Taratyner v. Brunswick County Dep't Of Soc. Serv.

Decision Date02 March 2011
Docket NumberNo. 7:10-CV-00020-F,7:10-CV-00020-F
PartiesTARATYNER and ERIC WILLIAMSON, Plaintiff, v. BRUNSWICK COUNTY DEPARTMENT of SOCIAL SERVICES; NORTH CAROLINA DEPARTMENT OF HEALTH and HUMAN SERVICES; and JAMIE ORROCK, Defendants.
CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
ORDER

This matter is before the court on various motions, most of which been pending for some time. The North Carolina Department of Health and Human Services ("DHHS") filed a Motion to Dismiss [DE-16] in April 2010, and it was submitted for ruling to the undersigned the following month. The remainder of the motions [DE-36,-42,-46,-52], all of which concern proposed amendments to pleadings and/or deadlines, were referred to a Magistrate Judge as they became ripe.1 The court directed the Clerk of Court to submit all the above-referenced pending motions to the undersigned for ruling as a group.

OVERVIEW

According to the Complaint, Tara Tyner who is severely hearing-impaired is the mother of two minor children, NA and AT. Eric Williamson, also severely hearing-impaired, is Ms. Tyner's live-in boyfriend and is not the children's father. Plaintiff's claim, however, that Tyner, Williamson and Tyner's minor children live together as a family unit and that Williamson is a "caregiver" to the children. The Complaint alleges that Williamson agreed with Tyner to sharethe responsibilities for the care of Tyner's minor children "as if they were his own children, " but does not allege that Williamson has any legal relationship to, or responsibility for, the children.

According to the Complaint, Tyner's and Williamson's hearing impairments severely limit their ability to communicate in English only. They further allege that "ersons who are severely hearing impaired generally exhibit common and distinctive demeanor, conduct and mannerisms caused by or associated with their disability which, if recognized, explained and understood, signify no intent or propensity to inflict or cause any physical or psychological harm." Id. at ¶ 18. Although plaintiff's contend they both share this "behavioral demeanor, conduct and mannerisms, " they have not described it. Plaintiff's contend that American Sign Language ("ASL") is their primary language for communicating with others. See Complaint [DE-1], at ¶¶ 13-17.

One of the minor children had surgery in January 2008, and required round-the-clock in-home nursing services upon her discharge from the hospital. Although the Complaint does not allege who scheduled or financed the necessary nursing services, arrangements were made with Maxim Healthcare Services, Inc., to provide a nurse. That nurse was fired, however, after Williamson allegedly discovered her sleeping on the job. Someone then selected Assistedcare to provide home nursing services, and a different nurse was sent. In late February 2008, two other nurses from Assistedcare allegedly reported to their supervisor that Williamson had engaged in "certain behavior" toward one or both children and/or plaintiff Tyner. See id., at ¶¶ 28-30.

The nurses' reports caused the home nursing care supervisor to contact the Oak Island Police Department. Officer Cox attempted to obtain a warrant for Williamson's arrest but was unsuccessful based on the information provided to the magistrate. See id. at 32. At that point, the Brunswick County Department of Social Services ("DSS") allegedly was informed of the nurses' reports concerning Williamson. See id. at 33. On February 25, 2008, DSS social worker Gaynor and Oak Island Police Officer Cox purportedly entered the Tyner/Williamsonhome without prior notice or consent, searched the home and examined NA's body. See id. at ¶¶ 38, 39. Also on that date, plaintiff's allege DSS agent Gaynor "directed [Tyner] to send [Williamson] away from the family home to remain away indefinitely; call 911 if he should return;2 and threatened to remove [the minor children] from the family home if she failed or refused to do so. See id. at ¶¶ 38.

While the Complaint contends that none of Williamson's behavior was criminal or dangerous, the nurses' reports nevertheless purportedly generated a six-month DSS investigation (February 25, 2008, through August 21, 2008, the "Surveillance Period") that plaintiff's allege was intrusive and unfounded, and amounted to intentional discrimination against the plaintiff's because of their disabilities. The Complaint alleges that the plaintiff's repeatedly requested that DSS provide an ASL interpreter to facilitate their communication with DSS agents and that DSS consistently refused. Plaintiff's contend agents of DSS entered the family home without prior notice or consent on at least 19 separate occasions and confronted plaintiff's on at least nine additional occasions, during only one of which an ASL interpreter was present. See id. at ¶ 47.3

After the original (fired) home health nurse reported on August 14, 2008, that she saw Williamson jerk NA and throw him on the couch, 4 see id. at ¶ 66, DSS obtained a court order summarily removing NA and AT from the Tyner/Williamson home. See id., at ¶¶ 69-70.

