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Cohen v. District of Columbia

October 8, 2010

BRETT E. COHEN, AS PERSONAL AND LEGAL REPRESENTATIVE OF THE ESTATE OF D.Q., PLAINTIFF,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

D.Q., a foster child and ward of the District of Columbia, was killed when he was transported by van to Progressive Life Center's offices for an appointment, and he exited the van and stepped into oncoming traffic. Brett Cohen, as personal and legal representative of the Estate of D.Q., brought suit against: the District of Columbia ("District"); Progressive Life Center ("Progressive") (the contractor that arranged for placement with foster parents and provided regular counseling and medical care to D.Q.); Nile Express Transport, Inc. ("Nile") (the company that operated the van that transported D.Q.); and William Woods (the driver of the oncoming car). The District of Columbia and Progressive have moved for summary judgment, asserting that Plaintiff does not present a constitutional Due Process claim under 42 U.S.C. § 1983. As explained below, the evidence does not meet the threshold required to demonstrate that the District or Progressive acted with deliberate indifference that shocks the conscience. Accordingly, the Court will grant in part and deny in part the motions for summary judgment filed by the District and Progressive. The Due Process claim will be dismissed and the remaining local law claims will be remanded to Superior Court.

I. FACTS

At the time of his death, D.Q. was an 11-year-old committed ward of the District of Columbia.*fn1 The District had removed D.Q. from the care of his mother due to neglect on October 15, 1999. 3d Am. Compl. [Dkt. # 15] ¶ 8. D.Q.'s father was not a part of his life, and he formally waived his parental rights in 2005. Id. On May 9, 2000, the District of Columbia Superior Court committed D.Q. to the District, and the D.C. Child and Family Services Agency ("CFSA") became his legal guardian. Id. ¶ 9. CFSA is the agency charged with managing the District's child welfare system.

On September 1, 2000, CFSA placed D.Q. with Progressive to receive therapeutic foster care services. The District had contracted with Progressive to provide therapeutic services to foster children.*fn2 Those services included assistance with placement into foster homes and mental health counseling. Id. ¶ 10. The services provided to D.Q. included weekly psychotherapy sessions. From October 2002 to his death in July 2006, D.Q.'s psychotherapist was Anne Harshaw Smith.

D.Q. had a history of mental health problems, including hyperactivity and impulsiveness. Ms. Smith observed that D.Q.'s behavior vacillated - he went through periods of stability and instability. Pl.'s Ex. 5 [Dkt. # 109-4] ("Smith Dep.") at 35, 39-40. D.Q. sometimes talked to Ms. Smith about wanting to hurt himself. Smith Dep. at 65.

D.Q.'s instability led to hospitalization at the Psychiatric Institute of Washington three times - in 2002, 2004, and 2006. D.Q. was admitted to the Institute on May 2, 2006, for a 21 day in-patient mental examination after an "out of control episode" at his foster home when he threatened to kill his foster parent and grandmother. D.C.'s Ex. 1D [Dkt. # 85] at D.C. Confidential 4627-4632. D.Q.'s then foster mother, Arnette Walker, indicated that D.Q. had been aggressive and threatened her.*fn3 Id. at 4630. Ms. Smith testified that D.Q. was hospitalized because he had made "suicidal gestures." Smith Dep. at 95.

During the 2006 stay at the Institute, Dr. Terry Jarrett diagnosed D.Q. with Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, and Parent-Child Relational Disorder. D.C.'s Ex. 1D [Dkt. # 85] at D.C. Confidential 4627. Dr. Jarrett also noted D.Q.'s history of suicidal ideation. Id. at 4629. Dr. Jarrett prescribed Concerta, Zoloft, and Risperdal in an attempt to ameliorate D.Q.'s mental health problems. Id. at 4627. On May 22, 2006, the Institute discharged D.Q. to his foster parent, Ms. Walker, and Dr. Jarrett recommended continued outpatient mental health services. See id. at 4628, 4632; see also D.C.'s SUMF ¶ 734.

