Opinion
Case No. 2:04cv78.
September 29, 2006
OPINION AND ORDER
Before the Court are the following:
1. The April 6, 2005 Motion of Plaintiffs Jay Mitchell and Frances Arledge, as Executor and Executrix of the Estate of Daniel Mitchell (hereinafter collectively "Plaintiffs") for Partial Summary Judgment (Doc. 45). Defendants Franklin County Children Services Board, Franklin County, John Saros, Jessie Looser, Sarah Tornichio, and Dana Colon (hereinafter collectively "Defendants") filed a Memorandum Contra on April 27, 2005 (Doc. 51). Plaintiffs filed a Reply Memorandum on May 9, 2005 (Doc. 53).
2. The April 6, 2005 Motion of Defendants for Summary Judgment (Doc. 47). Plaintiffs filed a Memorandum Contra on May 2, 2005 (Doc. 52). Defendants filed a Reply Memorandum on May 16, 2005 (Doc. 54).
3. The September 26, 2005 Motion in Limine of Defendants (Doc. 70). Plaintiffs filed a Response on October 4, 2005 (Doc. 78).
4. The September 26, 2005 Motion in Limine of Defendants (Doc. 71). Plaintiffs filed a Response on October 4, 2005 (Doc. 78).
5. The September 26, 2005 Motion in Limine of Defendants (Doc. 72). Plaintiffs filed a Response on October 4, 2005 (Doc. 78).
6. The September 26, 2005 Motion in Limine of Defendants (Doc. 73). Plaintiffs filed a Response on October 4, 2005 (Doc. 78).
7. The September 26, 2005 Motion in Limine of Defendants (Doc. 74). Plaintiffs filed a Response on October 4, 2005 (Doc. 78).
8. The September 26, 2005 Motion in Limine of Defendants (Doc. 75). Plaintiffs filed a Response on October 4, 2005 (Doc. 78).
9. The September 26, 2005 Motion in Limine of Defendants (Doc. 76). Plaintiffs filed a Response on October 4, 2005 (Doc. 78).
10. The December 14, 2005 Motion of Defendants to Dismiss for Failure to Join a Party Under Rule 19 (Doc. 89). Plaintiffs filed a Memorandum Contra on December 28, 2005 (Doc. 90). Defendants filed a Reply Memorandum on January 10, 2006 (Doc. 94).
11. The January 9, 2006 Motion of Defendants for Reconsideration (Doc. 93) Plaintiffs filed a Memorandum Contra on January 19, 2006 (Doc. 95).
These matter are ripe for review. For the reasons stated herein, Plaintiffs' Motion for Partial Summary Judgment is DENIED and Defendants' Motion for Summary Judgment is GRANTED.
I. FACTS
Plaintiffs are the parents of Daniel Mitchell. At the time of the events described herein, Daniel was 15-years old (Depo. Mitchell, p. 12). In 1998, Plaintiffs separated and Ms. Arledge voluntarily agreed Mr. Mitchell would retain custody of Daniel ( Id., 55). Notwithstanding this agreement, Daniel lived with Ms. Arledge two years prior to October 21, 2002, at which time Daniel began living with Mr. Mitchell ( Id., p. 68; Depo. Arledge, p. 19).
Daniel committed juvenile offenses, resulting in him being placed on probation (Depo. Arledge, p. 11) On October 21, 2002, a hearing was scheduled for Daniel's probation violations. . At this hearing, Ms. Arledge testified she could no longer control Daniel and it would be better if he returned to his father ( Id. 33-34).
On October 23, 2002, Mr. Mitchell prepared to take Daniel to register for classes at Grove City High School (Depo. Mitchell, p. 96). Prior to leaving, Mr. Mitchell asked Daniel to remove his lip piercing ( Id.) Daniel refused and Mr. Mitchell attempted to remove it himself. Mr. Mitchell then called Franklin County Children Services (hereinafter "FCCS") for guidance with the situation ( Id., p. 99). A FCCS employee advised Mr. Mitchell to call the Grove City Police Department, which Mr. Mitchell did ( Id., p. 99, 101). However, prior to calling the police, Mr. Mitchell grabbed Daniel by his shirt, put him on the ground and sat on him ( Id., p. 106). When the police arrived, they arrested Mr. Mitchell for domestic violence ( Id.)
Upon Mr. Mitchell's arrest, the police transported Daniel to the FCCS intake center for placement (Depo. Looser, pp. 32, 98). Shelley Schalip (hereinafter "Schalip"), a lead screener for FCCS, completed an Intake/Emergency Referral Form for Daniel (Depo. Schalip, pp. 17, 19). In October, 2002, the screening process including a perpetrator check to determine whether the Mitchell family had a history with FCCS as well as a criminal background check for Franklin County (Id., pp. 28-29). The Mitchell family had a history ( Id., p. 34-35).
