889 F.2d 701 (6th Cir. 1989), 87-5346, Eugene D. By and Through Olivia D. v. Karman

Docket Nº:87-5346.
Citation:889 F.2d 701
Party Name:EUGENE D., a minor, By and Through his mother and next friend, OLIVIA D., Plaintiff-Appellee, v. John R. KARMAN, Jr., Margery Taylor Chapleau, Sherry Haydon Bruce, Mary Johnston Ballard, Marcia Miller Purol, Pruda Bird, Ellen Receveur Wade, and Vicky Youngman Schweickhardt, Defendants-Appellants.
Case Date:November 13, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 701

889 F.2d 701 (6th Cir. 1989)

EUGENE D., a minor, By and Through his mother and next

friend, OLIVIA D., Plaintiff-Appellee,


John R. KARMAN, Jr., Margery Taylor Chapleau, Sherry Haydon

Bruce, Mary Johnston Ballard, Marcia Miller Purol,

Pruda Bird, Ellen Receveur Wade, and

Vicky Youngman Schweickhardt,


No. 87-5346.

United States Court of Appeals, Sixth Circuit

November 13, 1989

Argued Feb. 26, 1988.

Rehearing and Rehearing En Banc Denied Jan. 22, 1990.

Page 702

Ryan M. Halloran, General Counsel, W. Kimble Moore, Jr. (argued), Cabinet for Human Resources, Office of General Counsel, Frankfort, Ky., for defendants-appellants.

Tom Hectus, Allen Button, Louisville, Ky., Theresa Demchak (argued), Abigail English, Hilda Taylor, Nat. Center for Youth Law, Mark I. Soler, Carole B. Shauffer, Youth Law Center, San Francisco, Cal., for plaintiff-appellee.

Before MERRITT, Chief Judge; KENNEDY, Circuit Judge; and ENGEL, Senior Circuit Judge. [*]

ENGEL, Senior Judge.

In this civil rights action under 42 U.S.C. Sec. 1983, defendants, who are various Kentucky social workers, appeal the district court's order denying their motion for summary judgment based on qualified immunity. Plaintiff, Eugene D., is a minor who claims that he came to harm while placed in a state-licensed foster home as a result of the social workers' deliberate indifference to his serious medical and developmental needs. The defendants contend that during a period from May, 1974 until December, 1982, when Eugene was in the foster home, it was not clearly established that the Due Process Clause of the Fourteenth Amendment imposed upon them a duty to assume responsibility for his care. Because the district court improperly found that such a constitutionally imposed obligation was clearly established, we now reverse.


Eugene D. was born on August 30, 1973. Some six months later, on February 6, 1974, his mother, Olivia D., took him in a comatose state to the Louisville General Hospital. The next day, Eugene was transferred to Kosair's Children's Hospital, where he remained until March 14, 1974, when he was discharged and sent to the Jewish Convalescent Home. It was later determined that sometime before his mother took him to the hospital, Eugene had sustained brain damage, apparently as the result of some form of trauma, which rendered him severely mentally retarded with spastic cerebral palsy. Eugene remains essentially blind, nonverbal and non-ambulatory. He is totally dependent on others for care, including his feeding and personal hygiene. Moreover, the damage to Eugene's brain causes him difficulty in swallowing and, as a result, simply feeding Eugene requires several hours a day. He also needs to be turned every four hours to prevent bedsores and to be given physical therapy on a daily basis.

The exact cause of the brain damage has not been established. The Jefferson County Metropolitan Social Services Division filed a petition alleging suspected abuse with the Juvenile Division of the Jefferson County Court, but Eugene was not found to have been abused by his mother. Instead, the court found him to be a "dependent child" pursuant to Ky.Rev.Stat. Sec. 208.020, and committed him to the legal care, custody and control of a predecessor agency to the Kentucky Cabinet for Human Resources (KCHR). 1 Likewise, Eugene's underlying condition, which is indeed pitiable, is one which cannot be fairly charged to any of the defendants in this case.

Page 703

Upon his release from the Jewish Convalescent Home on May 1, 1974, Eugene was placed by KCHR in the state-licensed foster home of Mrs. Blanche Smith, which is located in Jefferson County, Kentucky. Mrs. Smith, a sixty year old widow at the time, was also responsible for the care of her six year old grandson and a second handicapped foster child. Subsequent to Eugene's placement in the home, two additional severely handicapped children were placed by KCHR with Mrs. Smith. Like Eugene, all of the other three children placed in Mrs. Smith's home required significant care or attention. Eugene remained in Mrs. Smith's care for some eight and one half years, until December 6, 1982.

