Curry et al v. Kentucky Cabinet for Health and Family Services et al

Filing 15

MEMORANDUM OPINOIN AND ORDER by Judge Greg N. Stivers on 3/14/2018. Defendants' Motion to Dismiss (DN 4 ) is GRANTED, and Plaintiffs' claims against the Department, the Cabinet, and the Secretary are DISMISSED WITH PREJUDICE. Plaintiffs' claims against Childress, Furnish, and Hardin County Sheriff John Ward remain. cc: Counsel(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-00730-GNS

JOSIAH CURRY and HOLLY CURRY,
Individually and on Behalf of their Minor children,
V.C., R.C., Ad.C., C.C., H.C., and An.C.

PLAINTIFFS

v.

KENTUCKY CABINET FOR HEALTH
AND FAMILY SERVICES, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss (DN 4). For the
reasons set forth below, Defendants’ motion is GRANTED.
I.

BACKGROUND

Holly Curry (“Holly”) alleges that she left her six children alone in her vehicle for about
ten minutes on March 30, 2017.1 (Compl. ¶¶ 45-47). When she returned to her vehicle, police
officers approached and reprimanded Holly for her conduct.

(Compl. ¶ 53).

One officer

subsequently filed a JC-3 form with the Kentucky Department for Community Based Services,
Division of Protection and Permanency (“Department”), and, the next day, Jeanetta Childress
(“Childress”)—a social worker for the Department—visited the Curry residence to determine
whether Holly or Josiah had been neglecting their children.2 (Compl. ¶¶ 72-74, 76-79). Initially,

1

Josiah Curry (“Josiah”) is Holly’s husband and the father of her children. (Compl. ¶¶ 5-10, DN
1). The Court will refer to Holly, Josiah, and their six children collectively as “the Currys” or
“Plaintiffs.”
2
Law enforcement officers in Kentucky are required to file JC-3 forms in response to instances
of supposed abuse. KRS 209A.120. “If the JC-3 form . . . includes information of known or
1

Holly refused to let Childress inside,3 but Childress eventually gained entry by enlisting the help
of Hardin County Deputy Sheriff Michael Furnish (“Furnish”), who told Holly that he would
remove her children from her home if she did not let Childress enter. (Compl. ¶¶ 91-93, 96, 10408, 113, 121-23, 133-36). Once inside, Childress and Furnish strip-searched the Curry children
and collected personal information about them.4 (Compl. ¶¶ 155-238). Though the Department
found no evidence of abuse, the Department still possesses the personal information about the
Currys that Childress gathered through her investigation. (Compl. ¶ 234-38).
Plaintiffs subsequently brought suit against Defendants, arguing that Defendants used
unconstitutional procedures when investigating the Currys’ supposed instance of child abuse.5
(Compl. ¶¶ 1-3). Pertinently, Plaintiffs claim that 922 KAR 1:330 § 3(21)—a regulation that the
Secretary issued and that Childress utilized to access the Currys’ home—is unconstitutional
because it allows social workers to subvert the Fourth Amendment’s warrant requirement and
instead “request assistance . . . from law enforcement” to gain entry into a home whenever the
“parent . . . of [the] child refuses” to let the social worker in, regardless whether the social
worker or child is in danger. (Compl. ¶¶ 270-71). As a remedy, Plaintiffs seek a judgment
against the Cabinet, Department, and Secretary, declaring 922 KAR 1:330.3(21) unconstitutional
and requiring expunction of any personal information that the Department possesses about the
Currys as a result of Childress’ investigation. (Compl. ¶¶ 272, 276).

suspected child abuse . . . the form shall be forwarded to” the Kentucky Cabinet for Health and
Family Services (“the Cabinet”), an agency that encompasses the Department. See id.
3
Childress did not have a warrant to enter the Currys’ home. (Compl. ¶¶ 95-96).
4
The Complaint alleges that Childress gathered information about the Curry family’s religious
beliefs and medical histories. (Compl. ¶¶ 206-18).
5
Though the Complaint names six defendants, the claims at issue in the pending motion are
against only the Cabinet, the Department, and the Cabinet’s Secretary, Vickie Glisson
(“Secretary”). The Court will therefore use the term “Defendants” in this opinion to refer to
those three parties.
2

Defendants moved to dismiss Plaintiffs’ claims on the ground that this Court lacks
subject matter jurisdiction to hear them. (Defs.’ Mem. Supp. Mot. Dismiss, DN 4-1 [hereinafter
Defs.’ Mot. Dismiss]). Plaintiffs submitted a response to Defendants’ motion. (Pls.’ Mem. Law
Opp’n Mot. Dismiss 10, DN 2-10 [hereinafter Pls.’ Resp.]). At this juncture, the parties have
fully briefed Defendants’ Motion to Dismiss, and that motion is therefore ripe for adjudication.
II.

