Crispell v. Florida Dep't of Children & Families

BRADFORD CRISPELL and VIRGINIA MADDEN-CRISPELL, Individually and as Parent and Next Friend of TMC, a minor, and TRC, a minor, Plaintiffs, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Defendants.

CASE NO: 8:11-cv-1527-T-30EAJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: August 20, 2012

ORDER

THIS CAUSE comes before the Court upon Defendant Children's Home Society of Florida's Motion to Dismiss ("CHSF") (Dkt. 94) and Plaintiffs' Memorandum of Law in opposition (Dkt. 96). The Court, having reviewed the motion, opposition, and being otherwise advised of the premises, concludes that the motion should be denied as to Count I and granted without prejudice as to Count II.

BACKGROUND¹

In August 2006, two minor children (TMC and TRC) were taken into the custody of Florida Department of Children and Families ("FDCF"). Later in 2006, TMC and TRC wereplaced into foster care with Plaintiffs Bradford Crispell and Virginia Madden-Crispell ("the Crispells"). On or about July 19, 2007, TMC and TRC were placed in the care of CHSF, a foster care provider for FDCF.

On or about August 11, 2007, TMC was sexually assaulted while in the care of CHSF's Orlando Crisis Nursery by another child, CJ, who allegedly had a prior history of acting out sexually with other children. Plaintiffs contend that TMC was placed in the same room as CJ despite a known risk of sexual assault.

On June 4, 2008, TMC and TRC were reunited with the Crispells.

With respect to CHSF, Plaintiffs contend that its agents and employees failed to monitor and supervise TMC adequately; specifically, Plaintiffs allege that CHSF's conduct subjects it to liability for negligence ("Count I") and violations of 42 U.S.C. § 1983 ("Count II").

CHSF moves to dismiss Counts I and II for improper pleading practice. CHSF also moves to dismiss Count II for failure to state a claim on the basis of Eleventh Amendment immunity. CHSF also contends that even if it is not immune under the Eleventh Amendment, Plaintiffs' allegations are insufficient to state a section 1983 claim. Finally, CHSF moves to strike portions of Plaintiffs' Second Amended Complaint.

MOTION TO DISMISS STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief."Detailed facts are not necessary, but a claim must contain enough factual allegations to raise a reasonable expectation that discovery will reveal evidence of the harm alleged. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1959, 167 L. Ed. 2d 929 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957)).

When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true and view the facts in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S. Ct. 2197, 2199-2200, 167 L. Ed. 2d 1081 (2007). However, unlike factual allegations, legal conclusions in a pleading are not entitled to the assumption of truth and must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct.1937, 1950, 173 L. Ed. 2d 868 (2009). Indeed, "conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal." Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

Moreover, when the factual allegations are "not only compatible with, but indeed [are] more likely explained by" lawful activity, the complaint must be dismissed. Iqbal, 556 U.S. at 680, 129 S. Ct. at 1951, 173 L. Ed. 2d 868; see also N. Am Clearing, Inc. v. Brokerage Computer Sys., Inc., 2009 WL 1513389 (M.D. Fla. May 27, 2009) ("On a Rule 12(b)(6) motion to dismiss, when a court considers the range of possible interpretations of the defendant's alleged conduct, if the 'more likely explanations' involve lawful, non-actionable behavior, the court should find that the plaintiff's claim is not plausible.")

DISCUSSION

I. Motion to Dismiss Based on Improper Incorporation by Reference

CHSF initially argues that the Second Amended Complaint improperly incorporates by reference all paragraphs contained in the preliminary allegations. The Court disagrees.

The Eleventh Circuit has condemned "shotgun" pleadings in which it is "virtually impossible to know which allegations of fact are intended to support which claim(s) for relief." Anderson v. Dist. Bd. of Tr. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (citing Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991)). Here, unlike the quintessential shotgun pleading containing dozens of pages of facts and allegations and hundreds of counts, Plaintiffs' Second Amended Complaint contains approximately seven combined pages of alleged facts and general allegations. Also, each claim for relief is presented in a separate count and has listed relevant facts and allegations under each count. See Anderson, 77 F.3d at 366; Bailey v. Janssen Pharmaceutical, Inc., 288 F. App'x. 597, 603 (11th Cir. 2008) ("[A] complaint - so long as it is minimally sufficient to put a defendant on notice of the claims against him - will not fail for mere surplusage.").

