Milburn ex rel. Milburn v. Anne Arundel County Department of Social Services
Opinion of the Court
Charles Milburn appeals the decision of the district court dismissing his complaint against both the public and private defendants. As the complaint does not support a cause of action, we affirm.
Milburn was voluntarily placed by his parents in a foster home through the state placement system at the age of 23 months. The Maryland Department of Social Services placed him in the licensed foster home of Karl and Wendy Tucker, where he remained from June 10, 1971 until August of 1973.
In November of 1972, plaintiff was treated for a deep laceration over the left eye. In January of 1973, an incident occurred in the foster home in which the plaintiffs hands were severely burned. The caseworker, Judy Finn (now Judy F. Plymyer), learned of the injury during a visit to the home the following day. Miss Finn allowed Mrs. Tucker to treat the burns at home. When the child became in need of further medical treatment for those burns several weeks thereafter, he was taken to Baltimore. City Hospital for surgery on his hands and wrists resulting in permanent disfigurement. The hospital employees who treated Milburn suggested that the injuries were the result of child abuse, and it is now alleged Milburn’s hands were immersed in hot water by the Tuckers as punishment. However, upon recommendation of defendants Finn, Carpenter and Elizabeth Tyler of DSS, Milburn was returned to the Tucker home. Subsequently, in May 1973, Milburn suffered a broken tibia. In August of 1973, Milburn was placed in a different foster home.
A complaint was filed on August 5, 1983 by Charles Milburn, Sr. as the father and next friend of the plaintiff. The complaint under 42 U.S.C. § 1983 alleges that the defendants violated plaintiff’s rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments based on continued and negligent care and placement in the home of the Tuckers. The complaint further alleges violations of state and other federal law. All of the defendants filed motions to dismiss.
A hearing was held before a magistrate on the defendants’ motions. The magistrate, in a thorough memorandum opinion, recommended that the motions of the defendants be granted. Plaintiff filed exceptions to the magistrate’s report, and the district court, after a review of those claims to which exception was taken, adopted the magistrate’s recommendation of dismissal, albeit for somewhat different reasons on some issues. Milburn appeals.
Milburn’s principal contention is his claim filed under 42 U.S.C. § 1983.
The facts giving rise to the cause of action against the various defendants are that Tucker and wife badly abused Milburn as a child while Milburn was in their care as foster parents. He alleges that the Department of Social Services and Anne Arundel County and the employees of DSS displayed gross negligence and deliberate
After this case was argued before us, the Court decided Deshaney v. Winnebago County Department of Social Services, — U.S. -, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), which is dispositive of most of the issues in this case. Other than the fact that it was one of the natural parents in Deshaney who administered the physical child abuse, as opposed to the foster parents here, the essential facts of Deshaney and this case are indistinguishable.
In Deshaney, the father had severely beaten the child. The child and his mother brought suit under 42 U.S.C. § 1983 against Winnebago County, Wisconsin, its Department of Social Services, and various individual employees of the department. The complaint alleged a loss of liberty under the Fourteenth Amendment by their failure “... to intervene to protect ... [the child] against a risk of violence at his father’s hands, of which they knew or should have known.” — U.S. at -, 109 S.Ct. at 1002. So, the cause of action is essentially the same as pleaded here against all of the defendants except the Tuckers, the foster parents.
The Court described the cause of action as “... failing to provide ... [the child] with adequate protection against his father's violence,” — U.S. at -, 109 S.Ct. at 1003, again essentially the same claim which is asserted here.
Despite the fact that the defendants in Deshaney were subdivisions of the State or employees thereof, the Court held that no cause of action was stated against the defendants under § 1983. “As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” — U.S. at -, 109 S.Ct. at 1004. The Court reasoned that when the State, by the affirmative exercise of its power, so restrains an individual’s liberty that it renders him unable to care for himself and at the same time fails to provide for his basic human needs, food, clothing, shelter, medicinal care and reasonable safety, the State transgresses the substantive limits set by the Eighth Amendment and the Due Process Clause. But the Court reasoned that that analysis simply had no application in the case because the injuries suffered by the child “... did not occur while he was in the State’s custody, but while he was in the custody of his natural father, who was in no sense a state actor.” [Footnote omitted] The Court recited that while the State may have been aware of the dangers faced by the child, it played no part in their creation nor did it do anything to render him any more vulnerable to them. — U.S. at -, 109 S.Ct. at 1006. And, in note 9, at p. -, at p. 1006 of 109 S.Ct., omitted from the last quotation above, the Court stated that had the State by the affirmative exercise of its power removed the child from free society and placed him in a foster home operated by its agents, a different situation might obtain, but the Court went on to say it expressed no opinion on the validity of that analogy, for it was not before the Court.
Applying Deshaney to the facts of this case, we are of opinion that a cause of action is not stated against the hospital and county and municipal defendants and their employees. The most that any of them might have been charged with was a failure to protect the plaintiff against private violence. The State of Maryland by the affirmative exercise of its power had not restrained the plaintiff’s liberty; he was voluntarily placed in the foster home by his natural parents. And the injuries to the plaintiff did not occur while he was in the custody of the State of Maryland, rather while he was in the custody of his foster parents, who were not state actors, as we will demonstrate below.
Whether the Tuckers are state actors depends on the facts of the case, as it must in each instance, see Burton, infra, p.
