Scharbrough et al v. South Central Ohio Job and Family Services et al
OPINION and ORDER granting in part and denying in part 13 Defendants' Motion to Dismiss. Counts X and XI are dismissed as to all Defendants. Count IV is dismissed as to Defendants Evans and Reeves. Count VII and Count IX are dismissed as to Defendants Speakman and Sams. Signed by Chief Judge Algenon L. Marbley on 6/7/21. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
DUSTON SCHARBROUGH, et al.,
SOUTH CENTRAL OHIO JOB AND
FAMILY SERVICES, et al.,
Case No. 2:20-cv-4527
Chief Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura
OPINION & ORDER
This matter is before the Court on the Defendants’ Motion to Dismiss Plaintiff’s Complaint
(ECF No. 13). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN
PART Defendant’s Motion.
This case arises out of the interactions between Plaintiffs Duston and Cyndi Scharbrough
and the child protective services apparatus in Ross County, Ohio from 2017 up to the present. The
Plaintiffs allege that the South Central Ohio Job and Family Services (“SCOJFS”) agency in Ross
County, as well as many of its employees, has violated their rights under federal and state law as
it pursued investigations concerning their child, L.S. The Plaintiffs also bring claims against the
Ross County Sheriff’s Office (“RSCO”) and an Assistant Prosecuting Attorney for their
According to Plaintiffs, the troubling conduct began in February 2018. SCOJFS began an
investigation into the Plaintiffs after RSCO received a report that Duston was sexually abusing
K.S., one of his daughters from a previous relationship. (ECF No. 1 ¶ 48). In August 2017, the
couple had been investigated over domestic violence allegations. (Id. ¶ 37). Because Cyndi had
worked for SCOJFS through January 2017, SCOJFS recused itself from the investigation due to a
conflict of interest and the matter was handled by SCOJFS in Vinton County. (Id. ¶ 37). In
November 2017, the case against them was closed and the allegations were deemed
unsubstantiated by SCOJFS-Vinton County. 1 (Id. ¶ 41). On February 27, 2018, a caseworker from
SCOJFS contacted Duston about a new investigation. (Id. ¶ 54). Duston expressed concerns that
SCOJFS was now handling an investigation into the couple, given the recent recusal and April’s
previous employment with the agency. (Id. ¶ 54). His concerns were dismissed. (Id.).
Despite the couple’s opposition, SCOJFS proceeded with its investigation into the
Plaintiffs. The Plaintiffs provided SCOJFS employees with evidence of the family history and the
children’s recent behavioral issues. (Id. ¶ 60). They also raised concerns that the children’s mother
had a history of manipulating the children. (Id.). After the other children were removed from
custody by an ex parte order in May 2018, a SCOJFS caseworker informed Cyndi that neither
Assistant Prosecuting Attorney Ater nor the agency had any concerns with L.S. staying in the home
because Cyndi had the capacity to protect L.S. (Id. ¶ 77). SCOJFS conducts weekly meetings in
conjunction with Ms. Ater, at which they discuss all children services cases and make all case
decisions. (Id. ¶ 58). At least two of the new investigations into Plaintiffs immediately followed
these meetings. (Id. ¶¶ 153, 175)
After the other children were removed from Duston’s custody, SCOJFS’s investigation
continued. The agency interviewed the other children, but never contacted the Plaintiffs about the
ongoing investigation into the domestic violence allegations. (Id. ¶¶ 94–96). During the continued
Unless otherwise qualified with a geographic designation, all references to “SCOJFS” in this
Opinion and Order are referring to SCOJFS in Ross County.
investigation, the SCOJFS Defendants never visited their home, where they remained with L.S.,
or interviewed the Plaintiffs about the allegations. (Id. ¶ 105). As a result, the Defendants had no
direct knowledge or credible information about L.S.’s living conditions or circumstances as they
engaged in decision-making about how to proceed with her case. (Id. ¶ 105). The Plaintiffs also
allege that the SCOJFS Defendants had evidence and substantial reasons to believe that the sexual
abuse allegations made against Duston were false. (Id. ¶ 106). According to Plaintiffs, the SCOJFS
Defendants knew of the results of the SCOJFS-Vinton investigation, where the agency had
thoroughly investigated and found the same domestic violence allegations to be “unsubstantiated.”
(Id. ¶ 109).
Nonetheless, on September 5, 2018, SCOJFS employees showed up to Plaintiffs’ home
and removed L.S. by an ex parte order. (Id. ¶ 99). They were accompanied by two armed RSCO
employees. (Id. ¶ 102). Defendant Radcliff informed Cyndi that L.S. was being removed for her
safety because of the sexual abuse allegations against Duston. (Id. ¶ 100). Cyndi offered to enter
a voluntary safety plan with SCOJFS instead. (Id.). She also offered to leave the home with L.S.
and stay with friends or family, or to permit L.S. to stay with friends or family independently. (Id.).
Defendant Radcliff refused all of these options and refused to consider other suitable placements.
(Id.). As a result, L.S. was placed in foster care. (Id.) Just before the shelter care hearing on
September 6, 2018, the Plaintiffs received a copy of the affidavit used to establish probable cause,
which they allege contains false and misrepresented statements. (Id. ¶ 109). After the hearing,
Cyndi informed Defendant Radcliff about additional evidence to be considered. (Id. ¶ 111). During
this conversation, Radcliff informed Cyndi that the decision to pursue an ex parte removal order
was the result of a collective. (Id. ¶ 104). Radcliff also refused to consider Cyndi’s parents as a
placement option because they lived out-of-state. (Id. ¶ 111).
L.S.’s case continued on. A variety of caseworkers from SCOJFS cycled through the case.
The Plaintiffs continued to raise their concerns about the conflict of interest, unconsidered
exculpatory evidence, and other deficiencies they saw with the investigation. (Id. ¶¶ 114–15, 123).
SCOJFS and its agents dismissed their concerns each time. As the case remained open, the
Plaintiffs allege that SCOJFS workers began to threaten them. After Cyndi raised complaints again
in December 2018 to Defendant Perry, she alleges that Ms. Perry “proceeded to intimidate,
threaten, and coerce Cyndi into forfeiting the Plaintiffs’ rights to a trial.” (Id. ¶ 124). Ms. Perry
told her that going to trial would result in SCOJFS taking permanent custody of the children. (Id.).
She offered Cyndi unsupervised weekend visits with L.S. and to begin the Interstate Compact on
the Placement of Children (“ICPC”) process to place L.S. with Cyndi’s parents—if the Plaintiffs
stipulated to the dependency. (Id.). These promises and inducements were repeated before the
adjudication hearing that took place in January 2019. In fear that SCOJFS would retaliate if the
Plaintiffs did not accept, the Plaintiffs stipulated to the dependency of the other children. (Id. ¶
126). After the stipulation, Cyndi only received two-hour unsupervised visits and the ICPC process
to place L.S. with Cyndi’s parents was never initiated. (Id. ¶¶ 127, 130–31).
In May 2019, Cyndi was assigned a new caseworker to whom Cyndi again raised her
concerns about exculpatory evidence that SCOJFS was not investigating. (Id. ¶ 138). Cyndi also
informed the caseworker of her changed circumstances: she had leased an apartment and was living
separately from Duston. (Id. ¶ 139). SCOJFS employees advised Cyndi to file a motion to return
so L.S. would be returned to her custody. (Id.). They also told her that they would file a letter
recommending to the juvenile court that L.S. be returned to Cyndi. (Id.). Cyndi filed her motion
on May 14, 2019, and a hearing was set for July 23, 2019. (140). In the interim, SCOJFS returned
L.S. to Cyndi’s physical custody, approved L.S. to travel to Virginia with Cyndi, and approved
L.S. moving to Virginia. (Id. ¶ 141). On July 23, 2019, the motion was formally granted and the
case on L.S. was closed. (Id. ¶ 142).
L.S.’s case would not remain closed, however. In August 2019, Duston was indicted on
criminal charges from the sexual abuse allegations. (Id. ¶ 144). As part of his pre-trial release,
Duston was not to have contact with anyone under the age of 18, including his children; he has
complied with this condition. (Id.). In September 2019, the Plaintiffs got married and informed
their caseworker about the marriage. (Id. ¶ 149). After L.S. was returned to Cyndi’s custody, Cyndi
had continued to maintain multiple residences. (Id. ¶ 143). Cyndi maintains that SCOJFS is aware
of this fact, but insists that SCOJFS does not know when she stays at the Plaintiffs’ shared
apartment. (Id.). In November 2019, their caseworker questioned the Plaintiffs about L.S.,
including her whereabouts and school enrollment information. (Id. ¶ 151). The Plaintiffs refused
to provide information beyond the fact that L.S. did not live with Duston or have any contact with
him. (Id.). Plaintiffs also informed SCOJFS that L.S. lived outside the jurisdiction of the Juvenile
Court and SCOJFS. (Id.).