The Intake/Emergency Referral Form is completed based upon information from the police and the child (Depo. Schalip, pp. 20-21).
Ms. Schalip interviewed the Grove City police officers and learned Daniel wanted to live with either his mother or Stephen and Lena Powers ( Id. p. 21). Ms. Schalip decided Daniel should be transferred to the FCCS investigative unit for an interview with caseworkers ( Id., p. 45). She did not contact Ms. Arledge ( Id., p. 45).
Dana Colon, the supervisor in the investigative unit, assigned Daniel's case to investigative caseworkers Sarah Tornichio and Jesse Looser (Depo. of Colon, pp. 27-29). Mr. Looser acted as Ms. Tornichio's mentor as it was her first referral (Depo. Looser, p. 31; Depo. Tornichio, pp. 37, 54).
Ms. Tornichio and Mr. Looser conducted an interview with Daniel on October 23, 2002 (Doc. 45, Exh. C). During the interview, they questioned Daniel regarding the incident with his father and asked him with whom he could live ( Id.). Daniel provided Mr. Powers' name ( Id.).
Prior to meeting with Daniel, Mr. Looser contacted Mr. Powers to determine whether he would allow Daniel to stay in his home (Doc. 45, Exh. D). Mr. Powers informed Mr. Looser he would allow Daniel to stay in his home and gave Mr. Looser directions to his home in Lockbourne, Pickaway County, Ohio ( Id.). Mr. Looser also contacted Pickaway County Children's Services (hereinafter "PCCS") to determine whether the agency had any history of Stephen or Lena Powers being alleged child abuse perpetrators. Laynie Stully, an PCCS employee, notified Mr. Looser that the Powers did not have a history acting as a foster parent or as a parent with the agency ( Id.). Ms. Stully informed Mr. Looser that Susan Wears, Daniel's probation officer, wanted to speak to FCCS about Daniel ( Id.).
On October 23, 2002, Mr. Looser spoke with Ms. Wears who voiced her concern about placing Daniel with the Powers ( Id.). She informed Mr. Looser that Mr. Powers was not Daniel's relatives ( Id.). She indicated that whenever there was a concern with his parents, Daniel went to Mr. Powers ( Id.). Ms. Wears told Mr. Looser she did not think it was a wise decision to place Daniel with Mr. Powers ( Id.).
Daniel's placement with the Powers was subsequently approved by Ms. Colon. Mr. Looser and Ms. Tornichio transported Daniel to the Powers' residence in the afternoon of October 23, 2002. Plaintiffs were not contacted prior to Daniel's placement with the Powers to obtain their approval for the placement (Depo Looser, p. 46).
Upon arriving at the home, Ms. Tornichio was responsible for completing the Initial Home Review (hereinafter "Review") (Depo. Tornichio, p. 129). However, the Review was only partially completed, with the questions regarding whether any household members had criminal charges or convictions being left blank (Doc. 45, Exh. I). Further, while the Review required Ms. Tornichio to verify that any firearms were stored, inoperable, locked and that ammunition was stored separately and also locked, ( Id.), which Ms. Tornichio marked "OK", she failed to look at the gun or the ammunition to verify this information (Depo. Tornichio, p. 117).
Unknown to Defendants, at the time of Daniel's placement with the Powers, Mr. Powers was on probation for aggravated menacing (Doc. 45, Exh. G). Specifically, on September 17, 2002, witnesses observed Mr. Powers carry a shotgun out of his home and discharge the weapon in the direction of unknown suspects ( Id.).
On October 24, 2002, Ms. Wears contacted Ms. Tornichio a couple times to again express concern regarding Daniel's placement (Doc. 45, Exh. C). She indicated that Daniel gets his drugs from the trailer park and that Franklin County was placing him in a drug infested trailer park ( Id., Depo. Wears, p. 21). Additionally, she informed Ms. Tornichio that Ms. Arledge was upset with the placement as Daniel was placed with strangers and not her (Doc. 45, Exh. C). Ms. Wears indicated to Ms. Tornichio that Ms. Arledge was never found to be unfit ( Id.).
At approximately 10:45 p.m. on October 24, 2002, while in the living room of the Powers' residence, Mr. Powers pointed a .357 Magnum at Daniel's head and said, "Loaded or unloaded?" (Aff., Charlie Neff, ¶ 21). Mr. Powers then pulled the trigger and shot Daniel in the middle of his forehead (Doc. 45, Exh. M). Ms. Powers and Charlie Neff were present when the shooting occurred (Aff. Neff, ¶ 18-22). Daniel died at 11:36 p.m. as a result of the gunshot wound to his head. (Doc. 45, Exh. O) Mr. Powers was sentenced to ten years for manslaughter.
