Opinion
CIVIL ACTION No. 00-2232-CM
April 26, 2002
MEMORANDUM AND ORDER
Plaintiffs allege in this action that defendants Mary Keady and Wayne Sramek violated 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth Amendment. This matter is before the court on Plaintiff's Motion for Summary Judgment (Doc. 62), Defendants' Motion for Summary Judgment (Doc. 87), and Defendants' Motion to Deem Facts Admitted (Doc. 90).
As a preliminary matter, the court considers Defendants' Motion to Deem Facts Admitted. Defendants argue that plaintiffs have not properly refuted defendants' statement of facts and that plaintiffs have not properly served defendants with their reply and supporting documents. Upon review of the briefs and materials submitted by the parties, the court finds that plaintiffs' refutation of defendants' statement of facts and plaintiffs' service of supporting documents was sufficient. Defendants' Motion to Deem Facts Admitted is denied.
1. Facts
Defendant Mary Keady was a social worker employed by the State of Kansas Department of Social and Rehabilitation Services (SRS). Defendant Wayne Sramek was a social work supervisor employed by SRS. Defendant Sramek was defendant Keady's supervisor. The decedent Robert Booth Roe is the biological child of Terri and Booth Tuthill.
Prior to the decedent's birth, Mrs. Tuthill had a history of mental illness and was committed to outpatient treatment under the supervision of the Community Mental Health Center of Crawford County, Kansas (CMHC). Mr. and Mrs. Tuthill resided at Oak Place, the residential housing associated with CMHC. Both Mr. and Mrs. Tuthill were Native American.
On June 11, 1992, when Mrs. Tuthill was pregnant with the decedent, Rick Pfieffer, the director of CMHC, sent a letter to the Pittsburg, Kansas, SRS office requesting that SRS perform a home study of the Tuthills. Then, on June 18, 1992, the Pittsburg, Kansas, SRS office received a child in need of care report from Sister Marianette at the Mount Carmel Medical Center (MCMC). The report stated that Mrs. Tuthill was to have a baby in August, that the MCMC staff was very concerned, and that the staff felt the child should be placed in custody at birth. The report also stated that Mr. Tuthill was using drugs and would get Mrs. Tuthill to use drugs. That same day, defendant Keady spoke with Sister Marianette and visited the Tuthills' home. Within the next six weeks, defendant Keady made at least three more visits to the home of Mrs. Tuthill, but Mrs. Tuthill either was not at home or did not answer the door. SRS never completed a home study.
The decedent was born on August 6, 1992, at MCMC. The next day, MCMC's maternal infants team, which included Mr. Pfieffer and defendant Keady, met to discuss their concerns regarding Mr. and Mrs. Tuthill's ability to provide for their infant son and the availability of community services to assist them in the care of their child. During this meeting, defendant Keady stated that, due to the Native American Act, SRS was required to contact the Bureau of Indian Affairs (BIA) and request it to provide child welfare assessment and other services before any action could be taken by SRS.
After the meeting and on the same day, defendant Keady contacted BIA and requested services for the Tuthills. Later that day, two representatives of the BIA, Sally Whitecrow-Ollis, Director of Social Services for the Quapaw Tribe, and Lisa Luther, an employee of the Seneca Cayuga Tribe, came to MCMC and interviewed Mr. and Mrs. Tuthill.
On August 7, 1992, there was a second meeting regarding the Tuthills, which Ms. Whitecrow-Ollis and Ms. Luther attended. Defendant Keady was not present at this second meeting. Ms. Luther recalled in deposition testimony that Ms. Whitecrow-Ollis stated that the tribe had jurisdiction over the child because he was Indian. Ms. Whitecrow-Ollis however, did not recall discussing jurisdiction. In any event, the representatives agreed that the Seneca Cayuga Tribe was to provide services. Those services were to consist of going to the home and trying to teach Mrs. Tuthill how to take care of the child.
After the decedent was discharged from the hospital, Jeanne Brown, a case manager for CMHC, made daily visits to the Tuthill home. Ms. Brown testified that she saw the baby a majority of the time she was there and that she never saw any bruises on the baby which caused her to think the baby was being mistreated. In addition, social workers from the Seneca Cayuga Tribe made visits to the Tuthill home. For example, Ms. Luther made three to five visits to the Tuthill home in August 1992.
On September 25, 1992, the Pittsburg SRS office received a report of suspected child abuse or neglect regarding the decedent. The report, a Form CY2870 intake report of suspected child abuse or neglect, was completed by Ms. Brown and stated that Mrs. Tuthill told Ms. Brown that Mr. Tuthill was shaking the child and that she was afraid that the father was shaking the child too hard and would hurt the child. Defendant Sramek reviewed the report. Defendant Sramek testified that, based upon the information that he had at the time, he determined that the child was not in imminent risk of harm and, in essence, screened the case out. Defendant Sramek asked defendant Keady to check on the report and to coordinate with BIA and convey the information contained in the report to the Indian social services agency whom he knew was already working with the Tuthill family.
