery Police Department after diagnosing the child's injury as a case of suspected child abuse or neglect. After an investigation, the police department determined that the case was not one of child abuse or neglect.
...
[T]he allegations against the officers . . . included false imprisonment, false arrest, defamation, and other tortious conduct not protected by the statute.
Harris, at 1212. This Court determined that the officers' alleged actions were not protected by the immunity provision and reversed the dismissal as to those allegations and remanded the case for further proceedings. Id.The Harris plaintiffs alleged the hospital failed to properly supervise, train, control, and set adequate medical standards for its medical personnel. Although the court found the police officer's tortious conduct was not protected by § 24-14-9, it found the hospital took “no actions . . . other than actions responding to the mandate of the Child Abuse Reporting Act.” Harris, 435 So.2d at 1212. In Brown, the plaintiff sued a doctor and hospital for a groundless report of child abuse and invasion of privacy, arguing that Harris indicated the immunity of § 24-14-9 is not absolute if there are allegations of other torts. The court stated:
While mere compliance with the statute is not an automatic grant of immunity, this case does not present any allegations of injury or damage not related to the reporting of the suspected child abuse. See, Harris, at 1215. There is no evidence that Dr. Pound did anything more than comply with the mandates of the statute in reporting his suspicions. Because the action of Dr. Pound and the Decatur Medical Surgical Center were within the requirements of the Child Abuse Reporting Act, § 26-14-9 provides them with absolute immunity.585 So.2d at 886. Compare Gowens v. Tys. S. ex rel. Davis, 948 So.2d 513, 521-22 (Ala. 2006) (where plaintiffs alleged DHR employee failed to act properly to protect children in the home after mother and newborn tested positive for cocaine, finding defendant not entitled to absolute immunity because plaintiffs did not allege wrongful conduct that occurred while defendant was making good faith child abuse report, removing a child, or participating in resulting judicial proceeding) and Avendano v. Shaw, 371 So.3d 278, 285 (Ala. 2022) (holding § 24-14-9 immunity did not apply where plaintiff alleged social worker falsified results of drug tests because “complaint [left] room for the possibility that [defendant's] actions related to that report [of child abuse] were not undertaken in ‘good faith'”). As in Brown and Harris, there are no allegations that a Baptist employee did anything other than comply with the statute in making a good faith report of child abuse and participating in the removal of L.C. as part of DHR's investigation of that good faith report. This conduct falls squarely within the conduct protected by § 24-14-9, and Baptist is entitled to absolute immunity on Plaintiff's claims of negligence, wantonness, and outrage.
In Evans v. Waddell, 689 So.2d 23, 30 (Ala. 1997), the court held that defendants had absolute immunity even when plaintiffs accused them of falsely reporting defendants of child abuse. The following year, the Alabama Legislature amended § 26-14-9 to add the requirement that the report of suspected child abuse be made in “good faith” as a prerequisite to immunity from liability. Marks v. Tenbrunsel, 910 So.2d 1255, 1260 (Ala. 2005) (citing Act No. 98-371, Ala. Acts 1998).
2. Fraudulent Misrepresentation
The elements of fraudulent misrepresentation in Alabama are (1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation. Sexton v. Bass Comfort Control, Inc., 63 So.3d 656, 662 (Ala. Civ. App. 2010) (citing Padgett v. Hughes, 535 So.2d 140, 142 (Ala. 1988)). The only statement in the Complaint attributable to Baptist is the unknown employee's statement that Plaintiffs “need[ed] to pack up their things and leave the room, that there was nothing Baptist could do, as they were simply following protocol and following DHR's lead.” Plaintiffs do not allege this was a false statement. Instead, when describing their fraudulent misrepresentation claim, they allege Baptist “relied on DHR's verbal information” and “intended to induce Plaintiffs to act in reliance on that representation.” Doc. 1 ¶¶ 23, 82. However, DHR, not Baptist, made the verbal statement of their authority to take custody of L.C. Plaintiffs point to no legal authority holding one party's reliance on another party's allegedly false statement constitutes a false misrepresentation actionable by a third party. Baptist's reliance on DHR's “verbal information” is not a false misrepresentation by Baptist. Thus, Plaintiff has failed to plead the first element of a false misrepresentation claim, and this claim is also due to be dismissed.
