Milburn by Milburn v. Anne Arundel County Dept. of Social Services

• Decision Date: 21 April 1989
• Docket Number: No. 88-3916,88-3916
• Citation: 871 F.2d 474
• Parties: Charles MILBURN, Jr., a minor, by Charles B. MILBURN, his father and next friend, Plaintiff-Appellant, v. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES; Esther Carpenter, individually, and as the Former Director of Anne Arundel County Department of Social Services; Elizabeth Tyler, individually, and as Supervisor, Anne Arundel County Department of Social Services; Sergio Alvarez, M.D.; North Arundel Hospital, a Maryland Corporation; Hazel Gent; Wendy L. Tucker; Karl T. Tucker; Baltimore City Hospitals; Anne Arundel County, Maryland, a Municipal Corporation; Judith F. Plymyer, individually, and as Caseworker, Anne Arundel County Department of Social Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 474

871 F.2d 474

Charles MILBURN, Jr., a minor, by Charles B. MILBURN, his father and next friend, Plaintiff-Appellant, v. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES; Esther

Carpenter, individually, and as the Former Director of Anne

Arundel County Department of Social Services; Elizabeth

Tyler, individually, and as Supervisor, Anne Arundel County

Department of Social Services; Sergio Alvarez, M.D.; North

Arundel Hospital, a Maryland Corporation; Hazel Gent;

Wendy L. Tucker; Karl T. Tucker; Baltimore City Hospitals;

Anne Arundel County, Maryland, a Municipal Corporation;

Judith F. Plymyer, individually, and as Caseworker, Anne

Arundel County Department of Social Services, Defendants-Appellees.

No. 88-3916.

United States Court of Appeals,

Fourth Circuit.

Argued Nov. 1, 1988.

Decided March 31, 1989.

Rehearing Denied April 21, 1989.

Vincent Anthony Mulieri, Annapolis, for plaintiff-appellant.

Ralph S. Tyler, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Md., on brief), Ronald Gordon Dawson (A. Gwynn Bowie, Jr., Smith, Somerville & Case, Annapolis, Md., on brief), Deborah Sweet (Whiteford, Taylor & Preston, Barry J. Henderson, Baltimore, Md., Richard C. Burch, Mudd, Harrison & Burch, Guerdon Macy Nelson, Elijah Dale Adkins III, Anderson, Coe & King, Towson, Md., Neal M. Janey, City Sol., William R. Phelan, Jr., Sp. Sol., Baltimore, Md., David Samuel Bliden, Deputy County Sol., Annapolis, Md., on brief), for defendants-appellees.

Before WIDENER, CHAPMAN, and WILKINS, Circuit Judges.

WIDENER, Circuit Judge:

Charles Milburn appeals the decision of the district court dismissing his complaint against both the public and private defendants. As the complaint does not support a cause of action, we affirm.

Milburn was voluntarily placed by his parents in a foster home through the state placement system at the age of 23 months. The Maryland Department of Social Services placed him in the licensed foster home of Karl and Wendy Tucker, where he remained from June 10, 1971 until August of 1973.

During the period of time which he spent in the Tucker home, Milburn sustained significant injuries on four separate occasions for which he needed medical treatment. In January of 1972, Milburn was treated at North Arundel Hospital for multiple bruises and a fracture of the right femur. The hospital personnel who treated Milburn reported to the Department of Social Services (DSS) in writing that the injuries aroused their suspicion of suspected child abuse. The report detailed the child's injuries and that he displayed fear of the foster mother. Defendant Hazel Gent, a nurse at the hospital, communicated over the telephone to defendant Esther Carpenter, Director of DSS, the same concerns noted in the written report.

In November of 1972, plaintiff was treated for a deep laceration over the left eye. In January of 1973, an incident occurred in the foster home in which the plaintiff's hands were severely burned. The caseworker, Judy Finn (now Judy F. Plymyer), learned of the injury during a visit to the home the following day. Miss Finn allowed Mrs. Tucker to treat the burns at home. When the child became in need of further medical treatment for those burns several weeks thereafter, he was taken to Baltimore City Hospital for surgery on his hands and wrists resulting in permanent disfigurement. The hospital employees who treated Milburn suggested that the injuries were the result of child abuse, and it is now alleged Milburn's hands were immersed in hot water by the Tuckers as punishment. However, upon recommendation of defendants Finn, Carpenter and Elizabeth Tyler of DSS, Milburn was returned to the Tucker home. Subsequently, in May 1973, Milburn suffered a broken tibia. In August of 1973, Milburn was placed in a different foster home.

