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Henry A. v. Willden

United States District Court, D. Nevada

May 7, 2014

HENRY A. et al., Plaintiffs,
MICHAEL WILLDEN et al., Defendants.


ROBERT C. JONES, District Judge.

This case arises out of the alleged failure of Nevada and Clark County officials to adequately protect foster children. Pending before the Court are County Defendants' Motion to Disqualify Counsel (ECF No. 313), Defendant Philomena Osemwengie's Motion for Summary Judgment (ECF No. 288), and Third-Party Defendant National Deaf Academy, LLC's ("NDA") Motion to Dismiss or Stay and to Transfer Venue (ECF No. 280). For the reasons given herein, the Court grants the motion to dismiss for lack of personal jurisdiction and will hear argument on the motions for summary judgment and to disqualify counsel at the hearing currently scheduled for May 15, 2014.


Plaintiffs are eleven children who claim to have been harmed due to the failure of state and county child welfare authorities to adhere to certain mandatory laws and regulations and to ensure their safety as a general matter. Their injuries include abuse and neglect by foster parents and institutional guardians, as well as a lack of medical care due to authorities' refusal to authorize or monitor it.

Plaintiff Henry A. is a fourteen-year-old boy who was placed into foster care by the Clark County Department of Family Services ("CCDFS") and the Nevada Division of Children and Family Services ("NDCFS") from 2005 until February 2013, when he was returned to his mother's care. (Second Am. Compl. ¶ 20, July 12, 2013, ECF No. 176). He suffers from severe mental health problems but his treatment has been sporadic because of his placement with over forty foster families and six or seven caseworkers during his first seven years under CCDFS. ( See id. ). He has changed mental health providers over ten times. ( Id. ). He has been prescribed multiple psychotropic drugs and once overdosed because of a combination of these drugs, spending several weeks in the intensive care unit. ( Id. ).

Plaintiffs Charles B. and Charlotte B. are siblings, ages twelve and four, respectively. ( Id. ¶ 21). They were placed into seventeen different placements for foster care by CCDFS from March 2009 to the Fall of 2010, when they were returned to their mother's care. ( Id. ). CCDFS placed Charles and Charlotte with foster parents in March 2009 despite a court order requiring placement with their grandmother. ( Id. ). One foster mother and her teenage son abused them, including locking Charlotte in a closet with no food, water, or sanitation for long periods of time and beating Charles when he tried to help his sister. ( Id. ). The police eventually removed them and took them to the hospital for treatment. ( Id. ). Charlotte was suffering from dehydration, cuts, bruises, and severe (bleeding) diaper rash. ( Id. ). The foster mother has been charged with child abuse, and her son has pled guilty to assault. ( Id. ).

Plaintiff Linda E. is a twenty-year-old woman who was placed into more than forty different placements for foster care by CCDFS and NDCFS for over fifteen years. ( Id. ¶ 22). She suffered abuse and neglect in many of these placements, including being placed into the home of an aunt where she had previously suffered unspecified abuse. ( Id. ). Linda reported the abuse to her caseworker. ( Id. ). She did not receive proper medical and psychiatric care. ( Id. ).

Plaintiffs Leo and Victor C. are twenty-year-old twins who were placed into foster care by CCDFS in November 2006. ( Id. ¶ 23). Leo left the system when he became an adult in December 2010. ( Id. ). Victor, however, chose to remain in the system after age eighteen and now receives benefits under Assembly Bill 350. ( Id. ). Defendants refused to place Leo and Victor in the care of their grandmother, who was ready, willing, and able to provide a safe and appropriate environment for them, instead moving them between their father and their mother and her boyfriend, where they suffered unspecified abuse. ( Id. ). Eventually, either their mother or father abandoned them at Child Haven. ( See id. ). Defendants failed to provide psychiatric care despite Victor's suicidal threats. ( Id. ). Plaintiffs do not allege any untreated psychiatric conditions of Leo.

