Howell v. Father Maloney's Boys' Haven, Inc. et al
Filing
50
MEMORANDUM OPINION AND ORDER by Chief Judge Greg N. Stivers on 1/2/2020. Plaintiff's Motion to Amend the Case Caption (DN 44 ) is GRANTED. Plaintiff's Motion to Certify and for Stay (DN 27 ) is DENIED. Plaintiff's Mot ion for Leave to File a Sur-Reply or to Strike (DN 48 ) is DENIED. Defendant's Motion to Dismiss (DN 34 ) is GRANTED IN PART and DENIED IN PART. Plaintiff's 42:1983 claims asserted against Defendant Father Maloney's Bo ys & Girls Haven and Jeff Hadley are DISMISSED. The Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims, and all remaining claims are REMANDED to the Jefferson Circuit Court. The Clerk shall strike this matter from the active docket. cc: Counsel; Jefferson Circuit Court, Civil Action No. 18-CI-01298 (certified copy)(JWM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:18-CV-00192-GNS
ADRIENNE L. HOWELL, et al.
PLAINTIFF
v.
FATHER MALONEY’S BOYS’ HAVEN, INC., d/b/a
FATHER MALONEY’S BOYS & GIRLS HAVEN, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss (DN 34), Plaintiff’s
Motion to Certify and for a Stay (DN 27), Plaintiff’s Motion for Leave to File a Sur-Reply or to
Strike (DN 48), and Plaintiff’s Motion to Amend the Case Caption (DN 44). The motions are ripe
for review. For the reasons that follow, Defendants’ motion is GRANTED IN PART and
DENIED IN PART, Plaintiff’s motion to amend is GRANTED, and the remaining motions are
DENIED.
I.
BACKGROUND
This action arises from the assault Plaintiff Adrienne Howell (“Howell”) suffered while
working for Father Maloney’s Boys & Girls Haven (“BGH”), a residential institution that provides
treatment to at-risk youth. (Am. Compl. ¶¶ 1-2, 8, DN 24-3). Specifically, one of BGH’s residents,
R.B.L., choked Howell unconscious and sodomized her while she was working in a secluded barn
on the BGH campus. (Am. Compl. ¶¶ 19-21).
Howell originally brought this action on March 5, 2018, in Jefferson Circuit Court.
(Compl. 1, DN 1-2). She asserted Fourteenth Amendment claims against BGH and Jeff Hadley
(“Hadley”) (collectively “BGH Defendants”) and against the Kentucky Cabinet for Health and
Family Services (“CHFS”), former Secretary of CHFS Vickie Yates Brown Glisson (“Glisson”),
1
and acting Secretary of CHFS Scott Brinkman (“Brinkman”) (collectively the “CHFS
Defendants”). (Compl. ¶¶ 4, 6, 34-55). Howell also asserted a premises liability claim and what
appears to be a fraudulent inducement claim, both under Kentucky state law, against the BGH
Defendants. (Compl. ¶¶ 55-76). Finally, Howell asserted Kentucky state law intentional tort
claims of assault and false imprisonment against R.B.L. (Compl. ¶¶ 77-83).
The CHFS Defendants removed the case to federal court on the basis of federal question
jurisdiction over the Fourteenth Amendment claims and supplemental jurisdiction over the
remaining claims. (Notice Removal 1-2, DN 1). Howell eventually restyled her “Fourteenth
Amendment” claims against the CHFS Defendants and the BGH Defendants as 42 U.S.C. § 1983
claims. (Am. Compl. ¶¶ 32-33). The CHFS Defendants have since been dismissed from this case
as a result of Howell’s voluntary dismissal of her claims against CHFS and Brinkman and the
Court’s Fed. R. Civ. P. 12(b)(6) dismissal of Howell’s Section 1983 claim against Glisson. (Order
3-8, DN 30). The remaining claims are Howell’s Section 1983 claims against the BGH Defendants
and Howell’s state law claims against the BGH Defendants and R.B.L.
The BGH Defendants now seek to have all claims against them dismissed. (Defs.’ Mot.