At different times during this eight-and-one-half-year period, six of the named defendants, all KCHR employees, were assigned as Eugene's caseworkers. 2 The remaining named defendants served in supervisory positions in the KCHR during the relevant period. 3 Kentucky statutes and regulations defined defendants' responsibilities with respect to children placed in foster homes. 4

The allegations at issue in this case concern the care and treatment Eugene received while in Mrs. Smith's foster home, which Eugene contends impaired his physical and developmental growth, shortened his life expectancy and caused him great pain and discomfort. Eugene has produced evidence which, viewed in the light most favorably to him, indicates that because of her inadequate training, her unwillingness or inability to follow directions regarding Eugene's care, and the demands for the care of the other children placed in her home, Mrs. Smith was initially and became increasingly unable to care for Eugene. As a result, Eugene received a diet that was nutritionally inadequate, causing him to suffer from malnutrition, to lose weight and to fail to gain as much weight as might be expected of a child in his condition. It is also evident that he did not always receive the physical therapy he required. Although Eugene ordinarily attended school and kept numerous medical appointments, the proofs showed that during certain periods Mrs. Smith allowed him to miss school and failed to keep a number of medical appointments.

Page 704

As early as 1976, KCHR social workers began to express concern regarding Mrs. Smith's ability to care for Eugene. Medical, educational and other personnel who provided treatment and services to Eugene shared those concerns. More important, at various times during the relevant period, they reported their concerns regarding Eugene's weight, hygiene, school attendance, and missed medical appointments to KCHR workers. Despite these reports over a six-year period, Eugene was not removed from Mrs. Smith's care until December, 1982.

In addition to this evidence of inaction or insufficient action despite mounting evidence that Eugene was at least receiving inadequate care, Eugene has introduced evidence regarding a number of particular incidents which he believes were ignored or improperly handled by the defendants. Perhaps the most significant of these involves Eugene's allegation that his caseworker failed to investigate the circumstances surrounding a broken leg which Eugene suffered in August, 1976. At the time, Mrs. Smith told the treating physician that the leg had been swollen for two days, presumably because of improper physical therapy administered by a baby-sitter. A radiologist who took an x-ray of the leg determined, however, that the break was at least ten days old. The hospital apparently informed Eugene's caseworker of the injury, but no investigation was undertaken by the KCHR.

On December 6, 1982, Eugene was removed from the care of Mrs. Smith and placed in another foster home. Eugene, who was nine years old at that time, weighed only 17 pounds, four ounces and was suffering from severe malnutrition. One defendant explained that the transfer was made because of concerns regarding Mrs. Smith's failing health and her delay in following through on suggestions for improving Eugene's care made by KCHR. Eugene remained in the second foster home until January 13, 1984. He was then returned to the custody of his mother, Olivia D., for the first time since February 6, 1974. Olivia D. stated at her deposition, however, that she had visited Eugene a few times while he was in the care of Mrs. Smith.

Eugene D., by and through his mother and next friend, Olivia D., brought this action under 42 U.S.C. Sec. 1983 in the United States District Court for the Western District of Kentucky against various named and unnamed employees of KCHR. Mrs. Smith, the foster mother, was not named as a defendant. The complaint, as later amended, alleged that the defendants had deprived Eugene of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing properly to monitor and supervise his foster care placement. More specifically, the complaint alleged that the defendants acted with "deliberate indifference" to the serious medical needs of Eugene, by failing to protect him from bodily harm at the hands of Mrs. Smith of which they knew or reasonably should have known. The complaint further alleged that as a direct and proximate result of defendants' acts and omissions, Eugene suffered permanent physical, developmental, psychological and emotional damage. The relief sought in the complaint was compensatory and punitive damages from each individual defendant sued solely in his or her personal capacity. 5

After extensive discovery, the district court considered defendants' motions for summary judgment, which were based in part upon claims of qualified immunity. The court denied the motions, holding that during the period from May, 1974 until December, 1982, it was clearly established "that there was a constitutional right of a person in custody to be free from harm resulting from deliberate indifference." Memorandum Opinion of February 25, 1987 at 5. The district court further found that the evidence introduced by Eugene created genuine issues of material fact regarding such a claim. In particular, the court noted a dispute as to whether defendants' conduct

Page 705

amounted to "deliberate indifference" or whether there was merely a difference in professional judgment between the experts for each side regarding what type of care should have been provided.

In reaching its conclusion regarding the...

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