A.S. by and through Blalock v. Tellus
| Decision Date | 19 August 1998 |
| Docket Number | No. CIV.A. 96-1211-JTM.,CIV.A. 96-1211-JTM. |
| Citation | 22 F.Supp.2d 1217 |
| Parties | A.S., By and Through her guardians and next friends, Franklin Brent BLALOCK and Carrol Blalock, Plaintiff, v. Kathleen TELLUS, Barbara Clark, Gloria Markuly, Elaine Good, and Carmita Grayson, a/k/a/ Carmette Grayson, Defendants. |
| Court | U.S. District Court — District of Kansas |
Jack Focht, Foulston & Siefkin L.L.P., Wichita, KS, Stephen E. Robison, Lyndon W. Vix, John T. Steere, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, for Carrol Blalock.
Matthew W. Boddington, Michael George, Kansas Dept. of SRS, Topeka, KS, for Barbara Clark.
Donald A. Frigon, Frigon Law Firm, Dodge City, KS, Reid Stacey, Carl W. Ossmann, Social & Rehabilitation Services, Topeka, KS, Deborah Purce-Jones, Jones & Jones, Topeka, KS, Gregory A. Lee, Gehrt & Roberts, Chartered, Topeka, KS, for Kansas Dept. Social & Rehabilitation Services.
Donald A. Frigon, Frigon Law Firm, Dodge City, KS, Gregory A. Lee, Gehrt & Roberts, Chartered, Topeka, KS, for Kathleen Tellus.
Deborah Purce-Jones, Jones & Jones, Topeka, KS, for Gloria Markuly.
Gregory A. Lee, Gehrt & Roberts, Chartered, Topeka, KS, for Elaine Good.
Carl W. Ossmann, Social & Rehabilitation Services, Topeka, KS, for Carmita Grayson.
This is an action brought under 42 U.S.C. § 1983 in which plaintiff alleges defendants, all employees of Kansas Social and Rehabilitation Services ("SRS") wrongfully failed to remove her from the home of her mother, where she was physically and sexually abused by her father and her mother's subsequent boyfriend. The matter is before the court on the defendants' motions to dismiss and/or for summary judgment. (Doc's 141, 149, 201, 231 and 232). The court has reviewed the parties' submissions and the relevant law and is prepared to rule.
The following facts are undisputed or stated in the light most favorable to the plaintiff.1
The plaintiff, A.S., was born on April 21, 1985. Her parents are Brenda Summers and Rodney Summers. Brenda is mentally retarded, and Rodney is mentally limited. SRS received notice as early as 1985 that A.S. and her younger brother were being subjected to physical abuse by their parents. On June 2, 1987, a magistrate judge in Neosho County entered an order of informal supervision to be conducted by SRS. Brenda and Rodney retained custody of the two children.
Early in 1988, Rodney was charged in Neosho County with indecent liberties with a minor. The charge involved the sexual molestation of a young neighbor girl. After Rodney was charged, Brenda and the children moved to Wichita. The court in Neosho County issued an order continuing SRS supervision and transferring venue of the case to Sedgwick County.
On April 18, 1988, the Sedgwick County District Court ordered temporary custody of A.S. with SRS and continued informal supervision. The order provided in part that SRS was "granted permission to continue placement of said children in the home of Brenda Summers, mother, if such action is deemed to be appropriate." A.S. remained in the temporary custody of SRS until June 12, 1989.
On May 1988, Brenda told defendants Clark, Markuly and Tellus that she planned to reunite with Rodney, although she had already obtained a divorce. None of the defendants informed the court of this conversation. On June 30, another hearing was held, and the court ordered continued custody with SRS, with authority to place the children with Brenda. The order further provided that Brenda was to complete parenting classes, that visitation between Rodney and the children was to be supervised by SRS or a family member, and that marriage and/or family counseling would be required for Brenda and Rodney to reunite. Brenda and Rodney, as well as defendant Tellus, were present at the hearing.
