Baucom et al v. Lombardi et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $1.00 within thirty (30) days of the date o f this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is fo r an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Initial Partial Filing Fee due by 4/11/2016. Signed by District Judge Jean C. Hamilton on 03/11/2016. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JASON RILEY BAUCOM, et al.,

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Plaintiffs,
v.
GEORGE A. LOMBARI, et al.,
Defendants.

No. 2:16-CV-0008 NAB

MEMORANDUM AND ORDER
This action concerns the alleged wrongful death of plaintiff’s children.

Plaintiff, a

prisoner, seeks leave to proceed in forma pauperis in this civil action under 42 U.S.C. § 1983 and
state law. Having reviewed plaintiff’s financial information, the Court assesses a partial initial
filing fee of $1.00, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court finds that plaintiff’s federal causes of action fail to state a
claim upon which relief can be granted.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility 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. at 678. Determining whether a complaint states a plausible claim for relief [is] a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
The Complaint
Plaintiff’s twin sons, J.P.B and C.R.B, both of whom were autistic, died while under the
foster care of defendant Nancy Huber. J.P.B., who was five years old, was left unattended and
drowned in a pond. A few months later, C.R.B., who was six years old, died of suffocation in a
hog pen. At the time of their birth, both of the children’s parents were imprisoned. As a result,
they were placed in the temporary Foster Care Program administered by the Missouri
Department of Corrections and the Missouri Department of Social Services.
Plaintiff says Huber is a Mennonite. Plaintiff alleges that the defendant state officials
should have known that placing his children with a Mennonite family was reckless because their
“devout beliefs” in the supremacy of the “Law of God” over state laws causes them to be unfit
foster parents to autistic children. Plaintiff also argues that the state officials acted recklessly in
not removing C.R.B. from Huber’s care after J.P.B. died as a result of lack of supervision.
Plaintiff contends that defendant Michelle Curry, who is or was a Circuit Manager for the
Department of Social Services, negligently failed to supervise the caseworkers responsible for
monitoring his children.
Plaintiff claims that the defendant sheriff officers acted with “negligence and reckless
disregard” for C.R.B.’s safety for not arresting Huber when J.P.B. died.
Plaintiff sues defendants for violations of the Due Process Clause and the Missouri
wrongful death statute, Mo. Rev. Stat. § 537.080.

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Discussion
The complaint is frivolous with regard to defendant Nancy Huber because foster parents
are not state actors within the meaning of § 1983. See Rayburn ex rel. Rayburn v. Hogue, 241
F.3d 1341, 1348 (11th Cir. 2001); Milburn v. Anne Arundel County Dep't of Social Servs., 871
F.2d 474, 477 (4th Cir. 1989) (determining that foster parents are not state actors); Lintz v.
Skipski, 807 F.Supp. 1299, 1306–07 (W.D. Mich. 1992) (discussing cases holding that foster
parents are not state actors).
“Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”). Plaintiff has not pled facts
showing that defendant Curry was personally responsible for the supervision of his children.
Nor are defendants Brian Kinkade or Tim Decker responsible because they have supervisory
authority over employees of the Department of Social Services.

And there are no factual

allegations showing that the Department of Corrections officials had any control over the
placement of his children in Huber’s home. Therefore, the complaint fails to state a claim upon
which relief can be granted against these defendants.
The complaint is frivolous with regard to the sheriff officer defendants because they did
not have a duty to arrest Huber. See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 768
(2005).

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Plaintiff’s negligence claims are frivolous under § 1983 because “the Due Process Clause
is simply not implicated by a negligent act of an official causing unintended loss of or injury to
life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986).
Finally, plaintiff has not stated a plausible claim against the City of Edina or Knox
County because he has not alleged that an official custom or policy led to the death of his
children. See Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91 (1978).
Finally, because plaintiff’s federal causes of action fail to state a claim upon which relief
can be granted, the Court declines to exercise supplemental jurisdiction over his state law claims.
See 28 U.S.C. § 1367(c)(3).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $1.00
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his
prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 11th day of March, 2016.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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