Rippy v. Hattaway

BECKWITH, D.J., delivered the opinion of the court. GILMAN, J. (pp. 425-28), delivered a separate concurring opinion. BOGGS, J. (pp. 428-80), delivered a separate dissenting opinion. OPINION BECKWITH, District Judge. On May 23, 1995, the Juvenile Court of Robertson County, Tennessee, issued an order placing Travis Rippy (“Travis”) in the custody of the Tennessee Department of Children’s Services (the “Department”) pursuant to a petition filed by Appellant Anne Marie Bryant (“Bryant”). The Juvenile Court awarded custody of Travis to the Department on February 15, 1996 on the basis of a finding that he was a neglected and dependent child. Travis en — 419 — tered the actual custody of the Department on February 9, 1996 and remained in its custody until the Fourth Circuit Court for Davidson County, Tennessee, issued a writ of habeas corpus requiring the Department to return him to his parents, Aaron and Janet Rippy, on August 22, 1997. The Rippys then filed a civil rights action, pursuant to 42 U.S.C. § 1983, in federal district court. They alleged that Bryant; Shirley Bartlett (“Bartlett”), Bryant’s supervisor; and George Hatta-way (“Hattaway”), the Commissioner of the Department, had violated the Rippys’ right to due process under the United States Constitution. They also asserted various claims under Tennessee law. The Appellants moved the District Court for the dismissal of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief could be granted. They argued, inter alia, that they were shielded from liability with respect to the Rippys’ § 1983 claims on the bases of absolute and qualified immunity. The District Court held that Appellants Bryant and Bartlett were absolutely immune with respect to claims based upon the filing of the petition that resulted in the order initially giving custody of Travis to the Department and for the execution of that order and any “flaws that may have been committed during the execution of that court order.” It held that Bryant and Bartlett were not entitled to absolute or qualified immunity with respect to any administrative or investigational acts. The court did not address Appellant Hatta-way’s claims of immunity. Appellants appeal the District Court’s failure to dismiss the complaint on the bases of absolute and qualified immunity. For the reasons that follow, we REVERSE and REMAND for the entry of judgment in favor of the Appellants. I In considering a motion to dismiss pursuant to Rule 12(b)(6), a federal district court must accept all of the allegations in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1996). The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.l993)(citing Nishiyama v. Dickson County, 814 F.2d 277, 279 (6th Cir.1987)). To survive a motion to dismiss under Rule 12(b)(6), “a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988) (citations and internal quotation marks omitted). “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Hartford Fire Insurance Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). See also Monette v. Electronic Data Systems Corp., 90 F.3d 1173,1189 (6th Cir.1996). When a defendant asserts qualified immunity in the face of a claim under § 1983, the plaintiff bears an additional burden of pleading facts that, if taken as true, establish not only the violation of his rights, but also that these rights were so clearly established when the acts were commit — 420 — ted that any official in the defendant’s position, measured objectively, would have clearly understood that he was under an affirmative duty to refrain from the conduct. Dominque v. Telb, 831 F.2d 673, 676 (6th Cir.1987). Veney v. Hogan, 70 F.3d 917, 921 (6th Cir.1995). This court reviews decisions on the legal sufficiency of the allegations in a complaint according to a de novo standard. See RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1126, 1134 (6th Cir.1996). II1 In her petition for temporary custody of Travis, Appellant Bryant erroneously alleged that Aaron and Janet Rippy had been indicted for the sexual abuse of their older son, Brandon. She further alleged that Aaron and Janet Rippy’s parental rights to Brandon had been terminated and that the Rippys had refused to provide the Department with the address where Brandon could be found. Bryant had not observed Travis or conducted any investigation into his condition or risk of harm prior to filing the petition. She alleged that Travis was a neglected and dependent child. On May 23, 1995, the Juvenile Court awarded temporary protective custody of Travis to the Department without conducting a hearing. The court conducted a hearing on May 25, 1995 in the