Sierra Maldonado v. Paul Snead

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 23, 2006
No. 05-10813 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00518-CV-ORL-28JGG
SIERRA MALDONADO,
through her next friend Ana Suarez,
Plaintiff-Appellant,
versus
PAUL SNEAD, et al.,
Defendants,
THELIA WOODS,
SANDY BAKER,
GREGORY CHARLES RICHMOND,
personal representative of the Estate of Marlene
May Richmond,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 23, 2006)
Before CARNES, HULL and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
This is a civil rights action brought by Sierra Maldonado, a former foster
child, against seventeen current or former employees of the Florida Department of
Children and Families for deliberate indifference to Maldonado’s constitutional
right to physical safety in foster care. We must decide two main issues in this
appeal: (1) whether the district court correctly dismissed twelve defendants
because Maldonado failed to state a claim against those defendants in her Fourth
Amended Complaint; and (2) whether the district court, on summary judgment,
correctly refused to strip three defendants of the qualified immunity that the U.S.
Supreme Court has stated is “necessary to preserve the ability of government
officials to serve the public good.” Richardson v. McKnight, 521 U.S. 399, 408,
117, S. Ct. 2100, 2105 (1997) (internal quotation omitted); see Ray v. Foltz, 370
F.3d 1079, 1082 (11th Cir. 2004). We agree with the judgment of the district court
on both issues. As to the twelve defendants, Maldonado either failed to state a
claim of deliberate indifference or refused, after several opportunities to amend her
complaint, to comply with the heightened pleading standards that apply in “civil
rights actions against public officials who may be entitled to qualified immunity.”
Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001). As to the entry of
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summary judgment in favor of the other three defendants, Maldonado failed to
present evidence either that she was at risk of serious harm or that the three
defendants had actual knowledge or deliberately failed to learn that Maldonado
was at risk of serious harm. Maldonado’s remaining arguments about procedural
issues likewise are unpersuasive. We affirm.
I. BACKGROUND
Sierra Maldonado was born on July 11, 1995. Both Maldonado’s parents
abused cocaine and heroin and her mother’s previous husband committed suicide.
After Maldonado’s father abused and nearly killed Maldonado’s older half-sister,
the Florida Department of Children and Families took custody of Maldonado and
placed her in the home of Wilfredo and Rebecca “Vicki” Soto in December 1995.
When Maldonado joined them, Wilfredo and Vicki Soto had been foster
parents for approximately six or seven years. During that time, they had cared for
approximately 55 children and never had been accused of any type of abuse. The
Sotos had two biological sons, Wilfredo and Daniel, a teenager and near-teenager.
Daniel Soto, known as Davy, had experienced some trouble at school and spent
time at Edgewood Boys Ranch to overcome behavioral problems. After
Maldonado eventually was removed from the Soto home in December 1996,
another foster parent would report that Davy Soto once stated he hated Maldonado
3
and wanted her dead.
In February 1996, DCF agent Betty Benjamin Clarke took Maldonado to
Doctor Carlos Rodriguez for an ear examination. During the visit, Rodriguez
examined a sore on Maldonado’s arm. Vickie Soto would later recall the sore “was
something that started like a pimple.” Rodriguez mentioned that the sore looked
like a cigarette burn but later diagnosed it as impetigo, “[a] name given to various
pustular diseases of the skin.” The Oxford English Dictionary (2d ed. 1986).
Clarke recorded Rodriguez’s comment, that the sore looked like a cigarette burn, in
the “blue book,” a record kept by the DCF that included information about
Maldonado’s visits to the doctor. Clarke also reported the comment to her
supervisor, Mae Duncan, who in turn called her supervisor, Mike Penn. Penn
called Doctor Rodriguez, who confirmed the diagnosis of impetigo.
In May 1996, Vicki Soto took then ten-month-old Maldonado to the
emergency room because of a cut on her face. Medical records stated that Vicki
Soto did not know how the cut happened but speculated the cut may have been
caused by an accident with a toy. The attending physician gave Maldonado three
stitches to minimize scarring. DCF agent Renee Szarapski completed an Incident
Report the following day and filed a Status Report with a state court in the ninth
judicial circuit of Florida. In deposition testimony, several years later, Vicki Soto
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speculated that Maldonado had been cut with a knife that was in her crib.
When Maldonado was with the Sotos, at least two DCF agents noted
concerns about the cleanliness of the Soto house, and in the fall of 1996, the Sotos
moved into a house that was not immediately licensed by the DCF.
On December 8, 1996, Maldonado was injured and suffered severe brain
damage and partial paralysis. Maldonado alleged that she was “wantonly and
willfully shaken, thrown, and otherwise severely abused and neglected by the
Sotos.” The defendants assert that “[n]o one in the Soto family has any knowledge
of how [Maldonado] was injured.”