Plaintiffs filed the instant action on January 30, 2004 (Doc. 1). They assert the following claims: 42 U.S.C. § 1983 42 U.S.C. § 1983 42 U.S.C. § 1983 42 U.S.C. § 1983 42 U.S.C. § 1983 42 U.S.C. § 1983 2744.02
• First Claim: Violations of by FCCSB and Caseworkers — State Custody; • Second Claim: Violations of by FCCSB and Caseworkers — State Created Danger; • Third Claim: Violations of by Stephen and Lena Powers — State Custody; • Fourth Claim: Violations of by Stephen and Lena Powers — State Created Danger; • Fifth Claim: Violations of by County, FCCSB, Caseworkers and Saros — Failure to Train; • Sixth Claim: Violations of by County, FCCSB, Caseworkers and Saros — Unconstitutional Policy/Custom; • Seventh Claim: Vicarious Liability, pursuant to O.R.C. § (B)(4), of County and FCCSB; • Eighth Claim: Non-delegable Duty of County and FCCSB; and • Ninth Claim: Survivor Action Against all Defendants. II. ANALYSIS A. Summary Judgment StandardSummary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56©. The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The mere existence of a scintilla of evidence to support the non-moving party's position will be insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the non-moving party. Id. at 252. B. 42 U.S.C. § 1983
42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
§ 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere. Tuttle v. Oklahoma City, 471 U.S. 808 (1985). § 1983 has two basic requirements: (1) state action that (2) deprived an individual of federal statutory or constitutional rights. Flint v. Kentucky Dept. of Corrections, 270 F.3d 340, 351 (6th Cir. 2001), citing, Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) and United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992).
1. State Action: State Custody and State Created Danger
Defendants argue that it is undisputed that a private actor killed Daniel. As such, Defendants contend it is well-settled that a substantive due process claim cannot be maintained for a state actor's failure to protect an individual from private acts of violence. Defendants assert that Daniel's killer was engaged in a purely private act of violence and torment and they in no way participated in, ratified, directed, or otherwise sanctioned these actions and, given that the Constitution does not require the State to protect an individual from purely private violence, the Plaintiffs' Fourteenth Amendment claim fails as a matter of law.
In response, Plaintiffs argue a state may be held liable in instances where the state created a dangerous situation or rendered citizens more vulnerable to danger. As such, Plaintiffs contend they do not have to prove that the Defendants were the actual tortfeasor, but rather, that FCCS and its employees placed Daniel in a position of danger from a private person, such as Mr. Powers, and did not adequately protect him.
Plaintiffs contend Defendants violated Daniel's right not to be deprived of life without substantive due process, as secured by the Fourteenth Amendment's Due Process Clause. "It goes without saying that an individual's `interest in preserving her life is one of constitutional dimension.'" Kallstrom v. City of Columbus, 136 F.3d 1055, 1063 (6th Cir. 1998), quoting Nishiyama v. Dickson County, 814 F.2d 277, 280 (6th Cir. 1987) (en banc). As such, Plaintiffs establish one element of their § 1983 claims, deprivation of a right secured by the Constitution or laws of the United States. Thus, at issue is whether Defendants affirmatively acted to cause the deprivation.
The Due Process Clause of the Fourteenth Amendment does not impose upon the state an affirmative duty to protect its citizens against private acts of violence, but rather, places limitations on affirmative state action that denies life, liberty, or property without due process of law. See DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 195 (1989). In DeShaney, the Supreme Court stated that the Due Process Clause imposed an affirmative duty to protect an individual against private acts of violence where a "special relationship" exists between the state and the private individual, such as when the state takes a person into its custody. Id. at 199-201. Applying this principle to the facts in DeShaney, the Supreme Court did not find a due process violation where a young child, Joshua DeShaney, suffered serious harm at the hands of his father after the state failed to remove the child from the father's custody. Id. at 201.
However, the DeShaney court left open the possibility that the state may be liable for private acts which violate constitutionally protected rights despite the absence of a special relationship. The Supreme Court stated that, "while the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." Id. at 201. Therefore "while the state generally does not shoulder an affirmative duty to protect its citizens from private acts of violence, it may not cause or greatly increase the risk of harm to its citizens without due process of law through its own affirmative acts." Kallstrom, 136 F.3d at 1066.