absence of Aaron and Janet Rippy. The Juvenile Court did not immediately issue an order following that hearing, and Travis remained in the actual custody of his parents until February 9, 1996, when the Department took custody of Travis. On February 15, 1996, without further hearing, the Juvenile Court issued an order of disposition awarding custody of Travis to the Department. The court found that Travis was a neglected and dependent child on the basis of Appellant Bryant’s allegations in the initial petition alone. Between May 1995 and February 1996, no one from the Department observed, interviewed, or examined Travis. Travis resided in Kentucky during that time. Appellants Bryant and Bartlett did not take action to ensure that Travis was represented by a guardian ad litem at the May 25, 1995 hearing or that Aaron and Janet Rip-py were aware of the right to counsel afforded to them by Tennessee law. When Travis entered the actual custody of the Department in February of 1996, he bore no signs of abuse or neglect. In May 1996, social workers documented the absence of any signs of sexual abuse. The Kentucky state agency charged with the protection of children in that state approved the Rippys’ home as a safe placement for Travis, but Appellants Bryant and Bartlett refused to return Travis to his parents’ custody until ordered to do so in response to Aaron and Janet Rippys’ petition for writ of habeas corpus. Bryant prepared plans of care for Travis pursuant to Tennessee law applicable to neglected and dependent children and unspecified procedures promulgated and enforced by Appellant Hattaway. Appellant Bartlett instructed her to do so. The plans of care included attendance at classes for sexual perpetrators by Aaron and Janet Rippy, in spite of the absence of evidence that Travis had been sexually abused or that his parents had been indicted or convicted of sexual offenses. Participation in those classes would have required Aaron and Janet Rippy to admit to being sexual perpetrators. They refused to attend the classes, and Appellants — 421 — Bryant and Bartlett refused to return Travis to his parents’ custody. Appellants argue that they are shielded from liability with respect to the Rippys’ § 1983 claim by virtue of the doctrine of absolute or judicial immunity. The District Court concluded that Appellants Bryant and Bartlett are absolutely immune from liability for the filing of the custody petition and the execution of the order resulting from that petition. The Rippys do not challenge that conclusion. Appellant Hattaway further argues that he is shielded from liability with respect to the § 1983 claim by virtue of the doctrine of qualified immunity, inasmuch as the Rippys’ allegations do not satisfy the pleading requirements identified in Veney v. Hogan, supra. Ill “[Sjocial workers who initiate judicial proceedings against those suspected of child abuse or neglect perform a prosecutorial duty, and so are entitled to absolute immunity.” Achterhof v. Selvaggio, 886 F.2d 826, 830 (6th Cir.l989)(citing Salyer v. Patrick, 874 F.2d 374 (6th Cir.1989); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984)). The District Court concluded that Appellants Bryant and Bartlett are entitled to absolute immunity with respect to the filing of the petition for custody of Travis and the execution of the resulting order. The District Court did not specify which of the alleged acts of the Appellants were encompassed within that conclusion. The investigation of a social worker that precedes the filing of a complaint or petition is not necessarily a judicial act covered by absolute immunity. See Achterhof, 886 F.2d at 830. The Rippys do not allege that Appellants conducted any such investigation, however. Indeed, to the extent that their § 1983 claim is based upon the actions of Appellants Bryant and Bartlett prior to the filing of the petition, it is the failure to investigate that is alleged. The Rippys allege that Bryant filed the petition, which included erroneous accusations concerning conduct of Aaron and Janet Rippy. The implication is that Bryant failed to conduct a careful investigation before incorporating the false accusations in the petition. The District Court concluded, however, that Appellants Bryant and Bartlett are absolutely immune from liability arising from the filing of the petition. See Achterhof, 886 F.2d at 830. That immunity extends to unintentional errors in the petition. The Rippys do not allege that Appellant Bryant intentionally misrepresented that Aaron and Janet Rippy had been indicted for a sexual offense. The District Court also concluded that Appellants Bryant and