Brown by Brown v. Kennedy Krieger Institute, Inc., CIV. H-96-1829.

997 F.Supp. 661

James McKendrick BROWN, by his guardian and best friend Lillian BROWN Plaintiff v. KENNEDY KRIEGER INSTITUTE, INC. Defendant

No. CIV. H-96-1829.

United States District Court, D. Maryland.

January 20, 1998.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM AND ORDER

ALEXANDER HARVEY, II, Senior District Judge.

This civil action has been brought under 42 U.S.C. § 1983 by James McKendrick Brown ("Jake"), a mentally retarded adult who has here sued through his court-appointed guardian, Lillian Brown. Named as defendant is Kennedy Krieger Institute, Inc. ("KKI"), a private non-profit corporation which provides community supported living arrangement services and community based residential services for mentally disabled adults. From 1993 until 1996, plaintiff resided in several homes operated by KKI. In this suit, he claims that defendant KKI violated his federal constitutional rights in various respects, and he has also asserted pendent claims under state law. As relief, plaintiff seeks substantial compensatory damages.¹

There have been extensive pretrial proceedings in this case. Defendant's motion to dismiss the complaint was denied by the Court's Memorandum and Order of September 11, 1996. In its later Memorandum and Order of June 23, 1997, defendant's motion to dismiss the amended complaint was granted in part and denied in part, with leave to plaintiff to file a second amended complaint. Thereafter, leave was granted to plaintiff to file a third amended complaint, which is the pleading in which plaintiff's claims are now pending before the Court.

Pursuant to various Scheduling Orders entered by the Court, the parties have engaged in extensive discovery. Now pending before the Court is defendant's motion for summary judgment.² The parties have submitted lengthy memoranda and voluminous exhibits in support of and in opposition to the pending motion, including affidavits and excerpts of depositions taken during discovery. A hearing on the pending motion has been held in open court. For the reasons to be stated herein, defendant's motion for summary judgment will be granted in part and denied in part.

I Background Facts³

Since birth, plaintiff James McKendrick Brown has been retarded.⁴ He is a nonverbal, partially blind and severely mentally retarded adult who is now 26 years of age. From 1984 until 1993, he resided at Rosewood Center ("Rosewood"), a State residential treatment center for the mentally disabled. In 1992, Lillian Brown, Jake's grandmother, agreed with Rosewood officials that a community residential program should be sought for plaintiff. On May 21 1992, an agreement was entered into by plaintiff, the Maryland State Board of Education and the State's Developmental Disabilities Administration ("DDA"). The DDA therein agreed to enter into a contract with defendant KKI to provide residential services to plaintiff. From February of 1993 through March of 1996, Jake lived in three different group homes owned and operated by defendant KKI. These homes were licensed by the Maryland Department of Health and Mental Hygiene and were subject to state regulation. Funds for Jake's care were provided to KKI by the State.⁵ A portion of those funds was supplied by the federal government pursuant to the federal Medicare Waiver program.

On or about June 16, 1993, Jake suffered blistering of both feet resulting from second degree burns when a KKI employee bathed him in scalding hot water. He was taken to the emergency room at Good Samaritan Hospital and then to Francis Scott Key Burn Center, where he was treated and kept overnight for observation.

On or about October 25, 1994, a KKI employee left Jake unattended and unmonitored near a flight of stairs. He had a propensity to entwine his arms with the bannister railings of stairs, and on this occasion, he entwined his arms and fell causing a compound fracture of his left arm. Once again, he was hospitalized, treated for multiple fractures, and released after his arm was placed in a cast.

On or about January 15, 1996, Jake again suffered scald wounds, on this occasion to his upper chest, chin and shoulder, and to his abdomen, genitals and thighs. He was admitted to Johns Hopkins Bayview Hospital where he was kept overnight and treated.

Jake was unable to control his urinary and bowel functions and required constant supervision in the use of KKI's toilet facilities. The behavior program developed for Jake required that he should be wearing adult diapers only during the night or when traveling to appointments or to work. However, KKI's staff members on numerous occasions left him in wet, soiled adult diapers during the day and did not properly take him to toilet facilities when he indicated a need to urinate or defecate.

