Ross v. Cecil Cnty. Dep't of Soc. Servs.

878 F.Supp.2d 606

Betsy ROSS, et al., Plaintiffs,

v.CECIL COUNTY DEPARTMENT OF SOCIAL SERVICES, et al., Defendants.

Civil No. WDQ–11–0181.

United States District Court,

D. Maryland,

Northern Division.

July 12, 2012.

Daniel Lewis Cox, The Cox Law Center LLC, Frederick, MD, for Plaintiffs.

Bradley J. Neitzel, Office of The Attorney General of Maryland, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Betsy Ross, for herself and as next friend of her minor daughter ¹ K.R., sued the Cecil County Department of Social Services (“CCDSS”) and others (collectively, “the defendants”) for federal and state constitutional violations and other claims. For the following reasons, the defendants' motion to dismiss the complaint or for summary judgment will be granted in part and denied in part. Ross's unopposed motion for summary judgment on her First Amendment claim will be denied.

I. Background ²

Ross was a licensed Foster Care Parent through CCDSS; in 2008 she was an active member of the Cecil County Foster Parent Association (“CCFPA”). ECF No. 46 ¶ 2. In 2008, Ross had been elected President of CCFPA and was to begin her term on August 15, 2008. Id. ¶ 125.³ At her home she had a swimming pool that CCDSS allowed her foster children to use. Id. ¶ 19.

In July or August 2008, Ross discovered that Mary Klesius, CCDSS Supervisor of Foster Care Services, was placing unspent state funds into the CCFPA checking account. Id. ¶¶ 2, 4, 14. Believing the transactions were unlawful, Ross asked Klesius for copies of all CCFPA bank statements, decided not to expend CCFPA funds—contrary to Klesius's directions—and filed a complaint with the Ombudsman for the Maryland Department of Human Resources (“MDHR”), John Bertulis.⁴Id. ¶ 14.

In August 2008, Ross was caring for seven children: one biological child, a child she had adopted about two and a half months earlier, and five foster children. Id. 1120–21. Ross had been preparing to adopt one of the foster children, K.R.; K.R.'s natural parents' rights had been terminated, CCDSS had approved Ross as an adoptive parent for K.R., and an adoption finalization hearing was scheduled for August 20, 2008. Id. 122, 60.

On August 15, 2008, at 1:30 p.m., Klesius and Tina Linkous, an adoption coordinator for CCDSS, “decided, based on allegations of neglect,” that Ross's foster children would be removed from her home. Id. ¶ 20. Linkous drove to interview one of Ross's former foster children in Pennsylvania, to investigate allegations about Ross, while Klesius and Rebecca Sutton, a CCDSS social worker, pulled Ross out of a CCFPA meeting and told her that CCDSS would remove the five foster children, including K.R., and that Ross “would be further investigated.” Id. ¶¶ 15, 18.

At 3:10 p.m. that day, Linkous reported to CCDSS by telephone that the child claimed that Ross had neglected her foster children when the child was in Ross's care. Id. ¶ 18. The child told Linkous that:

Ross was leaving the children unattended in the family pool and one child almost drowned, ... leaving an 8 year old child to care for her younger siblings as well as other foster care children[;] a Foster Care child [had been] exposed to sexual behaviors of ... Ross's teenage daughter[;] a foster care child [had] fall[en] down the stairs[;] and another child [had] fall[en] off a couch.ECF No. 49–5 (neglect report dated September 17, 2008). ⁵ The reporting child was “known to have a habit of telling wild and imaginative stories not based in any truth.” ECF No. 46 ¶ 18.

At 4:30 p.m. that day, Sutton, LaTonya Cotton, and Kim Compton—two other CCDSS social workers—entered Ross's home without a warrant or Ross's consent, and removed the five foster children. Id. ¶¶ 5, 7, 21–24.

On September 10, 2008, Ombudsman Bertulis began an investigation of CCDSS, presumably based on Ross's complaint. Id. ¶ 17.

On September 17, 2008, CCDSS completed its investigation of the neglect report, concluding that the neglect was “unsubstantiated ... which [means] ... there is insufficient evidence of a failure to provide proper care and attention.” ECF No. 49–5. “[C]hild neglect could neither be indicated or ruled out.” Id.

