K.S., INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, J.S.VERSUS WAYNE
SUMMERS, THE FLORIDA PARISH JUVENILE JUSTICE DISTRICT AND THE STATE OF
LOUISIANA, THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
2001 CW 0794
COURT OF APPEAL OF
LOUISIANA, FIRST CIRCUIT
2001 0794 (La.App. 1 Cir,
05/23/01);
799 So. 2d 510
May 23, 2001, Rendered
PER
CURIAM.
This
matter is before us on an application for supervisory writs wherein the State
of Louisiana, through the Department of Public Safety and Corrections, seeks review of the trial court's judgment
denying its motion for summary judgment (MSJ) and its motion in limine. Relator
argues that the court erred in not granting the MSJ because relator had no duty
to disclose a fully pardoned prior criminal [*512] conviction of a former
employee to the hiring employer and because relator did not have a duty to
protect the victim against the alleged intentional acts of its employee.
Finding error in the denial of the MSJ, we grant the writ in part.
FACTS
K.S., individually and on behalf
of her minor child, J.S., n2 filed suit against relator, State of Louisiana,
through the Department of Public Safety and Corrections; Wayne Summers; and
Florida Parishes Juvenile Justice District (hereinafter "District").
n3 In her petition, plaintiff alleged that her son was by order of juvenile
court incarcerated in the Florida Parishes Juvenile Detention Center
(hereinafter "Center"). Plaintiff alleged that Summers was employed
by relator and/or the District as warden, that he was responsible for the
operation of the Center, and that he was entrusted with the care of the
juvenile. (The Center is actually operated by the Florida Parishes Juvenile
Justice Commission, which was set up to manage the affairs of the District; the
Commission is [Pg 3] composed of a Board of seven commissioners.) Plaintiff
alleged that Summers sexually assaulted and abused her son on April 25, 1997. n4
According to the petition, Summers, while principal of an Abbeville
elementary school in Vermilion Parish, was arrested and pled guilty to
possession with intent to distribute marijuana, a felony. Plaintiff alleged
that Summers was fired in 1983 on grounds of dishonesty and willful neglect
based on these charges. Plaintiff further alleged that Summers was imprisoned
for six months and served two years probation. Shortly after serving time, Summers
was hired by relator as a teacher at
the juvenile training institute in Bridge City and thereafter performed work
for the juvenile parole board. In 1992, Summers was appointed superintendent of
the Center.
Plaintiff alleged that relator
was guilty of the following intentional acts and/or negligence: failing to
conduct a background check of Summers prior to his being employed in various
capacities involving work with juveniles; being negligent per se as a result of
employing a convicted felon; violating La.
R.S. 15:825.3; failing to properly supervise Summers; failing to adopt
and enforce proper procedures for the care and protection of children in its
custody; permitting Summers to remove J.S. from the juvenile center premises;
and vicarious liability for the tortuous and/or intentional acts of its
employee. According to the petition, relator and the Center knew or should have
known that employing Summers, who had already established himself as a person
not suitable to work with juveniles, violated law established to protect the
rights of juveniles; knew or should have known that an employee with Summers'
background could cause harm to juveniles; and knew or [Pg 4] should have known
that Summers' conduct was and had been in the past, inappropriate toward
juveniles entrusted to his care. Plaintiff alleged that relator and the Center
might have prevented the acts of their employee toward J.S., but failed to do
so. Plaintiff alleged that relator violated [*513] plaintiff's civil rights
under 42 USC 1983.
Relator filed an MSJ, contending that in (March) 1987, Summers was
pardoned by former Governor Edwards for the marijuana conviction and in (July)
1991, the conviction was set aside to have the same effect as an acquittal,
except for purposes of sentencing in similar subsequent prosecutions. See LSA-C.Cr.P. art. 893(D)2. n5 In 1992,
Summers was hired by the Commission for the District. When Summers was hired by
the Commission, Louisiana's Child Protection Act prohibited the hiring of a
person with a felony conviction, such as drug distribution, for a position in a
juvenile detention facility. See LSA-R.S.
