Teresa T. v. Ragaglia
| Decision Date | 16 July 2001 |
| Docket Number | No. CIV.3:00CV1190(AVC).,CIV.3:00CV1190(AVC). |
| Citation | 154 F.Supp.2d 290 |
| Court | U.S. District Court — District of Connecticut |
| Parties | TERESA T. and Zazsheen P., minor children and Matthew T. Gilbride, Esq., PPA, Plaintiffs, v. Kristine D. RAGAGLIA, et al., Defendants. |
Raymond J. Rigat, Clinton, CT, for Plaintiffs.
Benjamin Zivyon, Atty. Gen. Office, Hartford,CT, for Defendants.
RULING ON THE DEFENDANTS' MOTIONS TO SUBSTITUTE AND TO DISMISS
This is an action for compensatory and punitive damages stemming from the fatal beating of an eight-month old baby that was witnessed by the two plaintiffs, Teresa T. and Zazsheen P. It is brought pursuant to 42 U.S.C. § 1983;1 article first, sections eight, nine and ten of the Connecticut constitution,2 and Conn. Gen.Stat. § 17a-101g.3 The plaintiffs, minor children who are presently in foster care in Connecticut, bring this action by their next of friend, Matthew T. Gilbride, an attorney licensed in Connecticut.
The nine-count amended complaint alleges that the defendants, Mary Ellen Tatten, Kenneth Mysogland, Joann Perry, Kenneth Armstrong and Marilyn Ortiz, (the "DCF defendants"), in their individual capacities, violated the plaintiffs' rights to due process and equal protection. The complaint alleges that the DCF defendants failed to seek an order of temporary custody when the plaintiffs were being abused by their father. In addition, the complaint alleges that the defendants, Dr. Robert Windom and the Hill Health Center, negligently and with deliberate indifference, failed to report the suspected child abuse of the plaintiff, Teresa T., pursuant to Connecticut statutory law.
The defendants, Windom and the Hill Health Center, bring the within motion for substitution of the United States of America for them as a defendant in this matter, and to dismiss the action against the United States pursuant to the Federally Supported Health Care Center Assistance Act, 42 U.S.C. § 233, and Fed.R.Civ.P. 12(b)(1). The DCF defendants bring the within motion to dismiss the action against them pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action.
The issues presented are: (1) whether the United States may be substituted as a defendant in this action pursuant to the Federally Supported Health Care Center Assistance Act; (2) whether the application of the Federally Supported Health Care Center Assistance Act in this case violates the Tenth Amendment; (3) whether the action against the substituted-defendant United States should be dismissed for failure of the plaintiffs to exhaust their administrative remedies; (4) whether the plaintiffs may assert a cause of action for the violation of their procedural due process rights caused by the defendants' failure to act under the Connecticut child protection statutes; and (5) whether the physical abuse of the plaintiffs by a parent constitutes slavery under the Thirteenth Amendment.
For the reasons that follow, the court concludes that: (1) the United States should be substituted as a defendant in this action under the provisions of the Federally Supported Health Care Center Assistance Act; (2) application of the Federally Supported Health Care Center Assistance Act in this case does not violate the Tenth Amendment; (3) the action against the substituted-defendant United States should be dismissed without prejudice for failure to exhaust administrative remedies; (4) the plaintiffs cannot bring a cause of action for violation of their procedural due process rights caused by the defendants' failure to report and investigate child abuse pursuant to Connecticut statutory law; and (5) the physical abuse of the plaintiffs by a parent is not a form of slavery or involuntary servitude under the Thirteenth Amendment.
Therefore, the motion of the defendants, Windom and the Hill Health Center, to substitute the United States as a defendant for them (document no. 34) is granted. The substituted-defendant United States' motion to dismiss the plaintiffs' action against it (document no. 34) is granted without prejudice to the plaintiffs' filing of an administrative action. The DCF defendants' motion to dismiss the complaint is granted to the extent that the complaint alleges violations of due process, and the fifth cause of action is dismissed in its entirety.
Examination of the amended complaint and supporting papers4 discloses the following relevant facts:
On October 24, 1996, one Annette Pompano, a nurse at the ACES school, contacted the department of children and families ("DCF") about a child, Teresa T. Teresa, who was twelve-years-old at that time, has autism and is nonverbal. Theresa T. had come to school that day with marks on her neck and had recently lost weight. That same afternoon, the defendant, Marilyn Ortiz, a DCF investigation worker, inspected the marks on Teresa's neck. She believed that the marks were old and noted that Teresa appeared very thin. Ortiz determined that Teresa T. and her family were in immediate need of DCF treatment services.