Both defendant Keady and Ms. Brown's staff notes indicate that on September 30, 1992, the two spoke. Defendant Keady's staff notes further state that Ms. Brown told defendant Keady that Ms. Brown thought the baby was all right; that the story was possibly in Mrs. Tuthill's head; and that Mr. Tuthill seemed to be gentle and good with the baby. Ms. Brown denies ever telling defendant Keady that she (Ms. Brown) did not believe what Mrs. Tuthill had said about Mr. Tuthill shaking the baby. Neither defendant Keady nor defendant Sramek further investigated the September 25 matter.
On October 7, 1992, Ms. Brown again contacted Pittsburg SRS and reported that Mrs. Tuthill had left her baby alone in the apartment and that she refused to carry the baby monitor. Ms. Brown indicated that she had called Mr. Tuthill to come home and care for the baby. Defendant Sramek testified that, in response to his questioning, Ms. Brown indicated that she felt Mr. Tuthill was a good caretaker and that the child was safe with him. Defendant Sramek further testified that, based on his conversation with Ms. Brown, he did not open a child protective services case or refer the case for investigation. Ms. Brown denies that she ever told defendant Sramek that she thought the child was safe with his father.
On October 8, 1992, Mrs. Tuthill was committed to Osawatomie State Hospital (OSH). The next day, Ms. Brown advised SRS that Mrs. Tuthill had been sent to OSH for a couple of weeks and that, in the meantime, Mr. Tuthill and a babysitter were providing care for the infant child.
On October 12, 1992, SRS received a report of suspected child abuse from Kansas University Medical Center (KUMC). The report indicated that the decedent had been life-flighted to KUMC early in the morning on October 12 in respiratory distress. The report further indicated that the child had head injuries, seizures, retinal hemorrhaging, bleeding in the brain, and possible shaken baby syndrome. As a result of the abuse, the decedent was placed in the temporary custody of SRS, and Mr. Tuthill was subsequently convicted of attempted child abuse.
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is material if, under the applicable substantive law, it is essential to the proper disposition of the claim. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is genuine if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-7 1. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant. Adler, 144 F.3d at 671. To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein. Id.
Finally, the court notes that summary judgment is not a disfavored procedural shortcut ; rather, it is an important procedure designed to secure the just, speedy and inexpensive determination of every action. Celotex, 477 U.S. at 327 (quoting Fed. R Civ. P. 1).
III. Discussion
Plaintiffs allege claims under 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth Amendment. Specifically, § 1981 provides:
(1) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(2) Make and enforce contracts defined
For purposes of this section, the term make and enforce contracts includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(3) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
The Fourteenth Amendment to the Constitution of the United States provides in pertinent part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In general, plaintiffs claim that defendants Sramek and Keady discriminated against the decedent on the basis of his race, which was Indian/Native American. Specifically, plaintiffs contend that defendants failed to offer or provide family services to the Tuthill family and that defendants failed to provide child protective services after the September 25, 1992, and October 7, 1992, reports of suspected abuse or neglect. Defendants argue that they are entitled to qualified immunity.
Qualified immunity protects state actors from liability when acting within the scope of their employment. [G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985); Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988). The doctrine of qualified immunity serves the goals of protecting public officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Butz v. Economou, 438 U.S. 478, 506 (1978).
The Supreme Court has established a two-part approach to determine if qualified immunity applies. [T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998), aff'd, 254 F.3d 941 (2001) (citing County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998)). Thus, the court follows this two-step test to analyze the issue of qualified immunity raised by defendants here. Butler v. City of Prairie Vill. Kan., 172 F.3d 736, 745 (10th Cir. 1999).
A. Equal Protection Claim
Plaintiffs allege that the decedent's equal protection rights were violated. Although the state has no general constitutional duty to protect its citizens from violence, the state violates the equal protection clause if it selectively denies its protective services on the basis of race or other protected status. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 n. 3 (1989). To establish whether defendants are entitled to qualified immunity, the court must first determine whether plaintiffs have alleged a deprivation of a constitutional right at all.
In general,§ 1981 and § 1983 equal protection claims that involve employment decisions are analyzed under the standards applicable claims brought under Title VII, 42 U.S.C. § 2000e et seq. In those cases, courts employ the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Title VII standards are, however, inappropriate here because the challenged actions do not involve employment decisions or workplace conditions. Thus, the court determines whether material issues of fact exist regarding defendants' alleged intent to discriminate against the decedent.