Dismiss, DN 34). Howell asks this Court to amend the case caption, to certify a question of law
to the Kentucky Supreme Court and stay all pending matters, and to file a sur-reply to the BGH
Defendants’ reply or to strike the BGH Defendants’ reply.1 (Pl.’s Mot. Amend Case Caption, DN
44; Pl.’s Mot. File Sur-Reply or Strike, DN 48; Pl.’s Mot. Certify Question, DN 27).
1
Because the arguments Howell makes in her request to file a sur-reply or to strike the BGH
Defendants’ reply are irrelevant to the Court’s disposition of this case at this time, Howell’s request
will be denied.
2
II.
JURISDICTION
This Court possesses federal question and supplemental jurisdiction over this case. See 28
U.S.C. § 1331; 28 U.S.C. § 1367(a).
III.
STANDARD OF REVIEW
A complaint must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief,” and is subject to dismissal if it “fail[s] to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 8(a)(2); Fed. R. Civ. P. 12(b)(6). When considering a motion to
dismiss, courts must presume all factual allegations in the complaint to be true and make all
reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v.
Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation omitted). “But the
district court need not accept a bare assertion of legal conclusions.” Tackett v. M & G Polymers,
USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citation omitted). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (citation omitted).
To survive dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted)
(citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. “A complaint will be dismissed pursuant to Rule 12(b)(6) if no law supports the
claims made, if the facts alleged are insufficient to state a claim, or if the face of the complaint
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presents an insurmountable bar to relief.” Southfield Educ. Ass’n v. Southfield Bd. of Educ., 570
F. App’x 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561–64).
IV.
A.
DISCUSSION
Motion to Amend the Case Caption
As a preliminary matter, Howell requests to amend this case’s caption by modifying
“R.B.L.” to reflect R.B.L.’s full name, Robert Brown Lester (“Lester”), and to remove in the case
caption “as a minor by and through his parens patriae [the Cabinet for Health and Family
Services]” and “by and through his natural parent, Sherri Carter.” (Pl.’s Mem. Supp. Mot. Amend
Case Caption 1, DN 44-1). Lester is the individual alleged to have sexually assaulted Howell and
was a minor at the time of the alleged sexual assault and at the time of the filing of Howell’s suit.
(Pl.’s Mem. Supp. Mot. Amend Case Caption 1-2). Lester has subsequently reached the age of
majority. (Pl.’s Mem. Supp. Mot. Amend Case Caption 2).2 Howell requests the case caption
change to facilitate service because service upon the Cabinet and Carter was returned unexecuted
and because service may be made upon Lester personally now that he is an adult. (Unexecuted
Service, DNs 45, 46); see Fed. R. Civ. P. 4(e)(2)(A).
Finding no reason to deny Howell’s motion, the Court will grant her request as Lester has
now reached the age of majority and is the alleged perpetrator, not the victim, of the sexual assault,
and because doing so will facilitate service. Compare M.P.T.C. v. Nelson Cty. Sch. Dist., 192 F.
Supp. 3d 798, 811 (W.D. Ky. 2016) (“To the extent that Plaintiff seeks to amend the case caption
to substitute his initials with his full name because he has reached the age of majority, the Court
grants the relief.”), with Doe v. Unified Sch. Dist. No. 259, No. 05-1151-JTM, 2007 WL 1796202,
at *3 (D. Kan. Jun 19, 2007) (refusing to change case caption to identify minor sexual assault
2
A Kentucky CourtNet search confirms this fact.
4
victim who subsequently reached the age of majority to preserve privacy of victim and because
the victim reaching the age of majority was the only reason for the requested name change).
B.
Motion to Dismiss
The BGH Defendants seek to dismiss the three claims that Howell has asserted against
them: (1) a Section 1983 claim; (2) what appears to be a premises liability claim; and (3) what
appears to be a fraudulent inducement claim. (Am. Compl. ¶¶ 32-33, 43-76). As explained in the
next section, the BGH Defendants’ motion is granted to the extent the Section 1983 claims against
them are dismissed, while all other matters are remanded to the Jefferson Circuit Court.
“Section 1983 creates no substantive rights, but merely provides remedies for deprivations
of rights established elsewhere.” Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th
Cir. 2001) (citation omitted). Two elements are required to state a claim under Section 1983.
Gomez v. Toledo, 446 U.S. 635, 640 (1980). “[A] plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988) (citations omitted). “Absent either element, a section 1983 claim will not lie.”
Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
The BGH Defendants contend the § 1983 claims against them must be dismissed because
they are not state actors and thus do not fall within the scope of a § 1983 action. (Defs.’ Mem.
Supp. Mot. Dismiss 3-6). The Sixth Circuit in Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992),
outlined the relevant analysis:
The principal inquiry in determining whether a private party’s actions constitute
“state action” under the Fourteenth Amendment is whether the party’s actions may
be “fairly attributable to the state.” The Supreme Court has set forth three tests to
determine whether the challenged conduct may be fairly attributable to the state in
order to hold the defendants liable under section 1983. These tests are: (1) the
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public function test; (2) the state compulsion test; and (3) the symbiotic relationship
or nexus test.
. . . The public function test requires that the private entity exercise powers which
are traditionally exclusively reserved to the state, such as holding elections or
eminent domain. . . .
. . . The state compulsion test requires that a state exercise such coercive power or
provide such significant encouragement, either overt or covert, that in law the
choice of the private actor is deemed to be that of the state. More than mere
approval or acquiescence in the initiatives of the private party is necessary to hold
the state responsible for those initiatives. . . .
. . . Under the symbiotic relationship or nexus test, the action of a private party
constitutes state action when there is a sufficiently close nexus between the state
and the challenged action of the regulated entity so that the action of the latter may
be fairly treated as that of the state itself. Merely because a business is subject to
state regulation does not by itself convert its action into state action. Rather, it must
be demonstrated that the state is intimately involved in the challenged private
conduct in order for that conduct to be attributed to the state for purposes of section
1983.
Id. at 1335 (internal citations omitted) (citation omitted). Although the BGH Defendants argue
that none of these tests are satisfied here, Howell only addresses the public function test. (Pl.’s
Resp. Defs.’ Mem. Mot. Dismiss 16-19, DN 38).
Howell characterizes BGH as “a residential institution which provides treatment and crisis
stabilization of at-risk youth” and as a “residential facility.” (Am. Compl. ¶¶ 2, 41). Howell also
calls BGH a “placement facility”3 that provides an “appropriate level of care, custody, protection,
and control” for “at risk youth . . . for their treatment needs and risk[] factors.” (Am. Compl. ¶¶
35-36). Howell refers to the children receiving services from BGH as its “campus residents” and
sometimes terms the children to be under the “confinement and control” of BGH. (Am. Compl.
¶¶ 3, 50, 52). Howell alleges Hadley, the CEO of BGH, “[oversees] the provision of a ‘program
Howell’s description of BGH as a “placement facility” appears to reference a facility where
children are placed, not a facility in charge of determining where children are to be placed. (Am.
Compl. ¶¶ 2-4, 34-37, 40-41, 43, 45, 49-50, 52).
3
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of out-of-home care for delinquent or neglected children committed to or placed in [the] care and
custody’ of the [Kentucky Cabinet for Health and Family Services].” (Pl.’s Resp. Def.’s Mot.
Dismiss 19, DN 38 (quotation omitted)).
The BGH Defendants characterize BGH as “a private, non-profit entity that provides
therapeutic residential care, foster care, and independent living programs, independence readiness
life skills training, preventative community-based services, and a variety of other programs and
services for abused and neglected children.” (Defs.’ Mem. Supp. Mot. Dismiss 2, DN 34-1).
Howell does not challenge this characterization in her response.
Howell’s description of BGH reveals that BGH’s primary, if not exclusive, function is the
housing, education, and care of at-risk youth, which is a function not materially different from that
provided by foster parents or a foster home. In that vein, “[t]he care of foster children is not a
power which has been exclusively reserved to the state.” Lintz v. Skipski, 807 F. Supp. 1299, 1306
(W.D. Mich. 1992); see also Milburn by Milburn v. Anne Arundel Cty. Dep’t of Social Servs., 871
F.2d 474, 479 (4th Cir. 1989) (“The care of foster children is not traditionally the exclusive
prerogative of the State.”); Leshko v. Servis, 423 F.3d 337, 343 (3d Cir. 2005) (“No aspect of
providing care to foster children . . . has ever been the exclusive province of the government.”);
Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) (agreeing with the district
court’s finding that foster care is not traditionally an exclusive state prerogative). “While removing
a child from her home and placing her with other caregivers are arguably exclusive governmental
functions, . . . the day-to-day provision of foster care is not. Several other courts agree.” Brown
v. Hatch, 984 F. Supp. 2d 700, 708 (E.D. Mich. 2013) (citing Leshko, 423 F.3d at 343; Rayburn,
241 F.3d at 1347; Lintz, 807 F. Supp. at 1306-07; Darby v. California, 1 F. App’x 688, 691 (9th
Cir. 2001) (affirming district court’s dismissal of Section 1983 claim against foster parent and
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noting that plaintiffs did not offer sufficient evidence showing that foster mother was a state
actor)).
