A.P. v. Edward Feaver

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 21, 2008
No. 04-15645 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 02-61534-CV-FAM

A.P.,
by and through his next friend, David Bazerman,
R.K.,
by and through next friend, David Bazerman,
N.M.,
by and through next friend, David Bazerman,
R.M.,
by and through next friend, David Bazerman,

Plaintiffs-Appellants,

versus

EDWARD FEAVER, individually,
JOHNNY BROWN, individually,
JENNIFER CHANG, individually,
SUSAN KANASKIE, individually,
SHARON WOODROOF, individually,
SUSAN WORSLEY, individually,
KATHERINE KAUFMAN, individually,
CORRINE MILLIKAN, individually,
et al.,

Defendants-Appellees.
 ________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(August 21, 2008)

Before TJOFLAT and BARKETT, Circuit Judges, and MILLS,* District Judge.

PER CURIAM:

A.P., R.K., N.M., and R.M. appeal from an order of the district court

dismissing their lawsuit against thirteen state officials1 employed by the Florida

Department of Children and Family Services pursuant to Federal Rule of Civil

Procedure 12(b)(6). The plaintiffs brought suit against the state officials under 42

U.S.C. § 1983, alleging violations of their Fourteenth Amendment right to be safe

*
Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
1
The defendant-officials are as follows: Edward Feaver, Secretary of the Department of
Children and Family Services; Johnny Brown, District 10 Administrator; Katherine Kaufman, a
Program Operations Administrator of Protective Investigations and later Acting Child Welfare
Director; Corinne Millikan, Family Services Specialist and Operations Management Consultant;
Sharon Woodroof, Family Services Specialist and later Program Operations Administrator for
Re-licensing and Foster Care; Susan Kanaskie, Protective Investigations Supervisor; Susan
Worsley, Protective Investigator and later Foster Care Supervisor; Jennifer Chang, Program
Operations Administrator for Licensing and Placement and later Family Services Specialist;
Margaret Andrews, Licensing Counselor and later Licensing Supervisor; and Loubert
Desmangles, Sharon Pollack, and Susan Wilburn, Family Services Counselors.
The complaint also named Winsome Smith, a Family Services Counselor, as a defendant.
Because the only claim against Smith was brought by R.K., who has since settled, plaintiffs’
appeal with respect to Smith is moot.

2
from an unreasonable risk of physical harm while in state custody. After careful

review of the allegations against each defendant, we affirm in part, and reverse in

part.

As to defendants Feaver, Brown, Kanaskie, and Pollack, we find no error,

and affirm the dismissal of A.P., N.M. and R.M.’s claims against them.

As to defendants Chang, Woodroof, Millikan, Worsley, Andrews, Kaufman,

Desmangles, and Wilburn, we find that the district court erred in dismissing A.P.,

N.M. and R.M.’s claims against them and reverse the dismissal of these claims in

the Second Amended Complaint.

Accordingly, the judgment of the district court is AFFIRMED in part;

REVERSED in part; and REMANDED for proceedings consistent with this

opinion.

3
TJOFLAT, Circuit Judge, concurring, in part, and dissenting, in part:

Judges Barkett and Mills and I sharply disagree as to whether the factual

allegations of plaintiffs’ complaint are sufficient to state constitutional violations

against the defendants in their provision of foster care and as to whether they are

entitled to qualified immunity.1 For the reasons advanced in this opinion, I concur

in the part of the court’s judgment affirming the district court’s dismissal of the

claims against Feaver, Brown, Kanaskie, and Pollack, and I dissent from the part of

the court’s judgment reversing the district court’s dismissal of the remaining

defendants. I write separately to provide the factual context in which plaintiffs’

claims are presented and the legal rationale for my view that plaintiffs’ factual

allegations failed to establish that defendants possessed the requisite subjective

1
I also disagree with Judges Barkett and Mills as to whether the court’s per curiam
opinion and my separate opinion should be published. This court’s Local Rules and Internal
Operating Procedures express the court’s policy regarding the publication of opinions. 11th
Circuit Rule 36-2 states that “[a]n opinion shall be unpublished unless a majority of the panel
decides to publish it.” The court’s Internal Operating Procedures (I.O.P.) are to the same effect.
The I.O.P. appended to Rule 36-2, states: “A majority of the panel determine whether an opinion
should be published.” The I.O.P further states that “[o]pinions that the panel believes to have no
precedential value are not published.” My colleagues are of the view that the opinions in this
case have no precedential value; as unpublished, they should not be “considered binding
precedent.” 11th Cir. R. 36-2. My view is that these opinions have precedential value because of
the questions the case presents. Suits against foster care workers are commonplace. Those
administering foster care – whether, as here, the case workers who visit the children, their
supervisors, or those occupying high-level administrative positions – need to know, they are
entitled to know, where they stand, whether they are subject to suit simply for doing their job.
Unpublished decisions, although “persuasive authority,” id., do not give these workers much
comfort. In parts IV. A. and B.1 supra, I cite five unpublished decisions, which, had they been
published, would have dictated the outcome of this case.

4
knowledge of a substantial risk of serious harm to plaintiffs that the Constitution

requires as a basis for personal liability under 42 U.S.C. § 1983. I would therefore

affirm the district court’s judgment as to all defendants.

I.

This appeal concerns the second phase of a controversy over the quality of

foster care provided by the State of Florida’s Department of Children and Family

Services (the “Department” or “DCF”) to dependent children in District 10,

Broward County, in the late 1990s.2 The first phase involved a class action suit for

injunctive relief brought on behalf of the foster children in District 10; the district

court granted prospective relief in the form of a consent decree. In the second

phase, four members of the plaintiff class who had allegedly suffered child-on-

child sexual abuse while living in a foster home sought damages from thirteen

Department officials in their individual capacities for violations of the Fourteenth

2
In Florida, the Department of Children and Family Services is responsible for children who
have become dependents of the State. The Department may take into custody a child who has no
legal custodian or any child it has probable cause to believe has been “abused, neglected, or
abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse,
neglect, or abandonment.” Fla. Stat. § 39.401(1)(b) (1997). Once a child has been taken into
custody, DCF may seek to have the child declared a dependent. Fla. Stat. § 39.402 (setting forth
standards for placement of children in shelter care); Fla. Stat. § 39.501 (describing the
requirements of a petition for dependency). The dependency decision, however, ultimately lies
with the state circuit courts. Fla. Stat. § 39.013(2) (granting jurisdiction over juvenile matters to
the circuit court); Fla. Stat. § 39.507 (setting forth the requirements for an adjudicatory hearing
on dependency). Once declared a dependent, the child may be placed in foster care. See Fla.
Admin. Code Ann. r. 65C-13.014(1) (1997) (setting forth the requirements for foster care
placement).

5
Amendment. The district court denied relief, dismissing the claims under Federal

Rule of Civil Procedure 12(b)(6). This appeal challenges this ruling.

A.

On October 20, 1998, a class action suit for injunctive relief was filed under

42 U.S.C. § 1983 3 in the United States District Court for the Southern District of

Florida on behalf of the over 1,000 dependent children in District 10 against the

Secretary of the Department and the Administrator of District 10 in their official

capacities.4 The suit alleged that the Department and District 10 were denying the

dependent children their constitutional right to safety and freedom from harm 5 by

failing to provide proper care that was consistent with both professional judgment

3
42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983.
4
At the time suit commenced, Edward Feaver and Johnny Brown served as Secretary of the
Department and as District 10 Administrator, respectively. Kathleen Kearney and Robert Cohen
assumed their positions in 2000 and shortly thereafter were substituted as the defendants in the
case.
5
According to the complaint, this substantive constitutional right was guaranteed the dependent
children by the Due Process Clause of the Fourteenth Amendment.

6
and Florida’s foster care statutory and regulatory regime6 – a failure so profound

that it caused the children “to suffer harm which is often more severe than that

which caused them to be removed from the custody of their parents” in the first

place. The suit exposed the Florida foster care system as having reached a state of

systemic crisis, and nowhere was this more evident than in District 10. A yearly

staff turnover rate of 80% and a dearth of adequate placements spawned a rapidly

increasing number of severely overcrowded homes with little supervision by the

Department.7 Burdened by caseloads that were between two and eight times the

6
According to the complaint, in placing dependent children in foster homes, the Department and
District 10 failed to heed the requirements of the following statutory and regulatory provisions:
Fla. Stat. § 39.001(1)(I) (1998) (children should be placed in licensed foster home with “custody,
care, and discipline as nearly as possible equivalent to that which should have been given by the
parents” and which is drug and alcohol free), Fla. Stat. § 39.001(1)(m) (disruptions to a child’s
education should be minimized), Fla. Stat. § 39.001(3)(c) (children should be placed in “[a] safe
and nurturing environment which will preserve a sense of personal dignity and integrity”), Fla.
Admin. Code Ann. r. 65C-13.010(5)(g) (1995) (child counselor will visit a child placed in foster
care at least once per month), Fla. Admin. Code Ann. r. 65C-13.010(1)(b)(6) (foster parents
obligated to see that children receive adequate medical service), Fla. Admin. Code Ann. r. 65C-
13.010(1)(b)(9) (foster parents obligated to see that children receive adequate educational
services), Fla. Admin. Code Ann. r. 65C-13.010(5)(b)–(f) (information sharing obligations
between foster parents and counselors). Perhaps most pointedly, the complaint alleged that the
Secretary and the District Administrator failed to develop and implement adequate procedures
for the prevention of abuse, Fla. Admin. Code Ann. r. 65C-13.015(1), and continually placed
children in homes that failed to meet basic regulatory licensing requirements. Fla. Admin. Code
Ann. r. 65C-13.011(2) (no more than five total children in a home without good cause); Fla.
Admin. Code Ann. r. 65C-13.011(4) (foster parents must “have sufficient income to assure their
stability and the security of their own family without relying on board payments”); Fla. Admin.
Code Ann. r. 65C-13.011(9) (foster parents must meet regulatory screening requirements); Fla.
Admin. Code Ann. r. 65C-13.011(11) (foster home must be comparable to other homes in the
neighborhood, be free from unreasonably dangerous objects or materials, and be inspected by a
local health inspector).
7
The complaint alleged that over 400 children in District 10 were placed in overcrowded foster
and shelter homes – more than twice that of the previous year. Additionally, 80 children in

7
recommended national standards, counselors were regularly unable to meet their

monthly visitation requirements; in fact, a sampling of foster children in District 10

during this time revealed that nearly a quarter of the children surveyed had not

been visited by their caseworker in over two months.8 Contributing further to the

institutional malady was the overall lack of proper screening procedures, which

resulted in emotionally disturbed and potentially dangerous children being

improperly placed in homes that were unable to provide them with adequate care

or monitoring.9 As a result, the complaint alleged that physical, sexual, and

emotional abuse and neglect pervaded the District 10 foster care system.

After the defendants answered the complaint and following months of

discovery and negotiations, the parties entered into a settlement agreement and, on

January 26, 2000, presented it to the district court. The court approved the

settlement agreement and, treating it as a proposed consent decree enforceable

District 10’s custody were missing.
8
Another study in 1996 revealed that 58% of foster children in District 10 were not visited
monthly by their caseworker and that 77% were not receiving appropriate services. Later that
year, a District 10 juvenile court dependency judge captured the general sentiment as to the
alarming state of affairs: “I am more than scared, I am petrified relative to the lack of shelter
placements and foster homes in District 10. . . . Things are now at the point where children’s
lives are in danger.” Compl. ¶ 62.
9
In September 1995, the Department studied 177 children receiving targeted case management
services (mental health) in District 10. The study revealed that 41% of these children were
known to have been sexually abused, a percentage that was significantly higher than those
reported in other large metropolitan areas. The study also revealed that 15% of the children had
committed sexual assaults. Compl. ¶ 58.

8
through the court’s civil contempt power, entered the decree on May 31, 2000.10

The decree required the Secretary and the District 10 Administrator to develop and

implement an adequate system of foster care for the dependent children of District

10. The decree also required the Secretary and the District 10 Administrator to

adhere to the commands of the Florida statutes and regulations governing the care

of dependent children 11 and to meet numerous minimum standards regarding the

placement and monitoring of children in foster homes.

B.

On October 28, 2002, counsel for the plaintiff class in Ward brought the

present lawsuit in the district court on behalf of A.P., a District 10 dependent

10
The decree was captioned “Order Approving Settlement Agreement” rather than “Consent
Decree.” Despite this caption, it had all the indicia of, and was in effect, a consent decree. The
order recited that on February 18, 2000, the court, after tentatively approving the settlement as
“fair [and] reasonable,” and “adequate [to] protect the plaintiff class,” had ordered “that notice of
the proposed Settlement Agreement be published to class members and that comments or
objections be filed by May 18, 2000.” A final hearing was held on May 31, 2000, at which the
court “considered all comments and objections” and “finally approved” the settlement
agreement. The order then stated that “the Court retains jurisdiction for the purposes of
enforcing the Settlement Agreement.”
11
The part of the court’s order that required the Secretary and the District 10 Administrator to
adhere to the commands of the Florida statutes and regulations governing the care of dependent
children constituted what we have often treated as an unenforceable “obey the law” injunction.
See S.E.C. v. Smyth, 420 F.3d 1225, 1233 n.14 (11th Cir. 2005) (“This Circuit has held
repeatedly that ‘obey the law’ injunctions are unenforceable.”) (internal quotation marks
omitted). Prosecuting a future violation of a statute or regulation via an order to show cause why
the defendant should not be held in civil contempt and sanctioned – which is what the Secretary
and District 10 Administrator would face if plaintiffs’ counsel wanted them brought to heel for
violating a statute or regulation cited in the consent decree – would deny the defendant the
process the law provides for such violation.

9
child,12 against the Department’s former Secretary, Edward Feaver, two former

District 10 Administrators, including Johnny Brown, seventeen District 10

caseworkers charged with the day-to-day, on-the-ground monitoring of the

children in the District’s foster care system, and their supervisors between

September 15 and November 23, 1998, alleging that A.P. suffered child-on-child

sexual abuse while residing in the Calhoun foster home (the “Calhoun home”).13

A.P. sought money damages against each of these defendants, in their individual

capacities, under 42 U.S.C. § 1983, on the ground that the defendants effectively

caused such sexual abuse and thereby deprived him of his substantive and

procedural rights under the Due Process Clause of the Fourteenth Amendment.

A.P.’s case was assigned to the district judge who had entered the consent

decree in Ward. Also assigned to that judge was a case brought by District 10

dependents shortly after A.P. filed suit. The plaintiffs were N.M. and R.M., two

siblings who joined in one complaint.14 The complaint sought money damages

against Feaver, Brown, another former District 10 administrator, and various

District 10 caseworkers and supervisors under § 1983 relying on the same legal

12
Since A.P. was a minor, he sued through his next friend, David S. Bazerman.
13
The Calhoun home was operated by Joann Calhoun and her ex-husband, Mr. Calhoun, who
are not named as defendants. Mr. Calhoun’s first name is not revealed in the record.
14
N.M. and R.M. are minors. Like A.P., they sue through their next friend, David S. Bazerman.

10
theory A.P. was advancing as a basis for recovering damages for the sexual abuse

he suffered while in the Calhoun home. Since the case was similar to A.P.’s case,

the court dismissed it without prejudice with leave to replead the claims in a single

complaint in the action filed by A.P.15

On April 3, 2003, the plaintiffs filed their first amended complaint. The

complaint focused on the Calhoun home, alleging that it suffered from many of the

ills the Ward complaint had listed as characteristic of District 10: the home was

severely overcrowded and housed children with histories of violence and deviant

behavior, many of whom had been perpetrators as well as victims of sexual abuse.

The complaint alleged that the defendants failed to monitor properly the Calhouns

and the children in their care, and that had they followed DCF’s procedures and

implemented corrective measures, the plaintiffs would not have been abused. The

defendants had allegedly acted with deliberate indifference to the significant risk of

harm the plaintiffs faced and thereby denied them due process of law.

