Danielle v. Adriazola

284 F.Supp.2d 1368

Ashleigh DANIELLE, By and Through her mother and next friend and through Richard Komando, attorney ad litem, Plaintiff, v. Albert ADRIAZOLA, Susan Worsley, Loletrice Fyffe, Kathleen Kearney, Children's Home Society, Inc., and Kids in Distress, Inc., Defendants.

No. 03-61076-CIV.

United States District Court, S.D. Florida.

September 4, 2003.

COPYRIGHT MATERIAL OMITTED

Roy D. Wasson, Coral Gables, John Lawlor, Lawlor Winston & Justice, Fort Lauderdale, FL, Karen A. Gievers, Tallahassee, FL, Richard Christian Komando, Fort Lauderdale, FL, for Plaintiff.

Pamela Lynn Lutton-Shields, Diane L. Guillemette, Attorney General Office, Department of Legal Affairs, Tallahassee, FL, Kenneth John Carusello, Kenneth J. Carusello, Coral Gables, Geoffrey Bennett Marks, Billbrough & Marks, Miami, FL, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS DEFENDANTS ADRIAZOLA, FYFFE, WORSLEY AND KEARNEY

HUCK, District Judge.

THIS CAUSE is before the Court upon the Second-Amended Motion to Dismiss Defendants Adriazola, Fyffe, Worsley, and Kearny, filed on June 24, 2003 [DE # 6] ("Second-Amended Motion"). These Defendants move to dismiss on several grounds, including failure to state a claim upon which relief can be granted, qualified immunity, and Plaintiff's lack of capacity to sue. Plaintiff contests each of these arguments, contending the Complaint sufficiently states a claim under 42 U.S.C. § 1983 for violation of Ashleigh Danielle's substantive due process rights under the Fourteenth Amendment, that defendants are not entitled to qualified immunity, and that this suit has been properly brought through Ashleigh Danielle's mother as next friend, satisfying the requirement for capacity. The Court finds that Plaintiff has adequately stated a claim and that these defendants are not entitled to dismissal under qualified immunity on this record.

Jurisdiction

This Complaint was originally filed in the Florida Circuit Court of the Seventeenth Judicial Circuit in Broward County on December 31, 2002. On June 2, 2003, Defendants Adriazola, Fyffe, and Worsley removed the action to this Court pursuant to 28 U.S.C. § 1441 on the grounds that the suit against those three defendants and Defendant Kearney involves a federal civil rights claim brought pursuant to 42 U.S.C. § 1983, thus giving this Court federal question jurisdiction over the action. The removal motion represents that Defendants Kids in Distress, Inc., Adraizola, Fyffe, and Worsley were served on May 2, May 5, May 7, and May 10, 2003, respectively, and that Defendant Kearney and Children's Home Society, Inc., had not been served as of filing of the removal notice. The notice of removal was filed within thirty days of receipt of service by any of the defendants. See 42 U.S.C. § 1446(b). Neither Plaintiff nor Defendants presently challenge this Court's jurisdiction over the subject matter of the Complaint.¹

Facts

The crux of Defendants argument in this motion is that Plaintiff has failed to state a claim for relief against the state officials and, in particular, against Defendant Kearny. The Complaint alleges that Defendants Albert Adriazola, Susan Worsley, Loletrice Fyffe, and Kathleen Kearny violated her constitutionally protected due process right to be kept safe and free from harm while in the foster care custody of the Florida Department of Children and Families ("DCF"). Complaint at ¶¶ 6, 8, 22. According to the Complaint, Plaintiff was a two-year-old minor in 1998 when she was taken into the custody of the DCF and placed at the Children's Home Society, Inc. ("CHS"), on emergency shelter status for a period of approximately 1000 days. Id. at ¶¶ 3, 6. The Complaint alleges that Plaintiff deteriorated psychologically and was subjected to abuse by other children while placed at CHS. Id. at ¶ 3. Plaintiff states that Defendants Fyffe and Worsley were counselors at DCF, that Defendant Adriazola was the DCF supervisor who had direct responsibility over the Plaintiff, and that Defendant Kearny served as Secretary for the Department of Children and Families from January 1999 until August 2002, and that, as such, each of these Defendants acted under the color of state law. Id. at ¶¶ 4-5.

