Roe v. Hamilton County Dept. of Human Services

• Decision Date: 06 July 1988
• Docket Number: No. C-870506,C-870506
• Citation: 53 Ohio App.3d 120,560 N.E.2d 238
• Parties: ROE, A Minor, et al., Appellants, v. HAMILTON COUNTY DEPARTMENT OF HUMAN SERVICES et al., Appellees. *
• Court: Ohio Court of Appeals

Page 120

53 Ohio App.3d 120

560 N.E.2d 238

ROE, A Minor, et al., Appellants, v. HAMILTON COUNTY DEPARTMENT OF HUMAN SERVICES et al., Appellees. ^*

No. C-870506.

Court of Appeals of Ohio, First District, Hamilton County.

July 6, 1988.

Syllabus by the Court

1. A complaint alleging a Section 1983, Title 42, U.S. Code claim must meet two basic requirements. First, there must be an allegation that the act (or failure to act) was performed by someone under color of law. Second, the act (or failure to act) must have deprived the plaintiff of a federally protected right.

2. A federal Section 1983 claim may, in some cases, be predicated upon something less than intentional misconduct, such as an act that is substantially certain to produce harm regardless of the defendant's actual intent.

3. Immunity for the purpose of a federal Section 1983 claim is solely a question of federal law.

4. Government officials performing discretionary functions are shielded from liability for civil damages if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."

5. Whether immunity may be involved is a purely legal issue, properly determined by a court prior to trial and preferably on a motion for summary judgment.

Furer, Moskowitz & Mezibov and Marc D. Mezibov, Cincinnati, for appellants.

Dinsmore & Shohl, Rebecca Hanner White, Gary D. Bullock and Kathleen Kernan Bedree, Cincinnati, for appellees.

PER CURIAM.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County, Ohio.

Jane Roe and Sally Doe (appellants) are pseudonyms for two minor children who were placed in the custody of the Hamilton County Department of Human Services ("HCDHS") by order of the Juvenile Division of the Court of Common Pleas of Hamilton County. Each of the girls, through her next friend, filed a complaint against HCDHS; the Hamilton County Commissioners, individually (Joseph DeCourcy, Norman Murdock and Robert Taft II); Seth Staples, the Director of HCDHS; Gabriel Blumer, the Director of Allen House, the facility where the girls resided while under the care of HCDHS; and two unnamed employees of Allen House (collectively, "individual appellees"). The complaints alleged that the girls suffered injuries as a result of the negligence of the appellees, and that they were denied federally protected rights by state officials in violation of Section 1983, Title 42, U.S. Code. ¹ The cases were consolidated by the trial court pursuant to Civ.R. 42(A).

The facts alleged by the complaints are that on or about September 21, 1985, the two girls were in the exclusive care, custody and control of HCDHS pursuant to the order of the juvenile court. The girls, ages six and eight at that time, resided at Allen House, which is a facility operated by HCDHS to house dependent children. According to the complaints, the girls were permitted to leave the Allen House grounds unattended and unsupervised by a staff member or any other adult. The girls were then sexually assaulted by an individual unconnected with Allen House or HCDHS.

Count one of the complaint alleges a state-law tort claim. It contends appellees were negligent in failing to have proper safety measures in place at Allen House which would have prevented the girls from leaving the grounds unattended. Further, it is argued that this failure was the proximate cause of the injuries suffered by the girls when they were sexually assaulted.

Count two of the complaint alleges that the same lack of safety measures caused the girls to suffer a deprivation of their liberty interest in personal security without due process of law, in violation of the Fourteenth Amendment to the United States Constitution; that they were made to suffer cruel and unusual punishment in violation of the Eighth Amendment; and that they were denied their right to "family integrity" as guaranteed by the Ninth and Fourteenth Amendments.

Prior to filing their answer, appellees moved to dismiss count two in its entirety and to dismiss all of the claims against the individual appellees. Appellees argued that appellants had failed to state a claim upon which relief could be granted under Section 1983, Civ.R. 12(B)(6), and that the individual appellees were immune from suit. The trial court granted the motion and entered final judgment on those claims, finding that there was no just cause for delaying an appeal. Civ.R. 54(B). Accordingly, appellants perfected an appeal to this court.

