Rice v. Rice et al
MEMORANDUM OPINION AND ORDER denying as moot 54 Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs; granting [13, 17, 38, 45, 57, 94, 102, 110, 124] Defendants' Motions to Dismiss; the Complaint 1 and Addendums [14, 15] are DISMISSED (Written Opinion). Signed by Judge Ann D. Montgomery on 09/19/2017. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Annelise C. Rice,
Civil No. 17-796 ADM/HB
Brent Roger Rice; Hennepin County et al.; Carver
County et al.; Carole Cole, Carver County Family
Court Division; Nicole Mercil, Carver County Family
Court Division; Bethany Koch, Carver County Family
Court Division; Sarah Kulesa, Carver County Family
Court Division; Jean Peterson, Hennepin County Family
Court Division; Judith Hoy, Hennepin County Family
Court Division; Susan Olson, Hennepin County Family
Court Division; Richard Witucki, Hennepin County
Family Court Division; Michael Garelick, Hennepin
County Family Court Division; Jolene Lukanen,
Hennepin County Family Court Division; Cory D.
Gilmer; Brenda K. Dehmer, Carver County Family
Court Division; Michael Borowiak, Hennepin County
Family Court Division; John Doe I; John Doe II; and John
Annelise C. Rice, pro se.
David J. Lenhardt, Esq., Gries Lenhardt Michenfelder Allen, P.L.L.P., St. Michael, MN, on
behalf of Defendant Brent Roger Rice.
Beth A. Stack, Assistant Hennepin County Attorney, Hennepin County Attorney’s Office,
Minneapolis, MN, on behalf of Defendants Hennepin County et al.; Richard Witucki, Hennepin
County Family Court Division; and Jolene Lukanen, Hennepin County Family Court Division.
James R. Andreen, Esq., Erstad & Riemer, P.A., Minneapolis, MN, on behalf of Defendants
Carver County et al.; Carole Cole, Carver County Family Court Division; Nicole Mercil, Carver
County Family Court Division; and Sarah Kulesa, Carver County Family Court Division.
James T. Martin, Esq., Gislason Martin Varpness & Janes, PA, Edina, MN, on behalf of
Defendants Bethany Koch, Carver County Family Court Division.
Andrew Tweeten, Assistant Minnesota Attorney General, Minnesota Attorney General’s Office,
St. Paul, MN, on behalf of Defendants Jean Peterson, Hennepin County Family Court Division;
Susan Olson, Hennepin County Family Court Division; and Brenda K. Dehmer, Carver County
Family Court Division.
R. Daniel Rasmus, Esq., Hovland and Rasmus, PLLC, Edina, MN, on behalf of Defendant Judith
Hoy, Hennepin County Family Court Division.
Bryan R. Feldhaus, Esq., and Phillip A. Cole, Esq., Lommen Abdo, PA, Minneapolis, MN, on
behalf of Defendant Cory D. Gilmer.
Meaghan C. Bryan, Esq., Cousineau, Van Bergen, McNee & Malone, PA, Minnetonka, MN, on
behalf of Defendant Michael Borowiak, Hennepin County Family Court Division.
This matter is before the undersigned United States District Judge for a ruling on eight
Motions to Dismiss [Docket Nos. 13, 17, 38, 45, 57, 102, 110, 124] and one Motion to Dismiss /
Motion for Summary Judgment [Docket No. 94] brought on behalf of all Defendants in this case.
Also before the Court is Plaintiff Annelise C. Rice’s (“Annelise1”) Application to Proceed in
District Court without Prepaying Fees or Costs [Docket No. 54] (“IFP Application”). For the
reasons set forth below, the Defendants’ Motions are granted and Rice’s IFP Application is
denied as moot.
This 42 U.S.C. § 1983 action arose from the aftermath of the protracted and contentious
2004 marriage dissolution of Defendant Brent Roger Rice (“Brent”) and his ex-wife, Caroline
Rice (“Caroline”).2 Annelise, the youngest of Brent and Caroline’s five children, alleges that
custody and parenting time decisions made during the dissolution proceeding violated her
For individuals that share Rice as a last name, first names will be used.
