Raymond et al v. Gloria et al

Filing 53

DECISION AND ORDER granting 50 Motion for Judgment as a Matter of Law. So Ordered by Judge William E Smith on 2/26/2009. (Geile, Wendy) (Additional attachment(s) added on 4/16/2009: # 1 Decision & Order - Searchable) (Farrell Pletcher, Paula).

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UNITED STATES D I S T R I C T COURT D I S T R I C T OF RHODE ISLAND

)

J . R . , a m i n o r , P . P . A . MOLLY RAYMONDi B . R . , a m i n o r , P . P . A MOLLY RAYMOND, Plaintiffs,

) )

)
) ) )

v.

C.A. No. 08-137 S

)

MARGARET GLORIA, I n d i v i d u a l l y a n d ) in her Capacity as a Social Workeri) STEPHANIE TERRY, I n d i v i d u a l l y a n d ) in her Capacity as Supervisori ) ) STATE OF RHODE ISLAND D E P T . OF ) CHILDREN, YOUTH, AND F A M I L I E S , Defendants.
) )

----------------)
DECISION AND ORDER

WILLIAM E . SMITH, U n i t e d S t a t e s D i s t r i c t J u d g e . In this case, have sued a twin boys through t h e i r mother Molly Raymond the Rhode Island

social worker and supervisor of

Department of Children, Youth, and Families (UDCYF"). t h e DCYF e m p l o y e e s w e r e n e g l i g e n t a n d ,

They claim
§

u n d e r 4 2 U. S . C .

1983,

violated t h e i r substantive due process rights by f a i l i n g to remove them from a f o s t e r home i n which they were (allegedly) abused .

After six days of t r i a l before a jury, at the close of Plaintiffs' case, the Court granted Defendants' motion for judgment as a matter of law pursuant t o Fed. R. civ. P. SO(a). This decision explains

in detail the Court's reasons for granting the motion .

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I.

Procedural History Some d i s c u s s i o n o f t h e t r a v e l o f t h i s c a s e i s h e l p f u l i n o r d e r

to

understand

its

lengthy

gestation,

and

to

e x p l a i n why

the

qualified immunity defense was not addressed e a r l i e r .

Qualified

immunity i s , a f t e r a l l , immunity from s u i t , not a "mere defense to liability" and in the usual course is decided before trial.

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Hunter v. Bryant, 502 U.S. 224, 228 (1991) . Plaintiffs originally brought a Defendants sporadic in Rhode activity negligence action against Years of 3, 2008,

Island Superior Court and on or

in 2001. April

followed

about

P l a i n t i f f s a m e n d e d t h e i r c o m p l a i n t t o a l l e g e a v i o l a t i o n o f 42 U.S.C.
§

1983.

After defending in state court for seven years

without reaching t r i a l , Defendants seized the opportunity to remove the case to this Court once i t presented a federal question under 28 U . S . C .
§

1331.

Defendants deliberately

(and understandably)

c h o s e n o t t o p r e s s t h e q u a l i f i e d i m m u n i t y d e f e n s e u n t i l t h e R u l e 50 stage, because a favorable decision might r e s u l t in remand of the negligence claims to state court, thus delaying final resolution. II. P l a i n t i f f s ' Fourth Amended Complaint On t h e f i r s t d a y o f t r i a l , t h e C o u r t i n q u i r e d w h e t h e r t h e § 1 9 8 3 c l a i m s w e r e a g a i n s t t h e DCYF e m p l o y e e s i n t h e i r i n d i v i d u a l capacities, o f f i c i a l capacities, or both, because the Complaint was

2

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unclear. 1

P l a i n t i f f s ' counsel responded t h a t Defendants were named capacities as social worker and supervisor.

in their official

While the § 1983 claim i s further discussed i n f r a , the reason for the Court's inquiry was t h a t except f o r an Ex p a r t e Young claim for prospective, injunctive r e l i e f (inapplicable here), a § 1983 claim against a state actor in her official capacity is treated as a suit against the government entity where she works. 209 U.S . 123

(1908) i Kentucky v. Graham, 473 U.S. 159, 165-67 (1985) i Dirrane v.

Brookline Police Dep't,

315 F.3d 65,

71

(1st Cir.

2002).

And,

because Rhode Island and i t s agencies are not "persons" under § 1983, Will v. Michigan Dept. of State Police, 491 U.S. 58, 71

(1989), o f f i c i a l capacity claims are not a viable theory for § 1983 money damages. Any discernable claim f o r money damages out of

o f f i c i a l c a p a c i t y l i a b i l i t y a g a i n s t DCYF e m p l o y e e s w o u l d o r d i n a r i l y b e d i s m i s s e d b e c a u s e DCYF, a s a n a r m o f t h e S t a t e , i s e n t i t l e d t o Eleventh Amendment sovereign immunity. See Pennhurst State Sch. & ("a suit in which the is named as the

H o s p . v . H a l d e r m a n , 4 6 5 U . S .. 8 9 , 1 0 0 ( 1 9 8 4 ) State or one defendant Jordan, is of its agencies

or departments

proscribed by U.S. 332,

the

Eleventh Amendment) i (1979) (absent other

Quem v. waiver or See

440

341-42

consent, Eleventh Amendment immunity applies t o § 1983 cases) . discussion Section VI, infra.

1 The operative Complaint a t t h a t time was P l a i n t i f f s ' Third Amended Complaint. P l a i n t i f f s v o l u n t a r i l y dismissed t h e Loss of Consortium count.

3

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Recognizing their self-described "confusion" and "erroneous response" to the Court's questions, P l a i n t i f f s moved t o submit a Fourth Amended Complaint, adding " c l a r i f y i n g language" t o r e f l e c t an intention to sue Defendants Margaret ("Peggy") Gloria and

Stephanie Terry in their individual capacities.

Plaintiffs argued

that regardless of counsel's misstatement, the travel of the case and substance of the prior complaint reflected their intent to actually pursue individual liability. uncertainty in pleading
§

1983

claims

is

not

uncommon.

S p e c i f i c i t y i s encouraged but when the issue i s l e f t "murky," the First Circuit looks to the "substance of the pleadings and the course of proceedings in order to determine whether the suit is for individual or official liability." I , 22 (10th (Lst; C i r . Cir. 2004) Powell v. Alexander, 391 F.3d 997 F2d 712, 715 here

(quoting Pride v. Does, Almost all relevant

1993).

considerations

signaled an intent to seek individual liability.

Plaintiffs '

c o m p l a i n t s o u g h t p u n i t i v e d a m a g e s a n d m e n t i o n e d n o DCYF f a i l u r e s with respect individual to policy or and custom. The allegations involved the

knowledge

inaction.

. Defendants

asserted

qualified immunity defense (only available for individual § 1983 claims) f r o m t h e b e g i n n i n g , a n d DCYF c o u n s e l w a s " s u r p r i s e d " t o

hear Plaintiffs state to the Court that they intended to bring only official capacity claims. There i s no dispute that Defendants had as Plaintiffs' intentions "can be

notice of individual claims,

4

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ascertained fairly." F . 3 d 5 6 , 61

I d . a t 2 2 - 2 3 ( q u o t i n g B i g g s v . Meadows, 66 The C o u r t t h e r e f o r e a c c e p t s t h e
§

(4th Cir. 1995)).

F o u r t h Amended C o m p l a i n t a s a l l e g i n g i n d i v i d u a l c a p a c i t y

1983

claims against Defendants Gloria and Terry ( t r i a l proceeded on that basis)
.2

III. Factual Background W h i l e t h e t r u e i n c e p t i o n o f t h i s c a s e may d a t e b a c k a s f a r a s 1 9 8 5 , 3 t h e C o u r t b e g i n s i t s summary i n 1 9 9 2 , r e v i e w i n g t h e f a c t s i n the light most favorable to Plaintiffs. A. Pre-Placement History (now a g e 16) w e r e b o r n t o M o l l y Raymond o n

J.R. and B.R.

A u g u s t 1 0 , 1 9 9 2 . 4 Ms. Raymond h a s t h r e e o t h e r c h i l d r e n : J a m e s (now a g e 3 4 ) , R i c h a r d (now a g e 2 9 ) , a n d J e f f r e y (now a g e 1 9 ) . DCYF

-f i r s t r e m o v e d J . R . , B . R . a n d J e f f r e y f r o m Ms . R a y m o n d ' s c a r e a f t e r a n i n c i d e n t i n M a r c h o f 1 9 9 4 , when p o l i c e r e s p o n d e d t o h e r home i n Woonsocket, Rhode I s l a n d f o r a domestic i n c i d e n t . A t t r i a l , Ms.