The only authority Howell cites in opposition to the notion that foster care is not
traditionally an exclusive state prerogative is the unpublished decision by the Eastern District of
Michigan in Johnson v. Williams, No. 15-13856, 2017 WL 4236548 (E.D. Mich. Sept. 25, 2017).
In Johnson, the plaintiff was a step-parent of a boy who had committed suicide while in the care
of “a non-profit child-care institution.” Id. at *1-2. A social worker had recommended the
placement of the boy at the institution. Id. at *1. The court found the institution to be a state actor
under the public function test and allowed the plaintiff’s Section 1983 suit to proceed against the
institution. Id. at *3-4.
The Court is disinclined to follow Johnson. The Johnson Court conflated the functions
identified by that same Court in Brown to be different—i.e., “removing a child from her home and
placing her with other caregivers” versus “the day-to-day provision of foster care”—in allowing a
claim to proceed against the institution. Brown, 984 F. Supp. 2d at 708. Johnson did not cite
Brown but relied instead on Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th Cir.
1990). Johnson, 2017 WL 4236548, at *3-4. The plaintiffs in Meador, however, sought liability
against state officials and a Kentucky state agency for the assignment of the plaintiffs to the foster
home where the plaintiffs were sexually abused, not against the foster home where the abuse
actually occurred or any employees of the home.4 Meador, 902 F.2d at 475-77. The liability of
4
The only defendants in Meador were a state agency, a foster home supervisor, and an intake
supervisor; the individual defendants were employees of the Cabinet, not the foster home. Meador,
902 F.2d at 475. Specifically, the Sixth Circuit in Meador only discussed liability owed by the
state to the plaintiffs and specifically characterized the defendants as “the Kentucky officials and
the Cabinet.” Id. at 475-77. Although one of the defendants was characterized as a foster home
supervisor, it appears that she was a state employee who oversaw foster homes on behalf of the
state agency, not an employee of the foster home. Id. at 475.
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the foster home for the sexual abuse of the plaintiffs in its care was not at issue, evidenced by the
court’s discussion of only the relationship between the Cabinet and the Meador children and the
duty of the state officials and state agency to ensure the welfare of children in foster care by
responding to reports of abuse occurring in the foster home. Id. at 476-77. That discussion falls
in lockstep with the distinction identified in Brown between (1) the public function of removing a
child from an abusive situation and placing the child under appropriate care and (2) the private
function of “the day-to-day provision of foster care.” Meador does not support the contention that
the actual day-to-day foster care is exclusively a state function so as to characterize foster homes
as state actors to afford a Section 1983 claim against them.
The conflation of these two distinct functions is additionally evident by Johnson’s citation
to Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994). Johnson, 2017 WL 4236548, at *3-4. Lintz mirrors
the situation in Meador—the plaintiffs, victims of abuse in a foster care home, brought suit only
against the state social worker who placed the victims in a foster home. Lintz, 25 F.3d at 305. The
liability of the foster home and its employees, once again, was not at issue. In analyzing liability
owed by the state to the victims, the Sixth Circuit highlighted the fact that “the state’s role in
placing children in foster homes [has been analogized] to the mental institution and prison settings
in which state liability has been clearly established for ‘deliberate indifference’ to the plight of
individuals in detention.” Id. (citations omitted). Howell also highlights this statement in
purported support of her position, which actually undermines her position. Per the Lintz analysis,
the state’s role is in placing children in suitable foster homes and monitoring them, not in providing
day-to-day care for those children. Id. at 305-07.5
Howell’s reliance on the above-quoted statement in Lintz is further misplaced because that
statement identifies courts’ recognition of the substantive due process right of children “to be free
from the infliction of unnecessary harm . . . in state-regulated foster homes” and has nothing to do
5
9
Finally, Johnson cited to Michigan statutes placing foster home responsibility in the state
as supporting its characterization of day-to-day foster care as state action. It is immaterial,
however, whether a state now asserts power over and responsibility of a certain function; rather,
the relevant analysis properly focuses on whether the state has traditionally and exclusively
performed that function:
It is not enough that the federal, state, or local government exercised the function
in the past, or still does. And it is not enough that the function serves the public
good or the public interest in some way. Rather, to qualify as a traditional,
exclusive public function within the meaning of our state-action precedents, the
government must have traditionally and exclusively performed the function.
Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928-29 (2019) (emphasis in original)
(citations omitted). No case has been cited recognizing that the day-to-day provision of foster care
has been a traditional and exclusive function of the state. The Court’s own research reveals that
the Second Circuit appears to be the only circuit to hold that “foster homes” perform public
functions so as to give rise to Section 1983 liability on their part. See e.g., CB v. St. Vincent’s
Services, Inc., 16 Civ. 2282 (RMB), 2018 WL 1737701, at *2 (S.D.N.Y. Mar. 19, 2018) (citing
the Second Circuit’s decisions in Perez v. Sugarman, 499 F.2d 761 (2d Cir. 1974), and Duchesne
v. Sugarman, 566 F.2d 817 (2d Cir. 1997), as establishing the proposition that private child-care
institutions are state actors). At least three federal district court opinions in New York, however,
have recognized that the Perez and Duchesne decisions have been called into serious doubt, with
one court stating that “the view enunciated by the Supreme Court has substantially replaced the
approach relied upon in Perez and Duchesne.” Id. at *4; see Lynn ex rel. Julie B v. St. Anne Inst.,
2006 WL 516796, at *13 (N.D.N.Y. Mar. 2, 2006) (“[T]he Court concludes that the Supreme Court
with determining whether day-to-day care of foster children is a public function. See id. at 305
(citations omitted).
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has markedly changed the legal landscape of this area of law such that [Perez and Duchesne] are
no longer controlling.”); Phelan ex rel. Phelan v. Torres, 843 F. Supp. 2d 259 (E.D.N.Y. 2011)
(recognizing unreliability of Perez and Duchense). As such, there appears to be near uniformity
among courts that the day-to-day provision of foster care is not a public function for purposes of
characterizing the provider-of-care as a state actor subject to Section 1983 liability.
The Court in Phelan provided a particularly persuasive analysis as to why caring for foster
children is not a public function. In discussing the history of social welfare legislation in New
York,6 the Court in Phelan began its analysis by recognizing that “caring for abandoned children
is a function that has traditionally been performed by private parties in New York.” Phelan, 843
F. Supp. 2d at 270. The Court in Phelan then explained that New York state involvement in the
foster care realm did not arise as a result of a traditional and exclusive involvement of the state in
that realm but rather a recognition that “caring for children in need of foster care . . . is deemed
best executed by government and is undertaken [by the government] without thought of profit or
revenue.” Id. at 271 (quoting Kochanski v. City of New York, 76 A.D.3d 1050, 1052 (N.Y. 2010)).
The Court in Phelan also analogized caring for foster children to caring for the mentally ill. Id. at
271–72. “[C]are for the mentally disabled was neither traditionally nor exclusively reserved to the
state.” Id. at 272 (emphasis in original) (quoting Sybalski v. Independent Group Home Living
Program, Inc., 546 F.3d 255, 259 (2d Cir. 2008) (per curiam)). Finally, as in the case before this
Court, the plaintiff in Phelan did “not present[] any evidence that caring for abandoned children
by placing them in foster homes was traditionally under the exclusive authority of the state.” Id.
And, the Court in Phelan recognized that “[n]either Perez nor Duchesne expressly considered,
The Court has no reason to believe that Kentucky’s involvement in the well-being of children
materially differs from that of New York’s.
6
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much less held, that caring for abandoned children was a power ‘traditionally exclusively reserved
to the State.’” Id. (emphasis in original) (quoting Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352 (1974)).