The defendants severally moved to dismiss the first amended complaint for

failure to state a claim upon which relief could be granted.16 The district court

15
Initially, five additional cases arising from similar events in the Calhoun home were assigned
to the same judge. One case was successfully mediated and settled. The remaining four cases
were repled in A.P.’s case but subsequently settled. This includes the claim of minor plaintiff
R.K., which settled during the pendency of this appeal and was dismissed with prejudice
pursuant to the parties’ joint motion on June 11, 2008. I confine this discussion accordingly.
16
See Fed. R. Civ. P. 12(b)(6).

11
referred the motion to a magistrate judge who recommended that the motions be

denied. The defendants objected to the recommendation, and on March 30, 2004,

following oral argument on their objections, the district court, relying on Ray v.

Foltz, 370 F.3d 1079 (11th Cir. 2004), concluded that the complaint should be

amended.17 Like the plaintiffs in Foltz, the plaintiffs before the district court had

not alleged that each defendant, individually, actually knew of the substantial risk

of harm the plaintiffs faced in the Calhoun home and were deliberately indifferent

to such harm. In directing the plaintiffs to amend their first amended complaint,

the district court gave them an opportunity to cure that deficiency.

The plaintiffs responded with a second amended complaint (the

“complaint”) on May 3, 2004. The complaint consisted of 265 pages with 1,355

numbered paragraphs, named as defendants Feaver, Brown,18 and fifteen

individuals involved in the administration of District 10’s foster care system, and

17
Ray v. Foltz was a § 1983 damages action brought by the parents of a child who had been
murdered in a foster home, R.M., against the three employees in DCF’s licensing unit who had
been involved in licensing the home. 370 F.3d 1079, 1080–81 (11th Cir. 2004). The defendants,
invoking the doctrine of qualified immunity, moved the district court to dismiss the parents’
complaint. Id. at 1081. The court denied their motion, and they appealed. Id. We reversed, and
remanded the case with the direction that the district court dismiss the complaint because it
failed to allege that “the defendants actually knew of the substantial risk of harm to R.M. and
that they were deliberately indifferent to it.” Id. at 1085.
18
By this time plaintiffs had dropped their claims against Brown’s predecessor, who had been
named as a defendant in the earlier complaints.

12
asserted 71 claims for relief.19 Each defendant moved to dismiss the complaint for

failure to state a claim for relief on two grounds: first, the complaint failed to recite

facts sufficient to state a constitutional violation against the defendant; and second,

assuming a constitutional violation, the defendant was nonetheless entitled to

qualified immunity.

On September 17, 2004, the district court entered an omnibus order

dismissing all 40 claims brought by the three plaintiffs, A.P., N.M., and R.M.,

because the allegations were insufficient under Foltz to make out a case of

deliberate indifference to a substantial risk of harm.20 A.P. v. Feaver, No. 02-

61534, at 49–50 (M.D. Fla. Sept. 17, 2004) (Omnibus Order on Defs.’ Mot. to

Dismiss Pls.’ Second Am. Compl.) (“Omnibus Order”). The plaintiffs moved the

court pursuant to Federal Rule of Civil Procedure 54(b) to enter a final judgment in

favor of the defendants on the claims the court had dismissed for failure to state a

constitutional violation. The court granted their motion on October 15, 2004, and

1
entered final judgment on those claims. This appeal is from that judgment. 2

19
Thirty-one of these claims were brought by J.K. and R.K., who have since settled.
20
The court went on to hold that because these claims failed to state a constitutional violation,
the defendants were entitled to qualified immunity.
21
Though the plaintiffs included all of the dismissed claims in their notice of appeal, they now
appeal the district court’s ruling on only 36 of the 40 dismissals. The four dismissals which the
plaintiffs do not appeal are the dismissal of A.P.’s claim against Richard Walsh and all three of
plaintiffs’ claims against Pat Spratling.

13
 II.

The Florida Department of Children and Family Services, headed by the

Secretary, is the state executive branch agency that provides services in the areas of

economic self-sufficiency; developmental disability; alcohol, drug abuse, and

mental health; and children and families. During the pertinent time period, the

state was divided into 15 service districts, each headed by a District

Administrator.22 As reflected in the organizational chart appended to this opinion,

one of the persons reporting to the District Administrator of District 10 was the

Child Welfare Director. A Program Administrator and a number of Family

Services Specialists assisted the Child Welfare Director via consultation and

administrative support.23 The Child Welfare Director also supervised three

Program Operations Administrators (“POAs”) who collectively managed the four

units responsible for administering foster care in District 10: “Protective

22
At least one health and human services board existed in each service district for the purpose of
encouraging the initiation and support of interagency cooperation and collaboration in
addressing family services needs.
23
Neither the Florida Administrative Code nor the complaint describes the qualifications of a
Program Administrator and a Family Services Specialist. The sole mention of a Program
Administrator in the complaint is that this person may participate in lieu of the Child Welfare
Director in approving foster home capacity waivers, which I describe at part II.B, infra. The
complaint alleges that the Family Services Specialists assisted District 10 staff with development
and program planning; provided ongoing technical assistance; monitored the provision of
children’s services; performed quality assurance reviews; ensured that policy guidance was
available and understandable to support staff and direct services; and, most pertinent to the case
at hand, participated in foster parent re-licensing and the approval of foster home capacity
waivers.

14
Investigations,” “Licensing,” “Placement,” and “Foster Care.”24 During the time

period covered by the allegations of the complaint, District 10 provided foster care

to over 1,000 children in several hundred homes; accordingly, the four units

contained numerous Supervisors, Investigators, and Counselors.

The plaintiffs allege in their complaint that they were subjected to child-on-

child sexual abuse in the Calhoun home from April 24 until November 23, 1998.

Their complaint therefore focuses on District 10’s licensing of the foster parent in

charge of that home, Joann Calhoun, and the placement and supervision of the

plaintiffs and those who allegedly abused them, namely M.M. and D.L., in her

home. My discussion is similarly focused. I begin by explaining the process for

licensing a foster parent, including Joann Calhoun, prior to the time of the alleged

abuse.25 Next, I explain the process for adjudicating a child a dependent of the

State of Florida, identify the District 10 officials involved in the child’s custodial

placement, and describe the supervision protocol. After that, I review the

allegations regarding the placement and supervision of the plaintiffs before us,

A.P., N.M., and R.M., and the alleged abusers, M.M. and D.L.26

24
Each unit was managed by a different POA, with the exception of the Licensing Unit and the
Placement Unit, which were managed by the same POA.
25
More than one foster parent may be responsible for a foster home. In this case, there was one
foster parent, Joann Calhoun.
26
In the first amended complaint plaintiffs’ counsel filed in this case, M.M. and D.L. were
alleged to have been victims of child-on-child sexual abuse in the Calhoun home. In their

15
 A. Licensing

An applicant seeking a license to operate a foster home was subjected to a

comprehensive background investigation conducted by a Licensing Counselor.27

The investigation centered on the applicant’s financial and emotional stability and

overall character, and involved a “home study” of the suitability of the applicant’s

home for foster care. If the results of the investigation favored granting a license,

the applicant would participate in a foster parent training program. Then, if she

satisfactorily completed the training program, the applicant would receive a license

to operate a specific foster home for a designated number of children – the home’s

capacity.

The license had a term of one year and could be renewed annually. The

annual re-licensing process involved a home visit by the Licensing Counselor, who

would review the results of the initial home study, consider any relevant

information the Foster Care Unit may have acquired in supervising children housed

there during the previous year, and report her findings to her Supervisor. Absent

an unfavorable report from the Counselor, the Licensing Unit would license the

foster parent to operate her home for another year at the same or a different

second amended complaint, counsel dropped M.M. and D.L. as plaintiffs and then alleged that
they perpetrated the sexual abuse A.P., N.M., and R.M. allegedly sustained.
27
The Counselor conducted the investigation under the supervision of her Supervisor, who, in
turn, answered to the Licensing and Placement POA.

16
capacity.

Joann Calhoun became a licensed foster parent in 1990.28 By 1992, her

home had gained a reputation for being able to handle troubled and unruly boys,

some with histories of sexual abuse both as a perpetrator and as a victim. District

10 regarded the Calhoun home as a therapeutic setting, although it was not licensed

explicitly as a therapeutic facility. Over the next six years, until November 23,

1998 – when the incident giving rise to this lawsuit was reported – there were no

reported incidents of child-on-child sexual abuse in the home, which housed as

many as eleven children at a time, including emotionally disturbed children with

histories of sexual and physical aggression.

B. Foster Home Placement and Supervision

A child normally first came within DCF’s jurisdiction on a complaint of

abuse, neglect, or abandonment. The complaint was channeled to the Protective

Investigations Unit and assigned to a Protective Investigator who looked into the

allegations of the complaint under the supervision of a Protective Investigations

Supervisor. If the inquiry yielded “probable cause to support a finding of

reasonable grounds for removal and that removal [was] necessary to protect the

28
The initial licensed capacity of the Calhoun home was two children. The capacity thereafter
fluctuated from time to time on re-licensing. For example, the capacity was five in 1992, three
and later four in 1994, five in 1995, and seven in 1997. As I explain infra, the number of
children residing in the Calhoun home at one time sometimes exceeded the licensed capacity due
to the granting of waivers.

17
child,” 29 the Department would take the child into custody. Fla. Stat.

§ 39.401(1)(b) (1997). If the Department’s legal staff agreed with the Investigator

that the facts supporting removal sufficiently established probable cause, the

Department would then file an emergency shelter petition with the circuit court and

request a hearing. Fla. Stat. § 39.401(3).

Thereafter, within 24 hours of the child’s removal, a detention or “shelter”

hearing had to be convened before the circuit court. Fla. Stat. §§ 39.401(3),

39.402(5)(a).30 At the hearing, the court would appoint a guardian ad litem

(“GAL”) to “represent the child” unless it found that “such representation [was]

unnecessary.” Fla. Stat. § 39.402(7)(a).31 The court would then hear from the

Protective Investigator assigned to the case and the child’s custodian to determine

whether the “probable cause” standard had been met warranting the child’s

detention. Id. If the court found that it had, it would order the Department to

29
Reasonable grounds for removal included: “the child has been abused, neglected, or
abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse,
neglect, or abandonment.” Fla. Stat. § 39.401(1)(b)(1) (1997).
30
Broward County is in the Seventeenth Judicial Circuit of Florida. The Broward County
Circuit Court is divided into divisions, one being the Juvenile Division. In this opinion,
references to the circuit court are to the Juvenile Division of the Broward County Circuit Court.
31
A GAL is “a responsible adult who is appointed by the court to represent the best interests of
the child in a proceeding as provided for by law, who shall be a party to any judicial proceeding
as a representative of the child, and who shall serve until discharged by the court.” Fla. Admin.
Code Ann. r. 65C-13.013(p). Generally, the GAL investigates the child’s situation, identifies
resources and services, advocates for the child to the court and relevant agencies, and monitors
whether court orders or case plans are carried out.

18
detain the child in a shelter or foster home for a period not to exceed 21 days,

unless the child was adjudicated a dependent in the meantime. Id.

If detention was ordered, a petition to have the court adjudicate the child a

dependent had to be filed within seven days after the child was taken into

custody.32 Fla. Stat. § 39.402(8) (1997). Unless the parents or legal custodian of

the child had admitted the allegations of the petition, the court would convene a

hearing to receive the parties’ evidence. Id. If the court found that dependency

had been proven by a preponderance of the evidence,33 Fla. Stat. § 39.408(2)(b), it

would enter an order adjudicating the child a dependent of the State, Fla. Stat. §

39.409, determine the most appropriate services and placement for the child,34 and

retain jurisdiction over the case for the purpose of reviewing the child’s progress,

Fla. Stat. § 39.453.

If the court ordered a dependent child placed in foster care, the Protective

Investigator would contact the Placement Unit and provide that unit with sufficient

32
The petition may be filed by the Department, through an attorney, or “by any other person
who has knowledge of the facts alleged or is informed of them and believes that they are true.”
Fla. Stat. § 39.404(1).
33
A dependent includes a child whom the court has found “[t]o have been abandoned, abused,
or neglected by the child’s parents or other custodians.” Fla. Stat. § 39.01(14).
34
This included placing the child in the temporary legal custody of an adult relative, non-
relative, licensed child-caring agency, or the Department. Fla. Stat. § 39.41. Temporary custody
lasted until terminated by the court or when the child reached the age of 18. Fla. Stat. §
39.41(2)(a)(8)

19
information about the child to enable it to identify a suitable foster home. If the

foster home the Placement Unit selected was operating at its licensed capacity, the

Placement Unit would initiate a waiver process; a waiver, if granted, would permit

5
the placement to go forward. 3

The waiver process proceeded as follows. The Placement Supervisor

conferred with the Licensing Supervisor who had been responsible for licensing or

re-licensing the foster parent – and thus was acquainted with the home at issue –

regarding the appropriateness of the placement. If these Supervisors agreed that an

overcapacity waiver would be appropriate, they would submit a written waiver

request to the POA of Licensing and Placement, to a Family Services Specialist,

and to the Child Welfare Director.36 Compl. ¶ 41. If these officials agreed that a

waiver should issue, they would approve the waiver and the child would be placed

in the foster home.

35
The Florida Administrative Code provided:

Generally there should be no more than five children in a home, including the
substitute care parents’ own children. These criteria may be varied for good
cause and with the written approval of the Family Safety and Preservation
program office. If a family has the emotional and physical capacity to nurture
more than five children, it is not against policy to establish a capacity above the
rule of five. A family must have the physical room and emotional capacity to
provide this care.

Fla. Admin. Code Ann. r. 65C-13.011(2)(b). There is no allegation that the approval of the
Family Safety and Preservation program office was not obtained with respect to placing more
than five children in the Calhoun home.
36
The Program Administrator could be substituted for the Child Welfare Director.

20
 In deciding whether to grant an overcapacity waiver, the Department’s

Licensing Manual required that the following questions be addressed:

1. Is this the only resource available for the children [needing] placement?
Have all available homes been considered and has it been determined that
this particular home is the most appropriate?
2. Can the home physically accommodate the additional child/children? This
includes a bed, adequate closet space and room for personal possessions.
3. Can the substitute parents meet the needs of another child or children? Is
help, relief, or other support available to the family? Is the family managing
well with the children already in the home? Will the addition of another
child/children affect the quality of care being given to the children currently
in the home?
4. Can the children already in placement in the home accept additional
children? Are there any children in the home who are particularly
vulnerable? Can those children be adequately protected?
5. What is the planned duration of the new capacity? 73

Once the child was placed in a foster home, a Foster Care Supervisor would

assign the child’s case to a caseworker, also known as a Family Services

Counselor.38 According to the complaint, the Family Services Counselor was

responsible for communicating the child’s background information to the foster

parents and formulating a plan of care if the child had a history of sexual abuse or

37
Compl. ¶ 42. As the elaborate approval process and multifactor analysis suggest, the Department had
a strong presumption in favor of upholding the original licensed capacity of the home as established by
the Licensing Unit; granting an overcapacity waiver, therefore, meant that under the circumstances, the
addition of a child to a particular foster home would not depreciate the quality of care being provided
there.
38
The formal transfer of the child’s case from the Protective Investigations Unit to the Foster
Care Unit did not normally occur until after the child had been declared a dependent.

21
victimization in order to guard against further sexual assaults.39 Additionally, the

counselor was required to visit the child at least monthly40 and, as alleged in the

complaint, assess the safety of the placement and report any concerns about the

condition of the foster home to the Licensing Unit or any suspected abuse or

neglect to the District’s abuse prevention hotline. If the foster parents ever came to

believe that they were no longer able to manage the child in their home, the Family

Services Counselor would work with the foster parents and the child to remedy the

issues that prompted the removal request and would help facilitate the replacement

process if the problems were not corrected. Fla. Admin. Code Ann. r. 65C-

13.010(5)(m).

