Petition for Writ of Certiorari — Williams v. Jackson (No. 05-1380)

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the perpetrator of the assault. See Ga. Military Coll. v.

Santamorena, 237 Ga. 58 (1999). Thus, the State has not

waived its sovereign immunity for claims arising from the

physical and/or sexual abuse of foster children.

Respondents’ Role And Function Within The State's

Foster Care System.

Respondents began the process of becoming certified to

act as foster parents through the Clayton County Division of

Family and Children’s Services (“DFACS”) in 1997. As part

of the process, Respondents attended ten weeks of classes

taught by DFACS employees. In addition, DFACS “screened”

Respondents and ultimately certified Respondents to serve

as foster parents. Subsequently, DFACS began placing

children in Respondents” home. In addition to placing foster

children in Respondents’ home on a long term basis, DFACS

also had Respondents provide short term care for children

who were awaiting court appearances. The State reimbursed

Respondents for money Respondents spent providing food,

clothing and shelter to the foster children in their care.

DFACS caseworkers visited Respondents’ home to

supervise the foster children residing therein. Further, the

State investigated claims of abuse within the home.

Specifically, while Petitioner was residing in Respondents’

home, DFACS received a report of sexual misconduct

involving Respondents’ biological grandson and another

foster child residing in Respondents’ home. DFACS

investigated this report but allowed Petitioner to remain in

the home.

8

The District Court Proceedings.

Petitioner filed the present action in the United States

District Court for the Northern District of Georgia on March

25, 2004. Petitioner filed the suit through her biological

mother because she was a minor at the time she initiated the

litigation. Petitioner has since reached the age of majority.

Petitioner sued Respondents and three employees of the

Clayton County DFACS under 42 U.S.C. § 1983, alleging

that the defendants had violated her Fourteenth Amendment

substantive due process rights. Petitioner also alleged state

law claims against Respondents’ son, Montaque Jackson.

During the course of the underlying litigation, Petitioner

dropped her claims against two of the three DFACS

employees originally named in the suit. Thereafter,

Respondents and the DFACS employee remaining in the case,

Stacy Reed, filed separate motions for summary judgment.

Respondents moved for summary judgment on several

bases. Respondents argued that they cannot be held liable

for any of the constitutional violations alleged because they

are not State actors under 42 U.S.C. § T983. In support of

this argument, Respondents relied heavily upon Ravburn v.

Hogue, 241 F.3d 1341 (11" Cir. 2001), in which the Eleventh

Circuit held that the defendant-foster parents in that case were

not State actors under the nexus/joint action test. Respondents

also argued that, to the extent Petitioner was alleging any

state law claims against them, they were entitled to summary

judgment because the Georgia Tort Claims Act bars such

claims against them.

9

In response, Petitioner clarified that she was not asserting

any state law claims against Respondents. As to the claims

under 42 U.S.C. § 1983, Petitioner argued that Respondents

were state actors under the standards articulated in this

Court’s decisions in West v. Atkins, 487 U.S. 42 (1988) and

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n.,

531 U.S. 288 (2001) (hereinafter “Brentwood Academy’).

Specifically, Petitioner argued that, under West,

Respondents are public employees acting under color of state

law because of their relationship with the State and their

function within the foster care system, regardless of the

precise terms of their employment by the State.

Petitioner also argued that, even if Respondents are

private persons, they are state actors under the “entwinement

test” applied in Brentwood Academy. Petitioner argued that

Respondents were entwined with Georgia’s foster care system

and the State was entwined with the management and control

of Respondents’ foster home.

Finally, Petitioner argued that the Eleventh Circuit

decision in Rayburn was not inconsistent with a finding of

state action under West and/or Brentwood Academy because

in Rayburn the court did not address either of those cases.

Instead, the Rayburn court held only that the defendants in

that case were not state actors under the nexus/joint action

theory of state action.

The district court rejected Petitioner’s arguments and

found that Respondents were not state actors. On August 30,

2005, United States District Court Judge Julie Carnes issued

a single order granting Respondents’ motion and defendant

Stacy Reed’s motion. On August 31, 2005, the district court

entered judgment in favor of Respondents.

10

The Eleventh Circuit's Opinion.

Petitioner appealed. On January 27, 2006, the Eleventh

Circuit Court of Appeals affirined the district court’s order.

The result of the Eleventh Circuit’s ruling is that

Georgia’s foster children are left without any recourse to

pursue civil claims against foster parents for damages

arising out of physical and/or sexual abuse. This is because

the Georgia Tort Claims Act provides foster parents with

sovereign immunity against state law actions and the

Eleventh Circuit’s decision immunizes foster parents from

claims under federal civil rights law.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari in this case for three

reasons. First, the Eleventh Circuit’s decision in this case

conflicts with this Court’s decision in West. Second, the

Eleventh Circuit’s decision conflicts with this Court’s

decision in Brentwood Academy. Third, the underlying

decision denies justice to Georgia’s most vulnerable citizens

while eliminating an important deterrent to child abuse.

A. The Eleventh Circuit’s Decision Conflicts With

This Court’s Decision In West.

In West, a state prison inmate brought a Section 1983

claim against a physician who had treated the prisoner at

Central Prison Hospital in North Carolina. 487 U.S. at 43-

44. The plaintiff claimed that the physician was deliberately

indifferent to his medical needs. /d. at 45.

1]

The defendant-physician, who maintained a private

practice, provided services at the prison hospital on a part-

time basis under a “Contract for Professional Services” with

the State of North Carolina. See id. at 44, n.1. The defendant

argued that he could not be liable under Section 1983 because

he was an independent contractor. This Court rejected the

argument and explained as follows:

~ [S]tate employment is generally sufficient to

render the defendant a state actor. [Cit.] It is firmly

established that a defendant in a § 1983 suit

acts under color of state law when he abuses the

position given him by the State. [Cit.] Thus,

generally, a public employee acts under color of

state law while acting in his official capacity or

while exercising his responsibilities pursuant to

state law. [Cit.]

By virtue of his relationship, effected by state law,

[Defendant] is authorized and obliged to treat

prison inmates, such as [Plaintiff]. He does so

clothed with the authority of state law. [Quotation

omitted. ]

The fact that the State employed respondent

pursuant to a contractual agreement that did

not generate the same benefits or obligations

applicable to other “state employees” does not

alter the analysis. It is the physician’s function

within the state system, not the precise terms of

12

his employment, that determines whether his

actions can fairly be attributed to the State.

Whether a physician is on the state payroll or is

paid by contract, the dispositive issue concerns

the relationship among the State, the physician,

and the prisoner.

Id. at 49-57.

In the present case, the relationship between the State of

Georgia, Respondents, and Petitioner was such that

Respondents’ actions can fairly be attributed to the State.

Specifically, as discussed above, the State of Georgia has

undertaken a mission to protect the children of the State of

Georgia through a comprehensive and coordinated program

of public child welfare and youth services. See O.C.G.A.

§ 49-5-2; see also Taylor, 818 F.2d at 798-800 (discussing

Georgia’s statutory scheme governing foster care). As

certified foster parents, Respondents were in a relationship

of cooperation with the State of Georgia and assumed

obligations to further and promote the State’s mission.

See Taylor, 818 F.2d at 798-800; see also O.C.R.R.G.

§ 290-2-12-.08.

Respondents were trained, screened, certified and

supervised by the State. They also received monetary

reimbursement from the State for expenses incurred in caring

for Petitioner. In addition, the State has statutorily defined

Respondents as “state employees,” see O.C.G.A. § 50-21-22

(7), thereby providing Respondents with the valuable benefit

of sovereign immunity — a benefit Respondents invoked in

this case. See O.C.G.A. § 50-21-25(a).

13

As in West, the precise terms of the Respondents’

contractual relationship with the State is not determinative

of whether Respondents are “public employees.” Rather, the

dispositive issue here concerns the relationship among the

State, the Respondents, and Petitioner. See West, 487 U.S.

at 57. In this case, the district court and the Eleventh Circuit

failed to consider the nature of the relationship among the

parties. Instead, the district court simply stated that foster

parents are “private parties.” (App., at 21a). The court went

on to state that the-Petitioner “has not cited any

case law to justify disturbing this assumption.” (App.,

at 21a). In so stating, the court ignored Petitioner’s reliance

upon West.

B. The Eleventh Circuit’s Decision Conflicts With

This Court’s Decision In Brentwood Academy.

In Brentwood Academy, the issue before the Court was

“whether a statewide association incorporated to regulate

interscholastic athletic competition among public and private

secondary schools may be regarded as engaging in state action

when it enforces a rule against a member school.” 531 U.S.

at 290. The defendant-association was a private corporation.

Id. at 291. The corporation was not created by the State of

Tennessee and was not funded by the State. See id. at 936

(Thomas, J., dissenting). The plaintiff was a private high

school which the association had punished for violating a

recruiting rule./d. at 293.

The Court explained that whether action taken by a

private person is fairly attributable to the State is “a matter

of normative judgment, and the criteria lack rigid simplicity.”

Id. at 296. The Court then identified several factors that can

lead to attributing private conduct to the State. See id. Among

14

such factors, is the “entwinement” of the nominally private

entity with government policies or government management

and control. See id.

The “entwinement test” announced in Brentwood

Academy is a theory for attributing state action to a private

party that is different from the state compulsion test, the

public function test, or the nexus/joint action test. See id.

at 311 (Thomas, J. dissenting). Justice Thomas stated:

We have never [before] found state action based

upon mere ‘entwinement.’ Until today, we have

found a private organization’s acts to constitute

state action only when the organization performed

a public function; was created, coerced, or

encouraged by the government; or acted m a

symbiotic relationship with the government.

Id. at 305. Based on this new test, a majority of the Court

held that the association’s actions constituted state action.

Id. at 933.

In this case, the district court did not agree that

Brentwood Academy creates a new test. Instead, the district

court found that the Brentwood Academy actually applied

the “nexus/joint action test.” (App. B., at 23.) In addition,

the district court failed to heed this Court’s instruction that

the test for State action is “a matter of normative judgment,

and the criteria lack rigid simplicity.” Brentwood Academy,

531 U.S. at 296. Despite this language, the district court

insisted upon a rigid application of the Eleventh Circuit's

“three test system.” (App. B, at 24.)

15

Under the standard announced in Brentwood Academy,

Respondents’ conduct constitutes State action. As in

Brentwood Academy, significant entwinement exists both

from the “top down” and-from the “bottom up.” See Brentwood

Academy, 531 U.S. at 300.

