Faye v. Miss. Dep't of Human Servs., CAUSE NO. 1:17cv145-LG-RHW
| Decision Date | 19 February 2018 |
| Docket Number | CAUSE NO. 1:17cv145-LG-RHW |
| Parties | ALEXANDRIA FAYE, Individually and as Next Friend and On Behalf of O.F. and K.S. PLAINTIFF v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES; HARMONY RAFFEO, individually and as agent for the Mississippi Department of Human Services; TEQUILA HALL, as agent for Mississippi Department of Human Services; ERICA WEARY, individually and as agent for Mississippi Department of Human Services; and JOHN AND JANE DOES I-X DEFENDANTS |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THE COURT is the [7] Motion to Dismiss filed by Mississippi Department of Human Services ("MDHS"), Tequila Hall, Harmony Raffeo, and Erica Weary, in this lawsuit filed as a result of the alleged sexual assault of one or more children who were in foster care. The parties have fully briefed the Motion. After reviewing the Motion, the record in this matter, and the applicable law, the Court finds that the Motion to Dismiss should be granted, but that the plaintiff Alexandria Faye, Individually and as Next Friend of O.F. and K.S., should be granted permission to file an amended complaint.
Alexandria Faye filed this lawsuit against the defendants on behalf of herself and her two minor daughters. Her [1-2] Complaint contains the following allegations:
Faye was arrested on February 19, 2014, and MDHS filed a petition to remove her daughters — O.F., who was then one year old, and K.S., who was then two years old, — from Faye's custody. The Hancock County Youth Court granted the petition, placing O.F. and K.S. in MDHS custody. MDHS, Hall, Raffeo, and John and Jane Does told the Youth Court that the only residents of the home of foster parent Erica Weary were Weary and her minor son. However, other unidentified persons resided in Weary's home. MDHS and its employees, Hall and Raffeo, as well as potential John and Jane Does placed O.F. and K.S. in Weary's home. MDHS, Hall, Raffeo, and John and Jane Does failed to appropriately screen the Weary home for the placement of O.F. and K.S., and these defendants failed to properly inspect the Weary home at regular intervals.
In 2014, Raffeo notified Faye that she was transporting the children to the hospital so that they could be tested for gonorrhea. (Compl. at 5, ECF No. 1-2).1 Raffeo told hospital staff that O.F. had tested positive for gonorrhea at a health clinic. MDHS, Raffeo, Hall, and John and Jane Does also "declined an examinationby medical personnel for sexual assault." (Id.) MDHS, Hall, Raffeo, and John and Jane Does reported that the assault occurred at the Weary home. Subsequently, Faye and a social worker took the children to the Children's Hospital of New Orleans. "Medical staff treated K.S. prophylactically for gonorrhea due to the fact that no facility was able to collect a urine specimen from K.S. for sexual infections prior to treatment." (Id. at 6). O.F.'s medical records state that she "most likely contracted [gonorrhea] while in foster care based on symptomology and timeline provided." (Id.) O.F. tested positive for gonorrhea at three different medical facilities. Faye tested negative for gonorrhea on two occasions. "MDHS substantiated sexual abuse suffered by the minor children, but did not substantiate the source." (Id.) Gonorrhea is only transmitted by sexual contact; thus, the children were sexually assaulted. Gonorrhea has an incubation period of two to five days, but the children were in MDHS custody for almost four months before the gonorrhea diagnosis. "It is medically concluded that O.F. and K.S. contacted [sic] gonorrhea while in MDHS and Hancock County DHS custody." (Id. at 7).2
Faye claims that the defendants failed to follow their own policies and procedures when they (1) failed to conduct appropriate background checks as to all individuals who would reside in the foster home where the children were placed; (2) failed to conduct periodic inspections of the foster home; (3) failed to properly screen the foster home; and (4) failed to conduct periodic inspections of the Watch Me GrowLearning Center daycare center.3 She alleges that the John and Jane Doe defendants molested the children.
Faye filed her first lawsuit on August 25, 2015, in the Circuit Court of Hancock County, Mississippi. The case was removed to this Court and assigned cause number 1:15cv429-HSO-JCG. Several of the defendants filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On August 10, 2016, Judge Halil Suleyman Ozerden determined that the First Amended Complaint filed in that lawsuit did "not contain sufficient facts as to the purported wrongful conduct attributable to each Defendant, nor is it clear which constitutional rights were allegedly violated by each Defendant." (Mem. Op. & Order at 8, ECF No. 40, Cause NO. 1:15cv429-HSO-JCG). Judge Ozerden granted Faye leave to file a second amended complaint, but Faye failed to comply with the Court's deadline. Therefore, Judge Ozerden dismissed the lawsuit without prejudice.
Faye filed the present lawsuit in the Circuit Court of Hinds County, Mississippi, First Judicial District. The case was transferred to the Circuit Court of Harrison County, Mississippi, and then removed to this Court. Faye attempts to assert the following claims: 42 U.S.C. § 1983 claims for deprivation of FourteenthAmendment rights filed against Raffeo, Hall, Weary, and John and Jane Does; claims of negligence and gross negligence filed against MDHS, Weary, and John and Jane Does; claims of negligent infliction of emotional distress filed against Weary, Hall, and Raffeo; and a battery claim filed against John and Jane Does.4 The defendants have filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss filed pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). In considering a Rule 12(b)(6) motion, a court must accept all well-pleaded facts as true and view those facts in the light most favorable to plaintiff. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015). "The court's task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success." Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
Faye concedes that her Section 1983 claims against Hall and Raffeo in their official capacities should be dismissed. She has not attempted to assert a Section 1983 claim against MDHS.
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004). "[S]tate action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (citation and quotation marks omitted). This Court previously held that a foster parent was not a state actor for purposes of section 1983. Faulkner v. Miss. Dep't of Human Servs., No. 1:16cv158-LG-RHW, 2016 WL 3661521, at *2 (S.D. Miss. July 5, 2016) (citing Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir. 2001); Milburn v. Anne Arundel Cty. Dep't of Soc. Servs., 871 F.2d 474, 479 (4th Cir. 1989)).
Faye argues that Weary should be considered a state actor pursuant to the entwinement doctrine. In support of this argument, Faye relies on Howard v. Malac, 270 F. Supp. 2d 132 (D. Mass. 2003). However, in Howard, the plaintiffalleged that state officials knew that the foster parent was abusing the child and that the state officials colluded with the foster parent to cover up the abuse. Id. at 144. As the court in Howard explained, the entwinement test requires a court to "focus specifically on the state's involvement in the challenged conduct at issue." Id. at 145. Faye's Complaint does not contain any allegations that the MDHS defendants knew that Faye's children were being abused or that they acted in concert with Weary to cover up the abuse. Therefore, Howard is distinguishable from the present lawsuit.
Faye also argues that Weary is a state actor, because foster parents are governed by state statutes. This argument has been properly rejected by other courts. See, e.g., Marr ex rel. Marr v. Schofield, 307 F. Supp. 2d 130, 134 (D. Me. 2004).
In support of her section 1983 claim, Faye, on behalf of herself and her daughters, alleges that Weary failed to:
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