Omar Ex Rel. Kelaher v. Babcock

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 04-15003 April 18, 2006

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 02-01063-CV-ORL-19-KRS

OMAR, by and through his

next friend James Kelaher,

Plaintiff-Appellant,

versus

GLORIA BABCOCK,

CINDY MORALES,

RAUL MORINGLANE, JR.,

BRUCE ROWLEY,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 18, 2006)

Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges.

PER CURIAM:

This is an appeal from the district court’s grant of summary judgment in

favor of appellees in a civil suit for damages under 42 U.S.C. §1983. Appellant,

Omar, was placed in the home of his adoptive mother Joann Davis by the Florida

Department of Children and Families (“DCF”). He suffered abuse at the hands of

his adoptive mother and now alleges that appellees, all at one time affiliated with

Omar’s case in DCF, were deliberately indifferent to the abuse that was occurring

in Omar’s home and therefore not entitled to qualified immunity. The controlling

issue in this case is whether appellees had actual knowledge of abuse, and whether

appellees acted with deliberate indifference toward the abusive situation in

appellant’s household. We agree with the district court’s ruling that the record

contains insufficient evidence of deliberate indifference on the part of appellees.1

We therefore affirm the summary judgment.

I. Background

Appellant, Demetrius Omar Jurineack (“Omar”), was taken into custody by

the foster care unit of the Florida Department of Children and Family Services

(“DCF”)2 on January 16, 1988, after he was abandoned by his birth mother. The

1

The district court entered a lengthy and detailed analysis of the evidence in this matter

under date of August 27, 2004.

2

At the time, it was called the Department of Health and Rehabilitative Services.

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events of which Omar complains in this case occurred between November of 1989

and June 23, 1993, when he lived with his foster care, and later adoptive mother,

Joann Davis. However, the events described below begin with Omar’s first

placement after he was taken into the custody of DCF.

Omar was first placed temporarily with Joyce Bailey (“Bailey”). Omar’s

brother, Jamaal, was also taken into custody in January 1988, and the two boys

were placed in separate shelter foster homes while the foster care counselor

attempted to locate relatives who could care for them. The record reflects that in

April of 1988, Bailey reported that Omar was jealous, fought with other children,

and was a “monster”. Omar was then placed in a shelter home with Vassie

Wiggins (“Wiggins”). Wiggins reported that Omar cried frequently, undressed

himself during the night, refused to sleep with his pajamas on, was afraid of

strangers, and had a withdrawn personality. She stated that his sleeping habits

could explain his continued congestion. In September of 1988, Wiggins expressed

concern about Omar’s continuous water consumption and suspected that he might

be diabetic.

In November of 1989, Omar was placed by DCF in the foster care of Joann

Davis (“Davis”). Appellee, Gloria Babcock (“Babcock”) was the DCF adoption

counselor assigned to Omar’s case. Babcock had met Davis previously during a

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training session which prepared foster parents to care for special needs children.

Prior to Omar’s placement, Davis had been a foster parent to a 13-year old girl

named Melissa. Melissa had been sexually abused, thus, Davis was required to

attend the special training in order to foster her. Melissa’s placement did not work

out and Melissa was ultimately removed from the home.

Babcock conducted a home study, completed on August 4, 1988. The study

reflected that Davis had experience taking care of younger children, but that at the

time she fostered Melissa, Davis did not wish to parent a younger child. In

addition, DCF obtained three reference letters for Davis, all of which were

positive. An investigation of her employment and her level of income indicated

that she had adequate life and medical insurance, her marital status was verified,

the home visit indicated that the living arrangements were appropriate, a

physician’s report indicated normal physical findings, and finally, abuse registry

and police checks indicated that she did not have a criminal history or a history of

abuse.

Davis later advised Babcock that she would like to adopt a younger child,

Vernetta. Although she expressed a commitment to Melissa, who remained in

counseling for sexual abuse suffered prior to her placement, Davis also felt that

parenting Melissa did not give her the nurturing experience she could get from

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parenting a younger child. Babcock conducted a second adoptive home study on

February 3, 1989. Babcock obtained three references for Davis since Melissa had

been placed with her, and each stated that Davis was an excellent parent who was

capable of parenting two children. Police and abuse registry checks again came

back negative. Babcock concluded that Davis had demonstrated that she was

capable of caring for both children.

