Summers et al v. Second Chance Homes, LLC et al

Filing 159

ORDER granting 69 motion to dismiss case as to State Defendants Missouri Department of Mental Health, Missouri Department of Mental Health-Division of Developmental Disabilities, Mark Stringer, Valerie Huhn, Wendy Witcig, Marcy Volner, and Wendy Davis for failure to state a claim upon which relief can be granted. Signed on 9/28/2018 by District Judge M. Douglas Harpool. (Levin, Benjamin)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

CAROLYN SUMMERS, et al.,
Plaintiffs,
vs.
SECOND CHANCE HOMES
OF FULTON, et al.,
Defendants.

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Case No. 2:18-CV-04044-MDH

ORDER
Before the Court is State Defendants’ Motion to Dismiss Second Amended Complaint
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc.
69). State Entity Defendants, who are only named in Count V of the Complaint, are the Missouri
Department of Mental Health (DMH) and its Division of Developmental Disabilities (DMH-DD).
Individual Defendants, who are only named in Count IV of the Complaint, are Mark Stringer,
Valerie Huhn, Wendy Witcig, Marcy Volner, and Wendy Davis. They are sued in both their
individual capacities and in their official capacities as employees of DMH. For the reasons
explained below, the Court will grant the Motion to Dismiss as to both the State Entities and the
State Employees in their official and individual capacities.
BACKGROUND
For a period of time after Carl DeBrodie was appointed a guardian but before his death, he
was housed by Second Chance Homes of Fulton. Second Chance is a private, for-profit entity that
provides a residential healthcare facility for individuals with developmental disabilities. DMH,
through DMH-DD, contracted with Second Chance to provide its residential healthcare facilities
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to the developmentally disabled. Second Chance received money from federal and state sources in
exchange for its services, and was licensed to accept residents by DMH in accordance with
Missouri law. RSMo. § 630.710, et seq. At the time of the events giving rise to this action, Mark
Stringer was the director of DMH, responsible for the overall operation of the Department. Valerie
Huhn was the director of DMH-DD, responsible for the operation of the division that supervises
the certification of residential healthcare facilities like Second Chance. Wendy Witcig was DMHDD’s deputy director, responsible for Community Operations in the division. Wendy Davis was
the director of DMH-DD’s Central Missouri Regional Office, which includes Callaway County.
Marcy Volner was the assistant director of DMH-DD for the Central Missouri Regional Office.
Each of the defendants are either directly involved in the licensing and regulation of residential
healthcare facilities that serve developmentally disabled individuals or hold a supervisory position
over officials who are. DMH also provided funding and resources to Calloway County Special
Services (CCSS), a non-profit entity that provided support and case-management services for
DeBrodie on behalf of the Callaway County Public Administrator.
Plaintiffs’ action filed under 42 U.S.C. § 1983 claims that State Defendants violated
DeBrodie’s rights under the Due Process Clause of the Fifth and Fourteenth Amendments of the
United States Constitution. Plaintiffs claim that the State Defendants failed to establish and enforce
rules and procedures to monitor, supervise, and otherwise ensure the safety of disabled individuals
in residential care facilities such as DeBrodie. Plaintiffs further argue that State Defendants’ failure
to adequately ensure the safety of disabled individuals was the direct and proximate cause of
DeBrodie’s emotional distress, physical pain, and eventual death. Plaintiffs request all damages
allowable under law, including punitive damages.
STANDARD OF REVIEW

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The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of
the complaint. When considering a Rule 12(b)(6) motion, the Court assumes the factual allegations
of a complaint are true and construes them in favor of the plaintiff. Neitzke v. Williams, 490 U.S.
319, 326-27 (1989). “To survive a motion to dismiss [under 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). A complaint is facially plausible where its factual
content “allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The plaintiff must plead facts that show more than a mere speculation
or possibility that the defendant acted unlawfully. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). While the Court accepts the complaint’s factual allegations as true, it is not required
to accept the plaintiff’s legal conclusions. Ashcroft, 556 U.S. at 678. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
The court’s assessment of whether the 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 reviewing court must read the complaint as a whole rather than
analyzing each allegation in isolation. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th
Cir. 2009).
DISCUSSION
A. Carol Samson Is A Proper Plaintiff In This Action
State Defendants claim that Ms. Samson, who is the personal representative of the estate
of Carl DeBrodie, is not a proper Plaintiff in this case. State Defendants point to the first paragraph
of Plaintiff’s complaint, which identifies their action as resulting from both the wrongful death of
DeBrodie and the violation of his civil rights under 42 U.S.C. § 1983. State Defendants argue that