Bartlett are entitled to absolute immunity with respect to actions undertaken in the execution of the Juvenile Court’s order awarding custody of Travis to the Department. That immunity is not defeated by a showing that the order was issued erroneously. See Bush v. Rauch, 38 F.3d 842, 847 (6th Cir.1994). The Rippys do not challenge that ruling. The actions encompassed in the District Court’s conclusion include the seizure of Travis when he was found at his parents’ residence in Kentucky in February 1996. The District Court concluded that the Appellants’ other actions were administrative or investigatory in nature and that Appellants are not entitled to absolute immunity with respect to those actions. In order to determine whether the District Court identified all of the alleged acts of the Appellants with respect to which they are entitled to absolute immunity, the Court must identify all of the actions that — 422 — underlie the Rippys’ § 1983 claim. The Rippys allege that Appellant Hattaway promulgated and enforced procedures. They have not identified any specific procedure in their complaint, however. They allege only omissions to act on the part of Appellants Bryant 'and Bartlett. Specifically, they allege that Bryant and Bartlett failed to observe, interview, or examine Travis between May 1995 and February 1996; failed to ensure that a guardian ad litem was appointed to represent Travis at the May 1995 hearing; failed to inform Aaron and Janet Rippy that they were entitled to representation of counsel at that hearing; and failed to effect Travis’ return to the custody of his parents between February 1996 and August 1997, in spite of the absence of evidence of a risk of harm. The case law makes little distinction between prosecutors and social workers who initiate judicial proceedings related to the welfare of a child. See Salyer, 874 F.2d at 378. “Immunity rests not on status or title but on the function performed.” Id. Prosecutors and, by analogy, social workers who initiate proceedings related to the welfare of a child are entitled to absolute immunity while functioning in roles intimately associated with the judicial phase of proceedings. See Grant v. Hollenbach, 870 F.2d 1135, 1139 (6th Cir.1989). The appointment of guardians ad litem and representation of counsel are matters intimately related to the judicial phase of child custody proceedings. The alleged failures of Appellants Bryant and Bartlett to ensure representation for Travis and to inform Aaron and Janet Rippy of their right to representation were, therefore, part of their quasi-judicial function and not distinct administrative or investigatory acts. For that reason, Appellants Bryant and Bartlett are entitled to absolute immunity for their alleged failures to ensure guardian ad litem representation for Travis and to inform Aaron and Janet Rippy of their right to counsel in the same manner that the juvenile court judge would be entitled to absolute immunity for the same omissions. See Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.2000)(en banc). The Rippys allege that Appellants Bryant and Bartlett violated Travis’ right to due process and the Rippys’ right to privacy by failing to observe, interview, or examine Travis between May 1995 and February 1996. They allege that Appellants Bryant and Bartlett violated the same rights by failing to effect Travis’ return to his parents’ custody between February 1996 and’ August 1997 in spite of the absence of evidence of a risk of harm. The implication of their allegations is that Appellants Bryant and Bartlett could have brought about Travis’ return had they performed an adequate investigation at any time after the Juvenile Court ordered Travis’ removal from his parents’ custody in May 1995. Tennessee law entrusts the decision whether to return a neglected child to the home from which he was removed to the Juvenile Court. See Tenn.Code Ann. § 37-l-130(e)(l). The Department acts in an advisory role to the Juvenile Court in recommending that the child is ready to return home. See id. In performing that role, social workers in the Department act in much the same fashion as probation officers who make sentencing recommendations to criminal courts for which they are entitled to absolute immunity. See Hili v. Sciarrotta, 140 F.3d 210, 213 (2d Cir.1998); Tripati v. INS, 784 F.2d 345, 348 (10th Cir.1986), cert. denied, 484 U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 767 (1988); Maynard v. Havenstrite, 727 F.2d 439, 441 (5th Cir.1984). The function of making — 423 — such recommendations, including the underlying investigation, is similarly intimately related to the