In December 2000, four years after she was injured, Maldonado, through her
grandmother Ana Suarez, filed a complaint against five current or former
employees of the DCF: Paul Snead, district administrator in Orlando; Carol
DeLoach, a program operations administrator; Renee Szarapski, a service unit
worker; Thelia Woods, a placement unit worker; and Kathy Swaggerty, a licensing
unit worker. Maldonado alleged that the defendants were deliberately indifferent
to her right to physical safety in foster care, as guaranteed by the Fourteenth
Amendment, when they allegedly disregarded events and circumstances that
suggested a risk of serious harm and should have prompted the defendants to
remove Maldonado from the foster home before she was injured.
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Maldonado filed her complaint in a state court, but the defendants removed
the case to the United States District Court for the Middle District of Florida in
April 2001. In May 2001, Maldonado filed a twenty-five-page Amended
Complaint and added thirteen additional defendants: Sid McCallister, a deputy
district administrator; Marty Buckley, a program administrator; Mike Penn, a
program administrator; Marianne Rosenbauer, a program operation administrator;
Doris Malave, an adoption-related services unit supervisor; Barbara Holmes, a
foster care service unit supervisor; Sandy Baker, a placement and licensing worker;
Betty Benjamin, a protective investigation and service unit worker; Ingrid
McKinney, a placement and licensing unit worker; Marlene Richmond, a licensing
unit worker; Jeanette Montanez, a licensing worker; Ann Schmitt, a licensing
worker; and Debbie Mullen, whom Maldonado later voluntarily dismissed.
Several of the defendants filed motions to dismiss the Amended Complaint. After
the district court denied each motion, the defendants sought our review.
In February 2002, we reversed and remanded the order of the district court
that denied the motions to dismiss the Amended Complaint. Maldonado v. Snead,
No. 01-14694 (11th Cir. Feb. 15, 2002) (unpublished). We reasoned that the
district court “did not distinguish between the conduct of the various defendants,
and did not address each defendant’s immunity separately.” We stated that “a
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major component of the problem is Maldonado’s Amended Complaint, which is of
the shotgun variety we have ‘repeatedly’ condemned,” and we acknowledged that
“it may be quite difficult for the district court to analyze the alleged actions of each
defendant separately without requiring [Maldonado] to re-plead with more
specificity but less length.” We then remanded the case “to allow the district court
to address each supervisor’s request for immunity individually or explain why the
supervisors should be considered collectively.”
On remand, with leave of the district court, Maldonado filed a sixteen-page
Second Amended Complaint. The district court granted the defendants’ motion to
dismiss the Second Amended Complaint because the allegations of the Second
Amended Complaint were not materially different from the allegations of the
Amended Complaint. With leave of the district court, Maldonado then filed a
Third Amended Complaint, which consisted of 124 pages and 559 paragraphs.
The district court granted the defendants’ motion to dismiss the Third Amended
Complaint because it, “like the prior complaints, [was] of the ‘shotgun’ variety.”
Based on the “interests of justice . . . [and] important constitutional issues
involved in this matter,” the district court allowed Maldonado a final opportunity
to file a complaint “that [would comply] with the pleading requirements of the
Eleventh Circuit, including the directives regarding specificity and length of
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pleading.” In response, Maldonado filed a twenty-four-page Fourth Amended
Complaint. The defendants filed a motion to dismiss the Fourth Amended
Complaint, which the district court granted as to twelve defendants but denied as to
five. Maldonado then dropped her claims against two of the five remaining
defendants.
On January 12, 2005, the district court entered summary judgment for the
three remaining defendants on the basis of qualified immunity. Maldonado now
appeals that decision, the dismissal of her Fourth Amended Complaint as to twelve
defendants, and three other issues.
II. STANDARD OF REVIEW
“We review the dismissal of a complaint for failure to state a claim de
novo.” Shands Teaching Hosp. & Clinics, Inc. v. Beech Street Corp., 208 F.3d
1308, 1310 (11th Cir. 2000). Although “in reviewing a motion to dismiss, we need
only accept well-pleaded facts and reasonable inferences drawn from those facts,”
Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (internal quotations
omitted), we “constru[e] all allegations in the complaint as true and in the light
most favorable to the plaintiff,” Shands, 208 F.3d at 1310.
“The court of appeals reviews grants of summary judgment de novo,
applying the same legal standard employed by the district court in the first
8
instance.” Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 918 (11th Cir. 1993).
Summary judgment is appropriate where “there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c). If “the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, then there is no genuine
issue for trial,” and summary judgment is appropriate. Matsushita Electric
Industrial Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,
1356 (1986) (internal quotation omitted). If, on the other hand, the non-moving
party presents evidence “such that a reasonable jury could return a verdict for [that]
party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510
(1986), then there is a genuine factual dispute and summary judgment is not
appropriate. When we review a grant of summary judgment, we “view the
evidence and all factual inferences therefrom in the light most favorable to the
party opposing the motion.” Patterson & Wilder Constr. Co. v. United States, 226
F.3d 1269, 1273 (11th Cir. 2000).