Following Burton, the Court decided Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). In that case, discharged employees sought to maintain a § 1983 cause of action against a regulated utility on the ground that the utility was a state actor. The Court held that the utility was not a state actor and reasoned, on p. 350, that the “... mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” [Footnote omitted] The Court stated that “... the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” 419 U.S. at 351, 95 S.Ct. at 453. The Court further reasoned that the case might have been different if it were dealing with the exercise by the utility of some power traditionally associated with- sovereignty, 419 U.S. at 353, 95 S.Ct. at 454-55, and the fact that regulation of the utility was extensive and detailed did not by itself convert its action into that of the State. 419 U.S. at 350, 95 S.Ct. at 453.
The Court again considered the question in three cases in 1982, Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); and Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).
Kohn was a case involving a private school which specialized in dealing with students who had experienced difficulty completing public high schools. Many of the students had drug, alcohol or behavioral problems, and the school was extensively regulated and funded by the State of Massachusetts, although it retained its private character, and its directors were not public officials or chosen by the State. The school discharged some of its teachers and in the ensuing suit, on account of that discharge, the teachers claimed under
Blum involved nursing homes which transferred or discharged a class of medicaid patients without notice or an opportunity for a hearing, and the question was whether the nursing homes, acting in cooperation with the State of New York, which reimbursed them for the reasonable cost of the health care of the patients involved, were responsible for such discharges or transfers under § 1983 as the acts of the State. The nursing homes, in addition to receiving apparently all of their income involved there from the patients also involved there, were extensively regulated. The Court held that the conduct of the nursing homes was not state action for the purposes of § 1983. The Court set out a three-step analysis necessary to resolve the case. First, with respect to the extensive regulation, the Court held that regulation by itself was not enough, but that there had to be a sufficiently close nexus between the State and the challenged action so that the action of the actor might be fairly treated as that of the State. The Court continued that constitutional standards are invoked “... only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” 457 U.S. at 1004, 102 S.Ct. at 2786. (Italics in original) Second, while the facts will vary from case to case, a State normally will not be responsible for a private decision unless it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice in law must be deemed that of the State. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives. 457 U.S. 1004-05, 102 S.Ct. at 2785-86. “Third, the required nexus may be present if the private entity has exercised powers that are ‘traditionally the exclusive prerogative of the State’ ”, quoting from Jackson, 419 U.S. at 353, 95 S.Ct. at 455. 457 U.S. at 1005, 102 S.Ct. at 2786. The Court applied the facts of that case and found state action not present. The Court found that the decisions to transfer or discharge were that of the physicians involved, not the State, and thus were the decisions of private parties. It further found that the decisions involved were not those traditionally and exclusively made by the sovereign.
Subsequent to these cases, we decided Arlosoroff v. National Collegiate Athletic Association, 746 F.2d 1019 (4th Cir. 1984), which was an attempt by a college tennis player to enjoin as state action, under § 1983, action taken by the NCAA with respect to his eligibility. We decided that the acts of the NCAA were not state action and construed Jackson, Kohn, Blum, and Lugar mentioned above. We stated, at p. 1022, “It is not enough that an institution is highly regulated and subsidized by a state. If the state in its regulatory or subsidizing function does not order or cause the action complained of, and the function is not one traditionally reserved to the state, there is no state action.” So far as Lugar was concerned, we found that the clerk of the court and the sheriff involved in that case in the issuance of a writ of attachment were active participants with the creditors.
This is a case, as was Deshaney, which arouses considerable and justifiable sympathy for the plaintiff, assuming he could prove his cause of action. But, as mentioned in Deshaney, the circumstances of the injury do not make the Tuckers state actors. Neither do they make those who might have intervened liable under § 1983. The Court in Deshaney noted that a State might provide for relief in just such cases, and, in that connection, we note that the plaintiff here has filed his parallel action in the state courts of Maryland, upon the merits of which we, of course, express no opinion.
The judgment of the district court is accordingly
AFFIRMED.
. The plaintiff also contends that the district court erred in holding that he failed to state a claim under 42 U.S.C. § 608(f) which is a part of the AFDC program. The district court held that § 608(f) did not apply because there was no judicial determination which removed the child from the home of its parents. We agree with the district court. We are also of opinion the district court did not abuse its discretion in declining to permit an amendment to the complaint some two years following the issuance of the magistrate’s report.
. The plaintiff depends on Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977), which declined to reconsider the earlier decision of Perez v. Sugarman, 499 F.2d 761 (2d Cir. 1974). We
Reference
- Full Case Name
- Charles MILBURN, Jr., a minor, by Charles B. MILBURN, his father and next friend v. ANNE ARUNDEL COUNTY DEPARTMENT OF SOCIAL SERVICES Esther Carpenter, individually, and as the Former Director of Anne Arundel County Department of Social Services Elizabeth Tyler, individually, and as Supervisor, Anne Arundel County Department of Social Services Sergio Alvarez, M.D. North Arundel Hospital, a Maryland Corporation Hazel Gent Wendy L. Tucker Karl T. Tucker Baltimore City Hospitals Anne Arundel County, Maryland, a Municipal Corporation Judith F. Plymyer, individually, and as Caseworker, Anne Arundel County Department of Social Services
- Cited By
- 3 cases
- Status
- Published