Two days later, SCOJFS employees came to Plaintiffs’ shared apartment and informed
them that another child services case against Cyndi had been opened on the grounds that L.S. was
living with and having contact with Duston. (Id. ¶ 153). The Plaintiffs had already denied this
allegation and had moved L.S. out of the jurisdiction in summer 2019, with SCOJFS’s approval.
The Plaintiffs maintained that L.S. did not live with or see Duston, and that she lived outside the
jurisdiction of SCOJFS. (Id. ¶ 154). The Plaintiffs accused SCOJFS of harassing them by opening
investigations against them, with no new allegations or evidence. (Id.). A search of the apartment
turned up no indication that L.S. had been there. (Id. ¶ 155). After the SCOJFS Defendants left the
Plaintiffs’ apartment, Cyndi found out that they had called her mother in Virginia and sought
information about L.S. (Id. ¶ 157). Cyndi’s mother did not provide any information. (Id.). SCOJFS
employees denied calling Cyndi’s mother. (Id. ¶ 158).
In April 2020, the Plaintiffs found that SCOJFS had opened another sexual abuse
investigation into Duston in January 2019. (Id. ¶ 161). Duston contacted SCOJFS, who would not
tell him the substance of the allegation against him. (Id. ¶ 162). He was informed by Defendant
Flick that the investigation had been completed and the allegation had been “substantiated.” (Id.).
Duston requested a formal letter about the disposition of this investigation. (Id. ¶ 163). Duston
never received anything in writing. (Id.). He requested an appeal of the disposition, but no one at
SCOJFS has contacted him about this request. (Id.).
In July 2020, Cyndi was at the Plaintiffs’ shared apartment ahead of Duston’s scheduled
trial because she had been subpoenaed. (Id. ¶¶ 173–74). On July 16, 2020, SCOJFS opened yet
another children service case against Cyndi. (Id. ¶ 175). A new caseworker left a business card and
letter for Cyndi, tucked in the door of Plaintiffs’ shared apartment, which informed Cyndi that she
had an appointment for 3:00 p.m. on July 21, 2020 to speak with him regarding L.S. (Id. ¶ 176).
The letter warned Cyndi that if she did not attend the appointment, court action could be pursued.
(Id.). The next day, Cyndi called her new caseworker, who informed her that the investigation had
been opened on the grounds that L.S. was living with and having contact with Duston. (Id. ¶ 177).
Cyndi again refused to provide information about L.S.’s whereabouts, beyond the fact that she was
outside of SCOJFS’s jurisdiction and has not had any contact with Duston. (Id.). Cyndi also
informed the caseworker that she refused to meet with him or anyone else from SCOJFS. (Id.).
When SCOJFS Defendants arrived at the Plaintiffs’ shared apartment, Duston was present. (Id. ¶
178). After another search, SCOJFS Defendants found no evidence that L.S. had been in the
apartment. (Id. ¶ 179).
Throughout this time, the Plaintiffs have also filed formal complaints with SCOJFS, in
addition to lodging their oral complaints with SCOJFS and its employees. A few weeks after the
removal of his other children, Duston received a disposition letter from SCOJFS finding that the
sexual abuse allegations against him had been substantiated. (Id. ¶ 80). Duston pursued his appeal
rights with SCOJFS to raise his concerns about the conflicts of interest, SCOJFS’s investigation,
and SCOJFS’s continued refusal to conduct a sufficient investigation. (Id. ¶¶ 82, 116–17, 119–20).
Duston participated in an appeal hearing on October 16, 2018 before five unknown SCOJFS
employees, after which he received a letter from SCOJFS that the substantiated determination of
sexual abuse would be upheld. (Id. ¶ 121). The Plaintiffs submitted formal complaints to SCOJFS
in July 2018, May 2019, and July 2020. (Id. ¶¶ 87, 132, 180). The Plaintiffs also submitted two
complaints to the Ohio Department of Jobs and Family Services, Office of Families and Children
(“ODJFS-OFC”). (Id. ¶¶ 89, 132). Unlike SCOJFS, ODJFS-OFC found merit to the Plaintiffs’
complaints and issued a report finding that it was a conflict of interest for SCOJFS to handle the
cases, that the initial risk and safety assessments were insufficient, that it could not be determined
what new information was received by SCOJFS to necessitate L.S.’s immediate removal, and that
the investigation activities were insufficient and non-compliant. (Id. ¶ 148).
The Plaintiffs filed a complaint in federal court on September 1, 2020, pursuing damages
for the removal of L.S. and continued investigations by SCOJFS under the federal Constitution
and Ohio law. (ECF No. 1). The Plaintiffs named SCOJFS and RSCO as Defendants and also
brought claims against many individual SCOJFS and RSCO employees in their individual
capacities. The Plaintiffs sued several supervisory employees at SCOJFS, including Jody Walker,
the Director, Melissa Flick, a Protective Services Manager, and Marjorie Evans and Karla Lindsey,
both of whom are Protective Services Supervisors. (Id. ¶¶ 9–13). The Plaintiffs also named as
Defendants the various caseworkers who were assigned to their case, including Jennifer Snow,
Elizabeth Radcliff, Jennifer Mills, a John Doe 1, Tracey Perry, Lindsey Sparks, Breanna Schreck,
Theresa Reeves, and Colton Lightle. (Id. ¶¶ 14–21). The Plaintiffs also brought claims against
Defendants Ryan Speakman and Timothy Sams, who are law enforcement officers with RSCO, as
well as Jennifer Ater, an Assistant Prosecuting Attorney. (Id. ¶¶ 23–26). The Plaintiffs seek to
recover damages for violations of the First, Fourth, and Fourteenth Amendments, as well as several
Ohio tort law provisions. In November 2020, the Defendants submitted a collective motion to
dismiss the Plaintiffs’ complaint. (ECF No. 13). The Plaintiffs filed a response in opposition to the
Defendants’ motion. (ECF No. 22). The Defendants filed a reply in support of their motion to
dismiss (ECF No. 25), at which time the motion became ripe for this Court’s review.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint for a
failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a
motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are sufficient to raise a
right to relief above the speculative level and to state a claim to relief that is plausible on its face.”
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)) (internal quotations omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). Although the court “must accept all well-pleaded factual allegations in
the complaint as true,” the court “need not accept as true a legal conclusion couched as a factual
allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotations omitted). In short, the
plaintiff's complaint “must be enough to raise a right to relief above the speculative level.”
When interpreting questions of state law, a “federal court must apply state law in
accordance with the controlling decisions of the highest court of the state.” Meridian Mut. Ins. Co.
v. Kellman, 197 F.3d 1178, 1181 (6th Cir. 1999) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64
(1938)). Where the “highest court has not addressed the issue, the federal court must attempt to
ascertain how that court would rule if it were faced with the issue,” using “the decisional law of
the state’s lower courts, other federal courts construing state law, restatements of law, law review
commentaries, and other jurisdictions on the ‘majority’ rule in making this determination.” Id.
(citing Grantham & Mann v. American Safety Prods., 831 F.2d 596, 608 (6th Cir. 1987)). At the
same time, a “federal court should not disregard the decisions of intermediate appellate state courts
unless it is convinced by other persuasive data that the highest court of the state would decide
otherwise.” Id. (citing Comm’r v. Estate of Bosch, 387 U.S. 456, 465 (1967)).
The Court must liberally construe a pro se plaintiff’s pleadings. Pro se complaints are held
to “less stringent standards than formal pleadings drafted by lawyers.” West v. Adecco Emp.
Agency, 124 F. App’x 991, 992 (6th Cir. 2005) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). The Supreme Court, however, has “never suggested procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”
Id. (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)). A pro se litigant “must conduct
enough investigation to draft pleadings that meet the requirements of the federal rules.” Id.
(quoting Burnett v. Grattan, 468 U.S. 42, 50 (1984)).
LAW & ANALYSIS
The Defendants have moved to dismiss each of the eighteen counts of Plaintiffs’ complaint.
They argue that this Court cannot maintain jurisdiction over Plaintiffs’ Fourth and Fourteenth
Amendment claims because of the Rooker-Feldman doctrine. Defendants then argue that various
forms of immunity preclude Plaintiffs’ claims against the Defendants. Finally, Defendants argue
that Plaintiffs have failed to state a claim under Rule 12(b)(6) for several of the claims in the
Complaint. This Court will address these arguments in turn.