judicial phase of the child custody proceedings. Social workers involved in the investigation or recommendation are, therefore, entitled to absolute immunity with respect to claims arising from such recommendations and investigations. Appellants Bryant and Bartlett are immune from liability for their alleged failure to investigate and effect Travis’ return to his parents’ custody after the Juvenile Court ordered his removal in May 1995.2 The Rippys also contend that Appellants Bryant and Bartlett’s formulation of and attempt to implement a plan of care that required Aaron and Janet Rippy to admit to being sexual perpetrators is an administrative act and that Bryant and Bartlett are not entitled to absolute immunity with respect to those actions. Under Tennessee law, the Juvenile Court, and not the Department, is responsible for adopting a plan for permanent placement of a child, including a plan that places the child with his parents. See Tenn.Code Ann. § 37-2-403(a)(2)(A). The Department “determine[s] the required elements or contents of the permanency plan.” See id. Those elements include, in cases involving child abuse or neglect, appropriate rehabilitative assistance for the abusing or neglecting parent. See TenmCode Ann. § 37-2-403(a)(5). Accordingly, under Tennessee law, the Department functions as an arm of the Juvenile Court for purposes of determining the required elements of the plan. The juvenile court adopts the plan devised by the Department. As the party charged by Tennessee law with responsibility for devising the plan that is adopted by the Juvenile Court for the permanent placement of an abused or neglected child, the Department and its officials perform a quasi-judicial role in devising such a plan. The function of devising the plan for court-approval is intimately related to the judicial phase of the child custody proceedings. Social workers involved in devising the plan for permanent placement are, therefore, entitled to absolute immunity with respect to actions undertaken in devising the plan. That immunity protects Appellants Bryant and Bartlett from liability arising from the inclusion in the permanent placement plan for Travis of a requirement that Aaron and Janet Rippy attend classes for sexual perpetrators. All of the alleged acts of Appellants Bryant and Bartlett are covered by absolute immunity. They are, therefore, entitled to the dismissal of the Rippys’ claims against them on that basis. The only alleged act of any of the Appellants that is not covered by absolute immunity is Appellants Hattaway’s promulgation and enforcement of policies. The promulgation and enforcement of policies is not related to the judicial phase of child custody proceedings. Appellant Hattaway is not, therefore, entitled to absolute immunity — 424 — with respect to the Rippys’ § 1983 claim to the extent that it is based upon that alleged act. IV Government officials performing discretionary functions “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person, would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A constitutional right must be clearly established in a particularized sense. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. The fact that a plaintiff has asserted the violation of a broadly stated general right is not detenninative: [0]ur cases establish that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must have been sufficiently clear that a reasonable official would understand that what he is doing violates the right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent. Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). When a qualified immunity challenge to the complaint is asserted, the plaintiff is entitled to the opportunity to come forward with additional facts or allegations that show not only the violation of his rights, but also that these rights were so clearly established when the acts were committed that any official in the defendant’s position, measured objectively, would have clearly understood that he was under an affirmative duty to refrain from the conduct. Dominque v. Telb, 831 F.2d 673, 676 (6th Cir.1987). If this pleading burden is not carried by Plaintiff in either the original complaint or by a pleading in response to defendant’s assertion of the qualified immunity defense, dismissal is proper. Cameron v. Seitz, 38 F.3d 264, 273 n. 2 (6th Cir.1994). Veney, 70 F.3d at 921.3 Wdien a defendant asserts the qualified immunity defense in the context of a motion to dismiss, the plaintiff cannot rely upon mere “notice pleading.” Rather, if the allegations in the complaint do not adequately set forth the circumstances in support of