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Johnson v. Williams

United States District Court, E.D. Michigan, Southern Division

September 25, 2017

Dynelle Johnson, Plaintiff,
v.
Sonja Williams, et al., Defendants.

          David R. Grand, U.S. Magistrate Judge

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [43]

          Arthur J. Tarnow, Senior United States District Judge

         Plaintiff filed a complaint on November 2, 2015 against Defendant Wolverine Human Services, Incorporated (WHS) and individual Defendants Sonja Williams, Domonique Cobb-Clements, Jonathan Howard, Michael Kennebrew, Kristi Einem-Smith and Judith Fischer-Wollack. Plaintiff, the adoptive mother and personal representative of the estate of the deceased Aaron Cauvin, brings §1983 claims of deliberate indifference to Aaron's mental health issues against various employees of the private non-profit treatment facility WHS. She also raises a Monell claim against WHS and state claims of negligence, gross negligence, willful and wanton misconduct, and wrongful death against WHS employees Kennebrew, Howard, Williams, Cobb-Clements and vicarious liability/respondeat superior and principal-agent relationship claims against Defendants WHS, Fischer-Wollack and Einem-Smith. [11].

         Defendants filed a Motion for Summary Judgment [43] on October 3, 2016. Defendants responded [74] on January 27, 2017 and Plaintiff replied [75] on February 24, 2017. An initial hearing was held on the Motion on May 17, 2017. The Court ordered supplemental briefing and invited amicus briefing on the federal claims. Plaintiff and Defendants submitted supplemental briefs on July 12, 2017 [85, 86]. The Michigan Association for Justice and the Michigan Defense Trial Counsel submitted amicus briefs on July 12, 2017 as well [87, 88]. A hearing was held on August 31, 2017. For the reasons stated below, Defendants' Motion [43] is GRANTED in part as to the dismissal of Count VIII and the dismissal of all claims against Defendant Judith Fischer-Wollack and DENIED in part as to all other claims.

         Factual Background

         Aaron Cauvin (“Aaron”) was born on April 27, 1999. His birth parents had their parental rights terminated when Aaron was about four years old. Aaron and his brother N.C. were taken as foster children by Dynelle Johnson (“Johnson”) in 2006. Two years later, Johnson adopted both Aaron and N.C., at the ages of nine and six respectively.

         When Aaron turned fourteen, he began to act out in school and at home. He spoke of suicide, cut himself, and intentionally crashed a stolen car into a light pole. Aaron was hospitalized on numerous times for severe depression and suicide ideation. From October 3, 2014 through October 21, 2014, Aaron was admitted to StoneCrest Center, a Behavioral Hospital, and was considered to be a high risk of violence to himself and others, and to SafeHaus, Inc., a Children's Intensive Crisis Residential facility that monitors children for suicide ideation. Aaron was discharged on October 21, 2014 and returned to Johnson's home.

         On October 29, 2014, Aaron's psychological situation had caused tensions to rise in the Johnson home, and Ms. Alisha Weatherby, a Child Protective Services (“CPS”) specialist, removed Aaron from Johnson's home pursuant to an Order from the Macomb County Circuit Court. Ms. Weatherby is a social worker with a degree in psychology. She transported Aaron to WHS, and testified that, at the time he was admitted to WHS, she did not observe any evidence that Aaron was actively suicidal or exhibiting any signs of suicide ideation. [43-10]. She did inform Defendant Williams that Aaron had previously attempted to commit suicide. [74-16 at ¶¶3-6].

         WHS is a non-profit child-care institution. Upon his intake, a packet was completed that indicated Aaron appeared to be in a good physical and emotional state, but presented an increased risk for suicide. [43-11]. It is undisputed that WHS was made aware of Aaron's mental health history, and that he was recently hospitalized for a suicide attempt. [74-15; 74-16]. During the intake process, Defendant Williams was shown Aaron's self-inflicted cutting scars as well. [74-17]. Aaron's belt was listed on his clothing inventory, but was not taken from him, because it was not policy at the time to take belts from shelter clients. [74-18]. Aaron was placed in a room with exposed ceiling plumbing [74-19] on the orientation level.

