Harvey v. Great Circle

Filing 12

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant Great Circles Motion to Dismiss Plaintiffs Complaint for Failure to State a Claim Upon Which Relief Can be Granted is GRANTED. [Doc. 5.]IT IS FURTHER ORDERED that Plaintiffs Motion for Rule 26 Conference is DENIED as moot. [Doc. 10.] 5 Signed by Magistrate Judge Nannette A. Baker on 6/16/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KYLE HARVEY,
Natural and Biological Father of A.K.H.,
a Minor Deceased,
Plaintiff,
v.
GREAT CIRCLE,
Defendant.

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Case No. 4:17-CV-1021 NAB

MEMORANDUM AND ORDER 1
This matter is before the Court on Defendant Great Circle’s Motion to Dismiss Plaintiff’s
Complaint for Failure to State a Claim Upon Which Relief Can be Granted. [Doc. 5.] Plaintiff
has not filed a response and the time to do so has passed. Plaintiff recently filed a Motion for
Rule 26 Conference to “expedite the matter to trial.” [Doc. 10.] For the following reasons, the
Court will grant Defendant’s Motion to Dismiss and deny as moot Plaintiff’s Motion for Rule 26
Conference.
I.

Procedural Background
Plaintiff Kyle Harvey (“Harvey”) filed this action against Defendant Great Circle for the

wrongful death of Harvey’s child A.K.H., who is deceased. (Compl. ¶ 1.) In the Complaint,
Harvey contends that the Jefferson County Children’s Division (“JCCD”) had custody of his
children, including A.K.H. beginning December 14, 2015. (Compl. ¶ 8.) JCCD hired Great
Circle to provide counseling, evaluation, and investigation services regarding the assessment and
facilitation of returning Harvey’s children to their mother’s home. (Compl. ¶¶ 9-10.) Harvey
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The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). [Doc. 9.]

alleges that the children’s mother shared her home with William Harris. (Compl. ¶ 11.) On
October 7, 2015, Great Circle, through one of its employees, filed a report in the Circuit Court of
Jefferson County, Missouri, indicating that there were reports of repeated physical abuse and
injury against A.K.H. while in her mother’s home and that Harris was a suspect in causing
A.K.H.’s injuries. (Compl. ¶¶ 12-15.) As a result of the alleged abuse, Harvey’s children were
removed from their mother’s residence.

(Compl. ¶ 16.)

Harvey alleges that Great Circle

recommended that all of the children, including A.K.H., be returned to their mother’s residence
and the children were returned to their mother’s custody on February 26, 2016. (Compl. ¶¶ 1718.) On March 17, 2016, Harvey alleges that A.K.H. was strangled by Harris and died. (Compl.
¶ 22.)
Harvey alleges that at the time of its recommendation for reunification, Defendant knew
or should have known that Harris continued to live with the mother and was an active heroin
user. (Compl. ¶ 20.) Harvey also alleges that Great Circle did not perform any evaluation,
screening, or additional investigation of Harris before recommending reunification. (Compl.
¶ 21.) Therefore, Harvey alleges that Great Circle breached its duty of care to A.K.H. and Great
Circle’s negligence was the direct and proximate cause of A.K.H.’s death. (Compl. ¶¶ 25-27.)
On April 14, 2017, Great Circle filed a Motion to Dismiss and Harvey has not responded
to the motion.
II.

Standard of Review
A defendant may file a motion to dismiss for failure to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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) (citing Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 570 (2007)). “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.” Iqbal, 556 U.S. at 678. “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide
the grounds for entitlement to relief [as required in Fed. R. Civ. P 8(a)] require more than labels
and conclusions, and formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (internal citations omitted). “Factual allegations must be enough to
raise a right to relief above the speculative level.” Id. Also, “while legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Iqbal,
556 U.S. at 679. “When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
III.

Discussion
Great Circle contends that it has immunity from liability under Missouri law, which

applies in this case. 2 Great Circle alleges that two statutes provide qualified immunity from the
claims in this action. The first statute at issue is Mo. Rev. Stat. § 210.114, which states:
Except as otherwise provided in section 207.085, a private
contractor as defined in subdivision (4) of section 210.110
with the children’s division that receives state moneys from
the division or the department for providing services to
children and their families shall have qualified immunity
from civil liability for providing such services when the child
is not in the physical care of such private contractor to the
same extent that the children’s division has qualified

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Plaintiff asserts that this court has jurisdiction over this case pursuant to 28 U.S.C. § 1332, due to the diversity of
citizenship between Plaintiff and Defendant and the amount in controversy exceeds $75,00.00. Defendant does not
challenge the basis for diversity. “It is of course, well-settled that in a suit based on diversity of citizenship
jurisdiction the federal courts apply federal law as to matters of procedure but the substantive law of the relevant
state. Hiatt v. Mazda Motor Corp., 75 F.3d 1252, 1255 (8th Cir. 1996) (citing Erie v. Tompkins, 304 U.S. 64, 78
(1938) (where jurisdiction of a case is based on diversity of citizenship, a federal court my apply state substantive
law and federal procedural law)).

