Webb v. Smith
Filing
34
OPINION AND ORDER granting in part and denying in part 16 motion to dismiss the amended complaint. All of the claims of Jerimey Lay and Tabitha Lay are dismissed. All claims against Stacy Houck, individually and in her official capacity, are dis missed. All of Katelyn Webb's claims against Chelsea Smith, Mischa Martin, and Cindy Gillespie, individually and in their official capacities, are dismissed except her claims against them in their individual capacities for failure to initiate prompt judicial proceedings. Signed by Judge J. Leon Holmes on 3/20/2018. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
KATELYN WEBB, as guardian and next
friend of K.S. and D.S.; and JERIMEY LAY
and TABITHA LAY, as guardians and next
friends of R.L. and C.L. on behalf of themselves
and all others similarly situated
v.
PLAINTIFFS
No. 4:17CV00660 JLH
CHELSEA SMITH; STACY HOUCK;
MISCHA MARTIN; and CINDY GILLESPIE
individually and in their official capacities
DEFENDANTS
OPINION AND ORDER
The parents of children taken into temporary protective custody by the State of Arkansas
bring this class action against state officials of the Division of Children and Family Services of the
Department of Human Services (“DHS”) in their individual and official capacities alleging
violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution under
42 U.S.C. § 1983. The state officials have filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1) and (6). For the following reasons, the motion is granted in part and denied
in part.
I.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint
must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required, the complaint must
set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). The Court accepts as true all of the factual
allegations contained in the complaint and draws all reasonable inferences in favor of the nonmoving
party. Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th Cir. 2014). The complaint must contain
more than labels, conclusions, or a formulaic recitation of the elements of a cause of action, which
means that the court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1965.
II.
The plaintiffs allege three categories of federal claims: (1) Webb and the Lays claim
separately from the class that the seizures of their children were unconstitutional; (2) Webb and the
Lays claim separately from the class that they were deprived of an opportunity to be heard in a
timely manner after the seizures; and (3) Webb and the Lays claim on behalf of themselves and the
proposed class that the Arkansas statutes governing the provision of post-deprivation hearings to
parents of seized children are constitutionally deficient. The statutes at issue are Ark. Code Ann.
§ 12-18-1001, which authorizes taking children into protective custody for up to 72 hours without
a hearing, and Ark. Code Ann. § 9-27-314, which governs the pertinent court procedures.
The amended class action complaint alleges the following facts. Katelyn Webb is a mother
of two. On June 28, 2017, a juvenile court jailed her for contempt and DHS seized her children.
Webb was released from jail on July 3. Document #1-2 at 61. Chelsea Smith, a Family Services
Worker, petitioned the court on July 5 for an ex parte order for emergency custody. Smith alleged
that Webb was incarcerated and that no relative or friend was willing or able to take temporary
custody of the children. The court entered the order on July 5 and set a probable cause hearing for
July 12. Smith sent a text message to Webb on July 11 informing her that the court cancelled the
hearing. The court reset the hearing for July 20. Webb appeared and informed that court that she
2
did not want appointed counsel. The court continued the hearing until July 26, when the court found
that probable cause existed for removal of the children from Webb’s custody at the time they were
seized. The court did not find that the children were neglected and restored custody to Webb.
Jerimey and Tabitha Lay have three children. On May 1, 2017, DHS seized the children
based on a suspicion of abuse or neglect. Stacy Houck, a Family Services Worker, petitioned the
court on May 3 for an ex parte order for emergency custody. The court entered the order on May
5 and set a probable cause hearing for May 8. The hearing did not conclude on May 8 and the court
ordered that the children be returned to Tabitha on May 10 unless the attorney ad litem objected.
The attorney ad litem objected and the court set the conclusion of the hearing for May 12. After the
hearing, the children were returned to Tabitha pursuant to a safety plan by which the Lays were to
keep DHS apprised of the children’s whereabouts. Jerimey was not permitted to have any contact
with the children and was not allowed to stay at the home.
