MARK E. FULLER, District Judge.
Plaintiffs Ferrell Oden ("Mr. Oden"), Lesa B. Oden ("Ms. Oden"), and Flo, Inc. d/b/a Oden's Boarding Homes (collectively, "Plaintiffs" or "the Odens") bring suit against Defendants Nancy Buckner ("Buckner"), Angela McClintock ("McClintock"), Sharon Bradford ("Bradford"), and Cheryl Swain ("Swain") (collectively, "Defendants") for violations of their constitutional rights under 42 U.S.C. § 1983 and for various state law claims. Before the Court are motions to dismiss filed by Buckner (Doc. #10) and McClintock, Bradford, and Swain (Doc. #14). For the reasons discussed below, Defendants' motions are due to be GRANTED as to all federal claims and the pendent state law claims are due to be DISMISSED WITHOUT PREJUDICE.
The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1343(a), and 1367. Additionally, Defendants have not argued that the Court lacks personal jurisdiction over them. Pursuant to 28 U.S.C. § 1391(b), venue is appropriate in this district.
Defendants move to dismiss the Odens' complaint on the basis of both Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Where a defendant brings a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), the motion addresses the court's subject matter jurisdiction to hear the case. Such a motion is made either as a facial attack or as a factual attack. Stalley v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008). A factual attack challenges the actual existence of subject matter jurisdiction using extrinsic material. Id. A facial attack on the complaint asks the court merely to look and see if the plaintiff has sufficiently alleged a basis for subject matter jurisdiction. Id. In considering a facial attack, as with a Rule 12(b)(6) motion, the court must take as true the allegations in the complaint. See Carmichael v. Kelloy, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). Defendants bring their motion as a facial attack, claiming there are not sufficient allegations in the complaint to support a finding that the Court has subject matter jurisdiction.
In considering a Rule 12(b)(6) motion to dismiss, the court accepts the plaintiff's allegations as true and reads them in the light most favorable to the plaintiff. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993) (citation omitted). Further, a district court must favor the plaintiff with "all reasonable inferences from the allegations in the complaint." Stephens v. Dep't of Health and Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint does not state a facially plausible claim for relief if it shows only "a sheer possibility that the defendant acted unlawfully." Id. While a complaint need not contain detailed factual allegations to survive a Rule 12(b)(6) motion, "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Id. (internal quotation and citations omitted). Absent the necessary factual allegations, "unadorned, the-defendant-unlawfully-harmed-me accusation[s]" will not suffice. Id. Courts are also not "bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
Since this case is before the Court on a Motion to Dismiss, the Court accepts the following allegations in the Odens' complaint as true:
In October 2010, Swain, a social worker employed by Jefferson County DHR, notified Oden that she was initiating an investigation of Oden's Boarding Home II based on allegations that residents were venturing into traffic and, begging for food and money, that residents were not getting adequate food, that residents were not receiving their medications, and that residents were not being taken to scheduled doctor's visits. At the time of this investigation, six residents had been living at Oden's Boarding Home II for periods ranging from two to eleven years. Swain conducted an inspection of Oden's Boarding Home II on or about October 1 or October 2, 2010. The October 2010 inspection of Oden's Boarding Home II was accompanied by media coverage that cast the Odens in a negative light. The Odens did not contact the media and did not do anything that would cause the media to cover the investigation. During the inspection, residents told Swain that they were being provided meals and medications. No further action was taken by Jefferson County DHR at the conclusion of the inspection.
On December 8, 2010, Jefferson County DHR removed the six residents from Oden's Boarding Home II. The Odens were not given prior notification of the removal or an opportunity to respond to the allegations of abuse or neglect prior to removal. The Odens also were not given the opportunity to cure any alleged deficiencies. The removal was accompanied by negative media coverage, but again, the Odens did not contact the media or do anything that would cause the media to cover the removal.
Following the October 1 or 2, 2010 inspection, but prior to the December 8, 2010 removal, caregivers for residents at Oden's Boarding Home I removed residents from that facility based on Jefferson County DHR's allegations of abuse, neglect and exploitation at Oden's Boarding Home II. Organizations who had previously served as referral sources for Oden's Boarding Homes told the Odens that Jefferson County DHR had instructed them not to make new referrals to the Odens' communal living facilities because the Odens were guilty of abuse, neglect, and exploitation. As with the December 8, 2010 removal at Oden's Boarding Home II, these statements were made to referral sources before Jefferson County DHR had determined the allegations of abuse and neglect were true and before Jefferson County DHR had held a hearing relating to these allegations.
