United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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. 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.
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.
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.
Claims against the DHS Employees
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.
Counts IV and V: negligence and intentional infliction of
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.
Count I: claims under § 1983
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.
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)).
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).
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 ...