X. DERICO'S MOTION TO DISMISS
Derico is the DHR case worker who signed the first and second dependency petitions described above. Plaintiffs allege that Derico knew Judge Williams denied the first request for a pickup order and, instead, ordered that L.C. be released to the father; intentionally misrepresented that the parents had to leave the hospital and produce negative drug test results before L.C. could be discharged to them; failed to inform the parents that Judge Williams ordered L.C. to be released to the father; despite Judge Williams' order, told Baptist not to allow the parents to leave with L.C.; forced the parents, under false pretenses, to sign a safety plan releasing custody of L.C. to the paternal grandparents and allowing only supervised visitation for the parents, and provided false sworn statement to the court when she filed the second dependency petition.
As explained above, Plaintiffs' Fifth and Sixth Amendment claims are due to be dismissed as to all Defendants, and Plaintiffs have asserted no Fourth Amendment violation against Derico, as that claim relates solely to the unknown nurse's act of testing L.C.'s meconium. This leaves only a Fourteenth Amendment due process claim and state law claims of negligence, wantonness, outrage, and fraudulent misrepresentation against Derico. Derico argues she is entitled to qualified immunity for Plaintiffs' § 1983 claims, state-agent immunity for the state claims, and absolute immunity under Alabama Code § 26-14-9.
A. Qualified Immunity for Constitutional Claims
Government officials performing “discretionary functions” are entitled to qualified immunity from § 1983 claims “unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). To overcome qualified immunity, the plaintiff must show (1) the defendant violated a constitutional right and (2) this right was clearly established at the time of the alleged violation. Khoury v. Miami-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1126 (11th Cir. 2021); Crider v. Williams, No. 21-13797, 2022 WL 3867541, at *5 (11th Cir. Aug. 30, 2022).
The Court cannot determine from Plaintiffs' response to Derico's motion whether they dispute that Derico was performing discretionary functions when she performed the actions described in the Complaint. Their response states:
The question of qualified immunity is, was the state agent performing a “discretionary” function or, was the state agent obligated in the circumstances to perform a task mandated by rule or checklist that the state agent failed or refused to perform. Did the state agent commit fraud? Did the state agent exercise bad faith? Was the state agent complicit in a fraud or under mistaken interpretation of law? Ex parte Alabama Department of Mental Health and Mental Retardation, 837 So.2d 808 (Ala. 2002).Doc. 43 ¶ 14. That is Plaintiffs' entire response: no analysis of the facts, no application of case law, and no position argued. However, the Court concludes that placement of children in foster care is a discretionary function, A.D. ex rel. McGhee v. Alabama Dep't. of Hum. Res., 995 F.Supp.2d 1253 (N.D. Ala. 2014), and that Derico was performing discretionary functions in the actions alleged in the Complaint. Therefore, the Court will determine whether Plaintiffs have pleaded sufficient allegations that, if true, establish that Derico violated their clearly established constitutional rights.
1. Constitutional Violation
Parents have a constitutionally protected liberty interest in the care, custody, and management of their children. Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (“The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court.”). Parents cannot be deprived of this liberty interest without due process of law. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982) (stating persons with “forced dissolution” of parental rights have “critical need for procedural protections”). A “state may not remove a child from parental custody without judicial authorization unless there is probable cause to believe the child is threatened with imminent harm.” Doe v. Kearney, 329 F.3d 1286, 1295 (11th Cir. 2003).
Because Plaintiffs included several untenable constitutional claims and the Complaint takes the shotgun approach of identifying all Defendants as having violated all Plaintiffs' constitutional rights in Counts I and II, it is not clear whether Plaintiffs intended specifically to assert a due process claim on behalf of their minor children or if they intended to assert claims based on other constitutional rights. Plaintiffs do not specifically plead in the Complaint that Derico deprived the minor children of a constitutionally protected liberty interest without due process. Thus, the Court's analysis is limited to a claim that the parents were deprived of their protected liberty interest in the care, custody, and management of their children without due process.
