R. F. J. v. Fla. Dep't of Children & Families

398 F.Supp.3d 1268

R. F. J., Estate of deceased minor child, R. F., Estate of deceased minor child, J. F., Estate of deceased minor child, Brian Cabrey, attorney ad litem and next friend of H.F., a minor child, and Jennifer Smith, individually, Plaintiffs,

v.FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, a governmental agency of the State of Florida, Reginald Brady, individually, and Bruce Perry, individually, Defendants.

Case No. 3:15-cv-1184-J-32JBT

United States District Court, M.D. Florida, Jacksonville Division.

Signed July 16, 2019

Joshua A. Woolsey, Woolsey Morcom, PLLC, Ponte Vedra, FL, for Plaintiffs.

Michelle Bedoya Barnett, Todd Anderson Wright, Mark Gorman Alexander, Alexander DeGance Barnett, P.A., Ariel Cook, Office of General Counsel, F. Damon Kitchen, Constangy, Brooks, Smith, & Prophete, LLP, Jacksonville, FL, Dale Joseph Paleschic, Luks, Santaniello, Petrillo & Jones, Tallahassee, FL, Edgardo Ferreyra, Luks, Santaniello, Petrillo & Cohen, Ft. Lauderdale, FL, for Defendants.

TIMOTHY J. CORRIGAN, United States District Judge

ORDER

This is a tragic case. Three young children perished in a house fire along with their grandmother, and a fourth child narrowly escaped with serious injuries. Earlier that morning, Florida Department of Children and Families' ("DCF") employees directed the children's grandmother, who had a known history of serious mental illness, to take custody of the children. The surviving child, the estates of the three deceased children, and the children's mother filed this suit against DCF, Reginald Brady (a DCF child protective investigator), and Bruce Perry (Brady's supervisor). Now, the Court must decide whether Brady and Perry's placement of the children with their grandmother was deliberately indifferent to the children's clearly established constitutional rights.

I. BACKGROUND¹

On June 14, 2014, Richard Fowler, the father of the four children, was arrested while he was with his youngest child, J.F. (Doc. 106 ¶¶ 25–26). The Jacksonville Sheriff's Office determined that Fowler's neighbor, Rebecca Peoples, should take custody of J.F., and reported the situation to DCF. (Id. ¶¶ 26–29). A DCF employee directed Peoples to take J.F. to the home of the children's grandfather, Clayton Woods. (Id. ¶ 31). "By directing Peoples to take J.F. to Woods, the Defendants assumed the responsibility of finding and keeping J.F. in a safe environment and ensuring the continuing safety of that environment." (Id. ¶ 32). DCF then "directed or approved the placement" of R.F.J., R.F., and H.F.—Fowler's other three children who were all under the age of seven—with Woods. (Id. ¶¶ 33, 53–54).

The next day, "Brady began making the decisions regarding the care, safety and placement of the Children ...." (Id. ¶ 34). On June 16, 2014, Brady visited Woods's home to evaluate the living condition and supervision of the children. (Id. ¶ 36). During this visit, "Brady made it apparent to all involved that he was in control of the Children's placement, and that he had the authority to control the custodial environment of the Children." (Id. ¶ 38). After inspecting Woods's home to confirm that it was safe, and confirming that Woods could provide adequate supervision, Brady told Woods that he would inform him of the next steps the following day. (Id. ¶¶ 36–37).

During a telephone call around 8:13 AM the following day (June 17, 2014), CPI Brady, in exercising his control of the Children's placement and custodial environment, approved, allowed, or instructed [Sheila Swearingen, the Children's grandmother,] to remove the Children from Woods' care at the New Berlin Road Residence, and to relocate ... with the Children to 12719 Palmetto Street, Jacksonville, Duval County, Florida ("Palmetto Street Residence").

(Id. ¶ 40). "Such placement was involuntary because due to their age, the Children were subject to Brady's direction, and were unable to seek alternative living arrangements on their own." (Id. ¶ 44). Brady did not inspect the home prior to authorizing Swearingen to take them there, and the home had been unoccupied for several days. (Id. ¶ 42).

Further, Plaintiffs allege that:

54. On the morning of June 17, 2014, Brady was in possession of and had reviewed records which document at least ten incidents where Swearingen was specifically Baker Acted^[2] or confronted by law enforcement for mental health issues, as well as additional criminal information supporting mental health concerns (the "Swearingen Records"). The Swearingen Records were in Brady's possession no later than the morning of June 17, 2014 (the morning of the Fire).

55. At the time of the [June 17, 2014] Meeting [of DCF employees to discuss the Children's situation], Brady was aware of the risks associated with allowing the Children to be placed in Swearingen's care and the risks associated with allowing the Children to stay at the Palmetto Street Residence without first conducting a home visit.