Specifically, through its statutory and regulatory scheme,

as well as the Consent Decree entered in Jaylor, the State

has provided for entwinement from the “top down.”

See O.C.G.A. § 49-5-2; Taylor, 818 F.2d at 799 (citing

O.C.G.A. § 49-5-1291 (m) and O.C.R.R.G. § 290-2-12-08)).

In this regard, the DHR, through DFACS workers, screened,

trained, and supervised Respondents in their role as certified

foster parents, supervised numerous foster children residing

in Respondents’ home, investigated reports of sexual

misconduct occurring inside the home, and compensated

Respondents for expenses incurred in caring for Petitioner.

Furthermore, as discussed above, through the GTCA,

the State has statutorily defined foster parents as “state

employees” and granted foster parents total immunity for torts

committed during the course of their duties as foster parents.

See §§ 50-21-22 (7) and 50-21-25 (a).

Respondents were also entwined with the State from the

“bottom up.” Respondents received training from the State

prior to becoming licensed as foster parents, received funds

from the State, and asserted official immunity for any state

law torts that they have committed.

In sum, Respondents were entwined with Georgia’s

foster care system and the State was entwined with the

management and control of the Respondents’ foster home-

Therefore, Respondents’ conduct should be deemed to be

state action. |

16

C. The Decision Below Will Have Severe Adverse

Consequences For Georgia’s Most Vulnerable

Citizens.

The legislative history of § 1983 demonstrates that it

was particularly intended to protect those persons who are

being deprived of their constitutional rights and are without

recourse under state laws. See Monroe v. Pape, 365 U.S. 167,

172-183, (1961), rev’d on other grounds Monell v. Dept of

Social Servs. of the City of New York, 436 U.S. 658 (1978).

As discussed above, Georgia foster children who are the

victims of physical and/or sexual abuse are unable to pursue

civil suits against their foster parents under state law because

the foster parents are clothed with sovereign immunity. In

addition, while the State of Georgia has waived its sovereign

immunity for torts committed by state employees, including

foster parents, the waiver does not apply to claims arising

from any type of assault and/or battery. Thus, Georgia foster

children who are physically and/or sexually abused must look

to federal civil rights laws for protection.

Under the decision below, however, Georgia’s most

vulnerable citizens are denied the protection of federal civil

rights laws. The Third Circuit has described the situation in

which foster parents hide behind sovereign immunity to avoid

liability on state law claims while simultaneously arguing

that they are not “state actors” for Section 1983 purposes as

a “heads-we-win-tails-you-lose” scenario. Leshko v. Servis,

423 F.3d 337, 342 (3 Cir. 2005) (following Rayburn and

finding that foster parents are not state actors for purposes

of Section 1983 liability). This unjust situation provides a

compelling basis for this Court to grant certiorari in this case.

i 17

CONCLUSION

For all the foregoing reasons, Petitioner respectfully

requests that the Supreme Court grantreview of this matter.

Respectfully submitted,

ADAM PRINCENTHAL

ANDREWS, KNOWLES

& PRINCENTHAL, LLC

260 Peachtree Street, NW

Suite 502

Atlanta, Georgia 30303

(404) 524-4000

MARTIN SHELTON

Counsel of Record

STACK & AssociaTEs, P.C.

260 Peachtree Street, NW

Suite 1200

Atlanta, Georgia 30303

(404) 525-9205

Counsel for Petitioner

APPENDIX

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APPENDIX A — JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT DATED JANUARY 27, 2006

No. 05-15417

Non-Argument Calendar

D.C. Docket No. 04-00838-CV-JEC1

Appeal from the United States District Court

for the Northern District of Georgia

January 27, 2006

TIFFANY WILLIAMS, a minor by her next friend,

PRISCILLA S. WILLIAMS

Plaintiffs-Appellants,

v.

STACY REED, MARY JENKINS, AWALDI ELLIOT,

MONTAQUE JACKSON, MARION JACKSON, et al.,

Defendants-Appellees,

MARY ANN JACKSON, JAMES JACKSON,

Defendants. -

2a

Appendix A

Before TJOFLAT, MARCUS and WILSON, Circuit Judges,

PER CURIAM:

In an order entered on August 30, 2005, the district

court granted summary judgment in favor of appellees Marion

Jackson and John Hammonds and dismissed Appellant's

claim against Montaque Jackson because Appellant had

abandoned her claim against him. Appellant now challenges

those rulings.

The district court's August 30 order constitutes a

proper application of the controlling law to the material facts

in this case. We therefore affirm the court's judgment.

AFFIRMED.

A True Copy - Attested

Clerk U.S. Court of Appeals

Eleventh Circuit

AOE -

Deputy Clerk

Atlanta, Georgia

3a

APPENDIX B — ORDER IN THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF GEORGIA, ATLANTA DIVISION

DATED AUGUST 30, 2005

Civil Action No. 1:04-CV-0838-JEC

August 30, 2005

TIFFANY WILLIAMS, a minor, by her next friend,

PRISCILLA WILLIAMS

Plaintiff,

v.

STACY REED, et al.,

Defendants.

ORDER

This case is presently before the Court on Marion

Jackson and John Hammonds’ Motion for Summary

Judgment [59]; defendants’ Marion Jackson and John

Hammonds’ Request for Oral Argument [60]; Consent

Motion by Defendants Reed, Jenkins, and Elliot for

Extension cf Time in Which to File Their Notion for

Summary Judgment [66]; Defendants Marion Jackson and

John Hammonds’ Motion to Strike and Objections to the

Affidavit of Dawn Tyus [67]; Consent Motion to Drop

Defendant Awaldi Elliot [71]; Defendants Reed and Jenkins’

Motion for Summary Judgment [80]; AND Plaintiff’s Motion

to Drop Defendant Mary Jenkins [110]. The Court has

4a

Appendix B

reviewed the record and the arguments of the parties and,

for the reasons set out below, concludes that Marion Jackson

and John Hammonds’ Motion for Summary Judgment [59]

should te GRANTED; defendants’ Marion Jackson and John

Hammonds’ Request for Oral Argument [60] should be

DENIED; Consent Motion by Defendants Reed, Jenkins, and

Elliot for Extension of Time in Which to File Their Motion

for Summary Judgment [66] should be GRANTED;

Defendants Marion Jackson and John Hammonds’ Motion

to Strike and Objections to the Affidavit of Dawn Tyus [67]

should be DENIED; Consent Motion to Drop Defendant

Awaldi Elliot [71] should be GRANTED, Defendants Reed

and Jenkins’ Motion for Summary Judgment [80] should be

GRANTED, AND Plaintiff's Motion to Drop Defendant

Mary Jenkins [110] should be GRANTED.

BACKGROUND

I. Factual Background

Plaintiff, Tiffany Williams, is a minor currently in the

custody of Clayton County Department of Family and Children

Services (“DFCS”). By and through her next friend and

biological mother, Priscilla Williams,' plaintiff filed this civil

action under 42 U.S.C. § 1983, claiming that events which

1. As Priscilla Williams* parental rights to plainuff Tiffany

Williams have now been permanently terminated, as a result of Ms.

Williams’ own demonstrated unfitness as a parent, the Court

questions the propriety of her bringing this suit--and controlling any

monies awarded as damages. (See Priscilla Dep. at 141, 143-44.) As

this Court has granted all defendants’ motions for summary judgment,

however, the matter appears moot.

Sa

Appendix B

occurred during plaintiff's September 2000 through May 2001

placement in the foster home of defendants Marion Jackson

and John Hammonds violated her Fourteenth Amendment

substantive due process rights. (Mem. of Law in Supp. of Defs.

Marion Jackson and John Hammonds’ Mot. for Simm. J. (“J&H

Mot. for Simm. J.) [59] at 2.) Specifically, plaintiff alleges

that the adult son of her common-law married foster parents,

Montaque Jackson, engaged in repeated sexual intercourse with

the plaintiff during the time she was assigned to Ms. Jackson

and Mr. Hammonds’ foster home. (/d.) As a result of the sexual

relationship between plaintiff and Mr. Jackson, sometime during

the spring or summer of 2001, plaintiff became pregnant. (Defs.

Reed and Jenkins’ Statement of Material Facts Not Genuinely

in Issue (“RJSMF’’) [80] at 9] 28-29.) At the time she became

pregnant, plaintiff was just thirteen or fourteen years old.’ (Dep.

of Tiffany Williams, November 17, 2004 (“Tiffany Dep.”) [63]

2. Plaintiff was born April 30, 1987. Thus, if she was

impregnated before April 30, 2001, plaintiff would have been

thirteen-years-old. However, the record is not clear as to when exactly

plaintiff became pregnant with Mr. Jackson’s child. Plaintiff’s

daughter was born sometime in December of 2001. Though plaintiff

moved out of the Jackson/Hammonds foster home in May 2001,

plaintiff requested to, and did, return to the Jackson/Hammonds foster

home for an overnight visit in June 2001. (RJSMF at ¢ 27.) During

that June 2001 visit, plaintiff and Mr. Jackson engaged in sexual

intercourse and plaintiff told Mr. Jackson that she thought she was

pregnant. (RJSMF at { 27; Tiffany Dep. at 303.) Plaintiff’s pregnancy

was not confirmed by a medical doctor until July or August of 2001.

(Tiffany Dep. at 172.) At that time, the doctor estimated plaintiff to

be four months pregnant. (/d.) Plaintiff then gave birth to a premature

infant in December 2001. (Priscilla Dep. at 122.) Taking all this

together, the Court is still-unable to determine whether plaintiff

became pregnant with Mr. Jackson's child before or after her

fourteenth birthday.

6a

Appendix B

at 6.)-Mr. Jackson was thirty-two years old. (Dep. of Priscilla

Williams, December 1, 2004 (‘Priscilla Dep.”) [102] at 115.)

Plaintiff gave birth to her daughter, Tianna Williams, sometime

in December of 2001. (Tiffany Dep. at 294.) Like plaintiff,

Tianna is a minor currently in the custody of DFCS. She is

assigned to the same foster home as plaintiff, her mother. (/d. at

214.)

The parties to this action do not contest the fact that

plaintiff and Mr. Jackson were engaged in a sexual relationship.

Construing all facts in the light most favorable to plaintiff, and

for purposes of the present motion only, the particulars of that

relationship are as follows. In October 2001, approximately one

month after plaintiff was placed in the Jackson/Hammonds foster

home, Montaque Jackson, the adult son of plaintiff’s foster

parents, asked plaintiff to have sex with him. (RJSMF at 22.)

Plaintiff began having “consensual” sex with Montaque Jackson

[hereinafter Montaque”] in the basement of the Jackson/

Hammonds foster home two to three times a week. (/d. at § 23.)