On December 8, 2010, after the six residents were removed from Oden's Boarding Home II, Jefferson County DHR delivered a letter to Mr. Oden stating:
The letter was signed by Swain and Swain's immediate supervisor, Bradford.
At the Odens' request, a hearing was held before Administrative Law Judge William Prendergast on May 3, 2011. The Odens and representatives of DHR were present and represented by counsel. On May 19, 2011, Judge Prendergast reversed DHR's findings, holding:
Despite the outcome of the ALJ hearing, the Odens were harmed as a result of the
Jefferson County DHR investigation. The Odens claim that DHR's removal actions terminated the contractual relationship between them and the six residents at Oden's Boarding Home II, leaving the Odens unable to maintain their properties or to pay their mortgage on the properties. Moreover, the negative media attention accompanying the investigation and removal, and Swain's defamatory statements relating to allegations of abuse, neglect, and exploitation, caused agencies to stop referring residents to the Odens' facilities. As a result, the Odens were financially unable to operate communal living facilities, and they lost title and possession of their communal living properties as a result of foreclosure. The financial loss, media attention, and negative stigma have further left the Odens unable to operate communal living facilities or to provide similar services.
The Odens assert a claim against Defendants under 42 U.S.C. § 1983 alleging violations of their procedural due process rights under the Alabama and United States Constitutions.
The Odens seek the following declaratory and injunctive relief: (1) an order enjoining Defendants from further sharing the information contained in the investigatory report and the indicated disposition with employers and licensing agencies; (2) an order directing Defendants to expunge, purge, and remove any information identifying the Odens as responsible for abuse, neglect, or exploitation; (3) an order requiring Defendants to implement a system to ensure DHR employees are properly trained; and (4) an order directing Defendants to implement rules and regulations requiring that a pre-deprivation hearing be afforded to persons indicated for abuse, neglect, or exploitation prior to the taking of property or the dissemination/publication of information relating to the report, inspection, investigation and/or disposition. The Odens also seek compensatory and punitive damages and attorney's fees.
The Odens bring claims pursuant to § 1983 alleging that Defendants violated their procedural due process rights under the United States and Alabama Constitutions.
The Odens' complaint brings claims against Buckner, McClintock, Bradford, and Swain for damages in their official capacities as employees of Alabama and Jefferson County DHR. It is undisputed that both Alabama DHR and Jefferson County DHR are state agencies. See Ross v. State of Ala., 893 F.Supp. 1545, 1550 (M.D. Ala. 1995) (holding that county DHR, which by statute is a division of the state DHR, is a state agency for purposes of Eleventh Amendment immunity). A suit against a government official in his official capacity is considered a suit against the official's office itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). When that office is an arm of the state government, the Eleventh Amendment "protects the sovereignty of the state by prohibiting suits when recovery would be paid from state funds."
While the Eleventh Amendment has been construed to bar suits against a state brought by that state's own citizens, absent the state's consent, there exists a well-recognized exception to this general rule "for suits against state officers seeking prospective equitable relief to end continuing violations of federal law." McClendon v. Ga. Dep't of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir. 2001) (emphasis in original); see also Ex parte Young, 209 U.S. 123, 159-60 (1908).
Verizon Maryland, Inc. v. Public Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002).
However, the Odens may not employ the Ex Parte Young fiction unless they can establish Article III standing. Article III standing is a constitutional limitation on the exercise of federal court jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). A plaintiff will generally have standing only where (1) she experienced injury in fact, (2) the injury is fairly traceable to the defendant's conduct, and (3) her harm is likely to be redressed should the court order relief. Id. at 60. "Plaintiffs bear the burden of establishing each of the three standing elements." See Bennet v. Spear, 520 U.S. 154, 167-68 (1997). "At the motion to dismiss stage, the party seeking standing must rely on the facts alleged in the complaint." Id. (citing Lujan, 504 U.S. at 561).
In order to have standing to bring a claim for prospective or injunctive relief, a plaintiff must allege facts that demonstrate "a sufficient likelihood that he will again be wronged in a similar way." City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983).
Church v. City of Hunstville, 30 F.3d 1332, 1337 (11th Cir. 1990) (alteration to original) (citations and internal quotation marks omitted).
