ERIC F. MELGREN, District Judge.
Plaintiff Ashley Barnes asserts seven claims against Defendants St. Francis Community Services ("St. Francis") and Chris Dolph. Barnes' children were removed from her home, and she sought to reintegrate them into her home. St. Francis, a corporation that contracts with the state of Kansas, provides foster care, adoption, and family preservation/reintegration programs. Dolph, a former employee of St. Francis, was Barnes' caseworker. Dolph allegedly sexually harassed Barnes and threatened the removal of her kids from her permanent custody if she did not comply with his requests.
Barnes brings seven claims, including three federal claims brought under 42 U.S.C. § 1983 and four state law claims. St. Francis now seeks dismissal of the federal claims because it asserts that it was not acting under color of state law and that Barnes fails to allege sufficient facts to state a cause of action against St. Francis. St. Francis also contends that two of the state law claims fail to adequately allege a claim against it. Because the Court finds that Barnes adequately alleges sufficient facts to support some of her claims, but not all of them, the Court denies in part and grants in part St. Francis' Motion to Dismiss (Doc. 11).
Barnes resides in Sedgwick County, Kansas. In 2014, Barnes children were removed from her home. Barnes wanted her children back and began a series of steps to have them reintegrated into her home. The state court ordered her to work with St. Francis, a Kansas corporation, in the reintegration process. Since July 1, 2013, St. Francis has contracted with the state of Kansas to operate its foster care, adoption, and family preservation programs for Wichita and western Kansas. The state of Kansas describes its relationship with St. Francis in the following way:
Before the privatization of these services, these duties were performed by the state.
One of Barnes' assigned case workers from St. Francis was Dolph. He is now a former employee of St. Francis, but throughout the time of the allegations in the Complaint, he was acting within the course and scope of his employment with St. Francis. The state court and Dolph told Barnes that Dolph would have a role in having her children returned. Barnes was instructed to follow the court's instructions and communicate frequently with Dolph, and that she must allow Dolph to come to her home. Dolph could write reports regarding Barnes upon which the court relied, and Dolph could order Barnes to do tasks or take drug tests.
Dolph would show up at Barnes' home unannounced and alone. He ordered Barnes to do things for his personal sexual gratification by threatening her with the power he had over her. When they were alone, he touched her inappropriately by grabbing her ribs and waist. He also sat close to her on the couch and stroked her hair.
Dolph contacted Barnes by text message on the same phone that he used to work at St. Francis. He suggested that they shower together. He also sent her at least two nude photos of himself and other texts that were sexual in nature. Dolph told Barnes to "give me some or I will take the kids," which frightened Barnes.
In addition, Dolph told Barnes to send sexually charged texts and pictures to him. He told her that if she told anyone, he would show them her texts and she would look "sick and crazy." Barnes felt "nasty and disgusting," but she did as Dolph instructed because she was afraid of losing her kids. Finally, Dolph told Barnes that if she told anybody about his behavior, "things would happen," and he would be sure her kids were taken away permanently.
St. Francis received several complaints about Dolph, including that he was unfair, that he favored attractive female clients, that he was not a good social worker, and that he did not follow rules. When Dolph met with Barnes in front of other St. Francis employees, he would sit close to her, touch her arms, and rub her back. The other employees did not stop this behavior.
St. Francis knew or should have known that Dolph had been disciplined and/or terminated from his previous social work job for sexual misconduct issues. St. Francis did not monitor Dolph's communications with Barnes. In addition, St. Francis' high levels of turnover and chronic short staffing led to inadequate supervision and one-on-one visits that were not monitored.
Barnes filed her Complaint on July 8, 2016, and asserts seven claims. Her first three claims are brought under 42 U.S.C. § 1983 against both St. Francis and Dolph. She alleges that Defendants acted under color of state law and that they violated her right (1) to equal protection, (2) to be free from unreasonable search and seizure, and (3) to substantive due process. She also brings two state law claims against both St. Francis and Dolph for the tort of outrage and invasion of privacy. Finally, she brings two state law claims against only St. Francis for negligence and negligent infliction of emotional distress.
St. Francis has filed a Motion to Dismiss.
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted.