Rooker-Feldman Does Not Bar Jurisdiction
The Rooker-Feldman doctrine holds that lower federal courts should not sit in direct review
of state court decisions, unless otherwise authorized by Congress to do so, but that they may assert
jurisdiction over independent federal claims. See McCormick v. Braverman, 451 F.3d 382, 393
(6th Cir. 2006). This doctrine is designed to prevent federal courts from encroaching into the
business of state judicial systems. The Supreme Court clarified in Exxon Mobil Corp. v. Saudi
Basic Industries Corp. that the Rooker-Feldman doctrine does not prohibit “a district court from
exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a
matter previously litigated in state court,” but rather “is confined to cases of the kind from which
the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court proceedings commenced.” 544 U.S.
280, 284 (2005). The Sixth Circuit has characterized Rooker-Feldman as applying only to an
“exceedingly narrow set of cases.” VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 400
(6th Cir. 2020); see also Stephens v. Hamilton Cnty. Jobs & Family Servs., 46 F. Supp. 3d 754,
758 (S.D. Ohio 2014). Critics of Rooker-Feldman have noted that the doctrine has spiraled beyond
its original bounds, “interfering with efforts to vindicate federal rights.” VanderKodde, 951 F.3d
at 405 (Sutton, J., concurring). In determining whether Rooker-Feldman will bar federal court
jurisdiction, district courts must examine whether the source of a plaintiff’s claims are state court
judgments or another independent source. See McCormick, 451 F.3d 382 at 392–93. The
Defendants argue that Rooker-Feldman bars this Court from exercising jurisdiction over both
Plaintiffs’ Fourth and Fourteenth Amendment claims.
Fourteenth Amendment Claims
The Defendants contend that Rooker-Feldman will bar this Court from exercising
jurisdiction over Plaintiffs’ procedural and substantive due process claims relating to the removal
of their minor child. The Defendants emphasize that the removal of L.S. from the custody of her
parents was done pursuant to an ex parte court order. (ECF No. 13 at 8). Because the RookerFeldman doctrine does not allow federal courts to sit in review of state court judgments, the
Defendants argue that this court lacks jurisdiction. (Id.). The Defendants also note that it was the
decision of the state court, not the SCOJFS employees, to remove L.S. from the home. (Id. at 9).
In response, the Plaintiffs also argue that they are challenging misconduct occurring prior to the
initiation of judicial proceedings, after the dismissal of the proceedings, and conduct that was not
sanctioned by a court or otherwise related to the ongoing judicial proceedings. (ECF No. 22 at 14).
In their reply, the Defendants emphasize that the removal was done pursuant to the Juvenile Court
order and thus Rooker-Feldman must bar jurisdiction. (ECF No. 25 at 3).
According to the Plaintiffs, the SCOJFS Defendants sought an ex parte removal order for
L.S. without visiting their home or notifying them about any concerns related to L.S., such that the
decision was not based on any knowledge or credible information about the child’s circumstances.
(ECF No. 1 ¶ 105). Plaintiffs further allege that SCOJFS employees possessed contradictory
evidence about sexual abuse allegations related to K.S., yet did not thoroughly investigate the
dueling assertions before seeking the ex parte removal order for L.S. (Id. ¶¶ 106–08). When the
Scharbroughs received a copy of the affidavit supporting probable cause, they noticed that it relied
on identical allegations that led to an earlier 2017 investigation—allegations that SCOJFS-Vinton
“had thoroughly investigated and unsubstantiated.” (Id. ¶ 109). The Plaintiffs allege that the
SCOJFS Defendants and Ater knew of the previous investigation by SCOJFS-Vinton and the
results, but still relied on those allegations in seeking a court order to remove L.S. (Id.). Based on
these allegations, the Scharbroughs assert procedural and substantive due process claims, alleging
violations of the Fourteenth Amendment.
The mere fact that a juvenile court order was issued will not preclude federal court
jurisdiction if the claims do not stem from that order. In Kovacic v. Cuyahoga County Department
of Children & Family Services, 606 F.3d 301 (6th Cir. 2010), the Sixth Circuit held that RookerFeldman does not bar claims where a plaintiff is not seeking review or reversal of a juvenile court
decision but rather where their suit focuses on the conduct of defendants “that led up to” the
juvenile court’s order. 606 F.3d at 310. Local child service authorities had been investigating the
Kovacic family, who had two minor children, during a tense custody dispute. Id. at 303–04. When
the children’s father reported that abuse was escalating and putting the children at “imminent risk”
of physical harm, social workers took custody of the children pursuant to a standing order that
allowed removal of children “without a warrant or other prior judicial approval in situations where
Family Services reasonably believed the children faced ‘imminent risk’ of harm.” Id. at 304. Under
the order, a county prosecuting attorney ensured that removal met all legal requirements and a
“probable cause for removal” hearing was to be held before a juvenile court magistrate within 72
hours of removal. Id. at 304–05. After seeking a valid order, social workers, accompanied by
police, forcibly entered the home and seized the children. Id. at 305. The children spent ten months
in foster care following their removal. Id. at 305–06.
In reaching its decision in Kovacic, the Sixth Circuit looked to a decision by the Seventh
Circuit wherein the plaintiff alleged that the people involved in deciding to remove her from the
custody of her parents “violated her constitutional rights, independently of the state court
decision.” Id. (quoting Brokaw v. Weaver, 305 F.3d 660, 665 (7th Cir. 2002)). The Sixth Circuit
found that Rooker-Feldman would not bar jurisdiction over the Kovacic plaintiffs’ suit, which
sought compensatory damage stemming from Family Services’ alleged failure to undertake an
independent review prior to removal and triggering juvenile court proceedings based on
“uncorroborated and unverified information from third parties.” Id. at 310.
Following Kovacic, courts have exercised jurisdiction over cases in which plaintiffs
challenge the conduct of government actors, including caseworkers, leading up to a juvenile court
decision. See, e.g., Arsan v. Keller, 784 F. App’x 900, 906–07 (6th Cir. 2019) (noting that district
court resolved defendants’ motions for judgment on pleadings stemming from caseworkers’
removal of minor children and allowed Fourth Amendment claim to proceed to trial against one
caseworker); Godboldo v. County of Wayne, 686 F. App’x 335, 342–43 (6th Cir. 2017) (noting
future challenges to county’s policy of allowing probation officers to authorize child removal
orders should not be foreclosed from constitutional review); Stephens, 46 F. Supp. at 759 (finding
no Rooker-Feldman bar where plaintiff challenged case worker’s reliance on false information to
procure a magistrate’s permission to seize children).
The source of the Scharbroughs’ injuries, as alleged, are not the order itself but the conduct
leading up to the issuance of the order. They do not challenge the court that issued the ex parte
removal order. Rather, their Fourteenth Amendment challenges stem from conduct by other
government officials that led to the issuance of this order. Plaintiffs allege that the Defendants
removed L.S. from their custody by seeking an ex parte order without any knowledge or credible
information concerning L.S.’s welfare. The Defendants did not speak to the Plaintiffs about any
concerns, nor did they ever visit the residence prior to seeking a court order to investigate whether
L.S. was safe. The Plaintiffs further allege that the Defendants actually possessed evidence that
contradicted the allegations L.S.’s removal was premised on, yet did not attempt to reconcile the
conflicting information. According to Plaintiffs, the SCOJFS Defendants were also aware that
these accusations had been investigated and unsubstantiated by a SCOJFS entity in another county.
Through their Fourteenth Amendment claims, the Plaintiffs aim to challenge the
Defendants’ decision to proceed with seeking a court order to remove L.S., without sufficient
investigation and without probable cause. The source of the Scharbroughs’ injuries is not the court
order then but the prelude to it. Indeed, it is unlikely the Juvenile Court would have issued the ex
parte order of removal if the Defendants had not sought it, despite an alleged lack of credible
information. Accordingly, Rooker-Feldman does not apply as to their Fourteenth Amendment
claims relating to the actions culminating in the ex parte order.
Fourth Amendment Claims
It is settled law that social workers must comply with the Fourth Amendment. In Kovacic,
the Sixth Circuit found that the Fourth Amendment warrant requirement, as well as its exceptions,
apply to the removal of children from their homes by social workers. 724 F.3d at 699. The Sixth
Circuit has also explained that the removal of a child from her custodial parents’ home is
considered a seizure under the Fourth Amendment, which will only be constitutionally reasonable
if done pursuant to a court order, supported by probable cause, or is otherwise justified by exigent
circumstances. See Krantz v. City of Toledo Police Dep’t, 197 F. App’x 446, 453 n.5 (6th Cir.
2006). The mere issuance of a court order, however, does not instantly trigger Rooker-Feldman.
The Sixth Circuit has noted that Rooker-Feldman applies “only when a state court renders a
judgment—when the court ‘investigates, declares, and enforces liabilities’ based on application of
law to fact.” VanderKodde, 951 F.3d at 402 (quoting Van Hoven v. Buckles & Buckles, P.L.C.,
947 F.3d 889, 892 (6th Cir. 2020)). The Sixth Circuit has also reiterated that Rooker-Feldman does
not apply where a plaintiff’s injuries stem from a defendant’s conduct, such as when a plaintiff
challenged a defendant who filed a false affidavit in a court proceeding, rather than a court order.