Caroline is not a Defendant in this case.
constitutionally protected familial rights.
A. The Marriage Dissolution
Annelise’s parents began divorce proceedings in 2004 in Hennepin County, Minnesota.
Compl. [Docket No. 1] at 6; Rice v. Rice, 27-FA-292618 (Fourth Judicial District 2004). The
district court dissolved Brent and Caroline’s marriage on December 28, 2004, but reserved
several issues, including custody of the five minor children, for trial on December 6 and 7, 2005.
Rice v. Rice, A06–1648 (Minn. Ct. App. 2008); Stack Decl. [Docket No. 21] at 3–13. Annelise
was seven years old when the marriage was dissolved.
On January 4, 2005, Hennepin County Family Court Referee David Piper (“Referee
Piper”) ordered the Department of Court Services to perform a custody and parenting time
evaluation. Stack Decl. Ex. 1 [Docket No. 22]. Pursuant to that order, in April 2005, Defendant
Jean Peterson (“Peterson”), was appointed as Guardian ad Litem for the minor children. Stack
Decl. Ex. 2 [Docket No. 24] at 4.
On August 10, 2005, Hennepin County Family Court Evaluators Jolene Lukanen
(“Lukanen”) and Richard Witucki (“Witucki”) submitted their parenting time evaluation. Id.
The evaluation—derived from meetings with Brent, Caroline, each of the five children, and a
lengthy list of collateral contacts including teachers, doctors, and faith leaders—offered 13
custody and parenting time recommendations. Id. The evaluation was received into evidence
during the December 2005 custody trial.
After trial, in a March 2006 order, Referee Piper awarded Brent sole physical custody of
Annelise and two of her siblings, and ordered Brent and Caroline to share legal custody of these
three children. Stack Decl. Ex. 3 [Docket No. 26] (“Referee Piper Order”) at 19. Caroline was
awarded sole legal and physical custody of the two other children. Id.
Caroline appealed, arguing that Referee Piper abused his discretion in awarding Brent
sole physical custody over three of the children, including Annelise. Rice, A06–1648, at 1–2.
Caroline contended that it was clearly erroneous not to award her physical custody of all five of
the children when “she was clearly the primary parent and caregiver” and that it was “clearly
erroneous to split the children without considering their interrelationships with one another.” Id.
at 2–3. A unanimous Minnesota Court of Appeals disagreed and affirmed Referee Piper’s Order
in its entirety. Id. at 2.
B. Other Proceedings
The Complaint3 also refers to events that occurred after the dissolution proceeding,
including a juvenile protection proceeding and a criminal proceeding that commenced in October
2008 and June 2009, respectively. Compl. ¶¶ 12–17; In re Welfare of Children of Caroline Rice
& Brent Rice, No. 10–JV–08–645 (Minn. Dist. Ct.) ; State v. Rice, No. A12–0855, 2013 WL
4404231, at *1 (Minn. Ct. App. Aug. 13, 2013). A January 16, 2008 family court order
references an order for protection (“OFP”), which was later dismissed, that Caroline served
against Brent on behalf of Annelise. Bryan Aff. [Docket No. 46] Ex. 1. At that time, Defendant
Susan Olson (“Olson”) was appointed Guardian ad Litem to Annelise. Id.
On April 7, 2008, Hennepin Family Court Referee Tsippi Wray (“Referee Wray”) held a
hearing to address Olson’s recommendation that Caroline’s contact with Annelise be suspended
because Caroline’s behavior “continued to not be in the best interests of the minor children,
Shortly after filing the Complaint, Annelise filed a First and Second Addendum to her
Lawsuit [Docket Nos. 14, 15]. The Complaint and the two Addendums will be collectively
referred to as the “Complaint.”
specifically Annelise.” Bryan Aff. Ex. 2 at ¶ 2. Referee Wray directed that Caroline’s contact
with Annelise would be suspended outside of therapeutic sessions. Id. ¶ 3. Shortly thereafter,
Olson informed Referee Wray that Caroline “has ignored the oral order of this court and has
continued to see Annelise.” Id. ¶ 4. In a May 9, 2008 Order, Referee Wray stated that Caroline
was “in flagrant violation of the oral order of the court” and reaffirmed that Caroline’s contact
with Annelise was limited to therapeutic sessions. Id. ¶¶ 8, 13.