The seminal case applying this standard is City of Los Angeles v. Lyons. The plaintiff in Lyons sued the City of Los Angeles and four police officers after being subjected to a chokehold without provocation during the course of his arrest. Lyons, 461 U.S. at 98. The plaintiff sued for damages, as a well as injunctive and declaratory relief that would bar the city from enforcing a policy that allowed officers to use chokeholds absent an immediate threat of deadly force. Id. Although the Supreme Court allowed the plaintiff's claim for money damages to proceed, it found that the plaintiff did not have standing to pursue injunctive relief because there was not a "sufficient likelihood that he will again be wronged in a similar way." Id. at 111. In other words, there was no "real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without provocation or resistance on his part." Id. at 105.
A recent case in this district, relying on the decision in Lyons, found that a group of plaintiffs did not have standing to seek "generalized injunctive or declaratory relief" from a DHR policy that did not provide a hearing before placing alleged child abusers on Alabama's Central Registry. See Thomas v. Buckner, No. 2:11-cv-245-WKW, 2011 WL 4071948, at *4 (M.D. Ala. Sept. 13, 2011). In Thomas, plaintiffs were investigated by Alabama DHR based on reports of child abuse and neglect and were subsequently placed on Alabama DHR's Central Registry as persons who were "indicated" as child abusers. Id. at *2. The plaintiffs brought suit against Alabama DHR and Shelby County DHR, as well as various DHR employees, alleging violations of their procedural due process rights based on DHR's failure to provide them with a hearing or to give them an opportunity to exonerate themselves. Id. at *3-4. The plaintiffs essentially sought two types of injunctions. First, they sought an injunction requiring DHR to remove their names from the Central Registry until after they had been given an opportunity to defend against the child abuse indication. Id. at *3. Second they requested an injunction barring the state from placing individuals on the Central Registry prior to being afforded a hearing in the future. Id. As to the former, the district court held that the plaintiffs had standing to pursue the injunction because, as alleged, there were "live controversies as to whether [the plaintiffs] are entitled to hearings to challenge the Alabama or Shelby County DHR investigations at issue." Id. at *5. However, as to the latter, the district court found that the plaintiffs did not have standing to pursue such injunctive relief because "it is pure speculation to say that any one of these Plaintiffs will become the subject of a future DHR investigation, and speculation on top of speculation that it will result in another unfavorable disposition that any one of them will seek to challenge through a hearing." Id.
In this case, the Court finds that, like in Thomas, the Odens are not entitled to seek prospective injunctive or declaratory relief because the complaint does not allege a sufficient likelihood that the Odens will suffer a future wrong by DHR in a similar way. As in Thomas, it is pure speculation that the Odens would ever be subject to a future DHR investigation and "speculation upon speculation" that the investigation would lead to similar removal of residents or an indicated disposition. The speculative nature of the inquiry is compounded by Mr. Oden's own allegation that he no longer is engaged in operating communal living facilities, which further reduces the likelihood that he will be investigated for abuse, neglect, or exploitation of other adults. Accordingly, the risk of repeated injury at the hands of Jefferson County DHR or Alabama DHR is too hypothetical or conjectural to support generalized standing for prospective injunctive relief. See Lyons, 461 U.S. at 102.
Moreover, the Court in Thomas only conferred standing to bring claims for injunctive relief that would require DHR to hold a hearing to determine whether its findings were proper and whether the plaintiffs' names should remain on Central Registry as to the investigation at issue. The "real and immediate" future harm stemmed directly from the plaintiffs' names remaining published in the Central Registry. Here, an ALJ hearing has already been held, and the Odens' disposition has been overturned. There are no allegations that the Odens' names remain on any internal or external database listing that they are, or were formerly, indicated for abuse, neglect, or exploitation. Nor are there any allegations that Alabama DHR or Jefferson County DHR are continuing to disseminate information relating to their investigation of the Odens or their previously indicated status.
The Court now turns to the Odens' claims for money damages against Defendants in their individual capacity, which includes claims against Defendants for violations of their right to procedural due process and claims against Buckner, McClintock, and Bradford in their supervisory capacity for deliberate indifference, failure to train and supervise, and failure to implement and establish a policy of providing a pre-deprivation hearing.