Two exceptions to DeShaney's general rule have developed. One exception occurs when the state has established a "special relationship" with an individual, for example, the state has custody of the individual. Meador v. Cabinet for Human Resources, 902 F.2d 474, 476 (6th Cir. 1990); Ewolski v. City of Brunswick, 287 F.3d 492, 509 (6th Cir. 2002). The other exception, state created danger, arises when affirmative acts of the state create or increase the risk of exposing an individual to private acts of violence, which do not affect the general public. Kallstrom, at 1066.
However, "[t]he due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." Ewolski, 287 F.3d at 510. Instead, the plaintiff "must demonstrate that the state acted with the requisite culpability to establish a substantive due process violation under the Fourteenth Amendment." Id.. The government's conduct must be "so `egregious' that it can be said to be `arbitrary in the constitutional sense,'" but the standard is "`no calibrated yard stick.'" Id., quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 847, (1998). "The guiding principle seems to be that a deliberate-indifference standard is appropriate in `settings [that] provide the opportunity for reflection and unhurried judgments,' but that a higher bar may be necessary when opportunities for reasoned deliberation are not present." Bukowski v. City of Akron, 326 F.3d 702, 710 (6th Cir. 2003, quoting Ewolski, 287 F.3d at 511 n. 5.
In defining deliberate indifference, the Sixth Circuit equates it with subjective recklessness, which "requires the § 1983 plaintiff to show that the state `official knows of and disregards an excessive risk to the victim's health or safety.'" Ewolski, 287 F.3d at 513, quoting Farmer v. Brennan, 511 U.S. 825, 837(1994). Thus "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference," Sperle v. Mich. Dep't of Corr., 297 F.3d 483, 493 (6th Cir. 2002), quoting Farmer at 837. Once the inference is drawn, "the official must act or fail to act in a manner demonstrating `reckless or callous indifference' toward the individual's rights.'" Ewolski, at 513, quoting Landol-Riveria v. Cruz Cosme, 906 F.2d 791, 797 (1st Cir. 1990). Subjective recklessness can "be proven circumstantially by evidence showing that the risk was so obvious that the official had to have known about it." Bukowski, 326 F.3d at 710, citing Ewolski at 513 n. 7.
The Court will focus on the requisite degree of culpability as it is the unmistakable flaw of Plaintiffs state custody and state created danger claims. In so doing, the Court expresses no opinion as to whether Defendants established a "special relationship" with Daniel or whether Defendants affirmative acts created or increased the risk of exposing Daniel to private acts of violence.
In this matter, deliberate indifference is the appropriate standard because Defendants were able to consider and deliberate before deciding to place Daniel with the Powers. The evidence does not portray a situation where reasonable deliberation was not possible. To echo the Sixth Circuit in McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006), while Public Children Services Agencies are busy and stressful places, the Defendants were not required to make a split-second decision as to Daniel's placement which merits the application of a higher standard. See Ewolski, 287 F.3d at 511 (discussing Lewis, in which the Supreme Court required a showing of malice and intent to harm for police involved in a high-speed vehicle chase, and Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000), in which we required a showing that the police acted "maliciously and sadistically for the very purpose of causing harm" in the context of a shootout, id. at 359).
Plaintiffs argue Defendants acted with deliberate indifference as they failed to:
• comply with Ohio law in placing Daniel;
• properly investigate the placement of Daniel with the Powers;
• investigate the concerns of Ms. Wears;
• properly train their employees; and
• properly implement the written and verbal FCCS policy.
The Court notes a misrepresentation of Ms. Wears deposition testimony in Plaintiffs' Partial Motion for Summary Judgment. Specifically, on page 10, Plaintiffs state "Susan Wears also stated tat the Powers residence was a `drug-infested trailer'" and cite to page 17, lines 14-20 of her deposition. However, Ms. Wears' deposition testimony states as follows:
Q.[Plaintiffs' counsel]: It was with regard to your concern of the placement in that trailer park and with Mr. Powers?
A.[Susan Wears]: Yes.
Q. And then the notes from Sarah at 10:10 you left a voice mail for her and per Sarah it states that Susan also stated that it is our county, Franklin County, that is placing him back in a drug infested trailer, do you remember making that statement on a voice mail?
A. Drug infested trailer park.
Q. So you believe you made it quite clear to both Sarah and Jesse that Daniel had a drug problem before, that's why he was violated on probation and that you were concerned of them putting him back in the same trailer park that was quote, unquote, drug infested which was going to continue to cause problems for Daniel?
A. That's correct.
(Wears Depo., p. 21-22, emphasis added). As such, contrary to the impression and/or implication Plaintiffs attempt to make, Ms. Wears did not inform Defendants that the Powers' trailer was drug infested, but that the trailer park in which the Powers lived was drug infested.