Barnes brings three claims under 42 U.S.C. § 1983. The first is an equal protection claim, the second is an unreasonable search and seizure claim, and the third is a substantive due process claim. St. Francis seeks the dismissal of these federal claims for several reasons. First, St. Francis contends that it is a private entity and was not acting under color of state law. Next, St. Francis argues that Barnes alleges insufficient facts to state a claim against it. Finally, St. Francis briefly asserts that it is entitled to qualified immunity.
St. Francis first argues that it is a private entity and that the allegations are insufficient to establish that it was acting under color of state law. All of the § 1983 claims require an allegation of a "violation of a right secured by the Constitution and laws of the United States" and "that the alleged deprivation was committed by a person acting under color of state law."
The public function test considers whether the private party is performing "a function traditionally exclusively reserved to the States."
The nexus test is met when a plaintiff can establish that "there is a sufficiently close nexus between the government and the challenged conduct such that the conduct may be fairly treated as that of the State itself."
With respect to the symbiotic relationship test, the question is whether the state "has so insinuated itself into a position of interdependence with a private party that it must be recognized as a joint participant in the challenged activity."
Under the joint action test, the Court must consider "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights."
St. Francis argues that under any one of the four applicable tests, it was not acting under color of state law. Barnes disagrees and argues that with the exception of the nexus test, each test can be met. Barnes' primary argument is that the public function test has been alleged because St. Francis was a participant in the decision of whether Barnes' children should be returned to her home or whether Barnes' parental rights should be permanently severed. However, Barnes also asserts that the symbiotic relationship test is met because St. Francis is so entwined with the state that St. Francis' actions should be considered state actions. Finally, Barnes states that the joint action test is met because St. Francis and the state were jointly acting to determine whether Barnes' children should be returned to Barnes.
At this point, the Court must look at the allegations in the Complaint to see whether Barnes has sufficiently alleged that St. Francis was acting under color of state law.
Defendant argues that the public function test cannot be met because courts have generally found that the care of foster children and adoption services do not fall within the power of the state. Although that contention is correct, the distinction here is that Barnes is not discussing foster and adoption services by St. Francis but rather her custody rights to her children. She alleges that St. Francis and Dolph would participate in the decision of whether her children would be permanently removed from her home. Indeed, she alleges that Dolph threatened the permanent removal of her children if she did not comply with his requests. The removal of a child from the custody of a biological parent is a function traditionally reserved to the state.
St. Francis also argues that the § 1983 claims should be dismissed because Barnes alleges insufficient facts. In general, St. Francis asserts that Barnes does not adequately allege supervisor or employer liability with regard to all three claims brought under § 1983 because she does not allege "personal direction" or "actual knowledge and acquiescence" on behalf of St. Francis. In addition, St. Francis argues that Barnes fails to state sufficient facts regarding Dolph's behavior as to her search and seizure and substantive due process claims.
St. Francis contends that Barnes only asserts conclusory phrases of "deliberate indifference" and "gross neglect" against it and fails to include any specific allegations relating to St. Francis' role in the constitutional violations. St. Francis directs this Court's attention to Woodward v. City of Worland,
Here, Barnes does not allege personal direction but she does adequately allege knowledge and acquiescence. She alleges that St. Francis was deliberately indifferent to Barnes by understaffing and failing to supervise its caseworkers, including Dolph. She also alleges that St. Francis was deliberately indifferent in hiring Dolph because it knew that Dolph had previous performance and/or sexual misconduct issues and hired him anyway. More specifically, Barnes alleges that St. Francis received complaints about Dolph but still failed to monitor or supervise him. An employing entity may be held liable under § 1983 if supervisory employees "knew of the sexual harassment and failed to take action to end it."
St. Francis concedes that Barnes may have alleged an equal protection claim against Dolph but argues that she does not allege sufficient facts as to St. Francis' role. As noted above, however, the Court finds that although Barnes' allegations are somewhat cursory, she has adequately alleged knowledge and acquiescence on behalf of St. Francis. Thus, the Court denies St. Francis' motion with regard to this claim.
As to Barnes' unreasonable search and seizure claim, St. Francis contends that Barnes does not allege an actionable claim because she does not allege a search or seizure. Barnes contends that an unreasonable search and seizure occurred when Dolph forced Barnes to send nude photographs to him and because he had access to her medical, social, and psychological history. Barnes states that St. Francis was grossly negligent and deliberately indifferent to the potential injury. The Fourth Amendment protects individuals from unreasonable searches and seizures.