In sum, Howell’s description of BGH alleges it provides the same types of services
traditionally provided by a foster home. Nothing about Howell’s description of BGH likens it to
a detention center,7 but rather a facility providing housing, education, and general care to at-risk
youth. BGH does not take part in the unquestionably public functions of the removal of children
from their homes, the placement of those children in an appropriate environment, or the monitoring
of foster homes; BGH is the “foster home” engaging in the private function of providing day-today care.
As noted above, Howell does not contend the state compulsion or symbiotic
relationship/nexus tests are satisfied here so as to qualify BGH as acting under color of state law.8
Because Howell has failed to plead facts sufficient to deem BGH as acting under color of state
Although Howell cites to Johnson for the proposition that “care provided in a custodial setting is
an activity traditionally reserved to the state,” the cases cited in Johnson as support for that
proposition involved care to imprisoned inmates. (Pl.’s Resp. 17); Johnson, 2017 WL 4236548 at
*3 (citing West v. Atkins, 487 U.S. 42, 43–44 (1988); Carl v. Muskegon Cty., 763 F.3d 592, 594
(6th Cir. 2014)). Howell has pled no facts suggesting that the children cared for by BGH are
“imprisoned” there.
8
Howell does not argue these points in her response or proposed sur-reply. In fact, the only factual
allegations she pleads relevant to analyzing the satisfaction of these tests are that BGH and CHFS
have a contractual relationship, BGH’s activities are regulated, and BGH is subsidized with public
funds. (Am. Compl. ¶¶ 37, 45). Howell has failed, however, to articulate how the contractual
relationship between BGH and CHFS establishes state compulsion or a nexus with the state
sufficient to characterize BGH as a state actor. See Phelan ex rel. Phelan v. Torres, 843 F. Supp.
2d 259, (E.D.N.Y. 2011) (“The fact that the state may contract with a private party to perform a
function does not transform the private party into a state actor unless the function is traditionally
exclusively a state function.”) (citing Cooper v. U.S. Postal Serv., 577 F.3d 479, 492 (2d Cir.
2009)). Moreover, “[m]erely because a business is subject to state regulation does not by itself
convert its action into state action.” Wolotsky, 960 F.2d at 1335 (citation omitted). Finally, “[t]he
actions of a private entity do not become state action merely because the government provides
substantial funding to the private party.” Id. at 1336 (citations omitted).
7
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law, even viewed in the light most favorable to her, her Section 1983 claims against the BGH
Defendants, BGH and Hadley, fail and will be dismissed.
C.
All Remaining Matters
Courts are strongly encouraged to consider the issue of remand to state court after all
federal claims have been dismissed and diversity jurisdiction is not present.9 See Arrington v. City
of Raleigh, 369 F. App’x 420, 421 (4th Cir. 2010) (“[T]he district court should have remanded the
case to state court upon the dismissal of all federal claims, even in the absence of a motion from
the parties that it do so.”). “A district court’s decision whether to exercise [] jurisdiction after
dismissing every claim over which it had original jurisdiction is purely discretionary.” Carlsbad
Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citations omitted). The Sixth Circuit in
Gamel v. City of Cincinnati, 625 F.3d 949 (6th Cir. 2010), explained the analysis this Court must
conduct:
“When all federal claims are dismissed before trial, the balance of considerations
usually will point to dismissing the state law claims, or remanding them to state
court if the action was removed.”
There are, however, circumstances where a district court should retain
supplemental jurisdiction even if all of the underlying federal claims have been
dismissed. In Harper v. AutoAlliance Intern., Inc., 392 F.3d 195 (6th Cir. 2004),
for example, the court found that the following factors weighed in favor of retaining
supplemental jurisdiction over the remaining state-law claims: (1) the plaintiff had
engaged in forum manipulation by deciding to dismiss his federal-law claims only
after the case had been on the district court’s docket for 11 months, (2) the parties
had completed discovery, and (3) the defendants’ summary-judgment motions were
ripe for decision. Moreover, the district court “was familiar with the facts of the
9
Diversity jurisdiction is not present here because Howell is a Kentucky citizen as of the date of
the filing of her complaint and all defendants are Kentucky citizens. (Am. Compl. ¶¶ 1-7); see V
& M Star, LP v. Centimark Corp., 596 F.3d 354, 355 (6th Cir. 2010) (“Under [28 U.S.C. § 1332,]
there must be complete diversity such that no plaintiff is a citizen of the same state as any
defendant.” (citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005))). Although Howell was
an Indiana citizen at the time of her injuries, citizenship is determined at the time of the filing of
the complaint, not at the time the injuries were suffered. Grupo Dataflux v. Atlas Glob. Grp., L.P.,
541 U.S. 567, 570-71 (2004).
13
case and already had invested significant time in the litigation.” This court
therefore concluded that the district court had properly exercised supplemental
jurisdiction over the remaining state-law claims.
