Simon v. Anoka County Social Services et al
Filing
69
ORDER granting 47 Motion for Summary Judgment (Written Opinion). Signed by Judge Susan Richard Nelson on 11/21/2014. (ILV)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Janice E. Simon,
Case No. 12-cv-2754 (SRN/JSM)
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER
Anoka County Social Services and Lisa
Gray, individually and in her representative
capacity,
Defendants.
Margaret O’Sullivan Kane, Kane Education Law, LLC, 420 Summit Avenue, Suite 306,
St. Paul, MN 55102, for Plaintiff.
Andrew T. Jackola, Bryan D. Frantz, David A. Cossi, Nancy Norman Sommer, Robert D.
Goodell, Anoka County Attorney’s Office, 2100 Third Avenue North, Suite 720, Anoka,
MN 55303, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Defendants’ Motion for Summary Judgment
[Doc. No. 47]. For the reasons that follow, the Court grants Defendants’ Motion.
I.
BACKGROUND
A. Parties
On October 26, 2012, Plaintiff Janice E. Simon (“Plaintiff” or “Simon”) filed this
action against Anoka County Social Services and Lisa Gray, in her individual and
representative capacity, for alleged violations of the Due Process Clause of the United
States and Minnesota State Constitutions stemming from maltreatment and
disqualification decisions made by the Minnesota Department of Human Services.
(Compl. ¶ 1 [Doc. No. 1].)
Simon is the mother of nine adopted children, including her son “M.R.” 1 (Compl.
¶ 9 [Doc. No. 1]; Jackola Aff., Ex. E “Simon Dep.” at 15 (hereinafter “Simon Dep.”)
[Doc. No. 49-1].) Simon adopted M.R. from India when he was six and one half years
old. (Simon Aff. ¶ 2 [Doc. No. 54].) When Simon adopted M.R., she was aware that he
had “significant special needs.” (Id.) Currently, M.R. is an adult with developmental
disabilities. (Compl. ¶ 5 [Doc. No. 1].) Under Minnesota state law, M.R. is an
“incapacitated person” or a “vulnerable adult.” (Exhibits in Support of Defs.’ Mem. in
Opp’n, Ex. 1 [Doc. No. 21-1]; Ex. 5 [Doc. No. 21-2].) Due to his developmental
disabilities, a Minnesota state court appointed guardians to care for M.R. soon after his
eighteenth birthday. (Id.) Simon was appointed as one of M.R.’s guardians on March 13,
2006. (Compl. ¶ 10 [Doc. No. 1].) According to M.R.’s Individualized Service Plan
from Anoka County Social Services, M.R. has two other state appointed guardians – his
brother, Jared Simon, and his sister, Kyla Reinholdson. (Kane Aff., Ex. 4 [Doc. No. 56].)
Defendant Anoka County Social Services (ACSS) is a sub-division of Anoka
County, which is responsible for administering several social service programs, including
vulnerable adult protective services. (See Compl. ¶ 6 [Doc. No. 1].) Defendant Lisa
Gray is employed by ACSS as a social worker. (Id. ¶ 7.) Gray has worked at ACSS for
1
The Court uses initials to refer to Simon’s son in order to help preserve the young
man’s anonymity.
2
nearly twenty years. (Jackola Aff., Ex. F “Gray Dep.” 115:6-9 (hereinafter “Gray Dep.”)
[Doc. No. 49-2].) Gray was assigned as M.R.’s case manager in 2006. (Id. at 8:8-13.)
B. Simon’s Children’s Caretakers
Jody Mason began serving as M.R.’s personal care assistant in the summer of
2007, after M.R. graduated from high school. (Simon Aff. ¶ 6 [Doc. No. 54].) Mason
continued providing care for M.R. through 2011. (Id.) Mason would regularly care for
M.R. in Simon’s home three to five hours a day, five days a week. (Id.) Additionally,
Mason provided M.R. with respite care on occasional weekends. (Id.) Respite care
services are “temporary services provided to a person due to the absence or need for
relief of the primary caregiver, the person's family member, or legal representative who is
the primary caregiver and principally responsible for the care and supervision of the
person.” Minn. Stat. § 245A.02, subd. 15. In this case, Mason offered temporary relief
for Simon when Mason cared for M.R. over the weekends.
Michael Howe served as a personal care assistant for one of Simon’s minor
daughters, Rose. (Simon Aff. ¶ 4 [Doc. No. 54].) Like M.R., Rose also has
developmental disabilities. (See id.) Howe began caring for Rose in Fall 2009. (Id.)
Around that time, Howe entered into a romantic relationship with one of Simon’s adult
daughters, Sunita Reinholdson. (Id. ¶ 5.) Sunita and Howe’s relationship has continued
off and on through the present day. (Id.) For the purposes of this litigation, Sunita
created a chronology of her relationship with Howe. (Kane Aff., Ex. 15 at 1 [Doc. No.
63].) In this document, she explains that Howe became physically aggressive toward her
in July 2010. (Id.) Sunita also alleges that Howe told her that he was planning on
3
reporting her mother, Simon, “because he didn’t like her.” (Id. at 2.) Although Sunita’s
signature appears at the end of the typed chronology, her signature is not notarized. 2
C. Maltreatment Allegations and DHS Findings
On March 22, 2011, ACSS received a report that Plaintiff was verbally and
physically abusing M.R., and was financially exploiting him. (Exhibits in Supp. of Defs.’
Mem. in Opp’n, Ex. 2 “Vulnerable Adult Maltreatment Report” at 10 [Doc. No. 21-1].)
The report identifies the individual who reported the alleged abuse as “caller.” (Id. at
18.) The Chronology Summary of the Vulnerable Adult Maltreatment Report later
identifies the caller as “Michael Howe.” (Id. at 10.) Howe alleged that Simon yells at
M.R., slapped M.R. on more than one occasion, and calls M.R. names. (Id.) Howe also
claimed that Simon denies M.R. access to any of his money. (Id.) Howe explained that
he knew of this maltreatment because he “was working at the house at the same time for
a younger child.” (Id.)
Mary Banister, an ACSS investigator, was assigned the task of investigating the
maltreatment allegations. (Id.) 3 On April 11, 2011, Banister called Gray, M.R.’s case
2
Defendants correctly assert that this chronology, or affidavit, would be
inadmissible evidence at trial. (Defs.’ Reply at 6 [Doc. No. 67].) According to Mays v.
Rhodes, unsworn accounts are inadmissible hearsay. 255 F.3d 644, 648 (8th Cir. 2001);
see Fed R. Civ. P. 56(e); Cronquist v. City of Minneapolis, 237 F.3d 920, 927 (8th Cir.
2001) (holding that affidavits based on hearsay cannot defeat a summary judgment
motion). Therefore, the Court does not consider Sunita’s statements in her chronology in
its Order.
3
Plaintiff argues that Banister’s investigation was flawed because she did not
consult M.R.’s physician. (Pl.’s Mem. in Opp’n at 6-7 [Doc. No. 53].) However,
pursuant to Minn. Stat. § 626.557, subd. 10b, Banister is only required to consult with
professionals, such as a physician, “as appropriate.” Plaintiff claims that the Minnesota
Rules required Banister to interview M.R.’s doctor. (Pl.’s Mem. in Opp’n at 6 (citing
4
manager, to ask about Simon’s relationship with M.R. (Id. at 13.) Gray informed
Banister that while Simon “has a very strong personality and is sometimes inappropriate”
with M.R., Gray has “never heard before that [Simon] slapped [M.R.].” (Id.)
Banister also interviewed M.R. about the allegations of abuse. (Id. at 15.) M.R.
allegedly reported that he “yells and screams if he doesn’t get his way” with his mother,
Simon. (Id.) He stated that he did not recall his mother slapping him, calling him names,
or swearing at him. (Id.) However, he did recall one incident in which he plugged the
toilet and his mother yelled at him stating that M.R. “should have told someone right
away that he plugged [the toilet] and that he couldn’t fix it himself.” (Id.) Nonetheless,
M.R. reported that “he got along good with his mother and had no complaints.” (Id.)
As part of her investigation, Banister interviewed M.R.’s personal care assistant,
Mason, on April 15, 2011. (Id. at 17.) Mason reported that she had witnessed Simon
verbally abusing her son, and she once witnessed Simon slapping M.R. (Id.) Mason also
explained to Banister that M.R. is often reprimanded by Simon and his sisters if he does
not follow strict rules which are in place in the house. (Id.) For instance, M.R. is “yelled
at for eating his sister[,] Rose’s food.” (Id.) M.R. is also required to complete his
homework in Simon’s cold basement. (Id.) On April 21, 2011, Mason emailed Banister
expressing her concern about Simon’s mismanagement of M.R.’s finances and alleged
Minn. R. 9555.7300 [Doc. No. 53].) In fact, however, Minn. R. 95555.7300, subp. 3 only
requires an investigator to interview a physician when the “investigation involves an
alleged incident or situation related to a facility.” Therefore, even though Banister did
not consult with M.R.’s physician, the Court does not find this fact dispositive of whether
the investigation violated the statute.
5
that while Simon’s daughters are not required to pay Simon rent for living in her house,
M.R. is required to pay rent. (Id. at 26.)
