Kathy Jo Taylor, a Minor, by and Through David S. Walker, Jr., Attorney at Law, as Guardian Ad Litem v. James G. Ledbetter, ph.d.
791 F.2d 881
11th Cir.
1986
Check Treatment

*1 HATCHETT, Circuit Before RONEY and *, Judges, Senior Circuit and NICHOLS Judge.

RONEY, Judge: Circuit 42 U.S.C.A. In this action under 1980, minor child bom plaintiff, received while she parents were caused of foster indiffer- ‍​‌‌‌‌‌‌‌​​‌‌​​​​‌​​‌‌​​‌‌‌​​‌​​​​​‌​​​‌‌‌​​‌‌‌‌‌‍negligence and deliberate * Nichols, Jr., designation. Philip Senior U.S. Cir- Honorable Circuit, sitting by Judge cuit for the Federal *2 882 defendants, employees cоncerning plaintiff are of medical data or to

ence of who parents. to vide such data the foster Georgia of Re Department Human the (“DHR”). alleges de Plaintiff sources question in this federal case investigate to the foster fendants failed here concerns whether defеndants’ con parents placing home and foster before duct, alleged, deprived plaintiff as custody, properly in plaintiff their failed to right by privilege or secured the Constitu home, supervise procure the and failed to or Taylor, tion federal law. Parratt v. 451 provide conсern complete or medical data 535, 527, 1908, 1912, U.S. 101 S.Ct. 68 of ing plaintiff. Essentially, on basis the (1981). ‍​‌‌‌‌‌‌‌​​‌‌​​​​‌​​‌‌​​‌‌‌​​‌​​​​​‌​​​‌‌‌​​‌‌‌‌‌‍420 L.Ed.2d Plaintiff contends that forth, reasoning the careful therein set statutory scheme, Georgia the foster care dismissing affirm the district court’s orders Act, in the contained Children and Youth (1) holding: the complaint, the -5-21, to legit O.C.G.A. 49-5-1 creаtes §§ statutory foster care not cre scheme does imate of claims entitlement to certain bene “legitimate ate a claim entitlement” en of plaintiff, fits the and that defendants in forceable federal courts under Board process rights by violated of Roth, 564, Regents v. 408 U.S. 92 S.Ct. failing the stаtutory to follow directives. 2701, (1972); (2) 33 L.Ed.2d 548 and the Regents Plaintiff relies Board v. allegations are insufficient to demonstrate Roth, 564, 2701, 408 U.S. 92 S.Ct. 33 plaintiffs “deliberate indifference” (1972), progeny. L.Ed.2d 548 and its Roth Gamble, rights actionable under Estelle v. hold, however, did not that all state stat- 285, 97, 429 50 251 U.S. 97 S.Ct. L.Ed.2d rights utes create enforceable in fedеral (1976) City Depart and Doe New York v. statutory court. The sections which Services, (2d 649 F.2d 134 ment Social plaintiff goals referred pur- state the and Cir.1981), denied, 864, ‍​‌‌‌‌‌‌‌​​‌‌​​​​‌​​‌‌​​‌‌‌​​‌​​​​​‌​​​‌‌‌​​‌‌‌‌‌‍464 104 cert. U.S. poses system provide of the foster care and 195, (1983). 78 L.Ed.2d 171 guidelines to direct in state officials the 1982, Although In their plaintiff the minor exercise оf functions. un- was taken doubtedly for the the parents from the best interests of chil- her natural affected, placed dren none the sections cited County and with the De- Gwinnett specific rights particu- or create benefits in partment Family and Services Children’s provide only lar When (“DFACS”) children. statutes by order of the Gwinnett Coun- procedural guidelines defendants, fol- ty Thereafter, Juvenile Court. decision, arriving they in a lowed at do not employees as officials and of DFACS and by protected create a substantive interest DHR, responsible were cus- Nelson, the Constitution. Jean 727 F.2d v. tody, supervision, and care. Later that 957, (11th Cir.1984) (en banc). 981 year, plaintiff placed in was a foster home. personal injuries Plaintiff suffered severe claim, In addition to the Roth-based hands of her foster mother in Octo- plaintiff complaint asserts that her a stated 1982. As a result ber of these principles сause of action under the an of adverse reaction or overdose to unneces- Gamble, 97, nounced in Estelle medication, sary plaintiff lapsed a into 285, (1976) 97 S.Ct. L.Ed.2d 251 and Doe coma, in which she remains. City Department v. New York Social Services, (2d Cir.1981), 649 F.2d 134 cert. Plaintiff defendants failed denied, 195, U.S. 104 S.Ct. thоrough complete investiga- make a and (1983). L.Ed.2d 171 home; this foster that defendants knew or should Estelle, have known that foster Supreme Court held that parents legally morally and unfit prison per- deliberate indifference state care, plaintiff’s custody, be entrusted with prisoner’s a sonnel to serious illness or supervision; defendants failed injury would constitute cruel and unusual supervision inspection proper contravening maintain punishment ‍​‌‌‌‌‌‌‌​​‌‌​​​​‌​​‌‌​​‌‌‌​​‌​​​​​‌​​​‌‌‌​​‌‌‌‌‌‍Eighth home; giving and that defendants Amendment and rise to a section procure Doe, complete physical failed to action. Second Circuit custody, deprivation rights had under the a child held that on an of action based 1983 cause Constitution. section Fourteenth analysis under the -type Estelle Although at 145. the federal 649 F.2d parallel drew Amendment. relatively and the pleading rules are liberal foster care and of a child in situation allegations in the com- must construe court held prisoner that of *3 plaintiff plaint favorably pleader, to the a under may officials be liable that allegations forth sufficient to must still set the officials’ “deliberate 1983 when section affirmatively is entitled to show that she leading indifference” is a substantial factor Graddick, 739 F.2d relief. Fullman v. constitutionally protected lib- denial to (11th Cir.1984). plain- than Other F.2d at 141. property interest. 