Id. at 952 (internal citations omitted) (citation omitted). Gamel also pointed to evaluation of the
Carnegie-Mellon factors in determining whether the district court should retain supplemental
jurisdiction over the claims: “the values of judicial economy, convenience, fairness, and comity.”
Id. at 951-52 (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Finally, “[w]hen
the . . . federal-law claim[s] in the action [have been] eliminated at an early stage of the litigation,
[a] District Court ha[s] a powerful reason to choose not to continue to exercise jurisdiction.”
Carnegie-Mellon, 484 U.S. at 351.
Gamel and Carnegie-Mellon suggest a rebuttable presumption of remanding a case when
all original jurisdiction claims have been dismissed. Also weighing toward remand is the fact that
no evidence of “forum manipulation” exists here, unlike in Harper. Also in contrast with Harper,
although this case has been on the docket since March of 2018, the parties have engaged in very
little, if any, discovery—this case is essentially still in its infancy. Moreover, whereas summary
judgment motions had been filed in Harper, this case remains at the motion to dismiss stage.
Finally, this Court has not “invested significant time” in this case nor possesses such a familiarity
with the facts so as to be better suited to handle this matter than any other court.
In evaluating the Carnegie-Mellon factors, comity weighs most heavily here. Howell
raises three issues requiring attention specifically from Kentucky courts: (1) whether the immunity
from suit provided by the Kentucky Workers’ Compensation Act serves as a jurisdictional bar or
acts as an affirmative defense that can be waived; (2) whether Kentucky courts should expand an
exception to workers’ compensation immunity; and (3) whether a certain provision within the
Kentucky Workers’ Compensation Act is unconstitutional. (Pl.’s Resp. Defs.’ Mot. Dismiss 24-
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26, DN 38; Pl.’s Mot. Certify 1-2, DN 27). “[C]omity of courts, whereby judges decline to exercise
jurisdiction over matters more appropriately adjudged elsewhere,” dictates that Kentucky courts
should address these issues. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia,
J., dissenting). The fairness factor also dictates that Howell should be able to test her arguments
calling for Kentucky courts to modify their current interpretation of the law in a court better suited
to carve exceptions to established Kentucky law. See United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726 (1966) (“Needless decisions of state law should be avoided both as a matter of
comity and to promote justice between the parties, by procuring for them a surer-footed reading of
applicable law.” (citing Strachman v. Palmer, 177 F.2d 427, 431 (1st Cir. 1949))).
Although judicial economy and convenience may weigh toward retaining jurisdiction over
this case, fairness and comity weigh more heavily toward remanding it. This consideration,
coupled with the presumption of remand in this situation, indicate that remand of this case to the
Jefferson Circuit Court is the best course of action. As such, the Court will refrain from ruling on
all other matters not addressed above.
V.
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED as follows:
1.
Plaintiff’s Motion to Amend the Case Caption (DN 44) is GRANTED.
2.
Plaintiff’s Motion to Certify and for Stay (DN 27) is DENIED.
2.
Plaintiff’s Motion for Leave to File a Sur-Reply or to Strike (DN 48) is DENIED.
3.
Defendants’ Motion to Dismiss (DN 34) is GRANTED IN PART and DENIED
IN PART. Plaintiff’s 42 U.S.C. § 1983 claims asserted against Defendants Father Maloney’s
Boys & Girls Haven and Jeff Hadley are DISMISSED.
The Court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims, and all remaining claims are
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REMANDED to the Jefferson Circuit Court. The Clerk shall strike this matter from the active
docket.
January 2, 2020
cc:
counsel of record
Jefferson Circuit Court, Civil Action No. 18-CI-01298
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