Norfleet v. ARK. DEPT. OF HUMAN SERVICES, LR-C-91-745.

• Decision Date: 01 June 1992
• Docket Number: No. LR-C-91-745.,LR-C-91-745.
• Parties: Taurean NORFLEET, By and Through his parent and administratrix, Toi NORFLEET; Aaron Norfleet, by and through his parent, Toi Norfleet; and Toi Norfleet in her individual capacity, Plaintiffs, v. STATE OF ARKANSAS DEPARTMENT OF HUMAN SERVICES; Richard Dietz, individually, and in his official capacity; Robert Brooks, individually, and in his official capacity; and, Johnnie Armstrong, individually, and in her official capacity, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

796 F. Supp. 1194

Taurean NORFLEET, By and Through his parent and administratrix, Toi NORFLEET; Aaron Norfleet, by and through his parent, Toi Norfleet; and Toi Norfleet in her individual capacity, Plaintiffs, v. STATE OF ARKANSAS DEPARTMENT OF HUMAN SERVICES; Richard Dietz, individually, and in his official capacity; Robert Brooks, individually, and in his official capacity; and, Johnnie Armstrong, individually, and in her official capacity, Defendants.

No. LR-C-91-745.

United States District Court, E.D. Arkansas, W.D.

June 1, 1992.

Michael Andrew LeBoeuf, Wallace & Hamner, Little Rock, Ark., for plaintiffs.

Debby Thetford Nye, Dept. of Human Services, Office of Chief Counsel, Amy Lynne Ford, Arkansas Dept. of Human Services, Office of Chief Counsel, Little Rock, Ark., for defendants.

MEMORANDUM AND ORDER

SUSAN WEBBER WRIGHT, District Judge.

Taurean Norfleet died after being taken into protective custody and placed in a foster home by the State of Arkansas Department of Human Services (DHS). The plaintiffs say that his death was the result of the defendants' failure to provide appropriate medical care. They bring this lawsuit under 42 U.S.C. § 1983, alleging that such failure violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution.¹

The DHS is responsible for administration of social services in the State of Arkansas, including long term and temporary foster care programs for children. Richard Dietz was Director of the Division of Children and Family Services of the DHS. Robert Brooks was a case worker in that division, and Johnnie Armstrong was a certified foster parent operating a foster home for the division. They move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on several grounds: (1) the DHS is an entity of the State of Arkansas and therefore immune under the Eleventh Amendment from section 1983 liability; (2) Dietz, Brooks, and Armstrong are protected by qualified immunity; (3) Brooks and Armstrong are immune from liability under state law; and (4) negligent conduct is not actionable under section 1983. The defendants also move for dismissal under Rule 12(b)(6) of the claims of Aaron Norfleet and Toi Norfleet for failure to allege that they were deprived of a constitutional right. For the reasons that follow, the Court finds that the defendants' motions should be granted in part and denied in part.

I.

The facts alleged in this case, if true, are undeniably tragic. On Saturday, August 17, 1991, Toi Norfleet left her children, Taurean and Aaron, with her next-door neighbor and babysitter, Sheila Tolbert, while Ms. Norfleet was on a two and one-half day trip to Memphis, Tennessee. Taurean had a history of medical problems involving asthma, a condition for which he had been treated on numerous occasions and for which he had a standing physician at the Arkansas Children's Hospital.

In the early morning hours on Sunday, August 18, Taurean apparently suffered an asthma attack requiring medical attention. Ms. Tolbert contacted emergency medical personnel who transported Taurean to Baptist Memorial Hospital for treatment. For reasons not specified in the complaint, Ms. Tolbert was arrested by city police officers and Aaron was placed in the custody of another neighbor.

After treatment at the hospital, Taurean was given two types of medication to take with him, and then was released into the custody of Mr. Brooks of the DHS. Mr. Brooks, however, failed to obtain proper medical information or assistance from hospital personnel as to the ongoing care and treatment of Taurean's medical condition. He took Taurean to the home of Ms. Armstrong around 7:30 a.m. Ms. Armstrong also did not request medical information about the treatment of Taurean's condition.

