Brian A. ex rel. Brooks v. Sundquist

Decision Date26 October 2000
Docket NumberNo. 300-0445.,300-0445.
Citation149 F.Supp.2d 941
PartiesBRIAN A., by his next friend, Bobbi Jean BROOKS, et al. v. Donald SUNDQUIST, et al.
CourtU.S. District Court — Middle District of Tennessee

David Louis Raybin, Jacqueline B. Dixon, Nashville, TN, Marcia Robinson Lowry, Ira P. Lustabader, New York City, for plaintiff.

Dianne Stamey Dycus, Nashville, TN, Elizabeth C. Driver, Nashville, TN, Douglas E. Dimond, Nashville, TN, for defendant.


CAMPBELL, District Judge.

Pending before the Court is Defendants' Motion to Dismiss (Docket No. 19). For the reasons stated herein, Defendants' Motion is GRANTED in part and DENIED in part.


This is a civil rights action, brought by Plaintiffs under 42 U.S.C. § 1983 ("Section 1983") against Donald Sundquist, as Governor of the State of Tennessee, and George Hattaway, as Commissioner of the Tennessee Department of Children's Services ("DCS"), on behalf of a putative class consisting of all foster children who are or will be in the custody of DCS and a putative subclass of children within that class who are African-American. Complaint (Docket No. 1), ¶ 1.

Plaintiffs allege violations by Defendants of the United States Constitution, federal statutes and federal common law. Specifically, Plaintiffs contend that Defendants are violating their rights under the First, Ninth, and Fourteenth Amendments to the U.S. Constitution; under the Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997 [42 U.S.C. §§ 620-27, 670-670a], and regulations promulgated thereunder; under the Americans with Disabilities Act [42 U.S.C. §§ 12101, et seq.]; under the Rehabilitation Act of 1973 [29 U.S.C. §§ 794, 794a]; under Title VI of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d, et seq.] and its implementing regulations; and under federal common law, with Plaintiffs as alleged third-party beneficiaries to Tennessee's "State Plan" contract with the federal government, pursuant to the Adoption Assistance Act. Complaint (Docket No. 1), ¶ 63.

Plaintiffs allege a systemic failure by Defendants to fulfill their legal obligations to provide Plaintiffs with required services under federal law. This action seeks injunctive and declaratory relief, to halt the alleged violations and to ensure that Defendants protect and provide necessary and mandatory care to the foster children in state custody.

Defendants have moved to dismiss the action on several bases, including failure to state a claim for which relief can be granted and the doctrine of abstention.


In considering a motion to dismiss for failure to state a claim on which relief can be granted, the court must accept as true all factual allegations in the complaint. Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir.1994), cert. denied, 511 U.S. 1128, 114 S.Ct. 2137, 128 L.Ed.2d 866 (1994). The motion should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.

A motion to dismiss for failure to state a claim upon which relief can be granted must be viewed in the light most favorable to the party opposing the motion. State of Ohio ex rel. Fisher v. Louis Trauth Dairy, Inc., 856 F.Supp. 1229, 1232 (S.D.Ohio 1994). The purpose of a motion to dismiss for failure to state a claim is to allow the defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993).

In other words, in deciding a motion to dismiss, the function of the district court is to test the legal sufficiency of the complaint. City of Toledo v. Beazer Materials and Services, Inc., 833 F.Supp. 646, 650 (N.D.Ohio 1993). The district court is without authority to dismiss claims unless it can be demonstrated beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Id.


Defendants first argue that Plaintiffs have failed to show that the Adoption Assistance Act ("AAA") creates any enforceable rights and, therefore, Plaintiffs' AAA claims should be dismissed.

In order to seek redress through Section 1983, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997). Section 1983 is not available to enforce a violation of a federal statute "where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983." Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987).1

The Supreme Court has set forth a three-part test for determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Blessing, 117 S.Ct. at 1359. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Id. Third, the statute must unambiguously impose a binding obligation on the States. Id. "In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms." Id. (citing Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 510-11, 110 S.Ct. 2510, 2517-18, 110 L.Ed.2d 455 (1990)).2 The Court, accordingly, must apply the Wilder framework to each of the portions of the AAA allegedly violated by Defendants.3

As noted by the Supreme Court, "[o]nly when the complaint is broken down into manageable analytic bites can a court ascertain whether each separate claim satisfies the various criteria we have set forth for determining whether a federal statute creates rights." Blessing, 117 S.Ct. at 1360.

Right to Written Case Plans with Required Elements and a Review System [42 U.S.C. §§ 671(a)(10), 671(a)(16), 675(1), 675(5) and 622(b)(10)(B)(ii)]

Plaintiffs assert that the AAA provides them with enforceable rights to timely written case plans, containing specific mandated elements, which are reviewed and updated at specific intervals, pursuant to 42 U.S.C. §§ 622(b)(10)(B)(ii), 671(a)(16), 675(1) and 675(5). Defendants argue that these provisions of the AAA do not create enforceable rights.

There is a clear split of authority on this issue. Compare, e.g., Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996), Norman v. McDonald, 930 F.Supp. 1219 (N.D.Ill.1996), and Jeanine B. v. Thompson, 877 F.Supp. 1268 (E.D.Wis.1995) (holding that certain provisions of the AAA do create enforceable rights) with Charlie H. v. Whitman, 83 F.Supp.2d 476 (D.N.J. 2000), Del A. v. Roemer, 777 F.Supp. 1297 (E.D.La.1991) and Eric L. v. Bird, 848 F.Supp. 303 (D.N.H.1994) (holding that certain provisions of the AAA do not create enforceable rights).

The Supreme Court addressed one specific provision of the AAA in the case of Suter v. Artist M, 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). In Suter, the Court found that 42 U.S.C. § 671(a)(15) did not create a private right of action. That provision requires that "reasonable efforts" be made, prior to placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home and to make it possible for the child to return to his home. 42 U.S.C. § 671(a)(15). The Suter Court found that the "reasonable efforts" language does not "unambiguously confer an enforceable right upon the Act's beneficiaries." Suter, 112 S.Ct. at 1370.

After the Suter decision, Congress amended the AAA to provide as follows:

In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable in a private right of action.

42 U.S.C. § 1320a-2 (2000 Supp.).

This Court does not read this Amendment as a clear expression of Congress's intent to create a private right of enforcement, however. See Marisol A., 929 F.Supp. at 682. Rather, the Court is persuaded that Congress has expressed its intent for courts to apply pre-Suter case law to determine the private enforceability of the AAA provisions other than Section 671(a)(15). Id.; see also Jeanine B., 877 F.Supp. at 1285.

In 1990, before Suter, the Sixth Circuit Court of Appeals held that foster parents have a private right of action under Section 1983 to enforce the rights afforded under the AAA. Timmy S. v. Stumbo, 916 F.2d 312, 316 (6th Cir.1990). Timmy S. dealt with Section 671(a)(12), a provision not at issue in this case or in Suter. The Sixth Circuit quoted its earlier decision in Lesher v. Lavrich, 784 F.2d 193, 197 (6th Cir.1986), where it had commented: "It may be reasonable to read the Adoption Assistance Act to permit parents and children affected by the programs it funds to sue to force those programs to comply with federal funding requirements...." The court also relied upon the First Circuit case of Lynch v. Dukakis, 719 F.2d 504 (1st Cir.1983), wherein that court held that a class consisting of all children under the jurisdiction of Massachusetts' foster family home care system, and...

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