C. Placement of Alleged Abusers M.M. and D.L. in the Calhoun Home

1. M.M.’s Placement

On January 6, 1997, 12-year-old M.M., who had an extensive history of

psychological problems and violent outbursts, threatened to harm himself and

several family members with a knife. M.M. was thereafter involuntarily

committed to an in-patient psychiatric facility.41 On January 14, 1997, while M.M.

39
The District staff and foster parents were required to “outline a plan of care to handle any
special management issues identified in the child’s history and assessment” to help prevent
sexual assaults from occurring in the foster home. Fla. Admin. Code Ann. r. 65C-13.015(2)(e).
40
“The counselor will visit with the substitute parents and the children in their care at least
monthly in their home.” Fla. Admin. Code Ann. r. 65C-13.010(5)(g).
41
“Florida Statute § 394.467, known as the Baker Act, allows a person to be placed
involuntarily in a treatment facility if clear and convincing evidence indicates that the person is
22
was in the hospital, DCF received a report that he had sexually assaulted his sister

repeatedly over a 3- or 4-year period. Katherine Kaufman, the POA of Protective

Investigations, subsequently contacted a contract mental health services provider

about placing M.M. in a residential treatment facility. The provider responded that

it could only offer M.M. and his family in-home therapeutic services.42 Thus, upon

his release from the hospital, M.M. returned home on January 23, 1997, and began

to receive in-home therapy. M.M.’s violent behavior resumed, and fearing for her

safety and the safety of her daughter, M.M.’s mother asked that he be removed

from her home.

M.M. was placed in the Department’s custody at the Lippman Shelter – a

short-term residential shelter – on February 3, 1997. On that date, Protective

Investigator Susan Worsley was assigned to M.M.’s case and was informed of

M.M.’s psychological and behavioral history. Shortly after his placement, on

February 12, 1997, Worsley was told that M.M. could no longer remain at the

mentally ill, and, inter alia, there is a substantial likelihood that, based on recent behavior, the
person will inflict serious bodily harm on himself or another person.” Turner v. Crosby, 339
F.3d 1247, 1256 n.7 (11th Cir. 2003).
42
A 1991 study conducted by the Department reported that 94% of foster care counselors
“stated that residential treatment for sexual offenders was either not available in their district or
available in a limited area or on a limited basis.” Compl. ¶ 50. This shortage apparently had not
been alleviated by the time Kaufman inquired about a residential treatment facility for M.M. in
January 1997.

23
shelter because of his background and need for 24-hour one-on-one supervision.43

Worsley therefore contacted the Placement Unit to inquire about a new placement

for M.M.; she suggested the Calhoun home. An inquiry was conducted into

M.M.’s behavioral history and special needs, as well as the make-up of the five

children already in the Calhoun home.44 An overcapacity waiver to permit M.M. to

be placed in the Calhoun home was considered and approved by a Placement

Supervisor, by Margaret Andrews (then a Licensing Supervisor), by Sharon

Woodroof (a Family Services Specialist), by Jennifer Chang (POA of Licensing

and Placement), and by the Child Welfare Director. Accordingly, on February 14,

1997, Worsley placed M.M. with the Calhouns, and on March 24, 1997, M.M. was

adjudicated dependant. M.M. was then assigned to Sharon Pollack, a Family

Services Counselor; there is no allegation that Pollack failed to perform regular

monthly visits to M.M. in the Calhoun home from March 24 through August 1997.

Pollack was again assigned to M.M. from May through September 1998; plaintiffs

allege that she visited him only once during this time, on June 25, 1998.

43
It is unclear from the complaint who provided the District 10 officials with this information.
44
In addition to 12-year-old M.M., I deduce from the complaint that the other children in the
home were R.D., a 17-year-old child who had lived in the home since 1992; B.J., who was about
17 years old; R.T., who was about 13 years old; and two other children of unknown age, one of
whom was R.B.

24
 2. D.L.’s Placement

On June 27, 1995, after numerous allegations of abuse, 11-year-old D.L. was

adjudicated dependent and placed in the custody of his stepfather. In late August

of that year, the Department received a report that D.L. had sexually abused a

younger boy who was also residing in his stepfather’s home. In addition, the

report indicated that D.L. himself was the victim of sexual abuse. D.L. would

remain in the home for over a year, until approximately December 6, 1996, when

he was removed from his stepfather’s custody and placed in a shelter home. D.L.

was adjudicated dependent on January 3, 1997, and moved to a foster home four

days later.

On April 7, 1997, D.L. admitted to a Department official that he had

sexually assaulted three or four young boys who lived near the foster home where

he was residing. After the foster parents requested that D.L. be immediately

removed, an overcapacity waiver for the Calhoun home was requested and was

approved by Department officials, including Woodroof, a Family Services

Specialist, and Chang, POA of Licensing and Placement.45 D.L. was subsequently

placed in the Calhoun home by Loubert Desmangles, a Family Services Counselor,

45
Plaintiffs do not identify the other officials involved in the waiver process, but they
presumably included a Placement Supervisor, a Licensing Supervisor, and the Child Welfare
Director.

25
on April 8, 1997;46 the home now housed seven foster children.47 There is no

allegation that Desmangles failed to make regular visits to D.L. in the Calhoun

home.48 From February 27 to May 5, 1998, Pollack temporarily served as D.L.’s

caseworker; plaintiffs allege that she visited him at the Calhoun home on only one

occasion – March 5, 1998. Susan Wilburn, another Family Services Counselor,

was then assigned to D.L.’s case from May 12 until September 11, 1998, when she

left the Department. There is no allegation that Wilburn failed to visit D.L.

regularly.

D. Placement of Plaintiffs N.M. and R.M. in the Calhoun Home

On September 23, 1993, N.M. and his younger brother, R.M., were

adjudicated dependent and placed in their father’s custody. In early June 1994, the

Department received a report that N.M. had been sexually abused by his male

46
The complaint does not indicate whether Desmangles also served as D.L.’s counselor prior to
his placement in the Calhoun home.
47
From the complaint, I deduce that in addition to D.L. – who was now twelve years old – the
six other children were 17-year-old R.D., 17-year-old B.J., 13-year-old R.T., 12-year-old M.M.,
and two other children, one of whom may have been in the tenth grade. R.B. had left the
Calhoun home a few days earlier, on April 2, 1997.
48
The exact duration of time that Desmangles served as counselor to D.L. is unclear from the
complaint. The complaint suggests that Desmangles was still D.L.’s counselor as of July 1,
1997, but there is no indication of whether he continued to serve in that capacity until Pollack
became D.L.’s counselor on February 27, 1998. Regardless, there is no allegation that whoever
served as D.L.’s counselor from July 1, 1997 to February 27, 1998 failed to visit him regularly in
the Calhoun home.

26
babysitter. Approximately four years later, N.M. and R.M. were moved from their

father’s home to shelter care and, on April 6, 1998, placed in the legal and physical

custody of the Department. Due to their behavioral problems, 8-year-old N.M. and

5-year-old R.M. were placed in several different foster homes before arriving at the

Calhoun home on April 24 and May 6, 1998, respectively. Eleven foster children

were now living in the Calhoun home.49 From May 21 through September 11,

1998, Wilburn served as Family Services Counselor to N.M. and R.M., in addition

to D.L.50 There are no allegations that she failed to visit these three children

regularly in the home.

E. Home by Home Review

In August of 1998, the Department began a Home by Home Review of

approximately 50 “high priority” homes that District 10 identified as being

49
Plaintiffs allege that no overcapacity waivers were requested for N.M. or R.M. at the time “as
no waiver could be approved”; according to the complaint, this was because the May 16, 1997
re-licensing of the Calhoun home had restricted the home to the seven children already living
there. The Calhoun home was re-licensed on June 1, 1998. A waiver for R.M.’s placement in
the Calhoun home was subsequently approved on November 23, 1998, with Corinne Millikan, a
Family Services Specialist, allegedly participating in the approval. The complaint does not
allege when the waiver for N.M.’s placement was approved.
According to the complaint, granting an overcapacity waiver after the child had been
placed in the foster home violated Department policy.
50
The complaint does not indicate who subsequently became counselor to N.M., R.M., and
D.L., but there is no specific allegation that these three children were not assigned a caseworker
between September 11, 1998 and November 23, 1998.

27
overcapacity or having had some previous report of abuse or neglect. Woodroof

and Chang had designated the Calhoun home as one of the high-priority homes to

be reviewed. As part of the Review, multiple foster children in the Calhoun home

were interviewed, the foster children’s records were inspected, and the home’s

licensing records were examined. On September 8, 1998, the results of the Review

were issued in a report, copies of which went to Feaver, Brown, Kaufman,

Millikan, Woodroof, and Chang. Compl. ¶ 147.

Among other things, the report described the Calhoun home as “cramped,”

with eight children, two of whom, D.L. and M.M., had histories of sexual

perpetration and mental health problems.51 M.M., D.L., and others required the

frequent attention of mental health technicians visiting the home. Notably, N.M.

was one of the children who was interviewed by the reviewers; his claim of

maltreatment was that “everyone at the home was mean to him.” Compl. ¶ 144.

The Review contained no report of child-on-child sexual abuse in the Calhoun

51
The following information was documented about the Calhoun home in the report: (1) eleven
individuals resided in the Calhoun home – Mr. Calhoun, Joann Calhoun, their son G. Brock (one
of the Calhouns’ natural children who was living in the home at the time), and eight foster
children; (2) the house was “cramped” and there were often up to three mental health technicians
in the home visiting the children; (3) Mr. Calhoun would discipline one of the children by
spanking; (4) D.L. had a history of sexual perpetration; (5) M.M. had a history of sexual and
physical aggression; (6) D.L. should not be allowed to sleep in the same room with younger
children; and (7) N.M. informed the reviewers that everyone in the house was mean to him. The
report also noted that previously there were multiple “direct[ives] to limit the number of children
and reduce capacity” that had not been followed. Compl. ¶¶ 144–45.

28
home. District 10 responded to the report’s findings by preparing and

implementing “Corrective Action Plans” for each of the 50 homes.

F. Placement of A.P. in the Calhoun Home and Report of Sexual Abuse

Around May 11, 1998, A.P. was ordered into the legal and physical custody

of the Department. Eight-year-old A.P. had a documented history of sexual

victimization and perpetration, having previously acted out sexually on his younger

sister. A.P. was placed in the Calhoun home on September 17, 1998, which

brought the total number of foster children to nine. 25

A waiver approving A.P.’s placement in the Calhoun home was obtained about

eleven days later; Corinne Millikan, a Family Services Specialist, was allegedly

one of the persons who participated in the approval.

On November 23, 1998,53 A.P. told his natural mother’s therapist that he was

being subjected to repeated sexual abuse by the other foster children in the

Calhoun home, particularly by M.M. and D.L.54 This information was immediately

52
Three children had left the home since the placements of N.M. and R.M. on April 24 and May
6, 1998, respectively.
53
The population of the Calhoun home had risen to thirteen foster children by this time.
54
The complaint alleges that A.P., N.M., and R.M. were all subjected to regular abuse from the
time of their placement in the Calhoun home until their removal.

29
reported to the abuse prevention hotline,55 and A.P. was removed from the Calhoun

home on November 23, 1998.

On November 24, 1998, an emergency meeting was called before Judge

Birken, who concurred in the Department’s decision to remove A.P. from the

home. Pursuant to a court order, N.M. and R.M. were removed from the Calhoun

home that same day, and 24-hour “awake” supervision was imposed on the home

to prevent any further child-on-child sexual activity. The Department also

immediately commenced an investigation into the allegations. The investigation

concluded on December 3, 1998, with a finding that there were “no indicators of

abuse.” The 24-hour awake supervision was subsequently canceled on December

11, 1998. Several months later, a second abuse report was made to the hotline on

March 22, 1999, alleging that N.M. and R.M. had also been sexually abused during

the time that they had lived in the Calhoun home. A 2-day investigation verified

that there was child-on-child sexual abuse occurring in the home, and the

remaining children were removed on March 25, 1999.

III.

Each of the 40 claims dismissed by the district court was dismissed pursuant

to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which

55
See Fla. Stat. § 415.504 (requiring anyone “who knows, or has reasonable cause to suspect,
that a child is an abused, abandoned, or neglected child” to report “such knowledge or suspicion
to the department”).
30
relief can be granted. A motion to dismiss under Rule 12(b)(6) should be granted

when a defendant is found to be immune from suit due to qualified immunity. See

Williams v. Bd. of Regents, 477 F.3d 1282, 1300 (11th Cir. 2007). An order

granting a motion to dismiss on the basis of qualified immunity is reviewed de

novo by applying the same standard as the district court did, “accepting all

allegations as true and construing facts in a light most favorable to the plaintiff[s].”

GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998).

However, such acceptance should not be given blindly; only well pleaded factual

allegations are taken as true and only reasonable inferences are drawn in favor of

the plaintiff. See Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th

Cir. 1992); Marrero v. City of Hialeah, 625 F.2d 499, 502 (5th Cir. 1980);56 see

also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999) (per curiam) (“reasonable

inferences”); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974) (“unwarranted deductions of fact are not admitted as true”). A plaintiff

must allege more than mere “labels and conclusions”; the complaint must include

“[f]actual allegations . . . [sufficient] to raise a right to relief above the speculative

56
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

31
level.” Bell Atl. Corp. v. Twombly, 550 U.S. ___ , 127 S. Ct. 1955, 1964–65, 167

L. Ed. 2d 929 (2007) (citations and internal quotations omitted). Indeed, “any

conclusory allegations, unwarranted deductions of fact or legal conclusions

masquerading as facts do not prevent dismissal.” Weissman v. Nat’l Ass’n of Sec.

Dealers, 500 F.3d 1293, 1305 (11th Cir. 2007) (en banc) (Tjoflat, J., dissenting)

(citing Associated Builders, Inc., 505 F.2d at 99).

While Rule 8 allows a plaintiff a great deal of latitude in the manner in

which a complaint presents a claim,57 this court has implemented more stringent

pleading requirements in § 1983 actions in which qualified immunity is likely to be

raised as a defense. See Swann v. S. Health Partners, Inc., 388 F.3d 834, 838 (11th

Cir. 2004) (noting that the heightened pleading standard for qualified immunity

cases survives the Supreme Court’s decision in Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122

L. Ed. 2d 517 (1993), which struck down the heightened pleading

requirement in non-qualified immunity § 1983 suits).58 This heightened specificity

57
Fed. R. Civ. P. 8(e)(1) (2006) provides that “[e]ach averment of a pleading shall be simple,
concise, and direct. No technical forms of pleading or motions are required.”
58
For an additional discussion of the Swann opinion and qualified immunity, see Weissman v.
National Association of Securities Dealers, 500 F.3d 1293, 1309 n.6 (11th Cir. 2007) (en banc)
(Tjoflat, J., dissenting).

32
is necessary so that the court has sufficient factual allegations to allow it to assess

whether a defendant’s actions violated a clearly established right. GJR Invs., Inc.,

132 F.3d at 1367. If it is impossible to make this determination from the face of

the plaintiff’s complaint, the purpose of the qualified immunity defense – shielding

government officials from the demands of defending oneself from damages suits –

may well be frustrated. 95

IV.

It is undisputed that the actions of which plaintiffs complain were

undertaken by the defendants in the course of their “discretionary functions.” See

Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004) (considering whether

the official engaged in acts “of a type that fell within the employee’s job

responsibilities”). Therefore, to overcome the defendants’ entitlement to qualified

immunity, plaintiffs must demonstrate that (1) the defendants violated their federal

constitutional or statutory rights, and that (2) those rights were clearly established

at the time of the defendants’ actions. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

59
Qualified immunity “is an immunity from suit rather than a mere defense to liability,”
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411 (1985), and
therefore its purposes would be “thwarted if a case is erroneously permitted to go to trial.”
Harrell v. Decatur County, 22 F.3d 1570, 1578 (11th Cir. 1994) (Dubina, J., dissenting), vacated
by 41 F.3d 1494 (11th Cir. 1995) (per curiam) (adopting Judge Dubina’s dissenting opinion).