In June 1988, Rodney moved in with Brenda and the children. None of the requirements established by the court had been met, and no attempt was made to have supervised visitation.2 On a number of occasions, defendants were made aware that Rodney was alone with the children, "babysitting" at various times. Defendant Clark observed A.S. repeatedly masturbating, a behavior she had not noticed before Rodney's return. None of the defendants took any steps to see that the court order of supervised visitation was followed, except Tellus told Rodney he must move out of the house within two weeks. Rodney did not move out of the house until October, after which he did not return. In November 1988, he was convicted of aggravated sexual battery in Neosho County and was incarcerated. Plaintiff contends that between June 1988 and October 1988, Rodney repeatedly sexually molested A.S.
In January 1989, an order was entered providing for continued temporary custody of A.S. and her brother with SRS and placement of the children with Brenda.
On January 23, 1989, Brenda informed defendant Clark that she had a new boyfriend, Norman Douglas. On March 20, 1989, Norman told defendant Tellus that he was taking care of the children. On March 22, 1989, A.S. told defendant Clark that Norman had hit her on the head. Clark saw Norman yell at A.S.'s brother and pull his right ear "very hard." The incident was recorded, but no action was taken. On April 17, 1989, A.S. told defendant Clark that "daddy" touched her "private." There is evidence that A.S. referred to both Norman and Rodney as "daddy," and she did not say which she meant. When Clark asked which daddy, Norman responded, "It was Rodney."
On May 19, 1989, A.S. was examined by Dr. Katherine Melhorn, a sexual abuse specialist. Dr. Melhorn noted a concern that "something recent may have been happening" because A.S. was having nightmares and exhibiting other behaviors indicative of sexual abuse despite having been away from Rodney for several months. The physical examination could neither confirm nor rule out sexual abuse, "but certainly could be consistent with fondling or other non-forceful penetration." Dr. Melhorn recommended following up on therapy.
On June 12, 1989, Brenda's mother took A.S. and her brother to live with her. A.S. has not lived with Brenda since that date. She is currently in the custody of her maternal grandfather, Franklin Brent Blalock and his wife, Carrol Blalock.
Plaintiff alleges she was repeatedly sexually and physically abused by Norman Douglas between and January and June 1989. Plaintiff contends that as a result of the physical and sexual abuse she suffered, she is severely emotionally disturbed and is a danger to herself and others. Plaintiff contends her damages are a result of defendants' failure to remove her from her mother's home before June 1989.
The standards governing the consideration of a motion for summary judgment are well established. The Federal Rules of Civil Procedure provide that summary judgment is appropriate when the documentary evidence filed with the motion "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A principal purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses ...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court's inquiry is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The court must enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact on its claim(s). Rule 56, however, imposes no requirement on the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. 477 U.S. at 323, 106 S.Ct. 2548 (emphasis in original). Once the moving party has properly supported its motion for summary judgment, the nonmoving party may not rest upon mere allegations or denials, but must set forth specific facts showing a genuine issue for trial, relying upon the types of evidentiary materials contemplated by Rule 56. Fed.R.Civ.P. 56(e). Each party must demonstrate to the court the existence of contested facts on each claim it will have to prove at trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The court reviews the evidence on summary judgment under the substantive law and based on the evidentiary burden the party will face at trial on the particular claim. Anderson, 477 U.S. at 254, 106 S.Ct. 2505.
Plaintiff seeks damages and injunctive relief under 42 U.S.C. § 1983, alleging that the defendants' failure to remove her from an abusive environment violated her substantive and procedural due process rights and other constitutional rights. She has brought suit against the defendants in the individual and official capacities. Plaintiff concedes that the Eleventh Amendment bars her damage claims against the defendants in their official capacities. Therefore the court grants summary judgment as to that portion of plaintiff's § 1983 claim.
Next, the individual defendants argue they are entitled to summary judgment because the plaintiff did not have a substantive due process right to protection from harm caused by third parties. The leading case in this area is DeShaney v. Winnebago Cty. Department of Soc. Serv's, 489...
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