Opinion
CIVIL ACTION NO. 3-99-CV-1654-P
September 7, 2001
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration are State Defendants' Motion to Dismiss and Supporting Brief, filed April 18, 2000, Plaintiffs' Response to State Defendants' Rule 12(b)(1) and (6) Motion to Dismiss, filed April 19, 2001, and State Defendants' Reply, filed May 4, 2001. After reviewing the motion, Plaintiffs' response, the pleadings, and applicable case law, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' Motion.
Plaintiffs' response is part of Plaintiffs' Motion for Leave to File Supplemental Rule 7 Reply and Plaintiffs' Motion to State Defendants' Rule 12(b)(1) and (6) Motion to Dismiss, filed April 19, 2001. The Court granted Plaintiffs' Motion for Leave to File Supplemental Rule 7 Reply on July 26, 2001.
I. Background
The circumstances surrounding the Plaintiffs claims are short but tragic. On January 1, 1999, Eric Hernandez was born to his parents, Juana Olalde and Nicolas Hernandez. On February 27, 1999, Eric's parents took him to the Children's Medical Center of Dallas where Eric received treatment for a broken leg. That same day, Texas Department of Protective and Regulatory Services ("TDPRS"), a Texas governmental unit, removed Eric from his parents against their wishes, without their consent, and without a court order. Within a few days, TDPRS placed Eric with Jerome and Sue Claud ("the Clauds") who acted as his foster parents. On March 5, 1999, medical personnel placed two-month-old Eric in a waist and leg cast that restricted the infant's mobility. On March 7, 1999, the Clauds left Eric lying face-down on a pillow. When they checked on him several hours later, they found Eric dead from suffocating on his pillow.
The Plaintiffs filed their original complaint on October 7, 1999, and more recently, a Second Amended Complaint on May 15, 2001, asserting claims under 42 U.S.C. § 1983 to redress deprivations of constitutionally protected rights and interests under color of state law. Plaintiffs filed claims against a number of groups of defendants: the "State Directors" (Jim Hines, Sarah Webster, and Mark Marsh), the "Regional Directors" (Wayne Hairgrove, Rose Benham, Elaine Thieroff, and Oliver Norwood), the "State Social Workers" (Amy Millender, Lois Lilly, Margarita Scouten, and Diane Purdin), and the Clauds (Jerome and Sue Claud). Plaintiffs also filed a Rule 7 Reply on March 6, 2000.
The Clauds brought a separate Motion to Dismiss which was denied by the Court on March 29, 2001. The State Directors, the Regional Directors, and the State Social Workers (collectively, the "State Defendants") brought this Motion on April 18, 2000. Since that time, Plaintiffs have filed a Supplemental Rule 7 Reply, pursuant to the Court's order of July 26, 2001. In Plaintiffs' Motion for Leave to File Amended Complaint, filed on May 14, 2001, Plaintiffs stated their "wish to dismiss Mark Marsh, Elaine Thieroff, Oliver Norwood, and Margarita Scouten." Pls.' Mot. for Leave to File Amended Compl. ¶ 2. Thus, the motion currently before the Court seeks dismissal for State Defendants Jim Hines, Sarah Webster, Wayne Hairgrove, Rose Benham, Amy Millender, Lois Lilly, and Diane Purdin.
II. Legal Standards
A. Motion to Dismiss Pursuant to Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint when Defendant shows that Plaintiff has failed to state a claim for which relief can be granted. A motion to dismiss for failure to state a claim is viewed with disfavor and should rarely be granted. See Kaiser Aluminum Chemical Sales, Inc., v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Under the rule of Conley v. Gibson, 355 U.S. 41 (1957), a claim should not be dismissed unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. The Court must render its decision taking the complaint in the light most favorable to the plaintiff and taking its allegations as true. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The Court limits its inquiry to whether plaintiff is entitled to offer evidence to support claims and does not address whether plaintiff will ultimately prevail on the merits. Johnson v. Dallas Ind. School Dist., 38 F.3d 198, 199 (5th Cir. 1994). However, dismissal is proper when "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
B. Qualified Immunity for § 1983 Claims
1. Heightened Pleading Requirement for Claims Against Individual Officers
In Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995), the Fifth Circuit upheld the heightened pleading requirement in lawsuits against officers sued in their individual capacities under 42 U.S.C. § 1983 (citing with approval Elliot v. Perez, 751 F.2d 1472 (5th Cir. 1985)). The heightened pleading requirement mandates that a plaintiff suing an officer in her individual capacity for constitutional violations state with "factual detail and particularity the basis of his claim . . ." Elliot, 751 F.2d at 1473. "Mere conclusory allegations and bold assertions are insufficient to meet this heightened pleading requirement." Streetman v. Jordan, 918 F.2d 555, 557 (5th Cir. 1990) (citing with approval, Elliot, 751 F.2d at 1482).