See id. at 403 (discussing Todd v. Weltman, Weinberg & Reis Co., 434 F.3d 432, 437 (6th Cir.
2006)). Where plaintiffs have challenged the conduct of defendants that had ultimately led to the
issuance of a court order, such as when debt collectors unlawfully utilized state court proceedings
to collect amounts they were not entitled to collect, Rooker-Feldman did not bar federal court
jurisdiction. See VanderKodde, 951 F.3d at 403.
The Defendants invoke Rooker-Feldman because a court order was issued for the removal
of L.S. The Defendants argue that since the entry into Plaintiffs’ home and the removal of L.S.
was done pursuant to an ex parte order of the Juvenile Court, any claims arising from that entry is
“in fact a challenge to the judgment itself” and this Court is barred from maintaining jurisdiction.
(ECF No. 13 at 8 (quoting McCormick, 451 F.3d at 394)). In response, the Plaintiffs argue that
they are challenging the Defendants’ actions, not the ex parte removal order issued by the Juvenile
Court. (ECF No. 22 at 13). Specifically, the Plaintiffs allege that Defendants entered their home
and removed their minor child without a signed court order or warrant, in the absence of exigent
circumstances. (Id.). In their reply, the Defendants emphasize that the Plaintiffs’ claims stem from
L.S.’s removal, which was done pursuant to a court order and so Rooker-Feldman must bar review.
(ECF No. 25 at 2). 2 Defendants also dispute the relevance of the cases relied upon by Plaintiffs,
arguing that they are factually distinguishable from the facts alleged here. (Id. at 2–3). Finally, the
The Defendants note that the Scharbroughs’ allegations that the removal was executed only with
verbal authorization was not pled in their Complaint, and, even if it had been, Ohio law
contemplates verbal authorization for an ex parte order. (ECF No. 13 at 1–2). This Court will not
consider the Scharbroughs’ allegation, raised for the first time in response to the Motion to
Dismiss, as it was not asserted in the Complaint.
Defendants note that the claimed injuries—unexpected legal costs and expenses—and the request
for injunctive relief both support their argument that Plaintiffs are “effectively” challenging the
state court’s underlying findings as to L.S. (Id. at 3).
In their Complaint, the Scharbroughs allege that employees from SCOJFS and RSCO
arrived at their home on September 5, 2018 and removed L.S., without presenting a warrant or any
other court documents. (ECF No. 1 ¶¶ 99–101). They further allege that there were no exigent
circumstances or immediate danger of harm at the time L.S. was removed. (Id.). Based on these
allegations, the Scharbroughs asserted claims of warrantless entry and unlawful seizure in violation
of the Fourth Amendment. In turn, the Defendants have filed a certified copy of the Juvenile
Court’s order granting temporary custody of L.S. to SCOJFS on September 5, 2018. (ECF No. 151). 3 This order was issued under O.R.C. § 2151.33, which permits the juvenile court to make “any
temporary disposition of any child that it considers necessary to protect the best interest of the
child.” This section also permits the granting of an ex parte order when a juvenile court finds that
the best interest and welfare of the child require immediate issuance of an order. See O.R.C.
§ 2151.33. The order was signed by the Juvenile Court judge and instructs that the order “shall be
executed by Law Enforcement having jurisdiction over the residence where children are located.”
(ECF No. 15-1).
As emphasized by the Sixth Circuit, Rooker-Feldman will act as a jurisdictional bar in an
exceedingly narrow set of cases. See VanderKodde, 951 F.3d at 400. The Sixth Circuit has found
While this Court’s primary focus in assessing a Rule 12(b)(6) motion will be the allegations in
the complaint, this Court may consider exhibits attached to a Rule 12(b)(6) motion “so long as
they are referred to in the Complaint and are central to the claims contained therein.” Bassett v.
Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). The court order attached as by
Defendants as Exhibit A is central to the Plaintiffs’ allegations concerning the entry and removal
and so this court may consider it without converting the Defendants’ motion into a motion for
partial summary judgment.
that Rooker-Feldman barred a parent suing a juvenile court judge over the child removal order
entered against him. See Brent v. Wayne County Department of Human Services, 901 F.3d 656,
674–75 (6th Cir. 2018); see also Cunningham v. Dep’t of Children’s Servs., 2021 WL 118413, at
*3 (6th Cir. Jan. 13, 2021) (finding that Rooker-Feldman barred suit against judge who issued ex
parte order). The Plaintiffs have not filed suit against the judge who issued the order, but against
the SCOJFS Defendants whose conduct led up to the issuance of that order. The Plaintiffs also
allege that some Defendants knowingly filed a false affidavit of probable cause in violation of the
Fourth Amendment and pursued the ex parte order without sufficient justification that L.S.’s safety
was in jeopardy. They also challenge the execution of the ex parte order by SCOJFS and RSCO
Rooker-Feldman narrowly bars “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at 284.
Rooker-Feldman does not apply “to federal lawsuits presenting similar issues to those decided in
a state court case or even to cases that present exactly the same, and thus the most inextricably
intertwined, issues.” See VanderKodde, 951 F.3d at 406 (Sutton, J., concurring) (citing Exxon
Mobil, 544 U.S. at 293). The Sixth Circuit recently held in a child protective services case that
Rooker-Feldman did not deprive court of jurisdiction over claims against defendants “based on
their conduct leading up to the issuance of the ex parte order and executing that order.”
Cunningham, 2021 WL 118413, at *4. This Court is thus not deprived of jurisdiction over
Plaintiffs’ claims by operation of the Rooker-Feldman doctrine.
Defendants’ Immunity from Suit
The Defendants assert that several doctrines shield them from liability from suit. They
invoke four categories of immunity: absolute immunity, absolute quasi-judicial immunity,
qualified immunity, and statutory immunity. Each of these doctrines will operate to shield a state
actor from civil liability for actions taken when she is performing the functions of her office, but
the doctrines differ in scope. Absolute immunity completely bars an official from civil suits;
typically, judges and prosecutors enjoy the benefits of absolute immunity when acting in their
judicial or prosecutorial capacities. See, e.g., See Holloway v. Brush, 220 F.3d 767, 774 (6th Cir.
2000). This doctrine will bar suit even if the actions at issue would otherwise be unconstitutional:
it is absolute, so long as the individual is performing judicial or prosecutorial functions of her
judicial or prosecutorial office. Such immunity is bestowed on these individuals to ensure they
carry out the duties of their office vigorously, without fear of lawsuits. See Imbler v. Pachtman,
424 U.S. 409, 427 (1976). Absolute quasi-judicial immunity has also been recognized for
individuals who are not judicial officers themselves, but who act as legal advocates by initiating
court actions or making recommendations to a court, or who carry out the missives of the court.
Id. By contrast, qualified immunity will also shield government officials from suit, but only insofar
“as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Finally,
there is statutory immunity, in which some states confer immunity from suit on public officials by
statute. Statutory immunity can be either absolute or qualified.
The Defendants first claim that absolute immunity requires the dismissal of many of
Plaintiffs’ claims. Specifically, they argue that absolute quasi-judicial immunity bars Plaintiffs’
claims against the SCOJFS and RSCO Defendants under the First, Fourth, and Fourteenth
Amendments. They also argue that common law absolute immunity shields these same Defendants
from all of Plaintiffs’ state law claims. As to Defendant Ater, she asserts that she is entitled to
absolute prosecutorial immunity for all claims against her. Second, the Defendants claim that they
are entitled to qualified immunity for all claims related to the entry of the home and seizure of L.S.
Third, the municipal defendants, SCOJFS and RSCO, assert that they are entitled to statutory
immunity under Ohio law as to Plaintiffs’ state law claims, as do the individual Defendants. This
Court will address each type of claimed immunity in turn.
Absolute immunity fully shields an official from a § 1983 damages suit when properly
invoked. This doctrine wholly shields judges, prosecutors, and other officials from civil suits on
claims arising out of their performance of their official functions. See Holloway, 220 F.3d at 774.
The Sixth Circuit has noted that officials seeking the “ironclad protection” of absolute immunity
bear the burden of showing that qualified immunity is insufficient. Stockdale v. Helper, 979 F.3d
498, 502 (6th Cir. 2020) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). As a result,
absolute immunity is to be granted only “sparing[ly].” Id. (quoting Buckley, 509 U.S. at 269). At
this stage of litigation, this Court “must construe the complaint in the light most favorable to the
plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can
prove no set of facts in support of his claims that would entitle him to relief.” Bright v. Gallia
Cnty., 753 F.3d 639, 648 (6th Cir. 2014) (quoting Barnes v. Winchell, 105 F.3d 1111, 1114 (6th
Cir. 1997)). With this guidance in mind, this Court will now assess the Defendants’ arguments
pertaining to absolute immunity.
