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Burkhalter v. State ex rel. The Oklahoma Department of Human Services

United States District Court, N.D. Oklahoma

September 19, 2017

KENNEDY BURKHALTER, et al., Plaintiffs,



         Before the Court are dismissal motions filed by defendants Edward Lake, Rebecca West, Joyce Porter, Julie Merritt, and Courtney Bolt (DHS Employees) (Doc. 78), the Oklahoma Department of Human Services (DHS) (Doc. 80), and Gregory Hawkins (Doc. 83).

         I. Plaintiffs Allegations

         On her own behalf and as the next friend of her then-minor daughter, Kennedy Burkhalter, plaintiff Alvertis Finley sued the defendants in the Tulsa County District Court. The defendants thereafter removed the action to this Court based upon federal question jurisdiction. (Doc. 2 at 2). The following facts, which are alleged in the plaintiffs' Second Amended Complaint filed December 8, 2016 (Doc. 76), are taken as true for purposes of this decision.

         While in DHS custody, Burkhalter, who at the time was 15 years old, was sexually abused and impregnated by her father, Gregory Hawkins. Burkhalter was in DHS custody because Hawkins had convinced her to assert false allegations that her mother had permitted men to have sex with her for money, and the State of Oklahoma had filed a deprived petition in Tulsa County District Court. Among other things, the deprived petition alleged that Hawkins failed to protect Burkhalter from alleged sexual abuse and that Burkhalter's natural parents (including Hawkins) were not fit to provide a "safe and stable" environment.

         On the day of the filing of the deprived petition, defendants Julie Merritt and Cortney Bolt placed Ms. Burkhalter in a temporary foster home with Cathryn Joan Collins. Collins was at the time employed by Zion Plaza Church, of which Hawkins was the president and pastor. DHS and DHS Employees knew that Collins was employed by the church. Hawkins had direct supervisory authority over Collins. While Burkhalter was in DHS custody and in the temporary care of Collins, the DHS Employees permitted Burkhalter to have unsupervised visitation with Hawkins even though (1) the deprived petition expressly named Hawkins and alleged that he failed to protect Burkhalter from sexual abuse and (2) DHS maintained a practice and custom of forbidding unsupervised visitation in such situations. None of the DHS Employees advised Collins, either in writing or verbally, that Hawkins was not permitted to have unsupervised contact with Burkhalter. Thus, Hawkins had ongoing, unsupervised contact with Burkhalter multiple times, during which he raped and ultimately impregnated her.

         On January 25, 2013, Ms. Burkhalter's social worker at Will Rogers High School advised defendant Joyce Porter that Burkhalter had reported that Hawkins had repeatedly sexually abused her during her foster placement with Collins. The social worker also advised Porter that Hawkins had been picking up Burkhalter from school by himself. Despite that report, DHS failed to act immediately to remove Burkhalter from Collins's care to prevent further sexual abuse. DHS and DHS Employees continued to permit Hawkins to have unsupervised contact with Burkhalter during which time he continued to rape her. Despite the direct report of sexual abuse, the DHS did not immediately remove Burkhalter from the foster placement with Collins, but waited almost two weeks - until February 25, 2013 - to remove her and place her in the care of her biological mother. Over eight months later, on October 11, 2013, Burkhalter - who was then 16 years old -gave birth to a baby boy. Blood tests confirmed that Hawkins is the baby's biological father. Plaintiffs believe that Hawkins impregnated Burkhalter in the 11 days between DHS's receipt of the school social worker's report of sexual abuse and the date that the DHS removed Burkhalter from Collins's care.

         In short, the plaintiffs allege that DHS knew that Hawkins was an unfit parent who should not have been allowed unsupervised contact with Burkhalter, but DHS permitted him to have unsupervised contact with her, which provided him the opportunity to repeatedly abuse her sexually. Even after DHS was notified of Hawkins's sexual abuse, DHS continued to permit Hawkins to have unsupervised contact with Burkhalter. As a result, plaintiffs allege claims against DHS Employees, DHS, Hawkins, Zion Plaza Church, and Zion Child Care.[1] Plaintiffs' first count asserts a claim under 42 U.S.C. § 1983 and alleges that the DHS Employees violated Burkhalter's due process rights. Plaintiffs' second count is against DHS under the Oklahoma Constitution's due process clause. The third count is a negligence claim against Zion Plaza Church. The fourth count is a negligence claim against DHS and DHS Employees. The fifth count is against all defendants for intentional infliction of emotional distress. The sixth count is against Hawkins for assault and battery. The seventh count is against Zion Child Care for negligent retention and supervision. The eighth count is also against Zion Child Care but is for negligent failure to protect from danger on premises. DHS Employees, DHS, and Hawkins seek dismissal on all claims against them. Thus, Counts I, II, IV, V, and VI are currently at issue.