2. Standard for Qualified Immunity
In Siegert v. Gilley, 500 U.S. 226 (1991), the United States Supreme Court set forth the analytical framework for determining whether a plaintiff's allegations are sufficient to overcome a defendant's defense of qualified immunity. As a threshold matter, a court must determine whether the plaintiff has alleged a violation of a clearly established constitutional right. Id. at 231. If the plaintiff fails this step, the defendant is entitled to qualified immunity. If plaintiff is successful, the Court must determine, as a matter of law, whether the officers acted in an objectively reasonable fashion based on the law as it was clearly established at the time of their conduct. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity extends to governmental officials performing discretionary functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known"); Mitchell v. Forsyth, 472 U.S. 5511, 526 (1985); Baker v. Putnal, 75 F.3d 190, 198 (5th Cir. 1996); Nieto v. San Perlita Indep. Sch. Dist., 894 F.2d 174, 178 (5th Cir. 1990); Elliot v. Perez, 751 F.2d 1472, 1482 (5th Cir. 1985).
III. Plaintiffs' Alleged Constitutional Violation
First, the Court must determine whether Plaintiff has sufficiently alleged a constitutional violation. See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (holding that the plaintiff must assert a constitutional right before the court determines whether the right is "clearly established"); Samaad v. City of Dallas, 940 F.2d 925, 940 (5th Cir. 1991) ("In Siegert, the Court holds that a court addressing a claim of qualified immunity should first consider `whether the plaintiff asserted a violation of a constitutional right at all' before reaching the possibly unnecessary question of whether the plaintiff asserted a violation of a `clearly established' right.")
Foster children have a constitutional right to personal security and reasonably safe living conditions. Taylor v. Ledbetter, 818 F.2d 791, 794-95 (11th Cir. 1987); see also K.H., through Murphy v. Morgan, 914 F.2d 846, 850-3 (7th Cir. 1990) (state can be liable for removing child from one abusive foster home only to place child in another home known for propensity to neglect or abuse children). The state's responsibility begins once the child is removed to state custody and continues even once the child is placed in a foster setting. Youngberg v. Romeo, 457 U.S. 307, 316, 324 (1982) (considering Fourteenth Amendment rights to safe conditions of confinement for person involuntarily committed to state institution for the mentally retarded). Plaintiffs' claim to freedom from the unsafe condition causing Eric's death invokes a constitutional right. Given the facts alleged by Plaintiffs, the Court believes a claim for relief has been stated under Doe v. New York City Department of Social Services, 649 F.2d 134, 145 (2d Cir. 1981).
IV. Defendants' Qualified Immunity
The State Defendants may be held liable under § 1983 if they exhibited deliberate indifference to a known risk or a specific duty and their failure to perform the duty or ameliorate the risk was a proximate cause of Plaintiffs' deprivation of rights. Id. Plaintiff cannot recover based upon a theory of respondeat superior. Johnson v. Moore, 958 F.2d 92, 93 (5th Cir. 1992). Simply alleging that officials were responsible for "the acts of all the officials below" is insufficient. Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995). Rather, "plaintiff must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged." Id; see also Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). However, one limited exception has been noted. The Fifth Circuit has found that "[s]upervisor liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy `itself is a repudiation of constitutional rights' and is `the moving force of the constitutional violation'." Thompkins, 828 F.2d at 304 (quoting Grandstaff v. City of Borger, 767 F.2d 161, 169, 170 (5th Cir. 1985)). Plaintiffs in this case fail to allege that any individual Defendant implemented any policy or that any such policy was the "moving force" behind Eric Hernandez's death.