Cindy Gillespie is the Director of DHS. Mischa Martin is the Director of the Division of
Children and Family Services. The amended class action complaint alleges that Gillespie and
Martin approved and ratified the actions of Smith and Houck, and failed to properly train and
supervise DHS employees.
III.
The defendants maintain that the plaintiffs do not have Article III standing. The “irreducible
constitutional minimum” of standing consists of three elements. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). “The plaintiffs must have (1)
suffered an injury in fact, (2) that is fairly traceable to the conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547, 194 L. Ed. 2d 635 (2016). The plaintiff has the burden of establishing these elements, which
3
at the pleading stage may be met by clearly alleging facts demonstrating each element. Warth v.
Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). It is established that parents
have a fundamental right to the custody of their children and the deprivation of that right is an injury
in fact. The issue concerns the second element. The defendants argue that they did not cause the
injuries the plaintiffs allege.
The amended complaint alleges that DHS seized the plaintiffs’ children prior to the juvenile
courts’ ex parte orders. Then, post-deprivation hearings were not held in a timely manner. The
defendants note that they were not present at any hearings, nor do they have the authority to cancel
or schedule hearings. Document #17 at 3. However, the seizure of the children did lead to the court
proceedings, the amended complaint alleges that the seizure of the Lays’ children was unlawful, and
the amended complaint alleges that Smith did not petition the court for emergency custody within
the time required under Arkansas law. “At the pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice.” Lujan, 504 U.S. at 561, 112 S. Ct. at 2137.
The alleged injuries can fairly be traced to the defendants. Based on the allegations in the amended
complaint, the plaintiffs have Article III standing to seek damages for the seizures of their children
and the alleged lack of due process following those seizures.
Although the plaintiffs have standing to seek damages for the seizures of their children and
the lack of due process, it is not clear that they have standing to challenge the constitutionality of
the statutes at issue. The third element of the standing test—redressability—presents a hurdle to
them because “[t]he alleged injury—[Arkansas’s] temporary removal of their children—has already
occurred and will not necessarily occur again.” Doe v. Kearney, 329 F.3d 1286, 1292 (11th Cir.
2003). In Kearney, the court found that the redressability element was met because the record
4
indicated the likelihood that the plaintiffs would encounter similar state action under the statute in
the future. Id. at 1293. Nothing of the sort is alleged here.
The redressability issue is closely related to a second issue that the parties have not raised
but which the Court has an obligation to raise sua sponte, and that is the issue of mootness. The
plaintiffs’ challenges to the constitutionality of Ark. Code Ann. § 12-18-1001 and § 9-27-314 raise
the question of whether there is a live case or controversy, as well as whether the plaintiffs have
established redressability. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669, 193 L. Ed. 2d
571 (2016). Article III prohibits a court from hearing claims that are moot. Life Investors Ins. Co.
of Am. v. Fed. City Region, Inc., 687 F.3d 1117, 1121 (8th Cir. 2012). “For a declaratory judgment
to issue, there must be a dispute which ‘calls, not for an advisory opinion upon a hypothetical basis,
but for an adjudication of present right upon established facts.’” Ashcroft v. Mattis, 431 U.S. 171,
172, 97 S. Ct. 1739, 1740, 52 L. Ed. 2d 219 (1977) (quoting Aetna Life Ins Co. v. Haworth, 300 U.S.
227, 242, 57 S. Ct. 461, 465, 81 L. Ed. 617 (1937)); see also MedImmune, Inc. v. Genetech, Inc., 549
U.S. 118, 126-33, 127 S. Ct. 764, 770-75, 166 L. Ed. 2d 604 (2007) (explaining the case-orcontroversy requirement as it relates to the Declaratory Judgment Act). “Past exposure to illegal
conduct does not in itself show a present case or controversy regarding [declaratory] relief . . . if
unaccompanied by any continuing, present adverse effects.” Simes v. Ark. Judicial Discipline and
Disability Comm’n, 734 F.3d 830, 835 (8th Cir. 2013) (holding that requests for declaratory relief
were moot) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 38 L. Ed. 2d 674
(1974)).