Plaintiff's allege that DSS did not seek to interview either of them before applying for the court order. See id. at ¶ 70.

Tyner was represented by appointed counsel concerning post-removal proceedings. According to the Complaint, upon advice of counsel, Tyner "did not request an evidentiary hearing or otherwise oppose the entry of a Court Order on October 22, 2008, that the custody of the children should remain with DSS to be placed in the discretion of DSS." Id., at 73.

Plaintiffs' Complaint, filed 14 months later, alleges that beginning on February 25, 2008, DSS, its agents, "and those informing them" were fully aware of the plaintiffs' severe hearing impairments. See id. at ¶¶ 41, 51. Plaintiff contend they consistently and repeatedly requested that services of an ASL interpreter be provided by DSS to enable communication between plaintiff's and investigators, e.g., id. at ¶ 44, 52, but that DSS representatives expressly and repeatedly "refused to provide, and disclaimed any obligation to provide, the services of an ASL interpreter, " id. at ¶¶ 53, 54-56. For instance, the plaintiff's contend that throughout the Surveillance Period,

they and/or others acting on their behalf, made known to DSS: (a) the fact of their hearing impairments, (b) their inability to clearly understand the DSS representatives intervening in their lives, (c) the inability of DSS representatives to understand them, and (d) their consequent fears and frustration.

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[they] and through others on their behalf, requested the services of an ASL interpreter to enable and assure effective communication between them and DSS representatives.

Complaint [DE-1], at ¶¶ 51-52. Plaintiff's also allege that none of the defendants or their representatives or "those informing them" ever observed or located evidence of criminal conduct, harm or risk of harm on any person by Williamson, see id., at ¶ 35, 64, 65, 74.

Additionally, the Complaint alleges that DSS Director Jamie Orrock engaged in conduct intentionally depriving them of DSS programs or benefits, and that in his individual capacity, he intentionally inflicted emotional distress upon them. See id., at ¶¶ 54-56. They contend that DHHS was aware of and authorized the discriminatory conduct of its own agents, DSS Director Orrock, the DSS, and other DSS employees, all of which discriminatory conduct was intentional. See id., at ¶¶ 80-81.

Throughout the Complaint, the plaintiff's allege in various contexts that:

DSS representatives and persons informing them lacked the knowledge, skill and training to use or understand ASL or to interpret or understand either deaf culture or the behavioral demeanor, conduct and mannerisms common to persons with hearing impairment. Because the DSS representatives and person [sic] informing them lacked the knowledge, skill and training to use or understand ASL or to interpret and understand either deaf culture or the behavioral demeanor, conduct and mannerisms referred to above, the behavior and conduct of Tara and Eric, and the unverified reports thereof, were misinterpreted and misunderstood by DSS representatives and person [sic] informing them.

Id. at ¶¶ 57-58. The court perceives these allegations to extend, not just to the defendants, but also to the alleged conduct of the home nursing care employees and nurses predating DSS involvement and continuing thereafter. However, the court does not understand that by making these allegations plaintiff's seek to suggest an agency relationship between the defendants and the private home health care providers. Rather, the court reads these contentions as descriptive of the alleged unreliable and misinformed factual predicates for the defendants' launching and pursuing an abuse investigation. See, e.g., id., at ¶¶ 77 & 78 (alleging that Assistedcare nurses' reports to supervisors and Assistedcare's reports to DSS were inaccurate, misleading and based upon faulty observations and lack of effective communication because they were not trained or experienced in the deaf culture).

The Complaint purports to set forth three claims for recovery: Claim One seeks damages as against all three defendants on behalf of both plaintiff's pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (hereinafter "§ 504), see id., at ¶¶ 92-95; Claim Two seeks the same damages as Claim One pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq. (hereinafter "Title II"), see id., at ¶¶ 101-104; and Claim Three seeks compensatory and punitive damages on behalf of both plaintiff's against defendant Orrock in his individual capacity for common law tort[s] of intentional infliction of "gross insult, indignity andpersonal injury" and emotional distress, see id., at ¶¶ 107-110. It appears that plaintiff's do not include DSS or DHHS in Claim Three. The plaintiff's also seek a jury trial and...

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