Throughout that day and the next, Taurean apparently consumed all or most of his medication. Ms. Armstrong neither supervised the use nor took possession of Taurean's medication. About 12:30 a.m. on Tuesday, August 20, Taurean began having trouble breathing and told Ms. Armstrong. She sent him back to his room, where he expressed additional concern over a lack of medication. Later, after apparently realizing the seriousness of Taurean's condition, Ms. Armstrong called emergency medical personnel, who arrived at 2:37 a.m. and transported Taurean to the Arkansas Children's Hospital. Taurean was pronounced dead at 3:35 a.m.

Taurean's mother, Ms. Norfleet, had returned from Memphis around 4:20 p.m. on Monday, August 19, while Taurean was still at Ms. Armstrong's home. Upon arrival, she called the DHS to inquire about her son, but received only prerecorded messages at all available DHS numbers. She then drove to the police department to seek assistance in locating her son. The police put her in contact with an unidentified DHS worker at that time, and she later was contacted by a DHS social worker who informed Ms. Norfleet that her son was fine and that he probably could be returned to her the following morning (Tuesday). Aware that her son had been treated at Baptist Memorial Hospital, Ms. Norfleet asked the social worker about Taurean's condition. She was told that he was fine, but that she could not speak with the foster parent who had custody of Taurean. Although uncomfortable with this procedure, Ms. Norfleet believed she could not obtain custody of or visit with Taurean until the following morning, so she took no further action. DHS personnel woke her around 5:00 the next morning and notified her that her son had died.

The plaintiffs allege that the defendants were aware or should have been aware of deficiencies within the DHS that resulted in the failure to provide proper and adequate medical attention to children in the care of foster parents. They say that the defendants, while aware of problems with the licensing and training of foster parents, continued to operate under a policy or practice that did not require foster parents to be either medically trained or medically proficient in providing for or responding to the medical needs of foster children. They further claim that the defendants failed to adequately train or supervise DHS personnel involved with Taurean and that the defendants acted with deliberate indifference to Taurean's medical needs while he was in state custody, including failing to obtain adequate medical treatment information and to respond to his continued requests for medical attention.

II.

Under Rule 56(c), summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment "correctly results from the application of substantive law to facts established beyond reasonable controversy," Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990), but should not be granted if a fair-minded jury could return a verdict for the nonmoving party on the evidence presented, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

The moving party bears the burden of setting forth facts to show that he is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant to demonstrate that there exists a genuine issue as to material fact, and "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2514. The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be "outcome determinative" under applicable law. Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir.1989); Twin City Bank v. Verex Assurance, Inc., 733 F.Supp. 67, 67-68 (E.D.Ark.1990).

III.

A state is not a "person" within the meaning of 42 U.S.C. § 1983 and thus may not be sued under that statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Moreover, the Eleventh Amendment bars section 1983 suits against state governments in federal courts. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). An agency of state government, such as the DHS, is part of the state for purposes of the Eleventh Amendment. See, e.g., Florida Dept. of Health & Rehabilitative Svcs. v. Florida Nursing Home Ass'n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam); Caldwell v. LeFaver, 928 F.2d 331 (9th Cir.1991).

State officers sued in their official capacity likewise are not "persons" under section 1983 because they assume the identity of the government that employs them. That is, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office," Will, 491 U.S. at 71, 109 S.Ct. at 2311, and therefore is "no different from a suit against the State itself," id. This broad language, however, means only that a suit cannot be brought against the officer, in his or her official capacity, for money damages to be paid by the state treasury. The Court explained in Will that "a State official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'" Id. at 71 n. 10, 109 S.Ct. at 2311 n. 10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985)). State officers also may be held personally liable for money damages under section 1983 based upon actions taken in their official capacities. Hafer v. Melo, ___ U.S. ___, 112 S.Ct. 358, 360, 116 L.Ed.2d 301 (1991).

The plaintiffs urge that Will cannot and should not be read to exclude suit against a...