Banister also interviewed Howe on April 15, 2011. (Id. at 18.) Howe reported
that he had witnessed Simon yelling at M.R. and was also present when Simon stated that
she “hate[s] [her] son to the core.” (Id.) Howe also reported that on one occasion he
entered a room after hearing a “scuffle” between Simon and M.R., and M.R.’s cheek
appeared as though it had been slapped. (Id.) Additionally, Howe alleged that Simon
permits M.R.’s sisters to be verbally abusive to M.R. (Id.) Howe characterized the
punishments that M.R. receives for certain behavior as “unfair,” and echoed Mason’s
concerns about M.R. being forced to complete homework in Simon’s cold basement.
(Id.)
On April 20, 2011, Banister interviewed Simon as part of her investigation of
M.R.’s maltreatment. (Id. at 23.) Simon admitted to yelling at M.R. and being a
“disciplinarian,” but denied calling M.R. stupid or an idiot. (Id.) She explained that she
instructs M.R. to complete his homework in the basement not as a punishment, but rather
to enable him to focus on his work. (Id. at 24.) Simon also explained how she uses
M.R.’s finances to pay herself for his rent, to pay for his medical co-pays, and to pay for
any activities during respite care. (Id.) She also explained that the reason why she does
not allow M.R., or anyone else in the home, to eat food that is designated for Rose is
because Rose may only consume pureed food. (Id.) During the interview on April 20,
Simon stated that she did not recall slapping M.R (id. at 24) ; however, the next day
Simon called Banister to report that she recalled slapping M.R. once when he spit on her
6
face and in her hair (id. at 26). Simon informed Banister that she called M.R.’s
pediatrician after this incident in order to address how she reacted to the spitting. (Id.)
Banister also interviewed Sunita Reinholdson, M.R.’s sister and Howe’s on-andoff girlfriend, on April 20, 2011. (Id. at 25.) Sunita reported that while her mother is
“strict,” she has never heard her mother call M.R. names. (Id.) Sunita also explained that
while M.R.’s bedroom door was removed from the hinges for a couple days, this was a
form of punishment that all of Simon’s children have been subject to from time to time.
(Id.) She also stated that she witnessed her mother slap M.R. when he talks back to
Simon. (Id.) As for Simon’s management of M.R.’s finances, Sunita explained that
Simon gives M.R. money when it is needed and M.R. is otherwise not required to pay for
any household expenses. (Id.) Two of M.R.’s other sisters, Kaiti and Kyla Reinholdson,
also provided interviews for Banister’s investigation. (Id. at 29-30.) Neither sister was
able to corroborate the physical abuse and both reported that although their mother used
swear words and often yelled, she treated all of her children equally. (Id.)
On April 26, 2011, Banister consulted with Harry Reynolds, an ACSS employee,
and Lisa Gray. (Id. at 34.) Based on the ACSS Chronology Summary provided, it
appears that initially, Banister concluded that only the verbal abuse and financial
exploitation allegations were substantiated by the investigation. (Id.) After further
discussion with Gray, however, Banister concluded that the physical abuse claim was
also substantiated because three individuals confirmed that Simon slapped M.R. (Id. at
36.) Simon expresses deep concern for the fact that Banister changed her opinion about
whether the physical abuse claim was substantiated after speaking with Gray. (Pl.’s
7
Mem. at 9 [Doc. No. 53].) She considers this conversation evidence of Gray’s and
Banister’s bias against Simon and Simon’s family. (Id.)
On April 29, 2011, Banister entered her final disposition in the case and concluded
that the physical abuse, verbal abuse, and financial exploitation allegations were
substantiated. (Exhibits in Supp. of Defs.’ Mem. in Opp’n, Ex. 2 at 37-38 “Vulnerable
Adult Maltreatment Report” [Doc. No. 21-1].) However, the allegation of caregiver
neglect was “found to be inconclusive.” (Id. at 38.) Although Gray contributed to the
investigation by providing Banister with information and consulting with Banister after
the interviews were concluded, Defendants claim that Gray was not responsible for
making any final determinations. (Defs.’ Mem. at 6 [Doc. No. 48].)
On May 3, 2011, Banister, Gray, and Gray’s supervisor, Morry Akinwale,
informed Simon of the maltreatment findings. (Gray Dep. 51-52 [Doc. No. 49-2].)
Simon was told that pursuant to administrative procedures, M.R. would be moved to a
temporary respite facility. (Simon Dep. 138-39 [Doc. No. 49-1].) During the meeting,
Plaintiff did not object to Gray picking up M.R. and taking him to the new respite care
facility. (Simon Dep. 140:2-7 [Doc. No. 49-1].) Simon signed an authorization form
permitting the release of M.R.’s private information to the respite facility. (Defs.’ Mem.
in Opp’n, Ex. 4 [Doc. No. 16-2].) Gray explained to Simon that the parties would need to
reconvene to execute a “placement plan” to identify M.R.’s new permanent residence and
finalize his ongoing care. (Gray Dep. 130-34 [Doc. No. 49-2].) Simon and Gray made
plans to complete the plan on May 20, 2011. (Jackola Aff., Ex. D “Simon Emails” at 2
[Doc. No. 49-2].)
8
D. DHS Administrative Hearings
During Simon’s meeting with Banister on May 3, 2011, Simon formally
requested reconsideration of the maltreatment finding. Simon’s request for
reconsideration was reviewed by Jerry Pederson, Manager of Anoka County Adult and
Disability Services. (Exhibits in Supp. of Defs.’ Mem. in Opp’n, Ex. 3 “Reconsideration
Letter” [Doc. No. 21-1].) Pederson reviewed the findings, case notes, and supporting
documentation and concluded on May 13, 2011 that he was “unwilling to change the
finding.” (Id.) Seven days later, on May 20, 2011, Simon canceled the meeting that was
scheduled to take place that day between her and Gray. (Jackola Aff., Ex. D “Simon
Emails” at 3 [Doc. No. 49-2].) M.R. remained in the temporary respite care facility
during this time. Simon did not attempt to remove him from the facility. (Simon Dep.
148:8-19 [Doc. No. 49-1].)
On June 10, 2011, Plaintiff filed an appeal with the Minnesota Department of
Human Services (DHS) challenging the maltreatment determination. (Exhibits in Supp.
of Defs.’ Mem. in Opp’n, Ex. 5 at 2 [Doc. No. 21-2].) “Due to the state shutdown, the
matter was postponed for several months.” (Id.) In the meantime, DHS disqualified
Plaintiff from working in licensed care facilities and with vulnerable adults. (Id., Ex. 14
at 1-2 [Doc. No. 21-3].)
DHS Judge Kelly A. Vargo eventually heard Simon’s appeal over the course of
five days in January and February, 2012. (Id., Ex. 5 at 2 [Doc. No. 21-2].) Judge Vargo
determined that Simon had maltreated M.R. physically and verbally. (Id. at 5-6.)
However, Judge Vargo concluded that “the appellant did not maltreat [M.R.] by financial
9
exploitation.” (Id. at 6.) Judge Vargo’s ruling was based on the following factual
findings: (1) Simon frequently shouted at M.R. and used profanity; (2) Simon called
M.R. “stupid” or “stupid idiot;” (3) Simon called M.R. “dumb” or a “fucking idiot;” (4)
Simon told M.R. to “shut up;” and (5) Simon slapped M.R. across the face. (Id. at 2-3.)
The court determined that Simon’s “denial that she never called [M.R.] derogatory names
is not credible and not supported by the totality of the record including [her] own
testimony.” (Id. at 5.) On March 26, 2012, the DHS Commissioner adopted Judge
Vargo’s findings, legal conclusions, and maltreatment determination. (Exhibits in Supp.
of Defs.’ Mem. in Opp’n, Ex. 6 [Doc. No. 21-2].)
On July 12, 2012, DHS Judge Douglass C. Alvarado held an evidentiary hearing
on Simon’s disqualification to work in licensed care facilities. (Exhibits in Supp. of
Defs.’ Mem. in Opp’n, Ex. 17 [Doc. No. 21-3].) Judge Alvarado affirmed the
disqualification determination based on similar findings of fact that supported the
maltreatment decision. (Id. at 17.) The DHS Commissioner adopted Judge Alvarado’s
findings and recommendation on September 26, 2012. (Id. at 18.)
As a result of the maltreatment and disqualification findings, Simon was
terminated by her employer, Children’s Home Society. (Simon Aff. ¶ 10 [Doc. No. 54].)
Simon worked for Children’s Home Society from April 17, 2000 to August 1, 2011. (Id.)
Simon alleges that, with the exception of the allegations of abuse underpinning this
lawsuit, she was never disciplined nor received a complaint while she was an employee at
Children’s Home Society. (Id.)
10
E. Plaintiff’s Claims
Pursuant to Minnesota state law, a party may seek judicial review of a DHS
administrative decision by bringing a state court action within thirty days of the decision.
See Minn. Stat. § 256.045, subd. 7. However, Plaintiff failed to file a state court action
within this time frame to challenge either Judge Vargo’s or Judge Alvarado’s rulings.
Instead, Simon filed this lawsuit against Defendants on October 26, 2012. (See generally
Compl. [Doc. No. 1].)
Plaintiff’s Complaint states three counts against Defendants ACSS and Lisa Gray.