On September 28, 2008, CCDSS returned K.R. to Ross's care, and scheduled a new adoption finalization hearing for October 15, 2008. ECF No. 46 ¶ 26.⁶

On June 18, 2009, Ross sent a letter to Maryland Delegate Richard Sossi, noting her complaints about CCDSS. The letter discussed the August 15, 2008 removal of the children “[b]ased solely on allegations of neglect,” and requested Delegate Sossi's help in “holding [CCDSS] accountable.” ECF No. 49–2.

On January 21, 2010, Ross and her attorney, Daniel Cox, Esq., entered a settlement agreement with CCDSS, through the Maryland Office of Administrative Hearings. ECF No. 46–1. In exchange for Ross's dismissal of administrative complaints against CCDSS, CCDSS agreed to change the ruling on the neglect allegations from neglect “unsubstantiated” to neglect “ruled out,” and “to make no negative statements regarding ... Betsy Ross.” Id. The parties agreed “that the terms of this settlement agreement shall remain confidential.” Id.

Though it was not included in the settlement agreement, Ross also agreed to give up her CCDSS foster care home license because she expected to become a private foster care provider with The Arc, a private foster care association. ECF No. 46 ¶ 28.

In March 2010, Helen Murray–Miller, a Licensing Coordinator in the Office of Licensing and Monitoring in the Social Services Administration of Maryland's Department of Human Services, “advised” Dianne Ross, The Arc's Director of Family Services, to tell Betsy Ross that it would be inappropriate to complete a home study—part of The Arc's licensing process—at the time, because Betsy Ross had been “public[ly] critici[zing] CCDSS, largely through letters to the editor published in the local newspaper.” ECF No. 49–10 ¶ 5. Murray–Miller believed that, because CCDSS would work with The Arc in placing foster children in foster homes, the home study should take place after the issues had been resolved. Id.

On March 18, 2010, The Arc told Ross that it would not consider Ross's application to foster through The Arc because “[t]he unresolved and high profile nature of your current situation with several entities determines that it is not a good time to proceed with a home study. Once your issues with [CCDSS] are resolved to our mutual satisfaction,” Ross would be allowed to train as a prospective foster parent. ECF No. 46–2.

On January 21, 2011, Ross, individually and as a representative of minor K.R., sued the CCDSS, Klesius, and Nicholas Riccuiti, CCDSS director, (collectively “the first defendants”), alleging federal civil rights violations, Maryland torts, and breach of contract. ECF No. 1.⁷

On August 25, 2011, Ross filed an amended complaint against Klesius, Riccuiti, Cotton, Sutton, Compton, Linkous, Susan Bailey, assistant director of CCDSS, Barbara Siciliano, a CCDSS supervisor, and Murray–Miller (collectively “the defendants”). ECF No. 19. The new defendants were served on October 3 and 4, 2011. ECF No. 39.

On January 31, 2012, this Court allowed Ross to file a 10 count second amended complaint (“the complaint”) against the defendants.⁸ ECF No. 46. On the constitutional claims, Ross seeks a declaratory judgment that the defendants' “laws, policies and practices ... violate the Fourth and Fourteenth Amendments”; compensatory and punitive damages on the Maryland claims; an injunction against the defendants preventing them “from continuing their unconstitutional actions,” and payment of the costs and expenses of the suit. ECF No. 46 at 18.

On February 21, 2012, the defendants moved to dismiss the second amended complaint, or in the alternative, for summary judgment. ECF No. 49. On March 19, 2012, Ross opposed the defendants' motion and cross-moved for summary judgment on count 10 (retaliation for First Amendment activity). ECF No. 54. The defendants have not opposed the cross-motion for summary judgment or replied to Ross's opposition to the motion to dismiss. See docket.

II. Analysis

A. The Defendants' Motion

1. Standards of Review

i. Motion to Dismiss

Under Fed.R.Civ.P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006).

The Court bears in mind that Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Migdal v. Rowe Price–Fleming Int'l Inc., 248 F.3d 321, 325–26 (4th Cir.2001). Although Rule 8's notice-pleading requirements are “not onerous,” the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764–65 (4th Cir.2003). These facts must be sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

This requires the plaintiff to do more than “plead[ ] facts that are ‘merely consistent with a defendant's liability’ ”; the facts pled must “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ( quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). The complaint must not only allege but also “show” that the plaintiff is entitled to relief. Id. at 679, 129 S.Ct. 1937. “Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id. (internal quotation marks omitted).

ii. Summary Judgment

Under Rule 56(a),...