Omar ex rel. Cannon v. Lindsey, No. 03-10594 Non-Argument Calendar.

• Decision Date: 26 June 2003
• Docket Number: No. 03-10594 Non-Argument Calendar.
• Citation: 334 F.3d 1246
• Parties: OMAR, by and through his next friend, Kevin CANNON, Plaintiff-Appellee, v. Joan LINDSEY, Gloria Babcock, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

334 F.3d 1246

OMAR, by and through his next friend, Kevin CANNON, Plaintiff-Appellee, v. Joan LINDSEY, Gloria Babcock, et al., Defendants-Appellants.

No. 03-10594 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 26, 2003.

Peter N. Smith, Gurney & Handley, P.A., Orlando, FL, for Defendants-Appellants.

Karen A. Gievers, Tallahassee, FL, Roy D. Wasson, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida (No. 02-01063-CV-ORL-19); Patricia C. Fawsett, Judge.

Before DUBINA, MARCUS and FAY, Circuit Judges.

PER CURIAM:

This is an interlocutory appeal from the denial of a motion to dismiss on the grounds of qualified immunity. The suit is filed on behalf of a child removed from his mother by personnel of the Florida Department of Children and Families. The complaint alleges constitutional violations under 42 U.S.C. § 1983 against these individuals. The gravamen of the allegations is that these individuals knowingly and deliberately ignored the physical, mental and emotional harm being caused this child by the intentional infliction of known cruel and unusual punishment that shocks the conscience of any reasonable person.

The ruling of the district court denying the motion to dismiss is affirmed for the reasons set forth in its ORDER of January 14, 2003 which is attached as an appendix.

APPENDIX

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

OMAR, by and through his next friend, Kevin CANNON, Plaintiff,

vs.

Joan LINDSEY, Gloria Babcock, Barbara Holmes, Doris Malave, Cindy Morales, Raul Morin Glane, Jr., Bruce Rowley, and Janice Yahnke, Defendants.

CASE NO. 6:02-CV-1063-ORL-.19KRS

ORDER

This case was considered by the Court on the following:

1. Defendants' Joan Lindsey, Gloria Babcock, Barbara Holmes, Doris Malave, Cindy Morales, Raul Moringlane, Jr., Bruce Rowley and Janice Yahnke Motion to Dismiss Plaintiffs Amended Complaint. Doc. No. 22;

2. Memorandum of Law in Support of Motion of Defendants Joan Lindsey, Gloria Babcock, Barbara Holmes, Doris Malave, Raul Moringlane, Jr., Bruce Rowley and Janice Yahnke to Dismiss Plaintiffs Amended Complaint. Doc. No. 23;

3. Plaintiffs Unopposed Motion for Enlargement of Time to respond to Defendants Motion to Dismiss. Doc. No. 26;

4. Plaintiffs Request for Oral Argument. Doc. No. 27:

5. Plaintiffs Motion in Opposition to Defendants' Motion to Dismiss Amended Complaint. Doc. No. 28.

Background

In his lengthy complaint, Plaintiff, a minor child, alleges that at age fourteen months he was placed in inappropriate foster care by Defendants, all of whom were at all relevant times employees of the State of Florida's Department of Children and Families ("DCAF"). He also alleges that Defendants permitted him to be adopted by an abusive parent. He claims that Defendants gross dereliction of duty as officers of the state resulted in a childhood of unremitting and intense abuse, often what can only be described as outright torture. Indeed, the complaint depicts plainly criminal maltreatment, from beatings to the unconscionable use of tear gas on children. Plaintiff has brought suit against Defendants in their individual capacities under the fourteenth amendment, arguing that they collectively violated his constitutional right to reasonably safe foster and adoptive care.