In Count One, Plaintiff claims that Defendants “intentionally and deliberately deprived
Plaintiff of her civil rights guaranteed by the Fourteenth Amendment to the United States
Constitution by depriving her of [her] liberty interest in her familial integrity.” (Compl. ¶
26 [Doc. No. 1].) In Count Two, Plaintiff alleges that Defendants’ actions violated
Plaintiff’s civil rights guaranteed by Article 1, Section 7 of the Minnesota Constitution.
(Id. ¶ 31.) Finally, in Count Three, Plaintiff appeals the DHS’s maltreatment and
disqualification decisions. (Id. ¶ 36.)
Plaintiff’s three counts rest upon a single set of factual allegations. First, Simon
takes issue with the process by which Banister completed her investigation. (Pl.’s Mem.
in Opp’n at 6 [Doc. No. 53].) Simon contends that Banister failed to follow the DHS
Guidelines. (Id.) Specifically, Plaintiff argues that Banister failed to collect M.R.’s
relevant medical records or speak with M.R.’s physician. (Id. at 6-8.)
Second, Simon claims that she was denied pre-deprivation due process since M.R.
was removed from her care before the DHS administrative hearings took place. Simon
11
contends that Banister’s conclusions were not driven by her own investigation, but
instead were a result of Gray manipulating Banister to find that the physical abuse
allegation was substantiated. (Id. at 9.) Additionally, Simon argues that Gray’s bias
against Plaintiff and her family is evidenced by the fact that Gray uses reporting as a
technique to penalize M.R.’s legal guardians unfairly or without cause. For instance,
Gray reported Kyla Reinholdson, one of M.R.’s other guardians, on two occasions.
Once, Gray reported Kyla for failing to report the alleged abuse taking place in her home.
(Id. at 27.) Simon argues that this particular report was unfair because Gray did not
report Mason, M.R.’s personal care assistant, even though Mason also allegedly
witnessed abuse in the home. (Id.) Gray also reported Kyla after she declined to sign
paperwork approving M.R.’s removal from Simon’s home and placement in a different
facility. (Id.)
Third, Plaintiff also alleges that she received insufficient and untimely postdeprivation due process. Plaintiff contends that the DHS administrative hearings were
procedurally flawed for several reasons. Simon argues that she was unable to present
evidence substantiating Howe’s bias against Simon’s family, which stems from his
abusive relationship with Simon’s daughter, Sunita. (Id. at 12). She also claims that she
did not receive a fair maltreatment hearing because certain documents were not admitted
(Simon Dep. 62:5-6 [Doc. No. 49-1]); portions of the recorded hearing were “taped over”
(id. at 62:6-9); the DHS judge who presided over the first two days of the hearing, Judge
Johnson, did not render the final decision (id. at 63-64); Judge Vargo, the DHS judge
who rendered the final decision, based her decision on an incomplete transcript of the
12
hearing since portions of the hearing were taped over (id.); and Judge Vargo
misidentified Simon in her findings of fact, which reflects her lack of knowledge about
the facts of Simon’s case (id. at 65:19-25). Simon also argues that she was denied the
opportunity to present evidence associated with the DHS hearings “because the
transcripts of the proceedings were prohibitively priced at $11,000.00.” (Pl.’s Mem. at
13 [Doc. No. 53].) 4
II.
DISCUSSION
A. Improper Municipal Defendant
As an initial matter, the Court addresses whether Plaintiff brought this suit against
the proper municipal defendant. Based on the discussion below, the Court finds that
Simon’s claims against Anoka County Social Services must be dismissed. Furthermore,
because Plaintiff failed to properly bring suit against Anoka County, this action lacks any
valid municipal defendants.
1. Anoka County Social Services
Simon filed this lawsuit against ACSS. (Compl. ¶ 1 [Doc. No. 1].) Pursuant to
Federal Rule of Civil Procedure 17(b)(3), parties, which are not individuals or
corporations, may be sued depending on “the law of the state where the court is located.”
As this Court is located in Minnesota, it looks to Minnesota state law. Under Minnesota
4
Defendants argue that Simon may not summarize her recollection of Gray’s and
Banister’s DHS hearing testimony, and offer this summary as admissible evidence.
(Defs.’s Reply at 4 [Doc. No. 67].) According to Cronquist v. City of Minneapolis,
affidavits based on hearsay cannot be used to defeat a summary judgment motion. 237
F.3d 920, 927 (8th Cir. 2001) (citing Fed. R. Civ. P. 56(e)). Based on Cronquist and Rule
56(e), the Court agrees with Defendants. Therefore, the Court only relies on nonhearsay-based arguments advanced by Plaintiff.
13
state law, “every municipality is subject to liability for its torts and those of its officers,
employees and agents acting within the scope of their employment or duties whether
arising out of a governmental or proprietary function.” Minn. Stat. § 466.02 (2014). A
“county” is considered a “municipality;” and therefore, may be sued. See Minn. Stat. §
466.01, subd. 1 (2014) (“municipality means . . . any county”); Minn. Stat. § 373.01,
subd. 1(a)(1) (2014) (“[e]ach county is a body politic and corporate and may sue and be
sued”).
However, “[c]ourts in our District have consistently held that, under Minnesota
law, County Departments are not entities which may be sued.” Follis v. Minnesota Atty.
Gen., No. 08-cv-1348 (JRT/RLE), 2010 WL 3399674, at *7 (D. Minn. Feb. 16, 2010)
adopting report and recommendation, No. 08-cv-1348 (JRT/RLE), 2010 WL 3399958 (D.
Minn. Aug. 26, 2010). For this reason the Follis Court held that the Todd County
Department of Human Services and the Morrison County Department of Human Services
should be dismissed as improper defendants pursuant to Rule 17(b). Id.
Similarly in Everts v. United States Social Security Administration, et al., this
Court held that the Hennepin County Human Services and Public Health Department “is
a mere operating department of Hennepin County and, under Minnesota law, it is not
capable of suing or being sued.” No. 08-cv-4690(DWF/FLN), 2009 WL 3062010, at *2
(D. Minn. Sept. 18, 2009) (citing State v. Civil Serv. Comm'n of City of Minneapolis,
154 N.W.2d 192, 194 (Minn. 1967)); see also Neudecker v. Shakopee Police Department,
2008 WL 4151838, at *11 (D. Minn., Sept. 3, 2008) (finding that county DHS and city
police department are not subject to suit); In re Scott County Master Docket, 672 F. Supp.
14
1152, 1163 n.1 (D. Minn. 1987) (dismissing claims against county attorney’s office and
sheriff’s department because they were “not legal entities subject to suit”).
Although the actions of a county department or commission “may subject the
county itself to liability, [a county department or commission] itself is not a proper
defendant subject to suit in a section 1983 lawsuit.” Shimer v. Shingobee Island Water
and Sewer Comm’n, No. 09-cv-953 (JRT/FLN), 2003 WL 1610788, at *3-4 (D. Minn.
Mar. 18, 2003) (dismissing claims against the Water and Sewer Commission, but holding
that the Commission’s actions may serve as a basis for the county’s liability).
Here, ACSS, as a sub-division of Anoka County, is an improper defendant for
Plaintiff’s action. Plaintiff even concedes this point in her brief. (Pl.’s Mem. in Opp’n at
34 (stating that “this Court may find that ACSS is not a proper party to this lawsuit
because the County itself must be sued”) [Doc. No. 53].) Therefore, pursuant to Fed. R.
Civ. P. 17(b)(3) and Minnesota state law, ACSS is not subject to suit. See, e.g., Follis,
2010 WL 3399674, at *7; Everts, 2009 WL 3062010, at *2. Accordingly, the Court
dismisses Plaintiff’s claims against ACSS.
2. Anoka County
Although the actions of a county department “may subject the county itself to
liability,” Shimer, 2003 WL 1610788, at *3-4, in order for a county to be a proper
defendant in a lawsuit, a plaintiff must follow the Federal Rules of Civil Procedure in
properly naming the county as a defendant in the summons, and adequately serving the
county with process, see Fed. R. Civ. P. 4(a), (m). Here, Defendants argue that Simon
failed to both name Anoka County as a defendant in its Summons and Complaint, and
15
failed to properly serve Anoka County with process. (Defs.’ Mem. at 17-18 [Doc. No.
48].) The Court agrees.
Under Federal Rule of Evidence 4(a), a summons must “name the court and the
parties; [and] be directed to the defendant.” Fed. R. Civ. P. 4(a)(1)(A), (B).
Additionally, Rule 4(m) states that unless “the plaintiff shows good cause,” a defendant
must be served with a summons and complaint “within 120 days after the complaint is
filed.” If the defendant is not served with a summons and complaint, then the Court
“must dismiss the action without prejudice against that defendant or order that service be
made within a specified time.” Fed. R. Civ. P. 4(m).
Here, Plaintiff filed her Complaint on October 26, 2012. (See Compl. [Doc. No.
