Opinion
Civil Action No. 00-2232-CM.
March 1, 2001.
ORDER
Plaintiff brings this action against defendants Mary Keady and Wayne Sramek pursuant to 42 U.S.C. § 1981 and 1983, alleging violations of substantive due process, procedural due process, and equal protection. This matter is before the court on defendants' motion for summary judgment (Doc. 16).
Plaintiff's first amended complaint dismissed as a defendant Herbert Hickman and added a claim under § 1981.
Defendants' motion is styled as a motion to dismiss. However, defendants moved the court "pursuant to F.R. Civ Pro. 56." Moreover, defendants set forth in separately numbered paragraphs a statement of facts, with citations to the record, and attached to the motion as part of the record affidavits and documents. Plaintiff's responsive pleading is styled as a "Response to Defendants' Motion for Summary Judgment," to which plaintiff attached documents in support. Thus, the court will consider defendants' motion as one for summary judgment.
I. Facts
The court reminds plaintiff that, pursuant to D. Kan. Rule 56.1, "all material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." However, the court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
Defendant Mary Keady at all times relevant hereto was a social worker employed by the State of Kansas Department of Social and Rehabilitation Services (SRS). Defendant Wayne Sramek at all times relevant hereto was a social work supervisor employed by SRS. Plaintiff Robert Booth Roe is the biological child of Terri and Booth Tuthill.
Prior to plaintiff's birth, Terri Tuthill had a history of mental illness and was committed to outpatient treatment under the supervision of the Community Mental Health Center of Crawford County, Kansas (CMHC). Terri and Booth resided at Oak Place, the residential housing associated with CMHC. Both Terri and Booth were Native American.
On June 11, 1992, when Terri Tuthill was pregnant with plaintiff, Rick Pfieffer, the director of CMHC, sent a letter to the Pittsburg, Kansas SRS office requesting that SRS perform a home study of the Tuthills. Then, on June 18, 1992, the Pittsburg, Kansas SRS office received a child in need of care report from Sister Marianette at the Mount Carmel Medical Center (MCMC). The report stated that Terri Tuthill was to have a baby in August, that the staff was very concerned, and that the staff felt like the child should be placed in custody at birth. The report also stated that the husband, Booth Tuthill, was on drugs and gets Terri to take drugs. That same day, defendant Keady spoke with Sister Marianette and then visited the Tuthills' home. Within the next six weeks, defendant Keady made at least three more visits to the home of Terri Tuthill, but Ms. Tuthill did not answer the door on either occasion. SRS never completed a home study.
Plaintiff was born on August 6, 1992 at MCMC. The next day, a meeting was held at MCMC. The meeting was attended by various health and social workers, including Mr. Pfieffer and defendant Keady. The purpose of the meeting was to discuss concerns regarding Terri and Booth's ability to provide for their infant son and the availability of community services to assist them in the care of their child. During this meeting, defendant Keady stated that, due to the Native American Act, SRS would be required to contact the Bureau of Indian Affairs (BIA) and request the bureau's child welfare assessment and services before any action could be taken by SRS. Mr. Pfieffer agreed to provide temporary, in-home services for the family until arrangements could be made with BIA.
After the meeting and on the same day, defendant Keady contacted BIA and requested services for the Tuthills. Later that day, Sally Ollis, Director of Social Services for the Quapaw Tribe, and Lisa Luther, a child protection worker with the BIA, came to MCMC and interviewed Terri and Booth Tuthill. Ms. Luther agreed to provide daily supervision and be accessible to Terri and Booth in caring for their son. Ms. Luther made plans to accompany the Tuthills home from the hospital on August 10, 1992.
On September 25, 1992, the Pittsburg SRS office received a report of suspected child abuse or neglect regarding plaintiff. The report was made by Jean Brown from CMHC. Ms. Brown reported that Terri Tuthill had stated that Booth Tuthill was shaking the child and that Terri was afraid that the father was shaking the child too hard and would hurt the child. Defendant Sramek asked defendant Keady to check on the report and coordinate with BIA. Then, on September 30, 1992, defendant Keady again spoke with Ms. Brown, who informed defendant Keady that she (Ms. Brown) thought the baby was alright and that the story was possibly in Terri's head.