         II. Dismissal Standards

         In considering a Rule 12(b)(6) motion to dismiss, the Court must determine whether plaintiff has stated a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). A complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The standard requires "enough facts to state a claim to relief that is plausible on its face, " and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555-56, 570 (citations omitted). Twombly articulated the pleading standard for all civil actions. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). The Court must accept all the well-pleaded factual allegations of the complaint as true, even if doubtful, and must construe the allegations in the light most favorable to claimant. See Twombly, 550 U.S. at 555.

         The dismissal standard does "not require a heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face, " and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555-56, 570 (citations omitted). "Asking for plausible grounds . . . does not impose a probability requirement at the pleading stage; it simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence [supporting the claim]. And, of course, a well-pleaded [pleading] may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563.

         III. Claims against the DHS Employees

         The DHS Employees seek dismissal, arguing that plaintiffs have failed to state any claims against them in Counts I, IV, and V. The DHS Employees also assert qualified immunity as to the plaintiffs' claims under 42 U.S.C. § 1983.

         A. Counts IV and V: negligence and intentional infliction of emotional distress

         The DHS Employees move for dismissal of Counts IV and V. In their Response, plaintiffs concede that Okla. Stat. tit. 51, § 163(C) prohibits claims against the DHS Employees in their individual capacity for acts taken within the scope of their employment. Thus, plaintiffs "do not oppose dismissal of Counts IV and V against the DHS Employees." (Doc. 84 at 7). Therefore, the claims asserted in Counts IV and V against the DHS Employees are dismissed.

         B. Count I: claims under § 1983

         For the claims against the DHS Employees under 42 U.S.C. § 1983 (Count I), plaintiffs allege that the DHS Employees violated Burkhalter's rights under the Due Process Clause of the Fourteenth Amendment. The Due Process Clause does not establish a general protection from harm or violence by third parties. See DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989). However, there are two exceptions to this general principle: (1) the special relationship doctrine; and (2) the danger-creation theory. See Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).

         The special relationship doctrine applies when "the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to that individual." Id. (quoting J. W. v. Utah, 647 F.3d 1006, 1011 (10th Cir. 2011)). In DeShaney, the Supreme Court recognized that a foster placement "might" give rise to "a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect." 489 U.S. at 201, n.9. Thereafter, in 1992, "the Tenth Circuit explicitly recognized that foster children have a substantive due process right to 'protection while in foster care.'" Schwartz, 702 F.3d at 580 (quoting Yvonne L. ex rel. Lewis v. New Mexico Dept. of Human Servs., 959 F.2d 883 (10th Cir. 1992)).

         In the foster care context, the Tenth Circuit has recently explained the "special relationship" doctrine as follows:

When a state fails to protect a foster child from harm, the foster child can sue the state under the special-relationship doctrine. The special-relationship doctrine provides an exception to the general rule that states aren't liable for harm caused by private actors. Under this doctrine, a state or its agents can be liable under 42 U.S.C. § 1983 for failing to protect people from harm if they have deprived those people of liberty and made them completely dependent on the state for their basic needs.

Dahn v. Amedei, 867 F.3d 1178, 1180 (10th Cir. 2017) (citing DeShaney, 489 U.S. at 199-200). "The special relationship triggers a continuing duty which is subsequently violated if a state official 'knew of the asserted danger to [a foster child] or failed to exercise professional judgment with respect thereto, ... and if an affirmative link to the injuries [the child] suffered can be shown, " and the official's conduct shocks the conscience. Schwartz, 702 F.3d at 580-83 (quoting Yvonne L., 959 F.2d at 890). This duty is not limited "to only those individuals involved in a child's initial placement." Id. at 582-83. "Conscience-shocking behavior evades precise definition and 'evolve[s] over time.'" Id. at 586. "Conduct is shocking to the conscience when the 'degree of outrageousness and [ ] magnitude of potential or actual harm [ ] is truly conscience shocking.'" Id. (internal quotations omitted).

         Pursuant to the danger creation exception, "a state official may be liable when 'a state actor affirmatively acts to create, or increase[ ] a plaintiffs vulnerability to, danger from private violence.'" T.D. v. Patton, ___F.3d ___, No. 16-1092, 2017 WL 3687935, at *10 (10th Cir. Aug. 28, 2017) (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)). The Tenth Circuit ...

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