SCOJFS Defendants & Absolute Immunity
The SCOJFS Defendants assert that they are absolutely immune from suit by virtue of their
roles as caseworkers. Sixth Circuit jurisprudence extends absolute immunity to social workers in
limited circumstances where their conduct is “intimately associated with the judicial phase of the
criminal process.” Pittman v. Cuyahoga Dep’t of Children & Family Servs., 640 F.3d 716, 724
(6th Cir. 2011) (citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). In Maternal Grandmother
v. Hamilton County Department of Job and Family Services, 154 N.E.3d 225 (Ohio Ct. App.
2020), the Court of Appeals of Ohio adopted the Sixth Circuit’s reasoning in Pittman and extended
absolute immunity to caseworkers involved in legal proceedings. 4
Federal Constitutional Claims
The SCOJFS Defendants claim absolute immunity to Plaintiffs’ federal constitutional
claims. Absolute immunity is only available, however, when caseworkers are acting in their
capacity as legal advocates, such as when initiating court actions, making recommendations to a
court, or otherwise testifying under oath. Holloway, 220 F.3d at 774. Like prosecutors,
caseworkers are not entitled to absolute immunity when they are performing administrative,
investigative, or other functions. Id. at 775. The Sixth Circuit has held, “no matter how undesirable
the results,” that caseworkers may receive absolute immunity even when they make intentional
misrepresentations to the court or in an affidavit. Pittman, 640 F.3d at 725–26. Caseworkers will
not be shielded by absolute immunity for conduct unrelated to their roles as advocates before the
juvenile court, which could include misrepresentations while participating in agency decisions,
improperly investigating potential caregivers, and making misrepresentations to interested parties
in dependency proceedings. Pittman, 640 F.3d at 726.
The decision of the Court of Appeals of Ohio has been accepted by the Supreme Court of Ohio
for review. See 150 N.E.3d 966 (Ohio 2020). Oral argument is set for April 28, 2021.
The SCOJFS Defendants have asserted absolute immunity for Plaintiffs’ claims under the
First, Fourth, and Fourteenth Amendments. The SCOJFS Defendants argue that they are entitled
to absolute immunity for their participation in the juvenile court proceeding, including against
Plaintiffs’ claims that they misrepresented facts in affidavits and failed to investigate fully the
allegations contained in those affidavits. (ECF No. 13 at 10). The Defendants rely on Pittman to
support their claims of absolute immunity. (Id.). In turn, the Plaintiffs argue that the SCOJFS
Defendants were not performing advocacy functions but rather acted in administrative and
investigative capacities. (ECF No. 22 at 15). In reply, the Defendants emphasize the Sixth Circuit’s
analysis and holding in Pittman, which granted absolute immunity to caseworkers who filed an
affidavit supporting a juvenile abuse petition. (ECF No. 25 at 4).
In their Complaint, the Scharbroughs have pled numerous allegations related to the
SCOJFS employees’ conduct that is wholly removed from the courtroom. The Scharbroughs allege
that the SCOJFS employees possessed exculpatory leads as to the sexual abuse and domestic
violence allegations, but refused to investigate them. (ECF No. 1 ¶¶ 59–60, 138). After allowing
L.S. to continue to reside with the Plaintiffs after the removal of the other children on the grounds
that she was safe, the SCOJFS employees then opened new cases on information that they already
possessed when they allowed L.S. to remain. (Id. ¶ 77). The Plaintiffs allege that the SCOJFS
Defendants never visited their home or interviewed the Plaintiffs when making decisions about
L.S.’s case. (Id. ¶ 105). As a result, the Defendants had no knowledge or credible information
about L.S.’s living conditions or circumstances as they engaged in decision-making about how to
proceed with the investigation. (Id.).
When SCOJFS employees helped execute the ex parte removal of L.S., they denied
Cyndi’s attempts to enter a voluntary safety plan or to place L.S. with friends or family, away from
Duston. (Id. ¶ 100). Instead, L.S. was placed in foster care. As L.S. remained in the system, the
Plaintiffs contend that the SCOJFS Defendants continued to intimidate, threaten, and coerce them
into stipulating to a dependency for the other children, rather than proceed to a trial. (Id. ¶ 124).
Defendant Perry also used L.S. as an inducement to enter the stipulation, promising Cyndi
unsupervised weekend visits and an initiation of the process to place L.S. out-of-state with her
grandparents. (Id.). In fear that SCOJFS would retaliate if the Plaintiffs did not accept, the
Plaintiffs stipulated to the dependency of the other children. (Id. ¶ 126). After the stipulation, Cyndi
only received two-hour unsupervised visits and the ICPC process to place L.S. with Cyndi’s
parents was never initiated. (Id. ¶¶ 127, 130–31).
Once Cyndi informed the Defendants that she was residing separately from Duston, the
Defendants allowed L.S. to be returned to her custody without a court order. (Id. ¶ 139). The
Defendants also promised her that they would file a letter supporting a motion to return that Cyndi
later filed with the juvenile court. (Id.). The Defendants also allowed Cyndi to take L.S. out-ofstate, both for a visit and to reside permanently. (Id. ¶ 141). After L.S.’s case was closed, the
Defendants then opened new cases against Cyndi on the grounds that L.S. was residing in the
shared apartment and seeing Duston, despite a lack of evidence to support this allegation. (Id.).
Plaintiffs repeatedly told SCOJFS employees that L.S. did not see Duston and actually resided
outside of SCOJFS’s jurisdiction. (Id. ¶ 151). Nonetheless, SCOJFS continued to open cases
against Cyndi. (Id. ¶¶ 151, 175) Multiple searches of the apartment for signs of L.S. by the SCOJFS
Defendants have turned up no evidence. (Id. ¶¶ 154, 179)
Throughout this time, the Plaintiffs also submitted numerous complaints about the conflicts
of interest and deficient investigative techniques, all of which SCOJFS found lacked merit. (Id. ¶¶
87–90, 114–15, 132–33, 180). The Plaintiffs had forwarded their complaints to the state agency,
ODFJS-OFC, whose investigation of Plaintiffs’ complaints reached a different outcome. ODJFSOFC found that the Plaintiffs’ complaints did have merit. (Id. ¶ 147). ODJFS-OFC found that it
was a conflict of interest for SCOJFS to handle the Plaintiffs’ cases. (Id.). ODJFS-OFC also found
deficiencies with the investigations, including insufficient initial assessments of risk and safety,
the removal of L.S. without any new information, and general non-compliance in SCOJFS’s
investigatory activities. (Id. ¶ 148).
Opening a case as an investigation within SCOJFS is very different than initiating a case
in juvenile court. One of these activities—the initiation of a juvenile court case—would entitle the
SCOJFS Defendants involved to absolute immunity because they are acting in their role as legal
advocates. Opening internal SCOJFS investigations against Plaintiffs on insufficient or false
information, however, falls into the category of investigatory functions. When individuals perform
such functions, they are entitled to qualified immunity, at best. Holloway, 220 F.3d at 775. Even
if investigation results in a court proceeding, it will not automatically be retroactively shielded by
that proceeding. See Buckley v. Fitzsimmons, 509 U.S. 259, 276 (1993) (“A prosecutor may not
shield his investigative work with the aegis of absolute immunity merely because, after a suspect
is eventually arrested, . . . that work may be retrospectively described as ‘preparation’ for a possible
trial[.]”). Similarly, the Defendants’ decision to pursue the investigation at all, despite the conflicts
of interest, and in allegedly deficient ways, also falls beyond the scope of legal advocacy. The
Defendants’ continued opening of cases against the Plaintiffs, after receiving numerous complaints
about the investigations and the conflicts of interest, fall into the categories of investigative or
administrative functions. The Plaintiffs have sufficiently pled allegations that show the SCOJFS
Defendants were not acting in their role as legal advocates when engaging in the conduct that give
rise to Plaintiffs’ First and Fourteenth Amendment claims.
Additionally, caseworkers are not entitled to absolute immunity when executing a court
order because they are “acting in a police capacity rather than as legal advocates.” Brent v. Wayne
Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 685 (6th Cir. 2018) (quoting Kovacic v. Cuyahoga Cnty.
Dep’t of Child. & Fam. Servs., 724 F.3d 687, 694 (6th Cir. 2014)). Law enforcement officials
executing facially valid court orders will be extended absolute quasi-judicial immunity only if
those officials did not obtain an order or warrant despite a lack of probable cause. See Troyer v.
Hershberger, No. 5:11cv2536, 2012 WL 488251, at *7 (N.D. Ohio Feb. 14, 2012) (citing Bush v.