Here, if Plaintiffs' allegations are true, Derico concealed the fact that Judge Williams released L.C. to the father; misrepresented that the parents had to have negative drug screens before L.C. could leave the hospital with them; told Baptist not to allow the parents to leave with L.C. in contravention of Judge Williams's order; forced the parents by threatening foster care-based on the same facts already considered by Judge Williams-to sign a safety plan releasing custody of L.C. to the paternal grandparents; and ultimately obtained a pickup order by misrepresenting to the court that the parents' hair follicle tests were positive for methamphetamines. Caselaw holds that procedural due process may be lacking when proceedings are based on false statements. See Crider, 2022 WL 3867541, at *5 (finding parents sufficiently pleaded due process violation when they alleged they were deprived of custody of their child for almost two years due to case worker's lies about jurisdictional facts to courts in two states) (citing Johnston v. Borders, 36 F.4th 1254, 1272 (11th Cir. 2022) (concluding employee's allegations that she was fired because of false statements could state a procedural-due-process claim); Brown v. Wainwright, 785 F.2d 1457, 1458 (11th Cir. 1986) (finding procedural-due-process violation when prosecutor knowingly allowed false testimony at trial and relied on it in closing argument)). Viewing the allegations in a light most favorable to Plaintiffs, Derico's statement that a drug test was required to leave the hospital with L.C. (when Judge Williams had already ordered her released to her father), threats of foster care under the same facts already considered and rejected by Judge Williams in a requested pickup order, and statement about the positive hair follicle tests were false statements. Accordingly, Plaintiffs have pleaded a procedural due process violation.
The cases cited above support a finding that Plaintiffs have stated a procedural due process claim. The Complaint alleges “due process” violations but makes no attempt to delineate those claims as substantive or procedural due process violations. To state a substantive due process claim, a plaintiff must allege (1) a deprivation of a constitutionally protected interest (2) that was the result of an abuse of governmental power sufficient to raise an ordinary tort to the stature of a constitutional violation. Hoefling v. City of Miami, 811 F.3d 1271, 1282 (11th Cir. 2016) (citation omitted). “A deprivation is of constitutional stature if it is undertaken for improper motive and by means that were pretextual, arbitrary and capricious, and without rational basis.” Id. (citations omitted). To state a procedural due process claim, a plaintiff must allege (1) deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). Plaintiffs use the phrase “due process” three times in their Complaint: they allege DHR policies and procedures “make no provisions to safeguard and ensure a person's right to be protected against violations of due process” (Doc. 1 ¶ 39); the seizure and testing of meconium without consent was a “violation of due process” (id. ¶ 42); and denying release of L.C. to her father despite Judge Williams's order “denied [them] due process and notice was not given to Parents that a hearing was set or that a hearing was held before Judge Williams” (id. ¶ 53). These statements fairly allege a constitutionally inadequate process, but nothing more. Plaintiffs' constitutional claims are set forth in Counts I and II, and nowhere do they allege conduct was “undertaken for improper motive and by means that were pretextual, arbitrary and capricious, and without rational basis.” These counts make no mention of a substantive due process claim and allege only that an inadequate process was employed to deprive the parents of custody of L.C. Thus, the Court cannot infer a substantive due process claim from Plaintiffs' allegations, and it cannot rewrite the Complaint for them. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 961 (11th Cir. 2009) (holding district court properly dismissed claim of breach of fiduciary duty under Rule 12(b)(6) because amended complaint failed to allege a fiduciary relationship, thus failing to state a claim for relief, and court could not “properly rewrite [the] complaint”); Carstarphen v. Deutsche Bank Nat. Tr. Co., No. 08-CV-511-WS-M, 2009 WL 1537861, at *5 (S.D. Ala. June 1, 2009) (recognizing that a plaintiff the master of his complaint and courts cannot rewrite pleadings).