However, Plaintiffs do make a number of claims regarding the "State and Regional Directors" in their Rule 7 Reply, arguing that these directors should have known that incidents of child abuse had increased state-wide and that Child Protective Services was seriously understaffed. Pls.' Rule 7 Reply ¶¶ 2-16. Plaintiffs base these allegations upon an internal study by TDPRS. Id. at ¶ 3. Although Plaintiffs bring the Court's attention to a very serious problem, Plaintiffs' allegations regarding what the "State and Regional Directors" should have known taken by themselves fail to state a claim upon which relief can be granted. Plaintiffs fail to allege that any individual defendant had knowledge of the study, or that they acted or failed to act upon this knowledge in a way which connects their act or failure to act to Eric Hernandez's death. Thus, Plaintiffs' general allegations regarding the "State and Regional Directors" fail to allege facts showing either "personal involve[ment]" or any "causal connect[ion]" to Eric Hernandez's constitutional violation. See Woods, 51 F.3d at 583.
Plaintiffs do allege facts regarding individual Defendants with adequate specificity and these allegations are discussed infra.
Although Plaintiffs' allegations may provide support for a claim based upon the official policy or custom of TDPRS, Plaintiffs have sued all of the Defendants in their individual capacities only. See Pls.' Second Amend. Orig. Compl. ¶¶ 3-4, 6-7, 9-11. Allegations of an official policy or custom must be proved when officials are sued in their official capacity. See Turner v. Houma Municipal Fire and Police Civil Service Board, 229 F.2d 478, 483, n. 10 (5th Cir. 2000). Although there is a narrow exception for holding supervisors individually liable for some policies that "repudiat[e] . . . constitutional rights," Plaintiffs have failed to allege any such facts. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
A. State Directors: Jim Hines and Sarah Webster
Plaintiffs' pleadings fail to allege a constitutional violation by Defendants Jim Hines and Sarah Webster. For this reason, the Court grants Defendants' Motion to Dismiss for Defendants Jim Hines and Sarah Webster.
Plaintiffs fail to allege that Jim Hines acted with deliberate indifference to Eric Hernandez's constitutional rights. Plaintiffs allege that Hines was the Commissioner and Executive Director of TDPRS. Pls.' Second Amend. Orig. Compl. ¶ 3. They also claim that Hines had "overall responsibility" for TDPRS. Pls.' Supp. Rule 7 Reply ¶ 6. This Court cannot hold Hines vicariously liable for Eric Hernandez's constitutional violation, and Plaintiffs have failed to plead any additional facts alleging that Hines was personally involved or causally connected to Hernandez's death.
Plaintiffs also fail to overcome Sarah Webster's defense of qualified immunity. Plaintiffs allege that Webster was the Director of Child Care Licensing in the State of Texas. Pls.' Second Amend. Orig. Compl. ¶ 4. Plaintiffs also claim that Webster had "overall responsibility for the program and policy staff." Pls.' Supp. Rule 7 Reply ¶ 5. Plaintiffs have failed to show that Webster acted with deliberate indifference towards Eric Hernandez to overcome her defense of qualified immunity.
B. Regional Directors
1. Rose Benham
Plaintiffs' pleadings fail to allege a constitutional violation by Defendant Rose Benham. For this reason, the Court grants Defendants' Motion to Dismiss for Defendant Rose Benham.
Plaintiffs allege that Benham was Child Protective Services Program Administrator for Region 3 of the TDPRS. Pls.' Second Amend. Orig. Compl. ¶ 7. Plaintiffs' only additional allegation about Benham is that she "was in charge of placement for CPS at the time of Eric's death." Pls.' Supp. Rule 7 Reply ¶ 4. Plaintiffs fail to make any additional allegations which would demonstrate any individual action or deliberate indifference that cause Eric Hernandez's constitutional violation.
Region 3 was responsible for Eric Hernandez's placement as well as continued oversight after Eric's placement. Pls.' Rule 7 Reply ¶ 5.
2. Wayne Hairgrove
Plaintiffs' allege facts which, if true, would state a claim for § 1983 liability for Defendant Wayne Hairgrove. Thus, Defendants' Motion to Dismiss is denied as to Defendant Wayne Hairgrove. Plaintiffs allege that Hairgrove was the Regional Director for Region 3 of TDPRS. Pls.' Second Amend. Orig. Compl. ¶ 6. Plaintiffs allege that in November of 1998, Hairgrove was warned that his staff was overworked and that children were at risk. Pls.' Rule 7 Reply ¶ 11. Considering the facts in the light most favorable to the plaintiff, if Hairgrove knew that children were at risk because of the staffing problems in Region 3, then his failure to act could be "causally connected" to the violation of Eric Hernandez's constitutional rights. Defendants' Motion to Dismiss is denied for Defendant Wayne Hairgrove.
