Rucker v. Zain et al

Filing 5

MEMORANDUM AND ORDER. A separate order will enter signed by District Judge Harry S Mattice, Jr on 10/27/11. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE

ROBERT DEWAYNE RUCKER
Plaintiff,

v.
HARRY A. ZAIN, M.D.; BLAKE
FRAZIER, Case Worker, Dept. of
Children’s Svcs.; TENNELLE MILLER,
Case Worker, Dept. of Children's Svcs.;
HEIDI HUENERGARDE, Case Worker,
Dept. of Children's Svcs.; and
DEPARTMENT OF CHILDREN’S SVCS.,
Defendants.

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NO. 2:11-CV-70
Judge Mattice

MEMORANDUM and ORDER

Acting pro se, former prisoner and here plaintiff Robert Dewayne Rucker brings this
civil rights complaint under 42 U.S.C. § 1983, seeking damages against a physician, the
Department of Children’s Services (“DCS”), and three of its case workers. His application
to proceed without prepayment of fees is GRANTED.
Under 28 U.S.C. § 1915(e)(2), a court is required to screen a civil complaint brought
by a litigant proceeding in forma pauperis and to dismiss an action at any time if the court
determines that it is frivolous or fails to state a claim upon which relief can be granted. See
McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds

by Jones v. Bock, 549 U.S. 199 (2007). In performing this task, the Court bears in mind the
rule that pro se pleadings filed in civil rights cases must be liberally construed and held to
a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404
U.S. 519, 520 (1972). After reviewing the pleading filed in this case, the Court finds that a
sua sponte dismissal is the appropriate disposition of this action. Consequently, no service
shall issue and this complaint will be dismissed.
The allegations in plaintiff's complaint involve the birth of a son with a disability and
a daughter whose well being was placed in jeopardy by the defendants’ claimed wrongful
conduct. The defendants—all listed only in the body of the complaint and not in the
caption—are Dr. Harry A. Zain, the physician who cared for the mother of plaintiff's son
during her pregnancy and, impliedly, delivered the child; the Department of Children's
Services (hereinafter DCS) in Morristown, Tennessee; and three DCS case workers—Blake
Frazier, Tennelle Miller, and Heidi Huenergarde.
The claims have been grouped into two categories, according to the defendant charged
with the constitutional wrongdoing.
1. Claims against Defendant Harry A. Zain, M.D.
A. Plaintiff’s Allegations
Defendant Zain, according to the pleading, is the obstetrician/gynocologist of Cissy
Dee Thurman, who is the mother of his daughter and infant son. Dr. Zain was notified by
DCS that his patient was addicted to and abused pain medications during her last pregnancy.

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Even so, Dr. Zain gave Ms. Thurman pain medications in March of 2010, during the first
months of her pregnancy with plaintiff’s son. Defendant Zain was directed, in June of 2010,
to check his patient’s blood work (for evidence of drugs?) during her monthly check-up, but
failed to so do. On October 7, 2010, plaintiff’s son was born disabled and he will require
hospitalization for the rest of his life. The injuries sustained by his son were caused by the
pain medications taken by Ms. Thurman and given to her by Dr. Zain. Plaintiff asks for
damages to compensate him for the physical and mental injuries to himself, his son, and his
family, which resulted from the doctor’s prescription of pain medication to Ms. Thurman and
his failure to test her for her use (or abuse) of the medication.
B. Law & Analysis
To state a viable § 1983 claim, a plaintiff must allege: 1) that he was denied a right
privilege or immunity secured by the constitution or laws of the United States, and 2) that the
deprivation was caused by a person acting under color of state law. See Flagg Bros. v.
Brooks, 436 U.S. 149, 155 (1978). The plaintiff has failed to make either showing.
First of all, plaintiff has the burden of showing that defendant Zain was acting under
color of state law when he treated Ms. Thurman while she was pregnant with plaintiff's son.
Defendant Zain is a private physician. Nothing asserted in the pleading demonstrates that Dr.
Zain was acting on behalf of a governmental entity during Ms. Thurman’s treatment, so as
to satisfy the “acting under color of state law” element of a § 1983 claim. See Collyer v.
Darling, 98 F.3d 211, 231 -232 (6th Cir. 1996) (finding that “ neither doctor is a state actor