33
Cir. 2002); Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002).

The complaint in this case does not allege that any of the defendants directly

participated in the sexual abuse that the plaintiffs allegedly suffered; that is, they

were not the direct instruments of the abuse. Rather, plaintiffs claim that it was the

defendants’ failure to act on plaintiffs’ behalf, their failure to follow DCF

guidelines and regulatory mandates and to heed warnings, that led to the abuse.

Plaintiffs’ argument is, in short, that the defendants each were positioned either to

prevent the abuse from occurring or to curtail further abuse once it had begun and,

by failing to do so, violated the substantive component of the Due Process Clause

of the Fourteenth Amendment.

As an initial matter, it is important to expound upon the difference between a

§ 1983 suit seeking injunctive relief and the case before us, a § 1983 suit for

damages. The defendant-officials in a suit for injunctive relief, as was the case in

Ward v. Feaver, are those individuals who have the power to provide the plaintiffs

with an adequate remedy – not necessarily the officials who actually violated the

plaintiffs’ rights. The latter question is largely irrelevant in the equitable relief

context; that is, it does not matter who specifically violated the rights of the

plaintiffs, merely that the plaintiffs are suffering an ongoing violation of their

34
rights and the defendants before the court have the authority to stop it from

continuing.

In a suit for damages, on the other hand, the crucial inquiry is whether each

of the defendant-officials personally violated the plaintiffs’ constitutional rights.

Individual liability under § 1983 cannot arise vicariously through a theory of

respondeat superior. Monell v. Dep’t. of Soc. Servs. of New York, 436 U.S. 658,

690–95, 98 S. Ct. 2018, 2035–38, 56 L. Ed. 2d 611 (1978); Holloman ex rel.

Holloman, 370 F.3d at 1290. Without the liability-extending tool of respondeat

superior, “[s]upervisory officials cannot be held liable under § 1983 for the

unconstitutional actions of their subordinates[.]” Gray v. Bostic, 458 F.3d 1295,

1308 (11th Cir. 2006). However, the absence of vicarious liability does not

foreclose holding a supervisor independently liable if he or she acts in a

deliberately indifferent manner toward the plaintiff. Greason v. Kemp, 891 F.2d

829, 836–37 (11th Cir. 1990).60

60
Under the “extremely rigorous” standard for holding a supervisor liable in his individual
capacity, supervisory liability is only appropriate “when the supervisor personally participates in
the alleged unconstitutional conduct or when there is a causal connection between the actions of
a supervising official and the alleged constitutional deprivation.” Cottone v. Jenne, 326 F.3d
1352, 1360–61 (11th Cir. 2003). “The necessary causal connection can be established when a
history of widespread abuse puts the responsible supervisor on notice of the need to correct the
alleged deprivation, and he fails to do so,” or “when a supervisor’s custom or policy . . . result[s]
in deliberate indifference to constitutional rights or when facts support an inference that the
supervisor directed the subordinates to act unlawfully and failed to stop them from doing so.”

35
 Having noted this distinction, I proceed to set forth the standard for

establishing a violation of a federal constitutional or statutory right in a § 1983 suit

for damages against a government official in his or her individual capacity.

A.

“[T]he right to personal security constitutes a historic liberty interest

protected substantively by the Due Process Clause” from government

infringement. See Youngberg v. Romeo, 457 U.S. 307, 315, 102 S. Ct. 2452,

2458, 73 L. Ed. 2d 28 (1982) (internal quotation marks omitted). That right is not

extinguished by confinement in a prison, Hutto v. Finney, 437 U.S. 678, 98 S. Ct.

2565, 57 L. Ed. 2d 522 (1977); commitment to a mental institution, Youngberg,

457 U.S. at 315–16, 102 S. Ct. at 2457–58; or, most pertinently, placement in

foster care, Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1998) (en banc).

This liberty interest, however, is not absolute; the proper question is “not simply

whether a liberty interest has been infringed but whether the extent or nature of the

. . . lack of absolute safety is such as to violate due process.” Youngberg, 457 U.S.

at 320, 102 S. Ct. at 2460. Therefore, whether an individual’s due process right

has been violated is determined by weighing “‘the liberty of the individual’”

Id. (citations and internal quotation marks omitted).

36
against “‘the demands of an organized society.’” Taylor, 818 F.2d at 795 (quoting

Youngberg, 457 U.S. at 320, 102 S. Ct. at 2460).

To achieve the proper balance between the interests of the state and the

rights of a child in foster care, this court adopted the “deliberate indifference”

standard. Id. at 795–97 (applying the “deliberate indifference” standard of Estelle

v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), to the foster care

context). Under this standard, to establish a constitutional violation, “it [must be]

alleged . . . that the state officials were deliberately indifferent to the welfare of the

child.” Foltz, 370 F.3d at 1083 (internal quotation marks omitted). To put it

differently, a constitutional violation occurs if the plaintiffs’ “injuries were

proximately caused by the deliberate indifference of officials to known risks.”

Omar v. Lindsey, 243 F. Supp. 2d 1339, 1343 (M.D. Fla. 2003), aff’d on basis of

district court opinion, 334 F.3d 1246 (11th Cir. 2003).

Because deliberate indifference requires a much higher standard of fault than

mere or even gross negligence, see Bozeman v. Orum, 422 F.3d 1265, 1272 (11th

Cir. 2005), the risk involved must be of sufficiently serious magnitude – a

substantial risk of serious harm, which in this context denotes a “strong likelihood”

of serious harm. See Cook v. Sheriff of Monroe County, 402 F.3d 1092, 1115

37
(11th Cir. 2005) (“[D]eliberate indifference requires that the defendant deliberately

disregard a strong likelihood rather than a mere possibility that the . . . harm will

occur.”) (internal quotation marks omitted); see also Stinson v. County of

Montgomery, No. 07-15671, 2008 WL 2610762, at *5 (11th Cir. July 3, 2008)

(unpublished) (noting that “mere general calls for staff assistance and assertion that

C.P. was ‘messing with’ him were not enough to inform the Officers that [plaintiff]

faced a substantial risk of serious harm”).

Furthermore, the Supreme Court has expressly rejected “an objective test for

deliberate indifference” in favor of a subjective approach. Farmer v. Brennan, 511

U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 811 (1994). An official acts with

deliberate indifference only when he disregards a substantial risk of serious harm

“of which he is actually aware.” Foltz, 370 F.3d at 1083 (citing Farmer, 511 U.S.

at 836, 114 S. Ct. at 1978). It is not enough to show that an official is “aware of

facts from which the inference could be drawn that a substantial risk of serious

harm exists”; “he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.

Ct. at 1979 (emphasis added); see also Burnette v. Taylor, No. 07-11061, 2008 WL

2685678, at *4 (11th Cir. July 10, 2008) (“No liability arises under the

Constitution for an official’s failure to alleviate a significant risk that he should

38
have perceived but did not . . . . As such, imputed or collective knowledge cannot

serve as the basis for a claim of deliberate indifference. Each individual Defendant

must be judged separately and on the basis of what that person knows.”) (citation

and internal quotation marks omitted).

Nor is it enough for a plaintiff to demonstrate a defendant’s subjective

knowledge of a substantial risk of serious harm; the plaintiff must also show that

with that knowledge, the defendant nonetheless knowingly or recklessly

“disregard[ed] that risk by failing to take reasonable measures to abate it.” Hale v.

Tallapoosa County, 50 F.3d 1579, 1583 (11th Cir. 1995) (internal quotation marks

omitted); see also Farmer, 511 U.S. at 844, 114 S. Ct. at 1982–83 (“[P]rison

officials who actually knew of a substantial risk to inmate health or safety may be

found free from liability if they responded reasonably to the risk, even if the harm

ultimately was not averted.”). Implicit in that inquiry is the requirement that the

defendant must have known of feasible “means to cure that condition, so that a

conscious, culpable refusal to prevent the harm can be inferred from the

defendant’s failure to prevent it.” LaMarca v. Turner, 995 F.2d 1526, 1536 (11th

Cir. 1993) (internal quotation marks omitted); see also Hale, 50 F.3d at 1583

(“[U]nder this standard, a jury could reasonably find that [the defendant] failed to

39
take reasonable measures to abate a known risk of harm if the evidence showed

that he knew of ways to reduce the harm but knowingly declined to act, or that he

knew of ways to reduce the harm but recklessly declined to act.”) (internal

quotation marks omitted). The court must remain mindful of the need to avoid

“second-guessing the difficult choices that . . . officials must face and of

improperly extending deliberate indifference standards to mere inadvertence or

errors in good faith.” Hale, 50 F.3d at 1584 (internal quotation marks omitted).

Therefore, in order to establish deliberate indifference, a plaintiff must

allege that the defendant had (1) subjective knowledge of a substantial risk of

serious harm, and yet (2) disregarded that risk (3) “by conduct that is more than

mere” or gross negligence. See McElligott v. Foley, 182 F.3d 1248, 1255 (11th

Cir. 1999); Bozeman, 422 F.3d at 1272.61 In short, our task in this case is to

61
Ray v. Foltz mistakenly cites McElligott as requiring a defendant to be “objectively aware of
a risk of serious harm.” 370 F.3d 1079, 1083 (11th Cir. 2004) (emphasis added). And this error
appears to have been replicated by later decisions. See, e.g., Nichols v. Maynard, 204 Fed.
Appx. 826, 828 (11th Cir. 2006) (unpublished) (noting that plaintiffs are required to allege that
the defendant “was objectively aware of a risk of serious harm.” (quoting Ray, 370 F.3d at 1083
(citing McElligott, 182 F.3d at 1255))); Lavender v. Kearney, 206 Fed. Appx. 860, 863 (11th
Cir. 2006) (unpublished) (same); Maldonado v. Snead, 168 Fed. Appx. 373, 379 (11th Cir. 2006)
(unpublished) (same). Though these decisions appear to apply the proper subjective test despite
this error, I hope that this discussion will add further clarity to this difficult area of the law.
To be sure, there is a related objective component to the standard; it would not be enough
for the defendant subjectively to believe his conduct created a substantial risk of serious harm, if
in fact no such risk was created. The facts of which the defendant is subjectively aware must
also be such that “the inference could be drawn that a substantial risk of serious harm exists.”
Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 811 (1994) (emphasis

40
determine what each defendant actually knew prior to the alleged abuse and what

actions he or she took in response to that knowledge.

B.

In the case at hand, the crux of our deliberate indifference analysis is

whether, prior to the alleged abuse reported on November 23, the defendant-

official possessed subjective knowledge that the plaintiffs faced a substantial risk

of child-on-child sexual abuse in the Calhoun home – the first prong of the

McElligott test. Only if the complaint sufficiently alleges, under our heightened

pleading standard, that the defendant possessed this actual awareness can we then

evaluate the sufficiency of the actions he or she took in response – the second and

added); see also Marsh v. Butler County, 268 F.3d 1014, 1030 (11th Cir. 2001) (“We conclude
that Plaintiffs adequately allege 1) an objective, substantial risk of serious harm to inmates
existed, 2) the Sheriff was subjectively aware of this risk . . . .”); Purcell v. Toombs County, 400
F.3d 1313 (11th Cir. 2005) (finding that “[t]he record does not support Purcell’s contentions that
the conditions – bearing everything in mind – rose to the level of a substantial or sufficiently
serious risk as opposed to some lesser risk of harm”) (internal quotation marks omitted). It is
this latter, objective inquiry that informed our disposition of Jorge T. v. Florida Department of
Children and Families, 250 Fed. Appx. 954 (11th Cir. 2007) (unpublished). In that case, Jorge
T. brought a § 1983 claim against seven DCF employees after Julian, another foster child living
in the home in which Jorge T. had been placed, sexually assaulted him in the home’s bathroom.
Id.. at 955. In determining whether the defendants were immune from suit, we put aside as
irrelevant the plaintiff’s various allegations that “one DCF employee received reports that Jorge
T. and his brother were not well-kept, were dirty and lacked proper care”; that “the defendants
failed to respond to various structural errors and a general increase in reports of abuse in the
foster care system”; and that “the defendants improperly screened Jorge T.’s foster mother’s
background.” Id.. The only relevant and specific allegation was that “one of the seven
defendants knew that Julian had previously entered the bathroom [several times] when it was
occupied by Jorge T.,” which we concluded was insufficient “to support the inference that a
substantial risk of serious harm to Jorge T. existed.” Id. at 955–56.

41
third prongs of McElligott.

To guide this decision, I look to some of the cases that have addressed what

constitutes subjective knowledge of a substantial risk of serious harm. In other

words, what facts or circumstances must be pled in order to allege sufficiently that

the government official actually knew of a strong likelihood that future serious

harm would befall the plaintiff? I first canvass cases in the foster care context, and

then consider the relevance of cases arising from the analogous context of

prisoners and pretrial detainees.

1.

The cases that I review from the foster care context – both published and

unpublished – all concern § 1983 suits filed by or on behalf of children against

employees of the DCF on the basis of abuse from their foster parents or other

children in the foster homes. The complaint in Omar v. Lindsey, 243 F. Supp. 2d

1339, 1343 (M.D. Fla. 2003), aff’d on basis of district court opinion, 334 F.3d

1246 (11th Cir. 2003), easily satisfied the first prong of McElligott. In that case,

the plaintiff alleged that the defendants placed the child in an inappropriate foster

home and allowed him to be adopted by an abusive parent, resulting in a

“childhood of unremitting and intense abuse.” Id. at 1342. In denying the

42
defendants’ motion to dismiss, the court found that the foster child’s “repeated

alleg[ations] that Defendants knew that Plaintiff was being egregiously abused” by

his foster mother constituted sufficient notice under the deliberate indifference

analysis. Id. at 1343.

Other than Lindsey, none of the remaining cases involved allegations that

were sufficient to satisfy McElligott’s requirement of subjective knowledge. Ray

v. Foltz, 370 F.3d 1079 (11th Cir. 2004), which involved a child who had been

neglected and abused by his foster parents, stands for the proposition that neither

the negligent failure to gather information that would have led to the discovery of

adverse information about the foster parents,62 nor the negligent failure to follow

certain DCF guidelines and procedures,63 are sufficient to demonstrate deliberate

indifference in the absence of allegations that the defendants actually knew of a

62
In support of their deliberate indifference claim, plaintiffs allege that “the defendants failed to
take various actions that, if taken, would have led to the discovery of adverse information about
the [foster parents] and their fitness to serve as foster parents,” and “ignored certain adverse
information about the [foster parents] and their fitness to serve as foster parents,” such as two
previous abuse reports in regards to another child. Foltz, 370 F.3d at 1084 & n.5.
63
Plaintiffs allege that the defendant-officials “violated certain Department guidelines and
procedures in licensing the [foster] home, which both allowed [the child] to be placed in a
dangerous environment for foster children, and aggravated the likelihood that he would be
abused there,” Foltz, 370 F.3d at 1081, and also “failed to require the [foster parents] to
complete certain training that might have produced more information about them and violated
Department rules by placing too many children in that home.” Id. at 1084.

43
substantial risk of serious harm or “deliberately chose not to learn of the abuse.”

Id. at 1085.