The plaintiffs claim to have suffered from the defendants’ unconstitutional practices, which
they allege were permitted by the challenged statutes. Section 12-18-1001(b) authorizes certain
DHS employees to take children into custody without the consent of the parents for up to 72 hours
5
and §§ 9-27-314 and 315 mandate that the circuit courts issue ex parte orders for emergency custody
to remove children from the custody of the parents if certain circumstances are present and then
provide a hearing within five days. The plaintiffs lack a legally cognizable interest in whether these
statutes pass constitutional muster. The alleged injuries—the temporary removal of the plaintiffs’
children by DHS officials and the subsequent delay in judicial review—have already occurred and
the amended complaint does not allege that Webb and the Lays are at risk of these injuries occurring
again. There is no threatened action by DHS against Webb or the Lays. Therefore, there is no live
case or controversy and the plaintiffs have failed to establish that the requested declaratory judgment
will redress the constitutional injuries alleged.
The same result obtains with respect to the plaintiffs’ claims for injunctive relief. The
Eleventh Amendment bars suits brought against a state, state agency, or state officials acting in their
official capacities in federal courts by her own citizens, as well as those of another State. Edelman
v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974); Seminole Tribe v.
Florida, 517 U.S. 44, 74, 116 S. Ct. 1114, 1132, 134 L. Ed. 2d 252 (1996). Nonetheless, under the
Ex Parte Young doctrine, a plaintiff may file suit against state officials acting in their official
capacities seeking prospective injunctive relief for ongoing violations of federal law. Seminole
Tribe, 517 U.S. at 74, 116 S. Ct. at 1132. Webb and the Lays concede that the Eleventh Amendment
bars claims for money damages under § 1983 against the defendants in their official capacities but
maintain that the Ex Parte Young exception applies in this case.
To determine whether Ex Parte Young applies, the Court “need only conduct a
‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md.,
535 U.S. 635, 645, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002) (quoting Idaho v. Coeur d’Alene, 521
6
U.S. 261, 296, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997)). Webb and the Lays request injunctive
relief requiring Martin and DHS to provide a post-deprivation hearing within three days after
children are seized or within another appropriate time to be set by the Court. Id. at 11, ¶ 43. There
is no ongoing violation of federal law; this is a case in which federal law is alleged to have been
violated over a period of time in the past. Custody was restored to the plaintiffs after postdeprivation hearings. Ex Parte Young does not apply and the defendants are entitled to sovereign
immunity in their official capacities.1
IV.
The plaintiffs claim that the seizures of their children violated the First, Fourth, and
Fourteenth Amendments. Smith seized Webb’s children when a juvenile court jailed her for
contempt and no appropriate relative or friend was available to care for the children. Houck seized
the Lays’ children based on suspicion of abuse or neglect. A designated employee of DHS may take
a child into custody for up to 72 hours without the consent of the parent if the child is neglected,
dependent, or in immediate danger. Ark. Code Ann. § 12-18-1001. If there is probable cause to
believe that immediate emergency custody is necessary to protect the health or physical well-being
of the child, the circuit court shall issue an ex parte order for emergency custody removing the child
from the custody of the parent. Ark. Code Ann. § 9-27-314(a)(1). The amended complaint alleges
1
The defendants also argue that this action should be dismissed because the plaintiffs failed
to notify the Attorney General of their constitutional challenges to Arkansas statutes as required by
Ark. Code Ann. § 16-111-106(b). The plaintiffs correctly observe that that statute is a state rule of
procedure which does not apply in federal court. The issue under the federal rules would be whether
all of the required parties have been joined pursuant to Federal Rule of Civil Procedure 19, and that
issue hinges “on whether effective relief could be awarded on the basis of those officials actually
before the court.” Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice &
Procedure: Civil 3d § 1617 (2001). Even if the claims were not otherwise dismissed, it does not
appear that the Court could give effective relief with respect to the constitutionality of Ark. Code
Ann. §§ 9-27-314 and 315 inasmuch as those statutes govern court procedures over which the named
defendants have no control.
