B. v. Waddle et al

Filing 50

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Mike Waddle, Jeff Hall, and Stephanie Howerton's motion for a judgment on the pleading # 21 and motion for summary judgment # 39 are GRANTED. IT IS FURTHER ORDERED that Defendant Sara Holzmeier's motion for a judgment on the pleadings # 41 is GRANTED. IT IS FURTHER ORDERED that Plaintiff's motion for leave to identify an expert out of time # 30 is DENIED as moot. IT IS FURTHER ORDERED that the supplemental scheduling teleconference call scheduled for August 23, 2013 is cancelled. Signed by District Judge Rodney W. Sippel on 8/22/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
K.B.,
Plaintiff,
vs.
MIKE WADDLE, et al.,
Defendants.

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Case No. 2:12 CV 48 RWS

MEMORANDUM AND ORDER
Plaintiff K.B.1 is a woman who was sexually assaulted in 2003 when she was a minor.
Defendants are state employees who K.B. alleges were aware of a threat made by another minor
to sexually assault K.B. The other minor sexually assaulted K.B. several months after making
the threat. K.B. asserts that Defendants failed to warn her parent of the threat which would have
allowed the parent to take protective action to prevent the assault. K.B. asserts that Defendants
violated her rights under the Fourteenth Amendment of the Constitution of the United States.
She also asserts negligence claims under state law. Defendants have moved for a judgment on
the pleadings or in the alternative for summary judgment. Because Defendants have immunity
from K.B.’s claims I will grant Defendants’ motions.
Background2
In the fall of 2002 through the spring of 2003, Plaintiff K.B., a minor at the time, was a
participant in an after-school program offered by the Family Advocacy Center (the Center).

1

2

Plaintiff uses her initials due to the sensitive nature of this lawsuit.

The background information is taken in part from Defendants’ Statement of
Uncontroverted Facts filed in support of their motion for summary judgment [Doc. # 40, Ex. 1]
as well as other parts of the record.

According to K.B.’s complaint, the Center is a joint project located in Adair County, Missouri.
A male minor, S.H. was also a participant in the after-school program. In February 2003, S.H.
told Beatrice Dovin, an employee of the Center, that he was going to sexually assault K.B.
Within twenty-four hours of receiving S.H.’s statement regarding K.B., Dovin made a “hotline”
call to the child abuse and neglect telephone line maintained by the Missouri Department of
Social Services, Children’s Division and reported the information regarding S.H.’s statement.
Several months later, during the summer of 2003, S.H. sexually assaulted K.B. at a public
swimming pool. K.B. did not disclose the incident until March 2005.
Defendant Mike Waddle was, at the relevant time, employed by the State of Missouri as
the Chief Juvenile Officer of the Second Judicial Circuit. Defendant Jeff Hall was employed by
the State of Missouri as the Second Judicial Circuit’s Deputy Juvenile Officer. Defendant
Stephanie Howerton was employed by the State of Missouri as a supervisor of the Adair County
Missouri Department of Social Services, Children’s Division. Defendant Sara Holzmeier was
employed by the Kirksville Police Department and by the Kirksville R-III School District as a
school resource officer.
K.B. alleges that Defendants all knew of S.H.’s February 2003 threat against her and
failed to notify K.B.’s parent of the threat. K.B. alleges that had K.B.’s parent been warned, she
would have been in a position to take protective action against the threat. K.B. asserts that
Defendants failure to warn of the threat led to K.B. being assaulted in the summer by S.H. at a
public pool.3 In, Court I, K.B. asserts a claim under the Fourteenth Amendment, through 42

3

None of the parties allege or point to any evidence in the record that K.B. or S.H. were
under the supervision of any of the Defendants or their agencies at the time of the assault at the
public pool.

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U.S.C. § 1983, that Defendants, as state actors, created a dangerous situation or made K.B. more
vulnerable to harm by failing to warn K.B.’s parent of the threat which resulted in a violation of
her liberty interest in her personal bodily integrity. In Counts II and III, K.B. asserts state claims
of negligence and negligent infliction of emotional distress, respectively.
Defendants Waddle, Hall, and Howerton have move for a judgment on the pleadings and
for summary judgment. Defendant Holmeier has move for a judgment on the pleadings.
Defendants all assert immunity defenses in support of their motions.
Legal Standard
“Judgment on the pleadings is appropriate when there are no material facts to resolve and
the moving party is entitled to judgment as a matter of law. The facts pleaded by the
non-moving party must be accepted as true and all reasonable inferences from the pleadings
should be taken in favor of the non-moving party. The court may consider the pleadings
themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters
of public record.” Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010)(internal
citation omitted).4
Summary judgment is appropriate if the evidence, viewed in the light most favorable to
the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center,
160 F.3d 484, 486 (8th Cir. 1998)(citing Fed. R. Civ. P. 56(c)). The party seeking summary
judgment bears the initial responsibility of informing the court of the basis of its motion and

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The parties dispute whether Defendants were aware of S.H.’s threat before S.H.
assaulted K.B. I assume without deciding that they were aware of the threat for the purpose of
ruling on Defendants’ motions for a judgement on the pleadings.