The Equal Protection Clause . . . is essentially a direction that all persons similarly situated should be treated alike. Campbell v. Buckley, 203 F.3d 738, 747 (10th Cir.), cert. denied, 531 U.S. 523 (2000) (citing City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). In order to assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were treated differently from others who were similarly situated. to them. Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998). Moreover, a plaintiff must demonstrate purposeful discrimination to show an equal protection violation. Lewis v. City of Fort Collins, 903 F.2d 752, 755 n. 1 (10th Cir. 1990). Discriminatory purpose implies that a decisionmaker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
Plaintiffs contend that they need not show disparate treatment of other similarly situated individuals because they are alleging discriminatory application of the laws and policies of the State of Kansas. For support, plaintiffs cite a case from the Second Circuit, Pyke v. Cuomo, 258 F.3d 107 (2nd Cir. 2001). Pyke involved a claim by Native Americans who alleged that New York officials denied them equal protection by failing to provide police protection on a reservation. The Second Circuit held that a plaintiff who
alleges an express racial classification, or alleges that a facially neutral law or policy has been applied in an intentionally discriminatory race-based manner, or that a facially neutral statute or policy with an adverse effect was motivated by discriminatory animus, is not obligated to show a better treated, similarly situated group of individuals of a different race in order to establish a claim of denial of equal protection.Id. at 110. In applying that rule, the court concluded that the plaintiffs would not be required to establish disparate treatment of otherwise similarly situated non-Native American individuals so long as [the plaintiffs] allege and establish that the defendants discriminatorily refused to provide police protection because the plaintiffs are Native American. Id. at 109. However, in so holding, the court relied on the following rationale:
It would be difficult, if not impossible, to find other individuals whose situation is similar to Native Americans living on a reservation and exercising a substantial measure of self-government independent of New York State. Plaintiffs would probably be incapable of showing similarly situated individuals who were treated differently.Id.
This court concludes that Pyke is not applicable in these circumstances. Foremost, plaintiffs in this case have not established that defendants discriminatorily refused to provide family or protective services. Plaintiffs have presented no evidence that the defendants refused to provide protective services after the September 25 and October 7 reports because of an intent to discriminate. Rather, the decision not to open a child protective service case apparently was based on defendant Sramek's assessment that the decedent was not in imminent risk of harm. In hindsight, defendant Sramek's decision was, at best, negligent. But the record lacks any evidence of discriminatory intent.
Plaintiffs contend defendant Sramek discriminatory intent is evidenced statement made by defendant Keady in an interview with field representatives of the Kansas Human Rights Commission. During that interview, defendant Keady allegedly said:
Well, Wayne seemed to have it in for minorities. Blacks in particular I would say. We had this meeting as we had these job positions come open and he stated at that one meeting we got an Indian applying so we have to have a minority sitting in on the interview.
I had a case where we had this Indian baby. I wanted to talk to Vinnie [another SRS caseworker] about it and because I want to get a hold of the address and telephone number for the bureau of indian affairs down there in Oklahoma. Now that's one thing that Vinnie is up on. She's up on her indian stuff. My daughter-in-law in an indian. Well the thing that got me about this is that I know Vinnie keeps up on this stuff and I went to Wayne (Sramek) and told him about I was going to go to Vinnie to ask about this indian baby and he said to leave Vinnie alone that he would make a call and get the address and telephone number himself. Well you know, like I said, it's something I don't understand because Vinnie keeps up on this and if he didn't know she would have probably been the easiest person to have gotten the information.
I don't know he just said different things that you didn't quite know how to take.
As evidentiary support for this statement, plaintiffs attach one typed page, marked page 3, which appears to be an excerpt from an interview, wherein an interviewer, designated AFR, is asking an interviewee, designated AMK, various questions. The attachment does not indicate the date of the interview or the purpose for which the interview was conducted. More importantly, the attachment does not contain any signature from the purported interviewee, defendant Keady, attesting to the fact that she indeed made these statements. Such evidence does not comport with the Federal Rules of Civil Procedure, which require a party moving for summary judgment to set forth supporting facts in affidavits, depositions, answers to interrogatories, and responses to requests for admissions. Fed.R.Civ.P. 56(c), (e). Facts may also be identified in specific exhibits incorporated in affidavits or depositions. Adler, 144 F.3d at 671. Accordingly, the court will not consider this evidence.
However, even if the court were to consider this purported statement made by defendant Keady, the court finds that the statement does not evidence discriminatory intent. The court cannot infer discriminatory motive simply because defendant Sramek declined to call Vinnie, another SRS caseworker, to get the address and telephone number of the BIA in Oklahoma. The court's conclusion is bolstered by the fact that, in answering the very next question, defendant Keady stated that she never heard defendant Sramek engage in any racial or ethnic slurs regarding Indians and blacks and that she never heard defendant Sramek make derogatory remarks about Native Americans. The court concludes that such evidence would be insufficient to raise an inference of discriminatory intent.