         On October 30, 2014, Defendant Cobb-Clements completed a PTSD checklist that inquired about Aaron's feelings in the past month, and a Mental Health Screening Form III, which sought information about Aaron's “entire life history, not just [his] current situation.” [74-24, emphasis in the original]. In the PTSD checklist, Aaron indicated that he has been feeling emotionally numb and unable to love those close to him, and felt as if his future would be cut short. [74-23]. In the mental health screening form, Aaron indicated that he had been depressed for weeks at a time in the past, and has had thoughts about killing himself, and had previously attempted suicide. [74-24]. Defendant Cobb-Clements noted that she asked Aaron “if he was having current suicidal/homicidal ideations” and Aaron “denied any current ideations.” Id. Defendant Cobb-Clements also noted that Aaron would have a follow-up with a psychiatrist and psychologist. [Id].

         At 3:00 pm on October 30, 2014, Aaron entered his room for mandatory reflection time during the shift change. [74-29]. At the time, WHS' line of sight policy, as written, did not require that staff visually observe the clients every fifteen minutes. [74-30]. Aaron was not seen by a staff member until 3:30pm, when he asked if he had to stay in this room after completion of reflection time. He was told by Defendant Howard that it was up to him. [74-31]. Around that time, Defendant Williams observed Aaron poke his head out of the room, and she informed him that he needed to exit it. [74-32]. Defendant Williams did not wait to see if Aaron had actually followed her directive. Id.

         Defendant Williams separated the children into two groups, with one going downstairs to the recreation room, while the other remaining in the third floor lounge. [43-13 at 6]. Defendant Kennebrew was informed that Aaron was assigned to the group of children staying in the lounge. [74-34]. Because of an error in the head count, Aaron was not identified as missing. Defendant Kennebrew reported that he looked through the bedroom windows to see if there were any missing children, however he later admitted that he realized that he could not see the entirety of the room though the window. [43-13 at 6].

         While Defendant Kennebrew moved the children into a line to lead them downstairs, one of the residents commented that he had urinated on the new kid's bed. This resident entered Aaron's bedroom, and ran out, exclaiming “He's dead!” [Id]. Aaron was found hanging from the exposed ceiling plumbing pipes. Defendant Kennebrew yelled, “The new boy has a belt around his neck and I think he's dead!” [74-36]. Defendant Kennebrew did not take Aaron's body down, nor did he attempt any life-saving efforts.

         Analysis

         1. §1983 claims

         a. State Actor

         It is undisputed that WHS is a private, non-profit corporation. The issue of whether a private corporation is a state actor, or acted under the color of state law, as required by section 1983, is a threshold question of law for the Court to determine. Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002). In the Sixth Circuit, a private entity can qualify as a state actor under three different tests: (1) the state compulsion test; (2) the symbiotic relationship, or substantial nexus test; and (3) the public function test. Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). Plaintiff argues that the public function test is most applicable here to establish WHS as a state actor.

         The Public Function Test

         To qualify as a state actor under the public function test, a private entity such as Defendant must be performing a function that has been exclusively reserved for the state. Carl v. Muskegon Cty., 763 F.3d 592, 597 (6th Cir. 2014). These exclusive functions have been narrowly cabined to include such activities as “holding elections, exercising eminent domain, and operating a company owned town.” Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003).

         Defendants point out that there is no binding state law mandating that the state of Michigan house teenagers, like Aaron, who have been removed from their home. See M.C.L. § 400.18d (The county department of social welfare, upon authorization of the county board of supervisors, may operate an emergency receiving facility for the temporary care of homeless, dependent or neglected children) (emphasis added). Defendants state that these permissive regulations necessarily do not establish the state as the exclusive actor in these situations.

         In response, Plaintiff cites Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir. 1990), in which the Court observed that it had found that “due process extends the right to be free from the infliction of unnecessary harm to children in state-regulated foster homes, ” and cited approvingly cases that “analogize[d] the state's role in placing children in foster homes to the mental institution and prison settings in which state liberty has been clearly established for ‘deliberate indifference' to the plight of individuals in detention.” Lintz v. Skipski, 25 F.3d 304, 306 (6th Cir. 1994). This supports characterization of WHS as a state actor under the functional test, since the Sixth Circuit has found that context matters, and that care provided in a custodial setting is an activity traditionally reserved to the state, which has absolute dominion over a detainee's treatment. See, e.g., West v. Atkins, 487 U.S. 42 (1988); Carl v. Muskegon Cty., 763 F.3d at 597.