We review the evidentiary ruling of the district court to strike expert witness
affidavit testimony for abuse of discretion and will not reverse unless substantial
prejudice exists. See Hall v. United Ins. Co. of America, 367 F.3d 1255,
1259 (11th Cir. 2004); Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305
(11th Cir. 1999). We review the denial of a motion to add a new defendant for
9
abuse of discretion. See Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992).
We “review the disposition of a motion for reconsideration under an abuse of
discretion standard.” Fla. Ass’n of Rehab. Facilities, Inc. v. State of Fla. Dept. of
Health and Rehab. Serv., 225 F.3d 1208, 1216 (11th Cir. 2000) (citing Region 8
Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir.
1993)).
III. DISCUSSION
Maldonado makes five arguments in this appeal: (1) the district court
erroneously dismissed the Fourth Amended Complaint as to twelve defendants
because Maldonado stated a claim of deliberate indifference against the
defendants; (2) the district court erroneously granted summary judgment for three
defendants because a jury could find the defendants recklessly ignored signs that
Maldonado was at risk of serious harm; (3) the district court abused its discretion
by striking the affidavit of an expert witness for Maldonado because some of the
affidavit was admissible; (4) the district court abused its discretion by denying
Maldonado’s motion to add a new defendant because the motion was not opposed
and was based on newly obtained documents; and (5) the district court abused its
discretion by denying Maldonado’s motion for reconsideration of dismissal as to
three defendants because the motion was based on newly obtained evidence that
10
had not been discovered due to delay by the DCF. We discuss each argument in
turn.
A. The District Court Correctly Dismissed the Fourth Amended Complaint as to
Twelve Defendants.
Maldonado alleged that the defendants acted with deliberate indifference
when they recklessly ignored certain events and circumstances that, Maldonado
argues, suggested Maldonado was at risk of serious harm. Because the defendants
invoked the defense of qualified immunity and established they had acted within
their discretionary authority, Maldonado was required to plead facts that would
strip the defendants of qualified immunity. See Lumley v. City of Dade City, Fla.,
327 F.3d 1186, 1193-94 (11th Cir. 2003). Before we address Maldonado’s
complaint against each defendant, we review the standards that govern her
pleading.
“Our procedure in assessing qualified immunity is well-established.”
Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). The first inquiry is
“whether plaintiff’s allegations, if true, establish a constitutional violation.” Hope
v. Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 2513 (2002) (citing Saucier v. Katz,
533 U.S. 194, 201, 121 S. Ct. 2151, 2156)); see Behrens v. Regier, 422 F.3d 1255,
1258 n.7 (11th Cir. 2005). If there is a violation of a constitutional right on the
facts as alleged and construed to be true, then the second inquiry is “whether the
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right was clearly established.” Saucier, 533 U.S. at 201, 121 S. Ct. at 2156; see
Behrens, 422 F.3d at 1258 n.7. If “no constitutional right would have been
violated were the allegations established, there is no necessity for further inquiries
concerning qualified immunity.” Saucier, 533 U.S. at 201, 121 S. Ct. at 2156.
“[F]oster children have a constitutional right to be free from unnecessary
pain and a fundamental right to physical safety.” Ray v. Foltz, 370 F.3d 1079,
1082 (11th Cir. 2004) (citing Taylor v. Ledbetter, 818 F.2d 791, 794-95 (11th Cir.
1987) (en banc)). Violations of this right by foster care officials are exceptional
because “only where it is alleged and the proof shows that the state officials were
deliberately indifferent to the welfare of the child will liability be imposed.”
Taylor, 818 F.2d at 797 (emphasis added). “Deliberate indifference is not the same
thing as negligence or carelessness. On the contrary, the Supreme Court has made
clear that a state official acts with deliberate indifference only when he disregards a
risk of harm of which he is actually aware.” Ray, 370 F.3d at 1083 (citing Farmer,
511 U.S. at 836, 114 S. Ct. at 1978; Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct.
285, 292 (1976)).
In Farmer, the Supreme Court expressly “reject[ed] . . . an objective test for
deliberate indifference.” Farmer, 511 U.S. at 837, 114 S. Ct. at 1979. To be
deliberately indifferent, an “official must both be aware of facts from which the
12
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Farmer, 511 U.S. at 837, 114 S. Ct. at 1979; see Ray,
370 F.3d at 1083. “Following this guidance, we have stated that in order to
establish deliberate indifference, plaintiffs must be able to allege (and prove at
trial) that the defendant (1) was objectively aware of a risk of serious harm; (2)
recklessly disregarded the risk of harm; and (3) this conduct was more than merely
negligent.” Ray, 370 F.3d at 1083 (citing McElligott v. Foley, 182 F.3d 1248,
1255 (11th Cir. 1999)). This standard means that “[a] child abused while in foster
care, in order to successfully recover from state officials in a section 1983 action,
will be faced with the difficult problem of showing actual knowledge of abuse or
that agency personnel deliberately failed to learn what was occurring in the foster
home.” Taylor, 818 F.2d at 796; see Ray, 370 at 1083.