Derico argues she had no duty to inform Plaintiffs of their legal rights, but the above conduct, if true, goes beyond a failure to advise of legal rights and crosses into the realm of deception. She also argues that “no controlling case law establishes that due process rights are violated when a social worker threatens foster care during a child abuse investigation,” but this argument ignores the allegation that the threat of foster care, under the facts that existed when Plaintiffs signed the safety plan, was false, as Judge Williams had already denied a requested pickup order.
The Court is also not persuaded by Derico's argument that Plaintiffs' reliance on Judge Williams's order is incorrect. She states Judge Williams only had authority to issue a pickup order for “temporary removal and custody” under Alabama Code § 26-14-7(c) and that “further directives were outside his authority.” Doc. 44 at 6. However, it is the apparent side-stepping of his order that implicates Plaintiffs' due process rights. Section 26-14-7(c) provides that a court may issue an order for temporary removal and custody if an investigator determines that “immediate removal is necessary to protect a child or children from further abuse or neglect.” Judge Williams denied Derico's request, evidently finding that removal was not necessary to protect L.C. from further abuse or neglect. As Derico points out, if Judge Williams had granted the petition and issued a pick-up order, Plaintiffs would have been afforded the due process of a 72-hour hearing under Alabama Code § 12-15-308. Doc. 44 at 7. Here, when Judge Williams denied the petition and released L.C. to her father, Derico allegedly took steps toward removing her anyway.
Derico contends she could have removed L.C. on her own under Alabama Code § 26-14-6 (Doc. 36 at 10 n.1), but this statute allows a DHR employee to take a child into protective custody without parental consent in situations of “imminent danger to that child's life or health.” Derico does not argue removal of L.C. was justified under this standard. Indeed, Judge Williams had already found that immediate removal was not necessary to protect L.C. from abuse, and Derico identifies no new facts bearing on this determination. Accordingly, while Judge Williams's order did not put an end to Derico's investigation, the Court finds that Plaintiffs have sufficiently alleged a due process violation by allegations that Derico concealed Judge Williams's order to place L.C. with her father, told Baptist not to release L.C. to her parents, misrepresented the need for a drug test, falsely threatened foster care in order to coerce them into signing a safety plan that gave custody to the paternal grandparents, and made false statements to the court in the second dependency petition. If Plaintiffs' assertions are true, they were deprived of their liberty interests in the care, custody, and control of L.C. without due process because of Derico's actions.
2. Clearly Established Right
The court's analysis does not end at finding a constitutional violation. It must next determine if the law had “clearly established” that Derico's actions would violate Plaintiffs' constitutional rights. A “clearly established right” is “one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks omitted). The Supreme Court does not require a case to be directly on point for a right to be clearly established, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law.” White v. Pauly, 580 U.S. 73 (2017) (internal quotation marks omitted).
The Eleventh Circuit has identified three ways a plaintiff can show a right is clearly established. Crider, 2022 WL 3867541, at *8-9 (citation omitted). A plaintiff can “show that a materially similar case has already been decided,” “that a broader, clearly established principle should control the novel facts of a particular situation,” or “that her case fits within the exception of conduct [that] so obviously violates [the] [Constitution that prior case law is unnecessary.” Id. (citing Corbitt v. Vickers, 929 F.3d 1304, 1312 (11th Cir. 2019) (internal quotations omitted).
Here, a “broader, clearly established principle” applies. Because a parent's strong liberty interest in the care, custody, and control of a child is “perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court,” Troxel, 530 U.S. at 65, government interference with that interest must come with “fundamentally fair procedures.” Santosky, 455 U.S. at 753, 754-59 (recognizing that a “natural parent's ‘desire for and right to companionship, care, custody, and management of his or her children' is an interest far more precious than any property right”) (quoting Lassiter v. Dep't of Soc. Servs. of Durham Cnty., 452 U.S. 18, 27 (1981))). Moreover, as stated above, it is long established that procedures cannot be “fundamentally fair” when they are based on false statements. Crider, 2022 WL 3867541, at *9 (citing Napue v. Illinois, 360 U.S. 264, 269 (1959) (holding criminal convictions based on false evidence violate procedural due process) and Monroe v. Thigpen, 932 F.2d 1437, 1442 (11th Cir. 1991) (finding a due-process violation where parole board relied on false information to deny parole)). Accordingly, it was clearly established at the time of Derico's actions that due process must be afforded to parents before depriving them of the care, custody, and management of their children without their consent and that due process is violated when the proceedings are based on false information or false statements. Accordingly, although additional factual development may alter the Court's qualified immunity analysis, at this stage Derico is not entitled to qualified immunity.