Raymond d e s c r i b e d t h i s a s " a f a m i l y t h i n g " i n v o l v i n g D e n n i s D r a k e , who l i v e d w i t h h e r a t t h e t i m e a n d i s s a i d t o b e t h e t w i n s ' biological father. DCYF w a s n o t i f i e d a n d r e m o v e d t h e c h i l d r e n

2 At t r i a l , P l a i n t i f f s voluntarily dropped a g a i n s t c u r r e n t DCYF d i r e c t o r P a t r i c i a M a r t i n e z .

their

claims

3 Some e v i d e n c e i n d i c a t e s DCYF f i r s t o p e n e d a c a s e o n m o t h e r M o l l y Raymond w e l l b e f o r e t h e t w i n s w e r e b o r n .
4 For privacy of the non-identical minor twins, the Court uses initials.

5

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b e c a u s e o f t h e c o n d i t i o n o f t h e home a n d c l o s e c o n f i n e m e n t c o n c e r n s stemming from a hook latch on an upstairs bedroom door where the twins slept. After temporary care, the three young boys were soon returned t o Ms. Raymond, who h a d moved t o C o n n e c t i c u t . The connecticut

Department of Children and Families became involved i n overseeing t h e c a s e , a n d i n May o f 1 9 9 5 e x p r e s s e d c o n c e r n s t o Ms. T e r r y , t h e DCYF Rhode I s l a n d c a s e s u p e r v i s o r . DCYF r e c e i v e d r e p o r t s a b o u t Ms.

Raymond's f a i l u r e to follow through with offered services, domestic violence, and inability to provide basic parenting and supervision. Ms. T e r r y a n d a s o c i a l w o r k e r ( n o t Ms. G l o r i a ) r e t r i e v e d t h e t h r e e b o y s i n C o n n e c t i c u t u n d e r t h e w a t c h o f t h e S t a t e P o l i c e , who w e r e c a l l e d b e c a u s e o f w h a t Ms. T e r r y d e s c r i b e d a s p a s t h o s t i l e a n d t h r e a t e n i n g e n c o u n t e r s w i t h Ms. Raymond a n d Mr. D r a k e . The b o y s w e r e a g a i n p l a c e d i n t e m p o r a r y c a r e a n d t h e n r e t u r n e d t o t h e i r m o t h e r u p o n h e r move b a c k t o R h o d e I s l a n d i n o r a r o u n d · A u g u s t 1 9 9 5 . 5 Ms. Raymond b e g a n r e q u i r e d p a r e n t i n g , d o m e s t i c a b u s e and substance abuse services, and t e s t i f i e d that the twins were doing well in a Woonsocket head s t a r t program. 1 9 9 6 , Ms. In the fall of

G l o r i a was a s s i g n e d t o b e t h e s o c i a l w o r k e r o n t h e

Ms. T e r r y t e s t i f i e d t h a t a r o u n d t h i s t i m e Ms. Raymond a s k e d DCYF t o come a n d t a k e t h e b o y s a f t e r t h e t w i n s h a d c l i m b e d o u t o f a window, b e c a u s e s h e c o u l d n o t m a n a g e , was d i s t r a u g h t , i n t o x i c a t e d , a n d w a s p h y s i c a l l y a b u s e d b y Mr. D r a k e . Ms. T e r r y t e s t i f i e d t h a t Ms. Raymond r e v o k e d t h i s v o l u n t a r y p l a c e m e n t d a y s l a t e r a n d , o v e r DCYF's o b j e c t i o n , t h e F a m i l y C o u r t o r d e r e d t h e children returned.
5

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Raymond case f o r J e f f r e y and the twins.

In November 1996, police

a n d DCYF r e s p o n d e d t o a n o t h e r d o m e s t i c d i s p u t e b e t w e e n M s . R a y m o n d and Mr. Drake, who both appeared i n t o x i c a t e d . At t r i a l , there were

varying accounts of the details of this incident, including that Ms. R a y m o n d w a s p u s h e d i n t o a c a r a n d b r o k e t h e c a r d o o r w i n d o w and/or t h a t she attempted t o drive away before police arrived. children were home during the a l t e r c a t i o n , arrested. and Ms. The

Raymond was

The c h i l d r e n were again removed from the home and a f t e r in

s h o r t - t e r m e m e r g e n c y c a r e , DCYF p l a c e d t h e t w i n s ( t h e n a g e 4) the l i c e n s e d f o s t e r home of F a i t h Sykes. 6 B. T h e S y k e s F o s t e r Home an African-American woman,

In 1996 Faith Sykes,

lived in a

two-family dwelling in Providence.

Ms. G l o r i a and Ms. Terry were Ms. Raymond t e s t i f i e d t h a t

not involved in the placement decision.

she had no problem with her Caucasian children living in a "black f o s t e r home" so long as they were cared f o r , although there was

testimony that she told the twins to call their foster parents "monkey men" and used o t h e r r a c i a l s l u r s . Ms . T e r r y t e s t i f i e d t o

h a v i n g s o m e c o n c e r n a b o u t t h e p l a c e m e n t b e c a u s e DCYF g e n e r a l l y t r i e s to place minority children in minority homes. t h i s with a placement worker who, She discussed

based on the history of the

6 DCYF's decision to place brother Jeffrey in a different f o s t e r home stemmed from concern regarding h i s p r i o r supervision of his younger twin brothers and his need for individual attention.

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Raymond case, f e l t comfortable Ms. Sykes could "manage."7

Former

DCYF l i c e n s i n g u n i t w o r k e r L i n d a I a c i o f a n o r e f e r r e d t o M s . S y k e s a s an even-tempered, licensed. nice person whose home she visited and re-

Ms. G l o r i a s a i d M s . R a y m o n d e x p r e s s e d a n i n i t i a l c o n c e r n

t h a t the twins would be scared i n a "black" home b u t then s a i d i t was fine. There was much c o n f l i c t i n g testimony about who l i v e d i n the Sykes home and when. T h e DCYF l i c e n s e c o v e r e d t h e s e c o n d a n d t h i r d

f l o o r s , and i t i s undisputed t h a t Ms. Sykes l i v e d t h e r e with her common-law husband, Marron Smith, and t h e i r daughter Bobbie. twins had a bedroom on the third floor, The

and the f i r s t floor was

r e f e r r e d t o a s a s e p a r a t e "a p a r t me n t t h a t M s . S y k e s w o u l d s o m e t i m e s rent. There was also a basement . P l a i n t i f f s claimed two men not

o n t h e f o s t e r l i c e n s e , W i l l i a m L o v i k k8 ( " B o b o " ) a n d S a m u e l S t e v e n s ("Thinman" ) , lived there at times and cared for the twins on a

r e g u l a r b a s i s when Ms. Sykes was working. DCYF foster care regulations in 1998 defined "household Ms. Sykes

member" as anyone who r e g u l a r l y r e s i d e d i n t h e home.

t e s t i f i e d t h a t Thinman l i v e d a t t h e home sometimes when the twins were placed there, and described him as moving in and out a t

7 The record i s replete with evidence about the twins' use of vulgarity and extreme behavior, which was described as aggressive, out of control, hard to maintain, overly active, and beyond that of "normal" youngsters.
8

Mr. Lovikk's name a l s o appears i n t h e records as "Lovett."
8

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various times and helping by, school.

for example, walking the twins to

She s a i d BoBo s h a r e d t h e a d d r e s s · b u t d i d n o t l i v e t h e r e

"consistently" because his mother lived right behind the Sykes. Ms . S y k e s t e s t i f i e d t h a t s h e n e v e r t o l d t h e l i c e n s i n g u n i t w h e n BoBo o r T h i n m a n l i v e d i n h e r h o m e , b u t t h a t M s . G l o r i a k n e w a b o u t t h e m a n d s a i d DCYF w o u l d h a v e t o d o a b a c k g r o u n d c h e c k o n p e r s o n s "surrounding" the twins. Sykes very often because B.R. t e s t i f i e d t h a t he d i d not see Ms. she worked, and J .R . testified (via

videoconference) t h a t he saw Thinman and Bobo "a l o t , " because they were " p r e t t y much" there the whole time. Ms. T e r r y t e s t i f i e d t h a t s h e , M s . G l o r i a , a n d DCYF c a s e a i d e M a r y S t a r n e s 9 l e a r n e d t h a t BoBo a n d T h i n m a n h a d s o m e i n v o l v e m e n t i n the home, discussed the s i t u a t i o n , and decided Ms. Gloria would ask Ms. Sykes for information. Ms. Terry testified that although

T h i n m a n h e l p e d w i t h c a r e , b a s e d o n t h e i n f o r m a t i o n DCYF r e c e i v e d i t was determined that neither he nor Bobo was a caretaker or

household member.