A complaint of deliberate indifference filed on behalf of a child in foster
care must adhere to the “rule that heightened specificity is required in civil rights
actions against public officials who may be entitled to qualified immunity.”
Magluta, 256 F.3d at 1284. “The complaint must allege the relevant facts with
some specificity. ‘[M]ore than mere conclusory notice pleading is required. . . .
[A] complaint will be dismissed as insufficient where the allegations it contains are
vague and conclusory.’” Gonzalez, 325 F.3d at 1235 (quoting Fullman v.
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Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)); see Magluta, 256 F.3d at 1284;
GJR Inv., Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998).
Although a complaint should consist of “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2); see Magluta,
256 F.3d at 1284, plaintiffs must avoid shotgun pleadings, which “we have
condemned repeatedly,” Magluta, 256 F.3d at 1284; see, e.g., Strategic Income
Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 n.9 (11th Cir.
2002); Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir. 2001); Cramer v. State
of Florida, 117 F.3d 1258, 1263 (11th Cir. 1997). In the light of these
requirements of pleading, we review Maldonado’s complaint against each
defendant.
1. Defendant Paul Snead
Maldonado’s Fourth Amended Complaint failed to state a claim against Paul
Snead, a district administrator in Orlando. Maldonado alleged that Snead knew all
the information in the licensing files when he licensed the Soto home in 1995 and
1996, and that Maldonado was included in the 1996 license. Maldonado also
alleged that Snead, “[i]n placing and keeping Sierra with the Soto family, . . .
overlooked or deliberately disregarded the numerous red flags [described in
paragraphs 10 to 17 of the complaint] indicating the unsuitability and the unsafe
14
nature of the Soto house for Sierra.”
These allegations were vague and failed to specify whether Snead had actual
knowledge or deliberately failed to learn of risk of serious harm to Maldonado
when he licensed the Soto home; what responsibility Snead had for “keeping”
Maldonado with the Soto family; and which of the allegations in paragraphs 10 to
17 Maldonado meant to designate by use of the phrase “red flags.” Even
Maldonado’s more specific allegation, that “Snead knew of the behavior and anger
management problems of the younger Soto boy, and the increasing resentment of
the boys toward the foster children, particularly Sierra,” failed to state when Snead
obtained knowledge of these alleged facts, how these facts would have amounted
to a risk of serious harm, and how Snead’s conduct was reckless. Because “a
complaint will be dismissed as insufficient where the allegations it contains are
vague and conclusory,” Fullman, 739 F.2d at 556-57, the district court correctly
dismissed the Fourth Amended Complaint as to Snead.
2. Defendant Sid McCallister
Maldonado’s Fourth Amended Complaint failed to state a claim against Sid
McCallister, the deputy district administrator for the DCF. Maldonado alleged that
“[i]n placing and keeping [Maldonado] with the Soto family, McCallister
overlooked or deliberately disregarded the numerous red flags in [paragraphs 10 to
15
17 of the complaint] indicating the unsuitability and unsafe nature of the Soto
house.” This allegation was vague and failed to specify whether McCallister had
actual knowledge or deliberately failed to learn of risk of serious harm to
Maldonado any time before she was injured; what responsibility McCallister had
for “placing” or “keeping” Maldonado with the Soto family; and which of the
allegations in paragraphs 10 to 17 Maldonado meant to designate by use of the
phrase “red flags.” Other allegations that were more specific and included dates
conspicuously failed to include the alleged cigarette burn and knife gash.
Maldonado alleged that McCallister knew Davy Soto stated he hated Maldonado
and wanted her dead, but she failed to state how McCallister recklessly disregarded
that information. “[A] complaint will be dismissed as insufficient where the
allegations it contains are vague and conclusory.” Fullman, 739 F.2d at 556-57;
see Gonzalez, 325 F.3d at 1235; Magluta, 256 F.3d at 1284; GJR Inv., 132 F.3d at
1367. The district court correctly dismissed the Fourth Amended Complaint as to
McCallister.
3. Defendant Marty Buckley
Maldonado’s Fourth Amended Complaint failed to state a claim against
Marty Buckley, a program administrator responsible for foster care. Maldonado
alleged that Buckley “knew or had access to information of which he was required
16
to know and consciously disregarded” about the alleged cigarette burn, knife gash,
and Davy Soto’s statement. Maldonado failed to allege either what information
Buckley knew or was required to know or how Buckley deliberately failed to learn
that Maldonado allegedly had been abused. “The complaint must allege the
relevant facts with some specificity,” Gonzalez, 325 F.3d at 1235, and Maldonado
was given several opportunities to satisfy this standard. The district court correctly
dismissed the Fourth Amended Complaint as to Buckley.