Besides breaking his arm in 1994, Jake, during the three years that he lived in KKI homes, received various other injuries, including bruises and cuts to different parts of his body. The causes of these injuries were for the most part unwitnessed and unexplained.

In March of 1996, defendant KKI notified the DDA that it would no longer provide services to plaintiff. Plaintiff was then transferred to a community home operated by Creative Options. This civil action was filed in this Court on June 11, 1996.

II

The Claims

The third amended complaint contains twelve counts as follows:

Count I      Breach of Contract
Count II     Negligent Scalding — June 16, 1993
Count III    Negligent Injury — Broken Arm
Count IV     Negligent Scalding — January 15, 1996
Count V      Negligent Failure to Train and Supervise
               Staff
Count VI     Negligent Retention;
Count VII    Violation of Constitutional Rights;
Count VIII   Violations of Water Temperature Regulations;
Count IX     Violation of Abuse and Neglect Regulations;
Count X      Violations of Staff Training Regulations;
Count XI     Violation of Individual Program Regulations;
Count XII    Violation of Nutritional Regulations

Counts I through VI are asserted under state law. Counts VII through XII are based on 42 U.S.C. § 1983. In Count VII, plaintiff contends that, while he was under defendant's care, KKI deprived him of his substantive due process right to conditions of reasonable care and safe surroundings and conditions. It is asserted by plaintiff that defendant KKI owed him a substantive due process duty to provide safe conditions, insure bodily integrity, and provide adequate food, shelter, clothing, medical services and habilitation services. Counts VIII through XII are based on violations of federal rights allegedly established by 42 U.S.C. § 1396, et seq., and by regulations implementing those statutory provisions.

Defendant KKI seeks summary judgment as to all of plaintiff's federal claims and further contends that this Court should dismiss plaintiff's pendent state law claims. According to defendant KKI, this Court should enter judgment as a matter of law in its favor (1) because plaintiff cannot demonstrate that defendant KKI deprived him of a right secured by the Constitution; (2) because defendant KKI did not act under color of law as required by § 1983; and (3) because plaintiff cannot demonstrate as alleged in Counts VIII — XII that defendant deprived him of a right secured by federal law.

III Summary Judgment Principles

The principles to be applied by this Court in considering a motion for summary judgment filed under Rule 56, F.R.Civ.P. are well established. A party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Rule 56(c).

In Phoenix Sav. & Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.2d 245, 249 (4th Cir.1967), the Fourth Circuit Court of Appeals summarized these principles as follows: "It is well settled that summary judgment should not be granted unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances." Id. Hence, the party opposing a motion for summary judgment is entitled to all favorable inferences which can be drawn from the evidence. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Cram v. Sun Ins. Office, Ltd., 375 F.2d 670, 674 (4th Cir. 1967).

The burden is on the party moving for summary judgment to demonstrate clearly that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). This burden is met by consideration of affidavits, exhibits, depositions and other discovery materials. Id. Nevertheless, "[the facts, and the inferences to be drawn from the facts, must be viewed in the light most favorable to the party opposing the motion." Ballinger v. North Carolina Agricultural Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.1987) (Timbers, J.), cert. denied, 484 U.S. 897, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987) (citing Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985)).

Applying these principles to the facts of record here, this Court has concluded that defendant's motion for summary judgment must be granted in part and denied in part.

IV Prior Rulings

Shortly after defendant was served with process in this case, it filed a motion to dismiss the complaint. In its Memorandum and Order of September 11, 1996, this Court denied that motion and directed defendant to file an answer. Relying on Youngberg v Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Court in its ruling concluded that plaintiff had properly alleged facts in support of his § 1983 claim which would entitle him to the relief sought. (Slip op. at 7). The Court rejected defendant's contention that the complaint should be dismissed because plaintiff had failed to arbitrate his claims in the manner required by the Maryland Health Care Malpractice Claims...