While the Eleventh Amendment shields state officers from damage suits in their official capacities, those officials are individually amenable to suit under 42 U.S.C. § 1983 for violations of the United States Constitution and federal law. See Graham, 473 U.S. at 165-67. However, a government official sued in his individual capacity under § 1983 may assert qualified immunity as an affirmative defense if he was performing a discretionary function. Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004). "Once the official has established that he was engaged in a discretionary function, the plaintiff bears the burden of demonstrating that the official is not entitled to qualified immunity." Id. If the plaintiff fails to furnish sufficient factual allegations at this stage, the defendant officer is entitled to judgment. See Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir. 2001). In this case, there is no dispute as to whether Defendants were engaged in discretionary functions.
In Saucier v. Katz, the Supreme Court delineated a two-step analysis for determining whether an officer engaged in a discretionary function is eligible for qualified immunity. 533 U.S. 194, 201 (2001). The initial inquiry focuses on whether the plaintiff's allegations, if considered true, show that the officer violated a constitutional right. Id. The absence of a constitutional violation ends the inquiry. Id. However, where a court does find that an officer acted in an unconstitutional manner, the analysis turns to whether the right in question was clearly established so that the officer had fair warning that his conduct was constitutionally prohibited. Id. In Pearson v. Callahan, the Supreme Court instructed lower federal courts to use their sound discretion to decide which prong of the qualified immunity to address first. 555 U.S. 223, 236 (2009).
In this case, the Odens allege that Defendants violated their right to procedural due process by depriving them of their liberty and property prior to holding a pre-deprivation hearing. In the Eleventh Circuit, a plaintiff must prove the following three elements to succeed on a § 1983 procedural due process claim: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). Thus, a common element of succeeding on a liberty or property deprivation claim is proof that the process offered by Jefferson County DHR was constitutionally-inadequate. The Odens essentially argue that, assuming they have met the first and second elements of a procedural due process claim, Defendants violated their constitutional rights by not offering them a hearing prior to taking the challenged actions. Even if the Court were to find this indeed occurred, such a violation is not clearly established.
"For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). This standard does not require a prior court decision to have declared the precise set of facts presently alleged unlawful, "but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 438 U.S. 635, 640 (1987). "The salient question . . . is whether the state of the law . . . gave [the officers] fair warning that their alleged treatment of [the plaintiff] was unconstitutional." Hope, 536 U.S. at 741.
The Eleventh Circuit has further refined the analysis of when the law is clearly established. It has observed that "fair and clear" notice may be given by (1) the "obvious clarity" of the pertinent federal statute or constitutional provision, such that qualified immunity may be overcome in the "total absence of case law", (2) the judicial determination that certain conduct has been defined as unlawful without regard to particular facts, and (3) holdings in specific cases that are tied to certain facts. Vinyard v. Wilson, 311 F.3d 1340, 1350-51 (11th Cir. 2002) (emphasis removed). Only the decisions of the Supreme Court, the Eleventh Circuit, or the highest court in the state in which the case arose provide the case law capable of clearly establishing the boundaries of rights in the qualified immunity analysis. Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003).
The Odens essentially argue that Defendants violated rights to procedural due process by not offering them a hearing prior to taking the challenged actions. Such a violation has not been clearly established.
Only the Odens' state law claims for conversion, defamation, and interference with contractual relations remain. The Court has supplemental subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1367. Section 1367(c)(3) provides that a "district court may decline to exercise supplemental jurisdiction over a claim if . . . the district court has dismissed all claims over which it has original jurisdiction." Because the federal claims over which this Court had original jurisdiction have been resolved against the Odens, the Court declines to exercise its supplemental jurisdiction over the state law claims against Defendants and, instead, dismisses them without prejudice. See 28 U.S.C. § 1367(c)(3); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004) ("We have encouraged district courts to dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to trial."). This dismissal should not work to the Odens' disadvantage if they choose to bring these claims in State court because the statute of limitations for these claims are tolled during the pendency of this action. See 28 U.S.C. § 1367(d).
Based on the foregoing, it is hereby ORDERED that Defendant Buckner's Motion to Dismiss (Doc. #10) and Defendants McClintock, Bradford, and Swain's Motion to Dismiss (Doc. #14) are GRANTED. All federal claims (Count 1) against Defendants in their official and individual capacities are DISMISSED WITH PREJUDICE. All state claims (Counts 2-4) against Defendants are DISMISSED WITHOUT PREJUDICE.
