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Faye v. Mississippi Department of Human Services

United States District Court, S.D. Mississippi, Southern Division

August 30, 2018

ALEXANDRIA FAYE, Individually and as Next Friend and On Behalf of O.F. and K.S. PLAINTIFF
v.
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES; HARMONY RAFFEO; TEQUILA HALL; ERICA WEARY; and JOHN AND JANE DOES I-X DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' SECOND MOTION TO DISMISS

          LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the [22] Second Motion to Dismiss filed by Mississippi Department of Human Services (“MDHS”), Tequila Hall, Harmony Raffeo, and Erica Weary, in this lawsuit filed as a result of the alleged sexual assault of one or more children who were in foster care. The parties have fully briefed the Motion. After reviewing the Motion, the record in this matter, and the applicable law, the Court finds that the Motion to Dismiss should be granted.

         BACKGROUND

         Alexandria Faye filed this lawsuit against the defendants on behalf of herself and her two minor daughters. Her [18] First Amended Complaint contains the following allegations:

         Faye was arrested on February 19, 2014, and MDHS filed a petition to remove her daughters - O.F., who was then one year old, and K.S., who was then two years old - from Faye's custody. Faye claims that “[n]othing in the [p]etition rose to an allegation of neglect sufficient to constitute of [sic] finding separating the mother from her minor children in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the right to family integrity.” (1st Am. Compl. 4, ECF No. 18.) The Hancock County Youth Court granted the petition, placing O.F. and K.S. in MDHS custody. MDHS, Hall, Raffeo, and John and Jane Does told the Youth Court that the only residents of the home of foster parent Erica Weary were Weary and her minor son. However, other unidentified persons resided in Weary's home. Faye alleges that, if the defendants had adequately screened and inspected the foster home and performed regular, required face-to-face meetings, the defendants would have learned that others lived in the foster home.

         In 2014, Raffeo notified Faye that she was transporting the children to the hospital so that they could be tested for gonorrhea. (1st Am. Compl. 7, ECF No. 18.) Raffeo told hospital staff that O.F. had tested positive for gonorrhea at a health clinic. MDHS, Raffeo, Hall, and John and Jane Does also “declined an examination by medical personnel for sexual assault.” (Id.) MDHS, Hall, Raffeo, and John and Jane Does reported that the assault occurred at the Weary home. Subsequently, Faye and a social worker took the children to the Children's Hospital of New Orleans. “Medical staff treated K.S. prophylactically for gonorrhea due to the fact that no facility was able to collect a urine specimen from K.S. for sexual infections prior to treatment.” (Id. at 8.) O.F.'s medical records state that she “most likely contracted [gonorrhea] while in foster care based on symptomology and timeline provided.” (Id.) O.F. tested positive for gonorrhea at three different medical facilities. Faye tested negative for gonorrhea on two occasions. “MDHS substantiated sexual abuse suffered by the minor children, but did not substantiate the source.” (Id.) Gonorrhea is only transmitted by sexual contact; thus, the children were sexually assaulted. Gonorrhea has an incubation period of two to five days, but the children were in MDHS custody for almost four months before the gonorrhea diagnosis. “It is medically concluded that O.F. and K.S. contacted [sic] gonorrhea while in MDHS and Hancock County DHS custody.”[1] (Id. at 9.)

         Faye claims that the defendants failed to follow their own policies and procedures when they (1) failed to conduct “appropriate background checks” as to all individuals who would reside in the foster home where the children were placed; (2) failed to “conduct periodic inspections” of the foster home; and (3) failed to conduct “periodic face-to-face meetings” with the children. (Id.) She alleges that the John and Jane Doe defendants molested the children.

         Faye attempts to assert the following claims: negligence and gross negligence of MDHS under the Mississippi Tort Claims Act; deprivation of Fourteenth Amendment rights by Raffeo under 42 U.S.C. § 1983; deprivation of Fourteenth Amendment rights by Hall under 42 U.S.C. § 1983; deprivation of Fourteenth Amendment rights by John and Jane Does 1-10 under 42 U.S.C. § 1983; deprivation of Constitutional rights by Weary under 42 U.S.C. § 1983; negligence and gross negligence by Weary, negligence and gross negligence by John and Jane Does 1-10; negligence infliction of emotional distress, by Weary, Hall, and Raffeo; and battery by John and Jane Does 1-10. Faye seeks compensatory damages, punitive damages, and attorneys' fees and expenses. The Court granted the defendants' first [7] Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) but found that Faye should be granted leave to amend her Complaint. Faye filed her First Amended Complaint, and the defendants filed their [22] Second Motion to Dismiss.

         DISCUSSION

         To survive a motion to dismiss filed pursuant to Rule 12(b)(6), “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In considering a Rule 12(b)(6) motion, a court must accept all well-pleaded facts as true and view those facts in the light most favorable to plaintiff. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015). “The court's task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

         I. FAYE'S SECTION 1983 CLAIMS

         A. SECTION 1983 CLAIMS FILED AGAINST WEARY

         In its [16] Memorandum Opinion and Order granting the defendants' first Motion to Dismiss, this Court explained that a foster parent is not a state actor for purposes of section 1983. (Mem. Op. & Order 6, ECF No. 16.) (citing Faulkner v. Miss. Dep't of Human Servs., No. 1:16cv158-LG-RHW, 2016 WL 3661521, at *2 (S.D.Miss. July 5, 2016)). Since Faye's claims that Weary is a state actor were solely based on her status as a foster parent, this Court held that Faye's original Complaint did not contain sufficient allegations supporting a claim against Weary pursuant to 42 U.S.C. § 1983. Faye has not provided any new factual allegations as to Weary. Therefore, for the reasons stated in his Court's previous [16] Memorandum Opinion and Order, Faye's § 1983 claims against Weary are dismissed pursuant to Fed.R.Civ.P. 12(b)(6).

         B. INDIVIDUAL CAPACITY CLAIMS ...


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