B. State-Agent Immunity
State-agent immunity protects state employees from personal liability for certain actions undertaken in the performance of their official duties. Avendano v. Shaw, 371 So.3d 278, 284-85 (Ala. 2022) (citing Ala. Code § 36-1-12; Ex parte Cranman, 792 So.2d 392 (Ala. 2000); Ex parte Butts, 775 So.2d 173, 177-78 (Ala. 2000) (adopting Cranman's state-agent-immunity restatement in a majority opinion)). Actions or conduct undertaken “willfully, maliciously, fraudulently, in bad faith, beyond [the agent's] authority, or under a mistaken interpretation of the law” are excepted from state agent immunity. Id. (citations omitted). Dismissal based on state agent immunity is proper only if it is obvious from the face of the complaint that the defendant did not act willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law, Odom v. Helms, 314 So.3d 220, 229 n.3 (Ala. 2020), and that standard is difficult to meet, Ex parte Alabama Dep't of Mental Health & Mental Retardation, 837 So.2d at 813-14.
Based on the allegations in Plaintiffs' Complaint, there is no dispute that the actions taken by Derico were undertaken in the performance of her official duties. Thus, she is entitled to state agency immunity for any conduct that was not willful, malicious, fraudulent, taken in bad faith, beyond her authority, or taken under a mistaken interpretation of the law. Plaintiffs' negligence and wantonness claims, by definition, fall into this category of shielded conduct:
This Court has previously held that poor judgment or wanton misconduct, an aggravated form of negligence, does not rise to the level of willfulness and maliciousness necessary to put the State agent beyond the immunity recognized in Cranman. See Giambrone, 874 So.2d at 1057 (holding that
State-agent immunity “is not abrogated for negligent and wanton behavior; instead, immunity is withheld only upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority”).Ex parte Randall, 971 So.2d 652, 664 (Ala. 2007). Accordingly, the negligence and wantonness claims are due to be dismissed. However, with respect to Plaintiffs' outrage and fraudulent misrepresentation claims, “[n]othing about these allegations affirmatively rules out the possibility that [Derico] acted maliciously, fraudulently, in bad faith, beyond her authority, or under a mistaken interpretation of the law. Thus, State-agent immunity cannot be an appropriate basis for dismissal.” Avendano v. Shaw, 371 So.3d 278, 285 (Ala. 2022).
C. Absolute Immunity under Alabama Code § 26-14-9
Derico next claims that she is entitled to absolute statutory immunity under Ala. Code § 26-14-9 (1975). As the Court explained above, Alabama Code § 26-14-9 provides immunity to those participating in the “good faith report” of child abuse or “in the removal of a child” pursuant to the report. It does not apply when the “complaint leaves room for the possibility that [defendant's] actions related to that report [of child abuse] were not undertaken in ‘good faith.'” Avendano, 371 So.3d at 285 (holding § 24-14-9 immunity did not apply where plaintiff alleged social worker falsified results of drug tests because complaint left room for possibility that defendant's actions were not taken in good faith). In this case, with allegations that Derico concealed the order releasing L.C. to her father, told Baptist not to release L.C. to the parents in contravention of that order, made false threats to the parents if they did not sign a safety plan, and made false representations to the court in the second dependency petition, the Complaint leaves room that Derico's actions were not taken in good faith. Thus, Derico is not entitled to absolute immunity under § 26-14-9.
XI. FAILURE TO STATE A CLAIM
Because Derico is not entitled to immunity on the outrage and fraudulent misrepresentation claims, the Court will determine whether the Complaint fails to state claims on which relief can be granted.
