Cox ex rel. Dermitt v. Liberty Healthcare Corp.

• Decision Date: 07 January 2008
• Docket Number: Civil Action No. 3:07-CV-49-KKC.
• Citation: 622 F.Supp.2d 487
• Parties: Tim COX, by and through his guardian, Daniel DERMITT, Plaintiff v. LIBERTY HEALTHCARE CORPORATION, et al., Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

622 F.Supp.2d 487

Tim COX, by and through his guardian, Daniel DERMITT, Plaintiff v. LIBERTY HEALTHCARE CORPORATION, et al., Defendant.

Civil Action No. 3:07-CV-49-KKC.

United States District Court, E.D. Kentucky, Central Division at Frankfort.

January 7, 2008.

COPYRIGHT MATERIAL OMITTED

Christina R.L. Norris, Louisville, KY, David Ferleger, Bala Cynwood, PA, Larry F. Sword, Sword & Broyles, Somerset, KY, for Plaintiff.

J. Guthrie True, Johnson, True & Guarnieri, LLP, Frankfort, KY, Thomas E. Carroll, Carroll & Turner, PSC, Monticello, KY, for Defendant.

OPINION AND ORDER

KAREN K. CALDWELL, District Judge.

This matter is before the Court on the Motion to Dismiss filed by Defendants Liberty Healthcare Corporation, Jacqueline Bouyea, Robert Ritz, Brandon Ard, John Winburn, Craig Dunbar, Della Sheene, and Jamie Frantz. For the reasons stated below, the Defendants' Motion is GRANTED IN PART and DENIED IN PART.

I. Factual Background

Plaintiff Tim Cox is a resident of Oakwood Community Center [hereinafter "Oakwood"], a state institution for the care of mentally retarded individuals. Cox's diagnoses include pervasive developmental disorder, autism, profound mental retardation, chronic reactive attachment disorder, and anxiety. Because of his conditions, Cox is dependent on others to care for and protect himself. Cox was involuntarily committed to Oakwood in July 12, 2004 and remains there to this day. Cox alleges that he was severely, viciously, and repeatedly beaten and abused during his residency at Oakwood.

Pursuant to a 2005 contract with the Commonwealth of Kentucky, Oakwood is presently operated by Defendant Liberty Healthcare Corporation [hereinafter "Liberty"]. Oakwood was turned over to private management under Liberty due to the State's determination that emergency conditions existed at Oakwood that threatened the health and safety of the residents. Under the contract, Liberty undertook the management, administration, and operation of the Oakwood facility, as well as its employees and staff. Liberty also became responsible for the supervision, care, treatment, and habitation of Oakwood's residents, including Cox. Liberty claims to have delivered training to its care staff in conformity with state law, and to have worked with every client, and each client's Interdisciplinary Teams, on issues of harm and to develop plans for the prevention of future harm. Under the terms of the contract, Liberty was to ensure that Oakwood complied with all applicable federal and state regulatory standards and requirements, and that each resident's federal and state rights were protected at all times. Defendants Jacqueline Bouyea and Robert Ritz are Liberty officials who were in charge of Oakwood's day-to-day operations at various times during Cox's residency there. Defendants Brandon Ard, John Winburn, Craig Dunbar, Della Sheene, and Jamie Frantz are members of the direct care staff at Oakwood and are employed by Liberty.

In his complaint Cox describes several specific examples of the physical harm allegedly inflicted upon him at Oakwood. He alleges that he was beaten and thrown to the floor on April 3, 2006. Cox further alleges that on May 9, 2006, he was kicked repeatedly by several Oakwood staff members. Cox further reports that on July 16, 2006, he was assaulted and punched by one or two Oakwood staff members. Cox also states that he was exposed to "lewd, sexual and provocative behavior" by members of Oakwood's staff during May 2006, causing Cox to be sexually exploited. Additionally, Cox asserts that on at least two occasions he was forcibly restrained in an overly aggressive manner by Oakwood staff, in contravention of his individual Behavior Support Plan. Additionally, Cox alleges that Liberty failed to protect him from this abuse despite having continuing knowledge of I and contends that Liberty also failed to investigate these incidents of harm, failed to alert the proper authorities, failed to notify Cox's family of the situation or allow access to relevant records and reports, and failed to correct the abusive arrangement that Cox was enduring.