In the first of their two assignments of error, appellants contend the trial court erred in dismissing the Section 1983 claim. Essentially, appellants claim that appellees' failure to have sufficient safety measures in place at Allen House was grossly negligent, wanton and reckless, and that their allegations were sufficient to state a Section 1983 claim upon which relief might have been granted.

It is important to keep in mind that the claims were dismissed for failure to state a claim pursuant to Civ.R. 12(B)(6). The Supreme Court of Ohio has held that a complaint should not be dismissed for failing to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, citing Conley v. Gibson (1957), 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. Further, in determining whether a motion to dismiss for failure to state a claim should be granted, the material allegations of the complaint are taken as admitted. State, ex rel. Alford, v. Willoughby Civil Service Comm. (1979), 58 Ohio St.2d 221, 12 O.O.3d 229, 390 N.E.2d 782.

Accordingly, this court must determine whether the allegations contained in the complaint constitute a "short and plain statement of the claim showing that the pleader is entitled to relief * * * " pursuant to Civ.R. 8(A). Wilson v. Riverside Hosp. (1985), 18 Ohio St.3d 8, 18 OBR 6, 479 N.E.2d 275. The purpose of the rule is to notify the defendant of the legal claim against him. Wilson, supra. Thus, in Border City S. & L. Assn. v. Moan (1984), 15 Ohio St.3d 65, 15 OBR 159, 472 N.E.2d 350, our Supreme Court reversed a Civ.R. 12(B)(6) dismissal of a malicious prosecution claim where the complaint alleged only that the defendant had intentionally inflicted harm on the plaintiff as a result of filing numerous lawsuits. While the court acknowledged that the plaintiff would have to prove during trial that the lawsuits were instituted maliciously, without probable cause and generally that the suits were terminated in plaintiff's favor, the complaint was not fatally defective because each element of the cause of action was not set forth with "crystalline specificity." Id. at 66, 15 OBR at 161, 472 N.E.2d at 352.

Motions to dismiss are viewed with disfavor by Ohio courts and are rarely granted. Wilson, supra. The general purpose is simply to provide notice, and the test is designed to be a difficult standard for movants to surmount. With this view in mind, we turn to the particular allegations of this complaint.

The critical portion of the complaint states as follows:

"On numerous occasions minors who are temporarily placed at the Allen House were permitted to leave the premises unattended and without supervision.

"Despite repeated instances of such 'walk aways' and disappearances of residents from the facility for both short (hours) and long (days) duration, and with the knowledge that such incidents were not isolated and posed substantial risk of harm to many if not all of the juveniles entrusted to the care, custody and control of the Allen House, Defendants failed to propose, adopt, effectuate or enforce measures which were likely to reasonably assure the residents' safety."

Further, the complaints averred that appellants' injuries were due to the "gross negligence, wantonness, and recklessness" of appellees.

A complaint alleging a Section 1983 claim must meet two basic requirements. First, there must be an allegation that the act (or failure to act) was performed by someone under color of law. Second, the act (or failure to act) must have deprived the plaintiff of a federally protected right. See Cooperman v. Univ. Surgical Assoc., Inc. (1987), 32 Ohio St.3d 191, 513 N.E.2d 288, citing Gomez v. Toledo (1980), 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572.

The complaints here in question sufficiently allege that the actions, the lack of proper security measures, were performed by individuals acting under color of law. It is not seriously contended that the alleged failures of the appellees, all state officials, were not performed according to their official functions. While the attacker was not a state employee, that is immaterial to the claims because of the close nexus between the alleged lack of proper security measures and the injuries.

The United States Supreme Court has specifically held that mere negligence on the part of state officials is not actionable in a Section 1983 claim as a denial of due process, stating that the Fourteenth Amendment's Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of life, liberty or property. Daniels v. Williams (1986), 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662. The court, however, specifically declined in Daniels, supra, to consider the question "whether something less than intentional conduct, such as recklessness or 'gross negligence,' is enough to trigger the protection of the Due Process Clause." Id. at 334, fn. 3, 106 S.Ct. at 666 fn. 3.

Appellants urge us to follow the decision in Nishiyama v. Dickson County (C.A.6, 1987), 814 F.2d 277, where the Sixth Circuit Court of Appeals, sitting en banc, held that gross negligence was sufficient to state a Section 1983 claim for a violation of the right to life contained in the Due Process Clause of the ...