JURISDICTION

This action arises under the laws of the United States, and this Court has jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367.
III.

STANDARD OF REVIEW

The Court lacks subject matter jurisdiction over a claim (and the claim is subject to
dismissal) if the plaintiff fails to show that he has standing to bring it. Fed. R. Civ. P. 12(b)(1);
Ward v. Alt. Health Delivery Sys., Inc., 261 F.3d 624, 626 (6th Cir. 2001). In reviewing a motion
to dismiss for lack of subject matter jurisdiction, the court must find that the complaint plausibly
shows that: (1) the plaintiff has or imminently will suffer an injury, (2) the defendant caused the
injury, and (3) a judicial decision would redress the injury.6 Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992); White, 601 F.3d at 551-52 (citations omitted); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).

“General factual allegations of injury may suffice to demonstrate

standing,” but “standing cannot be inferred . . . from averments”—the facts establishing standing
must affirmatively appear in the pleadings. White, 601 F.3d at 551 (citation omitted).

6

As the Sixth Circuit has explained, Rule 12(b)(1) and Rule 12(b)(6) “motions to dismiss on the
pleadings . . . are often confused with each other.” RMI Titanium Co. v. Westinghouse Elec.
Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). But when, as here, Defendants’ motion to dismiss
under Rule 12(b)(1) attacks the facial validity of the Complaint during the pleading phase, the
applicable standard of review is the same as the standard of review used for motions to dismiss
brought under Rule 12(b)(6). White v. United States, 601 F.3d 545, 551 (6th Cir. 2010).
3

When the plaintiff relies on an allegation of future harm to establish the injury-in-fact
element of the standing requirement, he must plead facts sufficient to demonstrate that the
threatened injury is “certainly impending . . . .” White, 601 F.3d at 553 (citing Rosen v. Tenn.
Comm’r of Fin. & Admin., 288 F.3d 918, 929 (6th Cir. 2002))). A threatened injury is not
“certainly impending” if it is contingent on the occurrence of events, the incidence of which
“veer[] ’into the area of speculation and conjecture.’” Id. (quoting O’Shea v. Littleton, 414 U.S.
488, 497 (1974)).
IV.

DISCUSSION

To begin with, the Court lacks subject matter jurisdiction over Plaintiffs’ claims against
the Cabinet—a state agency—and the Department, a division thereof, because both of those
parties are entitled to Eleventh Amendment immunity. As this Court has recently explained:
“[u]nder the Eleventh Amendment to the United States Constitution, a state and its agencies may
not be sued in federal court, regardless of the relief sought, unless the state has waived its
immunity or Congress has expressly abrogated states’ immunity” via statute. See Fleet v. Ky.
Cabinet for Health & Family Servs., No. 3:15-CV-00476-JHM, 2016 WL 1241540, at *3 (W.D.
Ky. Mar. 28, 2016) (internal footnote omitted) (citations omitted)). Kentucky has not waived its
immunity from Plaintiffs’ claims, and Congress has not abrogated that immunity; thus, Plaintiffs’
claims against the Cabinet and Department cannot proceed. See id.
A different result attaches with respect to the Secretary. Plaintiffs may seek declaratory
relief against the Secretary because the Eleventh Amendment does not prevent a litigant from
seeking “prospective non-monetary relief against a state official in her official capacity to
prevent future [or continuing] constitutional . . . violations.” Fleet, 2016 WL 1241540, at *4

4

(emphasis added); see also Ex parte Young, 209 U.S. 123 (1908); Thiokol Corp. v. Dep’t of
Treasury, 987 F.2d 376, 381 (6th Cir. 1993).
Nonetheless, Plaintiffs’ claims against the Secretary will only survive Defendants’
motion to dismiss if Plaintiffs’ pleadings contain facts sufficient to establish that they have
standing to assert them. White, 601 F.3d at 551-52 (citations omitted); Cohn v. Brown, 161 F.
App’x 450, 454 (6th Cir. 2005) (citation omitted).

To have standing to seek a judgment

declaring a regulation unconstitutional, Plaintiffs must plausibly allege, inter alia, that they: (1)
presently suffer adverse effects or an ongoing injury as a result of Childress’ utilization of the
regulation, or (2) face “‘a ‘real and immediate threat of future injury’”—i.e., state officials are
likely to again utilize 922 KAR 1:330 § 3(21) as a basis for entering their home without a
warrant. See Campbell v. Univ. of Louisville, 862 F. Supp. 2d 578, 584 (W.D. Ky. 2012)
(quoting Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983) (citation omitted))).
Plaintiffs argue that they have standing to seek declaratory relief against the Secretary
because they have a continuing legal interest in expunging the portions of the Department’s
records that contain personal information about them. (Pls.’ Resp. 2-10). Stated differently,
Plaintiffs assert that they have standing to challenge 922 KAR 1:330.3(21) because they
presently suffer from an ongoing injury—the Department’s retention of records containing their
personal information—as a result of the actions Childress took pursuant to that regulation.
Plaintiffs’ contention is incorrect, and none of the authority they cite supports their
argument.7 Rather, case law indicates that a plaintiff does not have standing to challenge the