Cox brought numerous federal and state causes of action against the Defendants. Pursuant to 42 U.S.C. § 1983 and/or separate statutory rights of action, Cox claims violations of the Fourth and Fourteenth Amendments, the Medicaid Act, and Section 504 of the Rehabilitation Act. Pursuant to supplemental and diversity jurisdiction, Cox also brings several state-law claims against the Defendants, and asks for punitive damages as well. The Defendants moved to dismiss all these claims.

II. Legal Standard

On a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint should not be dismissed ... unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (citation omitted). "The factual allegations in the complaint must be regarded as true. The claim should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988) (quoting Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983)). Nevertheless, "a plaintiff's complaint will not survive a motion to dismiss under Rule 12(b)(6) unless it contains `either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Uttilla v. City of Memphis, 40 F.Supp.2d 968, 970 (W.D.Tenn.1999) (quoting Scheid, 859 F.2d at 436).

III. Analysis

A. 42 U.S.C. § 1983 Claims for Violations of Fourth and Fourteenth Amendments

Cox brings four Constitutional claims against the Defendants pursuant to 42 U.S.C. § 1983. First, Cox claims that the Defendants' conduct violated the Due Process clause of the Fourteenth Amendment by violating his right to be free from personal and emotional harm and from unjustified intrusions on his personal security. Second, Cox claims the Defendants violated his right under the Fourth Amendment to be free from seizure, harm, and unjustified intrusions on his personal security. Third, Cox claims that the Defendants violated the standard of care required of them under the Fourteenth Amendment relating to overseeing Cox's needs, including his bodily safety and protection from abuse, and relating to the need to provide adequate staff and reasonable training to secure these needs. Fourth, Cox claims that the Defendants also violated the Fourteenth Amendment by failing to provide Cox proper care, treatment and habilitation services, and to provide these in accordance with acceptable standards of professional judgment.

The Defendants moved to dismiss these claims on three grounds: first, that they are not state actors; second, that even if they are state actors, they cannot be held liable under theories of respondeat superior and vicarious liability; and third, that they are also entitled to qualified immunity.

1. State Action

Cox proceeds with these Constitutional claims under 42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citations omitted). One acts under color of state law when one exercises power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). If a defendant's conduct satisfies the state-action requirement of the Fourteenth Amendment, then the defendant is considered to be acting under color of state law. West, 487 U.S. at 49, 108 S.Ct. 2250; Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Therefore, the Court must determine whether the Defendants, in managing the operations of Oakwood, performed state action.

The Defendants to this action are not government employees or officials. They are private parties. In certain circumstances, however, the acts of even private parties may be deemed to be state action "when the conduct causing the deprivation of a federal right may be fairly attributable to the state." Revis v. Meldrum, 489 F.3d 273, 289 (6th Cir.2007) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). This determination involves a two-part inquiry. "`First, the deprivation in question must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.'" Id. (quoting Lugar, 457 U.S. at 937, 102 S.Ct. 2744). And second, "`the party charged with the deprivation must be a person who may fairly be said to be a state actor.'" Id. (quoting Lugar, 457 U.S. at 937, 102 S.Ct. 2744).

For a private actor-defendant's acts to be considered state action, "its actions [must] so approximate state action that they may be fairly attributed to the state." Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir.2000). The United States Court of Appeals for the Sixth Circuit uses three tests to determine if a private actor-defendant's conduct amounts to state action. These are commonly referred to as: 1) the public-function test; 2) the state-compulsion test; and 3) the symbiotic relationship or nexus test. Id.; Boykin v. Van Buren Twp., 479 F.3d 444, 452 (6th Cir. 2007) (quoting Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir.2003)); Lansing, 202 F.3d at 828. Each of these tests must be examined to determine if the Defendants' acts constitute state action. Additionally, Cox places considerable...