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Curry v. Kentucky Cabinet For Health And Family Services

United States District Court, W.D. Kentucky, Louisville Division

March 14, 2018

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


          Greg N. Stivers, Judge United States District Court.

         This matter is before the Court on Defendants' Motion to Dismiss (DN 4). For the reasons set forth below, Defendants' motion is GRANTED.

         I. BACKGROUND

         Holly Curry (“Holly”) alleges that she left her six children alone in her vehicle for about ten minutes on March 30, 2017.[1] (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.[2] (Compl. ¶¶ 72-74, 76-79). Initially, Holly refused to let Childress inside, [3] but 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.[4] (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. ¶ 234-38).

         Plaintiffs subsequently brought suit against Defendants, arguing that Defendants used unconstitutional procedures when investigating the Currys' supposed instance of child abuse.[5](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).

         Defendants 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 adjudication.


         This action arises under the laws of the United States, and this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.


         The 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.[6] 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).

         When 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)).


         To 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.

         A 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 ...

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