Plaintiffs Maizy and Jonathan D. are siblings. ( Id. ¶ 24). Maizy and Jonathan are ages eight and seven, respectively, and were placed into foster care by CCDFS from late 2005 to August 2009. ( Id. ). As infants, Defendants placed them with Child Haven, where they did not receive basic nutrition and medical care. ( Id. ). They were kept on a "formula diet" despite outgrowing it. ( Id. ). Maizy and Jonathan were left in their cribs with limited interaction with other children and adults, resulting in a diagnosis (presumably by a doctor, though not explicitly so alleged) with "failure to thrive, " based upon being underweight due to environmental factors. ( See id. ). S.W. has adopted both children. ( Id. ). Defendants have failed to provide authorization for at least three medical procedures for the children despite S.W.'s efforts. ( Id. ¶ 25). The related conditions became so severe that doctors proceeded with the procedures on an emergency basis. ( Id. ). As a result, Jonathan has a misshapen colon that must be surgically corrected due to Defendants' failure to authorize removal of calcified stool from his colon. ( Id. ).

Plaintiff Olivia G. is a twelve-year-old girl who was placed into foster care by CCDFS from January 2006 to 2011. ( Id. ¶ 26). Defendants failed to remove her from the custody of her parents despite reports that she was being abused. ( Id. ). She was initially placed with various relatives without any effort to determine if they were able to provide appropriate care. ( Id. ). She was abused in some of those homes, including being beaten with a belt. ( Id. ). She has severely impaired neuropsychological functioning and several cognitive and behavioral impairments as a result. ( Id. ). She was also prescribed multiple psychotropic drugs without adequate care and monitoring, including being placed with E.F. without providing E.F. the information and authorizations required to obtain Olivia's prescriptions. ( Id. ).

Plaintiff Christine F. is a six-year-old girl who was placed into foster care by CCDFS from May 2008 to June 2010, when E.F. adopted her. ( Id . ¶ 27). Christine is severely developmentally delayed and suffers form permanent disabilities and a seizure disorder due to having fallen from a second-story window at the home of her mother, grandmother, and two uncles. ( See id. ). Despite marks around her ankles indicating she had been dangled from the window or been swung into a wall, CCDFS did not investigate and take custody of Christine until her parents refused to authorize medical treatment necessary to treat her injuries. ( Id. ). Defendants later failed to provide E.F. with Christine's seizure medications and offered no medical support or training on how to care for her special needs. ( Id. ). Defendants have also permitted her grandmother to visit her despite knowing of past allegations of abuse against her and that she was watching over Christine when she fell from the window. ( Id. ).[1]

Plaintiff Mason I. is a fifteen-year-old boy who has been placed into foster care by CCDFS since July 2003. ( Id. ¶ 28). Mason has been deaf since birth and entered foster care at age six after suffering physical, sexual, and emotional abuse by his parents and grandparents. ( Id. ). He suffers from post-traumatic stress disorder, reactive attachment disorder, and other serious mental health problems. ( Id. ). During his first six years in foster care, he was placed into twenty-five different homes, including a treatment center in Florida, the National Deaf Academy ("NDA"). ( Id. ). The NDA staff rendered Mason's cochlear implant permanently inoperative against his wishes. ( Id. ). Defendants ignored Mason's complaints of sexual abuse by NDA staff. ( Id. ). Defendants have failed to place Mason into homes where his special needs will be met, i.e., with a qualified American Sign Language interpreter and have failed to provide speech therapy. ( Id. ). Defendants have failed to disclose Mason's medical, mental, social, and educational backgrounds to his foster parents and have failed to properly supervise the administration of Mason's psychotropic drugs. ( Id. ).