In October 2008, a Child in Need of Protection or Services petition alleged that Annelise
was in need of protection or services. Andreen Aff. Ex. 1 [Docket No. 115]. The petition was
litigated in Carver County, Minnesota district court, and on November 20, 2008, Carver County
District Court Judge Janet L. Barke Cain ordered Annelise to be placed in the custody of Carver
County Community Social Services (“CCCSS”). Id. ¶ 17. Sometime later, Brent was restored
custody of Annelise with protective supervision by CCCSS. Andreen Aff. Ex. 2 [Docket No.
116] ¶ 17. Additional orders issued in Carver County held that it was in the best interest and
safety of Annelise to remain in the custody of her father, Brent. See, e.g., Andreen Aff. Ex. 5
[Docket No. 119] ¶ 6.
On October 31, 2010, Annelise, then aged 12, ran away from home. State v. Rice, 2013
WL 4404231, at *1. On November 24, 2010, Caroline, after being apprehended while trying to
re-enter the United States from Canada, admitted that Annelise and another one of her children
were waiting for her in Michigan. Id. In an interview with Carver County detectives, Annelise
stated that “she had been hidden by a variety of people over the past 30 days, had met up with
[Caroline] in Canada, but had only spent one day with her when [Caroline] was arrested.” Id.
Caroline was charged with two counts of child deprivation, and one count of causing or
contributing to a child being a runaway. Id. Caroline proceeded to trial pro se, and was found
guilty by a jury of all three counts. Id. at *3. Later, the Court of Appeals vacated Caroline’s
conviction based upon evidence of Brent’s abuse that was excluded, use of an erroneous jury
instruction, and improper judicial intervention related to maintaining control of the trial. Id. at
*4–10. The case was not retried.
C. This Lawsuit
The Complaint seeks to have the federal courts review the custody and parenting
decisions made by Referees Piper and Wray. The Complaint also recites events of familial
discord that occurred in 2009 and beyond. Generally, Annelise alleges that many Defendants
“conspired and directly contributed to tortious interference with [Annelise’s] Mother-Child
Relationship.” Compl. ¶ 7. Annelise also broadly alleges that Defendants all conspired to
deprive her “access to the Courts, and intentionally inflicted emotional distress.” Id. Finally,
Annelise alleges that “Defendants took affirmative steps to place Plaintiff in the custody of her
abusive father, and to completely impair Plaintiff’s ability to find protection in the legal system.
Defendants knew that Plaintiff was being abused and were sufficiently willful, wanton, and
outrageous to constitute intentional infliction of emotional distress.” Id.
Annelise specifically alleges that each Defendant in some way aided the violation of her
constitutional rights. For example, Brent is alleged to have engaged in ex parte communications
with the court and to have financially harassed Caroline; Peterson’s Guardian ad Litem report
recommending that Brent and Caroline share custody of the five children is alleged to have
interfered with Annelise’s constitutional right to familial relationships with her siblings and
mother; and Defendants Brenda Dehmer (“Dehmer”), Carole Cole (“Cole”), and Nicole Mercil
(“Mercil”)—a Guardian ad Litem and two social workers for Carver County, Minnesota,
respectively— are alleged to have placed Annelise back in Brent’s care despite “clear evidence
of abuse and mistreatment” by Brent. Id. at ¶¶ 9, 10, 21. Annelise seeks damages in excess of
$200 million. Id. ¶¶ 38–39.
Each Defendant seeks to dismiss the Complaint in its entirety.
A. Standard of Review
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings “shall contain a short
and plain statement of the claim showing that the pleader is entitled to relief.” A pleading must
contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw a reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether
a complaint states a plausible claim for relief is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679. “But where
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to
relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)).