649 erty or wholly allegations “de- conclusory tiff’s cautioned, however, that al- court The indifference,” plaintiff pled has no liberate in- could be though deliberate indifferеnce satisfy would the standard facts which act, the inference from a failure to ferred and raise defendants’ acts and omissions to in the readily as not be drawn as should level of “constitutional torts” action- the authority because line of prison context the under section 1983. able and fos- foster care officials between parents injured allegedly The foster who direct as is not as close and parents ter plaintiff are not in this suit. the defendants sub- prison officials and their against not any Plaintiff has asserted claim 141-42. Id. at ordinates. here, attempted nor has them she to hold to Although might inclined be vicariously for the foster the State liable standard of care the Second Circuit’s follow parents’ actions. claims here are all custody in the in connection with children made in connection with the defendants’ State, us to necessary it is not of the allegеdly and own acts conduct which this extend whether Circuit should decide the prevent to actions of the foster failed of the outside the rationale Estelle parents. foster Eighth Amendment context into the arena, plaintiff’s allegations care arguments remaining Plaintiff’s re to show the indifferenсe” fail “deliberate misunderstanding of the role of flect a requires. claims that which Doe Plaintiff argue courts. Plaintiff seems federal investigated “should and defendants have” deprived plaintiff of the defendants home, if defend supervised the and cus process by removing her from the have properly had done so this would ants failing to family her natural and tody of prevented plaintiff’s injury. The deliberate requests relatives’ for custo consider her however, re indifference standard of juvenile conclusion of the court dy. At the allegation least some of knowl quires at plaintiff’s natural hearing, members of and edge part on the of the defendants approached Jo Ann Hoo family defendant knowledge: failure to act based on that advised her that Mr. and Mrs. ver and course, her hus Dyer, plaintiff’s such cannot exist natural aunt and Of indifference band, plaintiff triggering custody an аf to have knowledge some desired absent Al placed sister in them. duty plaintiff’s on be and firmative act morally half, knowledge specific though Dyers legally the but actual knowledge custody, plaintiff not the fit to entrusted with only type harm is be may explore that Hoover failed to the suffice. Dеfendants that will placement Dyers the or they, possibility under if or the with held liable § supervisory request superiors, and agency, top report to her case of its to ex Berry indiffer defendant W.K. failed personnel, exhibited deliberate risk, plaintiff possibility placing injury, plore a known a known or еnce to fam per natural specific duty, and their failure to with member inju allegedly failure led to the duty ily. or act to ameliorate This form plaintiff compensation. injury proximate or was cause of ries for which seeks risk stretching punishment. the notion of causa- action cruel and unusual Besides limits, argument case process to its outer this mis- This does not involve criminal punishment. forum for or criminal proper alleged conceives the Count III hearing process a due claim claims. At the which based on the Social Act, Security plaintiffs parents, seq., from natural U.S.C.A. et was taken § corresponding parents family regulations. other had members We affirm the present opportunity their denial relief on both of these on full notice Counts arguments. They ap- could have taken an basis of district court’s rationale. Appeals. peal Court of O.C. to the AFFIRMED. Moreоver, 15-11-26, in- G.A. 15-11-31. §§ change, can move to modi- persons terested HATCHETT, Judge, dissenting: Circuit fy, order. O.C.G.A. vacate a majority gives Tay- weight little 15-ll-42(b), (c). The record does not -type argument, disposing lor’s Eotk itof *4 guardian reflect or rela- that in paragraph. majority one The states that procedures. employed tives of these “although undoubtedly for the best inter- circumstances, plaintiff In these cannot affected, est of the children none of the come court under section 1983 into federal specific rights sections cited creates ben- procedures and claim the state violated her particular efits in children. When statutes process rights. due provide only procedural guide- great Federal courts should exercise cau- decision, arriving lines be followed in at a becoming tion in in the decisions involved do they not create a substantive interest charged of state and local officials with the protected by the Constitution. Jean v. Nel- custody and of welfare children. Plain- son, 957, (11th Cir.1984) (en 727 F.2d 981 serious, tiff’s are and the defend- banc).” may ants in this case have violated state disagree First, I for several reasons. regulations statutes or violated com- Georgia question provide statutes in more plaintiff. mon law duties owed Plain- just “procedural guidelines than to be fol- redress, appropriate tiff’s though, is arriving in lowed at decision.” The Geor- law, through plaintiff’s allegations as gia placement foster care and scheme is a are insufficient demonstrate a constitu- comprehensive one. The Children and cognizable tional violation under section “legal Act provides custody Youth em- 1983. ‘(B) right duty bodies: and the suggested Plaintiff has that defendants (C) responsibility tect ... and [children] may law, be immune from suit under state food, shelter, provide сlothing, edu- ” although reply defendants they cation, ordinary medical care.’ O.C. engaged in ministerial for which functions 49-5-3(12). regulations gov- G.A. § they are not immune. This Court has held erning in foster care services are found immunity shielding the state and its O.C.R.R.G. 290-2-12-08. 3 Subsection officials from liability discretionary provides that section that the selection deny procedural functions does not in itself upon of a foster home should be based an process and render a assessment of the child’s total needs and inadequate law remedies particular program under Parratt v. how well a meets ‍​‌‌‌‌‌‌‌​​‌‌​​​​‌​​‌‌​​‌‌‌​​‌​​​​​‌​​​‌‌‌​​‌‌‌‌‌‍the 1908, Taylor, 527, 451 U.S. 68 provides S.Ct. child’s needs. Section 16 that su- (1981). pervision L.Ed.2d 420 Rittenhouse De in children foster homes is to (11th 1451, 1457-59 County, “through Kalb 764 F.2d reg- be maintained visits made Cir.1985). Absent allegations other in ular frequently intervals as as neces- remedies, adequacy of sary the state the best interest the child.” argument by is foreclosed Eittenkouse. Thus, scheme mandates that guidelines claims dealt with above were made officials follow and take affirma- complaint. I being Count Count II tive actions ensure the well alleged Eighth promote Amendment cause of the welfare children children cannot had a section 1983 cause of аction say that these care. To Estelle-type analysis deprivation of on an state a claim based based under the officials fail to liberty majority interest when the fourteenth amendment. The is, estimation, in my follow the mandates states that peo- for a free wrong. “In a constitution аlthough might inclined to follow meaning no doubt that the ple, there can be the Second Circuit’s standard of care in indeed.” Board 'liberty’ must be broad connection with children in the Roth, 564, 572, Regents v. state, necessary of the it is not for us to 548, (1972). 2701, 2707, 33 L.Ed.2d decide whether this circuit should extend the rationale of Estellе outside of the Taylor can state a A determination that liberty eighth upon a denial of a inter amendment context into the foster claim based arena, plaintiff’s allegations case which the dis est is buttressed care County, trict court cites: Dollar v. Haralson fail to show ‘deliberate indifference’ Cir.1983). a., (11th which requires. 704 F.2d G Dollar, determining “In this court stated: Ledbetter, Taylor v. 791 F.2d at 883 deprivation a constitutional has oc whether (11th 16, 1986). Cir. June curred, examine whether the courts must Doe, however, the Second Circuit stat- any obligation to the defendant was under closely ed that deliberate indifference is question of the particular plaintiff. The gross negligence: associated to duty is an issue of existence of such conduct, type is a One and the other a Dollar, on at 1543. This court went law.” *5 Nevertheless, state of mind. the two are note that the existence of duties result аssociated, closely gross negli- such that relationships usually is clear in ing from gent strong presump- conduct creates a (citing relationship section 1983 cases deliberate indifference. [Citation hospi prisoners and wardens and between presumption While this is at omitted.] patients). tаls rebuttable, theoretically least the fact Dollar is important suggests it glar- there can be instances where important relationship the more ing negligence may not constitute delib- duties, likely and its attendant the more it erate indifference does not mean that a part is that an аct or omission on the of one equating negli- factfinder is barred from party potential deprive has the the other gence of a certain dimension with delib- right. constitutionally protected erate indifference. relationship charged state officials Doe, 649 F.2d at 143. carrying with out a fоster child care gram program and the children is appellees’ Whether conduct amounted to important involving one duties substantial is, course, gross negligence an issue for therefore, and, rights. substantial Therefore, jury. inappropriate it was the district court to dismiss this case for majоrity rejects Taylor’s also asser a claim failure state which relief complaint tion that her stated a cause of granted. could be principles under the announced in action Gamble, 97, 97 Estelle v. (1976), and Doe v. New 50 L.Ed.2d 251 Services, Dept. City York Social Estelle, (2d Cir.1981).

F.2d 134 the Su

preme held that deliberate indiffer Court prison personnel prison to a

ence injury consti

er’s serious illness or would punishment

tute cruel and unusual contra giv

vening the fourteenth amendment and

ing rise to a section 1983 action.

the Second Circuit held that a child