15:825.3. Before the Commission decided to hire Summers, four employees of the
Department of Public Safety and Corrections wrote letters of recommendation to
the Commission on official letterhead. Only one of the four authors of the
letters had knowledge of Summers' drug conviction, but did not mention it in
his letter.
A
criminal background check was done on Summers--a state check, a state police check
and a national check with the FBI; [Pg 5] the Commission officials also
requested a National Crime Information Center criminal background report. The
report said there were no matching records, but the report contained the caveat
that it did not preclude the possible existence of matching records in local,
state, or FBI identification division files that were not indexed in the NCIC
III. During his preemployment interview, Summers was never asked by the
Commission about his criminal background or if there was anything questionable
in his background. No person during the application and interview process asked
a more searching question inquiring into any incidents in his background
that would reflect adversely upon the
District if he were hired or would reflect adversely upon his fitness for the
position. During his employment with the District, Summers spoke openly about
his marijuana conviction with the president of the Commission, several
employees of the District, and even among the juvenile inmate population.
Relator also alleged that at all times relevant to the litigation, J.S.
was in the physical custody and control of the District, not relator. Relator
further alleged that Summers was an employee of the District, not relator.
Plaintiff
submitted in opposition a contract between relator and the Center concerning
the housing of children in relator's custody; the contract says that relator
can come into the Center anytime unannounced and inspect it. According to the
contract, if the Center has any knowledge or any suspicion of any abuse towards
state children that are housed there, the Center has the responsibility to
report the abuse and notify relator. Plaintiff also submitted documents showing
J.S.'s crime and that he was initially in relator's custody. Additionally,
plaintiff submitted computer printouts that were allegedly in relator's
employee personnel file for Summers; the [Pg 6] printouts reference the docket
number of the Vermilion Parish criminal proceedings [*514] and conviction for
intent to distribute marijuana.
Relator also filed a motion in limine seeking to exclude any evidence
regarding Summers' marijuana conviction.
The
trial court denied both the MSJ and the motion in limine. From these rulings,
relator seeks writs.
DISCUSSION
Relator argues that the court erred in not granting the MSJ as to any of
four bases of liability. Relator contends that it could not be held liable
under 42 USC § 1983; that it had no
duty to disclose a prior criminal conviction of Summers to the Commission; that
even if it had such a duty, that a prior conviction that was subsequently
absolved by a full gubernatorial pardon and dismissed under LSA-C.Cr.P. art.
893(D)(2) does not have to be disclosed; and that relator did not have a duty
to protect J.S. against the alleged intentional acts of Summers, an employee of
the District.
Relator correctly contends that
it could not be held liable under 42 USC § 1983 because states or departmental
agencies such as relator sued in their official capacities are not persons
subject to suit under 42 USC § 1983. Champagne v. Jefferson Parish Sheriff's
Office, 188 F.3d 312 (5th Cir. 1999). As to plaintiff's respondeat superior
theory of liability, it should be noted that plaintiff's counsel stated at the
hearing on the MSJ (and in his response brief) that his case against relator
was not based on respondeat superior.
Relator contends that the trial
court erred when it did not grant the MSJ as to plaintiff's negligent
recommendation theory of liability because former or current employers do not
have a duty to disclose prior criminal convictions of their employees to future
employers, particularly prior criminal convictions [Pg 7] that have been
absolved by a gubernatorial pardon n6 and dismissed under LSA-C.Cr.P art.
893(D)(2). We find the trial court erred in failing to grant the motion for
summary judgment as to plaintiff's negligent
referral theory because plaintiff produced no evidence that relator
breached any duty in this case. There was no evidence to indicate that the
letters of recommendation were in any way false, misleading or
misrepresentative of Summers' performance in his administrative position with
relator. There is nothing to demonstrate that relator's agents actively
concealed anything about Summers when recommending him to a prospective
employer. Further, there was no evidence that Summers had ever demonstrated any
tendency toward sexual or other misconduct while he was employed by relator.