Though the first sexual encounter between plaintiff and

Montaque occurred during the daytime, as a standard practice,

plaintiff and Montaque would engage in sexual intercourse

around 2:00 or 3:00 a.m. when everyone else in the house was

asleep. (RJSMF at 4 24; Tiffany Dep. at 49) According to

plaintiff, as she was getting ready for bed, he would ask her to

3. The Court is reluctant to construe any sexual relationship

between a thirteen year old and a thirty-two year old as “consensual”

or “voluntary.” Because plaintiff testified in her deposition that he

physically and verbally agreed to all but one of the numerous sexual

encounters between herself and Mr. Jackson, however, the Court

will refer to all encounters, except the alleged “rape.” as

“consensual.”

7a

Appendix B

come to his room and she would go knowing that they would

most likely have intercourse, (Tiffany Dep. at 47-48.) Indeed,

plaintiff’s testimony does not indicate that there ever was a time

when she went to Montaque’s room in the middle of the night

that the two did not have intercourse. The logistics of all this

were made much easier by the fact that both plaintiff and

Montaque’s bedrooms were located in the basement of the

Jackson/Hammonds foster home. (RJSMF at 4 25; Tiffany Dep.

at 27, 29.)

At least once during the course of their sexual

relationship, Montaque asked plaintiff to have sex with him

and plaintiff refused. (Tiffany Dep. at 39.) As plaintiff describes

the incident, the two were sitting on Montague’s bed, he asked

plaintiff to have sex, plaintiff refused, and then the two had sex

anyway. (/d. at 39-41.) After this episode, plaintiff told no one

about what had happened, and plaintiff and Montaque resumed

having “consensual” sex. (/d. at 48.)

Plaintiff's silence with regard to this episode is consistent

with plaintiff and Montaque’s efforts to keep their relationship

concealed. In fact, prior to learning she was pregnant, plaintiff

had not told her case manager, her foster mother or father, Ms.

Jackson and Mr. Hammonds, her mother, or anyone else that

she and Montaque were engaging in sexual intercourse. (RJSMF

at J 35.) Indeed, even after being told by the doctor that she was

pregnant, plaintiff initially told her mother, to whose physical

custody plaintiff was temporarily returned in May 2001, that

the father of her baby was “Shawn” Morris Wilson, the teenage

grandson of Ms. Jackson and Mr. Hammonds.? (/d. at § 30.)

4. At some point during plaintiff's stay in the Jackson/

Hammonds foster home, DFCS had received a referral alleging that

(Cont'd)

8a

Appendix B

Only after plaintiff's mother called the Jackson/Hammonds

foster home and spoke with Ms. Jackson’s daughter, did plaintiff

tell her mother the truth: that she had been impregnated by

Montaque Jackson. (Priscilla Dep. at 115-19.)

On August 30, 2001, shortly after taking plaintiff to the

doctor and learning that she was pregnant, and having just

spoken with Ms. Jackson’s daughter, Ms. Williams telephoned

plaintiff's case manager. (RJSMF at 4 32.) At that time,°

plaintiffs case manager was defendant Stacy Reed. As plaintiff's

case manager, Ms. Reed was supposed to supervise plaintiff, as

well as her foster care home assignment (/d. at 4 11.) Though

Reed was not involved in the decision to place plaintiff in the

Jackson/Hammonds foster home, Reed did visit plaintiff in the

home. (/d. at 18.) According to plaintiff, Reed only came to see

her when it was time for plaintiff to go to court or when plaintiff

skipped school. (Tiffany Dep. at 222-23.) Plaintiff says these

visits did not occur “often enough.” (/d. at 223.) According to

Ms. Reed, pursuant to DFCS policy, she visited every child she

was responsible for who was placed in a typical foster care

environment, like the Jackson/Hammonds foster home, at least

one time per month. (Dep. of Stacy Reed, December 6, 2004

(“Reed Dep.) [85] at 48.) Regardless of when and how often

(Cont'd)

foster children in this home were engaging in sexual activity with

Ms. Jackson and Mr. Harmmonds’ grandson, “Shawn” Morris Wilson.

Shawn Wilson did not reside in the Jackson/Hammonds home and

the investigation concluded that the allegations were unsubstantiated,

(RJSMF at § 39.)

5. Ms. Reed’s employment with DFCS ended on April 30, 2004.

(RJSMF at 4 1.)

9a

Appendix B

these visits occurred, both plaintiff and Ms. Reed agree that,

during these visits, Reed asked plaintiff how everything was in

her home assignment and whether everything was okay. (/d. at

143.) In response to these inquiries, plaintiff never told Reed

that she was having sex with Montaque Jackson, or even that

Montaque was living in the house. (Tiffany Dep. at 224-26.)

Instead, plaintiff told Ms. Reed that things were “going all nght.”

(/d. at 252.)

Indeed, Montaque Jackson, who had previously been

convicted for robbery with use of a firearm and forcible contact

sexual abuse, had not been approved by DFCS to live in the

Jackson/Hammonds foster home. Ms. Reed testified that, if she

ever saw people inside a foster home other than the foster parents

and foster children, it was her general practice to ask whether

they lived in the house. (Reed Dep. at 67-68, P1.’s Ex. 1.) There

appears to be no evidence, however, that she made any such

inquiries about Montaque Jackson. Likewise, there is no

evidence that she was ever actually aware that Montaque lived

in the home; in fact, Reed has testified that she was not aware

of that fact.°(/d. at 84-86.) (Reed understood and believed that

the only people living in the Jackson/Hammonds foster home

were Ms. Jackson, Mr. Hammonds, and the foster children

placed there by DFCS; see also id at 117.)

A persistent focus by both parties in this litigation has

concerned whether there were sufficient facts to put defendant

Reed on notice that Montaque actually lived in the foster home.

6. Notably, the foster mother, Ms. Jackson, continues to deny

that her son actually lived in her home. Instead, the gist of her

testimony is that he came and went as he saw fit, but never kept any

clothes or belongings in the home. (Dep. of Marion Jackson,

December 16, 2004 (“Marion Dep.”) [85] at 36, 38-39.)

10a

Appendix B

Reed testified in her deposition that, although she visited the

home once a month, she did not see Jackson there during every

visit. (/d. at 81.) To the contrary, she saw him there “not too

often.” She could not remember exactly how many times she

saw Montaque Jackson at the house, but she thought that she

might have seen him there on two visits. (/d. at 82.) The foster

mother, Marion Jackson, testified that she thought that Reed

had seen Montague more than once at the house. (Marion Dep.

at 95).

Thus, the undisputed evidence is that Reed had seen

Montaque Jackson at the home on more than one occasion

and her recollection is that it was on two occasions. As to

plaintiff, she never mentioned to Ms: Reed or Ms Reed’s

social services supervisor from August 2000-October 2000,

defendant Mary Jenkins, that Montaque visited, stayed

overnight, or lived in the Jackson/Hammonds foster home.

(RJSMF at 44 2, 20.) Nor does there appear any evidence

that plaintiff was ever asked about Montaque Jackson.

Having received the call from Ms. Williams informing

her that plaintiff was pregnant by Montaque,’ Ms. Reed

immediately contacted her supervisor at the time, Patricia

Nealy, to inform her of the allegations and to discuss how to

7. At this time, plaintiff was in the physical custody of her

biological mother, Ms. Williams. However, DFCS continued to retain

legal custody of plaintiff. Ms. Williams’ parental rights have since

been terminated because of Ms. William’s continued involvement

with drugs. (RJSMEF at ¢ 42.) Plaintiff and Tianna Williams are now

in foster care at the home of Mariam Williams, an unrelated approved

foster parent, under the custody and supervision of DFCS. (/d. at 4

41.)

lla

Appendix B

proceed. (Reed Dep. at 153.) Ms. Reed’s supervisor told her.

to go to plaintiff’s school to pick up plaintiff and discuss the

matter, and then to make a referral to the Child Protective

Services Unit (“CPS’’).° Ms. Reed did both. (/d.) The ensuing

conversation between plaintiff and Reed was the first time that

plaintiff informed Reed that she had been having sex with

Montaque Jackson. (RJSMF at 4 32; Reed Dep. at 156.) After

speaking with a CPS investigator, plaintiff was returned to the

physical custody of her mother. (Reed Dep. at 157.)

Plaintiff remained in her mother’s home during her

pregnancy and up until Tianna was approximately three months

old. Plaintiff was ultimately removed from her mother’s home

after DFCS received a report that Ms. Williams and her then

boyfriend were using crack cocaine in the presence of plaintitf

and her infant daughter. (Priscilla Williams Dep. at 128.) As a

final epilogue to this thoroughly sorry tale, Montague Jackson,

the father of plaintiff's child, is currently serving a life sentence

for an unrelated murder, as well as ten years for the statutory

rape of plaintiff. (Reed Dep. at Pl.’s Ex. 2.)

II. Procedural History

Acting through her biological mother and next friend,

Priscilla Williams, plaintiff filed this civil action on March 25,

2004. (Compl. for Damages [1] at 1.) In her initial complaint,

8. The Child Protective Services Unit of DFCS is charged with

investigating any allegations of abuse or neglect of foster children.

Foster care case managers do not investigate allegations of abuse or

neglect. If such allegations are made known to a foster care manager.

he or she must forward these allegations to CPS. (RJSMF at ۤ 10.

12.)

12a

Appendix B

plaintiff named as defendants her foster mother, Mary Ann

Jackson; her foster father, James Jackson; her case manager,

Stacy Reed; Ms. Reed’s social services supervisor from August

2000-October 2000, Mary Jenkins; an investigator in the CPS

division of DFCS, Awaldi Elliot; and Montaque Jackson. (/d.)

On November 22, 2004, plaintiff filed her First Amended

Complaint for Damages to correctly identify her foster mother

as Marion Jackson and her foster father as John Hammonds,

and to drop her claim for cruel and unusual punishment under

the Eighth Amendment. (First. Am. Compl. for Damages [47]

at 2-3.)

By this Order, the Court today GRANTS the Consent

Motion to Drop Defendant Awaldi Elliot [71] and Plaintiff's

Motion to Drop Defendant Mary Jenkins [110]: Further, as

plaintiff has taken no action since filing this Complaint in

March, 2004 to prosecute this action against defendant

Montague Jackson, the Court deems her to have abandoned

her claims against him. Thus, pursuant to L.R. 41.3A,° the

Court DISMISSES defendant Montague Jackson from the

action.'°

9. L.R. 41.3A(3), NDGa provides, “The court may, with or

without notice to the parties, dismiss a civil case for want of

prosecution if. . . [a] case has been pending in this court for more-

than six (6) months without any substantial proceedings of record,

as shown by the record docket or other manner, having been taken

in the case.”