In both Omar v. Babcock, 177 Fed. Appx. 59 (11th Cir. 2006)

(unpublished), and Maldonado v. Snead, 168 Fed. Appx. 373 (11th Cir. 2006)

(unpublished), there was no evidence that the defendants’ failure to draw the

inference that the minor children were being abused “was anything other than an

unfortunate miscue.” See Omar, 177 Fed. Appx. at 64. To establish that the

officials were on notice of a serious risk of abuse, the plaintiff in Omar presented

evidence that after he was placed in the foster home, but before his adoption was

approved by the Department, the suspicion of abuse was raised but later dismissed

by the Department after a doctor found multiple “loop marks” on the plaintiff’s

body and was “concerned that these marks might have resulted from abuse.” Id. at

61. Additionally, the plaintiff alleged that the officials were aware that he

displayed evidence of various psychological problems and physical illness

following his placement. Id. at 61–64. These allegations were held to be an

insufficient predicate for a claim of deliberate indifference because “there was no

evidence . . . that any of the [defendants] actually drew the inference that these

facts meant [the child] was being abused.” Id. at 63–64. The court in Maldonado

44
likewise concluded that the evidence was too weak to support the allegation that

defendants were actually aware of the risk of harm to the plaintiff prior to her

injury. 168 Fed. Appx. at 383–85 (considering a sore which the child’s doctor

concluded was impetigo, rather than a cigarette burn; a cut described in an incident

report as a “small gash under left eye,” possibly caused accidentally from playing

with a toy; and a statement made by the aggressor after the child’s injury had

occurred).

In Nichols v. Maynard, 204 Fed. Appx. 826 (11th Cir. 2006) (unpublished),

in which a 5-year-old foster child was sexually abused by an older foster child, JK,

we concluded both that the defendants were not subjectively aware of a substantial

risk of serious harm, and that they did not recklessly disregard any such risk. The

complaint made two allegations that were the focus of the court’s review. First, it

alleged that the officials “deliberately and recklessly disregarded adverse

information regarding JK’s background of sexually acting out and deliberately

ignored the obvious, serious risk of harm JK’s placement . . . presented to

[plaintiff] and the other children in the foster home.” Id. at 828 (internal quotation

marks omitted). In support of this allegation, the plaintiff asserted that the officials

had actual knowledge of the following facts: (1) “JK had sexually acted out in at

45
least five prior foster homes”; (2) “JK got into bed naked with one of his foster

parents’ natural sons”; and (3) “JK had been sexually victimized numerous times in

prior foster homes.” Id. at 828–29 (internal quotation marks omitted). Second, the

complaint alleged that the defendants “deliberately violated their own department

guidelines by placing JK, in an already overcrowded home, in a bedroom with

younger children.” Id. at 828.

Observing that “the records indicate that JK’s part in sexual abuse had been

as a victim, not an aggressor,” we concluded that the alleged facts did not

demonstrate that the defendants were on notice of “any serious risk of harm to [the

5-year-old child].” Id. at 829. Moreover, even assuming that the defendants had

been aware of a substantial risk of serious harm, the allegations describing the

defendants’ actions showed that the defendants did not recklessly disregard that

risk through their conduct. Id. Three days after placing JK in the home, the

defendants had “informed the foster parents of JK’s history of being a sexual abuse

victim,” and that after the sexual abuse incident occurred months later, the

defendants “removed JK and conducted an investigation into the incident.” Id.

2.

In addition to our foster care decisions, prison cases are also instructive on

46
the issue of notice because these decisions originally served as the theoretical

underpinnings of our decision in Taylor – which first recognized a child’s

constitutional right to physical safety and freedom from unnecessary harm while in

foster care. However, it is important to note a caveat that must be observed when

considering these cases. Although we recognized in Taylor that foster homes are

sufficiently “analogous” to penal institutions to support a § 1983 action, we

cautioned that the contexts “are not parallel.” 818 F.2d at 796. We echoed the

Second Circuit’s earlier observations in Doe v. New York City Department of

Social Services, 649 F.2d 134 (2d Cir. 1981):

There is a closer and firmer line of authority running from
superiors and subordinates within [a penal] institution than exists in
the foster care context, particularly in respect of the relationship
between agency personnel and the foster parent. [Prison]
administrators can readily call in subordinates for consultation. They
can give strict orders with reasonable assurance that their mandates
will be followed, and as added insurance other employees stationed in
proximity of the subordinates to whom orders are directed may be
instructed to monitor compliance.
By contrast, the [foster care agency] had to rely upon
occasional visits for its information gathering, and its relationship to
the foster family was less unequivocally hierarchical than is the case
with prison guards and a warden.

Id. at 142; see also Taylor, 818 F.2d at 796 (“Obviously, a closer relationship

exists between superior officers, subordinate officers, and the inmates within a

47
prison than exists between a state agency, the foster parents, and the foster child in

a foster care setting. In a penal institution, all the persons involved are in close and

daily contact. Wardens and supervisors have the ability to daily monitor the

activities of subordinates as well as the effect of certain conduct upon inmates.”).64

Simply put, it is the foster care parents, not DCF officials, who are comparable to

the prison warden and guards; the foster parents are the ones with primary

responsibility for the safety of the children. Certain DCF officials are more

analogous to officials in the Federal Bureau of Prisons whose posts are remote

from the correctional facility. Based on this distinction, we asserted that “[t]he

lack of proximity in the foster home [between the children and state officials] . . .

suggests that deliberate indifference is not as easily inferred or shown from a

failure to act.” Taylor, 818 F.2d at 796. Children in plaintiffs’ situation

consequently “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.” Id.

64
Furthermore, as noted by the partial dissent in Taylor, there are also normative pressures
constricting the supervisory role of officials in the foster care context that their counterparts in
prisons do not face. “[T]o give the child a normal family environment, foster care officials
understandably feel ‘constrained to respect the foster family’s autonomy and integrity[,] and
[feel] pressured to minimize intrusiveness,’” a pressure that prison officials do not feel as “their
role is to monitor and control an inmate’s environment and activities on a day-to-day basis.
Consequently, prison officials will normally have more information available to them about the
conditions of an inmate’s confinement than officials overseeing foster care will have about the
conditions of a foster home placement.” Taylor, 818 F.2d at 815 (Tjoflat, J., concurring in part
and dissenting in part) (quoting Doe v. New York City Dep’t of Soc. Servs., 649 F.2d 134, 142
(2d Cir. 1981)) (alterations in original).
48
 In view of this distinction, prison cases more effectively elucidate the kind

of allegations that do not sufficiently allege subjective awareness on the part of

state officials in the foster care context, than those that do. To put it differently,

allegations that fail to establish subjective awareness in the prison context are also

generally insufficient to establish subjective awareness in the foster care context,

but allegations that properly allege subjective awareness in the prison context are

not necessarily adequate in the foster care context. With this in mind, I turn to the

prison cases.

In Carter v. Galloway, 352 F.3d 1346 (11th Cir. 2003), an inmate asserted a

§ 1983 claim for damages against prison officials for allowing him to remain in the

same cell as another inmate who subsequently attacked him. Id. at 1349. In

finding that the plaintiff failed to establish that the officials had “a subjective

awareness of a substantial risk of serious physical threat,” id. at 1350, we were

unpersuaded that the following allegations constituted sufficient notice: (1) the

officials “clearly knew” that the plaintiff’s cellmate was a “problem inmate” who

had “a well-documented history of prison disobedience and had been prone to

violence”; and (2) the officials had “specific notice” that the inmate was “act[ing]

crazy, roaming his cell like a caged animal,” was planning to fake a hanging in

49
order to be transferred to the medical prison, and had informed the plaintiff that he

would have to help with the fake hanging “one way or another.” Id. at 1349.

(internal quotation marks omitted). We explained that “before Defendants’

awareness arises to a sufficient level of culpability, there must be much more than

mere awareness of [the inmate]’s generally problematic nature”; “the prison

official must be aware of specific facts from which an inference could be drawn

that a substantial risk of serious harm exists – and the prison official must also

draw that inference.” Id. (emphasis added and internal quotation marks omitted).

We observed that although the plaintiff had complained to the defendants many

times about his cellmate’s “crazy” actions, the “Plaintiff never told [the

defendants] that Plaintiff feared [his cellmate] or that [his cellmate] clearly

threatened Plaintiff.” Id. In short:

Defendants only possessed an awareness of [the attacker’s] propensity
for being a problematic inmate; to find Defendants sufficiently
culpable would unduly reduce awareness to a more objective standard,
rather than the required subjective standard set by the Supreme Court.
Such a generalized awareness of risk in these circumstances does not
satisfy the subjective awareness requirement.

Id. at 1350; see also id. (noting that the defendant-official remained “unaware of a

particularized threat or fear felt by Plaintiff in regards to rooming with [the

aggressor],” and that allegations of “a generalized awareness of risk” are

50
insufficient to meet the subjective awareness requirement) (emphasis added).

In Marsh v. Butler County, 268 F.3d 1014 (11th Cir. 2001) (en banc), two

former inmates brought a § 1983 suit against the county and sheriff to recover for

injuries they sustained when assaulted by other prisoners, alleging that the

conditions at the jail posed a substantial risk of serious harm to inmates,

specifically the risk of inmate-on-inmate attacks. Id. at 1023–24. Amidst the

parade of horribles presented in the complaint, we focused on certain allegations

that indicated the inmates had ready access to makeshift weapons fashioned “by

cannibalizing parts of the decaying building”; that the guards were unable to lock

down the free-roaming inmates because the locks to cell doors did not work; and

that there was no visual or audio surveillance of inmates – indeed, “jailers were

afraid to conduct visual inspections.” Id. at 1024–25, 1028. Consequently, the

inmates, who were mostly housed on the second floor of the building, had no

“means to contact guards other than by screaming or banging on the walls.” Id. at

1025.65 In support of their deliberate indifference claim against the sheriff in her

65
The complaint also alleged that the prisoners “were not screened for mental health, medical
conditions or conflicts with other prisoners before entering the Jail”; once inside, “there was no
segregation of nonviolent inmates from violent inmates, pretrial detainees from convicted
criminals, juveniles from adults, or inmates with mental disorders from those without mental
disorders”; “the Jail was routinely understaffed,” with often only one jailer on duty at a time;
“prisoners were not disciplined or segregated when they attempted to escape, threatened jailers,
destroyed property or assaulted other inmates”; and “no head counts of prisoners were made to

51
individual capacity, the plaintiffs alleged that the sheriff was subjectively aware of

the risk and offered evidence that she was provided with (1) “faultfinding,

inspection reports by state agencies, reports outlining the conditions that existed at

the Jail”; (2) “many complaints from prisoners and requests for assistance”; (3)

“correspondence from prisoners’ lawyers detailing the staffing problems and

warning of a ‘serious threat to the safety of inmates’”; and (4) “a lawsuit filed in

the district court [prior to the attacks], seeking injunctive and declaratory relief on

behalf of the inmates at the Jail.” Id. at 1029. Additionally, the plaintiffs alleged

that the dangerous conditions at the jail were “longstanding and pervasive.” Id. In

light of these allegations, we held that the plaintiffs had sufficiently pled that the

sheriff was “subjectively aware of the substantial risk to inmate safety at the Jail.”

Id.

What I discern from Marsh is that the alleged prison conditions and the

notice provided to the defendant were of such a nature that the inference that the

defendant subjectively knew of a substantial risk of inmate-on-inmate attack was

inescapable. In other words, “a substantial risk of inmate attacks was

longstanding, pervasive, well-documented, [and] expressly noted by prison

make sure they were all accounted for.” Marsh, 268 F.3d at 1029.

52
officials in the past, and the circumstances suggest[ed] that [the defendant] had

been exposed to information concerning the risk and thus must have known about

it” – not merely that “a reasonable person would have known, or that the defendant

should have known.” See Farmer, 511 U.S. at 842, 843 & n.8, 114 S. Ct. at 1981,

1982 & n.8 (emphases added and internal quotation marks omitted).

Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir. 1995), dealt with an

inmate’s civil rights action against the county, sheriff, and jailer after he was

beaten by other inmates while being held in a group cell. Id. at 1580. The plaintiff

sought damages due to the defendants’ alleged deliberate indifference to the

substantial risk of serious harm that he faced while in their custody. Id. With

respect to the sheriff, the plaintiff offered affidavits, depositions, and other

evidence to support a finding that the sheriff “subjectively knew that a substantial

risk of serious harm existed at the jail.” Id. at 1583. Specifically, among other

things, the plaintiff pointed to the sheriff’s deposition where he testified that “he

knew that inmate-on-inmate violence was occurring on a regular basis during [the

time period of the attack] and other periods of overcrowding” and also that “he

knew the violence sometimes resulted in injuries requiring medical treatment.” Id.

(emphases added). We further noted that the plaintiff was not required to show

53
that the sheriff “knew precisely who would attack whom, but only that [he] had

subjective knowledge of a generalized, substantial risk of serious harm from

inmate violence.” Id. (internal citation and quotation marks omitted). Based on

these allegations, we found that the evidence would sufficiently allow a reasonable

jury to conclude that the plaintiff had satisfied the notice standard. Id. at 1585.

3.

Informed by the deliberate indifference case law, I reach several

conclusions. First, allegations that the official actually knew that the plaintiff was

being abused satisfy the subjective knowledge standard. Second, allegations that

the official missed or misread warning signs that the plaintiff was in danger, or

allegations that the officials failed to follow established departmental guidelines or

procedures are tantamount to allegations of negligence, and are insufficient to

establish subjective knowledge of a strong likelihood of serious harm. And third,

allegations that an official was aware of the risk to others created by an

individual’s generally violent or troubled history are likewise insufficient. As we

noted in Purcell v. Toombs County, 400 F.3d 1313, 1323 (11th Cir. 2005), “[i]n

the jail setting, a risk of harm to some degree always exists by the nature of its

being a jail.” Cf. Farmer, 511 U.S. at 845, 114 S. Ct. at 1983 (noting due regard

54
for the fact that prison officials are appointed the “unenviable task of keeping

dangerous men in safe custody under humane conditions” (internal quotation

marks omitted)). That is why we held in Carter v. Galloway that even in the

insular context of the prison community, “before [defendant-officials’] awareness

arises to a sufficient level of culpability, there must be much more than mere

awareness of [the aggressor’s] generally problematic nature,” proclivity to

violence, or “propensity for being a problematic inmate.” 352 F.3d at 1349–50

(emphasis added). The same holds true in the foster care context. The children

who have been removed from their homes, detained, adjudicated dependents, and

then placed into foster care are, almost by definition, “at risk” or “troubled.”66

Officials must have specific notice of something “much more” than that they are

working with inherently “at risk” children before they are considered to be

subjectively aware of a substantial risk of serious harm.

Indeed, a rule that specific knowledge of a child’s prior history of sexual

aggression is alone sufficient to constitute actual notice that the child poses a

substantial risk of serious harm would be particularly ill-advised in the foster care

context. It would effectively substitute our own judgment for the professional

66
See supra note 2. According to plaintiffs’ complaint, “approximately 80% of the children
coming into foster care had significant emotional and/or behavioral problems with 27% having a
history of sexual abuse.” Compl. ¶ 56.

55
judgment of DCF officials. For example, when approving an overcapacity waiver,

the Licensing Manual requires five specific officials to consider a multitude of

factors, including the suitability of the home for the particular needs of the child,

the effect on the quality of care, and the needs of the other children already in the

home.67 Such a rule would unduly constrict the latitude an official would otherwise

have to determine that, upon consideration of the factors and the specific history of

the child, a therapeutic setting such as the Calhoun home – where there had been

no reported incidents of child-on-child sexual abuse for the six years before the

November 23, 1998 report – is an appropriate placement that would not pose a

substantial risk of serious harm.68

67
See supra text accompanying note 35.
68
Risk is not a fixed quantity; context modulates the magnitude of the risk. See Gish v.
Thomas, 516 F.3d 952, 954–55 (11th Cir. 2008) (“To be deliberately indifferent to a strong
likelihood that the prisoner will commit suicide, the official must be subjectively aware that the
combination of the prisoner’s suicidal tendencies and the feasibility of suicide in the context of
the prisoner’s surroundings creates a strong likelihood that the prisoner will commit suicide.”).
Trained professionals such as DCF officials are better equipped to navigate the complex inquiry
of which home, with which foster parents, and with which other foster children will best mediate
the risk posed by a particular child with a so-called “history of sexual perpetration.” As the
complaint itself evidences, the classification of a particular child as a “sexual abuse perpetrator”
as opposed to a “sexual abuse victim” is not always clear-cut. One could also believe that a
child who has committed an isolated incident of sexual assault might not always be regarded by
a trained professional as a sexual abuse perpetrator or a child posing a substantial risk of sexual
abuse to any other child he or she might encounter. Group dynamics, the experience and training
of foster parents, the age and characteristics of the sexual abuse perpetrators, and the age and
characteristics of the other children in the home are also significant considerations; certainly a
child might pose a risk to one child in a given context and yet not another.