4. Defendant Mike Penn
Maldonado’s Fourth Amended Complaint failed to state a claim against
Mike Penn, a program administrator responsible for foster care. Maldonado
alleged that Penn “knew or had access to information of which he was required to
know” that included the alleged cigarette burn and knife gash. Maldonado failed to
allege either what information Penn knew or was required to know or how Penn
deliberately failed to learn that Maldonado allegedly had been abused. “The
complaint must allege the relevant facts with some specificity,” Gonzalez, 325
F.3d at 1235, and Maldonado was given several opportunities to satisfy this
standard. The district court correctly dismissed the Fourth Amended Complaint as
to Penn.
5. Defendant Carol DeLoach
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Maldonado’s Fourth Amended Complaint failed to state a claim against
Carol DeLoach, a “program operations administrator.” Maldonado alleged that
DeLoach knew of the alleged cigarette burn and knife cut, but she failed to state
whether DeLoach had knowledge of these facts before Maldonado was injured.
Maldonado alleged DeLoach knew of the danger posed by Davy Soto by the fall of
1996, but Maldonado failed to state how DeLoach recklessly disregarded that
knowledge. Maldonado alleged that DeLoach approved several over-capacity
placements in the Soto home before Maldonado was placed there in December
1995, but she did not allege DeLoach was involved with her placement. The
district court correctly dismissed the Fourth Amended Complaint as to DeLoach.
6. Defendant Barbara Holmes
Maldonado’s Fourth Amended Complaint failed to state a claim against
Barbara Holmes, “a foster care service unit supervisor assigned to [Maldonado].”
Maldonado alleged that Holmes knew of the alleged cigarette burn and knife gash
and the conditions at the Soto home, but Maldonado failed to allege that Holmes
knew of a risk of serious harm before Maldonado was injured on December 8,
1996. As the defendants argue, and as the district court observed, “absent
knowledge at a meaningful time, a defendant cannot be said to have disregarded a
risk.” The district court correctly dismissed the Fourth Amended Complaint as to
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Holmes.
7. Defendant Betty Benjamin Clarke
Maldonado’s Fourth Amended Complaint failed to state a claim against
Betty Benjamin Clarke, “a protective investigation and service unit worker
assigned to [Maldonado] from December 1995 through March 1996.” Maldonado
alleged that Clarke knew of the alleged cigarette burn and knife gash by January
1996, but that allegation necessarily was false because Maldonado alleged the
cigarette burn occurred in February 1996 and the knife gash in May 1996. Based
on the facts as Maldonado alleged them, Clarke could not have known about the
cigarette burn or knife gash by January 1996. The district court correctly
dismissed the Fourth Amended Complaint as to Clarke.
8. Defendant Kathy Swaggerty
Maldonado’s Fourth Amended Complaint failed to state a claim against
Kathy Swaggerty, “a licensing unit worker and supervisor.” Maldonado did not
allege that Swaggerty knew of the alleged cigarette burn, the knife gash, or the
statement of the younger Soto boy that he wished Maldonado were dead. The
district court correctly dismissed the Fourth Amended Complaint as to Swaggerty.
9. Defendant Ingrid McKinney
Maldonado’s Fourth Amended Complaint failed to state a claim against
19
Ingrid McKinney, “a placement and licensing unit worker responsible for Sierra
Maldonado.” Maldonado alleged that McKinney knew about the alleged cigarette
burn, knife cut, and unsafe circumstances in the Soto home, but Maldonado failed
to state whether McKinney gained knowledge of these facts before Maldonado was
injured. The district court correctly dismissed the Fourth Amended Complaint as
to McKinney.
10. Defendant Jeanette Montanez
Maldonado’s Fourth Amended Complaint failed to state a claim against
Montanez, “a licensing worker whose assignments included the Soto family.”
Maldonado’s allegations, construed in her favor, included that Montanez knew of
the alleged cigarette burn, knife gash, non-supervision by Mrs. Soto, and Davy
Soto’s statement about Maldonado. Maldonado also alleged that “[a]t all times
material, Montanez was a licensing worker whose assignments included the Soto
family” and that Montanez “participated in pertinent over-capacity decisions in
1994 and 1995” (emphasis added). Maldonado failed to allege, however, that
Montanez had any responsibility for Maldonado during 1996, when the cigarette
burn and knife gash allegedly occurred. The district court correctly dismissed the
Fourth Amended Complaint as to Montanez.
11. Defendant Ann Schmitt
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Maldonado’s Fourth Amended Complaint failed to state a claim against Ann
Schmitt, “a licensing worker and supervisor responsible for the Soto family with
complete access to all information about the Soto house and the Soto family.”
Maldonado alleged, “In January 1996, Schmitt approved the relicensing of the Soto
home for a capacity of three, including [Maldonado], even though Schmitt knew
neither of the Soto boys wanted little girls . . . and even though the younger boy
was known to be out of control.” Maldonado alleged that Schmitt knew, at the
time of the 1996 relicensing, of the alleged cigarette burn and knife cut and
allegedly unsafe circumstances in the Soto home, including the statement of the
younger Soto boy that he wished Maldonado were dead. Most this allegation was
logically impossible because Maldonado alleged the cigarette burn occurred in
February 1996 and the knife gash in May 1996. Based on the facts as Maldonado
alleged them, Schmitt could not have known about the cigarette burn or knife gash
by January 1996. The district court correctly dismissed the Fourth Amended
Complaint as to Schmitt.