1].) The Summons in this case was issued on October 26, 2012 and then re-issued on
November 2, 2012. (See Docket Report). In both instances the Summons was issued to
Lisa Gray and ACSS. (Id.) Anoka County was neither listed as a Defendant on the
Complaint, nor issued a Summons. Plaintiff attempted to serve Anoka County with a
Summons and the Complaint on July 12, 2013. (Farmer Aff. [Doc. No. 25].) While Rule
4(m) requires service of process within 120 days of filing the Complaint, Plaintiff served
Anoka County 259 days after the Complaint was filed. See Fed. R. Civ. P. 4(m). Simon
not only exceeded the Rule 4(m) time limit by 139 days, but she failed to seek relief or a
time extension from the Court. Moreover, Simon did not properly list Anoka County as a
Defendant on the Summons or Complaint, as is required by Rule 4(a). See Fed. R. Civ.
P. 4(a). Therefore, as the pleadings currently stand, Simon has failed to name Anoka
County as the proper municipal defendant in this case.
16
Additionally, Simon may no longer amend her Complaint and Summons at this
point in the litigation. According to the Pretrial Scheduling Order, parties must have
amended all pleadings by June 1, 2013. (Pretrial Scheduling Order at 1 [Doc. No. 9].)
Defendants correctly state that “[t]he period for seeking amendment to the pleadings has
now closed.” (Defs.’ Mem. at 17 [Doc. No. 48].) The Court recognizes that Plaintiff has
not requested the Court for relief from the June 1, 2013 deadline. However, even if
Simon had requested an extension, the Court would nonetheless deny this request.
According to Federal Rule of Procedure 16(b)(4), “[a pretrial] schedule may be modified
only for good cause and with the judge's consent.” Harris v. FedEx National LTL, Inc.,
760 F.3d 780, 786 (8th Cir. 2014); see Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497
(8th Cir. 2008). The United States Court of Appeals for the Eighth Circuit explained in
Sherman v. Winco Fireworks, Inc. that “[t]he primary measure of good cause is the
movant's diligence in attempting to meet the [scheduling] order's requirements.” 532
F.3d 709, 716-17 (8th Cir. 2008) (internal quotations omitted). For this reason, whether
or not a court amends a scheduling order is based mainly “on the diligence of the party
who sought modification.” Id.; see Harris, 760 F.3d at 786.
Here, the evidence demonstrates that even if Simon had now sought modification
of the Pretrial Scheduling Order, she would not be acting diligently. On June 27, 2013,
Defendants alerted Plaintiff that she failed to name the proper governmental defendant.
(See Defs.’ Mem. in Opp’n at 14-16 [Doc. No. 15].) On July 11, 2013, Plaintiff replied
by claiming that she “scheduled a Motion to Amend the Scheduling Order, Amend the
Complaint and Add Necessary Party to correct this error [before Magistrate Judge Janie
17
S. Mayeron on August 29, 2013].” (Pl.’s Reply at 5 [Doc. No. 22].) A review of the
Docket Report in this case evidences that Plaintiff did not submit a motion requesting this
hearing; this hearing was not scheduled; and indeed, never took place. Instead, the only
impending hearing that was scheduled was for Plaintiff’s Motion for Partial Summary
Judgment and Declaratory Judgment on July 29, 2013 [Doc. No. 20]. However, this
hearing was canceled when Simon withdrew her Motion. (Letter from Margaret
O’Sullivan Kane to Judge Susan Richard Nelson (July 23, 2013) [Doc. No. 27].)
On September 13, 2013, Plaintiff again represented to the Court that she intended
to amend her Complaint to add the proper governmental defendants. (See Parties’
Stipulation for Continuance of Settlement Conference at 1 (stating that “during the
settlement conference [on September 10, 2013], Plaintiff’s Counsel indicated she
intended to file an additional complaint naming The Minnesota Department of Human
Services and the Anoka County Commissioners [sic] as parties”) [Doc. No. 29].)
However, Simon never filed a motion to seek relief from the Court to amend her
Complaint and add Anoka County as a defendant.
Plaintiff’s awareness of the procedural deficiency, her representations to the Court,
and her unexplained failure to file the proper motions demonstrate that Simon did not act
diligently to amend the scheduling order. Plaintiff has missed the Pretrial Scheduling
Order deadline by approximately seventeen months even though she has been fully aware
of the motions she needed to file. Courts have not permitted other plaintiffs in Simon’s
position to amend their complaints this late in the proceedings. See, e.g., Barstad v.
Murray County, 420 F.3d 880, 883 (8th Cir. 2005) (affirming the district court's denial of
18
leave to amend the plaintiffs’ complaint under Rule 16(b) because the plaintiffs had eight
months to request an amendment of the scheduling order and “knew of the claims they
sought to add when they filed the original complaint”); Freeman v. Busch, 349 F.3d 582,
589 (8th Cir. 2003) (affirming, under Rule 16(b), the district court's denial of the
plaintiff’s motion to amend her complaint because she provided no reasons why the
amendment could not have been made earlier or why her motion to amend was filed so
late). Therefore, even if Simon had filed a motion to modify the scheduling order, the
Court would deny it.
Pursuant to Rule 4(a) and (m), the Court finds that Anoka County, like ACSS, is
not a proper defendant in this case. Accordingly, Plaintiff’s action lacks a valid
municipal defendant.
B. Standard of Review
Summary judgment is proper if, drawing all reasonable inferences in favor of the
non-moving party, there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986). “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which
are designed ‘to secure the just, speedy, and inexpensive determination of every action.’”
Celotex Corp., 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
The party moving for summary judgment bears the burden of showing that the
material facts in the case are undisputed. Id. at 323. However, “a party opposing a
19
properly supported motion for summary judgment may not rest upon mere allegation or
denials of his pleading, but must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 256. “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. at 248. Moreover, summary judgment is properly entered “against a party
who fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp., 477 U.S. at 322. Defendants move for summary judgment on all three of
Plaintiff’s counts. Each count is discussed in detail below.
C. Count One: Section 1983 Due Process Claims Against Defendant Gray
As no proper municipal defendant exists in this case, Plaintiff’s Count One § 1983
claim is limited to Lisa Gray, in her individual and official capacities. Simon alleges that
Gray violated the Due Process Clause of the Fourteenth Amendment and deliberately
deprived her of a “liberty interest in her familial integrity” by removing M.R. from
Simon’s care. (Compl. ¶ 26 [Doc. No. 1].) Plaintiff’s § 1983 claim is premised on a
violation of substantive and procedural due process rights.
Defendants argue that Plaintiff’s Count One fails as a matter of law because Gray
is entitled to qualified immunity. (Defs.’ Mem. at 19 [Doc. No. 48].) However,
“[q]ualified immunity is a defense only against a claim in one's individual capacity.”
Bankhead v. Knickrehm, 360 F.3d 839, 844 (8th Cir. 2004) (citing Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)). In contrast, “[s]uits against public
20
employees in their official capacity are the legal equivalent of suits against the
governmental entity itself.” Bankhead, 360 F.3d at 844 (citing Buford v. Runyon, 160
F.3d 1199, 1201 n.3 (8th Cir. 1998)). Therefore, Defendants’ qualified immunity defense
applies only to Gray’s liability in her individual capacity.
As to Gray’s liability in her official capacity, Defendants argue that Plaintiff’s §
1983 claim fails because the facts do not demonstrate that the alleged constitutional
violation was “exceptionally egregious.” (Defs.’ Mem. at 28 [Doc. No. 48].) Thus, the
Court proceeds by addressing: (1) whether Gray, in her individual capacity, is entitled to
qualified immunity for a substantive due process claim and/or a procedural due process
claim; and (2) whether Plaintiff’s claim against Gray, in her official capacity, survives
summary judgment.
1. Gray’s Qualified Immunity, in Her Individual Capacity
“To hold [Gray] liable for a violation of the right to intimate association,
Plaintiff[] must show an intent to interfere with [her] familial relationship.” Ray v.
Hauff, No. 09-cv-922 (MJD/JJK), 2010 WL 1390866, at *8 (D. Minn. Mar. 31, 2010)
(citing Reasonver v. St. Louis County, Mo., 447 F.3d 569, 585 (8th Cir. 2006)). For the
purposes of summary judgment, the Court assumes that Gray had the requisite intent.
Nonetheless, the Court must grant summary judgment for Defendants if Gray is entitled
to qualified immunity. Id.
“On a motion for summary judgment, the Court employs a three-part test to
determine whether qualified immunity exists.” Doe v. Tsai, No. 08-cv- 1198
(DWF/AJB), 2010 WL 2605970, at *7 (D. Minn. June 22, 2010) aff'd sub nom. Doe ex
21
rel. Thomas v. Tsai, 648 F.3d 584 (8th Cir. 2011) (citing Goff v. Bise, 173 F.3d 1068,
1072 (8th Cir. 1999)). Gray is not entitled to qualified immunity if Plaintiff satisfies each
of the three prongs of the test. First, Simon must show that “the facts, viewed in the light
most favorable to the plaintiff, demonstrate the deprivation of a constitutional . . . right.”
Howard v. Kansas City Police Dep't, 570 F.3d 984, 988 (8th Cir. 2009). Second, Simon
must prove that the alleged right was clearly established. Id. The Court has discretion as
to which of these two inquiries to address first. Pearson v. Callahan, 555 U.S. 223, 23536 (2009). Third, “the plaintiff must raise a genuine issue of material fact as to whether
the official would have known that the alleged action violated the plaintiff's clearly
established rights.” Tsai, 2010 WL 2605970, at *7. Generally, “[q]ualified immunity is
available ‘to all but the plainly incompetent or those who knowingly violate the law.’”
Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir. 2004) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). “Officials are not liable for bad guesses in gray areas;
they are liable for transgressing bright lines.” Davis v. Hall, 375 F.3d 703, 712 (8th Cir.
2004) (citation omitted).
In Manzano v. South Dakota Dep’t of Social Services, the Eighth Circuit
explained that in § 1983 cases that involve alleged interference with the right to family
integrity, “it is nearly impossible to separate the constitutional violation analysis from the
clearly established right analysis.” 60 F.3d 505, 510 (8th Cir. 1995). Therefore, the
Court’s analysis below interweaves these two prongs of the qualified immunity test.
Here, because Gray’s actions do not amount to a violation of a clearly established
22
substantive due process or procedural due process constitutional right, Simon’s § 1983
claim fails against Gray, in her individual capacity.
a. Substantive Due Process Claim
Plaintiff alleges that by revoking her guardianship over M.R. without due process,
Gray violated Simon’s liberty interest in familial integrity. To prevail on a substantive
due process claim, Plaintiff must show that “the [state official] acted in an arbitrary or
capricious manner, or so as to shock the conscience.” Herts v. Smith, 345 F.3d 581, 587
(8th Cir. 2003). “The government action in question must shock the conscience or be
otherwise offensive to judicial notions of fairness and human dignity.” Tsai, 2010 WL
2605970, at *7 (citing Costello v. Mitchell Public School District 79, 266 F.3d 916, 921
(8th Cir. 2001)). Or in other words, the Court must find that viewing the facts in the light
most favorable to Simon, Defendant Gray violated Simon’s right to familial integrity in
such a manner as to “shock the conscience.” See id.
(1) Simon’s Constitutional Interest at Stake
In order to determine if a constitutional violation occurred, the Court must first
analyze whether a parent maintains a liberty interest in his or her relationship with a
vulnerable adult child. Then, the Court must determine if the facts in this case amount to
a clear violation of this right, which shocks the conscience.
The Eighth Circuit has “long recognized that parents have a liberty interest in
familial relationships and have an important substantive due process right to control the
care and custody of their children.” Dornheim v. Sholes, 430 F.3d 919, 925 (8th Cir.
2005) (citing Abdouch v. Burger, 426 F.3d 982, 987 (8th Cir. 2005)). Although, the
23
Eighth Circuit has not yet ruled on whether a parent maintains this substantive due
process right with a vulnerable adult child, this Court has previously held that such a right
may exist. In Ray v. Hauff, this Court explained that a mother had a constitutional right
to familial association with an adult child, since the daughter was “a vulnerable adult
under court-ordered supervision.” Ray, 2010 WL 1390866, at *8. Defendants argue that
a constitutional right to familial integrity between a parent and an adult child does not
exist. (See Defs.’ Mem. at 22 [Doc. No. 48].) However, given this Court’s holding in
Ray, the Court assumes, arguendo, that a parent has a substantive due process liberty
interest in familial integrity with his or her vulnerable adult child.
Plaintiff also claims that Gray violated her property interest in Simon’s
guardianship of her adult son. (See Pl.’s Mem. in Opp’n at 16-17 [Doc. No. 53].) The
Eighth Circuit explained in Skeets v. Johnson that “[i]t is well established that property
interests ‘are created and their dimensions are defined by existing rules or understanding
that stem from an independent source such as state law.’” 816 F.2d 1213, 1214-15 (8th
Cir. 1987) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)); see also Bishop
v. Wood, 426 U.S. 341, 344 (1976) (explaining that a claimed property interest in
employment may be created by ordinance or implied contract, but in any event may be
established only by reference to state law); Tautfest v. City of Lincoln, 742 F.2d 477, 480
(8th Cir. 1984) (holding that a court must look to an employment contract and to state
law to determine if there exists a legitimate claim of entitlement to benefits). If a status
may be terminated at any time, then an individual does not possess a property interest in
that status. See Skeets, 816 F.2d at 1214 (holding that the plaintiff did not possess a
24
property interest in his continued employment since under Arkansas law he was an atwill employee who could be terminated at any time). Therefore, the Court looks to state
law to determine if a court appointed guardian of a vulnerable adult maintains a property
interest in her guardianship.
Pursuant to Minnesota state law, a guardian does not maintain a property interest
in his or her guardianship. According to Minn. Stat. § 524.5-313, “[a] guardian shall be
subject to the control and direction of the court at all times and in all things.” Minn. Stat.
§ 524.5-313(a) (2014). Furthermore, a court grants a guardian “only those powers
necessary to provide for the demonstrated needs of the ward.” (Id. § 524.5-313(b).) A
court may modify a guardian’s powers, or terminate a guardianship “[o]n petition of any
person interested in the ward’s welfare,” or “may make any other order that is in the best
interests of the ward.” Minn. Stat. § 524.5-317(b). When the court considers a motion
for terminating or modifying the guardianship, it follows set procedures “to safeguard the
rights of the ward.” Id. § 524.5-317(c). The fact that state law dictates that (1) a court
may control a guardian’s power over a ward at all times; and (2) based on the best
interests of the ward, a guardian’s status may be modified or terminated at any point,
demonstrates that a guardian is not entitled to a property interest in his or her status. See
Skeets, 816 F.2d at 1214.
Furthermore, simply because a procedure exists for modifying or terminating a
guardianship does not imply that a court appointed guardian has a property interest in that
guardianship. “To have a property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more than a unilateral expectation of
25
it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v.
Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Relying on this principle, in Skeets, the Eighth
Circuit held that the “state had an absolute, unconditional right to dismiss [the plaintiff]
without cause because he was an at will employee;” and thus, the plaintiff did not have a
property interest in his continued employment. Skeets, 816 F.2d at 1215. Similarly,
here, the state court has an absolute, unconditional right to control the guardian at all
times, and modify or terminate a guardianship based on the best interests of the ward.
See Minn. Stat. § 524.5-313(a); id. § 524.5-317(b). While the interests of the vulnerable
adult or ward are considered by the court, the guardian does not have a property interest
in the guardianship itself. Therefore, the Court finds that Plaintiff does not have a
property interest in the guardianship of M.R., but maintains a liberty interest in familial
integrity.
(2) Simon’s Liberty Interest in Familial Integrity
Even assuming that Simon maintains a liberty interest in her relationship with her
adult child, this right is not absolute. See Manzano, 60 F.3d at 510. A parent’s right to
familial integrity must be balanced against the interests of the state and the child.
Relevant to this case, “‘[t]he right to family integrity clearly does not include a
constitutional right to be free from child abuse investigations,’ as the state has a strong
interest in protecting the safety and welfare of minor children, particularly where
protection is considered necessary as against the parents themselves.” Dornheim, 430
F.3d at 925-26 (quoting Manzano, 60 F.3d at 510 (internal marks omitted)). Therefore,
the Court is required to “balance the interests of the state and the [child] against the
26
interest of the parent in determining whether a constitutional violation has occurred.” Id.
at 926. “[W]hen a state official pursuing a child abuse investigation takes an action
which would otherwise unconstitutionally disrupt familial integrity, he or she is entitled
to qualified immunity, if such action is properly founded upon a reasonable suspicion of
child abuse.” Thomason v. SCAN Volunteer Services, 85 F.3d 1365, 1371 (8th Cir.
1996) (internal marks omitted). The state’s interest in protecting a child often “makes it
difficult to overcome a qualified immunity defense in the context of a child abuse
investigation.” Dornheim, 430 F.3d at 926 (citing Abdouch, 426 F.3d at 987).
(3) Causation
When analyzing whether the facts in this case amount to a clear violation of
Simon’s right to familial integrity, the Court must first determine whether Gray’s actions
actually caused the alleged constitutional deprivation. “A section 1983 damages action is
in essence a tort damages action. A plaintiff seeking tort damages cannot withstand
summary judgment if he is unable to satisfy the essential elements of a tort cause of
action, i.e., causation and damages.” In re Scott County Master Docket, 672 F. Supp.
1152, 1165-66 (D. Minn. 1987) aff'd sub nom. Myers v. Scott County, 868 F.2d 1017
(8th Cir. 1989). Therefore, in order to succeed on her claim against Gray, Plaintiff must
allege and prove that “the alleged denial of substantive due process was ‘a necessary
condition, or “but for” cause, of the separation of [M.R. from his mother] on which the
claim for damages is based.’” Id. (citing Lossman v. Pekarske, 707 F.2d 288, 291 (7th
Cir. 1983)).
27
Here, Plaintiff contends that Gray unfairly and prejudicially influenced the
outcome of Banister’s investigation and the results of the DHS proceedings. (See
generally Pl.’s Mem. in Opp’n [Doc. No. 53].) Additionally, Plaintiff alleges that Gray
personally facilitated M.R.’s transfer from Simon’s care to a temporary respite facility.
(Id. at 10.) The parties do not disagree that Gray was involved in moving M.R. to the
temporary respite facility. Thus, the Court accepts this proposition as an undisputed fact.
For the purposes of summary judgment, the Court also assumes that Gray somehow
influenced Banister’s investigation results based on the fact that she had a conversation
with Banister before the results were finalized. Accordingly, the Court finds that but for
Gray’s personal involvement in influencing the results of the maltreatment investigation
and removing M.R. from his home, Simon’s familial integrity interest would not have
been violated. 5 See In re Scott County, 672 F. Supp. at 1165-66.