To determine whether Plaintiffs have presented evidence sufficient to raise a genuine issue of material fact with respect to the requisite degree of culpability, the Court relies upon two recent cases for guidance. The first is McQueen.
In McQueen, a first grade boy, with a history of "sometime violent behavior", id. at 469, fatally shot his first-grade classmate. At the time of the shooting, the teacher had left the shooter, the victim and four other students in the classroom unsupervised while she escorted a group of students to computer class. Ms. McQueen, mother of the decedent, asserted a claim for § 1983 liability under the state-created-danger theory of due process liability.
The Sixth Circuit concluded Ms. McQueen failed to produce any evidence that the teacher acted with deliberate indifference and quoted the trial court's reasoning on this issue:
[A]lthough Judd [the teacher] was aware of [Smith's] [the shooter] disruptive and sometimes violent behavior, no reasonable fact finder could conclude that she knew [Smith] would use a gun to kill another student if left unsupervised for a few minutes. Plaintiff does not claim that [Smith] ever specifically threatened to kill or seriously injure decedent [Doe] or any other student. Nor does plaintiff claim that prior to February 29, 2000, [Smith] had ever brought a gun or other dangerous weapon to school. Absent such evidence, it is impossible to conclude that defendant was on notice of a substantial risk to the students left alone in the classroom.Id. at 469-470 (citation omitted). The McQueen court further reasoned in support of no evidence of deliberate indifference, that
McQueen has not alleged that Judd knew or even suspected that Smith had a gun, knife, or other similarly dangerous weapon with him on the day of the shooting, nor did Smith's history of behavioral problems suggest that he would escalate from hitting with fists, feet, and pencils to such weapons. Absent such evidence, McQueen cannot show that "the risk [of such a violent attack by Smith] was so obvious that [Judd] had to have known about it." Bukowski, 326 F.3d at 710. Therefore, McQueen has failed to raise a genuine issue of material fact as to state culpability.Id. at 470.
The second case is Waubanascum v. Shawano County, 416 F.3d 658 (7th Cir. 2005). In Waubanascum, Nahquaseh Waubanascum brought § 1983 claims against Shawano County, alleging the county deprived him of substantive due process when it issued a "courtesy" foster case license to Mark Fry.
Menominee County had custody of Nahquaseh, however, Mr. Fry's residence was located in Shawano County., As such, Mr. Fry submitted his foster care application to Menominee County.
Nahquaseh was placed in the foster home of Mr. Fry, who subsequently sexually abused Nahquaseh on a number of occasions. Upon informing one of the social workers about the acts of sexual abuse, Nahquaseh was removed from Mr. Fry's home. It was only after Nahquaseh's removal that Mr. Fry's criminal history and past bizarre behavior while residing in Illinois come to light. It was later discovered that the Wisconsin Department of Justice criminal background check of Mr. Fry was limited to criminal activity in Wisconsin.
Nahquaseh was placed with Mr. Fry before the criminal background check was completed.
In determining whether Shawano County exhibited deliberate indifference, the Waubanascum court held "the state must have actual knowledge or suspicion of the risk of harm the child may suffer while in foster case." Id. at 666-667. Nahquaseh argued that Shawano County showed deliberate indifference by its long-standing policy of granting courtesy licenses without conducting investigations of the applications. In rejecting this argument, the Waubanascum court reasoned:
[Nahquaseh's] argument misstates the legal standard, because it sidesteps the requirement that there be knowledge or suspicion of actual risk and substitutes the possibility of risk arising from the county's custom. Undoubtedly, foster children would be exposed to a heightened degree of risk if foster license applicants were subjected to no background check at all. We may assume that it is this very concern that underlies Wisconsin's laws and regulations requiring such background checks before a foster license may be granted. But a failure to abide by a general statutory requirement for background checks cannot substitute for the requirement of actual knowledge or suspicion in the foster home context.Id. at 667.