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that emergency ex parte orders were entered in Webb’s case and in the Lays’ case, which gave
temporary custody of the children to DHS. Document #12 at 3, 5, ¶¶ 6, 19. Webb and the Lays
attack those orders, maintaining that they were based on false allegations. Id. at 3, 12, ¶¶ 6, 59-60.
The Rooker-Feldman doctrine bars state court losers from obtaining federal review of state
court judgments. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct.
1517, 161 L. Ed. 2d 454 (2005); Karsjens v. Piper, 845 F.3d 394, 406 (8th Cir. 2017). The doctrine
only applies when “the federal suit is commenced after the state court proceedings have ended.”
Dornheim v. Sholes, 430 F.3d 919, 923 (8th Cir. 2005). District courts lack subject matter
jurisdiction over challenges to state court decisions in judicial proceedings, with the exception of
habeas corpus petitions. Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995) (citing
Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 1311, 75 L. Ed.
2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 150, 68 L. Ed. 362
(1923)). “The doctrine precludes district courts from obtaining jurisdiction both over the rare case
styled as a direct appeal, [Rooker, 263 U.S. at 416, 44 S. Ct. 149], as well as more common claims
which are ‘inextricably intertwined’ with state court decisions. [Feldman, 460 U.S. at 483, 103 S.
Ct. 1303].” Simes v. Huckabee, 354 F.3d 823, 827 (8th Cir. 2004).
Based on the amended complaint, the state-court proceedings are complete for RookerFeldman purposes. See Dornheim, 430 F.3d at 924 (holding that preclusion law, not the RookerFeldman doctrine, applies when state-court proceedings are incomplete). An ex parte order for
emergency custody is not a final, appealable order under Arkansas Supreme Court Rule 6-9(a);
Harris v. Ark. Dep’t of Human Servs., 2015 Ark. App. 508, 5, 470 S.W.3d 316, 319 (refusing to
address grandmother’s argument on appeal that no emergency existed at the time DHS took
emergency custody of the grandchild). However, the juvenile court entered its adjudication order
8
in Webb’s case on July 26, 2017, and the juvenile court entered its adjudication order in the
Lays’case on May 12, 2017. An adjudication order in a child custody case is a final appealable
order. Ark. R. App. P. 2(c)(3)(A). The designated time for appeal has run out. Ark. R. App. P. 4(a).
Therefore, the proceedings are complete.
Webb alleges that Smith lied to the court about whether she was incarcerated and whether
there was an appropriate friend or relative to care for the children. Document #12 at 3, ¶ 5. The
Lays allege that Houck did not have reasonable suspicion of child abuse or neglect, but she
petitioned the court for emergency custody anyway. Id. at 15, ¶ 60. The juvenile courts, based on
state law and the allegations presented to them by Smith and Houck in the emergency petitions,
issued ex parte emergency custody orders temporarily stripping the plaintiffs of custody. Then, the
juvenile court entered an adjudication order in Webb’s case finding that probable cause existed at
the time of removal. Document #12 at 5, ¶ 13. In the Lays’ case, the court allowed the children to
return home with the mother under a safety plan, an element of which required Mr. Lay to reside
outside the home and have no contact with the children. Id. at 6, ¶ 22. Although the complaint does
not explicitly allege that the juvenile court found probable cause for Houck’s seizure of the three
Lay children, that the court required the safety plan necessarily means that the court determined that
probable cause for the seizure existed. By suing in federal court for money damages on grounds that
the seizures of their children violated their federal due process rights as parents, the plaintiffs are
complaining of an injury caused by the state court judgments. See Hoblock v. Albany Cnty. Bd. of
Elections, 422 F.3d 77, 87-88 (2d Cir. 2005) (explaining when Rooker-Feldman applies). Because
whether the plaintiffs are entitled to relief hinges upon this Court finding that the emergency ex parte
orders and the adjudication orders were wrongly decided, the claims are inextricably intertwined
with the state court decisions. Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir.
9
2001). The same is true of the Lays’ claim that the final order violated their right of association and
their right to parent: those claims are inextricably intertwined with the state court decisions. Only
the Supreme Court may hear appeals from state-court judgments.
