United States District Court, W.D. Kentucky, Louisville Division
JOSIAH CURRY and HOLLY CURRY, Individually and on Behalf of their Minor children, V.C., R.C., Ad.C., C.C., H.C., and An.C. PLAINTIFFS
KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. STIVERS, JUDGE UNITED STATES
matter is before the Court on Defendants' Motion to
Dismiss (DN 4). For the reasons set forth below,
Defendants' motion is GRANTED.
Curry (“Holly”) alleges that she left her six
children alone in her vehicle for about ten minutes on March
30, 2017. (Compl. ¶¶ 45-47). When she
returned to her vehicle, police officers approached and
reprimanded Holly for her conduct. (Compl. ¶ 53). One
officer subsequently filed a JC-3 form with the Kentucky
Department for Community Based Services, Division of
Protection and Permanency (“Department”), and,
the next day, Jeanetta Childress (“Childress”)-a
social worker for the Department-visited the Curry residence
to determine whether Holly or Josiah had been neglecting
their children. (Compl. ¶¶ 72-74, 76-79).
Initially, Holly refused to let Childress inside,
Childress eventually gained entry by enlisting the help of
Hardin County Deputy Sheriff Michael Furnish
(“Furnish”), who told Holly that he would remove
her children from her home if she did not let Childress
enter. (Compl. ¶¶ 91-93, 96, 104-08, 113, 121-23,
133-36). Once inside, Childress and Furnish strip-searched
the Curry children and collected personal information about
them. (Compl. ¶¶ 155-238). Though the
Department found no evidence of abuse, the Department still
possesses the personal information about the Currys that
Childress gathered through her investigation. (Compl. ¶
subsequently brought suit against Defendants, arguing that
Defendants used unconstitutional procedures when
investigating the Currys' supposed instance of child
abuse.(Compl. ¶¶ 1-3). Pertinently,
Plaintiffs claim that 922 KAR 1:330 § 3(21)-a regulation
that the Secretary issued and that Childress utilized to
access the Currys' home-is unconstitutional because it
allows social workers to subvert the Fourth Amendment's
warrant requirement and instead “request assistance . .
. from law enforcement” to gain entry into a home
whenever the “parent . . . of [the] child
refuses” to let the social worker in, regardless
whether the social worker or child is in danger. (Compl.
¶¶ 270-71). As a remedy, Plaintiffs seek a judgment
against the Cabinet, Department, and Secretary, declaring 922
KAR 1:330.3(21) unconstitutional and requiring expunction of
any personal information that the Department possesses about
the Currys as a result of Childress' investigation.
(Compl. ¶¶ 272, 276).
moved to dismiss Plaintiffs' claims on the ground that
this Court lacks subject matter jurisdiction to hear them.
(Defs.' Mem. Supp. Mot. Dismiss, DN 4-1 [hereinafter
Defs.' Mot. Dismiss]). Plaintiffs submitted a response to
Defendants' motion. (Pls.' Mem. Law Opp'n Mot.
Dismiss 10, DN 2-10 [hereinafter Pls.' Resp.]). At this
juncture, the parties have fully briefed Defendants'
Motion to Dismiss, and that motion is therefore ripe for
action arises under the laws of the United States, and this
Court has jurisdiction pursuant to 28 U.S.C. §§
1331 and 1367.
STANDARD OF REVIEW
Court lacks subject matter jurisdiction over a claim (and the
claim is subject to dismissal) if the plaintiff fails to show
that he has standing to bring it. Fed.R.Civ.P. 12(b)(1);
Ward v. Alt. Health Delivery Sys., Inc., 261 F.3d
624, 626 (6th Cir. 2001). In reviewing a motion to dismiss
for lack of subject matter jurisdiction, the court must find
that the complaint plausibly shows that: (1) the plaintiff
has or imminently will suffer an injury, (2) the defendant
caused the injury, and (3) a judicial decision would redress
the injury. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992); White, 601 F.3d at 551-52
(citations omitted); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “General factual allegations of
injury may suffice to demonstrate standing, ” but
“standing cannot be inferred . . . from
averments”-the facts establishing standing must
affirmatively appear in the pleadings. White, 601
F.3d at 551 (citation omitted).
the plaintiff relies on an allegation of future harm to
establish the injury-in-fact element of the standing
requirement, he must plead facts sufficient to demonstrate
that the threatened injury is “certainly impending . .
. .” White, 601 F.3d at 553 (citing Rosen
v. Tenn. Comm'r of Fin. & Admin., 288 F.3d 918,
929 (6th Cir. 2002))). A threatened injury is not
“certainly impending” if it is contingent on the
occurrence of events, the incidence of which “veer
'into the area of speculation and conjecture.'”
Id. (quoting O'Shea v. Littleton, 414
U.S. 488, 497 (1974)).
begin with, the Court lacks subject matter jurisdiction over
Plaintiffs' claims against the Cabinet-a state agency-and
the Department, a division thereof, because both of those
parties are entitled to Eleventh Amendment immunity. As this
Court has recently explained: “[u]nder the Eleventh
Amendment to the United States Constitution, a state and its
agencies may not be sued in federal court, regardless of the
relief sought, unless the state has waived its immunity or
Congress has expressly abrogated states' immunity”
via statute. See Fleet v. Ky. Cabinet for Health &
Family Servs., No. 3:15-CV-00476-JHM, 2016 WL 1241540,
at *3 (W.D. Ky. Mar. 28, 2016) (internal footnote omitted)
(citations omitted)). Kentucky has not waived its immunity
from Plaintiffs' claims, and Congress has not abrogated
that immunity; thus, Plaintiffs' claims against the
Cabinet and Department cannot proceed. See id.
different result attaches with respect to the Secretary.
Plaintiffs may seek declaratory relief against the Secretary
because the Eleventh Amendment does not prevent a litigant
from seeking “prospective non-monetary relief against a
state official in her official capacity to prevent future [or
continuing] constitutional . . . violations.” Fleet,
2016 WL 1241540, at *4 (emphasis added); see also Ex