Turning to the case at bar, the Court concludes Plaintiffs fail to present any evidence, direct or circumstantial, which would establish Defendants were aware of facts regarding Mr. Powers from which the inference could be drawn that a substantial risk of serious harm to Daniel existed and that Defendants drew the inference. Plaintiffs have not alleged that Defendants knew or suspected that Mr. Powers played this dangerous/deadly gun "game" with Daniel or any other person. Moreover, it is undisputed that Defendants were unaware of Mr. Powers' criminal menacing conviction. Thus, Defendants were unable to know or suspect that Mr. Powers may use his gun in a dangerous manner. Further, while Defendants were aware Mr. Powers owned a gun, there is no evidence that Defendants knew or suspected he would use it to engage in a senseless "game" with such tragic results. In short, there is no evidence that Defendants had any knowledge or suspicion with respect to Mr. Powers behavior or activities which suggested he would aim a .357 Magnum, say "loaded or unloaded" and shoot Daniel in the forehead. Further, even knowledge of Mr. Powers' criminal menacing conviction, which the Court recognizes would have prevented Daniel's placement with Mr. Powers, would not suggest to Defendants that Mr. Powers would engage in such bizarre and tragic behavior. As stated in McQueen, absent such evidence, Defendants cannot show that "the risk [of such a violent act by Mr. Powers] was so obvious that [Defendants] had to have known about it." At 470, citing Bukowski, 326 F.3d at 710.
Furthermore, as did the plaintiff in Waubanascum, Plaintiffs attempt an end run around the requirement that Defendants knew or suspected that Mr. Powers would physically harm Daniel by focusing on Defendants alleged failures to comply with Ohio state statutes and agency policies and/or customs. Plaintiffs try to infer knowledge of Mr. Powers' behavior upon Defendants from these alleged failures, arguing that but for these failures, Defendants would have known and would not have placed Daniel with the Powers. However, the alleged failure to comply with the statutes and policies and/or customs did not provide the requisite level of knowledge to impose liability. To the contrary, by allegedly failing to comply with statutory requirements, Defendants were unaware of facts from which the inference could be drawn that a substantial risk of serious harm existed to Daniel. "A court must be careful to avoid transposing allegations of negligence and nonfeasance into affirmative action. To do so would, in practice, overturn DeShaney." Hilbert S. v. County of Tioga, 2005 U.S. Dist. Lexis 29423 (N.D.N.Y. June 21, 2005) Thus, as in Waubanascum, the alleged failure to abide by statutory requirements and agency policies and/or customs cannot substitute for the requirement of actual knowledge or suspicion.
Finally, contrary to Plaintiffs' argument, Defendants alleged failure to investigate Ms. Wears' concerns regarding Daniel's placement, specifically, that the Powers' trailer home was located in a drug infested trailer park, is not evidence of deliberate indifference. In making this argument, Plaintiffs rely upon Nishiyama, 814 F.2d 277 (6th Cir. 1987). However, an examination of the facts accepted as true by the Nishiyama court clearly reveals Plaintiffs reliance is misplaced:
. . . [A]t about 8:30 p.m. on November 16, 1981, Kathy Nishiyama was driving on Lafayette Road in Montgomery County, Tennessee. She responded to the signals of a Dickson County Sheriff's Department patrol car that directed her to pull over to the side of the road. When she did, Charles Hartman, the patrol car's sole occupant, approached her and beat her to death.
Hartman, a convicted felon and an inmate in the custody of the Dickson County Sheriff's Department, was operating the patrol car with the permission and authorization of defendants Sheriff Doyle Wall and Deputy Sheriff Carroll Fiser. These defendants had placed Hartman on "trusty" status following his transfer from state custody to the Dickson County Jail. They were also on notice that Hartman was dangerous and had assaulted a young woman in the past.
Sheriff Wall and Deputy Sheriff Fiser had a policy and practice of several months standing which allowed Hartman to have unsupervised use of Dickson County patrol cars equipped with standard blue flashing lights and official identifying markings. Hartman used the cars to perform official and personal tasks for the two officers and personal tasks for himself. A Dickson County grand jury eventually investigated this policy and recommended that it cease.
On the night of the murder, Hartman drove Deputy Fiser from the jail to Fiser's farm. After arriving, Fiser told Hartman to drive the fully-equipped and clearly marked patrol car back to the jail. From this point onward, he had full unsupervised possession of the car. He then began roaming the highways of Dickson, Houston, and Montgomery Counties, and stopped several motorists by flashing the patrol car's blue lights. When Montgomery County officials learned that a Dickson County Sheriff's car was stopping motorists in their county, they notified the Dickson County dispatcher, who in turn notified Wall and Fiser. Wall and Fiser did nothing. Not until ten hours after he had left the jail did Hartman finally return.Id. at 279. In Nishiyama, Deputies Fiser and Houston were on notice that Mr. Hartman, a convicted felon, may have been improperly using the patrol car. As succinctly stated by the Sixth Circuit, "After they learned their patrol car was being used to stop motorists, the risk ceased to be speculative. Undeniably, there was a high probability of harm resulting from the fact that Hartman, a convicted felon entrusted to their custody, was allowed unsupervised use of an official patrol car." Id. at 282.