10. At any rate, Montague Jackson would likely be able to

muster the same successful defenses to a federal § 1983 action as

his parents have raised; he is clearly not a State actor. See discussion

infra at 16. Moreover, now serving a life sentence in prison,

Montaque likely has no assets to satisfy a judgment.

13a

Appendix B

This leaves as the defendants in this case: the foster

parents, Marion Jackson and John Hammonds, and Stacy

Reed, the DFCS caseworker. Plaintiff seeks to recover money

damages against these defendants for deprivation of her

Fourteenth Amendment rights, pursuant to 42 U.S.C. §§ 1983

and 1988.'! (Marion Jackson and John Hammonds’ Statement

of Material Facts to Which There is No Genuine Issue to Be

Tried (“JHSMF”) [59] at § 2.) Ms. Jackson and Mr.

Hammonds have, together, moved for summary judgment

on all claims against them. (J&H Mot. for Simm. J. at 1.)

Ms. Reed has also moved for summary judgment on all claims

against her. (Defs. Reed and Jenkins’ Mot. for Simm J (R&J

Mot. for Simm J.) [80] at 1.)

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate when the

“pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there s no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c)).

It. In Zaylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987)

(en banc) this circuit held that, “a child involuntarily placed in a

foster home is in a situation so analogous to a prisoner in a penal

institution and a child confined in a mental heaith facility that the

foster child may bring a section 1983 action for violation of

fourteenth amendment rights.”

14a

Appendix B

Summary judgment is not properly viewed as a device

that the trial court may, in its discretion, implement in lieu of a

trial on the merits. Instead, Rule 56 of the Federal Rules of

Civil Procedure mandates the entry of summary judgment

against a party who fails to make a showing sufficient to establish

the existence of every element essential to that party’s case on

which that party will bear the burden of proof at trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). In such a situation,

there can be no genuine issue as to any material fact, as a

complete failure of proof concerning an essential element of

the nonmoving party’s case necessarily renders all other facts

immaterial. /d. at 322-23.

The movant bears the initial responsibility of asserting

the basis for his motion. /d. at 323; Apcoa, Inc. v. Fidelity

Nat’!] Bank, 906 F.2d 610 611 (11th Cir. 1990) The movant

is not required to negate his opponent’s claim, however. The

movant may discharge his burden by merely “‘showing’--

that is, pointing out to the district court-that there is an

absence of evidence to support the nonmoving party’s case.”

Celotex, 477 U.S. at 325. After the movant has carried his

burden, the nonmoving party is then required to “go beyond

the pleadings” and present competent evidence’’ designating

“*snecific facts showing that there is a genuine issue for

trial.”” /d. at 324 (quoting Fed. R. Civ. P. 56(e)). While the

court is to view all evidence and factual inferences in a light

most favorable to the nonmoving party, Nat'l Parks

Conservation Ass’n v. Norton, 324 F.3d 1229, 1236 (11th

Cir. 2003), “the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise

12. The nonmovinig party may meet its burden through affidavit

and deposition testimony, answers to interrogatories, and the like.

Celotex, 477 U.S. at 324.

lSa

. Appendix B

properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

A fact is material when it is identified as such by the

controlling substantive law. /d. at 248. An issue is genuine when

the evidence is such that a reasonable jury could return a verdict

for the nonmovant. /d. at 249-50. The nonmovant “must do

more than simply show that there is some metaphysical doubt

as to the material facts . . .. where the record taken as a whole

could not lead a rational trier of fact to find for the nonmoving

party, there is no ‘genuine issue for trial.’” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 75 U.S. 574, 586-87 (1986)

(citations omitted). An issue is not genuine if it is unsupported

by evidence, or if it is created by evidence that is “merely

colorable” or 18 “not significantly probative.” Anderson, 477

U.S. at 249-50. Thus, to survive a motion for summary judgment,

the nonmoving party must come forward with specific evidence

of every element material to that party’s case so as to create a

genuine issue for trial.

Il. Marion Jackson and John Hammonds’ Motion for

Summary Judgment

Defendants Marion Jackson and John Hammonds, the

foster parents, ask this Court to grant their motion for

summary judgment on the grounds that they cannot be held

liable for any of the constitutional violations asserted by

- plaintiff because they are not State actors under 42 U.S.C. §

1983. (J&H Mot. for Simm. J. at 1.) In addition, to the extent

that plaintiff’s amended complaint asserts any state law

claims, Ms. Jackson and Mr. Hammonds seek summary

l6a

Appendix B

judgment on the grounds that the Georgia Tort Claims Act

bars such claims against them. (/d. at 12.) In her brief

opposing Jackson and Hammonds’ motion for summary

judgment, plaintiff clarifies that she is not asserting any state

law claims against either Ms. Jackson or Mr. Hammonds in

the present case. (Br. in Opp’n to Defs. Marion Jackson and

John Hammonds’ Mot. for Simm. J. (““Opp’n to J&H”’) [77]

at 6.) Consequently, the Court considers only whether

Jackson and Hammonds are entitled to summary judgment

for the claims made by plaintiff under 42 U.S.C. § 1983."

In order to successfully state a claim for relief under

42 U.S.C. § 1983, plaintiff must show that she was deprived of

a right, privilege, or immunity secured by the Constitution or

laws of the United States by a person acting under color of state

law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

(1999); Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).

In this case, Jackson and Hammonds do not seriously attempt

to argue that plaintiff’s constitutional rights were not violated.

Instead, they argue that, at least as to them, plaintiff’s rights

were not violated by a person acting under color of state law.

Thus, the critical question before this Court is whether Jackson

and Hammonds, as the foster parents overseeing the Jackson/

Hammonds foster home at the time Montaque Jackson lived in

the home and sexually assaulted plaintiff, are properly

13. 42 U.S.C. § 1983 provides, in relevant part, “[e]very person

who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity. or

other proper proceeding for redress . . .” ‘

17a

Appendix B

considered State actors who acted under color of state law. The

Court engages in this inquiry aware that, “[o]nly in rare

circumstances can a private party be viewed as a ‘State actor’

for section 1983 purposes.” /d.

In support of their argument that they are not State actors

subject to section 1983 liability, defendants Jackson and

Hammonds cite Rayburn v. Hogue, 241 F.3d 1341 (11th Cir.

2001) In Rayburn, on facts similar to those presented here, the

Eleventh Circuit considered an interlocutory appeal of a district

court order denying summary judgment to the foster parents of

two children who had been, in the case of the first child, sexually

molested, and, in the case of the second child, abused by a third

foster child living in the foster home. /d. at 1342-43. Unlike in

the current case, where the sexual assault of plaintiff by

Montaque Jackson was unknown to either her foster parents or

DFACS authorities during the time plaintiff resided in the foster

home, in Rayburn the natural mother of the victimized children

repeatedly notified the Carroll County, Georgia Department of

Family and Children’s Services (“Carroll DFACS”) that she

suspected her children were being seriously abused in their foster

care home. /d. at 1343-45. Though Carroll DFACS’ initial -

investigation concluded with a finding that the natural mother’s

allegations were without merit, Carroll DFACS initiated a

“second investigation after the children were returned to the

physical custody of their natural mother. This second

investigation concluded, consistent with the children’s accounts

and their natural mother’s previous allegations, that one of the

children had been sexually molested, most likely during the time

that the children were living in the foster care home. /d. at 1346.

The natural mother brought suit on behalf of her two children

under 42 U.S.C. § 1983 for violations of the children’s

18a

Appendix B

substantive and procedural due process rights under the Fifth

and Fourteenth Amendments of the United States Constitution.

Id. pia

Addressing the merits of plaintiffs’ claims, the Rayburn

court indicated, as the district court below it had done, that the

Eleventh Circuit employs three distinct tests to determine

whether the actions of a private entity are properly attributed to

the state. /d. at 1347; see also Focus on the Family v. Pinellas

Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003).

[T]o hold that private parties . . . are State actors,

this court must conclude that one of the following

three conditions is met: (1) the State has coerced or

at least . significantly encouraged the action alleged

to violate the Constitution (“State compulsion test’);

(2) the private parties performed a public function

that was traditionally the exclusive prerogative of

the State (“public function test”); or (3) the State

had so far insinuated itself into a position of

interdependence with the private parties that it was

a joint participant in the enterprise (“nexus/joint

action test’’)

Rayburn, 241 F.3d at 1347 (internal quotations and citations

omitted).

The Eleventh Circuit panel in Ravburn agreed with the

district court’s conclusion that the State had in no way coerced

or encouraged the conduct of the foster parents as it related to

the sexual assault and abuse of the two children, thereby rejecting

a notion of state action under a “State compulsion test.” The

panel also agreed with the district court that foster care is not

19a

Appendix B

traditionally the exclusive prerogative of the state, thereby

negating state action under the “public function test.” The

Eleventh Circuit, however, disagreed with the district court’s

conclusion that the foster parents became State actors under a

“nexus/joint action test.”

With regard to the “nexus/joint action test,” the district

court had reasoned that, beeause-the-Georgia Tort Claims Act

defines foster parents as State employees and provides total

immunity to foster parents for torts committed during their

employment as foster parents,'* the State of Georgia had created

a “nexus between the State and the regulated activity of foster

parents that is sufficient to make the [foster parents] State actors

for purposes of the fourteenth amendment.” /d. (citing Rayburn

v. Farnesi, 70 F. Supp. 2d 1334, 1344 (N.D. Ga. 1999) (Camp,

J.)) |

Disagreeing with the district court’s reasoning, the

Eleventh Circuit emphasized that, to satisfy the “nexus/joint

action test,” the governmental body and the defendant private

parties must be intertwined in a symbiotic relationship that must

involve the specific conduct of which plaintiff complains. /d.

at 1348. “[T]he mere fact that a State regulates a private party is

not sufficient to make that party a State actor.” /d. (citing Blum

v. Yaretsky, 457 U.S. 991, 1004 (1982)). Finding that the State

of Georgia’s symbiotic relationship with foster parties does not

14. O.C.G.A. § 50-21-22(7) provides, “*[s]tate officer or

employee” means an officer or employee of the state, elected or

appointed officials, law enforcement officers, and persons acting on

behalf or in service of the state in any official capacity, whether

with or without compensation . . . An employee shall also include

foster parents and foster children.”