In Count III, the Complaint alleges that Defendants Adriazola, Fyffe, Worsley, and Kearney committed civil rights violations against the Plaintiff, allegedly partially because of their dislike for or concern about one or both of Plaintiff's parents. Id. at ¶¶ 16-23. Specifically, Defendants Adriazola, Worsley, and Kearney allegedly "did nothing to protect" the Plaintiff even though "each had actual knowledge that Plaintiff was not safe in the CHS shelter, knew that Plaintiff was deteriorating and lacking her ability to function normally," and "knew that episodes of abuse of the Plaintiff by others in the shelter were occurring." Id. at ¶ 19. The Complaint further alleges that Defendant Kearney personally intervened in the Plaintiff's case and, with the aid of these other three Defendants, kept Plaintiff in "an unsuitable dangerous placement and kept secret the information about the abuses suffered by Plaintiff while in the Department's custody." Id. at ¶ 21. Plaintiff demands various categories of damages for the permanent injuries suffered by Plaintiff as a result of Defendants' failure to protect her right to be safe and free from harm while in state custody. Id. at ¶ 24.

Discussion

I. Plaintiffs Capacity to Sue

In their motion to dismiss, Defendants raise the issue of Plaintiff's lack of capacity, arguing that this suit has been improperly brought on her own behalf rather than by a next friend as required by procedural rules. The Federal Rules of Civil Procedure establish the manner in which an infant must proceed in a civil suit, allowing that an infant's representative may sue on behalf of the infant, and, if no such representative has been duly appointed, mandating that the court shall appoint a guardian ad litem. Fed. R. Civ. Pro. 17(c). In this case, the Ashleigh Danielle's complaint has been filed both through her mother as next friend and through Richard Komando, the child's attorney ad litem. Because the relationship between the various individuals purporting to represent the Plaintiff's interests in this action is unclear and because these two representatives for the child may have conflicting interests, the Court raised the issue in a telephonic status conference on August 25, 2003. During that conference, Plaintiff's counsel agreed to determine the manner in which to proceed such that the Plaintiff will be properly represented pursuant to Rule 17(c). Since this requirement is procedural and does not create any jurisdictional bars that require immediate resolution, the Court will await a response on this question before taking any further action.²

II. Section 1983 Claims and Qualified Immunity

An action brought under 42 U.S.C. § 1983 requires the deprivation of a federally protected right by a person acting under color of state law. See Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Whitehorn v. Harrelson, 758 F.2d 1416, 1419 (11th Cir. 1985). However, individual government employees acting within the scope of their official duties enjoy the defense of qualified immunity unless their actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Supreme Court has emphasized that a ruling on qualified immunity must be made as early in the proceedings as possible, since it is an "immunity from suit rather than a mere defense to liability, ... an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In ruling on qualified immunity, a court must first determine whether the complaint, taken in the light most favorable to the plaintiff, alleges facts which, if proven, would show that the officer violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If no constitutional right could have been violated, then there is no need to proceed to the second step. Id. Thus, as other courts have noted, a determination on a motion for failure to state a claim and the first step of the qualified immunity analysis merge when presented in a Rule 12(b)(6) motion. GJR Investments, Inc. v. County of Escambia, Florida, 132 F.3d 1359, 1366 (11th Cir. 1998). If a court finds that a constitutional right was violated, based on "a favorable view of the parties' submissions," then the court must determine whether that right was clearly established in light of the specific context of the case. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. An executive branch officer is entitled to qualified immunity if the law did not clearly put the officer on notice that the conduct in which he or she engaged would be clearly unlawful. Id. at 202, 121 S.Ct. 2151.

In this case, Plaintiff claims that she had a due process right to be "kept safe and free from harm while in foster care." Complaint at ¶ 8. According to the Complaint, these Defendants violated this right because they failed to protect her in the face of knowledge that, among other things, she was being abused by other children at the Children's Home Society facility.³ Id. at ¶ 19. However, Defendants argue that the allegations of Plaintiffs Complaint are "conclusory and fail to establish that the conduct of each Defendant violated a constitutionally protected right of the Plaintiff." Defendants' Reply at 2. Defendants argue that, rather, the only laws Plaintiff claims were violated are state rules, which does not properly state a claim under § 1983 for violation of a constitutional right or federal law. Second-Amended Motion at 2, 3-4. Defendants further contend that, even if Plaintiff does state a claim under §...