         Defendants counter, arguing that Meador relied on a Kentucky statute, which is distinct in material part from the Michigan statute at issue here. Thus, the Kentucky statute provides in pertinent part that “the cabinet shall arrange for a program of care, treatment and rehabilitation of the children committed to it, " and "the cabinet shall be responsible for the operation, management and development of the existing state facilities for the custodial care and rehabilitation of children . . . .” Ky. Rev. Stat. Ann. § 605.100 (emphasis added). Defendants thus argue that this decision is not applicable to the matter at hand because Michigan law, as described above, does not mandate that the state handle custodial care of children exclusively.

         It is instructive that Lintz, 25 F.3d at 305, which cited Meador approvingly for the proposition that “due process extends the right to be free from the inflicting of unnecessary harm to children in state-regulated foster homes, ” was a case that arose in Michigan, and concerned Michigan actors. Significantly, the Court did not distinguish the case based upon the Michigan law concerning custodial child-care, but rather directly applied the Meador precedent to conclude that the social workers were on notice. Id.

         Plaintiff points out that the Michigan Social Welfare Act, as amended in 1973, provides that the state of Michigan shall provide services to children that include, in relevant part, . . .

halfway houses, youth camps, diagnostic centers, state operated regional detention facilities, regional short-term treatment centers, group homes, and other facilities and programs established with the approval of the legislature to provide an effective program of out-of-home care for delinquent or neglected children committed to or placed in the care and custody of the department by probate courts, courts of general criminal jurisdiction, or, where provided by law, the voluntary action of parents or guardians.

Mich. Comp. Laws Ann. § 400.115(a). It also allows the state to include the use of private agencies such as WHS to protect children, by “. . . [e]nter[ing] into contracts necessary for the performance of its powers and duties and the execution of its policies.” M.C.L. § 400.115a(1)-(f).

         It is clear that the state law at issue is not materially different from the Kentucky law presented in Meador, and that the state should be considered an exclusive actor in caring for children, and, in that capacity, can contract with private organizations. Thus, Defendant can be considered a state actor, under the law established by this precedent, concerning the due process protections existing for harm occurring in foster homes.

         Defendants argue that they cannot possibly be considered a state actor because, if they are, then individuals who take in children placed by DHS, such as relatives, could be considered state actors as well. This is not a persuasive since the question has already been decided. In the context of children placed in foster-care homes, liability does not extend to the foster parents, but rather to the state actors, i.e. social workers. These individuals have placed the children in those homes, and have responsibility to ensure the safety of the children they place. See, e.g., Lintz, 25 F.3d at 305 (“due process extends the right to be free from the infliction of unnecessary harm to children in state-regulated foster homes”); Brown v. Hatch, 984 F.Supp.2d 700, 709 (E.D. Mich. 2013) (finding that foster parents are not state actors).

         In this case, Aaron was placed into Defendants' care by a Court order. As observed by Plaintiffs in their supplemental brief, the Court order placed Aaron into protective custody and “placed [him]/returned [him] to the [DHS] for care and supervision and/or placed at [Macomb County Juvenile Justice center] pending his preliminary hearing.” [85-4 at 3]. The DHS elected to place Aaron in the custody of Defendant WHS to ensure his care and safety, it was expected that the standard of care there would be equivalent to state requirements, since the state of Michigan has the responsibility to ensure appropriate care of children under the extensive scheme laid out under the Child Care Organizations Act and the Social Welfare Act. Therefore, WHS is a state actor under the terms of the public function test.

         b. Applicable Standard for Plaintiff's Constitutional Claims

         In the supplemental brief, Plaintiff argues that, in cases of involuntary civil commitment such as applied to Aaron, the Fourteenth Amendment due process protections are determined by whether Defendants' actions were based on accepted professional judgment, rather than a deliberate indifference standard applicable to a convicted criminal. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 848 (6th Cir. 2002).

         Youngberg, 457 U.S. at 309, involved a mentally disabled man, Nicholas Romeo, whose mother requested the Court involuntarily commit, because she was unable to control his violence or to otherwise care for him. The Court ordered Romeo committed to the Pennhurst State School and Hospital pursuant to the State's involuntary commitment provision. Id. at 310. Romeo suffered injuries at the hands of other residents, and his mother filed a suit against the facility, bringing §1983 claims under the Eighth and Fourteenth Amendments. Id. The Supreme Court concluded that the Fourteenth Amendment standard for involuntarily committed individuals was whether professional judgment in fact had been exercised.