20a

Appendix B

encourage or sanction child abuse in any way, the Rayburn court

concluded that the Georgia Tort Claims Act’s extension of

governmental tort liability and immunity rules to foster parents

does not transform foster parents into State actors. /d. In other

words, the “nexus/joint action test” had not been met. In doing

so, the Eleventh Circuit recognized the refusal of the Fourth,

Sixth, and Seventh Circuits to attribute the actions of foster

parents to the State. /d. at n. 10.

Faced with binding precedent that appears directly on-

point, plaintiff argues that Rayburn s holding that foster parents

are not State actors for purposes of section 1983 liability does

not control this dispute because “the Rayburn court did not

address the issue of whether “foster parents’ should be considered

‘State actors’ if they are state employees who have abused their

power,” and, instead, “limited its analysis to a review of the

district court’s holding, which assumes that foster parents are

‘private parties.” (Opp’n to J&H at 2.) Like the plaintiff in

Rayburn, plaintiff in this case focuses on the fact that O.C.G.A.

§ 50-21-22(7) defines foster parents as “state employees,” and

then goes on to argue that Ms. Jackson and Mr. Hammonds are

State actors because they acted with authority possessed by virtue

of their employment with the State. (/d. at 9 (citing Griffin v.

City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001)) (“A

person acts under color of state law when he acts with authority

possessed by virtue of his employment with the state. . . It is

firmly established that a defendant in a § 1983 suit acts under

color of law when he abuses the position given to him by the

state.) (internal citations omitted).) Alternatively, plaintiff

argues that defendants are State actors under what plaintiff deems

the “entwinement test” set forth by the United States Supreme

Court in the post-Rayburn decision Brentwood Acad. v. Tenn.

Secondary School Athletic Ass'n, 531 U.S. 288 (2001). (Opp’n

to J&H at 2.)

2la

Appendix B

In arguing that the Georgia Tort Claims Act somehow

transforms foster parents from private parties into State actors,

plaintiff is effectively recycling the same argument that was

rejected in Rayburn. While O.C.GA. § 50-21-22(7) says that

“State officer or employee’... shall also include foster parents

and foster children,” the Eleventh Circuit made it clear that this

definition does nothing more than extend governmental tort

liability and immunity rules to foster parents. Nothing in the

language of O.C.G.A. § 50-21-22(7) transforms Ms. Jackson or

Mr. Hammonds into State actors for purposes of § 1983.

Rayburn, 241 F.3d at 1348 (“Likewise, the act of extending

governmental tort liability and immunity rules to foster parents

does not transform the [foster parents] into State actors.”).

Otherwise, as the Eleventh Circuit pointed out in Rayburn, foster

children themselves would also be State actors because the

Georgia Tort Claims act includes foster children in the definition

of State employees. See id.

Finally, plaintiff correctly notes that, at both the district

and circuit court levels, the Rayburn courts assumed that foster

parents are private parties. This is because they are. Plaintiff

has not cited any case law to justify disturbing this assumption.

While foster parents receive some state funds each month,

approximately $350 per child,'° these funds are intended to offset

the cost of clothing, feeding, sheltering, and transporting the

children placed under the foster parents’ care. These funds are

not intended to, nor does the limited sum of $350 suggest that

they do, compensate the foster parent or parents for the time

15. In her deposition, Ms. Jackson testifies that she received

something less than $400 and something more than $300 per child,

or approximately $350 per child per month. (Marion Dep. at 81-82.)

22a

Appendix B

expended in caring for and raising their foster children. In the

end, as this circuit previously held in Rayburn, foster parents’

status as “State employees” under O.C.GA. § 50-21-22(7) does

not transform Georgia foster parents into State actors. Plaintiff's

first argument having failed, the Court now addresses plaintiff's

assertion that defendants are State actors under the “entwinement

test” of Brentwood.

In Brentwood Acad. v. Tenn. Secondary School Athletic

Ass'n, 531 U.S. 288 (2001), a private high school sued a State

interscholastic athletic association under section 1983 in an

effort to prevent that athletic association from sanctioning the

school. The issue before the Court was “whether a statewide

association incorporated to regulate interscholastic athletic

competition among public and private secondary schools may

be regarded as engaging in state action when it enforces a rule

against a member school.” /d. at 290. The Court ruled that, by

' virtue of its regulatory enforcement action, the interscholastic

association was a State actor for purposes of the Fourteenth

Amendment. /d. at 305. In arguing that Brentwood announces a

new, additional test for finding private parties to be State actors,

plaintiff seizes on language from the dissent stating, “[w]e have

never found state action based upon mere ‘entwinement’ Until

today, we have found a private organization’s acts to constitute

state action only when the organization performed a public

function; was created, coerced, or encouraged by the

government; or acted in a symbiotic relationship with the

government.” /d. at 305 (Thomas, J., dissenting).

Notwithstanding the above language in the dissent,

the notion that Brentwood creates a new “entwinement” test,

distinct from previous tests, is far from universally accepted.

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Appendix B

Indeed, the majority, recognizing that “[e]ntwinement will

support a conclusion that an ostensibly private organization

ought to be charged with a public character and judged by

constitutional standards,” appeared instead to be applying

the oft mentioned “nexus/joint action test.” See id. at 295,

302 (“Thus, we say that state action may be found if, though

only if, there is such a close nexus between the State and the

challenged action that seemingly private behavior may be

fairly treated as that of the State itself.”) (internal citations

and quotations omitted); see also Doe v. Harrison, 254 F.

Supp. 2d 338, 343 (S.D.N.Y. 2003) (“Doe contends that the

Supreme Court’s decision in Brentwood casts this analysis

into doubt . . . the decision is simply a straightforward

application of the close nexus test.”’)

Importantly, in Focus on the Family v. Pinellas Suncoast

Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003), citing

Brentwood, this circuit, once again, stated unequivocally, “[w]Je

have employed three distinct tests in determining whether the

actions of a private entity are properly attributed to the state.”

No mention was made of any “entwinement” test as a fourth

possible basis for finding a private entity to be a State actor.

The Eleventh Circuit having declined to expand its three test

system to include a fourth, this Court does the same.

Therefore, Ravburn, which holds that foster parents

are not State actors for purposes of liability under 42 U.S.C.

§ 1983, is controlling authority. Clearly, this sordid tale of a

thirty-two year old male sexually exploiting a thirteen year

old foster child in his home is one that should inspire anger

and sadness in any decent person. Yet, Section 1983, under

which plaintiff sues, reaches only State actors. Because

24a

Appendix B

binding law holds that the foster parents are not State actors,

plaintiff’s federal claim against them for their responsibility

in ignoring the risk that their felon son posed to the girls in

their home must fail. For this reason, the Court GRANTS

Marion Jackson and John Hammonds’ Motion for Summary

Judgment [59].

III. Stacy Reed’s Motion for Summary Judgment

A. Plaintiff's Contentions

- Plaintiff claims that defendant Stacy Reed, plaintiff's

case manager during the relevant time period, deprived plaintiff

of her substantive due process rights under the Fourteenth

Amendment by failing to properly monitor plaintiff while she

was in the foster home, thereby subjecting plaintiff to sexual

harm at the hands of Montaque Jackson (R&J Mot. for Simm.

J. at 3.) Defendant Reed contends that she is entitled to summary

judgment on this claim (1) because plaintiff cannot show that

Reed was “deliberately indifferent” to a risk posed to plaintiff

and (2) because Reed did not “proximately cause” plaintiff's

injuries. Alternatively, defendant Reed argues that plaintiff’s

claim against her is barred by the doctrine of qualified immunity.

In response, plaintiff contends that Reed had actual

knowledge that Montaque Jackson was residing in the Jackson/

Hammonds foster home because Reed knew that he was the

foster parents’ son and had seen him there on more than one

occasion. According to plaintiff, once armed with “actual

knowledge” that Jackson lived in the foster home, defendant

Reed failed to “act accordingly”; that is, presumably to take

steps to trigger a background investigation of Jackson. (P1.’s

25a

Appendix B

Br. in Opp’n to D. Stacy Reed’s Mot. for Simm. J. (“Opp’n to

Reed”) [104] at 15-16.)

Second, plaintiff argues that even if defendant Reed did

not actually know that Montaque Jackson was living in the foster

home, she should have made an inquiry of the foster parents or

foster children about his residency. Plaintiff assumes that this

inquiry would have alerted Reed to the fact that Montaque lived

in the home, after which she would have been expected to cause

a background check to be done, which check would likely have

revealed Montaque’s criminal record and then might have

-prompted DFCS to take steps either to remove him from the

home or to remove the children from the home. (/d.) Defendant

Reed’s failure to make this inquiry--and then to perform the

other described acts that would have followed--constituted

“deliberate indifference,” according to plaintiff.

As to proximate cause, plaintiff contends that defendant

Reed’s failure to make an inquiry as to whether Montaque lived

in the home proximately caused her sexual relationship with

Montaque to continue undiscovered. (/d. at 18.) Finally, plaintiff

insists that Ms. Reed is not entitled to qualified immunity

because plaintiff’s right to be free from sexual abuse while in

foster care was clearly established at the time plaintiff was living

in the Jackson/Hammonds foster home. (/d. at 20.)

In short, plaintiff does not claim that defendant Reed

actually knew that she was having a sexual relationship with

Montaque Jackson. Instead, she is claiming that defendant Reed

failed to make inquiries, the response to which might have

alerted Reed to the fact that Montaque was living in the home,

which knowledge might have prompted Reed to then request a

26a

Appendix B

criminal background check on Montaque. Had Reed done such

a check and then learned that Montaque had a prior conviction

for sexual contact with a minor, she would have then been on

notice of the risk that he might repeat this behavior with the

plaintiff. According to plaintiff, defendant’s failure to make these

inquiries constituted her deliberate indifference to a risk to

plaintiff’s safety. See Ray v. Foltz, 370 F.3d 1079, 1081. (11th

Cir. 2004) :

B. Application of Controlling Legal Principles to

the Facts

“It is clearly established in this circuit that foster —

children have a constitutional right to be free from

unnecessary pain and a fundamental right to physical safety.”

Ray, 370 F.3d at 1082 (internal citation omitted). In Zaylor

v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (en banc), the

Eleventh Circuit held, for the first time, that a child

involuntarily placed in a foster home may bring an action

under 42 U.S.C. § 1983 against the state officials involved

in the foster care placement for violations of that child’s

Fourteenth Amendment rights sustained in the foster home.

Id. at 792, 797. In doing so, the 7Jaylor court recognized,

“{c]hildren in foster homes, unlike children in public schools,

are isolated; no persons outside the home setting are present

to witness and report mistreatment. The children are helpless.