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identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and
admissions on file which it believes demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When such a motion is made and supported
by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient
evidence to support the existence of the essential elements of his case on which he bears the
burden of proof. Id. at 324. In resisting a properly supported motion for summary judgment, the
plaintiff has an affirmative burden to designate specific facts creating a triable controversy.
Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
Discussion
Plaintiff’s 14th Amendment Claim - Qualified Immunity
K.B. asserts her Fourteenth Amendment claim through 42 U.S.C. § 1983. That statute
allows an individual to bring a claim against state actors for a deprivations of the individual’s
constitutional and federal rights. “The purpose of § 1983 is to deter state actors from using the
badge of their authority to deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). “The Due
Process Clause of the Fourteenth Amendment provides that ‘[n]o State shall ... deprive any
person of life, liberty, or property, without due process of law.’” DeShaney v. Winnebago
County Dept. of Social Services, 489 U.S. 189, 194-195 (1989).
Defendants have asserted that they are entitled to qualified immunity. “The doctrine of
qualified immunity protects government officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(internal

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quotation omitted). “The protection of qualified immunity applies regardless of whether the
government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.” Id. (internal quotations omitted). This defense “provides ample
protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986).
Qualified immunity requires a two-part inquiry: (1) whether the facts shown by the
plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was
clearly established at the time of the defendant's alleged misconduct. Saucier v. Katz, 533 U.S.
194, 201 (2001). Courts may exercise their discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first. Pearson, 555 U.S. at 236. If the answer to
either question is no, then the officials are entitled to qualified immunity. Keil v. Triveline, 661
F.3d 981, 985 (8th Cir. 2011).
K.B.’s allegation that Defendants violated her right to liberty by failing to warn her
parent about the threat made by S.H. is closely related to the constitutional claim made in
DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989). In that case
state social workers and other officials were aware that a young boy was being physically abused
by his father which resulted the boy being treated for injuries at a hospital. The boy remained in
the custody of his father and social workers repeatedly saw signs of continued physical abuse of
the boy on multiple home visits but took no action. The father ultimately gave the boy a beating
that resulted in severe permanent brain damage. Id. at 192-193. The boy’s mother filed suit
against state agencies and state social workers for their failure to act. The suit alleged that the
defendants deprived the boy of his liberty without due process of law in violation of the

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Fourteenth Amendment by failing to intervene to protect the boy against the risk of violence by
his father that defendants knew or should have known. Id. at 193.
The Court found that the plaintiff failed to state a constitutional claim. The Court stated
that:
nothing in the language of the Due Process Clause itself requires the State to
protect the life, liberty, and property of its citizens against invasion by private
actors. The Clause is phrased as a limitation on the State's power to act, not as a
guarantee of certain minimal levels of safety and security. It forbids the State
itself to deprive individuals of life, liberty, or property without “due process of
law,” but its language cannot fairly be extended to impose an affirmative
obligation on the State to ensure that those interests do not come to harm through
other means. Nor does history support such an expansive reading of the
constitutional text. .... Its purpose was to protect the people from the State, not to
ensure that the State protected them from each other.

Id. at 195-196. The Court stated further that “[c]onsistent with these principles, our cases have
recognized that the Due Process Clauses generally confer no affirmative right to governmental
aid, even where such aid may be necessary to secure life, liberty, or property interests of which
the government itself may not deprive the individual.” Id. at 196. The plaintiff argued that the
defendants, through social worker home visits, undertook a duty to protect the boy from his
father’s abuse and by failing to act, despite evidence of further abuse, the defendants violated the
boy’s constitutional right to liberty. Id at 197. The Court rejected that proposition and held that
where state actors fail to prevent harm to an individual by a private actor (and the injured party is
not in the state’s custody and control, ie. a prison inmate) the state has no constitutional duty to
protect the individual from harm from the private actor. Id. at 198-200.
In the present case, K.B. alleges that Defendants knew of the threat made by S.H. and
failed to warn K.B.’s parent which lead a deprivation of K.B. liberty rights. However, as in