5
In deciphering the basis of Plaintiff’s substantive due process claim against Gray,
Defendants rely upon an argument advanced by Simon in a previous brief. In Plaintiff’s
Memorandum in Support of her Motion for Summary Judgment, Plaintiff had claimed
that Gray violated her due process rights by removing her dependent adult son from her
care prior to initiating the procedures set forth in Minn. Stat. § 626.557. (Pl.’s Mem. in
Supp. of Mot. for Summ. J. at 10-11 [Doc. No. 12].) Defendants argue that even
assuming Plaintiff possesses rights under this statutory provision, Simon’s claim still fails
because a statutory violation does not amount to a constitutional due process violation.
According to the Eighth Circuit, “unless the rights which form the basis of the plaintiffs'
civil rights claims were conferred by state law, a violation of state law is neither
cognizable under section 1983 nor results in forfeiture of immunity for the alleged
violation of rights which have independent constitutional origin.” Myers v. Morris, 810
F.2d 1437, 1469 (8th Cir. 1987) abrogated on other grounds by Burns v. Reed, 500 U.S.
478, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991). As applied to this case, Defendants
contend that “Plaintiff cannot maintain a [s]ection 1983 claim against Gray premised
upon the alleged violation of [Minn. Stat. § 626.557] because the right to familial
integrity does not arise from that law.” (Defs.’ Mem. at 21 [Doc. No. 48].) Insofar as
28
(4) Gray’s Conduct Does Not Shock the Conscience
Even assuming that Gray influenced the removal of M.R. from Simon’s home and
influenced Banister’s conclusion that the physical and verbal abuse claims were
substantiated, Plaintiff’s allegations still do not rise to the level of a substantive due
process violation. Here, Gray’s conduct, viewed in a light most favorable to Simon, did
not “shock the conscience.” At most, the record indicates that Gray, a concerned ACSS
social worker, pressed Banister to reconsider whether the investigation corroborated the
allegation that M.R. was physically abused by Plaintiff. Plaintiff admitted to Banister
that she recalled slapping M.R. on one occasion. (Exhibits in Supp. of Defs.’ Mem. in
Opp’n, Ex. 2 at 26 “Vulnerable Adult Maltreatment Report” [Doc. No. 21-1].) Pursuant
to Minn. Stat. § 626.5572, subd. 2(b), “abuse” of a vulnerable adult includes “[c]onduct
which is not an accident or therapeutic conduct as defined in this section, which produces
or could reasonably be expected to produce physical pain or injury or emotional distress
including, but not limited to . . . (1) . . . slapping.” Simon admitted to Banister that she
intentionally slapped M.R. when he spit on her. Therefore, under Minnesota law, her
behavior constituted physical abuse.
Plaintiff’s argument is based on the procedures and rights articulated in Minn. Stat. §
626.557, the Court agrees with Defendants.
However, the Court reads Plaintiff’s Complaint and substantive due process
argument against Gray differently than Defendants. Based on Plaintiff’s Memorandum in
Opposition to Defendants’ Motion for Summary Judgment, the Court understands
Plaintiff as arguing that Gray violated Plaintiff’s right to familial integrity by unfairly and
prejudicially influencing the outcome of Banister’s investigation and the DHS
proceedings and facilitating M.R.’s transfer to a temporary respite facility from Simon’s
home. (See generally Pl.’s Mem. in Opp’n [Doc. No. 53].)
29
“Abuse” also includes the “use of repeated or malicious oral, written, or gestured
language toward a vulnerable adult or the treatment of a vulnerable adult which would be
considered by a reasonable person to be disparaging, derogatory, humiliating, harassing,
or threatening.” Minn. Stat. § 626.5572(b)(2). Several individuals that Banister
interviewed reported that Simon called M.R. names, such as “stupid,” and yelled at him
frequently. (Exhibits in Supp. of Defs.’ Mem. in Opp’n, Ex. 5 at 5 [Doc. No. 21-2].)
Thus, Gray reasonably recommended that based on the interviews Banister conducted,
enough evidence existed substantiating claims that Simon verbally abused M.R.
It does not shock the conscience that based on the facts unearthed by Banister’s
investigation that Gray recommended that Banister conclude that M.R. was verbally and
physically abused. Any right to familial association was not sufficiently clear such that
Gray, an ACSS social worker, could have understood that she was violating this right by
helping to remove M.R. from what she thought was an abusive environment.
In similar instances, this Court has concluded that the right to familial association
was not clearly violated. For example, in Ray, the mother-plaintiff challenged the
decision of defendants, a social services organization and its employee, to restrict the
mother’s access to her vulnerable adult child, who was being cared for by defendants.
Ray, 2010 WL 1390866, at *1-5. The Court held that “any constitutional right to a
familial association was not sufficiently clear such that Defendants, guardians of a
vulnerable adult, could have understood that such right was being violated” by restricting
the allegedly abusive mother’s access to her child. Id. at *8. Similarly, in In re Scott
County, this Court held that:
30
plaintiffs' claims, taken as true for purposes of this summary judgment
motion, simply do not rise to the level of justiciable substantive due process
claims. The individual interests of the plaintiffs, although strong, are more
than counterbalanced by the state's compelling interest. The social workers
simply assisted law enforcement officials by taking part in questioning and
tending to the details of child foster care placement. Under the
circumstances, the actions taken by social workers, although inarguably
disruptive to the family units of the various plaintiffs, were motivated by
compassion for the children and are in no way indicative of an “abuse of
official power which shocks the conscience.”
In re Scott County, 672 F. Supp. at 1166-67. The Eighth Circuit similarly found that a
plaintiff’s substantive due process right to familial integrity was not violated in an
analogous child protective custody case. In Fitzgerald v. Williamson, the Eighth Circuit
held that it did not shock the conscience or otherwise offend judicial notions of fairness
“to hear that caseworkers responsible for an allegedly abused child arranged for the child
to be examined by a psychologist and, after receiving confirmation of child abuse,
reduced the parents' visitation rights and permitted the child to remain with her foster
parent when the foster parent moved out of the parents' geographical area.” 787 F.2d
403, 408 (8th Cir. 1986).
Here, Gray, like the defendants in Ray, In re Scott County, and Fitzgerald was
motivated by her concern for M.R. Although Simon may have a liberty interest in
familial integrity, that interest is sufficiently counterbalanced by Gray’s interest in
removing a vulnerable adult from an abusive setting, particularly where the alleged
abuser admitted to slapping the ward.
Moreover, even before an investigation is complete, ACSS has the right to “offer
emergency and continuing protective social services for purposes of preventing further
31
maltreatment and for safeguarding the welfare of the maltreated vulnerable adult.” See
Minn. Stat. § 626.557, subd. 10(a). Safeguarding the welfare of the vulnerable adult
includes removing him or her from a potentially abusive environment. Since ACSS
employees have the right to remove M.R. from a potentially abusive environment, even
before a maltreatment investigation is complete, surely ACSS, acting through Gray, has
the right to remove M.R. after an investigation substantiates claims of abuse. Therefore,
Gray is entitled to qualified immunity, in her individual capacity, because drawing all
reasonable inferences in favor of Plaintiff, no genuine issues of material fact exist that
Gray’s actions constitute a violation of Plaintiff’s substantive due process rights under
clearly established law. See Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 322-23;
Anderson, 477 U.S. at 249-50.
b. Procedural Due Process Claim
In Simon’s § 1983 claim, she also alleges that Defendant Gray violated her
procedural due process rights by (1) revoking her guardianship rights without following
the proper procedures mandated by state law; and (2) failing to provide her with notice
and an opportunity to be heard before removing M.R. from her home. (Pl.’s Mem. at 2329 [Doc. No. 53].)
In response, Defendants argue that insofar as Plaintiff’s argument is based upon
rights she believes she possesses under the Minnesota Vulnerable Adults Act, Minn. Stat.
§ 626.557, subd. 10, her argument fails. (Defs.’ Mem. at 25 [Doc. No. 48].) The Court
agrees. As Defendants aptly note, the “Vulnerable Adults Act was designed to protect
vulnerable adults – not their guardians – and prescripts procedures to protect only that
32
class of persons.” (Id.) This Court previously explained in Grozdanich v. Leisure Hills
Health Ctr., Inc. that “[a]llowing an individual, such as the Plaintiff, who is not a
vulnerable adult, to employ the [Vulnerable Adults Act] as a source of civil liability, does
not further [the stated purpose of the statute].” 25 F. Supp. 2d 953, 986 (D. Minn. 1998).
Since Plaintiff does not bring this action on behalf of M.R. in a representative capacity,
the law does not provide Simon with any procedural due process rights.
Insofar as Plaintiff’s argument is based on Gray’s failure to provide notice and an
opportunity to be heard before M.R. was removed from Simon’s home, Defendants
contend that Gray is entitled to qualified immunity, in her individual capacity. As noted
earlier, to overcome the qualified immunity defense Plaintiff must satisfy three elements.