S o m e t i m e e a r l y o n i n t h e p l a c e m e n t w h e n Ms.

Gloria learned of Bobo and Thinman, she asked Ms. Sykes about them a n d was t o l d BoBo was W i l l i a m L o v i k k , a f r i e n d a n d n e i g h b o r , l O a n d Thinman was Samuel Stevens, a family f r i e n d who worked nearby as a s e c u r i t y guard and would o f t e n be a t the home between s h i f t s . Gloria testified that she provided
t~is

MS. her

information

to

9

Mary S t a r n e s now goes by Margaret Wood. At t r i a l , Ms. S y k e s r e f e r r e d t o BoBo a s a f i r s t c o u s i n .
9

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s u p e r v i s o r Ms. testified that

Terry

to

have a

"clearance"

done.

Ms.

Terry

she directed her administrator to

coordinate a

background check on Thinman through a verbal check with the Rhode Island Attorney General's clearance and fact Gloria. DCYF h a s office, and recalled discussing the s e c u r i t y g u a r d w i t h Ms.

t h a t Thinman was a

No o n e r e c a l l e d w h e t h e r a c l e a r a n c e w a s d o n e f o r B o B o , a n d no records of any background check for e i t h e r man.

Defendants Gloria and Terry s a i d they knew Thinman o f t e n brought the children to the case aide's car and helped bring them up and down t h e s t a i r s b e c a u s e t h e c a s e a i d e h a d a d i s a b i l i t y , b u t h a d n o reason to believe he had any role beyond helping out the foster parents. C. DCYF L i c e n s i n g , B a c k g r o u n d C h e c k s , a n d R e c o r d K e e p i n g

M a n a g e m e n t o f f o s t e r c a r e s p a n s d i f f e r e n t d e p a r t m e n t s a t DCYF, though the d i v i s i o n of r e s p o n s i b i l i t y was not made c l e a r a t t r i a l . Among o t h e r s , t h e r e i s a p l a c e m e n t u n i t a n d l i c e n s i n g u n i t . Former

supervisor of the licensing unit Philip Steiner testified that a social worker "theoretically" would have to notify the licensing unit of family composition changes a t a f o s t e r home, but he could not say i t happens a l l of the time. As p a r t o f t h e f o s t e r c a r e

a g r e e m e n t w i t h DCYF, f o s t e r p a r e n t s m u s t n o t i f y t h e l i c e n s i n g u n i t of "changes in household composition." Mr. S t e i n e r t e s t i f i e d t h a t

DCYF m a y i s s u e a v e r b a l w a r n i n g t o a f o s t e r p a r e n t w h o s e o n l y

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i n f r a c t i o n w a s f a i l u r e t o t i m e l y n o t i f y DCYF o f a n e w h o u s e h o l d m e m b e r . 11 The evidence a t t r i a l established t h a t a t the time of the t w i n s ' p l a c e m e n t i n 1 9 9 6 , DCYF p o l i c y r e g a r d i n g b a c k g r o u n d c h e c k s was cumbersome and antiquated. Regulations and/or policy required

fingerprint background checks for actual foster parents, but did not require or allow fingerprinting for non-foster parents.

Instead,

the usual procedure was t o obtain personal information

such as name and date o f b i r t h from an i n d i v i d u a l along with a w r i t t e n c o n s e n t f o r m , w h i c h a DCYF w o r k e r w o u l d p h y s i c a l l y b r i n g t o the Rhode Island Attorney General's Office in Providence for

c l e a r a n c e . 12

C e r t a i n DCYF e m p l o y e e s c o u l d a l s o o b t a i n b a c k g r o u n d

checks via telephone by calling the Attorney General's office through use of a code or password. about whether a verbal There was conflicting testimony any confirmatory

check would generate

paperwork.

DCYF e m p l o y e e s t e s t i f i e d t h a t f o s t e r c a r e b a c k g r o u n d

checks from 1996 t o 1998 were almost always limited t o Rhode Island crimes, except f o r occasional instances when the Rhode Island State

1 1 T h e 1 9 9 8 DCYF r e g U l a t i o n s i n t r o d u c e d a t t r i a l s t a t e t h a t a license "shall be revoked" for various reasons, including a foster parent's failure to comply with regulations or "cooperate with the agency in i t s licensing process, including falsification or omission of facts." 12 The 1998 regulations s t a t e "each applicant and adult household [member] s h a l l have h i s o r her name c l e a r e d with the Attorney General's Office, Bureau of Criminal Identification, for evidence of a criminal record. Other criminal background checks may be conducted a t t h e Department's d i s c r e t i o n . "

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Police would allow a nationwide check in the context of a criminal investigation. clearance The much more comprehensive nationwide electronic through the FBI was not implemented until

process

approximately 2001. I n 1 9 9 7 , DCYF t r a n s i t i o n e d f r o m p a p e r f i l e s a n d h a n d w r i t t e n notes to an internal computer database in which employees entered case information. I t t o o k a p e r i o d o f t i m e f o r DCYF t o i m p l e m e n t and during the transition notes would

the new system i n f u l l ,

sometimes be given to a secretary for transcription and input into the database. Ms. Terry occasionally accessed the database f o r

case information but primarily obtained information about anything "eventful" directly from social workers and case aides through daily office contact. Ms. Gloria s a i d she was r e s p o n s i b l e f o r (the

reviewing c a s e n o t e s and would have seen some o f Ms. S t a r n e s '

case aide) notes, but t h a t they may not have been a v a i l a b l e i n 1997 and 1998 i n t h e i r e n t i r e t y . D. Events During Sykes Placement

T h e t w i n s l i v e d i n M s . S y k e s ' horne f o r a p p r o x i m a t e l y e i g h t e e n m o n t h s f r o m N o v e m b e r o f 1 9 9 6 t h r o u g h May o f 1 9 9 8 . Ms. Raymond and

Mr. Drake had supervised v i s i t s with the twins, including arranged

v i s i t s t h r o u g h DCYF a t t h e P r o v i d e n c e C h i l d r e n ' s M u s e u m .
Gloria also arranged counseling through Children's

Ms.

Friend and

Service in Providence in early 1997, and the twins were accepted a t the Providence Center for treatment related to hyperactive

12

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behavior,

aggression,

parental

substance

and

domestic

abuSe .

T h r o u g h t h e s p r i n g o f 1 9 9 8 , Ms.

Gloria received written updates

from the Providence Center about the twins. T h r e e DCYF e m p l o y e e s h a d s u b s t a n t i a l c o n t a c t w i t h J . R . B.R. during the placement.
~adjunct"

and

First, case aide Starnes acted as an

social worker responsible for transporting the twins to Second, social worker Gloria

and from v i s i t s and appointments.

monitored the Raymond family and was a l s o assigned t o brother Jeffrey. Gloria. Third, supervisor Terry oversaw Ms. S t a r n e s a n d Ms.

DCYF p o l i c y g e n e r a l l y r e q u i r e d a s o c i a l w o r k e r t o h a v e

contact with assigned children at least once every thirty days, a l t h o u g h M s . G l o r i a t e s t i f i e d t h a t s h e b e l i e v e d a n y DCYF c o n t a c t , such as a through a case aide, sufficed. During the placement, there were complaints and unfounded CANTS, o r u C h i l d A b u s e

CANTS i n v e s t i g a t i o n s i n v o l v i n g t h e t w i n s .

a n d N e g l e c t T r a c k i n g S y s t e m , " i s t h e p r o c e s s b y w h i c h DCYF r e c e i v e s complaints via a public telephone hotline. E v e r y DCYF e m p l o y e e i s O n c e DCYF Investigator

obligated to report suspicions of abuse or neglect . receives a CANTS report, a DCYF C h i l d P r o t e c t i v e

("CPI") (separate from the case aide, social worker, and supervisor already involved with a family or placement) is assigned to

investigate.