A complaint was filed on August 5, 1983 by Charles Milburn, Sr. as the father and next friend of the plaintiff. The complaint under 42 U.S.C. Sec. 1983 alleges that the defendants violated plaintiff's rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments based on continued and negligent care and placement in the home of the Tuckers. The complaint further alleges violations of state and other federal law. All of the defendants filed motions to dismiss.

A hearing was held before a magistrate on the defendants' motions. The magistrate, in a thorough memorandum opinion, recommended that the motions of the defendants be granted. Plaintiff filed exceptions to the magistrate's report, and the district court, after a review of those claims to which exception was taken, adopted the magistrate's recommendation of dismissal, albeit for somewhat different reasons on some issues. Milburn appeals.

Milburn's principal contention is his claim filed under 42 U.S.C. Sec. 1983. ¹ He sued Karl T. Tucker and Wendy Tucker, his wife, the foster parents. He also sued Anne Arundel County, Maryland; Anne Arundel County Department of Social Services (DSS) and Esther Carpenter, Judy Finn Plymyer, and Elizabeth Tyler, officers or employees of DSS; North Arundel Hospital Association, Inc., and Hazel Gent, a nurse, and Sergio Alvarez, a physician, employees of North Arundel Hospital Association; Baltimore City Hospitals and Eduardo Mazzi, Ophelia Janes, physicians, and Maryland Hartge, employees of Baltimore City Hospitals. It is acknowledged that North Arundel Hospital is a private entity and Baltimore City Hospitals are a part of the municipality.

The facts giving rise to the cause of action against the various defendants are that Tucker and wife badly abused Milburn as a child while Milburn was in their care as foster parents. He alleges that the Department of Social Services and Anne Arundel County and the employees of DSS displayed gross negligence and deliberate indifference to his welfare in that they continued his placement in the foster home of the defendants Tucker. The Hospital defendants and their employees are charged with much the same type of cause of action. It is charged that they either failed to report the abuse of the plaintiff in the manner provided by law or failed to adopt procedures for such reporting.

After this case was argued before us, the Court decided Deshaney v. Winnebago County Department of Social Services, --- U.S. ----, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), which is dispositive of most of the issues in this case. Other than the fact that it was one of the natural parents in Deshaney who administered the physical child abuse, as opposed to the foster parents here, the essential facts of Deshaney and this case are indistinguishable.

In Deshaney, the father had severely beaten the child. The child and his mother brought suit under 42 U.S.C. Sec. 1983 against Winnebago County, Wisconsin, its Department of Social Services, and various individual employees of the department. The complaint alleged a loss of liberty under the Fourteenth Amendment by their failure "... to intervene to protect ... [the child] against a risk of violence at his father's hands, of which they knew or should have known." --- U.S. at ----, 109 S.Ct. at 1002. So, the cause of action is essentially the same as pleaded here against all of the defendants except the Tuckers, the foster parents.

The Court described the cause of action as "... failing to provide ... [the child] with adequate protection against his father's violence," --- U.S. at ----, 109 S.Ct. at 1003, again essentially the same claim which is asserted here.

Despite the fact that the defendants in Deshaney were subdivisions of the State or employees thereof, the Court held that no cause of action was stated against the defendants under Sec. 1983. "As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." --- U.S. at ----, 109 S.Ct. at 1004. The Court reasoned that when the State, by the affirmative exercise of its power, so restrains an individual's liberty that it renders him unable to care for himself and at the same time fails to provide for his basic human needs, food, clothing, shelter, medicinal care and reasonable safety, the State transgresses the substantive limits set by the Eighth Amendment and the Due Process Clause. But the Court reasoned that that analysis simply had no application in the case because the injuries suffered by the child "... did not occur while he was in the State's custody, but while he was in the custody of his natural father, who was in no sense a state actor." [Footnote omitted] The Court recited that while the State may have been aware of the dangers faced by the child, it played no part in their creation nor did it do anything to render him any more vulnerable to them. --- U.S. at ----, 109 S.Ct. at 1006. And, in note 9, at p. ----, at p. 1006 of 109 S.Ct., omitted from the last quotation above, the Court stated that had the State by the affirmative exercise of its power removed the child from free society and placed him in a foster home operated by its agents, a different situation might obtain, but the Court went on to say it expressed no opinion on the validity of that analogy, for it was not before the Court.

Applying Deshaney to the facts of this case, we are of opinion that a cause of action is not stated against the hospital and county and municipal defendants and their employees. The most that any of them might have been charged with was a failure to protect the plaintiff against private violence. The State of Maryland by the affirmative exercise of its power had not restrained the plaintiff's liberty; he was voluntarily placed in the foster home by his natural parents. And the injuries to the plaintiff did not occur while he was in the custody of the State of Maryland, rather while he was in the custody of his foster parents, who were not state actors, as we will demonstrate below.

Whether the Tuckers are state actors depends on the...