Olivia Y. ex rel. Johnson v. Barbour, No. CIV.A.3:04 CV 251LN.

Decision Date18 November 2004
Docket NumberNo. CIV.A.3:04 CV 251LN.
Citation351 F.Supp.2d 543
PartiesOLIVIA Y., By and Through Her Next Friend, James D. JOHNSON; Jamison, J., by and Through His Next Friend, Clara Lewis; Desiree, Renee, Tyson and Monique P., by and Through Their Next Friend, Sylvia Forster; John A., by and through His Next Friend, James D. Johnson; Cody B., by and through His Next Friend, Sharon Scott, Mary, Tom, Matthew and Dana W., by and Through Their Next Friend, Zeletra W.; and Sam H., by and Through His Next Friend, Yvette Bullock, on Their Own Behalf and on Behalf of Others Similarly Situated Plaintiffs v. Haley BARBOUR, as Governor of the State of Mississippi; Donald Taylor, as Executive Director of the Department of Human Services; and Billy Mangold, as Director of the Division of Family and Children's Services Defendants
CourtU.S. District Court — Southern District of Mississippi

Christian D. Carbone (PHV), Loeb & Loeb, LLP, New York, NY, W. Wayne Drinkwater, Jr., Bradley, Arant, Rose &amp White, LLP, Jackson, Corene Kendrick (PHV), Children's Rights, Inc., Susan Lambiase(PHV), Children's Rights, Inc., John F. Lang (PHV), Loeb & Loeb, LLP, New York, NY, Stephen H. Leech, Jr., Jackson, Marcia Robinson Lowry(PHV), Children's Rights, Inc, Eric C. Manne(PHV), Loeb & Loeb, LLP, New York, NY, Melody I. McAnally, Bradley, Arant, Rose & White, LLP, Jackson, Shirim Nothenberg(PHV), Children's Rights, Inc., Eric E. Thompson(PHV), Children's Rights, Inc., New York, NY, for Plaintiffs or Petitioners.

Amy Kebert Elder, McGlinchey Stafford, Betty A. Mallett, McGlinchey Stafford, Harold Edward Pizzetta, III, Office of the Attorney General, Samuel E. Scott, McGlinchey Stafford, Jackson, for Defendants or Respondents.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, Chief Judge.

This cause is before the court on the motion of defendants Haley Barbour, Governor of the State of Mississippi, Donald Taylor, Executive Director of the Department of Human Services, and Billy Mangold, Director of the Division of Family and Children's Services, to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs have responded to the motion and the court, having considered the memoranda of authorities submitted by the parties, concludes that defendants' motion should be granted in part and denied in part, as set forth herein.

Plaintiffs have brought this civil rights action pursuant to 42 U.S.C. § 1983 on behalf of Mississippi's abused and neglected children seeking declaratory and injunctive relief to compel defendants Haley Barbour, as Governor of the State of Mississippi, Donald Taylor, as Executive Director of State Department of Human Services, and Billy Mangold, as Director of the Division of Family and Children's Services, to meet their legal obligations to care for and protect these children. The named plaintiffs herein are thirteen children who allege they are being harmed by the collapse of Mississippi's child welfare system and who seek to represent two classes of Mississippi children, consisting of (1) all children who are or will be in the legal and/or physical custody of the Division of Family and Children's Services (DFCS) (referred to herein as the "In-Custody Class") and (2) all of those children who are not in DFCS custody, but have been or are at risk of being abused or neglected, and about whom Defendants have received a report of abuse or neglect (referred to as the "Protective Services Class").