An outrage claim in Alabama has four elements: (1) the defendant intended to inflict emotional distress or knew that emotional distress was the likely result of their conduct; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiffs' distress; and (4) the distress suffered by plaintiffs was severe. Martin v. Hodges Chapel, LLC, 89 So.3d 756 (Ala. Civ. App. 2013). As an initial matter, “the question whether a plaintiff has met the burden of proof sufficient to support a tort-of-outrage claim . . . is typically appropriately addressed at the summary-judgment stage rather than at the pleading stage.” Swain v. AIG Claims, Inc., 295 So.3d 1072, 1082 (Ala. Civ. 2019); see also Parks v. Mut. of Omaha Ins., No. 5:20-CV-388-CLS, 2020 WL 3791884, at *4 (N.D. Ala. July 7, 2020) (“While outrage claims can be dismissed at this stage of litigation, this court agrees that, in this instance, the facts need to be developed before pronouncing a decision on this claim.”).
Derico's argument that Plaintiffs have failed to state a claim for outrage is unavailing. In Avendano, supra, where the plaintiffs brought an outrage claim alleging the DHR case worker falsified parents' drug tests in order to restrict them from seeing their children, the court stated:
Although it is true that the “tort of outrage is an extremely limited cause of action,” Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000), we have held that an outrage claim can proceed past the motion-to-dismiss stage if the complaint alleges conduct “‘so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized society.'” Wilson v. University of Alabama Health Servs. Found., P.C., 266 So.3d 674, 677 (Ala. 2017) (quoting Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38, 44 (Ala. 1990)); see also American Rd. Serv. Co. v. Inmon, 394 So.2d 361, 364-65 (Ala. 1980) (noting that the tort of outrage “does not recognize recovery for ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities'” (quoting 1 Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst. 1965)). . . .
In our view, Avendano and Knowles's allegations clear this high hurdle, because the complaint alleges that Shaw: (1) “intentional[ly] and malicious[ly]” colluded with Murrah (2) to fabricate positive drug-test results and to use those fabricated results to falsely smear Avendano and Knowles as drug addicts unfit to be around children, and that (3) this conduct caused severe and unbearable emotional distress by stripping Avendano and Knowles of their parental and caretaking rights, respectively, and by clouding their reputations within their community.Avendano, 371 So.3d at 286. Here, the more egregious allegations against Derico are that she intentionally concealed an order giving custody of L.C. to the father, made threats of foster care to force Plaintiffs to sign a safety plan giving custody of L.C. to the paternal grandparents, and falsely represented to a court that Plaintiffs' hair follicles tests were positive for methamphetamines. If true, these actions amount to far more than “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” and go beyond the possible bounds of decency. Thus, the Court finds that Plaintiffs have alleged facts sufficient to state a claim for outrage.
A fraudulent misrepresentation claim in Alabama has four elements: (1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation. Sexton v. Bass Comfort Control, Inc., 63 So.3d 656, 662 (Ala. Civ. App. 2010) (citing Padgett, 535 So. at 142). The Avendano court addressed a fraudulent misrepresentation claim in similar circumstances:
Shaw contends that the complaint fails to satisfy the first of those elements because, she says, it does not allege that “false representations were made by Shaw to [Avendano and Knowles].” Again, we disagree. The complaint alleges that “Shaw represented . . . that the [drug] tests were legitimate tests that would be properly processed to determine the results” and that this representation was “false.” The complaint further alleges that Avendano and Knowles relied on Shaw's false representation to their detriment. Those allegations, taken together, satisfy all the elements of a fraud claim.Avendano v. Shaw, 371 So.3d 278, 286 (Ala. 2022). Here, Plaintiffs allege Derico told them they must pass new drug tests in order to be able to leave the hospital with L.C. and that L.C. would be placed into foster care if they did not sign the safety plan. They allege these representations were false because Judge Williams had already denied a pickup order and ordered that L.C. be released to her father. Based on these representations, Plaintiffs left the hospital without L.C., not knowing where she had been placed, and signed the proposed safety plan giving custody of L.C. to the paternal grandparents, which they followed until they learned about Judge Williams's order. They allege they suffered economic and emotional damages as a result of this conduct, and the Court finds these allegations satisfy the elements of fraudulent misrepresentation.