Tsai, 2010 WL 2605970, at *7. First, Simon must show that the facts, viewed in the light
most favorable to Plaintiff, demonstrate the deprivation of Simon’s procedural due
process right. Howard, 570 F.3d at 988. Second, Simon must prove that the alleged right
was clearly established. Id. The Court selects which of these two inquiries to address
first. Pearson, 555 U.S. at 235-36. Third, Simon must raise a genuine issue of material
fact as to whether Gray would have known that the alleged action violated Simon’s
clearly established right. Tsai, 2010 WL 2605970, at *7.
Therefore, to overcome the qualified immunity defense for her procedural due
process claim, Simon must demonstrate “that there has been a deprivation of a
constitutionally-protected liberty or property interest and that the procedures used by the
state to effect the deprivation were constitutionally inadequate.” Tsai, 2010 WL
2605970, at *9 (citing In re Scott County Master Docket, 672 F. Supp. 1152, 1169 (D.
33
Minn. 1987)). “Procedural due process fundamentally requires that an aggrieved party be
provided with an opportunity to be heard at a meaningful time and in a meaningful
manner.” In re Scott County Master Docket, 672 F. Supp. at 1169 (citing Matthews v.
Eldridge, 424 U.S. 319, 333 (1976)). However, the process a plaintiff is due is
contingent upon the nature of the interest at stake. See Bohn v. County of Dakota, 772
F.2d 1433, 1435-36 (8th Cir. 1985). Here, the interest at stake is Simon’s liberty interest
in familial integrity.
Having identified the protected interest at stake, the Court turns to the procedural
protections required. See Mathews v. Eldridge, 424 U.S. 319 (1976). In Mathews, the
Supreme Court of the United States held that in determining which procedures are
adequate to safeguard an individual’s liberty interest, three factors should be considered:
First, the private interest that will be affected by the initial action; second, the risk
of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government's interest, including the function involved and the fiscal
and administrative burden that the additional or substitute procedural requirement
would entail.
Id. at 335.
Applying these three factors, in Bohn, the Eight Circuit held that a parent’s
interest in family unity “is counterbalanced by the children’s interest in continued
freedom from abuse or neglect.” Id. at 1438. In fact, in Bohn, the court upheld
the very statutory procedure that Simon now challenges. The Bohn Court
explained that the Vulnerable Adults Act “is designed as a preventative measure to
minimize the damage which vulnerable children might suffer from familial
conflict.” Id. And because the statute effectively mediates the parent’s interests
34
and the interests of the state, the court concluded that the procedure was not
constitutionally defective. Id. at 1439. “In cases which require fast action to
protect the interests of children, e.g., Duchesne v. Sugarman, 566 F.2d 817, 826
(2d Cir. 1977), or where an ex ante intervention by the state was based on a
generally reliable ex ante finding, see Barry v. Barchi, 443 U.S. 55, 64-65 (1979),
such procedures have been upheld.” Id. at 1438-39.
Plaintiff argues that her procedural due process claim is based upon (1) a lack of
pre-deprivation due process, and (2) insufficient and untimely post-deprivation due
process. Defendants respond to Simon’s contention that Gray failed to provide predeprivation due process by arguing that Plaintiff has waived this claim because she did
not object to M.R.’s placement in temporary respite care. (Defs.’ Reply at 7 [Doc. No.
67].) Defendants claim that the “placement was consensual” (id. at 8), as evidenced by
the fact that Simon signed an authorization form permitting the release of M.R.’s private
information to the respite facility. (Defs.’ Mem. in Opp’n, Ex. 4 [Doc. No. 16-2]). Thus,
Defendants contend that “Plaintiff’s right to due process did not attach until the County
filed its petition for public guardianship.” (Defs.’ Reply at 8 [Doc. No. 67].) The Court
disagrees. The Court does not “‘presume acquiescence in the loss of fundamental
rights.’” Schneckloth v. Bustamonte, 412 U.S. 218, 236 (1973) (quoting Ohio Bell
Telephone Co. v. Public Utilities Comm’n, 301 U.S. 292, 307 (1937)). Plaintiff did not
waive her right to assert her due process rights merely by signing a document releasing
M.R.’s information to the temporary respite facility. The document neither affirmatively
35
revoked Simon’s guardianship status, nor does the Court understand the document to
have this effect.
Nonetheless, insofar as Plaintiff’s procedural due process claim is based on the
fact that Gray violated Simon’s procedural due process rights because Gray placed M.R.
into temporary respite care before the final maltreatment adjudication, the Court finds
that Gray is entitled to qualified immunity. Simon argues that M.R. should not have been
removed from her custody based only upon the results of Banister’s maltreatment
investigation. (Pl.’s Mem. at 26-29 [Doc. No. 53].) However, as the Bohn Court
explained, in cases where a state must act ex-ante to protect the safety of the child, such
procedures have been upheld. Bohn, 772 F.2d at 1438. Therefore, Bohn counsels the
Court to hold that Gray acted reasonably by immediately removing M.R. from his home
after the investigation substantiated the claims of abuse, in order to protect M.R.’s safety.
Insofar as Plaintiff’s claim is based on insufficient and untimely post-deprivation
due process, the Court finds that it need not reach the issue of qualified immunity because
Gray did not cause the alleged deficiencies. Simon identified several problems with the
post-deprivation due process she experienced. Simon claims that she did not receive a
fair DHS maltreatment hearing because certain documents were not admitted (Simon
Dep. 62:5-6 [Doc. No. 49-1]); portions of the recorded hearing were “taped over” (id. at
62:6-9); the DHS judge who presided over the first two days of the hearing, Judge
Johnson, did not render the final decision (id. at 63-64); Judge Vargo, the DHS judge
who rendered the final decision, based her decision on an incomplete transcript of the
hearing since portions of the hearing were taped over (id.); and Judge Vargo
36
misidentified Simon in her findings of fact, which reflects her lack of knowledge about
the facts of Simon’s case (id. at 65:19-25). Simon also argued that she received an unfair
DHS disqualification hearing, after which she lost her license for working in licensed
care facilities. Plaintiff claims that the disqualification hearing was procedurally flawed
because Judge Alvarado primarily based his disqualification determination on Judge
Vargo’s erroneous maltreatment finding. (Id. at 75:18-23.) Plaintiff also alleges that she
was denied timely post-deprivation due process because an Ex Parte Petition for the
Appointment of a Public Guardian was not filed until June 17, 2011, forty-five days after
M.R. was removed from Simon’s care and custody. (Kane Aff., Ex. 5 [Doc. No. 56].)
Finally, Plaintiff contends that the DHS has prohibitively priced the hearing transcripts,
making it impossible for Simon to request or rely on the transcripts. (See Pl.’s Mem. at
13 [Doc. No. 53.]) Whether or not there is merit to these claims, Gray had no role in
facilitating these administrative hearings.
Since a § 1983 damages action is in essence a tort action, Simon cannot withstand
summary judgment if she is unable to satisfy the requisite causation element. See In re
Scott County, 672 F. Supp. at 1165-66. In In re Scott County, the Court held that
“[b]ecause the decision to arrest plaintiffs and to separate [the] children from [their]
parents was made by others, with only very minimal input, if any at all, from the social
workers, plaintiffs simply [could not] satisfy this ‘but for’ precondition.” Id.
Here, as in In re Scott County, Simon cannot prove that Gray caused the
procedural deficiencies alleged. Although she provided testimony, Gray did not make
any final maltreatment or disqualification decisions. Gray did not tape over the recording
37
of the hearing, refuse to admit certain documents, render any Orders, or prohibitively
price the DHS hearing transcripts. Therefore, Simon cannot satisfy the “‘but for’
precondition” required. See id. Similarly, Gray did not cause the alleged untimely filing
of the Ex Parte Petition for the Appointment of a Public Guardian. Plaintiff fails to
allege that Gray was responsible for filing this motion, and no facts in the record
demonstrate Gray’s role with this petition. In sum, the Court need not even reach the
qualified immunity defense, because Gray is the improper defendant for Plaintiff’s postdeprivation procedural due process claim.
Plaintiff additionally argues that even if the DHS judges had followed the
procedure required by Minnesota state law, that process also violates Plaintiff’s
procedural due process rights. Simon claims that the statutory procedure violates the Due
Process Clause because “no consideration may be given to the family unit . . . [when
conducting] investigation and provi[ding] . . . adult protective services.” (Pl.’s Mem. at
29 [Doc. No. 53].) Again, the Court finds that Defendant Gray is an improper defendant
for this claim.
First, Gray did not personally implement the procedures challenged by Simon.
Although Gray provided information and testimony for Banister’s investigation and the
DHS administrative proceedings, she neither personally conducted the investigation nor
rendered any final decisions about the maltreatment allegations.
Second, Gray did not “cause” the State of Minnesota to adopt these investigative
and adult protective procedures. See 42 U.S.C. § 1983 (“Every person who, under color
of any statute . . . subjects, or causes to be subjected, any citizen of the United States . . .
38
to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable . . .”). In Jackson v. Nixon, the Eighth Circuit held the Director of
Department of Corrections liable under § 1983 because of his statutory duty to oversee
the implementation of the official policies the plaintiff challenged. 747 F.3d 537, 544
(8th Cir. 2014). Here, unlike the defendant in Jackson, Gray does not have a statutory
duty to oversee the implementation of the procedure that Simon challenges. Moreover,
even had Plaintiff brought suit against the appropriate defendant, the Court would likely
find that the procedures in the Vulnerable Adults Act are constitutionally sufficient as the
Eighth Circuit did in Bohn. See Bohn, 772 F.2d at 1439. Accordingly, the Court finds
that Defendant Gray is the improper defendant for Plaintiff’s procedural due process
claims.