The current State Defendants are Michael Willden, Director of the Nevada Department of Health and Human Services ("NDHHS"), sued in his official capacity, ( id. ¶ 30); and Amber Howell, the Administrator of NDCFS, sued in her official capacity, ( id. ¶ 31). The current County Defendants are Clark County, Nevada, ( id. ¶ 33); Virginia Valentine, the Clark County Manager from August 2006 to January 2011, sued in her individual capacity, ( id. ¶ 34); Don Burnette, the current Clark County Manager, sued in his official capacity, ( id. ¶ 35); Tom Morton, the Director of CCDFS from July 2006 to August 2011, sued in his individual capacity, ( id. ¶ 36); and Lisa Ruiz-Lee, the current Director of CCDFS, sued in her official capacity, ( id. ¶ 37). The current "Doe Defendants"[2] are ten current or former caseworkers, licensing investigators, and other employees of CCDFS: Stacey Scott, Thor Martinez, Debbie Mallwitz, Sonya Weathers, Darrel Ford, Yvette Chevalier, Teresa Cragon, Philomena Osemwengie, Sylvia Clark, and Patricia Martin. ( Id. ¶¶ 38-54).

Plaintiffs filed the seventy-five-page Complaint in this Court on April 13, 2010, listing the following twelve nominal claims: (1)-(2), (11) substantive due process violations pursuant to 42 U.S.C. § 1983; (3), (8) violations of the Adoption Assistance and Child Welfare Act ("AACWA") pursuant to § 1983; (4), (12) substantive due process violations under the Nevada Constitution; (5) negligence; (6) declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 that Nevada Revised Statute ("NRS") section 424.090 violates the Supremacy Clause; (7) declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 that NRS section 432.0177 violates the Supremacy Clause; and (9)-(10) violations of the Child Abuse Prevention and Treatment Act ("CAPTA") pursuant to § 1983. The case was assigned to the Hon. Howard D. McKibben but was reassigned to this Court after Judge McKibben recused himself.

Defendants moved to dismiss. Plaintiffs voluntarily dismissed the sixth and seventh nominal claims (the Supremacy Clause claims). In a thirty-one-page order, the Court granted the motions to dismiss. ( See Order, Oct. 26, 2010, ECF No. 85). The Court ruled: (1) Defendants in their official capacities were not entitled to Eleventh Amendment protection from claims for prospective injunctive relief; (2) Defendants were not entitled to absolute immunity; (3) Defendants were entitled to qualified immunity from the "duty to protect" substantive due process claim; (4) Defendants were entitled to qualified immunity from the "state created danger" substantive due process claim, and that claim was also dismissed for failure to state a claim; (5) sections 671(a)(10), (16) and 675(1), (5)(A)(ii), (5)(D. the AACWA created no private right of action, and Defendants would be entitled to qualified immunity against these claims in any case; (6) Defendants were entitled to qualified immunity from the "guardian ad litem" CAPTA claim, and the Court would abstain from ruling on that claim under Younger v. Harris, 401 U.S. 37 (1971) due to pending state proceedings; (7) there was no private right of action for a "plan submission" claim under CAPTA; and (8) the Court would decline to rule on the negligence claim under 28 U.S.C. § 1367(c).

Plaintiffs appealed. In a thirty-four-page opinion, the Court of Appeals affirmed in part, reversed in part, and remanded. The Court affirmed the dismissal of all claims except the first, second, third, eighth, and eleventh, which claims it remanded for further proceedings, and ruled that Plaintiffs should be permitted to amend the substantive due process claims after remand and should be able to seek leave to amend the tenth claim. The Court of Appeals ruled that qualified immunity applied only to Defendants in their individual capacities and only as to monetary damages. It reversed the qualified immunity rulings as to injunctive relief and as to monetary damages against Clark County as to the first and eleventh causes of action and remanded for further analysis of qualified immunity as to the claims for monetary damages against Defendants in their individual capacities. As to the second cause of action, the Court of Appeals ruled that the "state created danger" doctrine applied not only when the state actually created the danger, but also when the state knowingly exposed a person to an existing danger from a third person. The Court of Appeals therefore reversed dismissal of the second claim and this Court's grant of qualified immunity. The Court of Appeals ruled that Plaintiffs had not sufficiently pled supervisory responsibility claims against State Defendants but should be given leave to amend the substantive due process claims to do so. The Court of Appeals ruled that the "case plan" provisions of AACWA under 42 U.S.C. §§ 671(a)(16) and 675(1) and the "records provision" provisions of AACWA under §§ 671(a)(16), 675(1), and 675(5)(d) were privately enforceable. The Court of Appeals affirmed that the "guardian ad litem" and "early intervention" provisions of CAPTA, as well as the Individuals with Disabilities Education Act provision Plaintiffs invoked, were not privately enforceable.