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the Complaint alleges that these two claims are not independent—that, according to the Complaint,
the sum of State Defendants’ violations of § 1983 led directly to the wrongful death of DeBrodie.
The distinction is crucial because if the claim is solely to recover for acts that resulted in
DeBrodie’s death, the Missouri wrongful death statute is the sole vehicle by which a claim can be
brought. Andrews v. Neer, 253 F.3d 1052, 1058 (8th Cir. 2001). Under Missouri’s wrongful death
statute, only Carolyn Summers, as the biological mother of DeBrodie, is a proper plaintiff. RSMo.
§ 537.080. Alternately, if there is a § 1983 claim arising from acts that did not result in DeBrodie’s
death, Samson, as the personal representative of the estate, would be a proper plaintiff to recover
damages in this case.
In support of their argument, State Defendants cite chiefly to parts of the Complaint that
identify the death of DeBrodie as the result of State Defendants’ policies and conduct and request
as relief funeral expenses and the value of DeBrodie’s future estate. In response, Plaintiff’s state
that their Complaint alleges that DeBrodie suffered numerous injuries that preceded and did not
result in his death, and that their § 1983 claims seeking recovery for these injuries are separate
from their wrongful death claims.
The Court does not consider the Plaintiff’s Complaint a model of clarity on this matter.
However, after carefully reviewing the Complaint, the Court finds allegations that DeBrodie
suffered injuries in the months and years preceding his death that may be linked to State
Defendants’ alleged constitutional violations but did not contribute to his ultimate death in the
autumn of 2016. These injuries could therefore lead to causes of action that fall outside of
Missouri’s wrongful death statute, pursuable after his death by the personal representative of his
estate. For this reason, the Court holds that Carol Samson is a proper plaintiff in this claim to the
extent that not all of the constitutional violations alleged by Plaintiff resulted in DeBrodie’s death.

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The Court additionally notes that Carol Samson is designated as the Next Friend of Carolyn
Summers as she pursues her wrongful death claim. State Defendants do not dispute her designation
as Carolyn Summer’s Next Friend.
B. State Agencies Are Not Subject to Suit Under 42 U.S.C. § 1983
Plaintiffs in Count V recite a § 1983 claim against the Missouri Department of Mental
Health and its Division of Developmental Disabilities, asserting that these governmental entities
are “persons” for the purpose of a § 1983 action. However, the Supreme Court has held that state
agencies are not persons subject to suit under Section 1983. Will v. Michigan Dept. of State Police,
491 U.S. 58, 70-71 (1989) (“We hold that neither a State nor its officials acting in their official
capacities are “persons” under § 1983”); See also Barket, Levy & Fine, Inc. v. St. Louis Thermal
Energy Corp. 948 F.2d 1084, 1086 (8th Cir. 1991) (“An agency exercising state power is not a
“person” subject to suit under section 1983 if the agency is entitled to the state’s sovereign
immunity under the Eleventh Amendment.”). DMH and DMH-DD are not persons subject to suit
for the purpose of a § 1983 action. Accordingly, the Court will grant State Defendant’s Motion to
Dismiss Count V of the Second Amended Complaint as it pertains to the Missouri Department of
Mental Health and its Division of Developmental Disabilities. Furthermore, because the Supreme
Court in Will was clear that persons acting in their official capacities are not “persons” under §
1983, the Court will also grant State Defendants’ Motion to Dismiss all Counts against the
individual State Defendants in their official capacities.
C. Plaintiffs Do Not Adequately Plead a Constitutional Violation Under the Due
Process Clause of the U.S. Constitution
State Defendants argue that the claims against the state employees in their individual
capacities must also be dismissed because Plaintiffs do not state an adequate § 1983 claim in that

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there is no underlying constitutional violation alleged. Plaintiffs in Count IV assert that State
Defendants were responsible for establishing, enforcing, and training others regarding DMH
policies and procedures to ensure the health and safety of disabled individuals like DeBrodie.
Specifically, they argue State Defendants had a duty to establish and maintain the necessary
policies, procedures, practices, and patterns to ensure that DeBrodie’s guardians and caretakers
were: 1) regularly conducting face-to-face contacts with disabled individuals or reporting instances
of non-contact; 2) providing medical care; 3) certifying that disabled individuals are receiving
necessary habilitation services, including food and clothing; 4) ensuring disabled individuals are
in fact safely residing at their assigned facility; and 5) auditing or otherwise verifying the
conditions of disabled individuals. Plaintiffs claim State Defendants’ failure to establish and
maintain these policies was a violation of DeBrodie’s substantive due process rights under the
Fifth Amendment of the U.S. Constitution. The right to personal security has traditionally
constituted an “historic liberty interest” protected substantively by the Due Process Clause of the
Fifth Amendment of the U.S. Constitution. Ingraham v. Wright, 430 U.S. 651, 673 (1977). This
right, derived from the Eighth Amendment of the U.S. Constitution, extends to those lawfully but
involuntarily committed in unsafe conditions. Youngberg v Romeo, 457 U.S. 307, 315-316 (1982).
See also Hutto v. Finney, 437 U.S. 678 (1978).
Plaintiffs do not assert a constitutional violation based on an allegation that any State
Defendant took specific action that endangered DeBrodie or that any such Defendant had prior
notice that DeBrodie or anyone similarly situated was imperiled. Instead, Plaintiffs are essentially
asking the Court to find that State Defendants’ violated DeBrodie’s substantive due process rights
by failing to create proper policies which, if enforced, could or should have prevented his injuries
and death. However, the Due Process Clause generally does not confer an affirmative duty on the