Finally, St. Francis contends that Barnes fails to allege a substantive due process claim because there are no allegations rising to the level required for a substantive due process claim. St. Francis also contends that even if the allegations were to support a substantive due process claim against Dolph, Barnes does not set forth sufficient allegations to support a claim against St. Francis because there are no allegations that it participated or acquiesced in the conduct of Dolph.
"Substantive due process arises from the Fourteenth Amendment's protections against governmental deprivations `without due process of law.'"
When considering whether a substantive due process claim has been stated under the "fundamental rights" strand, a plaintiff must "both (1) carefully describe the right and its scope; and (2) show how the right as described fits within the Constitution's notions of ordered liberty."
With regard to the second strand of substantive due process, it "is concerned with preventing government officials from abusing their power, or employing it as an instrument of oppression."
Barnes' allegations with regard to this claim are extremely sparse. Although she incorporates all of the allegations in her Complaint, she only alleges two facts. First, she alleges that "Dolph intentionally discriminated against Plaintiff because of her sex while acting under color of state law, which violates her right to due process." Next, "St. Francis's deliberate indifference and gross negligence allowed Dolph to violate Plaintiff's right to due process." As noted above, a fundamental substantive due process violation generally relates to marriage, family, procreation, and bodily integrity.
Furthermore, to the extent that she is possibly attempting to assert a substantive due process claim on the basis of bodily integrity, her claim would fail.
Barnes asserts that Dolph's conduct is outrageous and conscience shocking. She claims that the alleged facts are similar to the facts in Haberthur v. City of Raymore,
Although the Eighth Circuit case is instructive, it is not binding on this Court. In addition, the facts are more egregious than the facts alleged here. There was more offensive physical contact in Haberthur. In this case, Barnes alleges that Dolph inappropriately touched her by grabbing her at the ribs and waists and that he sat close to her on the couch. In addition, she alleges that Dolph stroked her hair and rubbed her back.
Although the allegations in this case appear more serious than the allegations in Gilliam, they also do not rise to the level in Haberthur. As noted by the Tenth Circuit, "not every condemnable act by a public official represents a constitutional violation."
In sum, the Court finds that Barnes adequately alleges an equal protection claim. She does not, however, adequately allege a search and seizure claim or substantive due process claim. Accordingly, the Court dismisses these claims.
St. Francis briefly asserts that it is entitled to qualified immunity if the Court should find that it engaged in state action. St. Francis, however, does not develop its argument. Thus, the Court will not address it with regard to this motion.
Barnes alleges a claim for the tort of outrage, or intentional infliction of emotional distress, and an invasion of privacy claim against both Dolph and St. Francis.
Barnes asserts that she has adequately alleged that St. Francis is liable under an agency theory of "aided-in-agency." She has not. Indeed, the only allegation that Barnes includes with regard to these two intentional tort claims is that St. Francis, as Dolph's employer, is vicariously liable for Dolph's actions. "Generally, an employer is not liable for the intentional torts of an employee unless they are committed while the employee is acting within the scope of his employment or in furtherance of his employer's business, and not with a purpose personal to the employee."
As to Barnes' aided-in agency theory, courts have occasionally relied upon § 219(2)(d) of the Restatement (Second) of Agency to find an employer vicariously liable for its employee's tortious action when that act was outside the scope of his employment.
In sum, the Court grants in part and denies in part St. Francis' Motion to Dismiss. The search and seizure and substantive due process claims are dismissed. In addition, the intentional infliction of emotional distress and invasion of privacy claims asserted against St. Francis are dismissed.
In Plaintiff's response to St. Francis' Motion to Dismiss, she states that St. Francis had a custom of inadequate training and understaffing. She also vaguely discusses policies and customs of St. Francis. These arguments make it appear that she is attempting to impose liability on St. Francis through an official policy, practice, or custom. Yet, these allegations are not in her Complaint as she does not specifically identify any policy, custom, or practice. Thus, the Court finds that she does not allege in her Complaint that St. Francis had a policy or custom that caused her injury.