On July 10, 2006, eight days before his death, D.Q. was placed with Joseph and Kawana Gerald, new foster parents who lived in Upper Marlboro, Maryland. The very next day, July 11, Adrian Gayle, a social worker employed by Progressive, met with D.Q. and the Geralds. The Geralds told Mr. Gayle that they had not given D.Q. any of his medications, and that they did not believe that D.Q.'s prior foster parent had administered any medication. Pl.'s Ex. 15 [Dkt. # 110-5] ("Gayle Dep.") at 48-51. Mr. Gayle observed that D.Q. appeared to be happy and stable. Gayle Dep. at 53. Further, Mrs. Gerald told Mr. Gayle that D.Q. was not showing any difficulty other than bed-wetting. D.C.'s Ex. 1D [Dkt. # 85-1] at D.C. Confidential 4919.

As a result of the July 11 meeting with D.Q.'s foster parents, Mr. Gayle promptly arranged for a psychiatric consultation for the purpose of reviewing D.Q.'s medications. Id. at 4917-19. Dr. Benjamin Adewale, a medical doctor who is board certified in psychology and neurology, conducted the evaluation on July 15. On that day, Dr. Adewale put D.Q. back on prescriptions for Concerta and Risperdal, but discontinued the prior prescription for Zoloft because he did not believe it was necessary for D.Q.'s treatment.*fn4 D.C.'s Ex. 1D [Dkt. # 85-1] at D.C. Confidential 4900, 4910, 4917. Dr. Adewale indicated that although D.Q. had been off his medication for approximately two weeks, D.Q. still had medication in his system "so the two week lack has not affected him as of yet." Id. at 4917. Dr. Adewale testified at his deposition that he would have put D.Q. in the hospital if he thought that D.Q. was a danger to himself or others. D.C.'s Ex. 23 [Dkt. # 97] ("Adewale Dep.") at 70.

Although Ms. Smith continued in her role as psychotherapist to D.Q. in the months before his death, the two weekly appointments immediately before his death were cancelled. The July 4 appointment was cancelled due to the holiday and the July 11 appointment was cancelled due to D.Q.'s attendance at summer camp. D.C.'s Ex. 1D [Dkt. # 85-1] at D.C. Confidential 4923, 4922.

The accident that killed D.Q. occurred on July 18, 2006. On that day at around 1:00 p.m., Nile*fn5 transported D.Q. by van to Progressive's office at 1933 Montana Avenue, N.E.,*fn6 for a therapy session. The van driver, Rejino Stultz, parked across the street from the office in the middle of the block.

Mr. Stultz had driven D.Q. approximately three times per week for the prior two years. D.C.'s Ex. 24 [Dkt. # 97] (Stultz Dep.) at 32-33. Usually, D.Q. would get out of the car and wait at the back for Mr. Stultz to come around and get chips and juice out of the back of the van for him. Id. at 56-57. Mr. Stultz would then walk him across the street to Progressive. Pl.'s Ex. 13 [Dkt. # 110-3] (Stultz Dep.) at 108-09. Mr. Stultz had not had any prior unusual incidents involving D.Q. Id. at 13. On the day of the accident, Mr. Stultz observed D.Q. to be happy and enjoying himself, as he had been attending summer day camp. Id. at 137.

When Mr. Stultz parked the van across Montana Avenue from the Progressive offices and before Mr. Stultz got out of the van, D.Q. stepped out and started across the street.*fn7 A car driven by William Woods struck D.Q. D.Q. suffered serious injuries and was transported to Children's Hospital, where he died two days later.

As a result, Plaintiff brought a six count complaint against the District, Progressive, Nile, and Mr. Woods as follows:

Count I (against the District, Progressive, and Nile) -- wrongful death based on negligence;

Count II (against the District, Progressive, and Nile) -- survival action based on negligence;

Count III (against the District, Progressive, and Nile) -- negligent hiring, training, and supervision;

Count IV (against Woods) -- survival action based on negligence; Count V (against the District and Progressive) -- violation of constitutional Due Process via 42 U.S.C. ยง 1983; and Count VI ...


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