56
 The deliberate indifference standard is compatible with a degree of

deference to such good-faith professional determinations. Because the deliberate

indifference analysis involves a subjective test, it does not matter if other judges,

social workers, therapists, etc. believe that the plaintiffs faced a substantial risk of

serious harm if the defendants themselves do not share that belief – that is, they

“must also draw the inference.” Farmer, 511 U.S. at 837, 114 S. Ct. at 1979; cf. id.

at 844, 114 S. Ct. at 1983 (“Prison officials charged with deliberate indifference

might show . . . that they knew the underlying facts but believed (albeit unsoundly)

that the risk to which the facts gave rise was insubstantial or nonexistent.”).

Receiving an isolated warning is not the same as believing the contents of that

warning. For example, the weatherman may advise us that there is a high

probability of precipitation, but we may look outside, make our own observations,

and draw our own conclusions that the weatherman – though an “expert” – is

wrong; we believe that rain is very unlikely. While we may or may not be

negligent, we would certainly not be deliberately indifferent to the risk that it will

rain. The same principle applies a fortiori in this context: we are dealing not with

lay persons receiving advice from experts, but with trained experts in child welfare,

DCF officials, receiving and evaluating advice from persons of varying degrees of

57
experience.

In addition to these observations, it is important to bear in mind the potential

sources of notice in our case. In other words, an official’s subjective belief about

the safety of the children in the Calhoun home would have been formed on the

basis of numerous sources of information: Mr. Calhoun and Joann Calhoun; G.

Brock, the Calhouns’ son; GALs; family members (or those entitled to visit the

foster child); people in the community (e.g., teachers, doctors, dentists, therapists,

coaches, friends from school, parents of friends); the circuit judges presiding over

dependency proceedings; other Department employees, especially the caseworkers

assigned to the foster children; and the foster children themselves.

V.

Although the complaint alleges that M.M. and D.L. began to engage in

sexual activities with other children soon after their placement, there is no

allegation that any of the defendants, the Department, or even the Calhouns ever

had actual knowledge that these acts were occurring at any time before November

23, 1998, the day that sexual abuse of A.P. was reported to the hotline. Therefore,

the question is whether the complaint sufficiently alleges that each defendant knew

that plaintiffs faced a strong likelihood of such abuse in the home prior to

58
November 23. I conclude that it does not.

A.

Before embarking on a defendant-by-defendant review of the allegations, I

pause to survey plaintiffs’ 265-page complaint against the backdrop of the legal

landscape. I discern several key features common to all of the defendants. First,

there is no allegation that any of the defendants turned renegade and acted

unilaterally in licensing the Calhoun home or approving any of the overcapacity

waivers. The officials worked together – not in ad hoc teams, but in designated

teams composed of five specific members of the Department so as to ensure that

the outcome would be the product of a collective decision-making process

according to Department protocol, with inherent checks and balances. Nor is there

any allegation that the defendants who were involved in the waiver process failed

to consider the requisite criteria set forth in the Licensing Manual. In the absence

of a specific allegation to the contrary, therefore, I presume that the defendant-

officials acted in accordance with the law and that each overcapacity waiver was

approved after each official had mentally performed the multifactor analysis

described above.69 Cf. Cont’l Bank & Trust Co. v. Brandon, 297 F.2d 928, 932

69
See supra text accompanying notes 35–37.

59
(5th Cir. 1962) (“[I]t is a presumption of law that a public officer will faithfully

perform his duty.”); Tecom, Inc. v. United States, 66 Fed. Cl. 736, 762 (Fed. Cl.

2005) (noting that although the presumption of regularity does not entail clear and

convincing evidence to the contrary, “the burden of proving the non-occurrence of

predicate acts required (by law or regulation) of public officials (such as the

considering of certain facts, the review of applications, the receipt of

authorizations, etc.) falls on the party asserting their absence”).

Additionally, plaintiffs do not allege that any of the caseworkers

communicated falsehoods, failed to report important information, or otherwise

concealed information from their supervisors or other units. This fact is

particularly significant, as there is no allegation that D.L. was not visited regularly

in the Calhoun home by either Desmangles or by Wilburn – indeed, Wilburn also

made contemporaneous visits to R.M. and N.M., and there is no allegation that

Wilburn was aware of any child-on-child sexual abuse in the Calhoun home. Nor

is there any allegation that Pollack failed to visit M.M. regularly from the time of

his placement in March through August 1997. While plaintiffs allege that Pollack

only visited D.L. once from February 27 to May 5, 1998, and only visited M.M.

once from May 5 to September 1998, there is no allegation that her report of

60
information gathered from those visits was deficient in any way. Every official

involved in the licensing or waiver approval process was therefore privy to what

the caseworkers knew and reported about the Calhoun home and the foster children

living there.

Finally, in reviewing the complaint, I remain cognizant of the factual

implications of plaintiffs’ allegations – that is, what plaintiffs do not allege is

almost as important as what they do allege. By the time the Home by Home

Review report was issued on September 8, 1998, M.M. and D.L. had been living in

the Calhoun home for approximately 19 and 17 months, respectively. Presumably,

the last reported incidents of sexual assault involving M.M. and D.L. were even

more distant – occurring some time before January 1997 and April 1997,

respectively. Consistent with the Calhoun home’s track record, no one had ever

reported that sexual abuse was occurring in the home – not any of the Calhouns;

not any of the caseworkers assigned to the children; not any of the children’s

GALs; not any doctors or therapists or other community members such as teachers,

friends, or coaches; not any of the circuit judges handling dependency proceedings;

and not any of the children themselves. Significantly, N.M. was one of the foster

children who was interviewed in the Home by Home Review; he gave no

61
indication that he was being sexually abused in any fashion, only that everyone

was “mean to him.” Nothing in the review of the Calhoun home – none of the

interviews of the children that were conducted, none of the records that were

inspected – indicated that anything sexually untoward was occurring in the home.

This same configuration of facts was in place for all of the defendants until the

report of A.P.’s abuse was made to the hotline on November 23, 1998.

What this survey reveals is that plaintiffs’ allegations boil down to

accusations of negligent wrongdoing on the part of the defendants: that the

defendants failed to perform the requisite visits to foster children; that they failed

to process overcapacity waivers on time; that they failed to investigate the home

further; that they failed to take adequate measures to reduce overcrowding and

improve supervision; or that reasonable officials would have reviewed the

available information and come to a different conclusion about the strength of the

risk of sexual abuse in the Calhoun home. A number of plaintiffs’ allegations

appear to disregard the reality of collective decision-making within the

organizational hierarchy of the Department – the reality of officials assigned to

specific units and making joint decisions according to specific protocol – and fault

62
the defendants for failing to act unilaterally.70 Nevertheless, because even gross

negligence does not satisfy the standard of deliberate indifference, such allegations

are insufficient as a matter of law to support claims for damages against the

defendants.

B.

I begin with the claims against the two defendants who occupied supervisory

positions, Edward Feaver, Secretary of the Department, and Johnny Brown,

District Administrator of District 10, and recite the presumed facts and reasonable

inferences therefrom on which those claims are based. I then proceed to the

remaining defendants who occupied positions at varying levels in the Department.

1.

70
For example, plaintiffs make conclusory allegations that defendants at all levels in the
Department’s chain of command had “the ability, authority and the means” to remove or to
direct the removal of children from the Calhoun home: Feaver (Secretary of the Department),
Brown (District Administrator), Kaufman (as Acting Child Welfare Director), Chang (as POA of
Licensing and Placement), Kanaskie (as POA of Protective Investigations), Woodroof (as POA
of “re-licensing and foster care”), Worsley (both as a Protective Investigator and as a Foster Care
Supervisor), Andrews (as a Licensing Supervisor), Desmangles (Family Services Counselor),
Pollack (Family Services Counselor), and Wilburn (Family Services Counselor). The complaint
implicitly alleges, therefore, that each of the defendants had the ability to act out of the
Department’s chain of command. Or put another way, the complaint alleges that there was no
effective chain of command when it came to the removal of children from foster homes, as
anyone – from the Secretary of the Department to the caseworker in the home – had “the ability,
authority and the means” to do so independently. Even assuming each of the defendants had
such authority, however, plaintiffs’ allegations fall short of demonstrating deliberate
indifference.

63
 As Secretary of the Department, Feaver supervised all fifteen service

districts. He was privy to numerous internal studies and reviews, media reports,

and warnings from advocacy groups and the circuit judges who presided over

dependency proceedings, stating that District 10’s foster homes were seriously

overcrowded and that children with histories of sexual abuse, both as victims and

as perpetrators, were being placed in these overcrowded homes, increasing the risk

of child-on-child sexual abuse. Among these reports was the September 8, 1998

report of the Home by Home Review.

Feaver first learned of the child-on-child sexual abuse at the Calhoun home

on November 23, 1998, after someone called the Department’s abuse prevention

hotline to report that A.P. had been sexually abused by other children living in the

home. A.P., N.M., and R.M. were removed from the Calhoun home within a day.

An investigation of the Calhoun home followed immediately, resulting in the

formulation and implementation of a plan to curtail further child-on-child sexual

abuse at the home. The plan prescribed the steps that needed to be taken to

eliminate the problem, and Feaver relied on the District 10 administrators to ensure

that those steps were taken.

These facts fall short of establishing that Feaver was deliberately indifferent

64
to a substantial risk of child-on-child sexual abuse facing the children living in the

Calhoun home. While Feaver certainly was aware of a heightened system-wide

risk of child-on-child sexual abuse due to overcrowding and improper placement,

there are no allegations that he possessed specific knowledge about a substantial

risk of sexual abuse in the Calhoun home prior to A.P.’s report of abuse on

November 23, 1998. Feaver’s receipt of the Home by Home Review report

establishes, at most, that the Calhoun home was overcrowded during this time – the

report contained no allegations of child-on-child sexual abuse. The facts alleged in

the complaint simply do not permit the inference that Feaver actually knew of a

substantial risk to the plaintiffs and yet did nothing.71 The district court therefore

did not err in dismissing the plaintiffs’ claims against him.

2.

Johnny Brown served as Administrator of District 10 from August 1997 to

December 1998. In that capacity, he oversaw the operation of the District’s foster

home service. In July 1998, after having been informed by subordinates of child-

71
The inference reasonably drawn from facts recited in the complaint is that the problems in
District 10 resulted from the Department’s system-wide institutional failures. As the court
observed in Foltz, such institutional failures can serve to negate an inference that specific
individuals supervising or employed in the system are deliberately indifferent – the failures
being attributed to the system as a whole. Ray v. Foltz, 370 F.3d 1079, 1085 n.9 (11th Cir.
2004). It was the failure of the system as a whole that enabled the plaintiffs in Ward to obtain
the injunctive relief the district court ordered.

65
on-child sexual abuse in the District’s foster homes, Brown developed a “Draft

District 10 Family Support and Preservation Child Welfare Improvement Plan.”

The plan proposed sweeping reforms, including “(1) a thorough case review for

each child reported to have been abused or neglected, (2) a revised incident

reporting system tracked by a Department Specialist with mandatory reporting to

licensing, foster care, and circuit judges . . . and (6) a plan to significantly increase

foster homes and decrease the number of children in each home.” Omnibus Order

at 16. The plan was implemented, but not adequately. Some incidents of child-on-

child sexual abuse went unreported,72 and the District’s response to those that were

reported was frequently inadequate. Brown did not cause the under-reporting,

however; nor did he have knowledge of any failures by his subordinates adequately

to respond to the incidents of abuse that were reported.

On September 8, 1998, Brown, like Feaver, received the findings of the

Home by Home Review which included descriptions of overcrowding in the

Calhoun home and the sexual perpetration histories of D.L. and M.M., but did not

contain any allegations of child-on-child sexual abuse in the Calhoun home. And

he, like Feaver, first learned of child-on-child sexual abuse in the Calhoun home on

72
I infer from this fact that, whether through negligence or through deliberate disregard, some
incidents of child-on-child sexual abuse went either unperceived or unreported by foster parents,
caseworkers, GALs, circuit judges, community members, etc.

66
November 23, 1998. As District 10 Administrator, Brown was ultimately

responsible for the subsequent investigation and the plan that was devised to

remedy the sexual abuse problem in the Calhoun home. However, he had no

involvement in implementing the plan, for he left his employment with the

Department in early December 1998. As the facts do not permit an inference that

Brown was aware of and disregarded a substantial risk of child-on-child sexual

abuse in the Calhoun home, the court committed no error in absolving Brown of

liability by dismissing the plaintiffs’ claims against him.

3.

Katherine Kaufman was POA of Protective Investigations and later served as

the Acting Child Welfare Director in District 10.73 Plaintiffs allege that Kaufman

failed to direct the removal of M.M. and D.L. from the Calhoun home. Plaintiffs

also allege that in October 1998, Kaufman was one of the Department officials

who participated in the approval of overcapacity waivers that permitted two

siblings, N.O. and J.O., to be placed in the Calhoun home, bringing to ten the total

number of foster children living in the Calhoun home.

Plaintiffs indicate two sources of notice as demonstrative of subjective

73
The complaint does not allege when Kaufman became Acting Child Welfare Director.

67
knowledge on Kaufman’s part. First, in January 1997, M.M. had been removed

from his natural mother’s home and involuntarily committed to a psychiatric

facility after having threatened his mother and sister. While he was still in the

hospital, the Department received a report that M.M. had sexually assaulted his

sister repeatedly. It was at this time that Kaufman – as POA of Protective

Investigations – allegedly learned of M.M.’s case, as she sought unsuccessfully to

place M.M. in a residential psychiatric facility.74 Upon release from the hospital,

M.M. was returned to his mother’s home and was offered in-home therapeutic

services.

Second, in September 1998, Kaufman – now the Acting Child Welfare

Director – allegedly received a copy of the report of the Home by Home Review.

In response, she established a Special Review Team to address any concerns

highlighted in the report through the creation of Corrective Action Plans for each

foster home.

Such facts as these cannot establish subjective knowledge of a substantial

74
The district court read ¶¶ 165–66 of the complaint to allege that Kaufman received this report
while M.M. “was living in the Calhoun home,” and that she “did not remove M.M. from the
Calhoun Home” at that time. Omnibus Order at 39. Upon perusal of the complaint, however, it
is clear that the plaintiffs allege that M.M. was still in the psychiatric facility at the time
Kaufman was informed of his behavior, and that he was returned to his natural mother’s home
upon release.

68
risk of sexual abuse to the children in the Calhoun home. Kaufman first learned of

M.M.’s sexual history while he was residing in a psychiatric facility, not in the

Calhoun home. As with Feaver and Brown, the report of the Home by Home

Review informed Kaufman of a generalized risk of harm due to overcrowding in

the Calhoun home, and indicated that D.L. and M.M. had a history of sexual and

physical aggression – the kind of notice of a general propensity-to-harm that fails

to establish subjective knowledge of a substantial risk of serious harm even in the

prison context, because it is devoid of “specific facts” relating to a “particularized

threat” to the plaintiffs and establishes, at best, a “generalized awareness of risk.”