12. Defendant Renee Szarapski
Maldonado’s Fourth Amended Complaint failed to state a claim against
Renee Szarapski, “a foster care service unit worker responsible for Sierra
Maldonado from March 1996 onward.” Maldonado alleged that Szarapski visited
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the Soto home only twice between March 1995 and December 1996, even though
she knew she was obligated to visit weekly, and that Szarapski failed to document
her visits, even though she knew “that DCF policies view undocumented events as
having not occurred.” Construed in her favor, Maldonado’s allegations included
that Szarapski knew about the alleged cigarette burn and knife cut, resentment of
the Soto boys toward foster children, Davy Soto’s “hatred” for Maldonado, and
that Mrs. Soto no longer wanted foster children. These allegations were
insufficient because Maldonado does not allege when Szarapski gained the relevant
knowledge; the only date she provides is “December 8, 1996,” the date Maldonado
was injured. The district court correctly dismissed the complaint as to Szarapski.
The district court correctly dismissed the Fourth Amended Complaint as to
each of the aforementioned twelve defendants.
B. The District Court Correctly Entered Summary Judgment for Baker, Woods,
and Richmond.
After the district court dismissed the Fourth Amended Complaint in favor of
twelve of the defendants, Maldonado dropped her claims against two of the five
remaining defendants. The three remaining defendants filed a motion for summary
judgment, which the district court granted. Maldonado now argues the district
court erred.
To survive summary judgment, Maldonado must have provided evidence
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from which a jury could have found that Baker, Woods, or Richmond had actual
knowledge of a risk of serious harm to Maldonado but recklessly disregarded that
knowledge by conduct that was more than mere negligence. See Ray, 370 at 1083;
Taylor, 818 F.2d at 796. Maldonado attempted to carry her burden by showing the
defendants knew (1) Maldonado was burned with a cigarette, (2) Maldonado was
stabbed with a knife, and (3) Davy Soto posed a serious risk of harm, but the
defendants did nothing to protect Maldonado before she was seriously injured in
December 1996. Maldonado’s evidence of concerns the defendants might have
had about the cleanliness of the Soto house was irrelevant because an untidy house
would not have suggested a risk of child abuse. We limit our discussion to
whether the record supports Maldonado’s claims about the defendants’ knowledge
of the alleged cigarette burn, knife gash, and risk posed by Davy Soto.
1. Whether the Defendants Knew Maldonado Had Been Burned with a Cigarette?
A reasonable jury could not find that the defendants had actual knowledge or
deliberately failed to learn that Maldonado was burned with a cigarette in February
1996 for the simple reason that the record gave no basis to find Maldonado ever
was burned with a cigarette. The only evidence to support this allegation was a
notation in Maldonado’s blue book that stated, “[Maldonado] has sore on right
arm. The doctor states that it looks like a cigarette burn, but could not be
23
positively sure.” The doctor’s record of Maldonado’s visit did not mention a
possible cigarette burn, but noted impetigo on the right arm. Years later, in his
deposition testimony, Doctor Rodriguez disclaimed any memory of Maldonado’s
visit but stated that he would have reported any suspicions that a child had been
burned with a cigarette.
DCF officials considered the possibility of abuse but ruled it out after Mike
Penn called Rodriguez, who confirmed the sore was impetigo. The doctor’s
diagnosis settled the matter. As the defendants argue, “It is not the job of DCF
employees to second guess the medical opinion of a trained physician and remove
a child from her home in order to conduct an investigation based on nothing.”
There was no genuine issue of whether the defendants disregarded actual
knowledge or deliberately failed to learn that Maldonado had been burned with a
cigarette.
2. Whether the Defendants Knew Maldonado Had Been Stabbed in the Face with a
Steak Knife?
There likewise was no basis to conclude the defendants disregarded actual
knowledge or deliberately failed to learn that Maldonado had been “stabbed in the
face with a steak knife.” Although Maldonado, through counsel, insistently refers
to a “knife wound,” “stab wound,” or “knife gash,” the first mention in the record
of the possibility that Maldonado was cut (not stabbed) with a knife was by Mrs.
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Soto in her deposition testimony provided over four years after Maldonado was
injured in December 1996. That testimony occurred long after the information
could have put the defendants on notice that Maldonado was at risk of serious
harm.
The documents contemporaneous to the incident failed to suggest that
Maldonado had been abusively stabbed with a knife. An Incident Report prepared
by the DCF, for example, describes the cut as a “[s]mall gash under left eye” and
includes a short narrative:
F.C. mother informed counselor on 5-30-96 - 1:15 pm. that her
daughter was watching [Maldonado] and noticed [Maldonado] had a
cut under her left eye. Cause not known - maybe from playing with
toy. The cut was small, but wide. She took her to emergency room.
