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Gay v. Cabinet For Health and Family Services

United States District Court, E.D. Kentucky, Central Division, Lexington

February 16, 2018



          Joseph M. Hood Senior U.S. District Judge.

         A dispute between foster and birth parents over a piece of pizza has led to this civil rights lawsuit involving alleged unconstitutional racial and sexual-orientation discrimination. Plaintiffs, a married lesbian African-American couple, contend the Kentucky Cabinet for Health and Family Services (the “Cabinet”) closed their foster home in violation of the Fourteenth Amendment9');">9;s Equal Protection Clause. Defendants deny the allegation, claim they are immune from suit, argue that Plaintiffs do not have standing to pursue their claims, and now ask this Court to dismiss the case.

         Defendants have filed a Joint Motion to Dismiss [DE 9');">9]. Plaintiffs Tiniqua and Felicia Gay (“the Gays”) have filed a Response in Opposition [DE 1');">1');">1');">10], as well as their own Motion to Amend the Complaint [DE 1');">1');">1');">13]. Defendants have also filed a Motion to Stay Discovery [DE 1');">1');">1');">12]. All Motions are fully briefed [DE 1');">1');">1');">11');">1');">1');">1, 1');">1');">1');">17, 1');">1');">1');">18, 1');">1');">1');">19');">9] and ripe for the Court9');">9;s review. For the reasons stated herein, Defendants9');">9; Motion to Dismiss is GRANTED. Plaintiffs9');">9; Motion to Amend the Complaint is DENIED, and Defendants9');">9; Motion to Stay Discovery is DENIED AS MOOT.


         The United States Constitution forbids discrimination based on race and sexual orientation. The Gays claim the state of Kentucky and several of its employees violated this precept and failed to provide Equal Protection under the law when the state closed their foster home. Plaintiffs now look to vindicate their rights through 42 U.S.C. § 1');">1');">1');">19');">983 and supplemental state law claims.

         The state certified Tiniqua Gay as a foster parent in May 201');">1');">1');">13, and she received her first child placement in June 201');">1');">1');">13. [DE 1');">1');">1');">1, p. 5]. Tiniqua9');">9;s first foster child was “her teenage African American brother.” [Id. at pp. 5-6]. Felicia Gay became certified as a foster parent in December 201');">1');">1');">13, and the couple secured a second placement in February 201');">1');">1');">14-a 1');">1');">1');">16-year-old Caucasian female. [Id. at p. 6].

         Tiniqua Gay entered into a foster parent contract with the state on July 1');">1');">1');">1, 201');">1');">1');">14, and Plaintiffs received their third placement-a two-year-old Caucasian female-in December 201');">1');">1');">14. [Id.]. Tiniqua Gay9');">9;s fourth and fifth placements occurred in May 201');">1');">1');">15 and June 201');">1');">1');">16. These placements are the subject of this lawsuit. The 201');">1');">1');">15 placement was a one-week-old Caucasian female referred to as “Baby M.” [Id.]. A year later, “Baby B”-also a one-week-old Caucasian female and Baby M9');">9;s biological sister-came to live with Tiniqua Gay directly from the University of Kentucky NICU. [Id.].

         Several months later, Tiniqua and Felicia married. [Id.]. They allege that the Cabinet “never acknowledged or recognized” the marriage and “did not update their records to reflect that the Plaintiffs were married.” [Id.]. Only two months after marriage, the Gays informed the Cabinet that they wished to adopt Baby M and Baby B. [Id.]. The Gays intended to do so after the biological mother of the two girls had her parental rights terminated, which was scheduled for May 1');">1');">1');">15, 201');">1');">1');">17. [Id. at pp. 6-7].

         But before official adoption could commence, an altercation between the Gays and the biological mother kicked over the first domino in what eventually became the present lawsuit. The kerfuffle between Felicia Gay and the birth mother occurred a month before the biological parents9');">9; rights were set to terminate. [Id. at p. 7');">p. 7]. At the Clark County Department for Community Based Services office in Winchester, Kentucky, the birth parents visited with Baby B and Baby M under the supervision of social worker and Defendant Emily Sergent. [Id.]. Felicia Gay was also present and became concerned when she witnessed the birth mother feed Baby M pizza with tomato sauce on it. [Id.]. According to Plaintiffs, Baby M has a food allergy to tomatoes-a fact that Plaintiffs claim both Sergent and the biological mother knew. [Id.]. Gay approached the birth parents and asked about the ingredients Baby M consumed, and the birth mother reacted angrily. [Id.]. Plaintiffs allege that the birth mother “began yelling” at Gay:

The biological mother proceeded to call Plaintiff Gay ‘a fuc*ing n*gger9');">9; and asked Defendant Sergent ‘why is the Cabinet letting her kids be raised by two (2) n*gger lesbian bitc*es?9');">9; [Id].

         Plaintiffs allege that Gay kept quiet at that point because she did not want to escalate the situation. [Id.]. Later, however, Gay confronted Sergent and asked why she did not step in to diffuse the situation. [Id.].

         Defendants have a different version of events, claiming Gay “verbally confronted” the birth mother. [DE 9');">9, p. 3]. Defendants describe a “heated” argument and an “ugly verbal confrontation between the two women” that “escalated in front of the children.” [Id.]. No one claims that any Cabinet employee or state official used racially charged language or made any comments about the Gays9');">9; sexual orientation. The only person accused of making derogatory slurs is the birth mother who is not part of this lawsuit. Although the parties have different accounts, the Court accepts as true all factual allegations made by Plaintiffs because this case sits at the motion to dismiss stage.