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and thus cannot be sued under § 1983"). While private actors may be liable under § 1983,
if the challenged conduct is attributable to the state, id. at 231-32, or if they conspire with the
state to violate civil rights, Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1981), the
complaint contains no allegations of this nature.
Secondly, the plaintiff's argument, reduced to its essence, is that he is due
compensation because Dr. Zain violated the duties of care towards his patient. Such a claim
sounds in the state law of negligence. Negligence, however, does not provide a viable basis
of liability under § 1983. See Davidson v. Cannon, 474 U.S. 344 (1986); Daniels v.
Williams, 474 U.S. 327 (1986). Compensation for injuries resulting from negligence must
be sought in state court under traditional tort-law principles. See, e.g., Baker v. McCollan,
443 U.S. 137, 146 (1979).
Accordingly, the Court finds that the plaintiff has failed to state a constitutional claim
against this defendant.
2. Claims against Defendants DCS, Blake Frazier, Tennelle Miller, and Heidi Huenergarde
(DCS Case Workers)
A. Plaintiff’s Allegations
The allegations against these defendants involve plaintiff’s 3-year old daughter and
newborn son and are as follows. From March to July of 2010, defendant DCS refused to
look at evidence showing that the children’s mother abused them while she was taking pain
pills. Had this defendant but looked, it would have seen proof that she was injecting those

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substances into her arm and smoking crack cocaine at Walmart. In July, Morristown police
officers intervened in the situation and tested Ms. Thurman for drugs. She failed the test.
They said that they intended to prosecute her for the abuse and charge her with using drugs
while pregnant, but they failed to do this. Plaintiff maintains that because DCS refused to
investigate his allegations, Ms. Thurman, he, and their children have endured and will endure
a lot of emotional stress and pain.
After plaintiff found his daughter wandering alone in a park, abandoned by her
mother, Case Worker Blake Frazier removed his child from his care and took her to a foster
home in Maryville, Tennessee. Defendant Frazier did not inform plaintiff of his daughter’s
whereabouts. Plaintiff called to try to explain his daughter’s medical needs, but defendant
responded that it was too late and hung up. Two weeks later, plaintiff discovered where
defendant had taken his offspring and called the foster mother, who told him that his
daughter’s nose was bleeding badly and that, when defendant Frazier had dropped the child
off, defendant had said that someone from the office would contact her. The foster mother
stated that no one had contacted her and that defendant Frazier would not return her calls,
even though she was telephoning to find out about the child’s medical needs, of which, by
inference, she knew nothing.
Plaintiff asserts that he called defendant Tennelle Miller at the DCS office on October
8 or 9, 2010, and advised her that Ms. Thurman had messed up his newborn son with her
drug use and that Ms. Thurman was in the hospital, high on drugs. Plaintiff asked defendant

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to come to the hospital to perform a drug test on Ms. Thurman because the jail where she
would be taken would allow her to breast feed his son. The DCS office refused to come to
the hospital, so plaintiff reported Ms. Thurman's drug use to a hospital case worker, who in
turn contacted defendant Miller. Defendant Miller represented to the hospital case worker
that the DCS had no record of Ms. Thurman using drugs while pregnant. This was a flat out
lie, plaintiff insists, because his son was born October 7, 2010 and his son's mother failed a
drug screen for DCS in July, 2010.
Case Worker Heidi Huenegarde urged plaintiff to permit his daughter, who had been
in plaintiff's custody since the age of 2½ months, to have an hour's unsupervised visit with
her mother, who in Ms. Huenergard's opinion, was doing okay. Though plaintiff believed
that Ms. Thurman, the child's mother, was using drugs and was not undergoing court-ordered
drug screens, he reluctantly assented to the unsupervised visit out fear that, if he did not, the
DCS would take custody of his child—an event which would occur, according to defendant
Huenergard, unless the mother were allowed a visit.
The day of the visit, July 3rd or 4th of 2010, Ms. Thurman picked up her daughter,
took her to the housing projects, and left her unattended at the playground for 3 hours or so.
Plaintiff found his young daughter walking up Lennie Avenue, crying her heart out, scared,
and wearing wet underwear. Two hours later, her mother was located, messed up on drugs.
Plaintiff alleges that, had this defendant done her job and given Ms. Thurman drug tests, his
daughter would not have been placed in harm’s way.