2. Section 1983 Claim Against Gray, in Her Official Capacity
Next, the Court addresses Plaintiff’s § 1983 substantive due process and
procedural due process claims against Gray, in her official capacity. “Suits against public
employees in their official capacity are the legal equivalent of suits against the
government entity itself.” Bankhead, 360 F.3d at 844. To prevail on her substantive due
process claim against Gray, in her official capacity, Simon must prove that Gray “acted in
an arbitrary or capricious manner, or so as to shock the conscience.” Herts, 345 F.3d at
587.
Reiterating its finding in Section III(C)(1)(a) above, the Court holds that, viewing
all facts in the light most favorable to Plaintiff, Gray’s actions do not shock the
conscience. “‘The right to family integrity clearly does not include a constitutional right
39
to be free from child abuse investigations,’ as the state has a strong interest in protecting
the safety and welfare of minor children, particularly where protection is considered
necessary as against the parents themselves.” Dornheim, 430 F.3d at 925-26 (quoting
Manzano, 60 F.3d at 510 (internal marks omitted)). Gray’s actions included providing
testimony to Banister and the DHS judges about the abuse she perceived, and
recommending that Banister substantiate the abuse allegations. Given the fact that
Gray’s concerns about M.R.’s wellbeing were substantiated by others, and Plaintiff
herself admitted to slapping M.R., Gray’s actions during the investigation and
administrative proceedings do not shock the Court’s conscience or offend judicial notions
of fairness. See Fitzgerland, 787 F.2d at 408; Ray, 2010 WL 1390866, at *8; In re Scott
County, 672 F. Supp. at 1166-67. Therefore, Plaintiff fails to state a cognizable
substantive due process claim against Gray, in her official capacity. Accordingly, the
Court grants Defendants’ Motion for Summary Judgment as it applies to Plaintiff’s
substantive due process claims.
As for Plaintiff’s procedural due process claim against Gray, in her official
capacity, the Court reiterates its finding from Section III(C)(1)(b) above. The Court finds
that under Bohn the pre-deprivation due process Simon received was constitutionally
adequate. See Bohn, 772 F.2d at 1439. Since Gray could have removed M.R. from
Simon’s home before Banister’s investigation was complete, she clearly was empowered
to remove M.R. after the abuse allegations were substantiated.
As for Plaintiff’s claims about the post-deprivation due process she received, the
Court restates its finding that Gray did not cause the alleged procedural deficiencies to
40
occur. Gray was not responsible for facilitating or implementing the DHS proceedings.
For example, Gray did not delete part of the tape recording from the DHS proceeding,
nor did she select the evidentiary standards employed by the judges.
The Court reiterates that Gray also remains an improper defendant for Plaintiff’s
claim that the statutory procedures for guardianship removal, had they even been
followed, violated her due process rights. Simon contends that because an ACSS
investigator and a DHS judge cannot consider the importance of preserving the family
unit, the process of investigating and providing adult protective services violates the Due
Process Clause. (See Pl.’s Mem. at 29 [Doc. No. 53].) Gray’s official position is an
ACSS social worker. (Compl. ¶ 7 [Doc. No. 1].) Therefore, she does not have the
statutory duty or obligation to oversee the implementation of the official policies that
Simon challenges. See Jackson, 747 F.3d 537, 544 (8th Cir. 2014). For instance, Gray
cannot change the cost of the DHS transcripts; nor can she alter the factors that an ACSS
investigator or DHS judge may take under consideration. In sum, the Court grants
Defendants’ Motion to Summary Judgment as applied to Plaintiff’s procedural due
process claims as well.
D. Count Two: Minnesota State Constitution Claim
Similar to Count One, Plaintiff’s Count Two is limited to Lisa Gray because
Simon failed to bring suit against a proper governmental defendant. In Count Two of
Plaintiff’s Complaint, she seeks money damages for due process violations of her “liberty
interest in her familial integrity,” pursuant to Article I, section 7 of the Minnesota State
Constitution. (Compl. ¶ 31 [Doc. No. 1].) Plaintiff’s Count Two rests upon the same
41
factual allegations which support her Count One claim. Defendants argue that Plaintiff’s
claim “fails because the State Constitution does not provide a private remedy for the
violation of constitutional rights.” (Defs.’ Mem. at 13 [Doc. No. 48].) Simon does not
refute this argument in her response brief. (See generally Pl.’s Mem. in Opp’n [Doc. No.
53].) Thus, Simon concedes that she fails to state a cognizable claim under the
Minnesota Constitution. (See Defs.’ Reply at 1 [Doc. No. 67].) The Court agrees.
“Minnesota courts have not recognized a private right of action for a violation of
the Article I, Section 7 of the Minnesota Constitution.” Andersen v. County of Becker,
No. 09-cv-5687 (ADM/RLE), 2009 WL 3164769, at *13 (D. Minn. Sept. 28, 2009); see
Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin County, Minn., 922 F. Supp. 1396,
1400 (D. Minn. 1996) rev'd on other grounds, Ben Oehrleins & Sons & Daughter, Inc. v.
Hennepin County, 115 F.3d 1372 (8th Cir. 1997) (citing Bird v. State Dept. of Public
Safety, 375 N.W.2d 36, 40 (Minn. Ct. App. 1985)) (holding that “Minnesota does not
recognize a damage remedy for violations of Art. I, § 7 of the Minnesota Constitution”);
see also Thomsen v. Ross, 368 F. Supp. 2d 961, 975 (D. Minn. 2005) (finding that
“Minnesota has not enacted a statute equivalent to § 1983, although Minnesota courts
have recognized direct causes of action for violating certain sections of the Minnesota
Constitution.”). Therefore, Plaintiff fails to state a cognizable claim under the Minnesota
Constitution. As a result, the Court grants Defendants’ Motion for Summary Judgment
with respect to Plaintiff’s Count Two.
42
E. Count Three: Appeal of Maltreatment and Disqualification
Determinations
In Count Three of Plaintiff’s Complaint, Simon “appeals the maltreatment and
disqualification [decisions] from the DHS as unsupported by the evidence in the record
and contrary to the statutory requirements.” (Compl. ¶ 36 [Doc. No. 1].) Defendants
argue that Plaintiff’s Count Three should be dismissed for lack of subject matter
jurisdiction. (Defs.’ Mem. at 13-14 [Doc. No. 48].) Plaintiff fails to rebut Defendants’
assertions in her response brief. (See generally Pl.’s Mem. in Opp’n [Doc. No. 53];
Defs.’ Reply at 1 [Doc. No. 67].) The Court finds that it lacks subject matter jurisdiction
with respect to Count Three.
Under Minnesota law, “any party who is aggrieved by an order of the
commissioner of human services . . . may appeal the order to the district court of the
county responsible for furnishing assistance, or, in appeals under subdivision 3b
[“maltreatment and disqualification hearings”], the county where the maltreatment
occurred.” Minn. Stat. Ann. § 256.045, subd. 7 (2014). In fact, this Court relied on this
precise statutory provision when dismissing a case for lack of subject matter jurisdiction
in Wilson v. Dryden, 169 F. Supp. 2d 1010, 1013 (D. Minn. 2001). In Wilson, the
plaintiff sought to appeal the DHS’s finding that she had received excessive welfare
benefits. Id. at 1012. The Court held that, “[t]o the extent that this action is an appeal of
the [DHS] Commissioner's final order of December 8, 1999, then it should have been
filed in state district court pursuant to Minn. Stat. § 256.045, subd. 7.” Id. at 1013.
Therefore, Defendants correctly note that “[t]he law does not provide for an appeal to
43
federal courts.” (Defs.’ Mem. at 13 [Doc. No. 48].) Rather, Plaintiff may file an appeal
with a Minnesota state trial court.
Furthermore, the Court may not exercise supplemental jurisdiction over Plaintiff’s
Count Three. Although the appeal of the maltreatment and disqualification decisions is
arguably based on the same nucleus of operative facts as Plaintiff’s § 1983 claims,
supplemental jurisdiction only applies to a “civil action of which the district courts have
original jurisdiction.” 28 U.S.C. § 1367(a). Therefore, in order to exercise supplemental
jurisdiction “over some claims in an action,” the Court must first determine that it has
“original jurisdiction over at least one claim in the complaint.” Myers v. Richland
County, 429 F.3d 740, 748 (8th Cir. 2005) (citing Exxon Mobil Corp. v. Allapattah
Services, Inc., 545 U.S. 546, 557-59 (2005)). Here, the Court granted summary judgment
for Defendants on Plaintiff’s Counts One and Two. Therefore, the Court finds that it
does not have original jurisdiction over at least one claim in the Complaint. Accordingly,
the Court grants Defendants’ Motion for Summary Judgment with respect to Plaintiff’s
Count Three.
THEREFORE, IT IS HEREBY ORDERED THAT:
1. Defendants’ Motion for Summary Judgment [Doc. No. 47] is GRANTED,
consistent with this Order.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 21, 2014
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
44
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?