United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
case comes before the court on a motion to dismiss by five
individually-named Defendants (hereinafter “the
Individual Defendants”). (Doc. 161.) The motion is
fully briefed and is ripe for decision. (Docs. 162, 170,
171.) For the reasons stated herein, the motion to dismiss
(Doc. 161) is GRANTED.
following facts are taken from the amended complaint (Doc.
134) and are presumed to be true for purposes of deciding the
motion to dismiss.
Kansas Department for Children and Families
(“DCF”) (formerly known as Social and
Rehabilitation Services or “SRS”) is an agency of
the State of Kansas charged with administering the
state's duty to look after the interests of foster
children in DCF custody. (Id. at 5-7.) DCF is
responsible for the safety, care, custody, placement, and
supervision of DCF foster children. (Id. at 7-8.)
The Individual Defendants were employed by DCF at all times
relevant to this suit. Plaintiff Courtney Smith was born in
1999, and was 19 years old on April 16, 2019, when the
amended complaint was filed. (Id. at 5.)
Family Service, Inc. (“TFI”) is a private entity
that contracts with DCF to provide placement and other
services for children in DCF custody. (Id. at 10.)
In October 2008, when Plaintiff was nine years old, she was
placed in DCF custody pursuant to a court order.
(Id. at 26.) In October 2008, DCF employee Angela
Kruczynski referred Plaintiff to TFI for placement services,
and in the same month TFI placed Plaintiff in the home of
Delores and Earl Wilkins. (Id.) Plaintiff allegedly
suffered physical and emotional abuse from 2008 through
October 2009 from “adults residing in the Wilkins'
home” (the complaint does not specify from whom) and
Plaintiff witnessed abuse of other children in the home.
(Id.) TFI had actual and constructive knowledge that
Plaintiff was being abused but forced her to remain in the
Wilkins' home. (Id. at 28.)
received and investigated numerous hot-line calls about child
abuse in the Wilkins home yet continued to place Plaintiff
and other children there. (Id. at 2.) DCF allegedly
received thirteen reports of foster children being abused or
neglected in the Wilkins home between 2001 and October 2009.
(Id. at 19.) DCF employee Jay Clements investigated
these reports and determined in each case that a finding of
“unsubstantiated” was warranted based on a
“clear and convincing” standard of proof.
(Id. at 20.) Clements therefore did not enter the
alleged perpetrator's name in a central registry of
identified abusers. (Id. at 17-18.) Plaintiff
alleges that DCF was required to make a decision after every
report of abuse as to whether to remove foster children from
the Wilkins home, based on a preponderance of evidence
standard, but DCF “refused to make a decision.”
(Id. at 17, 19.) While Plaintiff was in the Wilkins
home from October 2008 through October 2009, DCF employees
Peggy Jordan and Angela Kruczynski were allegedly
“required to …but refused to make any
determination or decision whether to remove” Plaintiff
from the home. (Id. at 20.) DCF managers Steve
Fincher and Candace Shively allegedly sanctioned and approved
the practice “of failing to determine the safety of DCF
foster children, ” including Plaintiff. (Id.
allegedly knew or should have known that TFI was failing to
meet its contractual standards with DCF including by failing
to report all incidents of maltreatment and that it was
thereby endangering foster children including Plaintiff.
(Id. at 31-32.) The Wilkins home was closed for
placement of foster children in 2009 after DCF received
multiple hot-line reports identifying adults in the Wilkins
home as perpetrators of physical abuse. (Id. at 28).
It was permanently closed as an unlicensed foster home in
1 through 3 of the amended complaint assert claims against
TFI for gross negligence, outrage, and deprivation of
constitutional rights under 42 U.S.C. § 1983. Count 6
alleges a claim against the Individual Defendants under
§ 1983. Among other things, Count 6 alleges that the
Individual Defendants, acting under color of state law and
with deliberate indifference, caused a violation of
Plaintiff's Fourteenth Amendment rights “not to be
placed with a home not licensed for foster children, where
child abuse is reported to occur, ” “to be free
from harm, ” “to placement in a reasonable safe
and secure environment and conditions, ” and “to
be free from maltreatment while in foster care.” (Doc.
134 at 42-46.) Plaintiff alleges some or all of the
Individual Defendants referred her to TFI for foster care
services knowing that TFI “was incompetent to determine
appropriate placements” and “under-reported
maltreatment of DCF foster children.” (Id. at
42.) Plaintiff alleges that some or all of the Individual
Defendants failed to protect her by placing her in a home
with adults who had been identified as persons who abused
children, by failing to adequately monitor her, and by
failing to respond appropriately to allegations of child
abuse. (Id. at 44.)
Individual Defendants contend the § 1983 claim against
them is barred by the Kansas statute of limitations and/or
statute of repose, and that the allegations otherwise fail to
state a claim for relief under § 1983. (Doc. 162.) In
response, Plaintiff essentially argues that her claim did not
accrue until she received some confidential DCF documents on
November 30, 2018, that her amended complaint relates back to
the filing of the original complaint, pursuant to Rule 15,
and was therefore timely, and that her allegations are
sufficient to state a § 1983 claim. (Doc. 170.) For the
reasons set forth herein the court finds that the § 1983
claim against the Individual Defendants is barred by the
statute of limitations.
order to withstand a motion to dismiss for failure to state a
claim, a complaint must contain enough allegations of fact to
state a claim to relief that is plausible on its face.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 1974 (2007)). All well-pleaded facts and
the reasonable inferences derived from those facts are viewed
in the light most favorable to Plaintiff. Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory
allegations, however, have no bearing upon the court's
consideration. Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007). In the end, the issue is
not whether Plaintiff will ultimately prevail, but whether
Plaintiff is entitled to offer evidence to support her
claims. Beedle v. Wilson, 422 F.3d 1059, 1063 (10th
based on a statute of limitations is appropriate under Rule
12(b)(6) “when the dates given in the complaint make
clear that the right sued upon has been extinguished.”
Glaser v. City & Cty. of Denver, Colorado, 755
Fed.Appx. 852, 854 (10th Cir. 2019), cert. denied sub
nom. Glaser v. Denver, Co., No. 18-9096, 2019 WL 4921601
(U.S. Oct. 7, 2019) (citing Aldrich v. McCulloch Props.,
Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980)). See
also Jones v. Bock, 549 U.S. 199, 215 (2007)
(“[i]f the allegations … show that relief is
barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a
claim.”) When the facts and dates are not disputed, ...