The s o c i a l workers and aides u s u a l l y receive some

notification of the nature of a complaint and the outcome, but in the ordinary course do not participate in the investigation. The

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cpr

determines

whether

a

CANTS

allegation

is

nfounded"

or

nunfounded."

The standard i n 1996 t o 1998 f o r such a finding was Ms. G l o r i a

whether "credible evidence" supported the allegation. 1 3

t e s t i f i e d t h a t s h e w a s n o t p r o v i d e d m u c h i n f o r m a t i o n a b o u t a CANTS investigation when i t was deemed unfounded. A March 1997 case aide note r e f l e c t s t h a t J.R. s a i d Bobo h i t h i m , a n d w h e n a s k e d w h y , J . R . s a i d " c a u s e we b e b a d a l l t h e t i m e . . . BoBo d e a f - h e t a l k s w i t h h i s h a n d s , h i m c o u n t t o 5 : 1 2 3 4 5 and hits our backs." questions. B.R. did not answer Ms. S t a r n e s ' follow up v i s i t Ms.

A July 1997 note reports that during a

Raymond took t h e t w i n s o u t o f s w e a t s u i t s b e c a u s e s h e f e l t t h e y were inappropriate f o r a summer day. bruising on J.R.' s Sykes' daughter. back, Ms. Raymond and Ms. S t a r n e s saw said was from Bobbie, Ms .

which J.R.

They also saw a mark on h i s shoulder, which J.R. No m a r k s w e r e f o u n d o n B . R . Ms .

said was from B.R. b i t i n g him.

R a y m o n d m a d e a CANTS r e p o r t t h a t a f a m i l y f r i e n d o r r e l a t i v e who was a deaf mute named Bobo hi t the twins. A

csr

deemed t h i s

unfounded a f t e r the children said t h e i r b r u i s e s came from playing with Bobbie. Ms. G l o r i a t e s t i f i e d t h a t Ms. Raymond complained t o h e r about the sweatsuits but did not mention bruises, learned about the report of bruises and and that she later that it was deemed

13 This was l a t e r changed to a somewhat more stringent "preponderance of the evidence" standard, although i t was unclear when between 1997 and 1999 t h i s change occurred.

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unfounded.

M s . G l o r i a t e s t i f i e d t h a t Ms. S y k e s s a i d t h e s w e a t s u i t s

w e r e a g i f t f r o m M s . R a y m o n d t o he:r; b o y s 1 a n d t h a t f o s t e r f a t h e r Mr . S m i t h t h o u g h t s h e w o u l d b e p l e a s e d t o s e e t h e t w i n s w e a r i n g t h e outfits on a v i s i t . Ms. Gloria provided Ms. Raymond with t h i s

explanation and said she seemed satisfied. In August 1997
1

the twins' counselor at Children/s Friend &

S e r v i c e c a l l e d t h e CANTS h o t l i n e a f t e r o b s e r v i n g s c r a t c h m a r k s -o n
J . R . ' s face and neck. J .R . told the counselor that he h i t his head

on a bedroom door when being watched by BoBo, who i s l i s t e d on the r e l e v a n t DCYF CPS R e p o r t b y a b b r e v i a t i o n a s a " h o u s e h o l d m e m b e r " and "perpetrator." The assigned CPI was unable to gather

sufficient evidence to substantiate an allegation of "Tying/Close Confinement" o r improper supervision with r e s p e c t t o Bobo or the f o s t e r father, Mr. Smith. The CPI noted t h a t both boys reported

J.R . banged himself against the wall while they fought. Ms. R a y m o n d o n c e t o l d M s . G l o r i a t h a t t h e t w i n s s a i d t h e y a t e out of the garbage. t o t a l k t o Ms. Sykes
1

Ms. G l o r i a t e s t i f i e d t h a t she went t o the home who laughed and s a i d one o f t h e boys took the Ms. Sykes explained

other's leftover dessert from the garbage.

that she told the twins to ask for more instead of eating out of the garbage
1

and that the boys thought eating out of the garbage There was also

was funny so they repeated i t over and over.

testimony t h a t i n 1997 B.R. r e p o r t e d t o Ms. Raymond during a v i s i t t h a t h i s "bum" hurt 1 and that together she, Ms. Terry and Ms.

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Starnes noticed his rectum seemed red.

Ms. R a y m o n d t e s t i f i e d t h a t

Ms . T e r r y s a i d s h e w o u l d t a l k t o Ms. S y k e s b e c a u s e p e r h a p s B . R . w a s not being wiped properly. References to Thinman begin to appear in the records Ms. in

October of 1997, about halfway through the placement.

Sykes

t e s t i f i e d that Thinman accompanied her to a counseling session with the twins. In December of 1997, a clinical supervisor at the

Providence Center addressed a l e t t e r regarding the twins to Samuel Stevens at the Sykes' address, mistakenly referring to Faith Sykes as Mr. Stevens' wife. Ms. S t a r n e s ' notes show Thinman a s s i s t e d

with getting the twins ready for v i s i t s and often greeted them upon return. She l i s t e d Thinman as a foster family r e l a t i v e , and a

March 1998 note mentions the "Thinman f o s t e r home."

Ms. Gloria

t e s t i f i e d t o v i s i t i n g t h e " Sykes home more f r e q u e n t l y towards the beginning of the placement as compared to the end because of

d i f f i c u l t i e s w i t h b r o t h e r J e f f r e y , a n d b e c a u s e c o u n s e l o r s a n d Ms. Sykes told her t h a t the twins were progressing. Ms. Gloria a l s o

t e s t i f i e d t o having r e g u l a r c o n t a c t with Ms. Raymond, who t o l d Ms. Gloria that she noticed improvement in the twins' behaviors and

wondered whether Jeffrey could also be placed with the Sykes. E. R e m o v a l F r o m S y k e s Home

On May 2 8 , 1 9 9 8 , a s c h o o l t e a c h e r c a l l e d DCYF a f t e r n o t i c i n g what appeared to be marks or bruising on the twins' wrists. t o l d h e r t o c a l l t h e CANTS h o t l i n e , w h i c h s h e d i d . DCYF

On t h e s a m e

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d a y , DCYF

cpr

Virginia Miller was assigned t o receive the complaint The twins reported to CPI

and investigate the abuse allegations.

Miller t h a t they had been h i t with a b e l t by a man they c a l l e d Thinman, and t h a t the b e l t would be under the sofa i n the basement a t the Sykes home. CPI Miller took the twins t o the emergency room CPI

to document the i n j u r i e s (bruising of a "rectangular shape").

Miller went t o t h e Sykes home and t e s t i f i e d t o seeing a b e l t lying across the back of a sofa in the basement. She spoke with Ms.

S y k e s a n d T h i n m a n , who d e n i e d h i t t i n g t h e t w i n s b u t s a i d h e t o o k them to the basement to separate or discipline them. allow the twins t o r e t u r n t o the Sykes home. Days later, Ms. Gloria brought clothing to the twins' DCYF d i d n o t

temporary placement.

The new f o s t e r mother expressed concern about

the twins t e l l i n g a story about throwing a baby out of a window. Ms. G l o r i a t e s t i f i e d t h a t s h e a n d t h e f o s t e r m o t h e r t a l k e d a b o u t the difference between a truth and a lie, and that one of the twins spontaneously s a i d they know a l i e and they "had l i e d on Thinman." Ms . G l o r i a n o t i f i e d C P I M i l l e r , w h o r e - i n t e r v i e w e d t h e t w i n s a n d reported that they again t o l d her Thinman h i t them.
As a r e s u l t of

cpr

M i l l e r ' s investigation, Faith Sykes was "indicated" for neglect "indicated" for physical abuse with subsequent This was the first a n d o n l y CANTS

and Thinman was injury,

cuts and bruises.

a l l e g a t i o n i n t o the home t h a t was "indicated" the placement.

(or founded) during

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F.

