Smith v. Beasley

775 F.Supp.2d 1344

Omega SMITH, Plaintiff,

v.Vicki BEASLEY, et al., Defendants.

Case No. 3:10–cv–317–J–32JBT.

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

March 14, 2011.

Brian Joseph Cabrey, Donald Maximilian Maciejewski, Zisser, Robison, Brown, Nowlis & Maciejewski, PA, Jacksonville, FL, Howard M. Talenfeld, Tracey K. McPharlin, Colodny, Fass, Talenfeld, Karlinsky & Abate, PA, Ft. Lauderdale, FL, for Plaintiff.Daniel J. Kissane, Cole, Scott & Kissane, PA, Richard E. Ramsey, Shylie A. Armon, Wicker, Smith, O'Hara, McCoy & Ford, PA, Jacksonville, FL, for Defendants.

ORDER

TIMOTHY J. CORRIGAN, District Judge.

This case is before the Court on defendants' Motion to Dismiss and plaintiff's response thereto. The assigned United States Magistrate Judge issued a Report and Recommendation (Doc. 49), recommending that defendants' Motions to Dismiss (Doc. 27 and 32) be denied. Upon independent review of the file, it is hereby

ORDERED:

1. The Report and Recommendation (Doc. 49) of the Magistrate Judge is ADOPTED as the opinion of the Court.

2. Defendants' Motions to Dismiss (Doc. 27 and 32) are DENIED.

3. Plaintiff's Unopposed Motion to File Amendment to Plaintiff's First Amended Complaint (Doc. 54) is GRANTED. However, the new amendment should be filed as a Second Amended Complaint.

4. No later than March 24, 2011, plaintiff shall file its Second Amended Complaint.

5. No later than April 15, 2011, defendants shall file their answers to the Second Amended Complaint.

REPORT AND RECOMMENDATION ¹

JOEL B. TOOMEY, United States Magistrate Judge.

THIS CAUSE is before the Court on Defendant, Partnership for Strong Families, Inc.'s (“PFSF”) Motion to Dismiss Plaintiff's Amended Complaint (Doc. 27), Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 32) (collectively, “Motions to Dismiss”), Defendant, PFSF's Supplemental Memorandum of Law in Support of Its Motion to Dismiss Plaintiff's Amended Complaint ² (Doc. 47), and Plaintiff's Response to Defendants' Motions to Dismiss (Doc. 43) (“Response”). On November 24, 2010, the Motions to Dismiss were referred to the undersigned for a report and recommendation regarding an appropriate resolution thereof. (Doc. 44.) For the reasons stated herein, the undersigned respectfully recommends that the Motions to Dismiss be DENIED.

I. Allegations of Plaintiff's First Amended Complaint

Plaintiff, Omega Smith, as Personal Representative of the Estate of L.T., a deceased minor,³ filed this action against PFSF, Community Partnership for Children, Inc. (“CPCI”), and the following individuals: Vicki Beasley (“Beasley”), Latoya Anderson (“Anderson”), Andrea Senteio (“Senteio”), and Marianna Cotter (“Cotter”). (Doc. 1.) Plaintiff's First Amended Complaint (“Complaint”) alleges six counts under 42 U.S.C. § 1983, against Defendants, Beasley (Count I), Anderson (Count II), Senteio (Count III), Cotter (Count IV), PFSF (Count V), and CPCI (Count VI); two wrongful death counts, against Defendants, PFSF (Count VII) and CPCI (Count VIII); and a negligence count against all Defendants for damages unrelated to death (Count IX). (Doc. 24.)

The action arises out of the death of L.T. on or about April 18, 2008, as a result of an automobile accident. ( Id. at ¶ 52.) At the time of the accident, the minor had run away from the custody of PFSF and/or CPCI. ( Id.) The Complaint alleges that Defendants had not only allowed L.T. to run away, but encouraged and assisted her in doing so. ( Id. at ¶¶ 6, 37, 51, 104, 125, 128, 149, 152, 173, 176, 197, 200, 221, 224.) It is also alleged that Defendants knew that the child was at a heightened risk of physical harm while on runaway status. ( Id. at ¶¶ 35, 103, 127, 151, 175, 199, 223.) Further, the Complaint alleges that Defendants contributed to that heightened risk not only by encouraging and assisting the child in running away, but also by failing to provide her with proper supportive services prior to the time she ran away on April 4, 2008. ( Id. at ¶ 6, 49, 73–77, 83.)

The Complaint alleges that PFSF and CPCI were non-profit, Florida corporations, and Beasley, Anderson, Senteio, and Cotter were employed by PFSF and/or CPCI. ( Id. at ¶¶ 2, 8, 14, 21, 28.) Beasley and Anderson were unit supervisors. ( Id. at ¶¶ 8, 28.) Senteio was a case worker, case manager, and/or family care counselor. ( Id. at ¶ 21.) Cotter was a program director. ( Id. at ¶ 14.) The Florida Department of Children and Families (“the Department”) contracted with either PFSF and/or CPCI to provide placement and services for the minor. ( Id. at ¶ 2.)