Standard of Review

For the purposes of a motion to dismiss, the Court must view the allegations of the complaint in the light most favorable to Plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir.1994); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Furthermore, the Court must limit its consideration to the pleadings and written instruments attached as exhibits thereto. Fed R. Civ. P. 10(c); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Analysis

1. Qualified Immunity

Defendants, all of whom are being sued in their individual capacities, raise the defense of qualified immunity. They aver that Plaintiff had no "clearly established" right to be free of the sort of abuse he endured because the only relevant foster care case, Taylor v. Ledbetter, 818 F.2d 791 (11th Cir.1987), concerned different, albeit similar, facts. Defendants contend, in other words, that they were on notice only that it is constitutionally wrongful to allow a foster mother to bludgeon her foster child into a permanent coma, which is what happened in Taylor. Taylor, they argue, did not forewarn them that they would be liable when, with deliberate indifference, they stood by while Plaintiff's foster mother whipped him, starved him, left him chronically dehydrated, gassed him with mace, neglected his severe illnesses (inflicted by her abuse), tied him up like a farm animal, and forced him to live squalidly in animal filth. In raising this defense, Defendants urge the Court to give qualified immunity doctrine its most expansive possible interpretation, arguing that civil servants will be unwilling to undertake their often difficult and vital work unless they have the protection of robust immunities. Doc. No. 23, 2.

The Supreme Court has held that a qualified immunity analysis consists of two distinct strands. First, the Court must evaluate the complaint to determine if its allegations, assuming they are true, plead a cognizable violation of the constitution.

See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If this is answered in the affirmative, the Court pursues the second inquiry, which is to determine whether the right in question was clearly established. Ibid. This is not, however, a broad rumination on the law. Instead, it is a careful examination of the facts at hand, one that asks "whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. See Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (stating that "the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.").

a. Was There A Constitutional Violation?

The pleadings do allege a constitutional violation.¹ There is no question that foster children have a fourteenth amendment liberty interest in physical safety, including a freedom from the sort of shocking abuse Plaintiff endured. See Taylor at 794-795. The facts of Taylor are similar to the allegations in the instant case. County and state officials removed a toddler from her natural parents and placed her with a foster mother. While in the foster home, however, the child was subjected to such merciless abuse at the hands of her guardian that she was left comatose. The Eleventh Circuit reasoned that foster care was analogous to involuntary custody in a state mental institution, which had previously been held by the Supreme Court to be a setting that implicates the fourteenth amendment. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). The maltreatment of a foster child, in other words, violates his or her constitutional rights if, had the maltreatment in question occurred in a traditional custodial context such as a prison or mental facility, it would have violated an inmate's rights. According to the complaint, Plaintiff was brutalized with, inter alia, beatings, persistent malnourishment, dehydration, neglected illness, mace, and being bound. The depravity of this abuse plainly brings Plaintiff's case within the ambit of the Taylor doctrine, and the Court concludes, therefore, that the complaint satisfactorily pleads a fourteenth amendment violation.

Liability will attach, however, only if the unconstitutional injuries were proximately caused by the deliberate indifference of officials to known risks. Omissions or nonfeasance, in other words, can only be the predicates for liability if officials fail with deliberate indifference to fulfil a statutory or other duty to act. Taylor at 796. The complaint in the instant case repeatedly alleges that Defendants knew that Plaintiff was being egregiously abused and time after time did nothing to rescue him.² Furthermore, contrary to Defendants contention, Plaintiff's complaint does not allege mere negligence, which, Defendants correctly point out, does not offend the Constitution. Instead, it adequately pleads the elements of deliberate indifference, as enunciated by McElligott v. Foley, 182 F.3d 1248 (11th Cir.1999). Assuming the facts in Plaintiff's complaint to be true, it is beyond doubt that the deliberate indifference of Defendants to Plaintiff's continuing peril was a proximate cause of his injuries, thereby transforming his foster mother's criminal abuse into a constitutional tort for which state actors may be held liable.

b. Was The Right In Question Clearly Established?

As suggested earlier, the mere fact that Taylor v. Ledbetter establishes that foster children have a liberty interest in being free of harsh abuse does not correlatively mean, with no further analysis, that this right was "clearly established" at the time in question.³ The Court must examine the complaint's factual allegations and determine whether reasonable officers in the position of Defendants would have understood that their conduct violated a clearly established right.

Defendants assert that they are entitled to qualified immunity unless the allegations in the instant case are essentially indistinguishable from the facts of Taylor. They contend that Eleventh Circuit decisional law has repeatedly emphasized that a government...