XII. AMENDMENT IS FUTILE
Plaintiffs have imbedded requests to amend their complaint in responses to the Court's show cause orders and the Defendants' motions to dismiss. See Doc. 24 at 4, Doc. 25 at 5, Doc. 24 at 2. However, a request for a court order must be made by motion. See Rule 7(b) of the Federal Rules of Civil Procedure (requiring that “request for a court order must be made by motion”); Vento v. Patel, No. 23-11392, 2024 WL 775142, at *4 (11th Cir. Feb. 26, 2024) (noting a “procedural misstep” because plaintiff “imbedded his request for an extension of time to serve in his response to the . . . motion to dismiss” and holding request was “not properly before the district court in the first instance”) (citing Herederos De Roberto Gomez Cabrera, LLC v. Teck Res. Ltd., 43 F.4th 1303, 1312 n.4 (11th Cir. 2022) (“Herederos concedes that it ‘did not file a distinct and entirely independent motion to take jurisdictional discovery' as it was required to [under Rule 7(b)]”), cert. denied, 143 S.Ct. 736 (2023)); see also Prime Healthcare Servs.-Lehigh Acres, LLC v. Blue Cross Blue Shield of Fla., Inc., No. 3:20-CV-988-J-34JBT, 2020 WL 6273744, at *1 (M.D. Fla. Oct. 26, 2020) (stating request to amend pleading is request for affirmative relief not properly made when simply included in response to motion); see also Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (finding district court did not abuse its discretion in denying leave to amend complaint sub silentio because “request for leave to file an amended complaint [was] simply [ ] imbedded within an opposition memorandum [and] not [ ] raised properly”) (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222 (11th Cir. 1999)). Thus, Plaintiffs' imbedded requests to amend the complaint are not properly before the Court.
Even if Plaintiffs had properly requested leave to amend, the Court finds that granting leave to amend the Complaint in an attempt to save the claims against the dismissed Defendants would be futile as to the unserved parties and Alabama DHR for the reasons stated above: the amendment would not effect service and would not overcome Alabama DHR's immunity.
Additionally, even if Plaintiffs had properly served Buckner, Counts I and II allege that as DHR Commissioner she is “responsible for creating and interpreting [DHR's] policies and procedures” and “for the actions and inactions of all employees/agents of DHR.” Doc. 1 ¶ 43; see also ¶¶ 48, 52. Thus, Plaintiffs allege that Buckner is liable for DHR employees' actions because DHR's policies have resulted in violations of Plaintiffs' constitutional rights. However, for a supervisor to be liable under § 1983, the supervisor must have personally participated in the alleged constitutional violation, or there must be a “causal connection between actions of the supervising official and the alleged constitutional deprivation.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Plaintiffs do not allege that Buckner personally participated in the incident, so she would be liable under § 1983 only if “there is a causal connection between [her] actions . . . and the alleged constitutional deprivation.” Id.
A causal connection may be established when: (1) a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he or she fails to do so; (2) a supervisor's custom or policy results in deliberate indifference to constitutional rights; or (3) facts support an inference that the supervisor directed subordinates to act unlawfully or knew that subordinates would act unlawfully and failed to stop them from doing so.Myrick v. Fulton Cnty., 69 F.4th 1277, 1298 (11th Cir. 2023). The factual allegations do not evidence a history of widespread abuse, and they do not support an inference that Buckner directed subordinates to act unlawfully or that she knew they would act unlawfully and failed to stop them. The allegations also do not show that Buckner had a policy or custom that caused a constitutional harm, as “a plaintiff must point to multiple incidents, or multiple reports of prior misconduct by a particular employee.” Ingram v. Kubik, 30 F.4th 1241, 1254 (11th Cir. 2022), cert. dismissed, 142 S.Ct. 2855 (2022) (quoting Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)). “[Allegations of a single incident of unconstitutional conduct cannot state a claim for supervisory liability, even when the conduct involves several subordinates.” Ingram, 30 F.4th at 1254. Plaintiffs' Complaint describes a single instance that allegedly resulted in violations of their constitutional rights; it does not allege multiple incidents or reports of widespread misconduct by DHR employees. Therefore, even if Buckner had been properly served, Counts I and II fail to state claims against her in her individual capacity for supervisory liability under § 1983.