Without more, the mere fact that relator's employees did not divulge an
employee's eight-year-old expunged drug conviction that predated his tenure with that employer is
insufficient to support a finding of a breach of duty.
Moreover, plaintiff also failed to produce
sufficient evidence to create an [*515]issue as to causation. It is undisputed
that the District, the hiring employer, never asked Summers about a criminal
background. It was uncontested that Summers made no secret of his drug
conviction around District employees or detainees. Indeed, Bob Tyler, then
President of the [Pg 8] Commission for the Florida Parishes Juvenile Justice
District who was involved in the hiring of Summers, testified that Summers told
him about the marijuana conviction and made no effort to conceal it. Other
testimony revealed that Summers openly discussed the expunged marijuana
conviction at the detention center and utilized it as part of his testimonial.
The District did not remove Summers once his marijuana conviction came to
light.
Additionally, there is simply no "ease
of association" between an old drug conviction and sexual molestation of
juveniles some twelve to thirteen years later. The drug conviction did not even
occur while Summers was employed by relator; it occurred while Summers was
employed by a prior employer approximately eight years before the time the
letters of recommendation were written. The connection between the lack of
disclosure and the plaintiff's ultimate harm is further attenuated by the fact
that Summers received a full gubernatorial pardon for the marijuana conviction,
which was set aside as an acquittal by court order. See Keaton v.
Summers, F. Supp. , 2000 U.S. Dist. Lexis 7474 (E.D. La. 5/23/00). See also Francioni v. Rault, 518 So. 2d 1175 (La.App.
4 Cir.), writ denied, 521 So. 2d 1189 (La. 1988).
Plaintiff also contended that relator
violated LSA-R.S. 15:825.3, which
states:
No operator, staff person, or employee of
a juvenile detention, correction, or treatment facility shall be hired by the
department until such person has submitted his fingerprints to the Louisiana
Bureau of Criminal Identification and Information so that it may be determined
whether or not such person has been convicted of or has pled nolo contendere to
a crime listed in R.S. 15:587.1(C). If it is determined that such person has
such a conviction or has entered a plea of nolo contendere to a crime listed in
R.S. 15:587.1(C), that person shall not be hired.
LSA-R.S.
15:825.3 was added by 1986 La. Acts No. 760, § 1, and was effective January 1,
1987. Plaintiff's allegations that [Pg 9] relator was negligent in permitting a
convicted felon to remain in the juvenile justice system in violation of LSA-R.S.
15:825.3 have no application to this case because the statute became effective
January 1, 1987, after Summers was hired by relator. Moreover, the statute only
applies to relator and not the Commission and does not require the retroactive
removal of current employees of relator.
Plaintiff contends that LSA-Ch.C. art. 908 imposes a duty on relator and
prevents relator from delegating any legal responsibility. That article states:
A.
Except as provided in Article 906, the Department of Public Safety and
Corrections shall have sole authority over the placement, care, treatment, or
any other considerations deemed necessary from the resources that are available
for children judicially committed to the department.
B.
When care and treatment are to be provided by the department, either through
facilities and programs operated by it or through contractual arrangements or
through purchase of service arrangements for which the department provides
funding, the child shall be committed to the department rather than to a
particular institution or facility.
C.
The court shall not divide legal and physical custody of a child when
[*516]assigning custody to the department in accordance with this Article or in
accordance with any other statute or provision of law.
However, the statutes concerning the District indicate that, under the
circumstances of this case, while relator had custody over the juvenile, the
District (and not relator) had control and authority over its own employees. LSA-R.S.
15:1094.1 established the Florida Parishes Juvenile Justice Commission "to
control, administer, and manage the affairs of the district." The
Commission's purpose is "to assist and afford opportunities to children
who enter the juvenile justice system, . . . to become productive, law-abiding
citizens of the community, parish, and state by the establishment of rehabilitative
programs within a structured environment and to provide physical facilities and
related services for children throughout the [Pg 10] [Florida] parishes . . .