B. Statute of Limitations
The Defendants argue that Annelise’s claims are time-barred. The statute of limitations
for a § 1983 action is the same as that for personal injury torts in the state in which the action
arose. Wallace v. Kato, 549 U.S. 384, 387 (2007). “In Minnesota intentional personal injury
torts such as assault, battery, or intentional infliction of emotional distress are governed by a two
year statute of limitations period, see Minn. Stat. § 541.07(1), while a six year limitations period
applies to torts of negligence such as negligent hiring and retention. See Minn. Stat. § 541.05,
subd. 1(5).” Strandlund v. Hawley, 532 F.3d 741, 746 (8th Cir. 2008).4
With the exception of Brent’s alleged action, the acts that form Annelise’s Complaint last
occurred in 2009. Thus, the time to bring claims for intentional torts expired in 2011, and the
time for bringing negligence claims and claims arising under § 1983 expired not later than 2015.
However, Annelise was not yet 18-years old by the time the six-year limitations period ended.
“Under the minority tolling statute, Minn. Stat. § 541.15(a)(1), when a negligence action accrues
during a plaintiff’s infancy, the plaintiff must commence the action either within one year of
reaching the age of maturity or within the six-year period of limitation, whichever is later.”
D.M.S. v. Barber, 645 N.W.2d 383, 387 (Minn. 2002). Because Annelise’s 18th birthday was
May 4, 2015, these claims remained actionable until May 4, 2016. Because the Complaint was
filed on March 17, 2017, the claims against all Defendants except Brent are time-barred.5
Whether the two-year or six-year limitations period applies to § 1983 actions is
uncertain. See Hester v. Redwood Cty., 885 F. Supp. 2d 934, 944 (D. Minn. 2012) (“Whether
Minnesota’s two-year statute of limitations for intentional torts or general six-year statute of
limitations applies to § 1983 claims has been the source of inconsistent rulings.”). Such
uncertainty is immaterial here because the claims are time barred even if the six-year period
applies. The Court will assume for this Order that the six-year statute of limitations applies.
Annelise references the Child Victims Act, Minn. Stat. § 541.073, which amended the
statute of limitations applicable to actions for damages arising from sexual abuse. This statute is
inapplicable here because there is no allegation that Annelise was sexually abused.
C. Claims Against Brent Rice Fail Because he is a Private Actor
Annelise alleges that between 2005 and 2016, Brent tortiously interfered with Annelise’s
relationship with her mother, Caroline. Annelise appears to argue that Brent conspired with the
other Defendants to interfere with Annelise’s constitutionally protected liberty interest in
familial care and companionship. See K.D. v. Cty. of Crow Wing, 434 F.3d 1051, 1055 (8th Cir.
2006). For this claim to be viable against Brent, he must be a state actor for § 1983 purposes.
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 152 (1970) (noting that private parties can
be held liable under § 1983 only if the individual wilfully participates in joint activity with the
State or its agents).
In Youngblood v. Hy-Vee Food Stores, Inc., the Eighth Circuit affirmed dismissal of a
§ 1983 claim against a private individual on the ground that “a private party’s mere invocation of
state legal procedures does not constitute state action.” 266 F.3d 851, 855 (8th Cir. 2001). Here,
Annelise does not sufficiently allege that Brent was wilfully participating in joint activity with
the State or its agents. To the extent that Brent is alleged to have conspired with the Hennepin or
Carver County court systems and court-appointed professionals to deprive Annelise of her
protected familial interest, as Youngblood held, merely invoking state legal procedures is
insufficient state action for a private party to be liable under § 1983.
D. Other Grounds for Dismissal
Even if Annelise’s Complaint was timely, which it is not, it must be dismissed on the
following additional bases.
1. The Individual State Defendants are Entitled to Immunity
During the relevant time, social workers Carole Cole, Nicole Mercil, and Sarah Kulesa
(the “Social Worker Defendants”) worked for CCCSS and preformed work related to a child
protection investigation in 2008. See Andreen Aff. Ex. 4 [Docket No. 118]. Bethany Koch
(“Koch”) served as Caroline’s court-appointed attorney in the 2008 child protection proceeding.