Davis later contacted DCF in May of 1989 requesting that Melissa be

removed from her home. Apparently, Melissa had been acting out sexually, and

Davis felt Melissa had disrespected her church by taking a boyfriend into the back

of the church. Davis also reported that Melissa was talking back and would not

obey. The adoption counselor offered counseling, as no placement for Melissa was

immediately available. The record indicates that Melissa and Davis were trying to

work out their differences, however, Melissa ultimately left the Davis home.

In June of 1989, with Babcock acting as the adoption counselor, Omar was

placed in the Davis home along with his brother, Jamaal, and an unrelated girl

renamed Keisha. No home study for this placement has been identified in the

record, however, Babcock remained in regular contact with Davis and Omar over

the fourteen months she was assigned to his case. The record indicates that in sum,

Babcock conducted home visits with Davis and the children in March, April, May,

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August, September, October, and November of 1990, and in January of 1991. The

reports from her home studies indicate that in general, the children were doing

well, that they remained in counseling, and that the family members were

adjusting well to living with each other. Babcock noted that Davis had difficulty

finding after hours care for the children. She also noted that Omar had been

hospitalized for seizures and that he was referred to CMS on May 7, 1990.

On September 12, 1990, DCF officials Gloria Babcock, Cindy Morales

(“Morales”), and Bruce Rowley (“Rowley”) attended an Administrative Review

Conference. The conference report indicated that DCF intended to follow through

on Davis’ adoption of Omar. In December of 1990, a suspicion that Omar had

been abused was raised and documented in a Child Protection Team Report (“CPT

report”). Specifically, on December 21, 1990, Omar was admitted to Arnold

Palmer Hospital for treatment of pneumonia.3 Omar was examined by Dr.

Villadiego, who discovered a series of loop marks on Omar’s body. Dr. Villadiego

was concerned that these marks might have resulted from abuse, and he informed

DCF of his discovery. Later that same day, Child Protection Team Case

Coordinator Bubba Martin spoke with Davis, who said that she had not noticed the

3

Apparently this was Omar’s second visit to the hospital in December, as he was

admitted earlier that month following a seizure.

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marks on Omar until Dr. Villadiego pointed them out. At the time, Davis could not

explain where the marks came from. However, when Davis spoke with Dr. Fahy, a

Child Protection Team physician, on December 24, 1990, Davis reported that the

marks were caused when Omar’s 11-year old brother hit him with an electrical

cord.

DCF assigned appellee Raul Moringlane, Jr. (“Moringlane”) to investigate

Omar’s alleged abuse. Moringlane testified that he had no independent

recollection of the case, which was assigned to him some thirteen years before his

testimony. However, Moringlane conjectured that, because the DCF report

regarding this incident could not be found, the report must have considered the

allegations “unfounded” based upon Moringlane’s investigation. Moringlane

testified that “unfounded” reports were routinely destroyed at the time he would

have investigated Omar’s case.

In January of 1991, Babcock conducted another home visit to the Davis

home and found that Davis and the children were doing well. Appellee, Bruce

Rowley (“Rowley”), the Adoptions Supervisor, subsequently signed a Consent to

Adoption dated January 16 1991. Davis adopted Omar on February 28, 1991,

along with his biological brother and an unrelated girl.

The following evidence of abuse to Omar in the Davis home came to light

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after his adoption in February of 1991. On October 24, 1991, a report of child

abuse in the Davis home was made to the Florida Protective Services System. The

report was closed without classification. In December of 1992, Davis filed a

Missing Persons report when the three children left home. In January of 1993, two

reports of child abuse in the Davis home were made to the Orlando Police

Department, one on January 14, 1993 and again on January 29, 1993.

On February 11, 1993, the Children’s Home Society referred Omar to

Lakeside Alternatives, Inc. for a psychological evaluation. During the evaluation,

Davis said that Omar was obstinate, lied frequently, drank out of the toilet, and

stole food. He was having behavioral problems in school and had difficulty

controlling his anger. On one occasion, he had attempted to stab his eight-year-old

sister. The psychological evaluation stated that Omar was depressed and

emotionally deprived, and it recommended counseling for Omar and Davis. The

report contained no reference to child abuse.