The Complaint further alleges that shortly after her birth in 1990, the minor was removed from her parents, placed with other relatives, and adjudicated as a dependent child. ( Id. at ¶¶ 58–59.) At various times between 2004 and 2008, the child began abusing drugs and alcohol, began exhibiting violent and aggressive behavior, and showed indications that she had been physically and sexually abused. ( Id. at ¶¶ 61–64.) In 2006, the child was Baker Acted by her family. ( Id. at ¶ 65.) She resided in various relative and non-relative placements until January of 2007, when she was placed in foster care. ( Id. at ¶ 67.) On January 25, 2008, the child ran away from school. ( Id. at ¶¶ 41, 71.) On March 13, 2008, she ran away again—this time from the offices of PFSF and/or CPCI—and remained at large for several weeks. ( Id. at ¶¶ 42, 73.)

On April 4, 2008, the minor's biological mother, adult siblings, and a family friend located her at the College Arms Apartments in Palatka, Florida, and returned her to the PFSF and/or CPCI offices the same day. ( Id. at ¶ 43.) At that time, the child's relatives and family friend were told by Beasley, Anderson, and/or Senteio, in the child's presence, that there was nothing that these Defendants, PFSF, and/or CPCI could, or would, do to stop the child from running away again. ( Id. at ¶¶ 46–47.) Despite this statement, Defendants resumed custody of the minor. ( Id. at ¶ 48.) A short time thereafter, the child was given her suitcase, clothing, and other personal belongings, or access to same, and allowed to run away from the PFSF and/or CPCI offices. ( Id. at ¶¶ 49, 73.)

Two weeks later, on April 18, 2008, while still on runaway status, the child was involved in a serious motor vehicle accident and suffered life threatening injuries. ( Id. at ¶ 52.) She survived the initial crash and could be heard screaming for help, but was subsequently killed by the post-accident fire, which consumed the entire vehicle. ( Id. at ¶ 53.) The driver of the vehicle and another minor passenger were also killed in the accident. ( Id.) Other than the time of the accident, 12:05 a.m., the circumstances of the accident are not alleged, except as described above.

It is alleged that at all relevant times, the minor was in the legal and physical custody of the Department, PFSF, and CPCI. ( Id. at ¶¶ 1, 106, 130, 178, 202, 226.) It is further alleged that Defendants made no effort to stop the minor from running away, to locate her, and to return her to a foster care placement or to her relatives, despite being informed of her whereabouts. ( Id. at ¶¶ 44, 50.)

According to Plaintiff, Defendants had certain duties and responsibilities, including the following:

m. To properly report, investigate and take action on incidents of children in the custody and care of Defendants PFSF and CPCI, including the [c]hild, eloping and running away from its physical custody and/or their placements;

n. To outline a plan of care to handle any special management issues identified in the history and assessments to ensure that all children in a foster home, including the [c]hild, are safe, appropriately cared for, and adequately supervised;

o. To implement reasonable safeguards to prevent children in care, including the [c]hild, from eloping and running away, to immediately report all children known to be missing, including the [c]hild, to law enforcement, the Court, and the Department, among others, and to take all reasonable and necessary steps and action to take such children back into physical custody and return them to a safe and secure shelter or placement[.]

( Id. at ¶¶ 3, 9, 15, 22, 29.)

Defendants also had a duty to comply with the requirements of the Department's Operating Procedure 155–10 (Services for Children with Mental Health and Any Co–Occurring Substance Abuse Treatment Needs in Out–of–Home Care Placements for Areas Not Included in the Medicaid Statewide Child Welfare Prepaid Mental Health Plan) and 175–85 (Prevention, Reporting, and Services to Missing Children), and Florida Administrative Code Rule 65C–28.014 (Behavioral Health Services) and 65C–30.019 (Missing Children). ( Id. at ¶¶ 4, 10, 16–17, 23–24, 30–31.) Defendants allegedly had a policy and/or custom of failing to comply with these Operating Procedures and Rules. ( Id. at ¶¶ 5, 11, 18, 25, 32.)

It is alleged that at no time was the child evaluated for her mental health or substance abuse issues, provided treatment, or prescribed any medications. ( Id. at ¶¶ 74–77.) Further, Defendants failed to provide her with a safe and appropriate placement designed to meet her mental and emotional needs or to adequately supervise her. ( Id. at ¶ 6.) Instead, Defendants actively encouraged, assisted, and/or allowed her to run away from her foster care placement and/or Defendants' offices, which ultimately resulted in the child's death on April 18, 2008. ( Id. at ¶¶ 6, 37, 51, 104, 125, 128, 149, 152, 173, 176, 197, 200, 221, 224.) Defendants' alleged failures to assess the child's needs, ensure appropriate treatment for her serious mental health needs, and place her in an appropriate, stable, safe, and therapeutic foster home, caused the child's mental health to rapidly deteriorate during her years in care. ( Id. at ¶ 83.) Thus, Defendants were allegedly “deliberately indifferent to the [c]hild's medical, mental health, behavioral, psychological, and...