Ortiz and the defendant, Kenneth Armstrong, a DCF social worker trainee, visited Teresa's mother, Ms. G. Ms. G. denied that any of her three children were being abused. Ortiz attempted to complete a domestic violence and drug assessment of the family, but found Ms. G. to be evasive and uncooperative. Ms. G. refused to give any information regarding her children's fathers or to answer substance abuse screening questions.
On October 25, 1996, Ortiz spoke to one Tina Acompora, Theresa T.'s teacher, who reported that Teresa T. had been her student for approximately two years. Acompora reported that the marks on Teresa's neck that appeared on October 24th had not been there the day before. Acompora stated that Teresa came to school every day, was not a picky eater, and did not routinely scratch herself.
That same day, Ortiz spoke to Pompano, the school nurse, who confirmed that the marks on Teresa T.'s neck had not been there the day before. Pompano reported that the bruises were "pressure marks" and not scratches, which is why they may have looked old. The school nurse stated that as of her last physical in September 1995, Teresa T. was in the last 25 percentile with respect to her weight, but when she returned from summer vacation, she was in the last 10 percentile for weight. Pompano stated that Teresa ate breakfast, lunch and snacks at the school, and that the school sent food home with her.
On November 6, 1996, Teresa T.'s case was assigned to Armstrong. On November 15, 1996, Armstrong made an announced visit to Ms. G.'s residence. Ms. G. told Armstrong that her husband, Joseph P., lived at the home occasionally, but would not answer any questions about him. Ms. G. reported to Armstrong that there was no domestic violence occurring in her home.
On November 25, 1996, Armstrong visited Ms. G.'s home to meet with Joseph P. Joseph P., however, was not there and was reportedly in court. Ms. G. would not give Armstrong information on how to directly contact Joseph P. Armstrong told Ms. G. that he would make weekly visits to the home on Mondays at 4:00 p.m.
That same day, Armstrong visited Teresa T. and her teacher, Acompora, at the ACES school. Acompora had Teresa lift her pant leg to show Armstrong how thin her leg was. Acompora described Teresa T. as "always shoving her food in her mouth eating as if she thinks that someone might take the food away from her before she is finished." Acompora told Armstrong that the school fed Teresa T. double portions for breakfast and lunch. In addition, Acompora stated she was concerned that Teresa T. was losing her hair, that she came to school with body odor, and that she wore unclean undergarments which were not being changed. Acompora explained that the school sent home donated clothes with Teresa, but that Teresa did not wear them to school. Acompora expressed concerns about Teresa T. not starting her menstrual cycle and her being in need of a physical. Acompora further stated that the school was concerned about Joseph P. being in Ms. G.'s home because he had asked the school bus driver for money on several occasions.
On November 27, 1996, Ms. G. was evaluated for substance abuse at the APT Foundation in New Haven, Connecticut. The drug counselor, one Elaine Fagan, recommended that Ms. G. be evaluated psychologically and that she undergo hair follicle testing to assess possible substance abuse. Fagan asked to speak with Armstrong following her interview with Ms. G., but was told by Armstrong that he had a "hot" case on his hands. Fagan told Armstrong that Ms. G. was very angry during the interview and that she was concerned that there were other issues aside from drugs that were causing Ms. G's problems.
On December 3, 1996, Armstrong contacted one Edna Brown, an employee of the department of mental retardation, and learned that she had worked with Teresa T.'s family for approximately one year. On December 9, 1996, Armstrong went to Ms. G's house to meet with Ms. G., Joseph P. and Brown. Armstrong arrived to find a belligerent Joseph P. who was then loud and disruptive during the conversation.
On December 16, 1996, Armstrong received a call from Acompora at the ACES school. Acompora stated she was concerned about Teresa T.'s weight loss because she had lost an additional 6½ pounds since returning from Thanksgiving break. Later that afternoon, Armstrong made an unannounced visit to Ms. G.'s home. He checked the refrigerator and observed food in the home, but was unable to confirm that Ms. G. was actually feeding Teresa T. Armstrong observed that Ms. G.'s youngest child, Shedina P., wore a shirt that was damp with urine.
On December 20, 1996, Teresa T. received a full medical examination by the defendant, Dr. Windom, of the Hill Health Center in New Haven, Connecticut. The Hill Health Center is a community health center which receives federal assistance. On December 30, 1996, Armstrong contacted...
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