Doctor gave her 3 stitches. Doctor stated she didn’t need them, but
gave them to her so there would be less scaring [sic]. 5-31-96 - 10:10
a.m. GAL, Michael Blaher was called. A message was left for him on
answering machine. Paternal grandmother visited with [Maldonado]
5-31-96 and were [sic] informed and asked to inform parents.
Parent’s [sic] whereabouts are unknown. Status report written and
submitted to court.
The medical records are likewise agnostic on how Maldonado was cut. They state
the “mother does not know how it happened” and speculate, “(? hit by toy
accidental[ly] by sibling).”
In short, nothing in the record provided a basis to conclude the defendants
knew Maldonado had been stabbed in the face with a knife. Counsel referred us at
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oral argument to the Incident Report, but the Incident Report, which was
completed on May 31, 1996, one day after Maldonado was cut, makes no reference
to a knife. In fact, the Incident Report states, “Cause not known – maybe from
playing with toy.” There was no evidence in the record that Maldonado was
stabbed in the face with a steak knife, much less that the defendants had actual
knowledge or deliberately failed to learn of such an abuse.
3. Whether the Defendants Knew Davy Soto Posed a Risk of Serious Harm?
Finally, the record does not support the claim that the defendants knew Davy
Soto posed a risk of serious harm to Maldonado but did nothing to protect her. The
best evidence that Davy Soto was dangerous was a report that he once stated he
hated Maldonado and wanted her dead. As the record clearly shows, DCF officials
did not learn about this statement until after Maldonado was injured on December
8, 1996. Under the legal standard relevant to this case, the report of Davy Soto’s
statement was completely irrelevant because it was made after Maldonado was
injured. For this reason, the persistent and unqualified use of the allegation by
Maldonado’s attorneys has been disgraceful.
It is unclear from Maldonado’s brief whether information available to Baker,
Woods, or Richmond before Maldonado was injured might have established that
Davy Soto posed a risk of serious harm. We independently reviewed the record,
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but found no basis for liability. One of the few items we discovered of even
potential relevance was a handwritten note on a document apparently related to the
1996 relicensing of the Soto home that stated, “Davy Soto, who was in Edgewood
Boys Ranch, for behavioral problems, has returned to the home. So far, it appears
things are working out satisfactorily. At the present time, he is being home
schooled. The Soto’s hope to be able to enroll him in regular school classes this
fall.” This note would not have put a DCF official on notice that Maldonado was
at risk of serious risk. The same is true of reports that Davy Soto, as a four- or
five-year-old child, expressed anger by screaming and hitting.
Maldonado fails to explain what knowledge any of the defendants actually
had or how they deliberately failed to learn of Davy Soto and his behavioral or
psychological history. Maldonado equivocally asserts, for example, that “Woods
had actual knowledge that Davy’s out of control psychological behavior made him
a danger to Sierra or she deliberately chose to not obtain the information which she
was required to know,” but this assertion is conclusory because it fails to specify
either the source of Woods’s actual knowledge or what information she
deliberately chose to ignore. Even if we assume Maldonado meant Woods was
familiar with the licensing files, Maldonado fails to state what in the licensing files
put Woods on notice that Davy posed a risk of serious harm. We already have
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stated that the note about Davy Soto spending time at the Edgewood Boys Ranch
did not establish that he posed a risk of serious harm. Maldonado’s assertions
about Richmond are even weaker. Maldonado states, “Other information known to
Richmond or, if not actually known, information Richmond was required to know,
included the fact that Davy’s psychological problems made him a danger to others,
and also indicated the likelihood that David was at home and not in school at the
time [Maldonado] was stabbed.” Ambivalent and conclusory allegations that
Richmond was required to know “other information” about Davy Soto are
insufficient to create a genuine issue for trial. In her appeal brief, Maldonado does
not even raise the possibility that Baker knew Davy posed a danger to Maldonado.
A reasonable jury could not strip Richmond, Woods, or Baker of their
immunity based on this record. The district court correctly entered summary
judgment in their favor.
C. The District Court Did Not Abuse Its Discretion by Striking the Affidavit.
Maldonado appeals the order of the district court that struck the affidavit of
Mary Allegretti, her expert witness. Allegretti testified in her affidavit that she
formerly worked for the DCF in various positions and claimed to be “an expert in
child welfare systems such as Florida’s.” Allegretti stated she had “personally
reviewed several thousand pages of records and related documents produced by
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DCF pertaining to [Maldonado],” and that her “opinions [were] based upon [her]
review of records produced by DCF and information obtained during [her] tenure
with DCF.” She also stated, “In this affidavit I use terms which convey the
conclusion that information within the DCAF file gave rise to knowledge on the
part of Department personnel, but I do not state personal awareness of such facts”
(emphasis added).
The district court concluded that the affidavit created no genuine issue for
trial because, as the defendants argued, it contained “nothing but legal conclusions,
conclusory statements of fact[], misstatements of fact[], facts which have already
been found by this Court to be irrelevant . . . and facts which would be
inadmissible at trial.” We agree. The district did not abuse its discretion in
striking the affidavit.