C. State Social Workers: Amy Millender, Lois Lilly, and Diane Purdin
Plaintiffs also make allegations of activities by CPS employee Patty Zukas in their Supplemental Rule 7 Reply, ¶¶ 22-33. However, Zukas has not been named as a Defendant in this suit.
Plaintiffs allege facts which, if true, state a claim for § 1983 liability for Defendants Amy Millender, Lois Lilly, and Diane Purdin. Therefore, the Court denies Defendants' Motion to Dismiss as to Defendants Amy Millender, Lois Lilly, and Diane Purdin.
Plaintiffs allege that Amy Millender was an investigative supervisor at TDPRS. Pls.' Supp. Rule 7 Reply ¶ 9. Plaintiffs allege that Millender knew that another social worker, Lois Lilly, had been pressured to close a report regarding allegations of abuse in the Claud home. Id. at ¶ 34. Plaintiffs allege that Millender should have investigated the allegations and should have prevented another child from being placed in Claud home. Id. Taking all of these allegations as true, Plaintiffs have alleged facts that indicate that Millender's actions were causally connected to the deprivation of Eric Hernandez's constitutional rights.
Plaintiffs allege that Lois Lilly was a TDPRS employee. Pls.' Second Amend. Orig. Compl. ¶ 10. Lois Lilly investigated the Claud home in January and February of 1999. Pls.' Rule 7 Reply, ¶ 18. Plaintiffs allege that Lilly was pressured by Diane Purdin to close the abuse investigation quickly and find that there had been no abuse in the home. Id. Plaintiffs allege that Lilly should have further investigated the abuse charges in January and February of 1999. Pls.' Supp. Rule 7 Reply ¶ 30. Taking all of these allegations as true, Plaintiffs have alleged facts that indicate that Lilly's actions were causally connected to the deprivation of Eric Hernandez's constitutional rights.
Plaintiffs allege that Diane Purdin was a placement worker with Child Protective Services. Pls.' Supp. Rule 7 Reply ¶ 8. Purdin was the social worker responsible for the Claud home, which included the responsibility of visiting the home quarterly. Id. Plaintiffs allege that Purdin failed repeatedly to investigate or follow-up allegations of child abuse and neglect in the Claud home. Purdin had been informed by another social worker that Sue Claud was seen with an infant with a swollen, red jaw. Id. at ¶ 10. Purdin did not investigate this claim to determine if there had been child abuse in the Claud home. Id. Purdin was also made aware of two additional complaints of abuse in the Claud home prior to Eric Hernandez's placement in the home. Id. at ¶ 14. Purdin never investigated the claims, one that children in the Claud home had unexplained bruising, the second that Sue Claud locked children in a closet while she did craft projects. Id. Purdin pressured other TDPRS employees to quickly close investigations of abuse in the Claud home so that additional children could be placed with the Clauds. Id. at ¶ 17. Purdin failed to investigate an additional allegation that the Clauds locked children in their rooms. Id. at ¶ 19. These allegations, taken as true, indicate that Diane Purdin was deliberately indifferent to Eric Hernandez's constitutional rights and her actions were causally connected to his death.
V. Plaintiffs' Statutory Claims
Defendants also seek dismissal of Plaintiffs' claims under Texas Human Resources Code § 42.001 et seq., and § 74.001 et seq., and Title 40 of the Texas Administrative Code Chapter 700. Defendants argue, and the Court agrees, that none of these statutes and regulations provide for a private cause of action. Therefore, the Court dismisses Plaintiffs' statutory claims.
VI. State Law Claims
Defendants also seek dismissal of Plaintiffs' claims under state law for negligence. The Court finds that Plaintiffs have stated a claim for negligence upon which relief can be granted.
Since the Court does not dismiss Plaintiffs' federal claims, the Court denies Defendants' request to dismiss the state law claims for lack of federal jurisdiction.
CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Defendants Jim Hines, Sarah Webster, and Rose Benham are dismissed from the case. Plaintiffs have stated a claim upon which relief can be granted in regards to Defendants Wayne Hairgrove, Amy Millender, Lois Lilly, and Diane Purdin.
SO ORDERED.