Plaintiffs filed the Amended Complaint ("AC"), listing six nominal claims: (1)-(2) substantive due process violations pursuant to § 1983; (3), (6) AACWA violations pursuant to § 1983; (4) substantive due process violations under the Nevada Constitution; and (5) negligence. State Defendants and County Defendants separately moved to dismiss the AC. The Court granted the motions in part and denied them in part:

(1) The substantive due process claims, both federal and state, are dismissed as against Defendants Willden and Comeaux insofar as they seek damages against them in their individual capacities. Under the law of the case, however, no Defendants have qualified immunity at the dismissal stage. The claims for injunctive relief are moot except as to failure to provide health information to foster parents (Henry A.), failure to investigate reports of abuse (Mason I.), and failure to inspect out-of-state facilities (Mason I.).

(2) The Eleventh Amendment protects State Defendants in their official capacities from money damages as to any claim.

(3) The AACWA "records provision" claim is dismissed as to money damages against Willden and Comeaux in their individual capacities, and the claim for injunctive relief is moot, except as to Plaintiffs Henry A. and Mason I. The AACWA "case plan" claim is dismissed as to all Defendants, with leave to amend.

(4) The negligence claim is dismissed under the discretionary immunity statute, except as to Christine F.'s and Mason I.'s claims invoking a negligence per se theory under NRS section 432B.260 and Olivia G.'s, Christine F.'s, and Mason I.'s claims invoking a negligence per se theory under NRS section 424.038. Plaintiffs may amend their negligence claim to plead negligence per se theories based upon violations of state statutes, but not based upon violations of federal law or state administrative regulations.

(Order 28:7-24, Feb. 27, 2013, ECF No. 141).

Plaintiffs moved for leave to file the Second Amended Complaint ("SAC"), which motion the Court granted in part. County Defendants asked the Court to reconsider its previous order in part. The Court granted that motion in part, granting qualified immunity to individual Defendants as to monetary damages under the AACWA, but not as to the substantive due process claims. The Court dismissed the "no-case-plan" claim as against County Defendants, with leave to amend. The Court also clarified that:

The negligence claim remains viable against County Defendants insofar as it is predicated upon a negligence per se theory for violations of NRS sections 432B.260 (Christine F. and Mason I.) and 424.038 (Olivia G., Christine F., and Mason I.), and Plaintiffs have leave to amend as to NRS sections 432.0177 and 127.330, and as to other Plaintiffs' claims. Plaintiffs filed the SAC. The 101-page SAC lists five causes of action: (1) Substantive

Due Process (Duty to Protect) violations pursuant to 42 U.S.C. § 1983 (against all Defendants except Ford, Chevalier, and Osemwengie); (2) Substantive Due Process (State Created Danger) violations pursuant to § 1983 (against all Defendants except Osemwengie); (3) AACWA violations (health care records) pursuant to § 1983 (against Clark County, Willden, Howell, Burnette, and Ruiz-Lee); (4) Negligence (against Clark County, Morton, Valentine, Clark, Chevalier, Ford, Mallwitz, Martin, Martinez, Osemwengie, Scott, and Weathers); and (5) AACWA violations (written case plan) pursuant to § 1983 (against Clark County, Willden, Howell, Burnette, and Ruiz-Lee). County Defendants moved to dismiss the fifth cause of action or for a more definite statement, and State Defendants joined the motion. The Court did not dismiss but required Plaintiffs to file a more definite statement via amendment or separate affidavit as to the nature of Mason I.'s case plan deficiencies under 45 C.F.R. § 1356.21(g).

In the present round of motions, Osemwengie has moved for defensive summary judgment as against the only claim against her (negligence), NDA has moved to dismiss Defendant Chevalier's First Amended Third Party Complaint (FA3PC), and County ...

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