On October 7, 1992, Ms. Brown again contacted Pittsburg SRS and reported that Terri Tuthill had left her baby alone in the apartment and that Terri refused to carry the baby monitor. Ms. Brown indicated that she had called Booth Tuthill to come home and care for the baby. In response to questioning by defendant Sramek, Ms. Brown indicated that she felt Booth Tuthill was a good caretaker and that the child was safe with him.
On October 8, 1992, Terri Tuthill was committed to Osawatomie State Hospital (OSH). The next day, Ms. Brown advised SRS that Terri Tuthill had been sent to OSH for a couple of weeks and that, in the mean time, Booth Tuthill and a babysitter were providing care for the infant child.
On October 12, 1992, SRS received a report of suspected child abuse from Kansas University Medical Center (KUMC). The report indicated that plaintiff had been life-flighted to KUMC early in the morning on October 12 in respiratory distress. The report further indicated that the child had head injuries, seizures, retinal hemorrhaging, bleeding in the brain, and possible shaken baby syndrome. As a result of the abuse, plaintiff was placed in the temporary custody of SRS, and Booth Tuthill was subsequently convicted of attempted child abuse.
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
Plaintiff claims that the defendants violated his rights under the Fourteenth Amendment. Specifically, plaintiff claims that defendants violated his right to procedural due process, denied his rights of equal protections, and violated his right of substantive due process. Defendants argue that they are entitled to qualified immunity on plaintiff's § 1983 claims.
Qualified immunity protects state actors from liability when acting within the scope of their employment. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985); Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988). The doctrine of qualified immunity serves the goals of protecting public officials "who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Butz v. Economou, 438 U.S. 478, 506 (1978).
The Supreme Court has established a two-part approach to determine if qualified immunity applies. "[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question." Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998) (citing County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998)). Thus, the court follows this two-step test to analyze the issue of qualified immunity raised by defendants here. Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 745 (10th Cir. 1999).
A. Substantive Due Process
Plaintiff alleges that defendants violated his right to substantive due process to be safe and free from injury due to the inactions or actions of the defendants by their failure to provide child protection services and family services. In considering plaintiff's claim, the court must first determine whether plaintiff has alleged a deprivation of a constitutional right at all.
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), involved a factual situation that is similar in all relevant respects to the facts of this case. In DeShaney, the Winnebago County Department of Social Services received complaints that a father was severely beating his child. The social workers, however, failed to remove the child from the household, and as a result of this continued physical abuse, the child, Joshua DeShaney, suffered permanent brain damage. The issue before the Supreme Court was whether the Department of Social Services' failure to take affirmative action to protect the child from "private violence, or other mishaps not attributable to the conduct of [the state's] employees" stated a cause of action for a deprivation of liberty under the substantive component of the due process clause of the Fourteenth Amendment. DeShaney, 489 U.S. at 193-94. The Supreme Court held that, where the state does not create the danger that resulted in harm to the child, but simply fails to intervene in the status quo, the plaintiff has failed to state a constitutional claim. Id. at 197.
Like DeShaney, the case at hand involved private violence by a private actor and, like Joshua DeShaney, plaintiff was in the custody and control of his own father. While the state may have been aware of the dangers plaintiff faced, "it played no part in their creation, nor did it do anything to render him any more vulnerable to them . . . it placed him in no worse position than that in which he would have been had it not acted at all." Id. at 201.
The Tenth Circuit has recognized two exceptions to the general DeShaney rule that the state is not constitutionally liable for violence committed by private individuals. These exceptions are the special-relationship doctrine and the danger-creation theory. Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). The special-relationship doctrine is applicable when the victim of violence is somehow under the state's control. Id. Thus, the doctrine has been held to apply to children who are in the state's legal custody and have been placed in a foster home or institution. Yvonne L. v. New Mexico Dep't of Human Servs., 959 F.2d 883, 893 (10th Cir. 1992).
Plaintiff argues that defendants created a special relationship such that they guaranteed plaintiff's safety and care. However, under the special relationship doctrine, "the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." DeShaney, 489 U.S. at 200. In this case, SRS took no affirmative acts of restraining plaintiff's freedom to act on his own behalf. The special-relationship doctrine is simply inapplicable because plaintiff was not in state custody, either legal or physical, at the time he was injured by his father.
Having determined that the special-relationship doctrine does not apply, the court concludes that plaintiff cannot assert a claim against defendants based upon substantive due process. Under DeShaney, any failure by defendants to provide plaintiff with adequate protection against his father's violence did not violate plaintiff's rights under the substantive component of the Due Process Clause of the Fourteenth Amendment. Accordingly, plaintiff's substantive due process claim is hereby dismissed.