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government to provide for its citizens, even when such aid may be necessary to secure life or
liberty. Harris v. McRae, 448 U.S. 297, 317-318 (1980); Lindsey v. Normet, 405 U.S. 56, 74
(1972). Inadequate public policy alone is rarely sufficient to support claims of a constitutional
violation. Plaintiffs cite Youngberg to support the existence of such a duty in this case. In
Youngberg, the Supreme Court held that when the State involuntarily committed an individual to
its custody, it had a duty under the Due Process Clause to provide adequate food, shelter, clothing,
medical care, and a reasonable amount of safety to that individual. 457 U.S. 307, 315-318 (1982).
A similar duty exists as to inmates. See also Estelle v. Gamble, 429 U.S. 97, 103 (1976) (“An
inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so,
those needs will not be met.”) In a later case discussing Youngberg, the Supreme Court explained
that “In the substantive due process analysis, it is the State’s affirmative act of restraining the
individual’s freedom to act on his own behalf . . . which is the ‘deprivation of liberty’ triggering
the protections of the Due Process clause . . .” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,
489 U.S. 189, 200 (1989).
Plaintiffs attempt to analogize Youngberg to the instant case by asserting in their
Suggestions in Opposition to Plaintiffs Motion for Summary Judgment (Doc. 95) that “Carl was
under the direct care and supervision of the State of Missouri.” The Court rejects this assertion.
The facts as pled by Plaintiff indicate that the Public Administrator, not State Defendants, was
lawfully appointed by the court to serve as the guardian of DeBrodie and as guardian committed
him to the care of CCSS and Second Chance, both private entities. DeBrodie was at no point in
the custody of the State of Missouri or restrained by any of the State Defendants.
A review of the Complaint makes it clear DeBrodie’s freedom was restrained not by State
Defendants but by the actions of his court-appointed guardian and conservator, including his

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placement in a residential healthcare facility. The circuit court established DeBrodie’s
guardianship and the guardian appointed was the Public Administrator of Callaway County. While
the Court acknowledges that State Defendants licensed, regulated, and partially funded Second
Chance as well as CCSS, this does not transpose any of the State Defendants into the role of
DeBrodie’s guardian or caregiver. It also does not transform State Defendants into supervisors of
the individuals employed by Second Chance, Callaway County, or CCSS.
Plaintiffs argue that Youngberg is nonetheless properly applied in this situation because
DeBrodie was “wholly dependent on the State and its agencies and actors for every aspect of his
life.” Even taking this as true, it is not the holding of Youngberg that dependency alone creates an
affirmative duty to care for DeBrodie that Plaintiffs aver. Instead, the Supreme Court is clear that
the government’s affirmative duty to protect an individual arises only “from the limitation which
it has imposed on his freedom to act on his own behalf.” Youngberg, 489 U.S. 189, 200 (1989).
Plaintiffs state in their Complaint that the policies of State Defendants were inadequate to protect
the life and well-being of DeBrodie. Accepting the facts as pled, this might demonstrate poor
decision-making and/or implementation by the executive or legislative branches of state
government, including possibly the State Defendants themselves. But it does not equate to a
constitutional violation by State Defendants. The State Defendants failure to establish or
implement better policies does not constitute an affirmative action restraining DeBrodie’s freedom
and thereby triggering the constitutional protections described in Youngberg. Because of this, the
Court declines to find that State Defendants had a substantive duty to DeBrodie under the Due
Process Clause of the United States Constitution. Consequently, the Court will grant State
Defendants’ Motion to Dismiss the claims against them for failing to state a claim upon which
relief can be granted.

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IV.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS Defendant’s Motion to Dismiss the
Second Amended Complaint as to the Missouri Department of Mental Health, the Missouri
Department of Mental Health, Division of Developmental Disabilities, Mark Stringer, Valerie
Huhn, Wendy Witcig, Marcy Volner, and Wendy Davis. (Doc. 69). Those claims are dismissed
without prejudice. Since Plaintiff’s Complaint contains no allegations that any State Defendant
had actual notice of the alleged injuries suffered by DeBrodie, the Court declines to decide whether
such notice would be sufficient to create a constitutional duty on the part of State Defendants. If
during the course of litigation it is revealed that State Defendants undertook an affirmative action
that had the effect of restraining DeBrodie’s freedom or endangering him, or had notice of such an
action, Plaintiffs are granted leave to file an amended complaint that includes a description of the
action taken or notice received by State Defendants.
IT IS SO ORDERED.
DATED:

September 28, 2018

/s/ Douglas Harpool_______________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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