Accordingly, CHSF's motion is denied on this issue.

II. Motion to Dismiss Count II - 42 U.S.C. § 1983 Claim

A. CHSF is a State Actor and Subject to Section 1983 Claims

CHSF is a state actor for section 1983 purposes under the public function test. Private entities are viewed as state actors if they 1) perform functions traditionally the prerogative of the state under the public function test, 2) are coerced or significantly encouraged by thegovernment to commit a constitutional violation under the state compulsion test, or 3) are a joint and interdependent participant with the government in an enterprise under the nexus/joint action test. Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003) (quoting Willis v. University Health Servs., Inc., 993 F.2d 837, 840 (11th Cir. 1993)). The Florida Legislature has declared that "the state has traditionally provided foster care services" and has allowed the function to be "outsourced" to private, community-based agencies. Fla. Stat. §§ 409. 1671(1)(f)(1), (1)(a) (2010). As an agency performing a traditionally public function in Florida, CHSF is a state actor. See generally Woodburn v. State of Florida Dep't of Children and Family Servs., 2011 WL 7661425 (S.D. Fla. Dec. 1, 2011); Smith v. Beasley, 775 F. Supp. 2d 1344 (M.D. Fla. 2011).

CHSF contends that the section 1983 claim should be dismissed based on Eleventh Amendment immunity. The Eleventh Amendment generally bars suit by individuals against the state or its agencies in federal court. See Gamble v. Florida Dep't of Health and Rehab. Servs., 779 F.2d 1509, 1511 (11th Cir. 1986) (citing Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)). For section 1983 purposes, this immunity reaches state agencies and "other arms of the state" but does not reach municipalities or other local governing bodies that are sufficiently independent from the state. See Schopler v. Bliss, 903 F.2d 1373, 1378 (11th Cir. 1990) (citing Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 280, 97 S. Ct. 568, 572-73, 50 L. Ed. 2d 471 (1977)); see also Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 611 (1978), Will v. Michigan Dep't of State Police, 491 U.S. 58, 69, 109 S. Ct. 2304, 2311, 105 L. Ed. 2d 45(1989). Thus, it is necessary to determine whether an outsourced foster care agency is considered an arm of the state or an independent political subdivision.

CHSF's function and characteristics as determined by state law governs its legal posture under the Eleventh Amendment. Brown v. E. Cent. Health Dist., 752 F.2d 615, 617 (11th Cir. 1985) (citing Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977)). First, CHSF is not an entity created by state law because foster care services in Florida are statutorily "outsourced" to "private nonprofit agenc[ies]" that work with the Department of Children and Families. See Fla. Stat. §§ 409.1671(1)(a), (b) (2010). These agencies are not created by or wholly run by the state. Therefore, CHSF is more like an independent political subdivision than an arm of the state.

Alternatively, a private entity may be an arm of the state if any recovery of damages would come from the state treasury. Brown, 752 F.2d at 617; see also Edelman, 415 U.S. at 663, 94 S. Ct. at 1355. Receiving significant amounts of money from the state or receiving guidance from a state agency is not enough to show that a private entity is an arm of the state. Mount Healthy, 429 U.S. at 280, 97 S. Ct. at 572-73, 50 L. Ed. 2d 471.

CHSF has not demonstrated that it is an arm of the state and, therefore, is not entitled to immunity under the Eleventh Amendment. Accordingly, CHSF's motion is denied on this issue.

B. Custodial Relationships, Including Placement in Foster Care, Create an Affirmative Duty to Protect

In cases of children placed in foster homes, there is an affirmative duty under the Fourteenth Amendment to protect them from harm by third parties. Doe v. Braddy, 673 F.3d 1313, 1318 (11th Cir. 2012) (citing White v. Lamacks, 183 F.3d 1253, 1257 (11th Cir. 1999)). The Supreme Court has recognized the right to physical safety and security as a substantive Due Process liberty interest for persons involuntarily committed in a governmental custodial setting. Taylor v. Ledbetter, 818 F.2d 791, 794 (11th Cir. 1987) (citing Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982)). This custodial relationship gives rise to an automatic affirmative duty rooted in "the State's affirmative act of...