Harpole v. Arkansas Dept. of Human Services, 86-2105
| Decision Date | 15 July 1987 |
| Docket Number | No. 86-2105,86-2105 |
| Citation | 820 F.2d 923 |
| Parties | Betty Jean HARPOLE, Individually and as Administratrix of the Estate of Gary Demay, Deceased, Appellant, v. The ARKANSAS DEPARTMENT OF HUMAN SERVICES, Ray Scott, Director; Dr. Curtis Ivery, Director of the Social Services Division; Roy Kimball, Director of Pulaski County Social Services North Office; and Marilyn Carter, Supervisor, Pulaski North Social Services; Billey Burke, Supervisor; Debbie Burgess, Case Worker, P.N.S.S.; Arkansas Children's Hospital; Randall L. O'Donnell, Chief Executive Officer; Jeanette Purdue, Director Social Services and Support; Dr. Debra Fiser, Staff Physician; Tommie Flowers-Baker, and as Social Worker for the Arkansas Children's Hospital; in their Individual and Official Capacities, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard Quiggle, Little Rock, Ark., for appellant.
Laura A. Hensley, Little Rock, Ark., for Arkansas Childrens Hosp., et al.
Kay J. Jackson Demailly, Asst. Atty. Gen., Little Rock, Ark., for State of Arkansas Dept. of Human Services, et al.
Before ROSS, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Plaintiff appeals from the district court's 1 order granting defendants' motion to dismiss in this 42 U.S.C. Sec. 1983 case. The district court held that the pleadings failed to state a claim upon which relief can be granted. For the reasons stated below we affirm.
The facts in this case compel sympathy for Betty Jean Harpole, grandmother of four small children, two of whom died as a result of Sudden Infant Death Syndrome and two of whom died as a result of apnea. 2 This case stems out of the last of these tragic events--the February 8, 1984 death of two-and-one-half month-old Gary Demay.
Gary Demay was born on November 19, 1983. Betty Demay, mother of Gary and the three other deceased children, is the adopted daughter of plaintiff Harpole. On November 21, 1983 Gary was admitted to Arkansas Children's Hospital to determine if he was apnea prone and after a series of tests Gary's doctors concluded that he probably was. The Arkansas Department of Social Services was notified of possible abuse and neglect. The Pulaski County North Office of Social Services conducted an investigation and found no evidence of abuse or neglect. On December 15, 1983, despite uneasiness felt by hospital personnel, Gary was discharged.
On both January 8, and January 14, 1984 Gary was returned to the hospital because he had suddenly stopped breathing. After each admission, however, Gary was discharged to his mother's care. On February 8, 1984, Gary stopped breathing and died. His mother had forgotten to activate the apnea moniter, which would have sounded an alarm when Gary stopped breathing. Demay had also forgotten to turn on the monitor the day her third child stopped breathing and died.
Harpole filed this suit on her own behalf and as administratrix of Gary Demay's estate. She alleged that Gary's First, Fourth, Eighth, Ninth, and Fourteenth Amendment rights have been violated because the defendants violated duties imposed by Arkansas statutes and Titles IV and XX of the Social Security Act. She also sued, on her own behalf, for damages proximately caused by Gary's death.
The district court held that Harpole's complaint, at best, states a cause of action in tort for negligence. The district court also held that to the extent that the complaint sought to require state officials to enforce state law, it was barred by the Eleventh Amendment.