Events & Allegations Following Removal

Once Ms. Raymond graduated from a recovery program, J.R. was returned to her i n December of 1998 and B .R. February of 1999. Ms. was returned in

Raymond t e s t i f i e d t h a t upon t h e i r r e t u r n , She t e s t i f i e d about a time B.R. It's

the boys "just wasn't normal."

a c t e d o u t s e x u a l l y , w h e n J . R . s a i d " I t ' s n o t h i s f a u l t , rna. what happened when ' t h e y ' was with the black people."

Ms. Raymond

put the twins i n t o counseling and together with a counselor made a CANTS r e p o r t . DCYF r e c e i v e d t h i s c o m p l a i n t i n M a r c h 1 9 9 9 . The

complaint reported t h a t B.R. said he was touched i n h i s private parts a t the f o s t e r home, using the and CPI Edward Degnan was assigned. standard,

"preponderance of the evidence"

cpr

Degnan

found the allegation unfounded due to lack of credible evidence or corroboration. I n August 1999, a Bradley Hospital r e p o r t e r made

a n o t h e r CANTS r e p o r t a b o u t a d d i t i o n a l a b u s e d i s c l o s u r e s b y b o t h J .R. and B.R . , including being t i e d up on closet racks. Another

CPI i n v e s t i g a t e d and determined t h a t the a l l e g a t i o n was unfounded, noting t h a t Bobbie s a i d i t was a game the kids played. At t r i a l ,

one or both of the twins t e s t i f i e d · to being punished i n the foster home b y s t a n d i n g o n r i c e , m a d e t o e a t o u t o f t h e t r a s h c a n , a n d tied and/or beat up with belts. B.R. said " I was sexually abused"

and J.R. t e s t i f i e d t h a t Thinman touched h i s p r i v a t e p a r t s . 14

o r B. R . was abused i n t h e Sykes home and by 1 4 Whether J . R. whom i s a f a c t u a l d i s p u t e t h e C o u r t n e e d n o t a n d i n d e e d c o u l d n o t r e s o l v e . DCYF c h a l l e n g e d t h e r e l i a b i l i t y o f t h e d i s c l o s u r e s b u t a t 18

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Since 1998, the twins have been involved with inpatient and outpatient treatment f a c i l i t i e s , group homes, r e s i d e n t i a l programs, medications, mental and counselors problems. related to Due to extreme behavioral and concerns about Ms.

health

ongoing

Raymond's substance abuse and mental health,

DCYF f i l e d f o r a

termination o f p a r e n t a l r i g h t s but dismissed i t when Ms. Raymond appeared to make progress i n her treatment. As o f t h e d a t e o f

t r i a l , the twins ( s t i l l minors) resided at different out-of-state treatment facilities. Ramsey prepared a reviewed extensive Plaintiffs' expert psychiatrist Dr. Rebecca She read the

lengthy report and testified at t r i a l . medical records and DCYF documents, of

deposi tion

transcripts,

watched videotaped

depositions

t w i n s , i n t e r v i e w e d J . R . a n d B . R . a n d Ms. R a y m o n d , a n d s p o k e w i t h some of t h e twins' t r e a t i n g p s y c h i a t r i s t s . a n d B. R. suffer from chronic and severe She t e s t i f i e d that J.R. Post-Traumatic Stress

Disorder ("PTSD"), as both had been exposed to a traumatic event and exhibited extreme emotional reactions. 15 The future prognosis

the Rule 50 stage the j u r y could find the twins suffered harm. Ultimately, this i s irrelevant to the issues Defendants' motion p r e s e n t s . E q u a l l y i r r e l e v a n t i s e v i d e n c e a b o u t e v e n t s a f t e r DCYF removed the twins i the so-called "cover-up" by dismissing the indication against Thinman without a hearing and f a i l i n g to report allegations to the Providence Police. Plaintiffs argued that this DCYF " c o n s p i r a c y " e v i d e n c e w a s s o m e h o w r e l e v a n t t o d a m a g e s t o r e b u t the challenge to the twins' disclosures. See Watterson v. Page, 987 F.2d I , 8 n.7 (1st Cir. 1993) (conclusory conspiracy descriptions i n s u f f i c i e n t i n § 1983 cases).
1 5 DCYF w a s p r e p a r e d t o o f f e r e x p e r t t e s t i m o n y t h a t J . R . a n d B . R . d o n o t s u f f e r f r o m PTSD, o r i f t h e y d o i t i s i m p o s s i b l e t o

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for each boy appears grave. successfully lived

Dr. Ramsey t e s t i f i e d t h a t n e i t h e r has of a hospital, institution or

outside

residential community for any meaningful length of time. have had trouble i n t h e i r various placements,

The twins

and over the past

approximately ten years each have missed an "enormous" amount of educational, social and emotional learning. G. Summary o f P l a i n t i f f s ' Evidence

Viewing the evidence in the most hospitable light, Plaintiffs' theory of their case at trial follows. (if proven) may be summarized as

In 1997 and 1998, Defendants knew f o r months t h a t Bobo

and Thinman were involved with the twins and l i v i n g a t the Sykes home. F o s t e r mother Ms. Sykes was o f t e n a b s e n t , and Ms. G l o r i a had

almost no face-to-face contact with the twins during the l a s t six months of the placement. "strangers," Defendants did not investigate these a n d / o r n o t i f y t h e DCYF

perform background checks

licensing unit of the change in household composition, even though they were obligated to do so. The f o s t e r l i c e n s e was never revoked

but would have been i f the licensing u n i t had learned about Bobo

identify the triggering traumatic event due to their troubled childhood and o t h e r emotional attachment disorders. To address the sensitive expert testimony issues inherent in child abuse cases, the Court considered a series of motions in limine and held a Daubert hearing. I t issued a pre-trial ruling that experts could t e s t i f y to diagnosis (that the twins did or did not suffer from PTSD) a n d p o s s i b l e t r i g g e r i n g e v e n t s ( t h a t PTSD i s o r i s n o t c o n s i s t e n t w i t h c h i l d r e n who h a v e s u f f e r e d a b u s e ) . But, importantly, no expert witness was allowed t o opine t h a t the twins' PTSD w a s o r w a s n o t c a u s e d b y a b u s e , o r t h a t t h e t w i n s w e r e o r w e r e not actually abused i n the Sykes f o s t e r home.
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and Thinman.

D u r i n g t h i s s a m e p e r i o d , t h e r e w e r e m u l t i p l e CANTS

r e p o r t s and complaints by Ms. Raymond i n v o l v i n g s w e a t s u i t s on a summer day and i n s t a n c e s o f b r u i s i n g , s c r a t c h i n g and h i t t i n g . All

o f t h i s c u m u l a t e d i n t h e t w i n s s u f f e r i n g h a r m (PTSD) a f t e r b e i n g s e x u a l l y and p h y s i c a l l y abused by Thinman a n d / o r BoBo during the placement. A j u r y could f i n d , P l a i n t i f f s say, t h a t Ms. Gloria and

Ms. T e r r y k n o w i n g l y e m b a r k e d o n a c o u r s e o f c o n d u c t t h a t e n d a n g e r e d the twins by placing them with the Sykes, and/or had repeated

notice of the r i s k of danger such t h a t t h e i r f a i l u r e t o remove the twins amounted to conscience-shocking deliberate indifference to their safety and well-being.
IV.

S e e S e c . V, i n f r a .

Standard of Review F e d . R. c i v . P . 50 ( a ) p e r m i t s j u d g m e n t a s a m a t t e r o f l a w w h e n

a party i s "fully heard on an issue during a jury t r i a l and the court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the party on that issue." At the close of P l a i n t i f f s ' case, the role of the Court i s not to evaluate "the credibility of witnesses, resolve conflicts in

testimony, or evaluate the weight of evidence," but rather to view the evidence i n the l i g h t most favorable to P l a i n t i f f s , giving them the advantage of every fair 'and reasonable inference. IBM C o r p . , 1 4 5 F . 3 d 4 3 7 , 4 4 1 ( L s t ; C i r . 1 9 9 8 ) Criado v.

(quoting Gibson v.

City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994)); Richmond Steel I n c . v . P u e r t o R i c a n Am. I n s . C o . , 9 5 4 F . 2 d 1 9 , 2 2 ( 1 s t C i r . 1 9 9 2 )

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(plaintiff needs more . than a U e r e s c i n t i l l a " of evidence for issue m to go to jury) . and inferences A R u l e 50 m o t i o n s h o u l d b e g r a n t e d w h e n t h e f a c t s are one-sided and upoint so strongly and

overwhelmingly i n favor of the movant that a reasonable jury could not have reached" a verdict against that party. Aponte, 1 F.3d 62, 66 (1st Cir. 1993) Acevedo-Diaz v.