Finally, the Eighth Circuit has stated that for Rooker-Feldman to apply, the plaintiffs must
have had a reasonable opportunity to present their claims in an earlier state proceeding. See Niere
v. St. Louis Cnty., Mo., 305 F.3d 834, 837 (8th Cir. 2002). The juvenile division of the circuit court
is a trial court of general jurisdiction and, as such, may entertain constitutional challenges. See Ark.
Const. amend. 80, § 6; Abram v. Ark. Dep’t of Human Servs., 2016 Ark. App. 437, 4, 502 S.W.3d
553, 567. Webb and the Lays were parties to their respective juvenile court proceedings and they
allege that they participated in those proceedings. See Hoblock, 422 F.3d at 89. They had a
reasonable opportunity to challenge the truthfulness of the DHS officials’ allegations and the ex
parte emergency orders in the juvenile courts. Therefore, this Court does not have jurisdiction over
the defendants’ claim that the initial act of removing the plaintiffs’ children without a prior court
order violated the plaintiffs’ due process rights. Cf. Goodman, 259 F.3d at 1334-35 (applying
Rooker-Feldman to juvenile proceedings similar to those here); Johnson v. Missouri Dep’t of Soc.
Servs., No. 15-CV-00391-DGK, 2016 WL 6542722 (W.D. Mo. Nov. 2, 2016) (same); Ford v.
Hermanson, 755 F. Supp. 2d 1028 (D.N.D. 2010) (same).
Next, the plaintiffs claim that the failures to provide prompt post-deprivation hearings
violated their rights to procedural due process guaranteed by the Fourteenth Amendment. The
Rooker-Feldman doctrine does not bar the Court’s consideration of this claim because it does not
call into question a state court judgment. The due process clause of the Fourteenth Amendment
says, in relevant part, that no state shall “deprive any person of . . . liberty . . . without due process
of law.” U.S. Const. amend. XIV, § 1. Webb alleges that Smith seized her children on June 28,
10
2017, but that the probable cause hearing did not take place until July 26. The Lays allege that
Houck seized their children on May 1, 2017, but the probable cause hearing did not begin until May
8 and did not conclude until May 12. The Eighth Circuit explained what is necessary to state a claim
for procedural due process:
“To set forth a procedural due process violation, a plaintiff, first, must establish that
his protected liberty or property interest is at stake. Second, the plaintiff must prove
that the defendant deprived him of such an interest without due process of law.”
Gordon, 168 F.3d at 1114 (internal citation omitted). “Due process is a flexible
concept, requiring only ‘such procedural protections as the particular situation
demands.’” Clark v. Kan. City Mo. Sch. Dist., 375 F.3d 698, 702 (8th Cir. 2004)
(quoting Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976)). “The fundamental requirement of due process ‘is the opportunity to be heard
at a meaningful time and in a meaningful manner.’” Id. (quoting Mathews, 424 U.S.
at 333, 96 S. Ct. 893).
Schmidt v. Des Moines Pub. Schs., 655 F.3d 811, 817-18 (8th Cir. 2011). The plaintiffs have shown
that the state infringed on a cognizable liberty interest. “As a general matter, parents have a liberty
interest in the ‘care, custody, and management of their children.’” Swipies v. Kofka, 419 F.3d 709,
713 (8th Cir. 2005) (quoting Manzano v. South Dakota Dep’t of Soc. Servs., 60 F.3d 505, 509-10
(8th Cir. 1995)). This interest is limited by the state’s compelling interest in protecting minor
children and when emergency circumstances are present, a child may be removed from a parent’s
custody without prior judicial authorization. See Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th
Cir. 1997). The defendants argue they are entitled to qualified immunity from any claim that the
plaintiffs were deprived of procedural due process.
A state official sued in his individual capacity may invoke the affirmative defense of
qualified immunity. See Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, 679 (8th Cir.
2012). Qualified immunity “will be upheld on a 12(b)(6) motion only when the immunity is
established on the face of the complaint.” Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir. 1995).
