Norfleet By and Through Norfleet v. Arkansas Dept. of Human Services

• Decision Date: 29 March 1993
• Docket Number: No. 92-2323,92-2323
• Parties: Taureen NORFLEET, by and through his parent and administratrix, Toi NORFLEET; Aaron Norfleet, by and through his parent Toi Norfleet; Toi Norfleet, in her individual capacity, Plaintiffs-Appellees, v. ARKANSAS DEPARTMENT OF HUMAN SERVICES; Defendant, Richard Dietz, individually and in his official capacity; Robert Brooks, individually and in his official capacity; and Johnnie Armstrong, individually and in her official capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 289

989 F.2d 289

Taureen NORFLEET, by and through his parent and administratrix, Toi NORFLEET; Aaron Norfleet, by and through his parent Toi Norfleet Toi Norfleet, in her individual capacity Plaintiffs-Appellees, v. ARKANSAS DEPARTMENT OF HUMAN SERVICES; Defendant Richard Dietz, individually and in his official capacity Robert Brooks, individually and in his official capacity; and Johnnie Armstrong, individually and in her official capacity, Defendants-Appellants.

No. 92-2323.

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 14, 1993.

Decided March 29, 1993.

Amy Lynne Ford (argued), Little Rock, AR (Debby Nye and John C. Wisner III, on brief), for defendants-appellants.

Michael Andrew Le Boeuf (argued), Little Rock, AR, for plaintiffs-appellees.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Richard Dietz, Robert Brooks, and Johnnie Armstrong ("the defendants") appeal the district court's ¹ denial of summary judgment based on qualified immunity. We affirm.

I. BACKGROUND

On August 17th, 1991, Toi Norfleet left her children, Taureen and Aaron, with a next-door neighbor and babysitter, Sheila Tolbert, while Norfleet went on a two day trip to Memphis, Tennessee. Four year old Taureen had a history of medical problems, including asthma, and suffered an asthma attack on August 18th. Tolbert contacted emergency personnel who transported Taureen to Baptist Memorial Hospital. For reasons not specified in the complaint, Tolbert was arrested by police officers and Aaron was placed in the custody of another neighbor. Taureen was treated, given two types of medication to take with him, and was released into the custody of the Arkansas Department of Human Services ("DHS"). On the morning of August 19th, Robert Brooks, a caseworker for DHS, took Taureen to the home of Johnnie Armstrong, a certified foster parent operating a foster home for DHS.

It appears that Taureen took most of his medication while in Armstrong's custody, but Armstrong neither supervised nor took possession of the medication. About 12:30 a.m. on August 20th, Taureen told Armstrong he was having problems breathing; Armstrong told Taureen to return to bed. Several hours later, Armstrong called emergency medical personnel and Taureen was taken to Arkansas Children's Hospital at 2:37 a.m. Taureen was pronounced dead at 3:35 a.m.

Norfleet had returned from Memphis on August 19th around 4:30 p.m., and had called DHS to ask about Taureen. When Norfleet received only prerecorded messages at DHS, she drove to police headquarters for help in locating Taureen. The police put her in contact with a DHS worker who told her that Taureen was fine and would probably be returned to her the following morning. DHS personnel then called her at 5 a.m. to tell her that Taureen had died at Arkansas Children's Hospital.

Norfleet brought an action under 42 U.S.C. § 1983 against DHS, Dietz (the Director of DHS), Brooks, and Armstrong. Norfleet alleged in her complaint that the defendants were deliberately indifferent to the medical needs of Taureen, which deprived him of his life without due process of law. Norfleet also alleged the same deprivation damaged Taureen's brother, Aaron. The defendants made a motion for summary judgment which was granted in part and denied in part. The court granted the motion concerning Norfleet's claims against the DHS, the individual defendants in their official capacities for money damages, and against all defendants for negligence, but denied the motion for summary judgment based on qualified immunity. The defendants appeal the denial of qualified immunity. ²