Koch Aff. [Docket No. 97] ¶ 2. Jean Peterson, Susan Olson, and Brenda K. Dehmer (the “GAL
Defendants”) were appointed Guardian ad Litems. Tweeten Aff. [Docket No. 32] Exs. 3, 4;
Second Tweeten Aff. [Docket No. 106] Ex. 1. Judith Hoy (“Hoy”) is a clinical social worker
who performed reunification therapy with Annelise pursuant to court order. Hoy Decl. [Docket
No. 127] ¶¶ 1, 2. Jolene Lukanen and Richard Witucki, were appointed custody evaluators by
Referee Piper, and Michael Garelick was appointed by Referee Piper to be a custody evaluator
and mediator.6 Stack Decl. Ex. 2. Jolene Lukanen, Richard Witucki, and Michael Garelick will
collectively be referred henceforth as the “Evaluator Defendants.” Michael Borowich
(“Borowich”) performed therapy services as directed by the family court. Bryan Aff. Ex. 2;
Second Addendum at 2. The Social Worker Defendant, Koch, the GAL Defendants, Hoy, the
Evaluator Defendants, and Borowich will collectively be referred henceforth as the “Individual
State Defendants.” The Individual State Defendants argue that they are immune from suit.
“It is well settled that officials are entitled to absolute immunity from civil rights suits for
the performance of duties which are ‘integral parts of the judicial process’ as long as the judicial
function was granted immunity under common law at the time § 1983 was enacted.” Dornheim
v. Sholes, 430 F.3d 919, 925 (8th Cir. 2005) (quoting Briscoe v. LaHue, 460 U.S. 325, 335
(1983)). This grant of immunity has been extended to each position held by the Individual State
Michael Garelick’s (“Garelick”) status in this lawsuit is uncertain. Because the
allegations against Garelick do not differ in substance from the other Evaluator Defendants, the
claims against him will be considered here.
In Myers v. Morris, the Eighth Circuit determined that “the guardians, therapists, and the
[court appointed] attorney have absolute immunity for any damage claims based on the function
of testifying before the family court. We think the immunity extends beyond oral testimony to
providing their reports and recommendations to the family court.” 810 F.2d 1437, 1466 (8th Cir.
1987), cert. denied, 484 U.S. 828 (1987), abrogated on other grounds by Burns v. Reed, 500 U.S.
478 (1991) (citation omitted). In Myers, the Eighth Circuit noted that the individuals “were
appointed to fulfill quasi-judicial responsibilities under court direction” and that the court
“exercised its statutory authority to seek the assistance of experts” to aid making child custody
and placement decisions. Id. at 1467. The Eighth Circuit has consistently held that absolute
immunity may shield individuals appointed by the court to fulfill quasi-judicial responsibilities.
See, e.g., McCuen v. Polk Cty., Iowa, 893 F.2d 172, 174 (8th Cir. 1990) (holding that a Guardian
ad Litem’s absolute immunity extends to her duties of preparing reports and making
recommendations to family court); Morstad v. Dep’t of Corr. & Rehab., 147 F.3d 741, 744 (8th
Cir. 1998) (holding that a court-appointed psychiatrist “enjoyed absolute immunity for the
testimony and reports . . . submitted to the court”).
The question of whether immunity applies turns on the specific conduct at issue, and
whether the individuals were performing duties that were quasi-judicial in nature. Robinson v.
Freeze, 15 F.3d 107, 109 (8th Cir. 1994). Although Annelise alleges that the Individual State
Defendants conspired with others to deprive her of her constitutional rights, she does not allege
that the conspiracy was committed through acts that were outside the scope of their judicially
ordered functions. Annelise also does not cite specific evidence that was allegedly falsified or
recommendations that were allegedly corrupted by fabrication. Thus, this case is distinguishable
from the authority on which she relies. See Hardwick v. Cty. of Orange, 844 F.3d 1112,
1115–16 (9th Cir. 2017) (holding that absolute immunity was unavailable to social workers that
“fabricated evidence during an investigation or made false statements in a dependency petition
affidavit that they signed under penalty of perjury”). Rather, the Complaint reflects Annelise’s
rejection of the recommendations the Individual State Defendants made in state court, alleging
generalities such as “Defendants took affirmative steps to place Plaintiff in the custody of her
abusive father, and to completely impair Plaintiff’s ability to find protection in the legal system.”