Moreover, there is no evidence in the record that defendants refused to offer or provide family services to the decedent because of an intent to discriminate. Instead, the evidence indicates that defendants thought, perhaps mistakenly, that the BIA, rather than SRS, was the proper agency to provide family services and, in fact, social workers from the Seneca Cayuga Tribe provided family services such as visits to the Tuthill home. In addition, Mr. Tuthill testified that, at the August 7, 1992, meeting at MCMC, he agreed to allow representatives from BIA to assist in caring for his son, that he did not believe a white person could understand his culture or assist in raising his child as an Indian child, and that he never requested or desired assistance from anyone at SRS. With this background in mind, the court concludes that plaintiffs have failed to establish that defendants discriminatorily refused to offer or provide family services. Defendants': failure to provide family services may be considered, at most, negligent, but there is no evidence from which this court can infer that defendants acted with racial animus.
Thus, Pyke's relaxed evidentiary standard does not apply to the case at hand because plaintiffs have failed to establish that defendants discriminatorily refused to provide protective or family services. Additionally, the rationale set forth by the Second Circuit in Pyke is not applicable here. In Pyke, the court expressed concern over the potential impossibility of plaintiffs finding other similarly situated individuals. Pyke, 258 F.3d at 109. Plaintiffs in the instant case are not faced with that challenge. In other words, the decedent's circumstances are not so unique as to render impossible a search for similarly situated individuals of a different race.
Even if Pyke did apply to the facts of this case, the court questions whether it would follow Pyke in light of the clear rule set forth time and again by the Tenth Circuit requiring that plaintiffs show they were treated differently from others who were similarly situated. Pursuant to the law in this circuit, the court holds that, to establish an equal protection claim, plaintiffs in this case must allege and show that the decedent was treated differently from other, similarly situated individuals.
Here, plaintiffs have not made the requisite showing. Plaintiffs have identified no individual of a different ethnic or racial group who was similarly situated but treated differently. The record lacks any evidence that SRS provided family services to a non-Indian child living with his or her natural parents, who was receiving the benefit of services elsewhere and whose parents did not desire the assistance of SRS. Further, there exists no evidence in the record of another non-Indian child living with his or her natural parents, who was the subject of a report of suspected child abuse of the type in this case, and for whom SRS opened a child protective services case. Absent such evidence, and without evidence showing discriminatory purpose (which the court already concluded is lacking in this case), the court cannot determine whether defendants selectively denied protective or family services to the decedent. Plaintiffs have failed to establish that defendants violated the decedent's equal protection rights. Because the court has concluded that plaintiff failed to allege a deprivation of a constitutional right, the court need not proceed to the second step of the qualified immunity test. Accordingly, defendants are entitled to qualified immunity on plaintiffs' equal protection claim.
B. 42 U.S.C. § 1981 Claim
Plaintiffs contend that defendants violated the decedent's rights under 42 U.S.C. § 1981. To establish a claim of discrimination under § 1981, a plaintiff must show 1) that he is a member of a protected class; 2) that the defendant had the intent to discriminate on the basis of race; and 3) that the discrimination interfered with a protected activity as defined in § 1981. Hampton v. Dillard's Dep't Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001), cert. denied, 122 S.Ct. 1071 (2002). The court finds that plaintiffs have failed to allege the deprivation of a constitutional right because there is no evidence that defendants intended to discriminate against the decedent on the basis of his race.
To survive summary judgment on his § 1981 claim, plaintiffs must show that defendants acted with the intent to discriminate because of race or, in other words, that defendants were motivated by racial animus. Saviour v. City of Kan. City, Kan., 1992 WL 135019, at *6 (D. Kan. May 15, 1992). As previously discussed, there is no evidence in the record that defendants refused to offer or provide family services to the decedent or that defendants refused to provide protective services after the September 25 and October 7 reports because of an intent to discriminate. The evidence plaintiffs contend shows discriminatory intent is, rather, merely evidence demonstrating that defendants could have, and maybe should have, taken a different course of action with respect to providing family or protective services. However, the record simply lacks evidence that the (defendants were motivated by racial animus. Plaintiffs have failed to establish the deprivation of the decedent's rights under 1981. Accordingly, defendants are qualifiedly immune. Summary judgment on plaintiffs' § 1981 claim is granted to defendants.
IT IS THEREFORE ORDERED that Defendants' Motion to Deem Facts Admitted (Doc. 90) is denied, Plaintiff's Motion for Summary Judgment (Doc. 62) is denied, and Defendants' Motion for Summary Judgment (Doc. 87) is granted. This case is hereby dismissed.