On May 4, 1993, another report of child abuse in the Davis home was made

to the Florida Protective Services System. On June 23, 1993, Omar and his two

siblings were removed from the Davis home and placed in DCF shelter care.

While in shelter care, the children revealed that abuse was ongoing in the Davis

home since autumn of 1989. They said that Davis did not provide them with

8

sufficient food and often left them alone at night. Other incidents included forcing

the children to sleep in the garage, tying them to the bedpost, locking them in an

animal cage, forcing them to eat feces and vomit, and hitting them. None of the

parties dispute that there is evidence of abuse to Omar post-adoption.

Linda Radigan, a former DCF official, served as an expert witness for the

plaintiff. Radigan worked at the Florida DCF central office from 1992 to 2002.

Her affidavit alleges various deficiencies in the procedure followed in placing

Omar with Davis. Radigan states that DCF officials failed to follow departmental

policies.4 She states that DCF failed to conduct a home study of the Davis home

prior to Omar’s placement, and that the files did not contain sufficient

documentation to show how Omar and his brother were chosen for Davis. She

further opines that DCF failed to train, evaluate, and prepare Davis to care for the

three children. Radigan further testified that appellees missed signs of abuse, such

as Omar’s declining health, the loop marks found on his body, and the power

struggles between Omar and Davis documented by Davis’ psychologist, Dr.

Freeman. She states that this information would have been conveyed to appellees

Babcock and Rowley through routine DCF procedures. Finally, Radigan testifies

that the observance of loop marks could not be classified as unfounded because

4

Radigan does not cite to these policies or state when they were in effect.

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even if one child was injured by another child, the parent is still responsible for

failing to protect the injured child.

Omar filed suit in district court on September 12, 2002, alleging that

appellees Moringlane, Rowley, Morales, and Babcock violated 42 U.S.C. §1983

by depriving Omar of his constitutional right to be free from unwanted abuse in

his foster care and adoption placement with Davis. Appellees moved for summary

judgment. They also moved to strike Radigan’s affidavit, along with the

depositions of Barbara Holmes, a DCF foster care specialist, and Joan Adkins

Lindsey. The district court entered an order striking portions of the affidavit and

granting the motion for summary judgment. Omar now appeals.

II. Discussion

We review a district court’s grant of summary judgment de novo, viewing

evidence in the light most favorable to the opposing party. Kerr v. McDonald’s

Corp., 427 F.3d 947, 951 (11th Cir. 2005). The issue before us is whether

appellant has provided sufficient evidence of deliberate indifference to defeat

appellees’ assertion of qualified immunity.5 The appellees are not subject to this

5

Appellant also argues that the district court erred by striking portions of an affidavit

provided by plaintiff’s expert, Linda Radigan. This argument is entirely without merit as the

stricken statements contain legal conclusions as to whether appellants acted with deliberate

indifference.

Federal Rule of Evidence 702 allows for the presentation of expert testimony, however, if

the jury does not need the assistance of an expert to understand the case, or if the witness simply

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damage suit unless the record contains evidence that they (1) actually knew of a

risk of serious harm; (2) recklessly disregarded that risk of harm; and (3) their

conduct was more than merely negligent. See Ray v. Foltz, 370 F.3d 1079, 1083

(11th Cir. 2004); see also Taylor v. Ledbetter, 818 F.2d 791, 796 (11th Cir.

1987)(“A child abused while in foster care, in order to successfully recover from

state officials in a Section 1983 action, will be 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”). We conclude that the record

contains insufficient evidence of deliberate indifference, and that the court’s grant

of summary judgment was appropriate.

The record contains no evidence that appellees knew of a risk of serious

harm to Omar. To be deliberately indifferent, an official must not only be aware of

facts suggesting a substantial risk of serious harm to the plaintiff, but the official

recounts the facts and then offers an opinion as to the conclusion which the jury should reach,

such expert testimony is not permitted. See Montgomery v. Aetna Cas. & Sur. Co., 892 F.2d

1537, 1541 (11th Cir. 1991). Moreover, a plaintiff cannot rely on legal conclusions articulated by

an expert to meet his burden of coming forward with relevant evidence. See Avirgan v. Hull, 932

F.2d 1572, 1577 (11th Cir. 1991).