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immunity from civil liability when the division or
department directly provides such services.
Mo. Rev. Stat. § 210.114.1. Qualified immunity does not apply
if a private contractor … knowingly violates a stated or
written policy of the division, any rule promulgated by the
division, or any state law directly related to child abuse and
neglect, or any state law directly related to the child abuse
and neglect activities of the division or any local ordinance
relating to the safety condition of the property.
Mo. Rev. Stat. § 210.114.2. This exception is more fully described in Mo. Rev. Stat. § 207.085,
which provides:
Any employee of the children’s division, including
supervisory personnel and private contractors with the
division, who is involved with child protective services and
purposely, knowingly, and willfully violates a stated or
written policy of the division, any rule promulgated by the
division, or any state law directly related to the child abuse
and neglect activities of the division shall be dismissed if the
violation directly results in serious physical injury or death,
subject to the provisions of subsection 2 of this section. The
provisions of this section shall apply to merit system
employees of the division, as well as all other employees of
the division and private contractors with the division, and
upon a showing of a violation, such employees shall be
dismissed for cause, subject to the provisions of subsection 2
of this section, and shall have the right of appeal pursuant to
sections 36.380 and 36.390. For purposes of this section, a
“private contractor with the division” means any private
entity or community action agency with the appropriate and
relevant training and expertise in delivering services to
children and their families as determined by the children's
division, and capable of providing direct services and other
family services for children in the custody of the children’s
division or any such entities or agencies that are receiving
state moneys for such services.

Mo. Rev. Stat. § 207.085.1.

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Harvey’s Complaint indicates that Great Circle is a contractor of JCCD and that A.K.H.
was not in the physical care of Great Circle when providing such services. The Complaint also
alleges negligence for failing to report to JCCD that reasonable cause existed to suggest that
A.K.H. might be subjected to abuse or neglect as a result of reunification with her mother.
Harvey’s Complaint does not allege knowing violations of laws or regulations described in Mo.
Rev. Stat. § 210.114.2. On the face of the Complaint, it appears that Great Circle is entitled to
qualified immunity under Mo. Rev. Stat. § 210.114.1 and none of the exceptions apply.
Second, Great Circle also contends that it is entitled to qualified immunity under Mo.
Rev. Stat. § 210.135.1, which states:
Any person, official, or institution complying with the
provisions of sections 210.110 to 210.165 in the making of a
report, the taking of color photographs, or the making of
radiologic examinations pursuant to sections 210.110 to
210.165, or both such taking of color photographs and
making of radiologic examinations, or the removal or
retaining a child pursuant to sections 210.110 to 210.165, or
in cooperating with the division, or any other law
enforcement agency, juvenile office, court, or childprotective service agency of this or any other state, in any of
the activities pursuant to sections 210.110 to 210.165, or any
other allegation of child abuse, neglect or assault, pursuant to
sections 568.045 to 568.060, shall have immunity from any
liability, civil or criminal, that otherwise might result by
reason of such actions. Provided, however, any person,
official or institution intentionally filing a false report, acting
in bad faith, or with ill intent, shall not have immunity from
any liability, civil or criminal. Any such person, official, or
institution shall have the same immunity with respect to
participation in any judicial proceeding resulting from the
report.

Mo. Rev. Stat. § 210.135.1. Harvey’s Complaint alleges that Great Circle is negligent for
A.K.H.’s wrongful death through its report recommending A.K.H.’s reunification with her
mother. Harvey has not alleged that Great Circle intentionally filed a false report or acted in bad
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faith or with ill intent. Therefore, Great Circle is immune from liability pursuant to § 210.135.1.
See Clark v. Mickes, No. 4:05-CV-1500 ERW, 2006 WL 1877084 at *5 (E.D.Mo. July 6, 2006).
Because the Court has found that Great Circle is immune from liability pursuant Mo. Rev. Stat.
§§ 210.114, 210.135, the Court will grant Great Circle’s motion to dismiss.
Accordingly,
IT IS HEREBY ORDERED that Defendant Great Circle’s Motion to Dismiss Plaintiff’s
Complaint for Failure to State a Claim Upon Which Relief Can be Granted is GRANTED.
[Doc. 5.]
IT IS FURTHER ORDERED that Plaintiff’s Motion for Rule 26 Conference is
DENIED as moot. [Doc. 10.]
Dated this 16th day of June, 2017.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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