See Carter v. Galloway, 352 F.3d 1346, 1349–50 (11th Cir. 2003 (noting that such

information “does not provide a sufficient basis to make the inferential leap that a

substantial risk of serious harm” existed”); see also Nichols v. Maynard, 204 Fed.

Appx. 826, 828–29 (11th Cir. 2006) (unpublished). In other words, this kind of

information might give rise to awareness of a possibility of sexual abuse in the

Calhoun home, but it falls short of permitting the inference that Kaufman was

actually aware of a strong likelihood of sexual abuse. These basic facts remained

unchanged by the time Kaufman participated in the approval of the overcapacity

waiver for siblings N.O. and J.O. a month later, in October 1998.

69
 Kaufman’s first actual notice of an incident of child-on-child sexual abuse

came on November 23, 1998. On that day, she was the “On Call Administrator”

fielding calls on the abuse prevention hotline, and she received the call regarding

A.P. The caller described A.P.’s allegations – that he was being raped twice a day

and that M.M. was the main perpetrator. Kaufman attended the hearing held in

circuit court the next day and represented to the court that A.P.’s allegations were

being investigated.

The district court dismissed the claims of A.P., N.M., and R.M. against

Kaufman, noting that they were removed from the Calhoun home “just one day

after Kaufman learned of A.P.’s sexual abuse allegations,” and that “she could not

have [had] subjective knowledge of sexual abuse allegations at the time they

suffered their injuries.” Omnibus Order at 42. I would affirm the dismissal.

4.

Corinne Millikan was a Family Services Specialist and Operations

Management Consultant75 in District 10 at some point during the time relevant to

plaintiffs’ allegations. As such, she had the authority to review and monitor the

quality and safety of placements. Plaintiffs fault Millikan for her involvement in

75
I remain largely in the dark as to the role of an Operations Management Consultant. The
complaint provides no separate description of Millikan’s responsibilities in this role. Compl. ¶
18. Nor do plaintiffs allege when Millikan served in each position.

70
the approval of overcapacity waivers that permitted certain children to live in the

Calhoun home, specifically A.P., R.M., and children with mental health problems. 67

Like the other defendants in this case, Millikan was aware that many of the

District’s foster homes were overcrowded and that the presence of children with

histories of sexual abuse, both as perpetrators and victims, created a generalized

risk of child-on-child sexual abuse. Her duties, which did not bring her into day-

to-day contact with the children in foster care, included participating in the

approval of overcapacity waivers and creating Corrective Action Plans following

the Home by Home Review.

Millikan was aware of overcrowding in the Calhoun home as early as

January 31, 1995, when she attended a licensing meeting where the home’s

consistent overcrowding was discussed. In June 1996, she attended a District 10

76
It is unclear from the complaint who else was involved in the approval of overcapacity
waivers for A.P. and R.M. In the absence of specific allegations to the contrary, I presume that
the other participants included a Licensing Supervisor, Placement Supervisor, POA of Licensing
and Placement, and the Child Welfare Director, and that they followed the decision-making
protocol set out in the Licensing Manual.
The complaint also alleges that on December 10, 1998, Millikan participated in the
approval of a waiver placing another child, B.J., in the Calhoun home. It is clear from the
complaint, however, that this particular B.J. is not the same B.J. who is earlier described in the
complaint as having been identified as“a danger to himself and others”; that particular B.J.
resided in the Calhoun home “until April, 1998 when he turned eighteen.” Compl. ¶ 102. The
allegation that Millikan approved the placement of another child with the same initials on
December 10, 1998 – over two weeks after all of the plaintiffs had been removed from the
Calhoun home – cannot support a finding of subjective knowledge and deliberate disregard of a
substantial risk of serious harm to the plaintiffs prior to November 23, 1998.

71
meeting discussing a report of domestic violence in the Calhoun home, wherein

Mr. Calhoun had chased Joann Calhoun while brandishing a steak knife. Nearly

two years later, in September 1998, Millikan received the report of the Home by

Home Review, which described the Calhoun home as “cramped” and noted that

two children with histories of sexual perpetration, D.L. and M.M., had been placed

in that home. At no time during this period was there ever any report of sexual

abuse in the Calhoun home. As part of the Special Review Team, Millikan assisted

in drafting specifically tailored Corrective Action Plans for each of the 50 homes

surveyed by the Review. Shortly thereafter, Millikan was one of the officials who

participated in the approval of belated overcapacity waivers permitting the

placement of A.P. and R.M. in the Calhoun home.

Though Millikan might have interpreted the information she had to mean

that the children in the Calhoun home faced a generalized risk of sexual assault,

there are no allegations that, prior to the November 23, 1998 report of A.P.’s

abuse, Millikan was aware of specific facts or a “particularized threat” of sexual

abuse from which she could have inferred that the children faced a strong

likelihood of sexual abuse. See Carter, 352 F.3d at 1350. Indeed, by the time the

report of the Home by Home Review was issued, M.M. and D.L. had lived in the

72
often overcrowded Calhoun home for 19 and 17 months with no reports of sexual

abuse; and by the time that Millikan participated in the waiver approvals, A.P. and

R.M. had resided in the Calhoun home for nearly two weeks and five months,

respectively, without any reported incident. As it turned out, the conclusion that

A.P. and R.M. did not face a substantial risk of sexual abuse may have been

wrong; but Monday morning quarterbacking alone is insufficient to support a

damages claim against Millikan.

The report of A.P.’s abuse in November 1998 was the first specific notice

Millikan received that a substantial risk of child-on-child sexual abuse existed in

the Calhoun home. For this reason, the district court concluded that with respect to

the claims of A.P., N.M., and R.M., the facts failed to establish a case of deliberate

indifference. I find no error in the court’s ruling.

5.

Sharon Woodroof was a District 10 Family Services Specialist who worked

with the Licensing Unit and Placement Unit.77 Plaintiffs also allege that at some

77
As a Family Services Specialist, Woodroof had the authority to

1) assist district staff with program planning and development; 2) provide
ongoing technical assistance in her area(s) of expertise; 3) monitor the provision
of services to children in her area(s) of expertise; 4) perform quality assurance
reviews; 5) ensure that policy guidance was available and understandable to direct
services and support staff; 6) review and approve allowable exceptions to policy,

73
later point – I presume in the latter half of 1997 or 1998 – Woodroof became a

POA supervising “re-licensing and foster care,” 78 in which capacity they allege she

had the ability “to direct the removal of a child from any foster home placement in

which there was a substantial risk of serious harm to the child.” Compl. ¶ 16.

A.P., R.M., and N.M. allege that Woodroof acted in a deliberately

indifferent manner through the following actions she undertook as a Family

Services Specialist in collaboration with Licensing and Placement: (1) on May 19,

1995, participating in the increase of the Calhoun home’s licensed capacity to five

children; (2) in February 1997, participating in the approval of an overcapacity

waiver that allowed certain children, including M.M., to be placed in the Calhoun

home; (3) on February 21, 1997, participating in the approval of an overcapacity

waiver allowing R.B. (described by plaintiffs as a “fire setter and sexual abuser”)

to be placed in the Calhoun home; (4) in April 1997, participating in the approval

including waivers of maximum licensed foster home capacity; 7) deny exceptions
to policy and/or waivers of capacity which placed children at substantial risk of
serious harm; and 8) ensure that children who posed a known substantial risk of
harming other children were not placed in situations where they were in a position
to harm other children.

Compl. ¶ 15.
78
The allegation that Woodroof was a POA supervising both the Foster Care Unit and the
Licensing Unit is contrary to my understanding of the organizational structure of DCF as
described in the complaint. Nonetheless, I assume for purposes of the defendants’ motions to
dismiss that such was the case.

74
of an overcapacity waiver that allowed D.L. to be placed in the Calhoun home; and

(5) on May 19, 1997, approving the re-licensing of the Calhoun home for seven

foster children. Plaintiffs also allege that in Woodroof’s capacity as a POA

supervising “re-licensing and foster care,” she failed to direct D.L.’s removal from

the Calhoun home and place him in a residential facility.

As sources of notice, plaintiffs allege that: (1) on February 14, 1997 and

April 8, 1997, when M.M. and D.L. were placed in the Calhoun home, Woodroof

was aware of their behavioral histories and the histories of the children already

living in the home; (2) on May 17, 1998, Woodroof received a letter from a GAL

describing the overcrowded conditions in the Calhoun home, which Woodroof

proceeded to forward to the Licensing Unit; (3) in September 1998, Woodroof

received a copy of the report of the Home by Home Review; and (4) in October

1998, Woodroof received a letter from Joann Calhoun stating that D.L.’s case file

reflected “sexual issues” and problems with “lying [and] being physically

aggressive,” and that she did not know who D.L.’s caseworker was.

Because plaintiffs point to specific actions spanning three years and specific

sources of notice that Woodroof allegedly received over the course of those three

years, it is necessary to parse each allegation with an eye toward what Woodroof

75
actually knew at each point in time. To begin with, the allegation that Woodroof’s

approval of a waiver for R.B. demonstrated deliberate indifference to the plaintiffs

is groundless. It is perhaps unsurprising that there is no allegation that R.B. abused

the plaintiffs, because a year had already elapsed between the time that R.B. left

the Calhoun home (April 1997) and the time that the first of the plaintiffs had

entered it (April 1998). Compl. ¶¶ 120, 228. R.B.’s presence in the Calhoun home

could not even have contributed to overcrowding in any way that would have

affected the plaintiffs.

As for the remaining four actions that plaintiffs allege Woodroof committed

as a Family Services Specialist – actions taken in May 1995, February 1997, April

1997, and May 1997 – letters and other materials received by Woodroof at later

dates could not have formed the basis of her subjective knowledge at the time she

made those decisions. The only relevant allegation is that Woodroof was aware of

the behavioral histories of M.M., D.L., and the other children in the Calhoun

home.79 These facts do not permit the inference that Woodroof actually knew of

and deliberately disregarded a substantial risk of serious harm to the plaintiffs.

The general risk posed by M.M., D.L., and the thousands of other “at risk” children

79
Of course, Woodroof could not have been aware of the behavioral histories of M.M. and D.L.
as of the May 19, 1995 licensing of the Calhoun home for five children, since they did not enter
the home until February 14 and April 8, 1997.

76
served by the Department is not enough to make out a case of deliberate

indifference to a particular child’s safety. Nowhere is it alleged that Woodroof

believed – actually drew the inference from the surrounding circumstances – that

M.M. or D.L. posed a substantial threat to the children in the Calhoun home either

before their initial placement or prior to the home’s re-licensing. In fact, the

complaint suggests otherwise: Woodroof, along with a Placement Supervisor, a

Licensing Supervisor, the POA of Licensing and Placement, and the Child Welfare

Director, considered the available placements for M.M. and D.L. and decided that

the Calhoun home, known for its ability to handle troubled boys successfully, was

the most appropriate setting for these children.80 Thereafter, based on her

knowledge of the children in the Calhoun home and the fact that they had

peaceably existed as a group for over a month, Woodroof concurred in the

recommendation from the Licensing Unit that the home be re-licensed.

Plaintiffs also allege that in her later capacity as POA of “re-licensing and

foster care,” Woodroof should have removed or directed the removal of D.L. from

the Calhoun home and ordered his placement in a residential treatment facility. As

before, allegations that Woodroof was aware of a general background risk do not

80
I note once more that at the time of M.M. and D.L.’s respective placements, at least three
other children in the Calhoun home were older than M.M. and D.L., who were both twelve years
old: 17-year-old R.D., 17-year-old B.J., and 13-year-old R.T.

77
reasonably support the inference that Woodroof actually knew of a strong

likelihood of sexual abuse in the Calhoun home. Although Joann Calhoun’s letter

specifically related her concern for D.L., the letter does no more than point to

D.L.’s history as described in his case file, which was already known to Woodroof

and the other Department officials who had collectively decided that the Calhoun

home was an appropriate placement for D.L. Joann Calhoun’s letter does not

contain a warning that D.L. created such a risk to the other children that he ought

to be removed from the home; rather, Joann Calhoun expresses frustration with the

Department and requests that D.L. be provided with another caseworker, whose

services she regarded as “imperative to being able to maintain D.[L].” Compl. ¶

206. The letter is insufficient to establish that Woodroof thereafter believed that,

contrary to the conclusion she and other Department officials had earlier drawn,

D.L.’s placement in the Calhoun home created a strong likelihood of sexual abuse

to the other children.

Woodroof had no knowledge of a substantial risk of child-on-child sexual

abuse in the Calhoun home until after the Department received the November 23

call to the abuse prevention hotline about A.P. I therefore find no error in the

dismissal of the claims against her.

78
 6.

At the time relevant to plaintiffs’ allegations, Susan Kanaskie was a

Protective Investigations Supervisor for District 10. Plaintiffs contend that

Kanaskie approved the placement of M.M. in the Calhoun home despite being

aware of the substantial risk of serious harm that decision would create. This claim

is unsupported by specific allegations regarding Kanaskie’s subjective

knowledge.81

Kanaskie did not learn of the child-on-child sexual abuse at the Calhoun

home until December 11, 1998, when Susan Worsley, then a Foster Care

Supervisor, and Elaine Corsino, the Acting Protective Investigations Supervisor,

informed her about the November 23 telephone call to the abuse prevention hotline

regarding A.P. Because Kanaskie was unaware, prior to December 11, of the risk

to the children in the Calhoun home, the district court properly held that she was

81
Additionally, my understanding of District 10 operating procedures (based upon plaintiffs’
own allegations, Compl. ¶ 41) does not permit the inference that Kanaskie was even actively
involved in the decision to place or maintain M.M. in the Calhoun home in February 1997. As
the supervisor of Susan Worsley, M.M.’s Protective Investigator, Kanaskie would have reviewed
M.M.’s background, risk assessments, and placement history and then would have assisted in
providing this information to the Placement Unit. Since the Calhoun home was operating at
capacity, the decision to place M.M. in the home was thereafter made by the Placement Unit in
coordination with the Department officials involved in authorizing overcapacity waivers – the
Placement Supervisor, Licensing Supervisor, POA of Licensing and Placement, a Family
Services Specialist, and the Child Welfare Director. Once M.M. was placed in the Calhoun
home and declared a dependent, his case would have been transferred from the Protective
Investigations Unit to the Foster Care Unit – ending Kanaskie’s involvement.

79
not deliberately indifferent to the plaintiffs’ constitutional right to a safe

environment.

7.

Susan Worsley served as a Protective Investigator and subsequently as a

Foster Care Supervisor in District 10.82 She was initially assigned to M.M.’s case

on February 3, 1997, while he resided at the Lippman Shelter. As his Protective

Investigator, Worsley was informed of M.M.’s history of sexual abuse and his

psychological and behavioral problems. As a Foster Care Supervisor, Worsley

oversaw M.M.’s caseworker. Plaintiffs allege that Worsley was deliberately

indifferent to their safety by placing M.M. in the Calhoun home, failing to create a

plan of care to ensure the safety of the other children in the Calhoun home, and

failing to visit M.M.

On February 12, 1997, Worsley was advised that M.M. could no longer

remain at the Lippman Shelter because of his history and his need for 24-hour one-

on-one supervision. Worsley then contacted the Department’s Placement Unit to

inquire about a new placement for M.M. Worsley suggested the Calhoun home (I

infer that her recommendation was due to the Calhoun home’s reputation for

82
The complaint does not allege precisely when Worsley became a Foster Care Supervisor;
however, it alleges that she was a Protective Investigator at least through March 1997 and
suggests that she was a Foster Care Supervisor as of November 23, 1998.

80
managing troubled and unruly boys similar to M.M.) but was advised by an

unspecified employee in the Placement Unit that M.M. was “too dangerous” to be

placed there. Despite this initial recommendation, the Placement Supervisor

considered an overcapacity waiver that would allow M.M. to be placed with the

Calhouns. After examining M.M.’s background, the children already in the

Calhoun home, and the availability of other suitable placements, various officials

in the Department concurred in the approval of an overcapacity waiver: the

Placement Supervisor, Licensing Supervisor, Family Services Specialist, POA of

Licensing and Placement, and the Child Welfare Director.

