Jensen v. Conrad, Civ. A. No. 82-2061-15.

Citation570 F. Supp. 91
Decision Date18 July 1983
Docket NumberCiv. A. No. 82-2061-15.
PartiesKarole K. JENSEN, as Administratrix of the Estate of Sylvia R. Brown, Deceased, Plaintiff, v. Virgil L. CONRAD, in his individual and official capacity as Commissioner of the Department of Social Services; Robert Kneece, Fred G. Scott, Samuel Smith, Agnes Wilson, Oscar P. Butler, Jr., John C. Williams, Jr., and Lucy C. Trower, individually and in their official capacities as members of the State Board of the Department of Social Services; Collie L. Moore, W.H. Neal, Catherine Morris, Allen Dowdy, Arlene B. Andrews, Beatrice Sumter, Robert E. Alexander, Melissa Burnette, individually and in their official capacities as members of the Richland County Board of the Department of Social Services; Mary Williams and Patricia Jones, individually and in their official capacities as Social Workers for the South Carolina Department of Social Services; and Barbara Locklair, individually and in her official capacity as a "Home Health Nurse" for the South Carolina Department of Social Services, Defendants.
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina

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O. Fayrell Furr, Jr., Columbia, S.C., for plaintiff.

George C. Beighley, John L. Choate, Joel H. Smith, William C. Hubbard, Charles E. Hill, David W. Robinson, II, Wilburn Brewer, Jr., James L. Werner, Columbia, S.C., for defendants.

ORDER

HAMILTON, District Judge.

This matter comes before the court upon three motions to dismiss for failure to state a claim upon which relief may be granted, filed by the defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The first motion was filed on November 15, 1982, by defendants Conrad, Kneece, Wilson, Butler and Williams, the Commissioner of the South Carolina Department of Social Services (hereinafter "Commissioner") and the members of the State Board of the Department of Social Services (hereinafter "State Board"), respectively. All defendants were sued both in their individual and official capacities. This motion was later joined by three other members of the State Board, Ms. Lucy C. Trower (January 11, 1983), Mr. Samuel Smith (February 23, 1983) and Mr. Fred G. Scott (March 2, 1983). The cause behind their delay in joining the motion to dismiss was attributed to delay in service of process.

The second motion to dismiss was filed on November 16, 1982, by the defendants, Moore, Neal, Morris, Andrews, Sumter, Alexander and Burnette, members of the Richland County Board of the Department of Social Services (hereinafter "County Board") who were also sued by the plaintiff in their individual and official capacities. This motion was later joined by defendant board member Allen Dowdy on January 10, 1983.

The third motion to dismiss was filed by the defendant Barbara Locklair in her individual and official capacity, on January 13, 1983. At oral argument on the motions to dismiss, held February 25, 1983, the court was advised that Ms. Locklair is employed by the South Carolina Department of Health and Environmental Control as a home health nurse.

In analyzing the motions to dismiss, the court will first assess the viability of the plaintiff's complaint as asserted against the Commissioner and Barbara Locklair in their official capacities and against the State Board members in their official capacities. Next the court will address the motion to dismiss filed by the members of Richland County Board in their official capacities. Finally, the court will turn to an analysis of all three motions to dismiss asserted by defendants in their individual capacities.

COMMISSIONER, STATE BOARD AND BARBARA LOCKLAIR OFFICIAL CAPACITIES

Karole K. Jensen, as Administratrix of the Estate of Sylvia R. Brown, a deceased minor, brings this action against (1) the Commissioner of the South Carolina Department of Social Services (2) members of the State Board of the South Carolina Department of Social Services (3) members of the Richland County Board of the Department of Social Services (4) two social workers employed by the South Carolina Department of Social Services and (5) Mrs. Barbara Locklair, a home health nurse employed by the South Carolina Department of Health and Environmental Control. Ms. Jensen brings this action pursuant to 42 U.S.C. §§ 1983 and 1988. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the U.S. or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In this action, Ms. Jensen alleges that these defendants deprived her decedent, Sylvia Brown, of her Fourteenth Amendment right to life by their failure to protect her from the physical abuse inflicted upon her by her parent(s), such abuse being the ultimate cause of her death on May 11, 1979. The complaint also asserts a pendent state claim brought pursuant to the South Carolina Wrongful Death Act, §§ 15-51-10, 15-51-20 and 15-51-40 of the Code of Laws of South Carolina 1976, as amended, for the benefit of the statutory beneficiaries of the deceased. Plaintiff seeks actual and punitive damages, an award of reasonable attorneys fees and costs, and such other relief as this court would deem just and proper.

At the motions hearing held on February 25, 1983, the court raised, sua sponte, and does now address, the question of the applicability of the Eleventh Amendment of the United States Constitution to the suit against the Commissioner, the State Board and Barbara Locklair in their official capacities. The Eleventh Amendment provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Although, by its terms, the Amendment does not preclude suits against a state by its own citizens, the Supreme Court has held that a state is immune from suits brought in federal courts by its own citizens as well as by citizens of another state or citizens or subjects of any foreign state. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Parden v. Terminal R. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); and Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). Moreover, it is well settled that the Eleventh Amendment bars a suit against a state agency, entity or institution, such as the Department of Social Services and its governing body, the State Board, which functions as an arm or alter ego of the state. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). That this suit is brought against the Commissioner, Barbara Locklair, and the members of the State Board "individually and in their official capacity" does not alter the fact that it is brought against the Department of Social Services and the Department of Health and Environmental Control, with respect to Ms. Locklair. As set forth by the Third Circuit in Laskaris v. Thornburgh, 661 F.2d 23 (1981):

An action in federal court for damages or back pay against a state official acting in his official capacity is barred by the Eleventh Amendment because such retrospective relief necessarily depletes the state treasury. Id. at 26.

Also, as set forth by the Fourth Circuit in the 1982 case of Hughes v. Blankenship, 672 F.2d 403 (4th Cir.1982):

Official capacity suits represent but another way of pleading an action against the entity of which the officer is an agent, Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and damages may be awarded against a defendant in his official capacity only if they would be recoverable against the governmental entity itself. Monell, supra; Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.1980).

Similarly, the Supreme Court in Edelman v. Jordan, supra, stated, "It is also well established that even though a state is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment." Edelman at 94 S.Ct. 1355.

Therefore, the rule has evolved that a suit seeking to impose a liability which must be paid from public (state) funds is barred by the Eleventh Amendment. Edelman at 94 S.Ct. 1356. In the instant suit, any recovery by the plaintiff against the Commissioner, Barbara Locklair and the State Board members in their official capacities would require payment from public funds which is impermissible under the Eleventh Amendment. Belcher v. South Carolina Board of Corrections, 460 F.Supp. 805 (1978). Therefore, the court is of the opinion, based on Laskaris, supra, Edelman, supra, and Hughes, supra, that a suit against members of the State Board of the Department of Social Services in their official capacities and against Barbara Locklair and the Commissioner in their official capacities which seeks damages is a suit against the state of South Carolina for purposes of Eleventh Amendment analysis.

The immunity afforded the states by the Eleventh Amendment can be overcome if the state waives its constitutional immunity and consents to suit or, with respect to the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution if Congress abrogates the state's immunity pursuant to its authority to enforce the substantive...

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