In contrast, the warning from Ms. Wears did not convey the specific and timely/present/in the moment risk of harm which the dispatcher's calls did in Nishiyama. Ms. Wears stated Daniel was being placed in a "drug infested trailer park" not that the Powers' trailer home was "drug infested." She did not warn of a particular individual or group of individuals in the trailer park from whom Daniel was receiving/purchasing drugs. Moreover, she did not warn that the Powers were providing drugs to Daniel or knowingly allowing him to use drugs. As such, Mrs. Wears warning was not of a specific and time-sensitive nature. Instead, it was a general concern without any direct connection of harm to Daniel. As such, Defendants alleged failure to follow-up on Ms. Wears' warning does not amount to deliberate indifference.
Therefore, Plaintiffs do not raise a genuine issue of material fact as to state culpability and their claim for § 1983 liability under either the state custody theory or state-created-danger theory of due process liability fails.
2. Policies and/or Customs
Defendants maintain for a county to be held liable pursuant to § 1983 the alleged injuries must result from the execution of an official government policy or custom. Defendants assert Plaintiffs are unable to point to any policy or custom of the Franklin County defendants to place children in unsafe environments. To the contrary, Defendants allege the testimony reveals FCCS workers were trained to make safe placements and followed that training in reviewing the Powers' home and making the temporary placement. Further, Defendants assert there is no evidence which shows that a policy or custom of the Defendants was the moving force behind Daniel's death. Instead, Defendants argue it was the unforeseeable and criminal act of a third party, in shooting Daniel, which caused his death, not any policy or custom on the part of the Defendants.
In response, Plaintiffs argue Defendants implemented and/or allowed policies and customs to be utilized by FCCS and government agencies which were unconstitutional pursuant to § 1983. Plaintiffs assert that, at the time of Daniel's death, FCCS and its employees operated according to customs which violated Ohio law. Plaintiffs contend the deficiencies in FCCS' policies and procedures proximately caused the harm to Daniel.
For liability to attach, Plaintiffs must offer proof of a wrongful or injurious policy or custom on the part of the Defendants and a causal link between the policy or custom and their constitutional deprivation. City of Canton v. Harris, 489 U.S. 378, 385-86 (1989). A municipality cannot be sued on a respondeat superior basis. Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978). The municipality can only be liable if its policy or custom played a part in the alleged violation. Berry v. Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). A plaintiff must show that the city's policy, or lack of policy, was a "moving force" in the deprivation of the plaintiff's rights and arose from "deliberate indifference" to the plaintiff's rights. Doe v. Claibome County, Tennessee, 103 F.3d 495, 508 (6th Cir. 1996). As this Court has explained, "To show the existence of an offending custom or policy, plaintiffs must adduce specific facts supporting their claim; conclusory allegations are insufficient." Games Galore of Ohio, Inc. v. Masminster, 154 F.Supp.2d 1292, 1300 (S.D.Ohio 2001), citing, Taylor v. Canton Police Dep't, 544 F.Supp. 783 (N.D.Ohio 1982). `[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 US. 397, 410 (1997).
Plaintiffs fail to present specific facts of a custom or policy of Defendants which was a moving force in the deprivation of Daniel's life and arose from deliberate indifference to Daniel's rights. Further, the record is devoid of evidence indicating Defendant disregarded a known or obvious consequence of their actions. Instead, the record merely sets forth conclusory allegations that Defendants acted pursuant to customs which were contrary to Ohio law. However, this is insufficient to establish a wrongful or injurious policy or custom on the part of the Defendants and a causal link between the policy or custom and their constitutional deprivation. As stated previously, while Defendants actions, customs and policies may constitute negligence, they do not constitute deliberate indifference.
3. Failure to Train
Defendants argue Plaintiffs failure to train claim fails for a variety of reasons. First, Defendants allege for Plaintiffs to prevail, a constitutional violation must be established, which Defendants contend Plaintiffs did not suffer. Second, Defendants assert caseworkers were provided with adequate training under Ohio law as it existed in 2002. Third, Defendants maintain Plaintiffs are without evidence of any deliberate indifference on the part of Defendants. Specifically, Defendants argue Plaintiffs are unable to establish any "obvious need" for training as there is no evidence of a history of FCCS placements resulting in the deaths of children, much less a history of children dying due to gunshot inflicted by a third party. Finally, as previously stated, Defendants assert Plaintiffs cannot meet the causation element. Defendants maintain even if the training was inadequate, its alleged inadequacy was not the cause of Daniel's death; the actions of a private, criminally reckless third person caused Daniel's death.