11
The Supreme Court has characterized qualified immunity as “an immunity from suit rather than a
mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411
(1985). Qualified immunity balances the need to hold public officials accountable with the need to
shield those officials from harassment, distraction, and liability when they act reasonably, which is
why “the driving force behind creation of the qualified immunity doctrine was a desire to ensure that
insubstantial claims against government officials will be resolved prior to discovery.” Id. (internal
quotation marks omitted).
A two-step inquiry determines whether a government official is entitled to qualified
immunity: “(1) [whether] the facts, viewed in the light most favorable to the plaintiff, demonstrate
the deprivation of a constitutional or statutory right[ ] and (2) [whether] the right was clearly
established at the time of the deprivation.” Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir.2012)
(quoting Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir.2010)). “The defendants are entitled to
qualified immunity unless the answer to both of these questions is yes.” Winslow v. Smith, 696 F.3d
716, 731 (8th Cir.2012) (quoting McCaster v. Clausen, 684 F.3d 740, 746 (8th Cir.2012)). Courts
may address either step first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L.
Ed. 2d 565 (2009). The right to a prompt post-deprivation hearing was clearly established at the
time DHS took temporary, emergency custody of the children. The issue is whether the facts
demonstrate the deprivation of a constitutional or statutory right.
Arkansas law provides that “[f]ollowing the issuance of an emergency order, the circuit court
shall hold a probable cause hearing within five (5) business days of the issuance of the ex parte order
to determine if probable cause to issue the emergency order continues to exist.” Ark. Code Ann. §
9-27-315(a). This statute does not determine what process is due under the constitution. Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Swipies,
12
419 F.3d at 716. Generally, due process entitles a person deprived of a liberty interest to notice and
an opportunity to be heard. Mathews, 424 U.S. at 348, 96 S. Ct. at 909. Here, the issue is an
opportunity, post-deprivation, to be heard. Webb alleges that the court did not hold a probable cause
hearing until 21 days after the ex parte order and the Lays allege that the court did not complete a
probable cause hearing until seven days after the ex parte order. The hearing in Webb’s case was
clearly held outside of the time frame provided in the statute. The hearing in the Lays’ case clearly
concluded outside of the time frame provided in the statute. However, the defendants did not have
the authority to set hearings. The amended complaint repeatedly alleges that the court rescheduled
or delayed the hearings. Document #12 at 4, ¶¶ 10-11, 12, 19-22. The Lays were represented by
counsel who objected to the timeliness of the post-deprivation hearing. Id. at 12, ¶ 20.
The state courts involved are not parties to this action. While the plaintiffs complain that the
defendants employed a “will-call policy” pursuant to which they waited passively for the court to
schedule hearings, they cite to no authority in the child custody context dictating that child services
workers have an affirmative duty to ensure the court schedules prompt hearings. 2 Id. at 4, ¶ 10. The
defendants are entitled to qualified immunity from any constitutional claim based on the delayed
probable cause hearings.
It is within the defendants’ responsibility and authority, however, to initiate judicial
proceedings promptly once a child has been seized: “When the state deprives parents and children
of their right to familial integrity, even in an emergency situation, without a prior due process
2
The plaintiffs rely on Hayes v. Faulkner Cnty., Ark., 388 F.3d 669, 674 (8th Cir. 2004), in
which the Eighth Circuit held that Faulkner County’s policy of submitting the names of preappearance detainees to the court and then waiting for the court to schedule a hearing was
deliberately indifferent to detainees’ due process rights. The issue was a pretrial detainee’s right to
a prompt appearance in court after arrest by warrant. The individual defendant in Faulkner, a jailer,
was required by Arkansas law to ensure that a pretrial detainee appeared before a judge without
unnecessary delay.
13
hearing, the state has the burden to initiate prompt judicial proceedings to provide a post deprivation
hearing.” Whisman, 119 F.3d at 1311; see also K.D. v. Cnty. of Crow Wing, 434 F.3d 1051, 1056,
n.6 (8th Cir. 2006) (acknowledging the state’s burden to initiate prompt judicial proceedings when
a child is removed from parental custody without a court order). The amended complaint alleges
that Smith did not initiate judicial proceedings until seven days after DHS took custody of Webb’s
children. Document #12 at 3, ¶ 5. Houck, however, initiated judicial proceedings just two days after
DHS took custody of the Lays’ children. Id. at 5, ¶ 19.