Without the investigation, supervision, and constant contact

required by statute, a child placed in a foster home is at the

mercy of the foster parents.” /d. at 797. However, while

analogizing a foster child involuntarily placed in a foster

home to a prisoner involuntarily placed in an institution, the

Taylor court cautioned that, *‘[t]he lack of proximity in the

ee ee

27a

Appendix B

foster home situation simply suggests that deliberate

indifference is not as easily inferred or shown from a failure

to act.” /d. at 796. Thus, in order to successfully recover

from state officials in a section 1983 action, a child abused

in foster care 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... only where it is alleged and the proof shows that

the state officials were deliberately indifferent to the welfare

of the child will liability imposed” /d. at 796-97 (emphasis

added). *

In Farmer v. Brennan, 511 U.S. 825, 835 (1994),

resolving a split among the United States Courts of Appeals,

the United States Supreme Court clarified that “deliberate

indifference” is a subjective, rather than objective, standard

describing “‘a state of mind more blameworthy than negligence”

where the state official “knows of and disregards an excessive

risk” to the victim’s health or safety. Jd. at 837. The Court

cautioned, “the official must be both aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” /d. Mindful

of “society’s outrage at the exposure of defenseless children to

gross mistreatment and abuse” the Court applies the principles

of law stated above to the facts of this case. See Tavior, 818

F.2d at 797.

As both parties concede, it has always been the stated

policy of DFACS, Ms. Reed’s employer during the relevant

time period, that the safety of foster children is of paramount

importance. (RJSMF at 4 14.) Further, DFACS employees

are expected to be continually alert to risks to the safety of

28a

Appendix B

children and to take prompt action when risks are discerned.

(/d.) While the specific facts of Tavlor established that foster

children have a liberty interest to be free from beatings that

leave them in a coma, the liberty interest announced in Zaylor

was much broader. Indeed, since Zaylor, the law in this circuit

has clearly been that foster children have the right to be free

from the infliction of unnecessary pain and the right to

physical safety. /d. at 794 (“The liberty interests in this case

are the right to be free from the infliction of unnecessary

pain, as that interest is protected by the fifth and fourteenth

amendments, and the fundamental right to physical safety as

protected by the fourteenth amendment.”). Thus, this Court

concludes that plaintiff’s right to be reasonably safe in her

foster home was violated by an ongoing sexual relationship

with a thirty-two year old man living in the home, even if

plaintiff consented to that sexual relationship. This

conclusion, however, is just one part of the Court’s analysis.

In order for defendant Reed to be liable for the sexual abuse

sustained by plaintiff, the law also requires plaintiff to prove

that defendant Reed was deliberately indifferent to this

violation of her rights. See Ray, 370 F.3d at 1083 (citing

Taylor, 818 F.2d at 797). This plaintiff has not done.

As noted, there is no evidence that defendant Reed

was aware that plaintiff was having a sexual relationship with

Montague Jackson or anyone else, for that matter. Indeed,

plaintiff concedes that she, along with Montaque, attempted

to keep the relationship a secret. Likewise, there is no

evidence that the foster parents knew that plaintiff and

Montague were having sexual relations. Again, plaintiff noted

that their sexual encounters usually occurred in the early

morning hours when the household was asleep. Accordingly,

29a

Appendix B

plaintiff has failed to prove any actual knowledge by

defendant Reed that this sexual relationship was ongoing.

Therefore, to succeed on her claim against Reed,

plaintiff must show that Reed was deliberately indifferent to

facts that would have suggested that plaintiff was having a

sexual relationship with Montaque. In applying this standard

to the present case, a review of the Ray decision is helpful.

In Ray, a ten-month old foster child had been murdered by

her foster mother a few months after being placed in the foster

home; the foster parents thereafter sued various DFCS

employees under § 1983, alleging that the latter had failed

to adequately monitor the foster home.

Although acknowledging the obvious fact that being

murdered violated one’s right to be safe, the panel noted that

to receive money damages from a particular DFCS employee

for this constitutional violation, the plaintiff had to prove

more than mere negligence or carelessness by the employee.

Ray, 370 F.3d at 1083. Instead, the plaintiff had to prove that

the particular employee was deliberately indifferent, which

means that the employee had “disregard[]ed a risk of harm

of which he [was] actually aware.” Id. In other words, the

plaintiff had to prove that the particular employee both knew

of and disregarded an excessive risk of harm to the child. /d.

In the Ray case, the plaintiff had contended that the

defendants had failed to gather information that might have

alerted them as to the unfitness of the foster parents to serve

in that capacity. The panel, however, concluded that, at most,

the plaintiff was accusing the defendants of mere negligence,

which conduct does not rise to the required level of deliberate

indifference. /d. at 1084.

30a

Appendix B

Applying Ray to this case, the plaintiff must show

that defendant Reed was aware of facts that would have put

her on notice of the risk that the plaintiff was having a sexual

relationship and that Reed deliberately ignored those facts

and chose not to investigate. As noted, defendant Reed

testified that it was her belief and understanding that the only

people living in the home were the foster parents and the

children. (Reed Dep. at 84-86). Further, the evidence

indicates that Reed saw Montaque Jackson in the foster home

on a couple of occasions during her visits. From that

observation, plaintiff argues that Reed should have then

inquired of the foster parents or the plaintiff whether

Montaque lived in the home. Had Reed inquired of the foster

mother, however, it is unlikely that Ms. Jackson would have

admitted that Montaque lived with her. The Court draws this

conclusion because it was Ms. Jackson’s rather strained

position during the deposition, at a time when all facts

suggested the contrary, that Montaque had zot lived with her.

Perhaps, had she been asked, plaintiff would have

acknowledged that Montague spent nights there. Yet, plaintiff

has acknowledged that she had tried to keep the relationship

a secret and that she had even initially lied when her

pregnancy was discovered, by naming someone other than

Montaque as the father of her baby. Nevertheless, whatever

plaintiff might have said, the pertinent inquiry, according to

Ray, is not whether the defendant failed to ask a question

that one wishes she had asked. Rather, plaintiff must show

that Reed’s observation of Montaque in the home on a couple

of occasions was sufficient to have caused her to infer that

he might live there and then to infer that, if Montaque did

indeed reside in the home, he posed a danger of sexually

3la

Appendix B

assaulting the plaintiff. The Court concludes that awareness

that a male adult is in a home on a couple of occasions does

not necessarily indicate that the male lives in the home or

that, if he does so reside, that he would likely pose a risk of

sexual molestation to a child in that home.'® In short, the

Court concludes that, by not inquiring about Montague’s

presence in the home, defendant Reed was not as thorough

as she should have been and therefore was arguably negligent.

Yet, as Ray has made clear, a showing of negligence does

not meet a plaintiff’s duty to show deliberate indifference.

Plaintiff cites Miracle v. Spooner, 978 F. Supp. 1161

(N.D. Ga. 1997) (Thrash, J.), a case in which the district

court denied the summary judgment motion of a defendant

foster care case manager who failed to conduct all but one

visit to the foster home and did not return calls from the

foster parents reporting that they were incapable of handling

the foster children placed in their care. Defendant Reed’s

conduct, however, can be distinguished from the caseworker

in Miracle, as Reed appears to have been an adequately

16. That the Court has concluded that the defendant's conduct

does not meet the rigorous standards imposed by the deliberate

ignorance test should not suggest that this Court endorses anything

less than a thorough monitoring by DFCS employees of a foster home

in which vulnerable children are placed. The Court wishes that

defendant had inquired about Montaque’s status and, whatever the

answer, had requested that DFCS officials make further formal

inquiry and do a criminal background check of him. Yet, as noted at

length supra, that defendant Reed may have been negligent ts an

inadequate showing for purposes of plaintiff proving her to be guilty

of a constitutional violation and thereby requiring her to pay damages

to plaintiff. -

32a

Appendix B

responsive foster care case manager. Defendant Reed testified

that, as she did for all children in her caseload who were

assigned to private foster care homes, she visited plaintiff at -

least one time per month. (Reed Dep. at 48.) Plaintiff does

not directly counter this assertion, except to say that Ms.

Reed did not visit “often enough” or “like she’s supposed

to.” (Tiffany Dep. at 223.) Still, plaintiff admits that Reed

came to see her when it was time for plaintiff to appear in

court and when she skipped school. (/d. at 222-23.) Taking

plaintiff's somewhat vague testimony in the best possible

light, it is undisputed that Reed made multiple visits to the

foster home. Moreover, plaintiff responded to Ms. Reed’s

inquiries about how things were going in the home by telling

Ms. Reed that, “it’s going all right.” (/d. at 252.) Plaintiff

admits that she never told Ms. Reed that something was

bothering her. (/d.) Thus, there was nothing in her interaction

with plaintiff that would have suggested to Reed that anything

was amiss in the home. To the contrary, the record indicates

that Reed made ongoing inquiries as to how plaintiff was

doing.

Once defendant Reed was informed by plaintiff's

biological mother that plaintiff was pregnant by Ms.

Jackson’s grown son, Ms. Reed contacted her supervisor,

picked up plaintiff at her school to discuss the matter with

plaintiff, and referred plaintiff's case to CPS for investigation.

(Reed Dep. at 153.) In other words, the first time that Ms.

Reed learned that plaintiff may have been the victim of abuse,

Ms. Reed acted quickly to investigate the matter.

In short, without evidence that the defendant knew

33a

Appendix B

of the sexual abuse or deliberately failed to learn of this abuse

when aware of facts that should have alerted her to its

existence, the Court cannot conclude that defendant was

deliberately indifferent to a risk to plaintiff’s safety. Ray, 370

F.3d at 1084. Without deliberate indifference, Ms. Reed

cannot be found liable. The Court therefore GRANTS

Defendant Reed’s Motion for Summary Judgment [80]."’

17. As the Court has concluded that no evidence exists to

support an inference of deliberate indifference, it does not have to

reach the question of proximate cause. Likewise, there is no need to

discuss defendant’s alternative defense of qualified immunity. The

Court concludes that the law was clearly enough established to put a

case worker on notice of her duty to report a foster child’s sexual

relationship with an adult male living in the child’s foster home.

Yet, that conclusion begs the pertinent question here, and discussed

supra, which is whether defendant Reed knew or was deliberately

indifferent to the fact that plaintiff was having such a relationship.

34a

Appendix B

CONCLUSION

Plaintiff Tiffany Williams has been ill treated by the

most important adults in her life. Her biological mother, an

-apparent drug addict, rendered such inadequate care that

Tiffany was removed to DFCS custody and a foster home.