B. Procedural Due Process
Plaintiff alleges that defendants violated his right to procedural due process. Specifically, plaintiff contends that the agreement by SRS to provide him services, together with the activity of defendants Sramek and Keady, entitled plaintiff to the right to receive state statutory and administrative benefits, including the right to have a complaint of abuse to his person investigated by SRS. The threshold question in determining whether plaintiff can move forward on his claim is whether the alleged conduct violated existing law. Hinton v. City of Elwood, 997 F.2d 774, 780 n. 5 (10th Cir. 1993).
It is well-settled that a state law which generates a legitimate claim of entitlement can create a protected interest under the Due Process Clause. Barry v. Barchi, 443 U.S. 55, 64 n. 11 (1979). State-created procedures, however, do not create such an entitlement where none would otherwise exist. Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983). Rather, a constitutionally protected liberty interest arises where a state statute puts substantive limitations on official discretion and mandates a particular outcome under specific criteria. Id. at 249. On the other hand, where the state statute creates mandatory procedures but does not guarantee a particular substantive outcome, no protected liberty interest exists. Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 463 (1989).
Plaintiff relies on defendants' alleged failure to investigate reports of child abuse as required by Kan. Stat. Ann § 38-1523. Specifically, § 38-1523 provides, "The state department of social and rehabilitation services and law enforcement officers shall have the duty to receive and investigate reports of child abuse or neglect for the purpose of determining whether the report is valid and whether action is required to protect the child from further abuse or neglect." Thus, although mandatory under § 38-1523, the act of having authorities investigate child abuse reports does not dictate a particular substantive outcome or guarantee, such as removal from the alleged abuser's home or other protective measures. Indeed, no Kansas statute mandates that a child be placed in protective custody or otherwise removed from his home simply upon the filing of a report of alleged abuse. Rather, the statute gives discretion to various persons to assess the evidence and exercise their professional judgment. Thus, while plaintiff may have had an expectation that some form of protective services would be taken if defendants complied with the statutory procedures, that expectation is not enough to create a protected liberty interest under the Due Process Clause.
Such a conclusion is supported by the law in other circuits. Doe by Nelson v. Milwaukee County, 903 F.2d 499, 502-505 (7th Cir. 1990) (holding that statute, which mandated the reporting and investigation of child abuse, did not confer a protected procedural due process right); Doe by Fien v. Dist. of Columbia, 93 F.3d 861, 867-71 (D.C. Cir. 1996) (holding that the codification of procedures for investigating child abuse did not create an entitlement to protective services because the district had not assumed a constitutional obligation to protect children from abuse). Moreover, in an unpublished opinion, the Tenth Circuit has made a similar ruling. Morgan v. Weizbrod, No. 93-6324, 1994 WL 55607, at *2-3 (10th Cir. Feb. 23, 1994) (unpublished) (holding Oklahoma's child protection statute, which creates a duty to investigate reports of child abuse, does not create an entitlement which would support a procedural due process claim).
The court similarly rejects plaintiff's argument that defendants' action to deny him statutory and administrative entitlements without a hearing violated his due process rights. In order to establish a constitutionally protected right to certain procedures, a plaintiff must demonstrate the existence of a separate, underlying substantive interest. Olim, 461 U.S. at 250-251. Plaintiff cannot assert a right in procedures alone, and DeShaney bars his attempt to establish the existence of a substantive right created by the Kansas code for care of children. Morgan, 1994 WL 55607 at *3 Plaintiff has failed to establish that defendants' conduct violated existing law. Accordingly, plaintiff's procedural due process claim is hereby dismissed.
Because the court has concluded that plaintiff failed to allege a deprivation of a constitutional right, either on substantive or procedural due process grounds, the court need not proceed to the second step of the qualified immunity test.
Plaintiff's amended complaint alleges that defendants violated his equal protection rights under the Fourteenth Amendment. Defendants' motion for summary judgment, which was filed before plaintiff was granted leave to amend his complaint, did not raise an argument regarding plaintiff's equal protection claim. Thus, even though defendants briefly addressed plaintiff's equal protection claim in their reply brief, the court will not consider the merits of the claim at this juncture. As a result, the claims that remain in this lawsuit are plaintiff's equal protection claim and plaintiff's claim under § 1981.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment (Doc. 16) is granted.