United States District Court, D. Massachusetts
JENNIFER McNULTY, as Guardian ad Litem and on behalf of the minor child, J.C., Plaintiff,
MASSACHUSETTS DEPARTMENT OF CHILDREN AND FAMILIES, CHERYL SEGURA, BARBARA HAWKES-SULLIVAN, and BETSY PARKER Defendants.
OPINION AND ORDER
GEORGE A. O'TOOLE, Jr., District Judge.
The plaintiff, Jennifer McNulty, as Guardian ad Litem on behalf of minor child J.C. brings this action against the Massachusetts Department of Children and Families ("DCF") and three of its employees, Cheryl Segura, Barbara Hawkes-Sullivan, and Betsy Parker, in their official and individual capacities. Against all defendants, the plaintiff alleges violations of 42 U.S.C. § 1983; negligence under Massachusetts General Laws Chapter 258, Section 2; negligent infliction of emotional distress; intentional infliction of emotional distress; and violations of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12165 ("Title II").
The claims arise out of the defendants' alleged failure to protect J.C. from sexual abuse at the hands of her father. In the Second Amended Complaint, the plaintiff alleges the following: Segura is a social worker employed by DCF. Hawkes-Sullivan was her supervisor at all times relevant to this action, and Parker supervised both Segura and Hawkes-Sullivan. Segura planned and arranged visitation for J.C. with the father despite forensic and Sexual Abuse Intervention Network evaluations counseling against it, as well as Segura's own filing of a mandated report against the father for his alleged sexual abuse of J.C.'s older half sister (although the complaint also alleges that the report was later found to be unsupported); that Segura submitted a status report to the Barnstable Juvenile Court in September 2008, erroneously representing that J.C. was comfortable with her father and omitting known information, per Segura's own notes, suggestive of abuse; and that Segura submitted another status report to the Barnstable Juvenile Court in October 2008 recommending that the father receive full and permanent custody of J.C., erroneously representing results of J.C.'s forensic evaluation and omitting information that the father had failed to comply with aspects of the DCF reunification plan. Relying on Segura's representations, the court awarded custody to the father. He subsequently sexually abused and assaulted J.C., who has been returned to her previous foster home.
The defendants moved to dismiss the Second Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff opposed the motion to dismiss.
II. Legal Standard
To survive a motion to dismiss a plaintiff must present facts that make his claim plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). A viable complaint must be well-pled, and the facts must support logical conclusions. Specifically, the complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id . at 555. When evaluating a motion to dismiss, this Court must take "all of the factual allegations in the complaint as true." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
III. Federal Law Claims
A. Count I: § 1983 Claim Against DCF and Official Capacity Defendants
In Count I, the plaintiff seeks monetary damages against DCF and its employees in their official capacities for alleged violations of § 1983. This claim fails because "neither a state agency nor a state official acting in his official capacity may be sued for damages in a section 1983 action." Johnson v. Rodriguez , 943 F.2d 104, 108 (1st Cir. 1991) (citing Will v. Mich. Dep't of State Police , 491 U.S. 58, 71 (1989)). In her Opposition to the official capacity defendants' Motion to Dismiss, the plaintiff concedes this point. (Opp'n at 1 n.1 (dkt. no. 55).)
B. Count II: § 1983 Claim Against Hawkes-Sullivan and Parker
In Count II, the plaintiff asserts her § 1983 claim against the three employee defendants in their individual capacities. As to Hawkes-Sullivan and Parker, the complaint merely points to their roles as supervisors, without alleging any facts concerning their specific conduct. Vicarious liability is not available under § 1983. Iqbal , 556 U.S. at 676 (no § 1983 recovery where plaintiff fails to "plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution").
The only allegations related to Hawkes-Sullivan's and Parker's actions are legal conclusions, not facts: "The defendants were deliberately indifferent to or tacitly authorized the wrongful conduct... were deliberately indifferent to or tacitly authorized the wrongful conduct by ignoring the allegation of abuse... of which they were, or reasonably should have been, aware, " and "[t]he supervisory individual defendants failed to provide supervision of employees within the proper standard." (Second Am. ...