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Defendant Case Workers Frazier and Huenergarde were notified in person and by
telephone numerous times from March through May, 2010, about Ms. Thurman's abuse of
pain pills and other drugs. However, even though Ms. Thurman was the mother of plaintiff's
daughter and was two months pregnant with his son, they would not administer Ms. Thurman
a drug test. In July, 2010, when Ms. Thurman was 4½ months pregnant, she failed a drug
test.

However, defendants did not follow up on the failed drug screen and further

disregarded plaintiff's repeated calls to the office reporting that Ms. Thurman was usisng
drugs and getting high on drugs. Finally, he coaxed an agreement from them in September
of 2010, that Ms. Thurman would be tested for drugs when she delivered plaintiff's son. This
never happened. Because these defendants had a duty to protect his children and because
they failed to fulfil their duty, plaintiff's son was born on October 7, 2010, with a disability
due to his mother's drug use. Defendants Frazier’s and Huenergarde’s neglect of their duties
to protect children resulted in plaintiff’s son being born with a disability due to his mother’s
abuse of drugs.
B. Law & Analysis
The complaint is not specific as to whether the individual defendants are being sued
in their official capacity, individual capacity, or both. A suit brought against a public official
will not be construed as seeking damages against the defendant in his individual capacity
unless such a claim for individual liability is clearly and definitely set forth in the pleading.
See Pelfrey v. Chambers, 43 F.3d 1034, 1038 (6th Cir.), cert. denied, 515 U.S. 1116 (1995).

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The designation of individual capacity need not be explicit—though, of course, that is
preferable—so long as the pleadings and other filed documents provide sufficient notice to
defendants that they are being sued as individuals. Moore v. City of Harriman, 272 F.3d 769
(6th Cir. 2001).
Here, plaintiff has made no express designation of the capacity in which he is suing
the individual defendants. Nor has he alleged anything in the pleading to indicate that he is
suing them in their individual capacities. Absent an indication—express or otherwise—that
they are being sued in their individual capacities, the Court must assume they are being sued
only in their official capacities as DCS employees.
An official capacity lawsuit for damages against a state agency or its employees
implicates the Eleventh Amendment. The DCS is an agency of the State of Tennessee.
Online at http://www.tn.gov/topics/Dept.+of+Children%27s+Services (As visited October,
18, 2011). It is well-settled that the Eleventh Amendment bars an action for damages in a
federal court against a State or a state agency, or any of its employees in their official
capacities, unless Congress has abrogated its sovereign immunity or the State has expressly
waived it. See, e.g. Welch v. Texas Dep't of Highways and Pub. Transp., 483 U.S. 468,
472-73 (1987); Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990); Berndt v. State of
Tennessee, 796 F.2d 879, 881 (6th Cir. 1986).

Congress did not abrogate Eleventh

Amendment immunity by enacting § 1983, Quern v. Jordan, 440 U.S. 332 (1979), and the
State of Tennessee has not waived its right to sovereign immunity. Gross v. University of

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Tennessee, 620 F.2d 109, 110 (6th Cir. 1980). See also Tenn. Code Ann. § 20-13-102(a).
Accordingly, the DCS and its employees (i.e., defendants Frazier, Miller and Huenergarde)
are entitled to immunity from damages in their official capacities.
Accordingly, this lawsuit will be dismissed because plaintiff has failed to state a claim
against the defendant in the first category of claims and because all defendants in the second
category enjoy Eleventh Amendment immunity against this suit for damages.
A separate order will enter.

ENTER:

/s/Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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