(internal citation omitted) .

While qualified immunity i s generally an issue for the Court and not the jury, Hunter, 502 U.S. a t 228, the current procedural posture does not Ugreatly influence the standard of review." Whether

Iacobucci v. Boulter, 193 F.3d 14, 23

(1st Cir. 1999).

before t r i a l o r a t the Rule 50 stage, the Court should construe any factual disputes underlying the qualified immunity analysis in favor of Plaintiffs. See .Jennings v. Jones, 499 F.3d 2, 7 (1st

Cir . 2007); Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir. 2009) . B u t s e e J e n n i n g s , 4 9 9 F . 3 d a t 22 ( L y n c h , J . d i s s e n t i n g ) (discussing

lack of c l e a r guidance regarding when judge may a c t as f a c t - f i n d e r in disputes underlying qualified immunity defense). According

deference to the jury's possible resolution of all factual disputes i n P l a i n t i f f s ' f a v o r , t h e C o u rt f i n d s t h e r e w a s n o c o n s t i t u t i o n a l violat ion and concludes that both Defendants are e ntitled to

qualified immunity.

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V.

Discussion -

§

1983 Claims

A.

Qualified Immunity

P l a i n t i f f s s u e d Ms. G l o r i a a n d Ms. T e r r y f o r m o n e y d a m a g e s i n their individual capacities. Both asserted the defense of

qualified immunity, which protects state actors from u l i a b i l i t y for c i v i l damages insofar as t h e i r conduct does not v i o l a t e clearly established statutory or constitutional rights of which a

reasonable person would have known." U.S. 800, 818 (1982).

Harlow v. Fitzgerald, 457

This doctrine allows public officials to ucivil damages

perform discretionary functions without fear of

l i a b i l i t y as long as their actions could reasonably have been thought consistent with the rights they are alleged to have (1st

violated." Cir . 1995).

H e g a r t y v . S o m e r s e t C o u n t y , 53 F . 3 d 1 3 6 7 , 1 3 7 3

Competing policy interests collide in the qualified immunity context, hand, especially in cases of this ·
se~sitive

nature .

On o n e

t h e p u b l i c b e n e f i t s w h e n g o v e r n m e n t a c t o r s s u c h a s DCYF

social workers are subjected to personal l i a b i l i t y for abuse of authority . The t h r e a t of personal l i a b i l i t y ensures that rights

will not be l i g h t l y violated, and people will be protected from powerful government agents. However, there is an equally

compelling interest in ensuring that these officials, with each discretionary judgment, are not so consumed by fear of l i a b i l i t y and harassing l i t i g a t i o n that they are unable to properly perform

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their duties on the public's behalf. 483 U.S. 635, Cir. 1997) 638

See Anderson v. Creighton,

(1987); Swain v. Spinney, 117 F.3d 1, 10 (1st are protected from "chilling threat of

(officials

liability" i f conduct is objectively reasonable).

It is against

this backdrop of competing interests that the Court undertakes the prescribed three pronged qualified immunity analysis. Under the familiar rubric, the Court f i r s t asks the following question:

"Lt l aken in the light most favorable

to

the

party

asserting the injury, do the facts alleged show the [ o f f i c i a l ' s ] conduct violated a constitutional right?" U.s. 194, 201 Saucier v. Katz, 533

(2001); Estate of Bennett v. Wainwright,

548 F.3d

155,167-68 (1st Cir. 2008).16 determines whether the

I f the answer i s yes, the Court next allegedly violated was clearly

right

16 T h e U n i t e d S t a t e s S u p r e m e C o u r t i n P e a r s o n v . C a l l a h a n , 1 2 9 S . C t . 8 0 8 , 2 0 0 9 WL 1 2 8 7 6 8 ( J a n . 2 1 , 2 0 0 9 ) r e c e n t l y s h e d n e w l i g h t on the Saucier framework by which courts always f i r s t determine whether there i s a constitutional violation in every qualified immunity case. I n sum, Pearson turned the once mandatory f i r s t step i n t o a permissive one - - the Court now has d i s c r e t i o n t o determine whether t h a t order of inquiry makes sense, or whether the Court can skip ahead to the question of whether the law was clearly established and resolve the case on that prong. Id. a t 816-18. Suffice i t to say the Court is comfortable addressing the consti t u t i o n a l question i n t h i s case f o r many of the reasons discussed i n Pearson. Namely, the Court has the benefit of a f u l l factual record, the b r i e f i n g on the c o n s t i t u t i o n a l question was adequate, there i s no indication a higher court will soon decide the issue, resolution of the constitutional question does not rest on "uncertain interpretation of s t a t e law," id. a t 819, and (most importantly) i t would be extremely difficult to decide whether the twins' rights here were clearly established i n 1996 without discussing and deciding "precisely what the constitutional right happens to be." I d . a t 818 (quoting Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, J . , concurring». 24

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established at the time of the unconstitutional action. 533 U. S . a t 2 0 1 - 0 2 .

Saucier, the

Finally, i f that second answer is yes,

Court determines "whether a reasonable official , situated similarly to the defendant (s) , would have understood that the conduct a t Savard v. Rhode

issue contravened the clearly established law." Island, 338 F.3d 23, 27 (1st Cir. 2003) at 202).

( c i t i n g Saucier, 533 U.S.

The substance of t h i s query i s usually referred to as Harlow, of the 457 U.S. three a t 819. inquiries
A

"objective legal reasonableness ." single negative answer to anyone

is

sufficient to shield Defendants against Plaintiffs' claims under the protective cloak of qualified immunity. v. Soto, 253 F.3d 137, 141 (1st Cir. 2001). 1. Violation of a Constitutional Right Starlight Sugar, Inc.

Plaintiffs claim a violation of their right to substantive due process under the Due Process clause of the Fourteenth Amendment. Their f i r s t hurdle i s t o show a deprivation of a protected i n t e r e s t in life, liberty, or property. County of Sacramento v. Lewis, 523

U.S. 833, 841 n .5 (1998); Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006). In this case, a state actor did not inflict direct Thus, the Court must s t a r t with the settled

harm to the twins.

principle that, as a general matter, a state's failure to protect an individual against private third-party violence does not violate substantive due process . Social Serv., 489 U.S. DeShaney v. Winnebago County Dep't of (1989). There are two limited

189, 197

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exceptions

to

this

rule:

a

"special

relationship"

and

"state

created danger."

Id. a t 200

(duty may a r i s e w i t h i n t h e s p e c i a l

relationship exception where state "so restrains an individual's liberty that i t renders him unable to care for himself, and a t the same time f a i l s t o provide f o r h i s basic human needs"); Rivera v. Rhode Island, 402 F . 3 d 2 7 , ·3 4 - 3 6
(Lst;

Cir.

2005)

(discussing

exceptions under DeShaney).

I t is only under these theories that

a s t a t e o f f i c i a l ' s f a i l u r e t o a c t may be a c t i o n a b l e under § 1983. The First Circuit recognizes the "special relationship"

concept but has questioned the "state created danger" theory and never found i t actionable. 77-78 (1st Cir. 2007) Lockhart-Bembery v. Sauro, 498 F.3d 69,

(making individual more vulnerable would not Rivera, 402

create duty to protect under state-created danger);

F.3d a t 35 (questioning tenuous theory based on DeShaney d i c t a ) ; F r a n c e s - C o l o n v . R a m i r e z , 1 0 7 F . 3 d 6 2 , 64 ( 1 s t C i r . 1 9 9 7 ) ( o f f i c i a l i n a " r a r e and e x c e p t i o n a l case" may a f f i r m a t i v e l y i n c r e a s e t h r e a t of harm); Ferreira v. City of East Providence, 568 F. Supp. 2d 197, . 211 (D.R.I . 2008) (refusing to apply "rarely applicable, so-called

state created danger" exception). Although Plaintiffs argue i t , the Court need not delve into the state created danger quandary for two reasons . First, as

discussed in the following paragraph, for purposes of this ruling a t the Rule 50 stage, the Court finds t h a t P l a i n t i f f s can establish a special relationship with DCYF whereby the state assumed

26

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responsibility for the twins'

liberty interest - Second,

the right of under either

safety in their foster care environment.