Rauch, 38 F.3d 842, 847 (6th Cir. 1994)). Only qualified immunity is available if an official causes
an individual to be unconstitutionally arrested despite obtaining a facially valid warrant. See, e.g.,
Griesinger v. Loveland City Sch. Dist., No. 1:06cv569, 2008 WL 11451528, at *2 (S.D. Ohio Mar.
13, 2008) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). Here, the Plaintiffs allege that the
SCOJFS Defendants procured a facially valid court order on insufficient information and relying
on known false information. The decision to execute the ex parte removal order and to remove
L.S. from her home, over Cyndi’s attempts to enter a voluntary safety plan or place L.S. with
family or friends, cannot be shielded by absolute immunity. Thus, the Plaintiffs have raised
sufficient allegations to show that absolute immunity is not available to the SCOJFS Defendants
as to the Plaintiffs’ Fourth Amendment claims.
To the extent the Plaintiffs challenge the false allegations in the affidavit to support
probable cause as to L.S.’s ex parte removal, the Defendants are entitled to absolute immunity
because submitting an affidavit, even one with falsehoods, is shielded by absolute immunity. As
to the other federal claims, the SCOJFS Defendants have not carried their burden of demonstrating
that their conduct warrants the sparing grant of absolute immunity. Defendants’ motion to dismiss
COUNTS V, VI, VIII, and IX on absolute immunity grounds are DENIED, while the motion to
dismiss COUNT X is GRANTED.
State Law Claims
The Supreme Court of Ohio has yet to determine the parameters of immunity for
caseworkers and has not addressed the availability of quasi-judicial immunity for these actors. See
State ex rel. Denton v. Bedinghaus, 784 N.E.2d 99, 106 n.1 (Ohio 2003). When a state’s highest
court has not directly addressed an issue of substantive state law, a federal district court must
predict how the state’s highest court would resolve the matter. Andrews v. Columbia Gas
Transmission Corp., 544 F.3d 618, 624 (6th Cir. 2008). Given that Ohio’s jurisprudence for
prosecutorial immunity follows the Sixth Circuit approach, and the Sixth Circuit’s decision in
Pittman is an extension of its prosecutorial immunity doctrine, this Court will employ the
functional approach to the caseworkers’ claims for absolute common law immunity.5
The intermediate appellate courts in Ohio have issued several relevant decisions on
absolute quasi-judicial immunity. Like federal absolute immunity, the burden remains on the
public official to establish her entitlement to an immunity defense. The Ohio Court of Appeals has
denied absolute immunity where the factual record was not sufficiently developed to determine
the precise scope of any potential immunity. See Gallagher v. Hope, No. CA-757, 1992 WL
161776, at *1–2 (Ohio Ct. App. June 25, 1992) (citing Henrisken v. Bentley, 644 F.2d 825, 854
(10th Cir. 1981)). In Maternal Grandmother v. Hamilton County Department of Job and Family
Services, 154 N.E.3d 225 (Ohio Ct. App. 2020), the Ohio Court of Appeals followed the Sixth
Circuit’s rationale in Pittman to extend absolute immunity to caseworkers when they are involved
As stated earlier, a decision involving social worker common law immunity is pending before
the Supreme Court of Ohio. The Defendants may renew their claims for absolute immunity on
remaining state tort law claims if the Supreme Court of Ohio announces a more capacious standard
for social workers than the immunity it already offers to prosecutors.
in legal proceedings. The Ohio Court of Appeals has also extended absolute immunity to probation
officers preparing presentencing reports as to hold otherwise “would impede judicial functions,”
but has declined to reach the issue of whether probation officers were entitled to absolute quasijudicial immunity for actions within the scope of their employment because Ohio has extended
statutory immunity to state and municipal employees. Compare Clark v. Eskridge, 602 N.E.2d
1228, 1231 (Ohio Ct. App. 1991) (providing absolute immunity), with McKinney v. Hartley, No.
2007CA-00072, 2009 WL 154558, at *3 (Ohio Ct. App. Jan. 20, 2009) (declining to expand
common law immunities given availability of statutory immunity).
The Plaintiffs have raised several state tort law claims against the Defendants. First, the
Plaintiffs accuse the SCOJFS Defendants of interfering with their parental interests by facilitating
the ex parte removal of L.S. (ECF No. 1 at 50). Second, the Plaintiffs also seek damages against
the SCOJFS Defendants for intentional infliction of emotional distress, premised on the facilitation
of the seizure of L.S. and continued harassment via subsequent investigations related to L.S. (Id.
at 51–52). Third, the Plaintiffs also claim a loss of consortium regarding L.S. (Id. at 52). Fourth,
the Plaintiffs accuse the SCOJFS Defendants of acting with reckless disregard to the Plaintiffs’
rights as to their conduct resulting in the seizure of L.S. (Id. at 53–54). Finally, the Plaintiffs accuse
the SCOJFS Defendants of conspiring to interfere with the Plaintiffs’ statutory and constitutional
rights and interfere with their custody over L.S. (Id. at 54). The SCOJFS Defendants assert
common law absolute quasi-judicial immunity as a defense to all of these claims.
The earlier discussion of the SCOJFS Defendants’ entitlement to absolute immunity is
relevant to their claims of state common law immunity. Again, the Plaintiffs have raised abundant
examples of allegations which, if accepted as true, demonstrate that the SCOJFS Defendants were
engaging in investigative and administrative work that is not shielded by absolute immunity. The
Defendants’ state law tort claims arise from the same allegations as their federal constitutional
claims and are based on the improper investigations, conflicts of interest, and SCOJFS Defendants’
treatment of the Plaintiffs while L.S.’s case file was open with the agency. In their claims, the
Plaintiffs take aim at the ways in which the SCOJFS Defendants’ actions helped to facilitate the
ex parte removal of L.S. and subsequent investigations. Once again, to the extent that any of these
state tort law claims are supported in part by the SCOJFS Defendants’ conduct as legal advocates,
such as filing affidavits or participating in juvenile court proceedings, this conduct is shielded by
absolute immunity. While initiating a juvenile court case is shielded by absolute immunity,
misconduct during the investigation phase by caseworkers is not. Additionally, caseworkers are
not entitled to absolute immunity when executing a court order because they are “acting in a police
capacity rather than as legal advocates.” Brent v. Wayne Cnty. Dep’t of Human Servs., 901 F.3d
656, 685 (6th Cir. 2018) (quoting Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs.,
724 F.3d 687, 694 (6th Cir. 2014)). Because the Plaintiffs state tort law claims are premised to
some extent on the SCOJFS Defendants’ investigatory and out-of-court conduct toward the
Defendants, the SCOJFS Defendants cannot establish an entitlement to absolute quasi-judicial
immunity against these claims. Accordingly, the SCOJFS Defendants’ motions to dismiss is
DENIED as to COUNTS XII, XCIII, XIV, XV, XVI, XVII, and XVIII.
RSCO Defendants & Absolute Immunity
The two RSCO Defendants also claim absolute immunity from Plaintiffs’ claims under a
theory of quasi-judicial immunity. They also seek absolute immunity on federal common law and
state common law grounds.
Federal Constitutional Claims
The RSCO Defendants argue that they are entitled to quasi-judicial immunity for their
execution of the ex parte removal order of L.S. The Plaintiffs brought procedural and substantive
due process claims against Defendants Speakman and Sams related to the ex parte removal of L.S.
from the home. (ECF No. 1 at 7, 47–48). Plaintiffs allege that the RSCO Defendants came to their
home on September 5, 2018 to remove L.S., but no warrant or court documents were presented to
Cyndi at the time. (Id. ¶¶ 99–101). The Plaintiffs also allege that the armed RSCO Defendants
escorted Cyndi into the house and remained present until the SCOJFS employees left with L.S.
(Id. ¶ 103). The September 5, 2018 order authorizing the removal of L.S. from her parents’ home
instructs that the order “shall be executed by Law Enforcement having jurisdiction over the
residence” where L.S. was located. (ECF No. 15-1). In response to the RSCO Defendants’ motion
to dismiss, the Plaintiffs reiterate their allegations that Defendants Speakman and Sam were
operating without a signed court order. (ECF No. 22 at 16).
Absolute quasi-judicial immunity has been extended to non-judicial officers who are
“performing tasks so integral or intertwined with the judicial process that these persons are
considered an arm of the judicial officer who is immune.” Bush v. Rauch, 38 F.3d 842, 847 (6th
Cir. 1994). The Sixth Circuit has held that enforcing or executing a court order is “intrinsically
associated with a judicial proceeding.” Id. A law enforcement official executing a facially valid
court order will be protected by absolute quasi-judicial immunity, as an extension of the absolute
immunity of the judicial officer who issued the order. See Troyer, 2012 WL 488251, at *7 (citing
Bush, 38 F.3d at 847). If a law enforcement officer causes an individual to be unconstitutionally
arrested by obtaining an order or warrant without establishing probable cause, he may only seek
to assert qualified immunity. See, e.g., Griesinger, 2008 WL 11451528, at *2 (citing Malley, 475
U.S. at 341). The only allegations against the RSCO Defendants relate to their role in executing
the court-ordered removal of L.S. from her home. The Plaintiffs do not allege that the RSCO
Defendants took part in seeking the court order they knew to not be supported by probable cause,
as the SCOJFS Defendants did. As such, they are entitled to quasi-judicial immunity as they were
acting to execute a facially valid court order. Accordingly, the RSCO Defendants’ motion to
dismiss COUNT VII and COUNT IX is GRANTED. These counts are dismissed as to
Defendants Speakman and Sams.