Her biological father was a drug dealer. Tiffany’s foster

mother, Marion Jackson, appears to have done an adequate

job as a foster mother, having brought some order into

Tiffany’s chaotic life, except for one dereliction of duty. That

one dereliction, however, was enormous, as Ms. Jackson

allowed her adult son to reside in her home, in a bedroom

next to the plaintiff’s bedroom, even though one could

reasonably assume that Ms. Jackson knew that this son had

been convicted of sexual contact with a minor. This son,

Montaque, then initiated a sexual relationship with Tiffany

that robbed her of any remaining innocence that she might

have had and that resulted in her pregnancy at the age of

fourteen.

Tiffany’s disappointing encounters with adults were

not over, however, as after she had been returned to her

biological mother’s custody, her mother’s parental rights were

permanently terminated when it was learned that the mother

and her current boyfriend had smoked crack in front of

Tiffany and Tiffany’s infant daughter. As a result of her

mother’s conduct, Tiffany was again removed to another

foster home, joined by her infant daughter, Tiana. And so

the bleak cycle continues.

35a

Appendix B

One would hope that in an orderly and just world,

there would be consequences for such treatment of a minor

child, and there have been consequences. Montaque, clearly

the worst malefactor in these events, was convicted of

statutory rape with Tiffany and is currently serving a ten-

year sentence for that conduct, in addition to a life sentence

for an unrelated murder. Ms. Jackson and her husband have

been removed from DFCS’ list of foster parents and are no

longer entrusted with foster children in their home. Tiffany’s

mother, Priscilla Williams, as noted, has had her parental

rights to Tiffany permanently terminated. DFCS, and the

taxpayers who fund DFCS, now have another minor child

on their rolls to support and care for.

Plaintiff, however, seeks one final consequence.

Through a lawsuit brought by her biological mother,'*

plaintiff seeks to have her caseworker, Stacy Reed, pay the

plaintiff money because the caseworker did not figure out

that plaintiff was having clandestine sexual relations with

Montaque Jackson. As discussed at length, because plaintiff

has failed to show that this caseworker was deliberately

indifferent to a threat posed to plaintiff, plaintiff cannot

prevail in this effort to recover monetary damages from the

caseworker.

18. As noted supra at note 1, the Court is not certain under

what authority Priscilla Williams acts for her daughter, as Priscilla’s

parental rights have been terminated. Nevertheless, this question can

remain unanswered as the Court has ruled for the defendants in this

case and Priscilla Williams will therefore have no opportunity to

control any funds that might have been awarded to Tiffany as

damages in this case.

36a

Appendix B

Therefore, the Court GRANTS Marion Jackson and

John Hammonds’ Motion for Summary Judgment [59};

DENIES defendants’ Marion Jackson and John Hammonds’

Request for Oral Argument [60]; GRANTS Consent Motion

by Defendants Reed, Jenkins, and Elliot for Extension of

Time in which to File Their Motion for Summary Judgment

[66]; DENIES Defendants Marion Jackson and John

Hammonds’ Motion to Strike and Objections to the Affidavit

of Dawn Tyus [67]; GRANTS Consent Motion to Drop

Defendant Awaldi Elliot [71]; GRANTS Defendants Reed

and Jenkins’ Motion for Summary Judgment [80]; GRANTS

Plaintiff’s Motion to Drop Defendant Mary Jenkins [110]:

and DISMISSES the abandoned claim brought against

Montaque Jackson."

The Clerk is directed to close this action.

SO ORDERED, this 30 day of August, 2005.

JULIE E. CARNES

UNITED STATES DISTRICT JUDGE

19. See discussion supra at 11.

(2) Supcoane Ouran, OB,

a FILED

No. 05-1380 WAL 96 ms

OPTICS: OF (Hine Commer

In The

Supreme Court of the Gnited States

.

TIFFANY WILLIAMS,

Petitioner,

MARION JACKSON and JOHN HAMMONDS,

Respondents.

«

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

+

BRIEF IN OPPOSITION

+

EDWIN A. TATE ANNARITA M. BUSBEE

SEACREST, KARESH, SEACREST, KARESH,

TATE & BICKNESE, LLP TATE & BICKNESE, LLP

56 Perimeter Center East 56 Perimeter Center East

Suite 450 Suite 450

Atlanta, Georgia 30346 Atlanta, Georgia 30346

(770) 804-1800 . (770) 804-1800

Counsel of Record

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO (800) 225-6964 ma

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether foster parents are acting under color of state

law within the meaning of 42 U.S.C. § 1983.

il

TABLE OF CONTENTS

Page

SUF Eee BRIN F RRMUOIR ET ERPs pecansccassnascssapacticivniosnsnscaonace i

SPM SE PEAT BENE AMIN 6 sesc saan casaxcasnpantpavcotnssibvecns ili

Pe IE kcticasssncapen ha eacaiincarbasacdensncodemeet tia 1

STATEMENT OF THE CASL...............ccccccceccscccsesnsseeee 4

REASONS FOR DENYING THE PETITION .............. 6

I. THERE IS NO SPLIT IN THE CIRCUITS AS

EVERY CIRCUIT COURT DECIDING THIS

ISSUE HAS RULED CONSISTENTLY WITH

THE ELEVENTH CIRCUIT COURT OF AP-

II. THE ELEVENTH CIRCUIT'S DECISION IS

CONSISTENT WITH THIS COURT'S DECI-

SIONS IN WEST AND BRENTWOOD.............. 9

Ca a sine sccicchan winncopnccnnshanaatdadanscepabaacashithbedi nies 14

ili

TABLE OF AUTHORITIES

Page

CASES:

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

TE oi ciisiosienschlascusennstieasdedsinnamannndacnnd a, 1,8, 13

Blum v. Yaretsky, 457 U.S. 991 (1982).................. 2, 3, 8, 12

Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass’n, 531 U.S. 288 (2001)... 2; 3, 9, 11

Burton v. Wilmington Parking Auth., 365 U.S. 715

AIPA asissrssces vumadascace chy an ah boeseeibben nicha gas beraieca alee ehcaranntonecaaderk 7

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978)............... 10

Harvey v. Harvey, 949 F.2d 1127 (11th Cir. 1992) .............. 7

Howard v. Malac, 270 F. Supp. 2d 132 (D. Mass.

PP UTTET si: seuss vcasve Lavaca bine ginebibiaiandehbibeisatadeaa sek aaeaaa inline 1,8

Jackson v. Metropolitan Edison Co., 419 U.S. 345

PI skatsoiicuscesseunaek dived plc ceeagaasieeana eg eskanis 3, 9, 10, 12

K.H. through Murphy v. Morgan, 914 F.2d 846 (7th

Ae ID vusiendcGscincaqiabensssbkssndtavarieeieiclivtaniansacapanaes 1, 8, 10

Leshko v. Servis, 423 F.3d 337 (3d Cir.

NEE 5c Cs teste phan dhiatatiniin entadatiaasa 1, 2, 3, 8, 10, 11, 13

Lintz v. Skipski, 807 F. Supp. 1299 (W.D. Mich.

SR esis ets vind adn ciaconnddcgicieNasinceannsieteenancensegnane 1, 2, 28, 21

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)......... 6, 7

Marr v. Schofield, 307 F. Supp. 2d 130 (D. Me.

NE nicks biboaistaAsd aoe wtabonas 1, 2, 3,8, 10, 11, 13

McCrum v. Elkhardt Dep’t of Public Welfare, 806

Bs eRe, ARS CICA). EAE: TIED os sasccovccnicncnscrresvasicaasins 1, 11

Mentavlos v. Anderson, 249 F.3d 301 (4th Cir. 2001)....... 12

iv

TABLE OF AUTHORITIES — Continued

Page

Milburn v. Ann Arundel County Dep't of Social

-Serus., 871 F.2d 474 (4th Cir. 1989), cert. denied,

O58 US. GO A wished Gn 1, 2, 3, 8, 10, 12

Mitchell v. Forsyth, 472 U.S. 511 (1985)... eteeeees 8

P.G. v. Ramsey County, 141 F. Supp. 2d 1220 (D.

Ses ¢ SERS eens GONE Rape mer enema et oe tL, dag ne

Pfoltzer v. County of Fairfax, 775 F. Supp. 874 (E.D.

RRR eee Nan eRe umae sti torn Frnt ree tae 1, 10, 11

Rayburn v. Hogue, 241 F.3d 1341 (11th Cir.

ssi cckesisnssitauachorenichania ce ecceonneetniies 1; 2,4, 7,3, 1G, 2

Rendell-Baker v. Kohn, 457 U.S. 830 (1982).................... 9

Robert S. v. Stetson School, Inc., 256 F.3d 159 (3d

RI I ih css tcigchcad dana chs ot coactns dont idhndaceionaseaaensiaesiseneed 11

San Francisco Arts & Athletics, Inc. v. United States

Olympic Committee, 483 U.S. 522 (1987) .............0 2, 12

Walker v. Johnson, 891 F.Supp. 1040 (M.D. Pa.

WIND sicietcasdiecs veslabuutanebaesevausd scecaumucunancinamenvennale i, 3, 12; 22

Weller v. Dept of Social Servs., 901 F.2d 387 (4th

ROY NN E snctas chin iesud capavabea edie iceweinegeecraemeaTs 1, 8,10

West v. Atkins, 487 U.S. 42 (1988).............. cee cece eee 2, 9, 10

STATUTES AND RULES:

ME Se i 8 Oe oki chistes ncaa cv baanencnaaoaiaee 3, 5, 6, 8

re eT, BG avis ccisitecesstnserceivndxcheencepuans tania venniaekeas 6

BRIEF IN OPPOSITION

Respondents Marion Jackson and John Hammonds

respectfully request that the Court deny the petition for

writ of certiorari seeking review of the decision of the

United States Court of Appeals for the Eleventh Circuit in

this case.

ry

v

INTRODUCTION

Every circuit in the country that has decided this

issue has found that foster parents are not state actors.

See Leshko v. Servis, 423 F.3d 337, 347 (3d Cir. 2005);

Weller v. Dep’t of Social Servs., 901 F.2d 387, 392 (4th Cir.