DeShaney exception, P l a i n t i f f s face the "further and onerous" task of showing state conduct that "shocks the conscience" of the Court. Rivera, 402 F.3d a t 35. At this stage of the analysis Plaintiffs'

constitutional theories simply unravel. Most C i r c u i t s recognize some type of s u b s t a n t i v e due process right for children placed into the foster care environment to be free from harm. Cir. 2000)
See,~,

N i c i n i v . M o r r a , 2.12 F . 3 d 7 9 8 , 8 0 8 ( 3 d .

( e n b a n e ) ; N o r f l e e t v . A r k a n s a s D e p t . o f Human S e r v . ,

9 8 9 F . 2 d 2 8 9 , 2 9 3 ( 8 t h C i r . 1 9 9 3 ) ; Y v o n n e L . e x r e I . L e w i s v . New Mexico D e p ' t o f Human S e r v . , 959 F . 2 d 883, 8 9 3 - 9 4 ( 1 0 t h C i r . 1 9 9 2 ) ; K.H. ex reI. Murphy v. Morgan, 914 F.2d 846, 848 -49 (7th Cir.

1 9 9 0 ) ; M e a d o r v . C a b i n e t f o r Human S e r v . , 9 0 2 F . 2 d 4 7 4 , 4 7 6 ( 6 t h Cir. 1990); Taylor ex r e I . Walker v. Ledbetter, 818 F.2d 791, 795 (11th Cir. 1987) ( e n b a n e ) ; D o e V . New Y o r k C i t y D e p t . o f S o c i a l While there i s no First

Serv., 649 F.2d 134, 141 (2d Cir. 1981).

Circuit case so holding, the "special relationship" analogy between persons incarcerated or institutionalized and those placed in state c a r e t h r o u g h e n t i t i e s l i k e DCYF w i t h l e g a l c u s t o d y i s g e n e r a l l y accepted by federal courts that have considered the issue. DeShaney, 489
U. S.

See from

a t 195

(recognizing right

to be

free
V.

unjustified intrusions on personal security); Youngberg rel. Romeo, 457
U. S.

Romeo e x

307,

319

(1982);

Monahan

V.

Dorchester

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Counseling Ctr.,

Inc.,

961

F.2d 987,

991-92

(1st

Cir.

1992) ;

Germany v. Vance, 868 F.2d 9, 15 (1st Cir. 1989).

For purposes of

this motion then, Plaintiffs have demonstrated sufficiently that a special relationship existed between the state (the legal

c u s t o d i a n ) a n d t h e R a y m o n d t w i n s (who w e r e i n v o l u n t a r i l y p l a c e d i n state care). The Defendants therefore had an affirmative duty to

ensure the safety and well-being of the twins once placed with the S y k e s .17 To m e e t t h e i r b u r d e n o n a substantive due process claim,

however, P l a i n t i f f s must show more than the existence of a special relationship and a r i g h t to safety i n t h e i r f o s t e r home. They need

to prove that a s t a t e actor deprived them of t h e i r rights through "conscience-shocking" behavior. question of what behavior shocks Lewis, 523 U.S. at 846. The

the conscience

evades simple

description, but i t i s more - - indeed much more - - than negligence. See Coyne v. Lewis, 523 Cronin, 386 F. 3d 280, u.S. at 849 289 (1st Cir. 2004) (quoting harm is

(negligently

inflicted

17 I t i s u n d i s p u t e d t h a t D e f e n d a n t s a c t e d a s state officials w i t h l e g a l c u s t o d y o f J . R. a n d B. R. a t a l l r e l e v a n t t i m e s . Compare Burton v. Richmond, 370 F.3d 723, 727-78 (8th Cir. 2004) (en bane) (no special relationship where s t a t e did not have custody or control but "merely assisted"). The Court r e j e c t s the argument t h a t DCYF's o b l i g a t i o n vanished once t h e Sykes took physical c u s t o d y o f J . R . a n d B . R . T h e n o t i o n t h a t DCYF c o u l d r e l e g a t e t h e duty to protect these boys from third parties undermines the basic principle mandating i t s duty in the f i r s t place. See Germany v. Vance , 868 F.2d 9, 15 (1st Cir. 1989) (workers f a i l e d to inform g i r l i n DYS c u s t o d y l i v i n g i n p r i v a t e h o m e s , i n c l u d i n g a f o s t e r home, t h a t charges a g a i n s t her were f a b r i c a t e d , p o t e n t i a l l y violating right of access to courts) .

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"categorically

beneath

the

threshold"

of

a

constitutional

v i o l a t i o n » ; DePoutot v. Raffaelly, 424 F.3d 112,118-19 (1st Cir. 2005) (shock the conscience standard does not "replicate, or even

draw upon, negligence law;" even s t a t e law violations i n bad faith are not necessarily "extreme" enough). In varying terms, "the

threshold question i s whether the behavior of the governmental o f f i c e r i s so egregious, so outrageous, t h a t i t may f a i r l y be s a i d to shock the contemporary conscience." n.8; DePoutot, 424 F.3d at 119 Lewis, 523 U.S. a t 847-48 arbitrariness and

("requisite

caprice " must be "stunning, error") 1990».

evidencing more t h a n humdrum l e g a l

(quoting Amsden v. Moran, 904 F.2d 748, 754 n.5 (1st Cir. While t h i s standard i s somewhat imprecise, i t i s a very See MCConkie v. Nichols, 446 F.3d 258, 260 -62 (1st Cummings v. McIntire, 271' F.3d 341, 344 (1st Cir.

high hurdle . Cir. 2006);

2001); Hasenfus v. LaJeunesse, 175 F.3d 68,72-74 (1st Cir. 1999) . The degree of c u l p a b i l i t y necessary t o shock the conscience can shift with the circumstances of each case. Plaintiffs posit

that "deliberate indifference" is the appropriate standard here. While this is correct, over it and is important to stress something

Plaintiffs

gloss

Defendants

confuse.

Deliberately

i n d i f f e r e n t behavior may i n some circumstances s u f f i c e t o shock the conscience, but i t i s by no means per se conscience-shocking. The d i s t i n c t i o n l i e s with whether s t a t e forethought and "reasoned and

L e w i s , 5 2 3 U. S . a t 8 5 0 - 5 2 .

actors have the luxury of time,

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rational decisions."

See Rivera,

402 F. 3d a t 36.

I f they do,

d e l i b e r a t e i n d i f f e r e n c e may r i s e t o the l e v e l of a conscienceshocking constitutional violation. Id. I f they do not, however,

as with a high speed police chase, conduct must be far worse than indifferent to be actionable under the conscience-shocking standard: s ta te .actors mus t " i n t e n d [] to inj ure in
§

1983 way

some

unjustifiable by any government interest." (emphasis added) . The ultimate conduct question is much is still

Lewis, 523 U.S . a t 849

whether

the As

allegedly this under

indifferent requires

conscience greater

shocking. than

noted, even

something

negligence,

Plaint i f f s ' theory of extended inaction when Defendants had the luxury of time over the eighteen month placement. G a m b l e , 4 2 9 U. S . 97, 104-106 (1976) See Estelle v .

(deliberate indifference to

prisoner's rights requires "wanton infliction of pain" that offends "evolving standards of decency."); Farmer v. Brennan, 511 U.S. 825, 837 (1994) (clarifying deliberate indifference standard for

challenges to prison conditions and adopting subjective standard whereby official is actually aware of facts and infers a

substantial risk of harm); DesRosiers v.Moran,

949 F.2d 15, 19

(1st Cir. 1991) (deliberate indifference requires a "culpable s t a t e of mind" where "[defendants] intended wantonly t o i n f l i c t pain . . i t is recklessness not in the tort-law sense but in the appreciably s t r i c t e r criminal-law sense, requiring actual knowledge

30

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of impending harm, easily preventable").

Courts usually require

subjective knowledge of impending harm; proving that a defendant "should have known" i s not enough. Watson v. Caton, 984 F. 2d 537, 540 Farmer, 511 U.S. a t 843 n.8; (1st Cir. 1993). Overall,

" [t] he risk,

the knowledge, must

and the failure to do the obvious, the defendant is \ deliberately

taken together,

show that

indifferent' to the harm that follows."