In response, Plaintiffs allege Defendants simply detail the required training a caseworker must complete while failing to mention that Ms. Tornichio's training was not complete prior to being assigned Daniel's case. Additionally, Plaintiffs contend Defendants fail to address the many legal deficiencies of their training program. Finally, with respect to the causation argument, Plaintiffs maintain that if Defendants performed the proper check, they would not have legally been able to place Daniel with the Powers as the law prohibits the placement with a care giver who was convicted of aggravated menacing.
The Supreme Court holds that a municipality is liable when an employee is inadequately trained and a constitutional wrong results from the failure to train. Harris, 489 U.S. at 387 (1989). However, before liability is permitted under § 1983, the failure to train must "amount to deliberate indifference to the rights of persons with whom the [city employee] come[s] into contact." Id. at 388.
To meet this deliberate indifference standard, the failure to train must reflect a deliberate or conscious choice made by the municipality. Id. at 389. Liability cannot be imposed unless "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy makers of the city can reasonably be said to have been deliberately indifferent to the need." Id. at 390. The Sixth Circuit has held that a showing of deliberate indifference requires a showing of "something more culpable . . . than a negligent failure to recognize [a] high risk of harm." Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 912 (6th Cir. 1995), quoting Black v. Indiana Area Sch. Dist., 985 F.2d 707, 712-13 (3rd Cir. 1993); Stemler v. City of Florence, 126 F.3d 856, 867 (6th Cir. 1997) (holding that a showing of simple or even heightened negligence will not suffice). It is only upon this showing of deliberate indifference that "the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury." Harris, 489 U.S. at 390.
Plaintiffs' evidence fails to establish § 1983 liability based upon failure to train and does not demonstrate that Defendants acted with deliberate indifference. Instead, it establishes negligence. The training was not perfect, however, the evidence does not establish that the need for more or different training was so obvious to Defendants and the inadequacy so likely to result in the violation of constitutional rights of the children in Defendants' care. Thus, it cannot be held that Defendants were deliberately indifferent to the need for more or different training. Further, the record is devoid of a history of children physically harmed as a result of placements by Defendants. Instead, Plaintiffs present only Daniel's unfortunate and tragic situation. This is insufficient to establish a viable claim for failure to train. See Ronayne v. Ficano, 1999 U.S. App. Lexis 4579 (6th Cir. March 15, 1999).
Accordingly, construing the evidence most strongly in favor of Plaintiffs, the Court concludes a genuine issue of material fact does not exist and summary judgment is appropriate.
4. Qualified Immunity
Defendants argue they are entitled to qualified immunity as Plaintiffs are unable to demonstrate a clearly established right was violated. As the Court has determined Plaintiffs are unable to establish their § 1983 claims, the Court declines to examine the issue of whether Defendants are entitled to qualified immunity.
C. State Law Claims
Having determined that Plaintiffs' federal claims are subject to dismissal, the Court declines to exercise supplemental jurisdiction over Plaintiffs state law claims. 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). The Court will therefore dismiss Plaintiffs' state law claims without prejudice.
III. CONCLUSION
This was a difficult opinion for the Court to render. Daniel's death was senseless and tragic. Furthermore, the Defendants failed to perform to their best abilities. In short, they did not protect Daniel. Nonetheless, the evidence before this Court with respect to Defendants actions and failure to act, policies, customs and training regimen do not constitute deliberate indifference. As such, no matter how tragic and senseless Daniel's death, Plaintiffs are unable to hold Defendants liable under § 1983.
Accordingly, the April 6, 2005 Motion of Plaintiffs for Partial Summary Judgment (Doc. 45) is hereby DENIED; the April 6, 2005 Motion of Defendants for Summary Judgment (Doc. 47) is hereby GRANTED; The September 26, 2005 Motion in Limine of Defendants (Doc. 70) is hereby deemed MOOT; The September 26, 2005 Motion in Limine of Defendants (Doc. 71) is hereby deemed MOOT; The September 26, 2005 Motion in Limine of Defendants (Doc. 72) is hereby deemed MOOT; the September 26, 2005 Motion in Limine of Defendants (Doc. 73) is hereby deemed MOOT; the September 26, 2005 Motion in Limine of Defendants (Doc. 74) is hereby deemed MOOT; the September 26, 2005 Motion in Limine of Defendants (Doc. 75) is hereby deemed MOOT; the September 26, 2005 Motion in Limine of Defendants (Doc. 76) is hereby deemed MOOT; the December 14, 2005 Motion of Defendants to Dismiss for Failure to Join a Party Under Rule 19 (Doc. 89) is hereby deemed MOOT; the January 9, 2006 Motion of Defendants for Reconsideration (Doc. 93) is hereby deemed MOOT.
IT IS SO ORDERED.