United States District Court, M.D. Florida, Tampa Division
K.M., a minor child, by and through her next friend and adoptive parent, MELISSA MEZEROWSKI, Plaintiff,
SARASOTA FAMILY YOUNG MEN'S CHRISTIAN ASSOCIATION, INC., et al., Defendants.
D. WHITTEMORE United States District Judge
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.
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).
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). 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).
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).
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).
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.
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).
The Allegations of the Fourth Amended Complaint Are
Insufficient to Support a Claim for Violations of 42 U.S.C.
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
KM. 's Allegations of the YMCA 's General Knowledge
of Systemic Failings are Inadequate ...