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DeShaney, K.B. was harmed by a private actor. K.B.’s constitutional rights did not impose a
duty upon Defendants to protect K.B. from S.H. by informing K.B.’s parent of S.H.’s threat or
some other action. Although K.B. was the victim of a tragic assault, she has failed to establish
that she had a constitutional liberty right under the Fourteenth Amendment to have Defendants
protect her from the actions of S.H. As a result, Defendants are entitled to a judgment as a
matter of law.
Plaintiff’s state law claims
In Count’s II and III, K.B. asserts claims for negligence and negligent infliction of
emotional distress. K.B. asserts that Defendants breached a ministerial duty to report abuse
imposed by § 210.115 R.S.Mo. That statute states in part:
When any physician, medical examiner, coroner, dentist, chiropractor,
optometrist, podiatrist, resident, intern, nurse, hospital or clinic personnel that are
engaged in the examination, care, treatment or research of persons, and any other
health practitioner, psychologist, mental health professional, social worker, ... or
other person with responsibility for the care of children has reasonable cause to
suspect that a child has been or may be subjected to abuse or neglect or observes
a child being subjected to conditions or circumstances which would reasonably
result in abuse or neglect, that person shall immediately report or cause a report to
be made to the division in accordance with the provisions of sections 210.109 to
210.183. As used in this section, the term “abuse” is not limited to abuse inflicted
by a person responsible for the child's care, custody and control as specified in
section 210.110, but shall also include abuse inflicted by any other person.

(emphasis added). K.B. asserts that Defendants were negligent in failing to report S.H.’s threat
to her parent.
Defendants assert that they are entitled to official immunity on these claims.
Missouri state law provides official immunity to public officials acting
within the scope of their authority “for injuries arising from their discretionary
acts or omissions,” but not for “torts committed when acting in a ministerial
capacity.” State ex rel. Hill v. Baldridge, 186 S.W.3d 258, 259 (Mo.2006) (per

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curiam). Discretionary acts require “the exercise of reason in the adaption of
means to an end, and discretion in determining how or whether an act should be
done or a course pursued.” Rustici v. Weidemeyer, 673 S.W.2d 762, 769
(Mo.1984) (citation omitted). In contrast, ministerial acts are “of a clerical nature
which a public officer is required to perform upon a given state of facts, in a
prescribed manner, in obedience to the mandate of legal authority, without regard
to his own judgment or opinion concerning the propriety of the act to be
performed.”

Hutson v. Walker, 688 F.3d 477, 485 (8th Cir. 2012).
Before reaching Defendants’ official immunity defense, I note that there is no private
cause of action for a violation of § 210.115. Bradley v. Ray, 904 S.W.2d 302, 314 (Mo. Ct. App.
1995). Even if K.B. had a cause of action under that statute, Defendants are entitled to official
immunity. K.B. asserts that Defendants had a ministerial duty under § 210.115 to report S.H.’s
threat. Defendants argue that the language of § 210.115 that a “person with responsibility for the
care of children has reasonable cause to suspect that a child has been or may be subjected to
abuse” clearly is a discretionary decision whether to act or not depending on whether there is a
reasonable cause to suspect abuse. I find that this statute does not create a ministerial duty and
that it imposes a discretionary duty. Unlike a ministerial function which requires a public officer
to “perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of
legal authority, without regard to his own judgment or opinion concerning the propriety of the
act to be performed,” Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. 2008), the
determination of whether theres is “reasonable cause” to suspect child abuse exists is a
discretionary decision. As a result, Defendants are entitled to official immunity.
Defendants Waddle, Hall, and Howerton also assert they are entitled to a judgment as a
matter of law because K.B.’s negligence claims are barred by the public duty doctrine. “The

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public duty doctrine states that a public employee is not civilly liable for the breach of a duty
owed to the general public, rather than a particular individual. This public duty rule is based on
the absence of a duty to the particular individual, as contrasted to the duty owed to the general
public.” Id. at 611 (internal citation omitted).
The duty to report suspected abuse under § 210.115 is owed to the general public, not to
a complaining party, even if the defendant’s failure to report suspected abuse causes a direct
injury to the complaining party. Letlow By and Through Bacon v. Evans, 857 F. Supp. 676, 678
(W.D. Mo. 1994), see also Thelma D. v. Board of Education of City of St. Louis, 669 F. Supp.
947, 950 (E.D. Mo.1987). Because the duty to report under § 210.115 is owed to the general
public, K.B.’s negligence claims are barred by the public duty doctrine.
Accordingly,
IT IS HEREBY ORDERED that Defendants Mike Waddle, Jeff Hall, and Stephanie
Howerton’s motion for a judgment on the pleading [#21] and motion for summary judgment
[#39] are GRANTED.
IT IS FURTHER ORDERED that Defendant Sara Holzmeier’s motion for a judgment
on the pleadings [# 41] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to identify an expert out
of time [#30] is DENIED as moot.
IT IS FURTHER ORDERED that the supplemental scheduling teleconference call
scheduled for August 23, 2013 is cancelled.

_____________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of August, 2013.

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