         Terrance, 286 F.3d at 848, was a case, brought by the father of an involuntarily committed mental patient, who had died in a state psychiatric hospital. The Sixth Circuit ruled the decedent enjoyed Constitutional protections under the Eighth Amendment against cruel and unusual punishment, as well as Fourteenth Amendment due process clause. Id. Specifically, the Court held that under the Fourteenth Amendment, individuals subject to involuntary civil commitment enjoyed heightened protection, and civil liability against professional staff results when a decision “is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. Because the Fourteenth Amendment duty to provide reasonable safety applies “when the State takes a person into its custody and holds him there against his will, ” Plaintiff argues that, since Aaron was placed by Court order into State custody at WHS without any personal input as to his placement, the heightened protections under the Fourteenth Amendment found in Youngberg and Terrace apply.

         Here, Aaron was involuntarily removed from his home by a Court order when his adoptive parent indicated that she was unable to care for him due to violence and threats. Aaron had no control over the Court process or its placement decision. Therefore, the heightened protection under the Fourteenth Amendment applies to this case, rather than a deliberate indifference standard.

         c. Claims against Individual Defendants

         i. Judith Fischer Wollack

         1. Individual Capacity

         Defendant Fisher-Wollack is the CEO and designated licensee for the WHS. To be liable in an individual capacity for §1983 claims, it must be shown that Fisher-Wollack “either encouraged the specific incident of misconduct or in some other way directly participated in it.” Heyerman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (citing Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir. 1982)). “At a minimum, a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Id.

         Plaintiff alleges that there is a §1983 claim against Defendant Fischer-Wollack for her approval and authorization of a constitutionally deficient written line-of-sight policy, the lack of a site-specific suicide prevention policy, and a policy that allowed children to keep their belts unless they were determined to be actively suicidal. [85 at 26-27]. However, there are no citations to deposition testimony showing any personal involvement in the creation or authorizations of these policies, therefore this supports a Monell claim rather than individual liability.

         Indeed, in the provided deposition excerpts, while Defendant Fischer-Wollack states she has “the responsibility of financial, policy, [and] administration” for WHS, there is no evidence that she was personally involved in reviewing the policies and/or had knowledge or approval of these policies. In fact, when directly questioned about the policies at Aaron's facility, she stated that she did not have personal knowledge about the policies and procedures and specific environments of the various facilities. [74-109]. Therefore, summary judgment is granted as to any §1983 claim against individual Defendant Fischer-Wollack.

         2. Official Capacity Liability

         Plaintiff seeks to bring a §1983 claim against Fischer-Wollack, in her official capacity, for failure to train. Courts treat an official-capacity suit seeking monetary damages as “an action against an entity of which an officer is an agent, ” because a Plaintiff who seeks “to recover on a damage judgment in an official-capacity suit must look to the government entity itself.” Kentucky v. Graham, 473 U.S. 159, 166 (1985).

         In this case, Plaintiff brings claims against Fischer-Wollack in her official capacity as CEO of WHS, alleging that her official involvement allowing inadequate training, renders her liable for the alleged constitutional violations perpetuated by the other Defendants in their individual capacities. Because this suit is brought against the individual Defendant in an official capacity, and Plaintiff is seeking monetary damages, the Court must treat the claim against individual Defendant Fischer-Wollack as a claim against the municipal entity of WHS. Indeed, the allegations against Fischer-Wollack in her official capacity mirror those brought against WHS, which are examined in section d of this Order, infra pp. 23-29. Therefore, summary judgment is granted on this claim, and all §1983 claims against Defendant Fischer-Wollack are dismissed.

         ii. Kristi Einem-Smith

         1. Individual Capacity

         Defendant Einem-Smith is the Chief Administrator of the WDATC. Plaintiff alleges that her conduct substantially departed below the accepted professional judgment because she, inter alia, “permitted and encouraged a policy that did not require Aaron, a new admittee, to be placed on constant observation until he met with a Qualified Mental Health Professional, ” maintained a custom and practice of allowing untrained and undereducated Youth Care Workers to screen admittees for suicidal risk ...


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