56. Brady reviewed the Swearingen Records prior to approving the placement of the Children in Swearingen's care and before the Meeting where he re-approved such placement.

57. The Swearingen Records contain over twenty-five encounters with the Jacksonville Sheriff's Office, including:

a. At least eight entries that specifically indicate she was contacted for "MENTAL HEALTH" reasons.

b. Multiple misdemeanor arrests, including arrests for trespassing, breach of peace, battery and trespassing in an occupied dwelling.

c. Multiple felonies, including arrests for burglary, unlisted felonies and "Forcible Fondling / Indecent Liberties / Child Molesting".

d. Multiple trespass warnings.

e. Multiple entries indicated she is transient or homeless.

f. Approximately eight entries documenting reports where Swearingen was Baker Acted.

(Doc. 106).

Thus, at the time of the DCF meeting, Brady knew Swearingen's suitability as a caretaker "was a concern" and that he "wanted to remove [the children,]" but believed "there were adequate caregivers who were meeting their needs." (Id. ¶¶ 70–71). And by the end of the meeting, Perry also had "actual knowledge" of Swearingen's mental health problems, but decided "that removal was not necessary" at that time. (Id. ¶ 72). "Brady admits that after the staffing meeting, there was an urgency in getting out to the home where [Swearingen] had the Children. Despite such ‘urgency’, Brady waited several hours before going to the property and failed to call Swearingen, despite having her cell phone number." (Id. ¶ 73–74).

At approximately 5:40 p.m. the same day, "R.F.J., who was four years old and was not properly being supervised, was playing with a lighter and started a house fire." (Id. ¶ 91). R.F.J., R.F., J.F., and Swearingen all died in the fire. (Id. ¶ 93). H.F. survived the fire and was taken to the hospital. (Id. ¶ 95–98). At 7:25 p.m., Brady arrived at the house, which was already on fire and being attended to by fire and rescue personnel. (Id. ¶ 92). Later that evening at the hospital, Brady told the children's aunt that it was his decision to place the children in Swearingen's care. (Id. ¶ 98).

II. PROCEDURAL POSTURE

After Defendants removed this case, Plaintiffs filed their second amended complaint, which alleged five counts against Brady under 42 U.S.C. § 1983 for violating the children's Fourteenth Amendment substantive due process rights (Counts I through V); five counts against Perry under 42 U.S.C. § 1983 for violating the children's Fourteenth Amendment substantive due process rights (Counts VI through X);³ and two counts against DCF for negligence under Florida's Wrongful Death Act (Count XI) and negligent infliction of emotional distress (Count XII). (Doc. 8). Brady and Perry moved to dismiss the § 1983 counts on qualified immunity grounds. (Docs. 13; 14). The Court referred the motions to the assigned magistrate judge for a report and recommendation. (Doc. 28). The magistrate judge recommended that the motions be granted, finding that a constitutional right existed but was not clearly established. (Doc. 29). All parties filed objections to the Report and Recommendation. (Docs. 30; 32; 34; 37).

On September 12, 2016, the Court held a hearing on the motions and objections to the Report and Recommendation. (Doc. 45). After post-hearing settlement discussions faltered, the Court converted the motions to dismiss into motions for summary judgment and ordered supplemental responses after the conclusion of discovery. (Doc. 51). Brady and Perry appealed the decision and requested that the Court stay discovery pending a decision from the Eleventh Circuit, (Doc. 60). The Court stayed discovery on the § 1983 claims but allowed discovery to continue for the state law claims against DCF. (Doc. 71). After the Eleventh Circuit set the appeal for oral argument, Plaintiffs filed a motion to amend the complaint, (Doc. 99), on which this Court deferred ruling until the Eleventh Circuit issued an opinion on the interlocutory appeal, (Doc. 102). The Eleventh Circuit vacated the order converting the motions to dismiss to summary judgment motions, finding that Brady and Perry were entitled to a ruling on their motions to dismiss, but also allowed this Court to grant Plaintiffs leave to amend their complaint. R.F.J. v. Fla. Dep't of Children & Families, 743 F. App'x 377, 380 (11th Cir. 2018).

After the mandate issued, the Court permitted Plaintiffs to amend their complaint. (Doc. 105). The Third Amended Complaint alleges the same claims but adds additional facts in support. (Compare Doc. 8, with Doc. 106). Currently before the Court are Brady and Perry's motions to dismiss the Third Amended Complaint. (Docs. 107; 109). Plaintiffs responded, (Docs. 112; 113), Perry and Brady filed replies, (Docs. 119; 120), and Plaintiffs filed a sur-reply, (Doc. 121). On May 21, 2019, the Court held a hearing on the motions, the record of which is incorporated herein. (Doc. 125). After the hearing, the Court issued a short order stating that it is going to grant the motions to dismiss,...