." LSA-R.S. 15:1094.2. LSA-R.S. 15:1094.4 provides for the general
authority of the Board:
A. The board may purchase or otherwise
acquire, construct, reconstruct, rehabilitate, improve, repair, operate, lease
as lessor or lessee, manage, and administer or enter into contracts for the
management, administration, and operation of a juvenile detention facility or
facilities, . . .
B.
The board may also authorize and approve, upon such terms as it may deem
advisable, contracts of employment for a superintendent or administrator
and other necessary personnel and
contracts for legal, financial, engineering, and other professional services
necessary or expedient for the conduct of its affairs.
LSA-R.S.
15:1094.5 states:
A.
The board of commissioners shall be domiciled in the parish of Tangipahoa and
shall have the power to sue and be sued. In the exercise of its powers to
control, administer, and manage the affairs of the district, the board may
incur debt and issue bonds, . . . The board generally may perform any function
and exercise any power necessary, requisite, or proper for the administration and management of the affairs of
the commission . . . .
LSA-R.S. 15:1094.5 establishes
the District's independent juridical existence. The agreement by which the
Center received payment of relator's funds for housing prisoners under relator's
custody, through which relator was authorized to perform periodic inspections
at the Center, and by which relator required the District to operate the Center
in accordance with certain guidelines merely set forth a general outline of
policy and procedure for the housing of DOC inmates, but the District was given
the responsibility for implementing specific written policy, procedure and
practice under the guidelines. The agreement does not take away from the
District's control of the Center. See Gullette
v. Caldwell Parish Police Jury, 33,440 (La.App. 2 Cir. 6/21/2000), 765 So. 2d
464. See also Cooley v. State of
Louisiana, 533 So. 2d 124 (La.App. 4 Cir. 1988).
This writ is granted insofar as the trial court's denial of relator's
motion for summary judgment is concerned. Therefore, [Pg 11] the ruling of the
trial court of March 14, 2001, is reversed. As to relator's motion in limine,
based on this court's ruling that the motion for summary judgment should be
granted, discussion of the motion is pretermitted as moot. Costs to be assessed
to plaintiff.
WRIT GRANTED IN PART, DENIED
IN PART.
n2 Initials are being used
in this opinion to protect the identity of the juvenile victim.
n3 LSA-R.S. 15:1094
states, "The Florida Parishes Juvenile Justice District is hereby
established as a political subdivision of the state, with a territorial
jurisdiction throughout the Twenty-First and Twenty-Second Judicial Districts,
including the parishes of Livingston, St. Helena, St. Tammany, Tangipahoa, and
Washington."
n4 It is unclear if the abuse of J.S. occurred in 1996 or 1997.
n5 LSA-C.Cr.P. art. 893(D)(2) states, in pertinent part:
Upon motion of the
defendant, if the court finds at the conclusion of the probationary period that
the probation of the defendant has been satisfactory, the court may set the conviction
aside and dismiss the prosecution. The dismissal of the prosecution shall have
the same effect as acquittal, except that the conviction may be considered as a
first offense and provide the basis for subsequent prosecution of the party as
a multiple offender, and further shall be considered as a first offense for
purposes of any other law or laws relating to cumulation of offenses.
n6 The pardon in this case was a full pardon under LSA-Const. art. 4 § 5 because it states that it restores all civil and citizenship rights and it was recommended by the Board of Pardons. The fact that the pardon contains language restoring Summers' right to bear arms does not mean it is not a full pardon. 1976-77 Op. Atty. Gen. No. 77-1224 states that while the customary full pardon granted by the governor has the effect of removing all Louisiana disabilities relative to bearing firearms, special language as required in federal law must be added to the pardoning language, if it is the wish of the governor to do so, in order to remove federal disabilities because of federal laws.