Similarly, if Plaintiffs had properly alleged that Baptist was a state actor for purposes of their § 1983 claims, “[w]hile a private entity may be a state actor under certain circumstances, it is not subject to § 1983 liability on the basis of respondeat superior or vicarious liability.” Ball v. May, No. 2:18-CV-01726-SGC, 2018 WL 11266783, at *3 (N.D. Ala. Oct. 31, 2018) (citing Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir. 1992) (describing limited circumstances where private entity can qualify as state actor and extending Monell to private entities). Therefore, a private entity is subject to § 1983 liability only if a policy or custom of the entity causes the constitutional violation. Id. (citing Buckner v. Toro, 116 F.3d 450, 452-53 (11th Cir. 1997)); see Massey v. Montgomery Cnty. Det. Facility, 646 Fed.Appx. 777, 780 (11th Cir. 2016) (stating “Monell's ‘policy or custom' requirement . . . applies in suits against private entities performing functions traditionally within the exclusive prerogative of the state, such as the provision of medical care to inmates”). The allegations against Baptist are based on two discrete acts: the unknown nurse's testing of L.C.'s meconium without parental consent and the administrative employee's failure to require DHR to produce a court order regarding custody. Plaintiffs reference one of DHR's policies in the Complaint, but they have not alleged a policy or custom on the part of Baptist that caused a violation of their constitutional rights. Therefore, Plaintiffs have not properly alleged constitutional violations against Baptist. Buckner, 116 F.3d at 452-53; Ball, 2018 WL 11266783, at *3 (stating single incident of unconstitutional activity does not establish a custom) (citations omitted).
Finally, with respect to the unknown nurse whose only alleged misconduct is testing L.C.'s meconium without parental consent, Plaintiffs filed this action on November 17, 2023, two years after Plaintiff Creel was discharged from the hospital. The Complaint states L.C. was born on November 12, 2021, but it does not allege a date on which her meconium was tested. Thus, to the extent it was tested before November 17, 2021, claims based on that conduct would be subject to a statute of limitations defense.
XIII. CONCLUSION
For the reasons set forth above, the Magistrate Judge RECOMMENDS the following:
1. All Fifth and Sixth Amendment claims be DISMISSED for failure to state a claim on which relief can be granted;
2. Williams's Motion to Dismiss (Doc. 13) be GRANTED and the claims against him dismissed with prejudice;
3. All claims against Nancy Buckner, Supervisor Presley, the unknown nurse at Baptist, and the unknown administrative employee at Baptist be DISMISSED with prejudice for failure to comply with Rule 4(m) of the Federal Rules of Civil Procedure.
4. All claims against the unknown nurse and unknown administrative employee be dismissed on the additional ground that fictitious party pleading is not permitted in federal court and Plaintiffs' allegations fail to meet the exception to the prohibition against fictitious party pleading;
5. Alabama DHR's Motion to Dismiss (Doc. 14) be GRANTED and the claims against it dismissed with prejudice;
6. Baptist's Motion to Dismiss (Doc. 10) be GRANTED and the claims against it dismissed with prejudice;
7. Derico's Motion to Dismiss be DENIED with respect to Plaintiff Creel and Plaintiff Bush's § 1983 claims for violation of their Fourteenth Amendment procedural due process rights, outrage, and fraudulent misrepresentation but GRANTED as to all remaining claims.
8. That this case be referred back to the undersigned Magistrate Judge for further proceedings.
Further, it is ORDERED that by August 16, 2024, the parties may file objections to this Recommendation. The parties must specifically identify the factual findings and legal conclusions in the Recommendation to which objection is made. Frivolous, conclusive, or general objections will not be considered. This Recommendation is not a final order and, therefore, is not appealable.
Failure to file written objections to the proposed findings and recommendations in accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waive the right of the party to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. 11th Cir. R. 3-1.