818 F.2d 791 (11th Cir. 1987), 85-8354, Taylor By and Through Walker v. Ledbetter

Docket Nº:85-8354.
Citation:818 F.2d 791
Party Name:Kathy Jo TAYLOR, A Minor, By and Through David S. WALKER, Jr., Attorney at Law as Guardian ad Litem, Plaintiff-Appellant, v. James G. LEDBETTER, PH.D., et al., Defendants-Appellees.
Case Date:June 09, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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818 F.2d 791 (11th Cir. 1987)

Kathy Jo TAYLOR, A Minor, By and Through David S. WALKER,

Jr., Attorney at Law as Guardian ad Litem,

Plaintiff-Appellant,

v.

James G. LEDBETTER, PH.D., et al., Defendants-Appellees.

No. 85-8354.

United States Court of Appeals, Eleventh Circuit

June 9, 1987

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Don C. Keenan, David S. Bills, Atlanta, Ga., for plaintiff-appellant.

David C. Will, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, Chief Judge, GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, and CLARK, Circuit Judges.

HATCHETT, Circuit Judge:

We took this case en banc to determine whether and under what circumstances, if any, a child involuntarily placed in a foster home may successfully bring an action in federal court against the state officials involved in the placement, for injuries sustained while in the foster home. Finding that a child may successfully bring such an action, we affirm in part and reverse in part.

Facts

In 1982, pursuant to an order of the Gwinnett County Juvenile Court, the child who was the plaintiff in the district court, and who is the appellant here, was taken from the custody of her natural parents and placed with the Gwinnett County Department of Family and Children Services (DFACS). 1 Upon removing the child from the custody of her natural parents, officials and employees of the Georgia Department of Human Resources and DFACS assumed responsibility for the child's custody, supervision, and care. During 1982, the DHR and DFACS officials placed the child in a foster home. While in the foster home the child suffered severe and permanent personal injuries as a result of being "willfully struck, shaken, thrown down, beaten and otherwise severely abused by the foster mother." She remains in a coma as a result of those injuries.

This suit was filed pursuant to 42 U.S.C. Sec. 1983 by the child, through her guardian, against the state and county officials involved in her placement in the foster home. 2 The child alleges that the state and

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county officials were grossly negligent and deliberately indifferent to her welfare when deciding to place her, and after placing her, in the foster home. Specifically, she alleges that the officials: (1) failed to thoroughly investigate the fitness of the foster home; (2) knew or should have known the foster parents were unfit to be trusted with her care, custody, and supervision; (3) failed to maintain proper supervision in inspection of the foster home; and (4) failed to obtain complete physical and medical records, or to furnish available records to the foster parents.

The child's complaint states two claims: first, the officials were deliberately indifferent to her rights and, therefore, they are liable under the reasoning employed in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and in Doe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir.1981), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). The second claim is that the Georgia statutory foster care scheme creates a legitimate claim of entitlement enforceable in federal court under the holding in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The United States District Court for the Northern District of Georgia dismissed the complaint for failure to state a claim upon which relief could be granted. 3 This court affirmed. Taylor v. Ledbetter, 791 F.2d 881 (11th Cir.1986). The full court took the case en banc to determine the Roth and Estelle issues.

Discussion

The state and county officials contend that the child's suit was properly dismissed for four reasons: First, they contend that the child's claim is barred by the recent decisions of the Supreme Court in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Second, they contend that the Georgia statutory scheme for child placement and supervision does not create any entitlements to children placed in foster homes. Their third contention is that the allegations in the child's complaint are conclusory, and if not conclusory, are not sufficient to support a due process claim; and their fourth claim is that because the Gwinnett County Juvenile Court made the decision to remove the child from the natural parents they cannot be liable.

The first contention is easily decided. In Daniels and Davidson, the Supreme Court held that the due process clause is not implicated by the negligent act of an official causing unintended loss or injury to life, liberty, or property. The complaint in this case, however, alleges, in each paragraph, that the officials were "grossly negligent" or "deliberately indifferent." Thus, the complaint is sufficient to overcome either a Daniels or Davidson bar.

We can also easily dispose of the state officials' fourth contention that the action of the Gwinnett County Juvenile Court insulates them from liability. The Gwinnett County Juvenile Court's removal of the child from her natural parents is irrelevant at this point in the proceedings.

Having decided two of the four contentions above, we proceed to a discussion of the Estelle (substantive constitutional claim) and the Roth claims.

The Substantive Constitutional Claim

We note that the allegations in the complaint must be taken as true and construed in the light most favorable to the child.

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Scheuer v. Rhodes, 4 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Miller v. Stanmore, 636 F.2d 986 (5th Cir.1981); Johnson v. Wells, 566 F.2d 1016 (5th Cir.1978).

A. Section 1983

We address first the requirements for an action filed under 42 U.S.C. Sec. 1983. For a section 1983 action to arise where an official is charged with failing to exercise an affirmative duty, two requirements must be satisfied. First, the failure to act must have been a substantial factor leading to the violation of a constitutionally protected liberty or property interest. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Second, the official having the responsibility to act must display deliberate indifference. Turpin v. Mailet, 619 F.2d 196 (1980), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). These two requirements have been adequately pleaded in this case.

B. The Liberty Interest

The liberty interest which the child asserts under the fourteenth amendment is a substantive due process right rather than a procedural due process right. In a substantive due process claim, we are concerned with those rights which the state may not take away. Substantive due process rights are rights such as those listed in the Bill of Rights and those rights held to be so fundamental that a state may not take them away. Among the fundamental rights not listed in the Bill of Rights or incorporated through the fourteenth amendment are such rights as abortion (Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)); privacy (Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); marriage (Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978)); and safety and physical movement (Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)).

On the other hand, procedural due process claims involve those expectations created by state law. As to these rights, the state may take them away by affording predeprivation hearings as in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (public employment); or by a post-deprivation hearing as in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (hobby kit), or by providing other safeguards. Parratt only applies to procedural due process claims; consequently, Parratt is not a bar to this action brought under section 1983 based on the fourteenth amendment.

The liberty interests in this case are the right to be free from the infliction of unnecessary pain, as that interest is protected by the fifth and fourteenth amendments, and the fundamental right to physical safety as protected by the fourteenth amendment. 5

The Supreme Court recognized a liberty interest in a person involuntarily committed to a custodial setting in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In Youngberg, the

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mother of a mentally retarded person involuntarily committed to a Pennsylvania state institution upon her petition filed a complaint pursuant to 42 U.S.C. Sec. 1983 seeking damages against the institution's officials. The mother alleged that the officials knew or should have known that her son was suffering injuries, but failed to take appropriate preventive procedures, thereby violating his rights under the eighth and fourteenth amendments. The Supreme Court recognized the child's liberty interest in the safety of his environment and noted that the right to personal security constitutes a "historic liberty interest" protected substantively by the due process clause. Youngberg v. Romeo, 457 U.S. at 315, 102 S.Ct. at 2458, 73 L.Ed.2d at 37 (citing Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977)).

The liberty interest in this case is analogous to the liberty interest in Youngberg. In both cases, the state involuntarily placed the person in a custodial environment, and in both cases, the person is unable to seek alternative living arrangements. In Youngberg the Court said, "if it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed--who may not be punished at all--in unsafe conditions." Youngberg, 457 U.S. at 315-16, 102 S.Ct. at 2458, 73 L.Ed.2d at 37.

A child confined to a state mental health...

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