         No one claims that any Cabinet employee or state official used racially charged language or made any comments about the Gays9');">9; sexual orientation. The only person accused of making derogatory slurs is the birth mother who is not part of this lawsuit.

         A week after the altercation, Plaintiffs contacted a Cabinet employee and inquired when they could begin the formal adoption process with Baby M and Baby B. [DE 1');">1');">1');">1, p. 7');">p. 7]. The employee, identified only as “Ms. Abshire, ” told Plaintiffs that the process would begin as soon as the biological mother9');">9;s rights were terminated. [Id.]. Only five days later, Plaintiffs filed a formal complaint against Sergent claiming they were treated differently because of their race and sexual orientation. [DE 1');">1');">1');">1, p. 8');">p. 8]. And only two days after filing the formal complaint, Plaintiffs received a phone call from Defendant Kidd who informed Plaintiffs that the Cabinet was removing Baby M and Baby B due to the verbal confrontation. [Id.]. Plaintiffs allege Kidd said the Cabinet could not “allow a situation to exist that is not in the best interest of the children.” [Id.].

         Within a week of hearing from Kidd, Plaintiffs learned that the Cabinet was closing their foster home. [Id.]. At that time, the official reason was “because the foster parents (Plaintiffs) requested that it be closed.” [Id.]. But Plaintiffs did not make that request, and they informed the Cabinet only a few days after receiving notification of the closure that they wished to keep their home open. [Id.]. Still, the Cabinet closed the home on May 1');">1');">1');">11');">1');">1');">1, 201');">1');">1');">17-three days after Plaintiffs sent a certified letter to the Cabinet that they were not closing their home. [Id.]. Again, Cabinet officials told Plaintiffs they could not “allow a situation to exist that is not in the best interest of the children.” [Id.]. And the Cabinet decided that “Felicia and Tiniqua Gay will not receive any future placement into their home.” [Id.].

         Plaintiffs then filed this lawsuit under 42 U.S.C. § 1');">1');">1');">19');">983 claiming a range of constitutional as well as state law violations. Plaintiffs claim the Cabinet and its employees closed the foster home because of their race and sexual orientation. They further claim the Cabinet removed the children to place them with a Caucasian family. The Gays filed suit on June 1');">1');">1');">13, 201');">1');">1');">17, and the present motions followed.


         Defendants have moved for dismissal under Rules 1');">1');">1');">12(b)(1');">1');">1');">1) and 1');">1');">1');">12(c). Plaintiffs have asked the Court for leave to amend under Rule 1');">1');">1');">15. The numerous motions filed by the parties implicate several different standards of review. The Court discusses each in turn.


         First, Defendants move to dismiss pursuant to Rule 1');">1');">1');">12(b)(1');">1');">1');">1) for lack of subject matter jurisdiction. “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 1');">1');">1');">11');">1');">1');">1 U.S. 375');">51');">1');">1');">11');">1');">1');">1 U.S. 375, 377 (1');">1');">1');">19');">99');">94). “They possess only that power authorized by Constitution and statute.” Id. These are limited to actual cases or controversies. U.S. Const. art. III, § 2. There is a presumption against subject matter jurisdiction, and the “burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 51');">1');">1');">11');">1');">1');">1 U.S. at 377.

         “Subject matter jurisdiction is always a threshold determination.” Am. Telecom. Co., LLC v. Rep. of Lebanon, 1');">1');">1');">1 F.3d 534');">501');">1');">1');">1 F.3d 534, 537 (6th Cir. 2007). But a party may object to subject matter jurisdiction at any stage in the litigation. “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 1');">1');">1');">12(h)(3). Parties challenge subject matter jurisdiction in two ways: (1');">1');">1');">1) through the sufficiency of the pleadings (a “facial attack”), or (2) despite the sufficiency of the pleadings, by disputing the factual content within the pleadings (a “factual attack”). See Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 9');">91');">1');">1');">1 F.3d 320');">49');">91');">1');">1');">1 F.3d 320, 330 (6th Cir. 2007). Here, Defendants argue the pleadings fail to establish subject matter jurisdiction, which implicates a facial attack.

         “When reviewing a facial attack, a district court takes the allegations in the complaint as true.” Id. If the allegations within the complaint “establish federal claims, ” then subject matter jurisdiction is appropriate. Id. “This approach is identical to the approach used by the district court when reviewing a motion invoking Federal Rule of Civil Procedure 1');">1');">1');">12(b)(6).” Global Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., Ltd., 807 F.3d 806, 81');">1');">1');">10 (6th Cir. 201');">1');">1');">15).


         Second, Defendants move under rule 1');">1');">1');">12(c). [DE 9');">9]. “After the pleadings are closed . . . a party may move for judgment on the pleadings.” Fed.R.Civ.P. 1');">1');">1');">12(c). Under such a motion “all well-pleaded material allegations of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Tucker v. Middleburg-Legacy Place, 9');">9 F.3d 545');">539');">9 F.3d 545, 549');">9 (6th Cir. 2008) (quoting JPMorgan Chase Bank, N.A. v. Winget, 1');">1');">1');">10 F.3d 577');">51');">1');">1');">10 F.3d 577, 581');">1');">1');">1 (6th Cir. 2007)). A motion for judgment on the pleadings requires the same “standard of review employed for a motion to dismiss under Rule 1');">1');">1');">12(b)(6).” Flori ...

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