As explained, under Arkansas law a DHS employee initiates judicial proceedings by filing
with the circuit court a petition for emergency custody. A designated employee of DHS may take
a child into state custody for up to 72 hours without the consent of the parent if the child is
neglected, dependent, or in immediate danger. Ark. Code Ann. § 12-18-1001. Upon the filing of
a petition by a designated employee of DHS, the circuit court shall issue an ex parte order for
emergency custody removing the child from the custody of the parent if there is probable cause to
believe that immediate emergency custody is necessary to protect the health or physical well-being
of the child. Ark. Code Ann. § 9-27-314(a)(1). The ex parte order includes notice to the parents
named in the petition of the right to a hearing and that a hearing will be held within five business
days of the issuance of the ex parte order. Ark. Code Ann. § 9-27-314(b)(1).
The amended complaint alleges that Webb’s children were in DHS custody for
approximately seven days before Smith filed a petition in the juvenile court, triggering notice to
Webb of her right to a hearing. Smith failed to meet her burden to initiate prompt judicial
proceedings to ratify her decision to take emergency custody of Webb’s children and notify Webb
of her right to a hearing. See Gomes v. Wood, 451 F.3d 1122, 1128 (10th Cir. 2006) (collecting
authority). Seven days is too long for a parent to wait after her child has been removed to receive
14
notice of her rights under the law. See Swipies, 419 F.3d at 715 (reasoning that if seven days is too
long for a car owner to wait for a post-deprivation hearing after his or her car has been towed and
impounded, then a parent should not have to wait seventeen days after his or her child has been
removed for a hearing). Webb has sufficiently alleged that she did not receive all of the processes
to which she was entitled under the Fourteenth Amendment. Smith is not entitled to qualified
immunity from Webb’s procedural due process claim. Houck, however, is entitled to qualified
immunity from the Lays’ procedural due process claim. The amended complaint alleges that the
Lays’ children were only in DHS custody for approximately 48 hours before Houck filed a petition
with the court, which is a reasonable amount of time.
Webb also maintains that Martin and Gillespie, as supervisory officials, are liable for Smith’s
failure to initiate prompt judicial proceedings. Document #12 at 6-7, 15, ¶¶ 23-30, 63-64. Claims
based on respondeat superior are not cognizable under section 1983. Pearl v. Dobbs, 649 F.2d 608,
609 (8th Cir. 1981). However, a supervisory official may be liable based on a theory of direct
liability if that official fails to properly train, supervise, direct or control the actions of a subordinate
who causes injury. See Whisman, 119 F.3d at 1311. Webb alleges that Martin and Gillespie knew
about, approved, ratified, and encouraged Smith’s actions, and trained DHS officials like Smith to
act the way she is alleged to have acted in this case. Document #12 at 15-20, ¶¶ 63-80. The Court
must accept the facts alleged in the amended complaint as true. Qualified immunity is not
established on the face of the amended complaint. See Weaver, 45 F.3d at 1255. Webb’s § 1983
claims against Martin and Gillespie based on their failure to properly train, supervise, direct or
control the actions of Smith who caused injury to Webb when she allegedly failed to initiate prompt
judicial proceedings survives the motion to dismiss.
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CONCLUSION
For the foregoing reasons, the motion to dismiss the amended complaint is GRANTED IN
PART and DENIED IN PART. All of the claims of Jerimey Lay and Tabitha Lay are dismissed.
All claims against Stacy Houck, individually and in her official capacity, are dismissed. All of
Katelyn Webb’s claims against Chelsea Smith, Mischa Martin, and Cindy Gillespie, individually
and in their official capacities, are dismissed except her claims against them in their individual
capacities for failure to initiate prompt judicial proceedings.
IT IS SO ORDERED this 20th day of March, 2018.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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