II. DISCUSSION

As government officials performing discretionary functions, Dietz, Armstrong, and Brooks are shielded from liability for civil damages in a § 1983 action unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). "In determining whether the legal right at issue is clearly established, this circuit applies a flexible standard, requiring some, but not precise factual correspondence with precedent, and demanding that officials apply general, well-developed legal principles." J.H.H. v. O'Hara, 878 F.2d 240, 243 (8th Cir.1989), cert. denied, 493 U.S. 1072, 110 S.Ct. 1117, 107 L.Ed.2d 1024 (1990) (citation and quotation omitted). The district court correctly determined the issue before it was whether "a reasonable official would have understood at that time that when the state removes a child from the custody of his parents or their agents, the state owes that child a duty of safekeeping, and that deliberate indifference to the serious medical needs of a child in state custody violates the Due Process Clause." Norfleet ex rel. Norfleet v. Arkansas Dept. of Human Servs., 796 F.Supp. 1194, 1198 (E.D.Ark.1992). The district court concluded the law establishing a violation of Taureen's constitutional rights was clearly established at the time of the defendants' actions and that the defendants were not entitled to qualified immunity.

In order to determine whether a right is clearly established, it is not necessary that the Supreme Court has directly addressed the issue, Benson v. Allphin, 786 F.2d 268, 275 (7th Cir.), cert. denied, 479 U.S. 848, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986), nor does the precise action or omission in question need to have been held unlawful. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). "[I]n the absence of binding precedent, a court should look at all available decisional law including decisions of state courts, other circuits and district courts...." Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989) (citation and quotation omitted). With this in mind, we must determine whether, in 1991, the right of an individual in foster care to receive adequate medical supervision was "either expressly established by, or clearly implicit in, existing case law...." K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 850 (7th Cir.1990). The Supreme Court has not expressly decided the extent of due process rights to safety for children in foster care, but the Court has addressed the due process rights of prisoners, involuntarily committed mental patients and other individuals in state custodial settings.

In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that the Eighth Amendment requires a state to provide adequate medical care to incarcerated prisoners because a prisoner cannot care for himself and must rely on prison officials to treat his medical needs. Id. at 103, 97 S.Ct. at 290. This analysis was later applied to involuntarily committed mental patients in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In Youngberg, the Court held that individuals in state confinement enjoy "constitutionally protected interests in conditions of reasonable care and safety...." Id. at 324, 102 S.Ct. at 2462. More recently the Supreme Court held that although there is no affirmative duty of the state to protect a child who is in the parents' custody, "in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 198, 109 S.Ct. 998, 1004-05, 103 L.Ed.2d 249 (1989). Deshaney left open the possibility that due process might be implicated in a foster care situation. The court noted:

Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.

Deshaney, 489 U.S. at 201 n. 9, 109 S.Ct. at 1006 n. 9.

Several circuits have interpreted the scope of the due process rights of individuals under state care, and in particular, the rights of children in foster care. The Second Circuit was the first circuit to address this issue in Doe v. New York City Dept. of Social Servs., 649 F.2d 134 (2d Cir.1981), after remand, 709 F.2d 782, cert. denied sub. nom. Catholic Home Bureau v. Doe, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). In Doe, a foster child sued her legal custodian and a child welfare agency in New York alleging that state officials violated her constitutional rights when they failed to investigate alleged sexual abuse of her foster father. The court held that government officials may be liable under § 1983 for failure to act when the duty to act exists. "When individuals are placed in custody or under the care of the government, their governmental custodians are sometimes charged with affirmative duties, the nonfeasance of which may violate the constitution." Id. at 141. Similarly, the Eleventh Circuit has determined that a foster child involuntarily placed in a foster home has similar rights as a prisoner involuntarily placed in a penal institution. Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir.1987) (en banc), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989). The court stated that although a closer relationship exists in a prison setting, the situations are sufficiently analogous to permit a § 1983 action. "With contemporary society's outrage at the exposure of defenseless children to gross mistreatment and abuse, it is time that the law give to these defenseless children at least the same protection afforded adults who are imprisoned as a result of their own misdeeds." Id. at 797. When the Sixth Circuit considered a § 1983 action filed by a child that was sexually abused in foster care, the court...