Manarite ex rel. Manarite

v. City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992); see also Y o u n g v . C i t y o f P r o v i d e n c e , 4 0 4 F . 3 d 4 , 28 ( 1 s t C i r . 2 0 0 5 ) must disregard a "known or obvious" r i s k of serious harm). These cases make clear that deliberate indifference is (actor

p o t e n t i a l l y one way to prove conscience shocking conduct i n a § 1983 case. And, courts have applied t h i s standard t o cases with
See,~,

facts i n the same ballpark as those i n t h i s case.

Nicini, 212 F.3d a t 810-11 (summarizing f o s t e r care cases applying deliberate Chambliss, indifference indifference 112 to F.3d standard); 737 rights White Cir. ex reI. White v.

731,

(4th

1997) a

(deliberate minimum that

child's

implies

"at

defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the n o t i c e " ) ; Taylor, 818 F .2d a t 796-97 ( o f f i c i a l s may be l i a b l e not based on " i n c i d e n t a l i n j u r i e s or infrequent acts of abuse" but on a showing of "actual knowledge of abuse or that agency personnel deliberately failed to learn what

31

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was occurring"); Doe, 649 F.2d a t 145 (requiring "some knowledge triggering an affirmative duty to act"). At t r i a l , P l a i n t i f f s advanced two r e l a t e d theories to prove deliberate indifference. First, they averred that had Defendants

followed proper policy, the Sykes foster license would have been r e v o k e d i n 1 9 9 7 b e c a u s e DCYF k n e w M s . S y k e s l i e d a b o u t u n - r e l a t e d adults living i n the home. I f the license had been revoked, the

t h e o r y g o e s , T h i n m a n ( o r BoBo) w o u l d h a v e n e v e r b e e n a b l e t o c a r e for or abuse the twins. Second, Plaintiffs contended that

Defendants lacked sufficient contact with the twins, ignored the fact that Thinman and Bobo provided care, failed to conduct

background checks of these household members, flags" of abuse.
I·

and ignored "red

I

Plaintiffs' license revocation theory i s fundamentally flawed because even when viewed in a pro-plaintiff light, it is a

negligence theory at best. (1986)

See Daniels v. Williams, 474 U.S. 327

(mere negligence i s always insufficient for substantive due Plaintiffs' evidence might well be sufficient DCYF r e g u l a t i o n s provide that a foster

process liability). to prove

negligence:

license shall be revoked for certain reasons and,

presuming the

j u r y b e l i e v e d M s . S y k e s l i e d t o DCYF a b o u t t h e p r e s e n c e o f T h i n m a n or Bobo, t h i s could or should have warranted revocation months (The Court disregards a t t h i s

before Thinman entered the picture.

s t a g e , a s i t m u s t , c o n f l i c t i n g t e s t i m o n y f r o m M r . S t e i n e r t h a t DCYF

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may h a v e o n l y i s s u e d a v e r b a l w a r n i n g ) .

But, this evidence does

n o t come c l o s e t o s h o c k i n g t h e c o n s c i e n c e ; r a t h e r , i t i s a c l a s s i c "but for" causation theory of negligence. Plaintiffs acknowledge

t h i s t h e o r y h a s n o t h i n g t o do w i t h b a c k g r o u n d c h e c k s o r known r i s k of danger, and admit the policy violations in and of themselves are insufficient. They nonetheless urge that the totality of

c i r c u m s t a n c e s a m o u n t s t o d e l i b e r a t e i n d i f f e r e n c e b e c a u s e t h e DCYF licensing unit expressed "concerns" about placing J.R. and B.R. w i t h t h e S y k e s , a n d D e f e n d a n t s knew o f t h e s e " c o n c e r n s . " E v e n when

viewed in the most favorable light, these additional circumstances piggybacked on a policy violation cannot constitute evidence of deliberate indifference, especially where these "concerns" never i n v o l v e d s u s p i c i o n s o f a b u s e . 18 S e e Romero e x r e I . E s t a t e o f Romero

v . Wayne C o u n t y F a m i l y I n d e p e n d e n c e A g e n c y , 2 0 0 5 WL 1 5 6 3 3 2 8 , *5 (E.D. Mich. June 30, 2005) ("reservations" about placement did not make d e f e n d a n t d e l i b e r a t e l y i n d i f f e r e n t t o r i g h t s o f y o u n g f o s t e r c h i l d who a s p i r a t e d w h i l e s t r a p p e d i n a c a r s e a t a n d d i e d ) . This leaves Plaintiffs' second theory: that Defendants failed to learn about the twins' called red flags. "real" caretakers and ignored the so-

Upon c a r e f u l s c r u t i n y o f t h e e v i d e n c e o f f e r e d a t

18 I n s t e a d , t h e c o n c e r n s Ms. I a c i o f a n o e x p r e s s e d i n a S e p t e m b e r 1 9 9 7 e m a i l t o Ms. G l o r i a i n v o l v e d h e r b e l i e f t h a t Ms. Raymond was teaching the twins to speak and act inappropriately with respect to the Sykes being African-American, as well as the twins' "serious behavior problems" such that the Sykes were very "stressed with this placement."

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trial,

a

jury could not have

concluded that Defendants were

deliberately indifferent to the constitutional rights of J.R. and B .R. While by no means uncontradicted, Plaintiffs presented

evidence that, i f credited, could support a finding that social w o r k e r G l o r i a k n e w T h i n m a n a n d BoBo l i v e d i n t h e S y k e s home b u t failed to conduct any background checks. 1 9 Ms. G l o r i a t e s t i f i e d

t h a t s h e r e v i e w e d CANTS r e p o r t s t h a t l i s t e d BoBo a s a " c a r e t a k e r " or "household member." The case a i d e ' s notes beginning in October

1997 referenced Thinman, even c a l l i n g i t the "Thinman f o s t e r home." Ms. S y k e s t e s t i f i e d t h a t s h e t o l d Ms. G l o r i a t h e men l i v e d t h e r e . B u t , e v e n a s s u m i n g t h i s k n o w l e d g e a n d a c c e p t i n g t h a t Ms. G l o r i a d i d not notify the licensing unit or obtain a background clearance,20 n o t h i n g l i n k s t h e m e r e p r e s e n c e o f t h e s e men t o a c t u a l k n o w l e d g e o f a substantial r i s k of harm to the twins. c h a s m t h a t dooms P l a i n t i f f s ' s e c o n d t h e o r y . It is this evidentiary

19 W h i l e m u c h o f t h i s e v i d e n t i a r y d i s c u s s i o n i n t h e c o n t e x t o f Plaintiffs' failure to establish a constitutional violation applies t o b o t h D e f e n d a n t s , t h e p r i m a r y f o c u s was o n Ms. G l o r i a . The C o u r t addresses below additional challenges for Plaintiffs with respect t o t h e i r § 1 9 8 3 s u p e r v i s o r y l i a b i l i t y c l a i m a g a i n s t Ms. T e r r y .

20 T h e C o u r t s t r e t c h e s t o g i v e P l a i n t i f f s t h i s i n f e r e n c e a t t h e Rule 50 stage, although Defendants' testimony t h a t a s t a t e b a c k g r o u n d c h e c k o n T h i n m a n was o b t a i n e d v i a p h o n e t h r o u g h t h e Rhode I s l a n d A t t o r n e y G e n e r a l ' s O f f i c e a n d c a m e b a c k c l e a r s t a n d s largely uncontroverted. I t is possible the jury could disbelieve D e f e n d a n t s a n d c r e d i t Mr. S t e i n e r ' s t e s t i m o n y t h a t a v e r b a l c h e c k would have nonetheless generated paperwork.
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For s t a r t e r s , no evidence was offered as t o what a Bureau of Criminal Investigation anyone in this case. ("BCI") check would have revealed about

Further, no evidence was offered as to what search would have turned up, even

a nationwide or fingerprint

c r e d i t i n g P l a i n t i f f s ' t h e o r y t h a t DCYF c o u l d h a v e t r i e d h a r d e r t o obtain such information. P l a i n t i f f s offered no evidence t h a t Bobo

o r Thinman was a criminal, dangerous, or i n any way u n f i t to be around J.R. and B.R. 2 l Moreover, even i f one