On appeal Harpole argues that the defendants were deliberately indifferent to the needs of Gary and as a result his and her own constitutional rights were violated. Also, Harpole argues that the Eleventh Amendment is inapplicable because the suit was not brought solely to remedy state law violations. State law created affirmative duties, the breach of which is a constitutional violation, Harpole argues.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal "for failure to state To state a claim under 42 U.S.C. Sec. 1983 Harpole must "allege deprivation of a right, privilege or immunity secured by the Constitution and laws of the United States through the conduct of persons acting under color of state law." Id. Therefore, we must determine whether the facts, as alleged by Harpole, if proved, would show that defendants have deprived Harpole or Gary of any federally protected rights. 3
a claim upon which relief can be granted." Whether Harpole's complaint states a claim upon which relief can be granted is a legal question which this court will review de novo. See Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). We will affirm the district court's dismissal only if it appears beyond doubt that Harpole can prove no facts which would entitle her to relief
A close reading of Harpole's complaint shows that she is pursuing several different claims. As administratrix of Gary's estate she seeks to recover damages on his behalf. In this capacity she alleges that by violating state law, defendants deprived Gary of his constitutional rights. She also alleges that defendants violated Titles IV and XX of the Social Security Act. On her own behalf Harpole seeks damages for alleged violations of her own constitutional rights as well as for alleged violations of the Social Security Act.
In her complaint Harpole alleges that defendants violated the First, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. She provides no authority supporting First, Eighth, or Ninth Amendment violations, and we see no reason to discuss these allegations. The Fourteenth Amendment, however, has been construed to offer redress for victims of unlawful conduct of state actors.
As primary support for her position Harpole cites Doe v. New York Dep't of Social Services, 649 F.2d 134 (2d Cir.1981). In Doe, a child brought an action under Sec. 1983 alleging that her constitutional rights had been violated when the agency which placed her in a foster home failed to supervise her placement adequately and as a result she was raped and beaten by her foster father. The court in Doe stated, Id. at 141. The court stated that a cause of action under Sec. 1983 would exist if the plaintiff could prove that the agency's nonfeasance was caused by deliberate indifference.
The facts in the present case are quite different than those in Doe, however. The plaintiff in Doe was in the legal custody of the New York City Commissioner of Welfare--Gary Demay was always in his mother's legal custody. In Doe, the agency failed to report child abuse even though it was required by statute to do so. The court stated:
The more a statute or regulation clearly mandates a specific course of conduct, the more it furnishes a plausible basis for inferring deliberate indifference from a failure to act * * * * This is because failure to undertake a specific course of action in vindication of a general duty can reasonably be attributed to a bona fide difference of opinion as to how the duty should be performed. However, no such alternative explanation for nonfeasance Id. at 146.
can be raised where the task mandated is specific and unequivocal.
In the present case no affirmative duties under Arkansas law were violated. Harpole cites three Arkansas statutes, none of which are written in mandatory terms. The first statute, Ark.Stat.Ann. Sec. 45-423 (1977), provides that "[a]ny adult may file * * * a petition in writing setting forth facts concerning a juvenile which, if true, would render such juvenile * * * dependent-neglected within the meaning of this Act." (emphasis added) Section 45-438 provides that "Social Services or their designee may file a petition * * * alleging the specific facts that are relied upon and the dates of the alleged acts to show probable cause that the juvenile is dependent-neglected." Ark.Stat.Ann. Sec. 45-438 (Supp.1985) (emphasis added). Likewise, Ark.Stat.Ann. Sec. 42-811 (1977) provides that "a designated employee of the city or county department of social services, may take a child into protective custody or any person in charge of a hospital or similar institution or any physician treating a child may keep that child in his custody without the consent of the parent * * * * " (emphasis added).
By their terms these statutes allow the exercise of discretion. Absent something more than an undesirable result we can not say that the defendants' exercise of their discretion rose to the level of a constitutional violation. At best, defendants may have been negligent when returning Gary to his mother's care, but negligence is not actionable under Sec. 1983. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); Griffin v. Hilke, 804 F.2d 1052, 1055 (8th Cir.1986). The State of Arkansas does not have a duty to provide around-the-clock services to every sick child, nor must it monitor family relationships closely enough to prevent children from being injured by the negligence of their parents.
The state does not have a duty enforceable by the federal courts to maintain a police force or a fire department, or to protect children from their parents. The men who framed the original Constitution and the Fourteenth Amendment were worried about government's oppressing the citizenry rather than about its failing to provide adequate social services.
DeShaney v. Winnebago County Dep't of Social Services, 812 F.2d 298, 301 (7th Cir.1987).
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