1990); Milburn v. Ann Arundel County Dept of Social

Servs., 871 F.2d 474, 479 (4th Cir. 1989), cert. denied, 493

U.S. 850 (1989); K.H. through Murphy v. Morgan, 914 F.2d

846, 852 (7th Cir. 1990); Rayburn v. Hogue, 241 F.3d 1341

(11th Cir. 2001); Marr v. Schofield, 307 F. Supp. 2d 130,

134 (D. Me. 2004); P.G. v. Ramsey County, 141 F. Supp. 2d

1220, 1226 (D. Minn. 2001); Walker v. Johnson, 891

F. Supp. 1040, 1050 (M.D. Pa. 1995); McCrum v. Elkhardt

Dep't of Public Welfare, 806 F. Supp. 203, 208 (N.D. Ind.

1992); Lintz v. Skipski, 807 F. Supp. 1299, 1307 (W.D.

Mich. 1992); Pfoltzer v. County of Fairfax, 775 F. Supp.

874, 884 (E.D. Va. 1991); compare, Howard v. Malac, 270

F. Supp. 2d 132, 144 (D. Mass. 2003) (case only stated a

claim based on allegation that state officials knew a foster

parent was abusing a child and they colluded to cover up

the abuse). Petitioner cannot and has not shown a split in

the circuits, and has therefore failed to meet her burden.

As a result, this case does not warrant further review.

2

The decision below is consistent with this Court’s

rulings in West v. Atkins, 487 U.S. 42 (1988) and Brent-

wood Academy v. Tennessee Secondary Sch. Athletic Ass’n,

531 U.S. 288 (2001). In West, this Court found that a

contract physician was a state actor because he was

providing a mandatory state function — medical care to

inmates. “[P]roviding hands-on care [to children] has

never been, and is not now, an exclusively governmental

function.” See Leshko, 423 F.3d at 347; Milburn, 871 F.2d

at 479; Rayburn, 241 F.3d at 1347; Marr, 307 F. Supp. 2d

at 134; Lintz, 807 F. Supp. at 1306. In the eighteen years

since West was decided no court has concluded that foster

parents can be considered state actors based on its prece-

dent. To the contrary, every court to consider West in

analyzing whether foster parents are state actors has

reached the same conclusion — that foster parents are not

analogous to the physicians in West because they do not

perform an exclusive governmental function in an institu-

tional setting. See, e.g., Leshko, 423 F.3d at 347; Marr, 307

F. Supp. 2d at 135, n.2.

In Brentwood Academy, 531 U.S. 288 (2001), this

Court found state action based upon “pervasive entwine-

ment to the point of largely overlapping identity” between

an nominally private athletic association and the State.

There is no entwinement, pervasive or otherwise, between

foster parents and the State. It has been well-established

by this Court, as well as the lower courts, that the mere

fact that a state provides funding, licensing, or regulation

is insufficient to establish state action based on “pervasive

entwinement” or any other theory of state action. Ameri-

can Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999);

San Francisco Arts & Athletics, Inc. v. United States Olym-

pic Comm., 483 U.S. 522, 543-4 (1987); Blum v. Yaretsky,

3

457 U.S. 991, 1004 (1982); Jackson v. Metropolitan Edison

Co., 419 U.S. 345, 350-3 (1974); see also, Milburn, 871 F.2d

at 477 (licensing and supervision of foster homes by state

insufficient to render foster parents state actors); Walker,

891 F. Supp. at 1051 (“while it is true that foster parents

are required to be licensed and are subject to state controls

and receive state monies for the care of the children in

their charge, these factors alone do not render them state

‘ actors”). The Circuit Courts of Appeals are in complete

agreement that the mere extension of tort immunity to

foster parents does not create a sufficient relationship

with the State to convert foster parents into state actors.

Leshko, 423 F.3d at 342-3; Rayburn, 241 F.3d at 1348. The

critical issue is that the day-to-day decisions regarding

supervision of foster children and other aspects of their

care are handled entirely by foster parents within their

private homes, therefore, it cannot be said that such

decisions “may be fairly treated as [those] of the state

itself.” See Brentwood, 531 U.S. at 295. Accordingly, no

court has concluded that foster parents are state actors

based upon pervasive entwinement. See, e.g., Leshko, 423

F.3d at 340-1; Marr, 307 F. Supp. 2d at 1134; PG., 141

F. Supp. 2d at 1226.

42 U.S.C. § 1983 only provides a remedy for violations

of federal rights by a person acting under color of state

law. 42 U.S.C. § 1983. Section 1983 simply cannot provide

a remedy for allegedly negligent conduct by private indi-

viduals. Petitioner has failed to meet her burden to pro-

vide a compelling reason why this Court should accept its

petition for certiorari, as the Eleventh Circuit’s decision is

consistent with every circuit court of appeals and this

Court’s decisions in West and Brentwood.

4

4

STATEMENT OF THE CASE

In 1998, Marion Jackson and John Hammonds be-

came foster parents and began caring for foster children

such as Ms. Williams in their private home. As foster

parents, they did not receive compensation for their

services, although they did receive approximately $350.00

per month for the expenses of food, clothes, and board for

the foster children. All day-to-day decisions regarding care

and oversight of foster children in their private home were

made solely by Jackson and Hammonds.

Their adult son, Montaque Jackson, did not live in

their home when they were foster parents. He shared an

apartment locally with his girlfriend, although he did visit

his parents’ home. Montaque did not have any prior

conviction for sexual abuse as alleged by Petitioner, but

was convicted of third degree menacing, a Class B misde-

meanor, in Kings County, New York on January 28, 2000.

Ms. Jackson had no idea that her son may have engaged in

drug use until after his arrest for this matter and unre-

lated charges. Mr. Hammonds merely suspected that this

was a possibility on two isolated occasions when he felt his

son was not acting “normally.”

Ms. Jackson emphasized that she would not tolerate

inappropriate behavior from her foster children, and

actually contacted the Georgia Division of Family and

Children Services (DFACS) about her suspicion that

Tiffany may have engaged in inappropriate behavior with

her grandson on an occasion when he visited the home. A

DFACS investigation concluded that the allegations were

unsubstantiated.

However, during the time Ms. Williams was a foster

child in the Jackson/‘Hammonds home, she secretly en-

gaged in a physical relationship with Montaque Jackson

when he visited the residence. These encounters took place

during late night hours when Ms. Jackson and Mr.

Hammonds were asleep.’ Ms. Williams never told Ms.

Jackson, Mr. Hammonds, or her caseworker, Stacey Reed,

about her sexual relationship with Montaque Jackson;

they had no knowledge whatsoever of the sexual contact

between Petitioner Williams and Montaque Jackson until

Ms. Williams informed them she had become pregnant.

Petitioner Williams filed this action in the United

States District Court for the Northern District of Georgia

on March 25, 2004, seeking recovery pursuant to 42 U.S.C.

§ 1983 for an alleged deprivation of her Fourteenth

Amendment substantive due process rights. Ms. Jackson

and Mr. Hammonds filed their Motion for Summary

Judgment on December 12, 2004, asserting that appellant

could not prevail on her 42 U.S.C. § 1983 claims based

upon the binding Eleventh Circuit precedent of Rayburn v.

Hogue, 241 F.3d 1341 (11th Cir. 2001), a factually analo-

gous case holding that foster parents are not state actors

as a matter of law. On August 30, 2005, the district court

granted Respondents’ motion on the basis that Rayburn

provided binding authority establishing that foster par-

ents are not state actors as a matter of law, therefore they

cannot be subject to liability under § 1983. The Motion for

Summary Judgment filed by social worker Stacey Reed

was granted based upon Ms. Williams’ failure to provide

any evidence of deliberate indifference by the social

’ After Ms. Williams was returned to her mother’s custody, she

returned to the home of Ms. Jackson and Mr. Hammonds in June 2001

and again engaged in sexual relations with Montaque Jackson. It is

unclear whether she became pregnant during the time she was in foster

care or after she was returned to her mother’s custody.

6

worker, and the district court dismissed Petitioner’s claims

against Montaque Jackson for failure to prosecute. Peti-

- tioner only appealed the district court’s grant of summary

judgment to respondents Jackson and Hammonds, and the

dismissal of Montaque Jackson for failure to prosecute.

The Eleventh Circuit affirmed the district court’s ruling

without an opinion on January 27, 2006.

ry

_—

REASONS FOR DENYING THE PETITION

Petitioner has failed to show that the decisions of the

lower courts are in conflict with any decision of this Court

or any United States Court of Appeals and the legal issue

of whether foster parents are state‘ actors is well-

established, therefore, she has failed to carry the burden of

demonstrating compelling reasons for the petition to be

granted. Sup. Ct. R. 10.

I. THERE IS NO SPLIT IN THE CIRCUITS AS

EVERY CIRCUIT COURT DECIDING THIS IS-

SUE HAS RULED CONSISTENTLY WITH THE

ELEVENTH CIRCUIT COURT OF APPEALS.

A party seeking redress pursuant to 42 U.S.C. § 1983

must allege a deprivation of a right secured by the Consti-

tution or laws of the United States by a person acting

under color of state law. 42 U.S.C. § 1983. The primary

issue in deciding whether a private party’s actions consti-

tute “state action” is whether the party’s “conduct alleg-

edly causing the deprivation of a federal right be fairly

attributable to the State.” Lugar, 457 U.S. at 937.

7

It is only under rare circumstances that a private

entity may be considered a “state actor” for purposes of

imposing liability pursuant to 42 U.S.C. § 1983. Burton v.

Wilmington Parking Auth., 365 U.S. 715, 722 (1961);

Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).

“Careful adherence to the ‘state action’ requirement

preserves an area of individual freedom by limiting the

reach of federal law” and avoids the imposition of respon-

sibility on a State for conduct it could not control. Lugar,

457 U.S. at 936-7.

Prior to ruling on the present case, the Eleventh

Circuit had previously held in Rayburn v. Hogue, 241 F.3d

1341 (11th Cir. 2001), that foster parents were not stete

actors. The Eleventh Circuit concluded under the state

compulsion and public function tests that there was no

evidence that “the State encouraged the Hogues’ actions,

nor is foster care traditionally an exclusive |S]tate pre-

rogative.” Id. at 1347. The Rayburn court then evaluated

whether “the State has so ‘ar insinuated itself into a

position of interdependence with the [private parties] that

it was a joint participant in the enterprise,” noting that to

find state action under this standard, “the governmental

body and private party must be intertwined in a ‘symbiotic

relationship’” related to the specific conduct of which the

plaintiff complains.’ Jd. at 1348. In accordance with this

Court’s decisions, the Eleventh Circuit concluded that mere

government regulation of foster care was not sufficient to

make foster parents state actors. Jd. (citing American Mfrs.

* Although decided four days before this Court’s decision in

Brentwood Academy, the Eleventh Circuit in Rayburn clearly used a

synonymous term for “entwinement” in evaluating whether private

conduct constituted state action.