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Harvey v. Great Circle

United States District Court, E.D. Missouri, Eastern Division

June 16, 2017

KYLE HARVEY, Natural and Biological Father of A.K.H., a Minor Deceased, Plaintiff,
v.
GREAT CIRCLE, Defendant.

          MEMORANDUM AND ORDER [1]

          NANNETTE A. BAKER NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant Great Circle's Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim Upon Which Relief Can be Granted. [Doc. 5.] Plaintiff has not filed a response and the time to do so has passed. Plaintiff recently filed a Motion for Rule 26 Conference to “expedite the matter to trial.” [Doc. 10.] For the following reasons, the Court will grant Defendant's Motion to Dismiss and deny as moot Plaintiff's Motion for Rule 26 Conference.

         I. Procedural Background

         Plaintiff Kyle Harvey (“Harvey”) filed this action against Defendant Great Circle for the wrongful death of Harvey's child A.K.H., who is deceased. (Compl. ¶ 1.) In the Complaint, Harvey contends that the Jefferson County Children's Division (“JCCD”) had custody of his children, including A.K.H. beginning December 14, 2015. (Compl. ¶ 8.) JCCD hired Great Circle to provide counseling, evaluation, and investigation services regarding the assessment and facilitation of returning Harvey's children to their mother's home. (Compl. ¶¶ 9-10.) Harvey alleges that the children's mother shared her home with William Harris. (Compl. ¶ 11.) On October 7, 2015, Great Circle, through one of its employees, filed a report in the Circuit Court of Jefferson County, Missouri, indicating that there were reports of repeated physical abuse and injury against A.K.H. while in her mother's home and that Harris was a suspect in causing A.K.H.'s injuries. (Compl. ¶¶ 12-15.) As a result of the alleged abuse, Harvey's children were removed from their mother's residence. (Compl. ¶ 16.) Harvey alleges that Great Circle recommended that all of the children, including A.K.H., be returned to their mother's residence and the children were returned to their mother's custody on February 26, 2016. (Compl. ¶¶ 17-18.) On March 17, 2016, Harvey alleges that A.K.H. was strangled by Harris and died. (Compl. ¶ 22.)

         Harvey alleges that at the time of its recommendation for reunification, Defendant knew or should have known that Harris continued to live with the mother and was an active heroin user. (Compl. ¶ 20.) Harvey also alleges that Great Circle did not perform any evaluation, screening, or additional investigation of Harris before recommending reunification. (Compl. ¶ 21.) Therefore, Harvey alleges that Great Circle breached its duty of care to A.K.H. and Great Circle's negligence was the direct and proximate cause of A.K.H.'s death. (Compl. ¶¶ 25-27.)

         On April 14, 2017, Great Circle filed a Motion to Dismiss and Harvey has not responded to the motion.

         II. Standard of Review

         A defendant may file a motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds for entitlement to relief [as required in Fed. R. Civ. P 8(a)] require more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. Also, “while legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         III. Discussion

         Great Circle contends that it has immunity from liability under Missouri law, which applies in this case.[2] Great Circle alleges that two statutes provide qualified immunity from the claims in this action. The first statute at issue is Mo. Rev. Stat. § 210.114, which states:

Except as otherwise provided in section 207.085, a private contractor as defined in subdivision (4) of section 210.110 with the children's division that receives state moneys from the division or the department for providing services to children and their families shall have qualified immunity from civil liability for providing such services when the child is not in the physical care of such private contractor to the same extent that the children's division has qualified immunity from civil liability when the division or department directly provides such services.

Mo. Rev. Stat. § 210.114.1. Qualified immunity does not apply

if a private contractor … knowingly violates a stated or written policy of the division, any rule promulgated by the division, or any state law directly related to child abuse and neglect, or any state law directly related to the child abuse and neglect activities of the division or any local ordinance relating to the safety condition of the property.

Mo. Rev. Stat. § 210.114.2. This exception is more fully described in Mo. Rev. Stat. § ...


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