Generally speaking, plaintiffs allege that Mississippi's child welfare system has systematically failed to meet its legal obligation to protect and care for all of the State's abused and neglected children, all as a result of gross mismanagement and underfunding of Mississippi's overburdened child welfare system. Plaintiffs charge, among other things, that Mississippi's child welfare system lacks a minimally adequate number of caseworkers and suitable foster care placements. As a result, reports of abuse or neglect are often never investigated so that children are left to languish in potentially dangerous environments. Abused and neglected children are often left to suffer in dangerous homes without the provision of oversight or services to ensure their safety, even when there is clear indication that a child is being maltreated. In many cases, children are diverted from the foster care system by being shuffled off to relatives who are unsuitable or unable to provide adequate care, again with no oversight or services provided to ensure their health and safety. In other cases, as a result of insufficient safe foster care placements, children are cycled through unsuitable foster care placements or institutions, where they are not regularly monitored. Plaintiffs charge that as a result of their failure to institute needed reforms to address and correct known and documented deficiencies in the system, defendants have condemned children to a child welfare system unable to meet their legal obligations to protect them. Plaintiffs thus bring causes of action against defendants under § 1983 for violation of their alleged procedural and substantive due process rights, of their rights to equal protection and their alleged rights under the Adoption Assistance and Child Welfare Act. Defendants maintain in their motion that each of these claims is due to be dismissed for failure to state a claim upon which relief can be granted. The court addresses plaintiffs' claims, and defendants' motion as it relates to them, seriatim.

Procedural Due Process:

The Protective Services Class claims a constitutionally protected interest "in having credible reports of maltreatment referred to Youth Court, as required by state law, and having the Youth Court make the final determination regarding the disposition of those reports." In their motion, defendants argue that these plaintiffs have no sustainable procedural due process claim because the state statute upon which they rely as the basis for their claimed interest merely prescribes procedures for investigating and referring reports of abuse and neglect and does not dictate a specific substantive outcome and hence does not create a constitutionally protected interest.

The principles upon which defendants' motion on this point is grounded were summarized by the court in Tony L. By and Through Simpson v. Childers, as follows:

State-created liberty interests arise when a state places "substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983); Kentucky Dep't of Corrections, 490 U.S. at 462, 109 S.Ct. at 1909-10[, 104 L.Ed.2d 506 (1989)]. A state substantively limits official discretion "by establishing `substantive predicates' to govern official decisionmaking... and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." Id. (citation omitted). The state statutes or regulations in question also must use "explicitly mandatory language" requiring a particular outcome if the articulated substantive predicates are present. Id. at 463, 109 S.Ct. at 1910.... Finally, the statute or regulation must require a particular substantive outcome. State-created procedural rights that do not guarantee a particular substantive outcome are not protected by the Fourteenth Amendment, even where such procedural rights are mandatory. Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir.1993) (holding that victim impact law, requiring prosecutor to give notice of trial or guilty plea entry to victim, does not create an interest protected by the Due Process Clause because it only creates expectation of process and not expectation of a particular substantive result), cert. denied, 512 U.S. 1237, 114 S.Ct. 2742, 129 L.Ed.2d 862 (1994).

71 F.3d 1182, 1185 (6th Cir.1995). The statute at issue in Tony L. provided that

[u]pon receipt of a report of an abused, neglected or dependent child pursuant to this chapter, the cabinet as the designated agency or its delegated representative shall initiate a prompt investigation take necessary action and shall offer protective services toward safeguarding the welfare of the child.

Id. (citation omitted). The court agreed with the plaintiffs not only that the language of the statute was "undoubtedly mandatory," but that it "mandate[d] action based upon substantive predicates." Id. at 1186. The court nonetheless concluded that the plaintiffs' claim of a state-created liberty interest failed "because no particular substantive outcome was mandated." Id. Rather, "[t]he requirement that an investigation be initiated only [gave] plaintiffs an expectation of receiving a certain process." Id. (citing Pusey, 11 F.3d at 656). And while the statute did require that the investigating agency take "necessary action" and to offer "protective services," it did not define these terms or set forth options available to the investigating agency:

It [did] not explain, for example, whether the Cabinet should take the child from the home, provide the parent with counseling, or simply monitor the family situation on a regular basis. Each of these actions, and a myriad other possibilities, appear[ed] to be a reasonable response to a report of child abuse. Yet, the Unified Juvenile Code does not specifically require the Cabinet to take any one of them. An expectation that some sort of action will be taken is not enough. Rather, a plaintiff must have an expectation that a particular result will follow from a particular, required action. This statute simply does not provide Plaintiffs with such an expectation.

Id. at 1186. See also Doe by Nelson v. Milwaukee County, 903 F.2d 499, 503 (7th Cir.1990)(holding that plaintiffs possessed no property interest in having the state's Department of Social Services undertake an investigation of a child abuse report because the statutes in question merely established "a set of procedures...

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