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K.M. v. Sarasota Family Young Men's Christian Association, Inc.

United States District Court, M.D. Florida, Tampa Division

May 1, 2017

K.M., a minor child, by and through her next friend and adoptive parent, MELISSA MEZEROWSKI, Plaintiff,


          JAMES D. WHITTEMORE United States District Judge

         BEFORE THE COURT is Defendant Sarasota Family Young Men's Christian Association, Inc.' s Motion to Dismiss Count II of Plaintiff s Fourth Amended Complaint, and Unopposed Motion to Extend the Time for Responding to Count I of Plaintiff s Fourth Amended Complaint (Dkt. 20), and Plaintiff K.M.'s opposition, (Dkt. 21). The motion to dismiss is GRANTED.

         I. BACKGROUND

         By way of background of this tragic case, Defendant Sarasota Family Young Men's Christian Association, Inc. ("YMCA") contracted with the Florida Department of Children and Families ("DCF") to provide foster care services in Pinellas County. (Fourth Amended Complaint, Dkt. 18 at ¶ 6). The YMCA placed K.M. in the home of Antonia and Brian Starmer. (Id. at ¶¶ 50-51, 55-56). Brian Starmer sexually assaulted K.M. while she resided in his home. (Id. at ¶ 79).

         K.M.'s Third Amended Complaint asserted, inter alia, a claim against the YMCA for violations of 42 U.S.C. § 1983 based on its deliberate indifference to her constitutional rights. (Third Amended Complaint, Dkt. 2, at ¶¶ 48-60).[1] The YMCA's motion to dismiss K.M.'s section 1983 claim was granted because she failed to sufficiently allege that it acted with deliberate indifference to a known risk of serious harm by placing her in the Starmer home. (Order, Dkt. 16 at pp. 8-10). The order dismissing K.M.'s section 1983 claim noted that "[t]he allegations about the YMCA's failure to provide adequate mental health and behavioral health services and failure to avoid overcrowding in the Starmer home are similar to the allegations of failure to follow policies which were held to be insufficient in [Ray v. Foltz, 370 F.3d 1079 (11th Cir. 2004)]." (Id. at p. 10). K.M. was granted leave to amend her section 1983 claim. (Id. at p. 11).

         K.M. filed a Fourth Amended Complaint. (Dkt. 18). K.M.'s allegations that "the YMCA knew or should have known that [the Starmers] provided false and misleading information regarding BRIAN STARMER's criminal history and background ... and that he [sic] could not be trusted as foster parents, " and that "the YMCA failed to adequately investigate and assess [the Starmers'] fitness and ability to provide foster care, " are substantially the same as those in her previous pleading. See (id. at at ¶¶ 50-51, 55-61). K.M. elaborates on allegations relating to her psychological condition, the YMCA's failure to direct a Comprehensive Behavioral Health Assessment despite multiple supervisory reviews of her case, and the YMCA's general failure to provide her "therapeutic services to address her multiple placement changes, her grief, and the deterioration of her mental health condition." (Id. at ¶¶ 20-21, 25-28, 30-35, 38, 43-45, 52-54, 62-69, 72-75).

         The majority of new allegations in the Fourth Amended Complaint, however, provide much greater detail about the YMCA's knowledge of systemic issues within its foster care system. (Id. At ¶¶ 12-19). These issues included overloaded case managers, a high rate of case manager turnover, inadequate supervisory review of case managers, failure to provide behavioral assessments to the majority of children, inadequate review and monitoring of foster parents, placement of children in overcrowded foster homes, failure to accommodate children's emotional and behavioral needs in foster home placements, failure to meet with children outside the presence of foster parents, and a general failure to ensure the well-being and continuous mental treatment of children in its care. (Id. at ¶¶ 19, 73, 81, 85). The DCF notified the YMCA of these issues when the YMCA took over the management of foster care in Pinellas County from Family Continuity Programs in June 2004, and again during quality assurance reviews in April and November 2005. (Id. at ¶¶ 14-18, 40, 71).

         II. STANDARD

         "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2008) (citing Bell Atl Corp. v. Twombfy, 550 U.S. 554, 555 (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. at 678 (citing Twombfy, 550 U.S. at 556). All factual allegations contained in the complaint must be accepted as true for the purposes of a motion to dismiss, but this tenet is "inapplicable to legal conclusions." Id. at 678. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has not shown the pleader is entitled to relief. Id.


         A deliberate indifference claim requires K.M. to allege that the YMCA "(1) was objectively aware of a risk of serious harm; (2) recklessly disregarded the risk of harm; and (3) this conduct was more than merely negligent." Ray v. Foltz, 370 F.3d 1079, 1083 (11th Cir. 2004) (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). "[D]eliberate indifference is not as easily inferred or shown from a failure to act" and a plaintiff is "faced with the difficult problem of showing actual knowledge of abuse or that agency personnel deliberately failed to learn what was occurring in the foster home." H.A.L. ex rel. Lewis v. Foltz, 551 F.3d 1227, 1232 (11th Cir. 2008) (per curiam) (internal quotation marks and citations omitted).

         A. The Allegations of the Fourth Amended Complaint Are Insufficient to Support a Claim for Violations of 42 U.S.C. § 1983

          K.M.'s original section 1983 claim was dismissed because "the allegations in the Third Amended Complaint closely track those held to be insufficient in Ray." (Order, Dkt. 16 at p. 10). The plaintiff in Ray alleged that the defendants acted with deliberate indifference to a substantial risk of serious harm by failing to conduct an investigation that would have revealed adverse information about the foster parents, ignoring readily discoverable warning signs about the foster parents (such as visible bruises on the plaintiff), placing too many children in the foster home, and failing to mandate training for the foster parents. Ray, 370 F.3d at 1084-85. On review, the Eleventh Circuit noted that the complaint did not allege that the defendants actually knew of any of the adverse information about the foster parents, and held that the plaintiffs allegations of a "failure to follow state policies and procedures ... do not support a claim for damages" under section 1983. Id. At 1084-85.[2]

         1. KM. 's Allegations of the YMCA 's General Knowledge of Systemic Failings are Inadequate ...

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