D. The District Court Did Not Abuse Its Discretion by Denying Maldonado’s
Motion to Add a New Defendant.
Six months after the deadline to join new parties, Maldonado filed a motion
to add a new party. Maldonado contends the motion was necessary because
defendants withheld relevant documents until the “eleventh hour.” The defendants
did not oppose the motion, for what they call “strategic reasons,” and the district
court denied Maldonado’s motion.
Maldonado makes three arguments about why her motion should have been
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granted, but each fails. Maldonado first argues the district court lacked discretion
to deny the motion because the defendants did not oppose it, but she cites no
authority for this proposition and ignores that she filed her motion late.
Maldonado then argues the district court abused its discretion by denying the
motion, but the only supporting authority she cites is irrelevant because that case
concerned denial of an unopposed motion for a continuance and the right under the
Sixth Amendment to have adequate time to prepare for trial, both non-issues in this
case. See United States v. Verderame, 51 F.3d 249, 252 (11th Cir. 1995).
Maldonado finally argues the motion was warranted because she received some
documents “almost at the eleventh hour,” but we are more persuaded by the
reasoning of the district court that Maldonado was dilatory:
[T]his case has been pending for several years and [Maldonado] has
been given numerous opportunities to amend her complaint. She will
not be permitted another chance at this late date, especially
considering that the dispositive motion deadline has passed,
dispositive motions have in fact been filed, trial is set to begin in less
than two months, and the addition of more defendants would
undoubtedly delay resolution of this matter even further.
The district court did not abuse its discretion by denying the motion to add a new
defendant.
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E. The District Court Did Not Abuse Its Discretion by Denying Maldonado’s
Motion for Reconsideration of Dismissal of Holmes, Szarapski, or Montanez.
Maldonado appeals the order that denied her motion seeking reconsideration
of dismissal of her Fourth Amended Complaint as to Holmes, Szarapski, and
Montanez. Although the district court reviewed Maldonado’s motion under Rule
54(b) as a motion for reconsideration of a non-final order rather than under Rule
60(b) as a motion for relief from judgment, “[w]e see no reason to apply a different
standard when the party seeks reconsideration of a non-final order” than when the
party seeks reconsideration of a final judgment. Region 8 Forest Serv., 993 F.2d at
806. We review this ruling for abuse of discretion. See Fla. Ass’n of Rehab.
Facilities, 225 F.3d at 1216.
Maldonado filed her motion for reconsideration approximately ten months
after the district court dismissed the Fourth Amended Complaint as to the three
defendants. Because the district court found that Maldonado’s “new” evidence
was “not materially different” from evidence previously available to her and that
the defendants had not engaged in discovery misconduct with regard to the
evidence in question, the court concluded there was “no basis for revisiting the
dismissal . . . of the claims against former defendants Holmes, Szarapski, and
Montanez.” We agree.
Maldonado erroneously argues two articles of new evidence would have
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changed the analysis of whether to dismiss the defendants. One article of so-
characterized new evidence was the Incident Report signed by Szarapski and
Holmes on May 31, 1996, but, as the defendants argue, the information in the
Incident Report also can be found in the Status Report signed by Holmes and
Szarapski and dated May 31, 1996. Another article of so-characterized new
evidence was a document showing that Montanez “was the placement official who
put [Maldonado] in the Soto home.” Maldonado argues this evidence was relevant
because her complaint was dismissed against Montanez for not alleging that
Montanez was involved “at a meaningful time relative to the cigarette burn and
knife wound.” This argument fails because the cigarette burn and knife cut
allegedly occurred after Maldonado was placed in the Soto home. Montanez’s role
in placing Maldonado in the Soto home was not relevant to those alleged acts of
abuse. These disputed articles of evidence did not justify granting the motion to
reconsider dismissal.
Maldonado also argues that, even if the DCF, rather than the defendants,
were responsible for delivering the evidence late, she should not be penalized for
circumstances beyond her control. This argument also fails because the denial of
her motion to reconsider was not a penalty for the simple reason that her new
evidence was immaterial. The district court did not abuse its discretion by denying
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the motion reconsider.
IV. CONCLUSION
We affirm each decision of the district court. Dismissal of the Fourth
Amended Complaint was appropriate as to Paul Snead, Sid McCallister, Marty
Buckley, Mike Penn, Carol DeLoach, Barbara Holmes, Betty Benjamin Clarke,
Kathy Swaggerty, Ingrid McKinney, Jeanette Montanez, Ann Schmitt, and Renee
Szarapski and summary judgment was appropriate as to Sandy Baker, Marlene
Richmond, and Thelia Woods. The district court also did not abuse its discretion
in striking the affidavit of Mary Allegretti, denying Maldonado’s motion to join a
new defendant, and denying Maldonado’s motion to reconsider dismissal as to
Barbara Holmes, Renee Szarapski, or Jeanette Montanez.
AFFIRMED.
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