M.M. was placed in the Calhoun home on February 14, 1997, and Worsley

continued to serve as his Protective Investigator until his case was transferred to

the Foster Care Unit on March 27, 1997, following his adjudication as a dependent.

During this time period, Worsley visited the Calhoun home on one occasion –

February 19, 1997 – and was informed by Joann Calhoun’s son that M.M. had a

“violent explosion” the previous day. Worsley failed to perform any further home

visits, though allegedly she was required to visit weekly from February 14 to

March 27, 1997. 38

83
N.M., R.M., and A.P. were not placed in the Calhoun home until over a year later– April 24,
1998, May 6, 1998, and September 17, 1998, respectively.

81
 On December 9, Worsley learned about the November 23, 1998 call to the

Department’s abuse prevention hotline alleging that A.P. had suffered sexual abuse

in the Calhoun home. The facts establish that this was the first notice to Worsley

of a substantial risk of child-on-child sexual abuse in the Calhoun home. Prior to

this time, Worsley was only aware of M.M.’s troubled background and that he had

one violent outburst during his placement in the Calhoun home. One cannot

reasonably infer from these facts that Worsley believed that the children in the

Calhoun home faced a substantial risk of child-on-child sexual abuse. While her

failure to perform the necessary visitation is deplorable, it does not constitute

deliberately indifferent behavior. I therefore find no error in the court’s decision to

dismiss the plaintiffs’ claims against Worsley.

8.

Jennifer Chang was initially POA of Licensing and Placement and later

became a Family Services Specialist in March 1998. The main allegation against

Chang stems from her involvement as POA in approving overcapacity waivers that

allowed children with sexual perpetration histories and mental health problems to

be placed in the Calhoun home, including M.M. and D.L.84 In February 1997 and

84
Although plaintiffs allege that Chang also improperly approved overcapacity waivers
permitting B.J. (described by plaintiffs as “a danger to himself and others”) and R.B. (described
by plaintiffs as a “fire setter and sexual abuser”) to live in the Calhoun home, these allegations

82
April 1997, when M.M. and D.L. were placed in the Calhoun home, Chang was

aware of their behavioral histories and of the general overcrowding of foster homes

in District 10. With respect to M.M., Chang had also attended a court hearing in

M.M.’s dependency case in which the circuit judge “expressed fear that M.M.

would hurt someone at the Calhoun home due to his history of physical and sexual

aggression.” Compl. ¶ 116. Chang was one of the persons who subsequently

participated in the approval of overcapacity waivers with respect to M.M. and

D.L.; in accordance with Department policy, the other officials involved in the

waiver approval process included a Placement Supervisor, a Licensing Supervisor,

a Family Services Specialist, and the Child Welfare Director.

These facts do not make out a claim of deliberate indifference with respect

to Chang. As with Woodroof, the complaint does not indicate that Chang believed

M.M. or D.L. to pose a substantial threat of sexual abuse to the children in the

Calhoun home. The most reasonable inference from these facts is that Chang

evaluated the case files of the children, and in M.M.’s case, the judge’s “fear that

M.M. would hurt someone at the Calhoun home due to his history of physical and

are irrelevant to the plaintiffs’ claims as there is no allegation that B.J. or R.B. abused the
plaintiffs – logically enough, as B.J. left the Calhoun home when he turned 18 in April 1998
(Compl. ¶ 102), and R.B. left the Calhoun home a year earlier, in April 1997 (Compl. ¶ 120).
They could not have even contributed to overcrowding in the Calhoun home in any way that
would have affected the plaintiffs.

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sexual aggression.” (Recall that M.M. had sexually abused his sister and had

threatened his family members with a knife.) Then, based on her professional

judgment and experience in the foster care system, she and her colleagues

concluded that M.M. and D.L. would not in fact pose a substantial risk of serious

harm to the other children then living in the Calhoun home – a home with “the

reputation of taking in troubled and/or difficult to control young males,” Compl. ¶

90 – and approved the overcapacity waivers.85

Additionally, the plaintiffs allege deliberate indifference in regard to

Chang’s actions as a Family Services Specialist following the Department’s

issuance of the report of the Home by Home Review on September 8, 1998.

Chang was a member of the Special Review Team that drafted a Corrective Action

Plan for each of the 50 homes examined during the Review. While the complaint

does not allege what the Corrective Action Plan for the Calhoun home contained, it

does allege that the plan failed to address D.L.’s and M.M.’s histories of sexual

perpetration and failed to reduce the Calhoun home’s capacity. The plaintiffs

85
One must remember that neither the size nor the composition of the Calhoun home remained
the same from the times that M.M. and D.L. were placed there on February 14, 1997 and April 8,
1997, and the times that N.M., R.M., and A.P. entered the home on April 24, 1998, May 6, 1998,
and September 15, 1998. M.M. and D.L. brought the population of the home to six and seven
children, respectively, and were among the younger children in the home. Chang, of course, had
no knowledge of the individual characteristics of N.M., R.M., and A.P. at the time she
participated in the waiver process for M.M. and D.L.

84
would have Chang held liable for the sexual abuse A.P., N.M., and R.M. may have

sustained at the hands of D.L. and M.M. based on the inadequacy of the Special

Review Team’s Corrective Action Plan. Because, at best, such liability sounds in

negligence, not deliberate indifference to the infringement of a constitutional right,

the district court committed no error in dismissing the plaintiffs’ claims against

Chang.

9.

As a Licensing Counselor and later as a Licensing Supervisor,86 Margaret

Andrews was responsible for the annual licensing review of several foster homes in

District 10 and participated in the overcapacity waiver process. The plaintiffs

would hold Andrews liable for the following alleged actions: (1) in July 1996,

recommending re-licensing the Calhoun home despite the fact that an investigation

into neglect and domestic violence allegations had not been finalized, in

contravention of Department policy; (2) in July 1996, failing to properly

investigate another allegation of physical abuse and domestic violence in the

Calhoun home, in contravention of state law and Department policy; (3) in

February 1997, participating with a Placement Supervisor, Woodroof (Family

86
The complaint does not allege when Andrews became a Licensing Supervisor.

85
Services Specialist), Chang (POA of Licensing and Placement), and the Child

Welfare Director in the approval of the overcapacity waiver that allowed M.M.’s

placement in the Calhoun home; and (4) on May 16, 1997, recommending to her

supervisor, Woodroof, that the Calhoun home be re-licensed for a capacity of

seven foster children.

The complaint does not permit the inference that Andrews at any time was

subjectively aware that the plaintiffs faced a substantial risk of child-on-child

sexual abuse in the Calhoun home. First, even if her conduct in 1996 were

causally related to the injuries the plaintiffs suffered – which is uncertain because

neither the alleged abusers nor the plaintiffs came to the home until 1997 and 1998,

respectively – violating state procedural laws or departmental procedures does not

constitute deliberate indifference. See Ray v. Foltz, 370 F.3d 1079, 1085 (11th

Cir. 2004) (“Allegations of failure to follow state policies and procedures . . . do

not support a claim for damages, such as the [plaintiffs’]. Where damages are

sought, more must be shown that negligent failure to follow Department guidelines

and procedures.”). As to her actions in 1997, all I can glean from the complaint is

that Andrews knew that seven foster children were residing in the Calhoun home

with mental health issues, including several children with sexual abuse and

86
perpetration histories – a profile that fit the majority of homes in District 10. It

cannot be inferred from these facts that Andrews actually drew the inference that

the children in the Calhoun home faced a substantial risk of harm, especially in

light of the fact that child-on-child sexual abuse was never known to have occurred

during the six years that the Calhouns housed troubled children. The court

properly found that the allegations against Andrews failed to state a claim for

relief.

10.

The district court dismissed the claims against Loubert Desmangles, Susan

Wilburn, and Sharon Pollack, District 10 caseworkers who held the title “Family

Services Counselor.” The court did so because the facts failed to show that these

caseworkers were deliberately indifferent to the plaintiffs’ constitutional right to a

safe foster home environment. I agree. Plaintiffs’ allegations establish, at best,

that the defendants were aware of circumstances that may have permitted the

inference that a substantial risk of sexual assault existed in the Calhoun home. But

none of the allegations, viewed in terms of what each defendant individually knew,

permit the inference that the defendant actually drew such an inference.

Loubert Desmangles was present when D.L. admitted in April 1997 that he

87
had sexually assaulted three or four boys who lived near his old foster home. After

an overcapacity waiver permitting D.L.’s placement in the Calhoun home was

requested and approved by the necessary Department officials, Desmangles placed

D.L. in the Calhoun home. At some point after D.L.’s placement, the Sexual

Assault Treatment Center informed Desmangles that it had terminated D.L.’s

sexual abuse therapy “due to the most recent child-on-child incident involving

D.L.,” and that D.L. would require intensive therapeutic services in a residential

facility for sexual offenders. Compl. ¶ 192. In June 1997, Joann Calhoun

informed Desmangles that D.L. was having “behavioral problems,” Compl. ¶ 194 –

of what nature we do not know. Finally, plaintiffs allege that on July 1, 1997,

Desmangles “was ordered” – the complaint does not say by whom – “to place D.L.

in a residential treatment facility specializing in sexual offender treatment,” Compl.

¶ 195, but did not do so.

In sum, plaintiffs allege that Desmangles knew that D.L. had a history of

sexual perpetration, that at least two other persons believed that D.L. should be

placed in a residential treatment facility, and that he had unspecified “behavioral

problems.” But he also knew that at least five Department officials had considered

D.L.’s file and had approved an overcapacity waiver to place D.L. in the Calhoun

88
home (known for its ability to handle troubled children) with six other boys – at

least five of whom were at least as old or older than D.L. Desmangles also had his

own first-hand observations. As alleged in the complaint, Desmangles was

required to visit D.L. in the home at least monthly; the purpose of these visits was

to assess the safety of the placement and to report any concerns about the condition

of the foster home to the Licensing Unit or any suspected abuse or neglect to the

District’s abuse prevention hotline. There is no allegation that Desmangles failed

to make regular visits to D.L. in the Calhoun home, with concurrent information-

gathering that yielded nothing more. While plaintiffs’ allegations might satisfy an

objective standard of negligence, therefore, they are insufficient to establish that

Desmangles himself believed that D.L.’s presence in the Calhoun home created a

strong likelihood of sexual abuse to the other children.

Susan Wilburn was assigned to D.L. on May 12, 1998. At that time, she was

informed by D.L.’s GAL that he “was inappropriately placed in the Calhoun foster

home and needed intensive, in-patient treatment at a facility for sexual offenders.”

Compl. ¶ 203. Later that month, Joann Calhoun informed Wilburn that D.L. was

in “desperate need of help” and had physically assaulted one of the other children.

Compl. ¶ 204. The details of the assault are nowhere alleged; nor is the identity of

89
the child who was assaulted. On May 21, 1998, Wilburn was assigned to N.M. and

R.M. She continued to serve as counselor to D.L., N.M., and R.M. for a little

under four months, until she left the Department on September 11, 1998. There is

no allegation that Wilburn failed to make regular visits to all three of these children

in the Calhoun home. Nor is there any allegation that Wilburn learned of child-on-

child sexual abuse in the Calhoun home during her visits to these three children.

Rather, plaintiffs allege that Wilburn failed to take adequate steps to ensure that

D.L. did not abuse the other children in the Calhoun home, or to protect N.M. and

R.M.

Like Desmangles, Wilburn knew that D.L. had a history of sexual

perpetration and that at least one person believed he should be placed in a

residential treatment facility. She also knew, however, that there had been no

reports of D.L. acting out sexually in the Calhoun home in the thirteen months he

had lived there. And perhaps most significantly, Wilburn had her own first-hand

observations from visiting three children – D.L., N.M., and R.M. – in the Calhoun

home, with the concomitant opportunity to monitor their specific interactions.

Plaintiffs’ additional allegation that Wilburn knew of one occasion where D.L. had

physically assaulted one of the children in some fashion is insufficient to establish

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that Wilburn believed that D.L. created a strong likelihood of sexual abuse to the

children in the Calhoun home.

Sharon Pollack was assigned to M.M. upon his placement in the Calhoun

home in March 1997, and continued until August 1997. There is no allegation that

she failed to visit M.M. regularly during this time. A little over ten months after

D.L.’s placement in the Calhoun home, on February 27, 1998, Pollack was

temporarily assigned to be D.L.’s counselor. She visited him once on March 5,

1998; her assignment ended on May 5, 1998, when she was re-assigned to M.M.

and continued in that capacity until September 1998. During that time, plaintiffs

allege that Pollack visited M.M. only once, on June 25, 1998.

The sum total of plaintiffs’ allegations regarding Pollack’s state of

knowledge is that she was aware of M.M. and D.L.’s sexual perpetration histories

and knew that they were living in a crowded home with troubled children.

Plaintiffs’ case against Pollack is a classic example of plain vanilla negligence –

that she should have recognized the risk of sexual abuse to the other children; that

she should have made regular visits to M.M. and D.L.; and that she should have

removed M.M. and D.L. or developed a plan to ensure that the children did not

become the perpetrators or victims of sexual abuse. While these facts were

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probative of the class action claim for injunctive relief in Ward, they do not

establish the deliberate indifference to a constitutional right necessary to recover

money damages against the caseworkers individually.

VI.

The complaint in this case alleges many facts from which the defendants

could, or perhaps should, have inferred that a substantial risk of serious harm

existed in the Calhoun home; however, there are no specific allegations that they

actually drew such an inference and then chose to disregard it.87 I would hold that

the district court did not err in dismissing the claims before us.

APPENDIX

Florida Department of Children and Family Services

87
Determining which of the facts alleged in the complaint’s 265 pages is relevant to the
question of whether a particular defendant engaged in deliberately indifferent conduct is not an
insubstantial task. The difficulty of this case was further compounded by the “shotgun” style of
pleading that we have vehemently criticized time and time again. See, e.g., Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 979–80 (11th Cir. 2008); United States v. McInteer, 470
F.3d 1350, 1354 n.6 (11th Cir. 2006); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156
n. 1 (11th Cir. 2006); Ambrosia Coal and Constr. Co. v. Morales, 368 F.3d 1320, 1330 n.22
(11th Cir. 2004); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d
1293, 1296 nn. 9-10 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075, 1128–34 (11th Cir. 2001)
Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir.1996);
Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.1991). Simply put, justice requires lawyers
not to do it and trial judges not to allow it.

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 Secretary
Edward Feaver
District Administrator of District 10 1

Johnny Brown (8/97-12/98)
Child Welfare Director 2

Katherine Kaufman (second)
Program Operations Program Operations Program Operations
Administrator of Administrator of Licensing Unit Administrator of
Protective Investigations and Placement Unit Foster Care Unit
Unit Jennifer Chang (until 3/98) Sharon Woodroof
Susan Kanaskie (after 4/98) (second) 3
Katherine Kaufman (first)
Protective Investigations Licensing Placement Foster Care
Supervisors Supervisors Supervisors Supervisors
Susan Kanaskie (until 4/98) Margaret Andrews Susan Worsley (as of
(second) 11/98)
Protective Investigators Licensing Placement Family Services
Susan Worsley (until 3/97) Counselors Counselors Counselors
Margaret Andrews Loubert Desmangles
(first) Susan Wilburn
Sharon Pollack

1
Fifteen service districts provided services in the areas of economic self-sufficiency;
developmental disability; alcohol, drug abuse, and mental health; and children and families.
2
A Program Administrator and a number of Family Services Specialists assisted the Child
Welfare Director via consultation and administrative support. During the time period relevant to
the complaint, Jennifer Chang (after 3/98), Sharon Woodroof (first), and Corinne Millikan
served as Family Services Specialists.
3
Plaintiffs allege that Woodroof served as POA of “re-licensing and foster care.”

93