As the district court noted, Radigan was not qualified as an expert on the state of mind of

others. Several paragraphs of her testimony stated conclusions such as, “the defendants

consciously disregarded known signs of abuse,” and “absence of the required planning...

demonstrates reckless disregard.” Thus, we find no error in the court’s decision to strike the

portions of Radigan’s testimony which contain legal conclusions as to another person’s state of

mind.

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must also draw the inference that the plaintiff is likely to be harmed. See Ray, 370

at 1083 (citing Farmer v. Brennan, 511 U.S. 825 (1994)). The record contains

evidence that, prior to Omar’s adoption, he had some documented illnesses, he

displayed evidence of psychological problems, and on one occasion, his doctor

discovered loop marks on his body. There is no evidence, however, that any of the

appellees actually drew the inference that these facts meant Omar was being

abused by Davis. In fact, the only evidence is to the contrary.6 Moreover, there is

no evidence that any of the physicians who treated Omar suspected these illnesses

resulted from abuse. Appellees would therefore have no reason to suspect

otherwise. Thus, there is no evidence that appellees actually knew or even

suspected that Omar was being abused prior to his adoption by Davis.

There is also no evidence that appellees recklessly disregarded a risk of

harm to Omar or acted in a manner that was more than merely negligent.

“Deliberate indifference is not the same thing as negligence or carelessness,” Ray,

370 F.3d at 1083. Moreover, mere failure to follow DCF policy by gathering

certain information does not rise to the level of deliberate indifference. See Id. at

1084-85. Instead, the plaintiff is required to provide evidence that the defendants

6

According to Moringlane’s testimony, the report of a suspicion that Davis was abusing

Omar was determined “unfounded.” There is no evidence that anything other than an unfounded

report was filed.

12

deliberately disregarded actual knowledge of abuse. Id.

There is no evidence that any of the appellees’ failure to conclude that Omar

was being abused was anything other than an unfortunate miscue. The fact that

Moringlane may have determined incorrectly that Davis was not abusing Omar is

insufficient to support a finding of deliberate indifference. Moreover, Babcock’s

possible failure to conduct a home study prior to Omar’s placement with Davis

does not rise to the level of deliberate indifference. Babcock is not certain whether

she actually conducted the home study in question, and the study is not in the

record. The record does show, however, that Babcock was familiar with the Davis

household, that she maintained regular contact with the family, and that she

conducted studies of the Davis home on several other occasions while Omar was

under her supervision. There is no evidence that Babcock suspected at any point

that Davis was abusing Omar, that she deliberately disregarded a known risk to

Omar, or that she deliberately failed to learn of his abusive situation. Thus, even

assuming that Babcock was required to conduct a home study specific to Omar

prior to his placement and that she failed to do so, her failure to follow that

particular DCF policy would not amount to deliberate indifference.

As for appellants Morales and Rowley, they had only supervisory authority

over the situation and therefore had a more limited view of Omar’s situation. The

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only information to which they potentially had access was Babcock’s reports and

the December 1990 CPT report. Since neither Babcock nor Moringlane indicated

any suspicions of abuse to their supervisors, they would have no reason to believe

otherwise given their lack of direct contact with the Davis household. Moreover,

Morales and Rowley cannot be implicated based solely upon their supervisory

authority. See Miller v. King, 384 F.3d. 1248, 1261 (11th Cir. 2004)(“It is well

established in this circuit that supervisory officials are not liable under §1983 for

the unconstitutional acts of their subordinates on the basis of respondeat

superior”)(internal quotations and citations omitted). Thus, there is insufficient

evidence that Morales and Rowley acted with deliberate indifference with regard

to the appellant.

III. Conclusion

As noted by the district court, Omar’s history is indeed a tragedy, and one

that begins at a very young age when he was first abandoned by his birth mother.

The likelihood that Omar was abused by his adoptive mother, Davis, is truly an

unfortunate circumstance. However, this is a case about whether or not the

officials in charge of Omar’s well-being while he was in foster care acted with

deliberate indifference toward a situation which they knew to be an abusive one,

and the answer to that is no. Appellant has not met the burden of showing that

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appellees acted with deliberate indifference. There is simply no evidence in the

record that any of the appellees actually considered Omar’s situation in the Davis

home to be an abusive one prior to his adoption, or that they deliberately

disregarded any knowledge of abuse to Omar. We therefore affirm the district

court.

AFFIRMED.

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