7

For example, Plaintiffs cite United States v. Field, 756 F.3d 911 (6th Cir. 2014), for the
proposition that federal courts have ancillary jurisdiction to consider motions seeking expunction
of criminal records as long as the motion establishes that the defendant’s unconstitutional
conduct gave rise to the record in the first place. That holding is inapposite. Field does not hold
that a court has jurisdiction over a claim seeking expunction of records, regardless whether the
5

constitutionality of a policy simply because the defendant obtained and maintains personal
information about her while acting pursuant to that policy. See, e.g., Dorn v. Mich. Dep’t of
Corr., No. 1:15-CV-359, 2017 WL 2436997, at *8 (W.D. Mich. June 6, 2017) (plaintiff’s request
for expunction of prison records did not give him standing to challenge the legality of a prison
policy mentioned in his prison records). In other words, a plaintiff must have standing to
challenge a regulation and standing to seek expunction of records obtained pursuant to that
regulation. See Cohn, 161 F. App’x at 454 (noting that “plaintiff must have standing for each
claim he asserts.” (citation omitted) (emphasis in original)); Robinson v. Blank, No. 11 CIV.
2480 PAC DF, 2013 WL 2156040, at *15 (S.D.N.Y. May 20, 2013) (analyzing issue whether
plaintiff had standing to challenge regulation separately from issue whether plaintiff had
standing to seek expunction of personal information that defendant collected pursuant to that
policy).
Given that Plaintiffs’ “continuing injury” argument fails, they can only establish standing
to challenge 922 KAR 1:330 § 3(21) by alleging facts showing that a future injury at the hands of
state officials is certainly impending. White, 601 F.3d at 553. In other words, to survive
Defendants’ motion Plaintiffs must present facts sufficient to permit the reasonable inference that
there is a high likelihood that: (1) state officials will use the regulation to violate their rights in

plaintiff has standing to bring it. Rather, it holds that, in the absence of federal question,
diversity, or supplemental jurisdiction, a court may have ancillary jurisdiction to hear motions
seeking expunction of records in some cases. Id. at 915-16. That said, the party seeking
expunction must still establish that he has standing to seek that remedy—i.e., he must show, inter
alia, that the defendant’s retention of records about him has caused or will cause him to suffer an
injury-in-fact. See, e.g., Tabbaa v. Chertoff, No. 05-CV-582S, 2005 WL 3531828, at *9
(W.D.N.Y. Dec. 22, 2005) (concluding that plaintiffs had standing to seek expunction of records
because it was likely that plaintiffs would be subjected to future injury as a result of defendant’s
maintenance of said records). Thus, though the Court may have upplemental jurisdiction over
Plaintiffs’ claim for expunction, Plaintiffs do not necessarily have standing to assert that claim.
6

the future, and (2) they will be harmed by the Department’s retention of records containing their
personal information. See Barber v. Miller, 809 F.3d 840, 848 (6th Cir. 2015) (holding that
plaintiff lacked standing to seek a judgment declaring a state law unconstitutional because
plaintiff failed to allege that he suffered a “threat of harm from the challenged statute greater
than any other” person in the state); Tabbaa, 2005 WL 3531828, at *9. Plaintiffs have failed to
meet this burden. They allege neither that state officials are likely to once again enter their home
without a warrant, nor that the Department’s maintenance of records containing information
about them will harm them in the future. Thus, Plaintiffs have failed to allege facts sufficient to
establish that they will suffer an injury-in-fact as a result of the Secretary’s conduct and therefore
lack standing to seek an order declaring 922 KAR 1:330 § 3(21) unconstitutional and requiring
the Department to expunge their records. See White, 601 F.3d at 551-52; see also Barber, 809
F.3d at 848; Tabbaa, 2005 WL 3531828, at *9. Without establishing jurisdiction over the
declaration of the regulation’s unconstitutionality, the Court declines tot exercise supplemental
jurisdiction over Plaintiffs’ request for expungement.
V.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion to
Dismiss (DN 4) is GRANTED, and Plaintiffs’ claims against the Department, the Cabinet, and
the Secretary are DISMISSED WITH PREJUDICE.

Plaintiffs’ claims against Childress,

Furnish, and Hardin County Sheriff John Ward remain.

Greg N. Stivers, Judge
United States District Court
March 14, 2018

cc:

counsel of record

7