Compl. ¶ 7. Since the Complaint lacks facts to support the conclusory allegations that the
Individual State Defendants were “acting outside the scope of his or her role within the judicial
process,” the Individual State Defendants are immune from suit. Dornheim, 430 F.3d at 925.
2. The County Defendants
Annelise’s claims against Hennepin and Carver Counties (collectively, the “County
Defendants”) fail because the Complaint does not allege that a policy, custom, or practice of the
municipality caused the injury. To state a plausible § 1983 action against a municipality, the suit
must “allege facts which would support the existence of an unconstitutional policy or custom.”
Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003). Because Annelise does
not identify a policy, custom, or practice that caused her alleged constitutional harms, the claims
against the County Defendants fail.
3. Attorney Gilmer
Annelise’s claims against Cory D. Gilmer (“Gilmer”)—Brent’s attorney in the
dissolution proceeding—fail because he is immune from suit for acts that were taken within the
scope of his employment. See McDonald v. Stewart, 182 N.W.2d 437, 440 (Minn. 1970) (“[A]n
attorney acting within the scope of his employment as attorney is immune from liability to third
persons for actions arising out of that professional relationship.”). Annelise conclusively alleges
that Gilmer knowingly participated with Brent in perpetuating a fraudulent or unlawful act,
which would negate Gilmer’s immunity from suit.7 See id. (noting that immunity may not be
invoked if attorney “knowingly participates with his client in the perpetration of a fraudulent or
unlawful act”). This is a mere legal conclusion that cannot defeat a motion to dismiss. Iqbal,
556 U.S. at 678.
Annelise’s Complaint suffers from many defects that require dismissal.8 Since this case
is being dismissed, Annelise’s IFP Application is denied as moot.
Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED
1. Defendants Susan Olson and Jean Peterson’s Motion to Dismiss [Docket No. 13] is
2. Defendants Hennepin County, Jolene Lukanen, and Richard Witucki’s Motion to
Dismiss [Docket No. 17] is GRANTED;
3. Defendant Brent Roger Rice’s Motion to Dismiss [Docket No. 38] is GRANTED;
4. Defendant Michael Borowiak’s Motion to Dismiss [Docket No. 45] is GRANTED;
Annelise alleges that Gilmer had a conflict of interest because he attended the same
high school with Caroline and “asked her on dates multiple times.” Mem. Opp’n [Docket No.
72] ¶ 7. This does not rise to a fraudulent or unlawful act.
Although this case is being dismissed for legal reasons, the turmoil and sadness to
Annelise’s life caused by her parents’ marital strain and conflict is clearly worthy of sympathy.
5. Defendant Cory D. Gilmer’s Motion to Dismiss [Docket No. 57] is GRANTED;
6. Defendant Bethany Koch’s Motion to Dismiss / Motion for Summary Judgment
[Docket No. 94] is GRANTED;
7. Defendant Brenda K. Dehmer’s Motion to Dismiss [Docket No. 102] is GRANTED;
8. Defendants Carver County, Carole Cole, Sarah Kulesa, and Nicole Mercil’s Motion to
Dismiss [Docket No. 110] is GRANTED;
9. Defendant Judith Hoy’s Motion to Dismiss [Docket No. 124] is GRANTED;
10. Defendant Michael Garelick is DISMISSED; and
11. Plaintiff Annelise C. Rice’s Application to Proceed in District Court without
Prepaying Fees of Costs [Docket No. 54] is DENIED as moot.
12. The Complaint [Docket No. 1] and Addendums [Docket Nos. 14, 15] are
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: September 19, 2017.
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