the plaintiffs claims, the plaintiff must amend her complaint to include specific and non-conclusory allegations of fact that will enable the court to determine whether those facts, if proven true, will — 425 — overcome the qualified immunity defense. See id. at 922. In their amended complaint, the Rippys make only one allegation of specific conduct by Appellant Hattaway in violation of rights guaranteed by the Constitution. They allege that he promulgated and enforced procedures pursuant to which Appellant Bryant removed Travis from his parents’ custody, failed to inform Aaron and Janet Rippy of their right to counsel, and prepared a plan for Travis’ permanent placement. While the promulgation and enforcement of procedures is a conceivable basis for a claim under § 1983, a plaintiff overcomes a qualified immunity defense only by identifying a particularized, clearly established right that is violated by the promulgation and enforcement of specified procedures. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034. The only specific procedure the Rippys identify in their amended complaint is that pursuant to which Appellant Bryant failed to inform Aaron and Janet Rippy of their right to counsel. Appellees cannot, however, establish that a right of parents to be informed by a governmental agency involved in child custody proceedings of their right to counsel was clearly established in May 1995.4 Accordingly, their allegations are insufficient to overcome the qualified immunity defense asserted by Appellant Hattaway. He is, therefore, entitled to the dismissal of the Rippys’ § 1983 claim against him. V For all of the reasons set forth above, the decision of the District Court denying, in part, the Appellants’ motion to dismiss is REVERSED. This matter is REMANDED with instructions to enter judgment in favor of Appellants with respect to the Rippys’ claim under § 1983. Footnotes [1] We accept the allegations in the amended complaint as true for purposes of this appeal. [2] Relying, at least in part, on the recent decision in Egevary v. Young, 159 F.Supp.2d 132 (E.D.Pa.2001), the dissent suggests that “the parents could prove that the social workers deliberately acted to prevent the holding of an adjudicatory hearing” and thereby overcome absolute immunity. The Rippys do not allege, however, that the social workers deliberately caused the Juvenile Court to fail to schedule a hearing or prevented the scheduling of a hearing, which the parents also had the "authority and ability” to request. The District Court's analysis, at the 12(b)(6) stage, is confined to the facts alleged. Having failed to allege that the social workers deliberately interfered with or prevented the scheduling of an adjudicatory hearing by the Juvenile Court, the Rippys do not state a claim upon which relief could be granted in light of the — 424 — absolute immunity afforded by law to the social workers. [3] The Supreme Court's decision in Crawford-El v. Britton, 523 U.S. 574, 597-98, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), did not alter the requirements identified in Veney v. Hogan. The Crawford-El court limited its discussion of the qualified immunity defense to claims that require proof of wrongful motive. See id. at 597, 118 S.Ct. 1584. The Court declined to heighten the pleading requirement on plaintiffs by changing the qualified immunity standard or otherwise with regard to such claims. See Hoard v. Sizemore, 198 F.3d 205, 218-19 (6th Cir.1999). [4] The right to representation by counsel in a proceeding affecting custody of one’s child was a clearly established requirement of procedural due process in 1995. See Doe v. Staples, 706 F.2d 985, 990 (6th Cir.1983), cert. denied, 465 U.S. 1033, 104 S.Ct. 1301, 79 L.Ed.2d 701 (1984). The right to be informed of the right to representation by a social worker, who performs a role like that of a prosecutor in that proceeding, was not clearly established at that time, however. The distinction is that Aaron and Janet Rippy do not allege that Appellant Bryant deprived them of their right to counsel, but that she failed to inform them of that right. A reasonable official in Appellant Bryant’s position in May 1995 would not have clearly understood that she bore an affirmative duty to inform Aaron and Janet Rippy of their.right to representation by counsel at the May 25, 1995 hearing. See Dominque, 831 F.2d at 676. Likewise, a reasonable official in Appellant Hattaway’s position would not have clearly understood that he bore an affirmative duty to promulgate procedures pursuant to which officials of the Department would inform parents of their right to counsel.