State Tort Law Claims
The RSCO Defendants also claim common law absolute quasi-judicial immunity as a
defense to the state tort law claims against them. The RSCO Defendants have not, however, cited
to any authority entitling them to absolute quasi-judicial immunity under common law or set forth
the analysis this Court should apply to make such a determination. The Supreme Court of Ohio
has extended absolute common law immunity to prosecutors as quasi-judicial officers “when their
activities are ‘intimately associated with the judicial phase of the criminal process.’” Willitzer v.
McCloud, 453 N.E.2d 693, 695 (Ohio 1983). Neither the Supreme Court of Ohio nor the Court of
Appeals have extended this doctrine to law enforcement.
Several of the districts of the Court of Appeals of Ohio have found that probation officers,
as officers of the court, are entitled to absolute immunity when acting within the scope of their
employment. See McCormick v. Carroll, No. 83770, 2004 WL 2537051, at ¶ 20 (Ohio Ct. App.
Nov. 10, 2004); Clover v. Joliff, No. 2001–T–0135, 2002 WL 31160089, at ¶ 19 (Ohio Ct. App.
Sept. 27, 2002); but see McKinney v. Hartley, No. 2007CA-00072, 2009 WL 154558, at ¶ 19 (Ohio
Ct. App. Jan. 20, 2009) (declining to reach whether probation officers are entitled to absolute
immunity because of availability of statutory immunity). Clark v. Eskridge, the initial Ohio case
to extend absolute judicial immunity to probation officers, only considered absolute immunity
from a federal claim under § 1983 and relied on interpretations of federal law. See 602 N.E.2d
1228, 1230 (Ohio Ct. App. 1991)
Police officers and sheriffs are not officers of the court in the same way that probation
officers are, however, so it is unclear what value these precedents have, if any. Additionally, law
enforcement officers’ immunity from suit in Ohio state decisions turns on the availability of
statutory immunity, rather than absolute quasi-judicial immunity. See Barstow v. Waller, No.
04CA5, 2004 WL 2427396, at ¶¶ 32–33 (Ohio Ct. App. Oct. 26, 2004). As such, the RSCO
Defendants have failed to establish that they are entitled to absolute common law immunity and
their motion to dismiss COUNTS XII, XIII, XIV, XVI, and XVII on these grounds is DENIED.
Defendant Ater asserts absolute prosecutorial immunity as a defense to Plaintiffs’ claims
against her under both federal and state law. Prosecutors are entitled to absolute immunity from
§ 1983 suits for individual damages when they are acting within the scope of their prosecutorial
duties. See Imbler v. Pachtman, 424 U.S. 409, 420 (1976). Ohio law also offers prosecutorial
immunity, which mirrors immunity under the federal rules and is subject to the same restrictions.
See Willitzer v. McCloud, 453 N.E.2d 693, 596 (Ohio 1983).
Federal Constitutional Claims
Defendant Ater seeks to shield herself from Plaintiffs’ First Amendment retaliation and
Fourteenth Amendment procedural and substantive due process claims under the doctrine of
prosecutorial immunity. In determining whether an official will be protected by prosecutorial
immunity, the Sixth Circuit employs a “functional approach,” which looks to the “nature of the
function performed, not the identity of the actor who performed it.” Cooper v. Parrish, 203 F.3d
937, 944 (6th Cir. 2000). A court must look at the conduct in question and inquire whether it was
“undertaken in connection with one’s duties in functioning as a prosecutor.” Red Zone 12 LLC v.
City of Columbus, 758 F. App’x 508, 513 (6th Cir. 2019) (quoting Skinner v. Govorchin, 463 F.3d
518, 525 (6th Cir. 2006)). Individuals will be shielded by absolute immunity for performing acts
that are “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S.
at 430. When the individual is performing functions that are more removed from the judicial
process, such as “investigative” or “administrative” functions, she is not entitled to absolute
immunity. See Burns v. Reed, 500 U.S. 478 (1991). The Sixth Circuit has declined to adopt a
bright-line rule concerning the existence of probable cause that would automatically transform a
prosecutor’s work from the realm of investigation to advocacy. Watkins v. Healy, 986 F.3d 648,
664 (6th Cir. 2021). Accordingly, a prosecutor may still perform investigative functions that are
not shielded by absolute immunity even after probable cause arises.
Defendant Ater argues that she is entitled to absolute immunity from Plaintiffs’ federal
constitutional claims because the acts complained of were performed while she was serving as a
legal advocate in a judicial proceeding. She contends that she was acting as a legal advocate both
in initiating and participating in the dependency proceedings related to L.S. (ECF No. 13 at 12).
The Plaintiffs counter that they are seeking damages for Ms. Ater’s actions performed in
administrative and investigative capacities, which occurred prior to the initiation of judicial
proceedings. (ECF No. 22 at 16). They argue that, prior to the initiation of the dependency
proceeding, Ms. Ater was giving advice to the other Defendants—an act which typically deprives
prosecutors of absolute immunity. (Id. at 17). The Plaintiffs also contend that Ms. Ater retaliated
against them for “seeking redress of their grievances, asserting their rights, and for their marriage
decision.” (Id.). For these reasons, the Plaintiffs assert that absolute prosecutorial immunity is
unavailable. In their reply, the Defendants argue that the only allegations in the Complaint specific
to Ms. Ater involve the initiation of or participation in dependency proceedings, which would
entitle her to absolute immunity. (ECF No. 25 at 5).
According to Plaintiffs, Ater engaged in misconduct prior to the initiation of the ex parte
proceeding. She met with the SCOJFS Defendants every Thursday at 1:00 p.m. to “discuss and
make case decisions on all children services cases handled by SCOJFS in Ross County.” (ECF No.
1 ¶ 58). At one of these meetings, Ater was part of a collective decision to seek ex parte removal
of L.S. (Id. ¶ 104). The Plaintiffs contend that Ater participated in this decision, despite having no
knowledge or credible information of the circumstances surrounding L.S. (Id. ¶ 105). Ater also
allegedly possessed evidence and substantial reasons to believe the sexual abuse allegations
against Duston were false. (Id. ¶ 106). Ater was aware of the SCOJFS-Vinton investigation into
domestic violence allegations and SCOJFS-Vinton’s decision to unsubstantiate those allegations.
(Id. ¶ 109).
The Plaintiffs also allege that misconduct by Ater continued after the initiation of the court
proceedings. Ater pressured the Plaintiffs to stipulate to a dependency by offering to drop the
sexual abuse allegation and give Cyndi unsupervised weekend visits with L.S. before a January
2019 adjudication hearing for L.S. (Id. ¶ 126). The Plaintiffs allege that Ater “made statements of
a threatening, intimidating, and retaliatory nature” during a November 5, 2019 juvenile court
hearing after the Plaintiffs got married in September 2019. (Id. ¶ 150). Beyond this hearing, the
Plaintiffs allege that Ater continued to threaten Cyndi with removal of L.S. from her custody and/or
opening juvenile court cases against her. (Id.). Ater also demanded that L.S.’s whereabouts be
investigated. (Id.). She continued to participate in weekly meetings with the SCOJFS Defendants,
including one in July 2020 that immediately preceded the initiation of another children services
case against Cyndi. (Id. ¶ 175). Ater continued to harass the Plaintiffs by threatening to take
custody of L.S. and opening cases against Cyndi on false information. (Id.). The Scharbroughs
contend that these actions violated their constitutional rights under the First and the Fourteenth
At this stage, granting absolute immunity to Defendant Ater as to Plaintiffs’ Fourteenth
Amendment claims would be inappropriate. As pled, Plaintiffs claim Ater violated their Fourteenth
Amendment rights by participating in the investigation and actively working with SCOJFS, rather
than merely initiating juvenile court proceedings and acting as a legal advocate. The Plaintiffs raise
sufficient allegations that Defendant Ater was not performing a prosecutorial function, but rather
an investigatory function. Per the Plaintiffs’ allegations, Ater was a key part of the decisionmaking process as to how SCOJFS would manage L.S.’s case, beyond simply pursuing legal
action. The mere fact that an investigation may culminate in a court proceeding will not place all
investigatory conduct under the narrow umbrella of absolute immunity. See Buckley, 509 U.S. at
276. It may well be that, at the summary judgment stage, Defendant Ater can muster a successful
immunity defense. As this Court must accept all well-pled factual allegations by Plaintiffs as true,
the complaint adequately alleges that Ater was acting outside the scope of the prosecutorial
function when working with SCOJFS to investigate allegations against Plaintiffs and to make
decisions as to L.S. See Watkins, 986 F.3d at 661 (explaining that a prosecutor is performing
investigative functions when giving legal advice prior to the existence of probable cause, including
on investigative techniques, prior to the initiation of judicial proceedings). Defendant Ater is thus
not entitled to absolute immunity for any investigatory conduct prior to the filing of the ex parte
Defendant Ater’s claim to absolute immunity from Plaintiffs’ First Amendment retaliation
claim is a closer call. Where a retaliation claim against a prosecutor is based on out-of-court acts,
a prosecutor may not be shielded by absolute immunity. The Sixth Circuit instructs that the motives
of a prosecutor in initiating a prosecution will be irrelevant for determining her entitlement to
immunity. See Eldridge v. Gibson, 332 F.3d 1019, 1021 (6th Cir. 2003). In Watkins, the Sixth
Circuit found that threats, promises of immunity, participation in interrogation, and general
intimidation and coercion of an individual prior to the existence of probable cause will not be
shielded by absolute immunity. 986 F.3d at 662 (citing Spurlock v. Satterfield, 167 F.3d 995, 1001–
02 (6th Cir. 1999)). Additionally, retaliatory conduct after a trial is completed is considered more
akin to administrative or investigative acts not shielded by absolute immunity. Spurlock v.
Thompson, 330 F.3d 791, 799–800 (6th Cir. 2003). Under Spurlock, the key to prosecutorial
immunity is advocacy—as in, how closely related the challenged activity is to the prosecutor’s
“role as an advocate intimately associated the judicial phase of the criminal process.” 330 F.3d at
Accepting all well-pled allegations of Plaintiffs’ as true, some of Ms. Ater’s conduct will
be shielded by absolute immunity, but not all of it. Any of Ater’s in-court statements were made
in her role as a legal advocate and she is entitled to absolute immunity for those actions. Likewise,
this Court cannot inquire into the motives of Ms. Ater in initiating cases against the Scharbroughs
in determining whether she is entitled to absolute immunity. When Ms. Ater initiates a dependency
or similar proceeding, she clearly acts within her role as a legal advocate. Out-of-court statements
to the Scharbroughs, however, including threats and harassment, are not clearly part and parcel of
her role as a legal advocate. Accordingly, Ms. Ater is not entitled to absolute immunity for any
out-of-court behavior toward Plaintiffs that gave rise to their retaliation claims.
Defendant Ater has not carried her burden of showing that absolute immunity is necessary
at this stage. Accordingly, Defendant Ater’s motion to dismiss COUNTS V, VII, and IX is
State Law Claims
Defendant Ater also invokes common law absolute immunity as a defense to Plaintiffs’
state law claims against her. Ohio also employs the functional approach to evaluating claims of
absolute immunity, like that employed by the Sixth Circuit. See Willitzer v. McCloud, 453 N.E.2d
693, 596 (Ohio 1983). Ms. Ater claims absolute immunity against the following state claims:
interference with parental interest, invasion of privacy, intentional infliction of emotional distress,
loss of consortium, state criminal acts—including dereliction of duty, interference with civil rights,
and interference with custody—and conspiracy. As discussed previously, the Plaintiffs have made
allegations that Ms. Ater was intimately involved in child services investigations prior to the
initiation of any court proceedings. She also allegedly made out-of-court threats to Cyndi about
removing L.S. from her custody and using the legal process to harass her. Ms. Ater argues that all
actions were performed in her role as a legal advocate, but this Court has already found that some
of these alleged actions fell outside her role as a legal advocate. Ms. Ater has not clearly delineated
how she was acting as a legal advocate with regard to those non-advocacy allegations and claims
blanket immunity to all state law claims. This Court’s grant of absolute immunity is one to be
extended sparingly and it remains the Defendant’s burden to establish an entitlement to such
immunity. As such, this Court DENIES Defendant Ater’s motion to dismiss COUNTS XII, XIII,
XIV, XV, XVI, XVII, and XVIII.
Qualified Immunity is Premature
The Defendants also invoke qualified immunity as a shield to liability on remaining Counts
V, VII, and IX of Plaintiffs’ Complaint. The doctrine of qualified immunity provides that
“government officials performing discretionary functions are generally shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). A district court may consider qualified immunity on a Rule 12(b)(6) motion,
see Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 677 (6th Cir. 2001), but it is “generally
inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified
immunity.” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015). An officer’s entitlement to
qualified immunity is a “threshold question to be resolved at the earliest possible point” in
litigation, but “that point is usually summary judgment and not dismissal under Rule 12.” Id. at
433–34 (quoting in part Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003)). Ordinarily, dismissal
under Rule 12(b)(6) premised on defense of qualified immunity is inappropriate since
this defense “requires investigation into facts and evidence not available at the early stage of
pleadings.” 61A Am. Jur. 2d Pleading § 535 (2010).
In support of their claim of qualified immunity, the Defendants argue that Plaintiffs have
failed to allege conduct that shows a constitutional violation of a clearly established right. (ECF
No. 13 at 12). Even if a constitutional violation of their rights has been properly pled by the
Plaintiffs, the Defendants insist that the rights in question would not have been clearly established.
(Id.). In response, the Plaintiffs argue that the constitutional rights that they seek to vindicate are
clearly established by past precedent. (ECF No. 22 at 17). In reply, the Defendants counter that
Plaintiffs must do more than “simply identify a clearly established right in the abstract” and then
allege a violation of that right. (ECF No. 25 at 6 (quoting Reguli v. Guffee, 371 F. App’x 590, 599
(6th Cir. 2010))).
The Plaintiffs allege that the Defendants violated rights that were clearly established under
the First, Fourth, and Fourteenth Amendments. At the motion to dismiss stage, the relevant inquiry
is whether the plaintiff has alleged “facts which, if true, describe a violation of a clearly established
statutory or constitutional right of which a reasonable public official, under an objective standard,
would have known.” Adams v. Ohio University, 300 F. Supp. 3d 983, 1002 (S.D. Ohio 2018)
(quoting Doe v. Ohio State Univ., 219 F. Supp. 3d 645, 664 (S.D. Ohio 2016)).
First Amendment Rights
Plaintiff first alleges that the Defendants have violated their rights to protest the misconduct
of government employees peacefully and to petition the government for redress of their grievances.
(ECF No. 1 at 46). The Plaintiffs allege that these rights were violated when the Defendants
retaliated against them for raising concerns to SCOJFS about employees’ conduct, both orally and
in formal written complaints. (Id. ¶¶ 114–15, 123). These concerns included the alleged conflict
of interest in SCOJFS investigating the Scharbroughs at all, rather than involving another county
as they previously had. The alleged retaliation came in the form of subsequent baseless
investigations that harassed the Plaintiffs. The Sixth Circuit has held that petitioning the
government is constitutionally protected and that even a citizen’s complaint made while in
conversation to an official can be treated as protected petitioning. See Holzemer v. City of
Memphis, 621 F.3d 512, 510 (6th Cir. 2010) (holding that there is “no constitutional distinction
between an oral and written petition for redress” and that a reasonable city official would know
that retaliation for seeking assistance is unlawful). As such, the Plaintiffs have identified at least
one clearly established right under the First Amendment—petitioning the government for
redress—that they allege was violated when the Defendants knowingly conducted unwarranted
investigations and used the county’s child services machinery as a means to harass them, rather
than addressing their concerns.
The Plaintiffs also allege that their constitutionally protected right to familial and intimate
association was violated when the Defendants reacted to their decision to marry by subjecting them
to further investigations. The Sixth Circuit has acknowledged that the freedom of intimate
association is a “privacy interest derived from the Due Process Clause of the Fourteenth
Amendment but also related to the First Amendment.” Anderson v. City of LaVergne, 371 F.3d
879, 881 (6th Cir. 2004). In Board of Directors of Rotary International v. Rotary Club of Duarte,
481 U.S. 537 (1987), the Supreme Court noted that its precedents “have emphasized that the First
Amendment protects those relationships, including family relationships, that presuppose ‘deep
attachments and commitments to the necessarily few other individuals with whom one shares not
only a special community of thoughts, experiences, and beliefs but also distinctively personal
aspects of one’s life.’” 481 U.S. at 545 (quoting Roberts v. United States Jaycees, 468 U.S. 609,
619 – 20 (1984)). The types of intimate relationships shielded by constitutional protection are those
that “‘attend the creation and sustenance of a family[,]’ including marriage, childbirth, raising and
educating children.” Strehlke v. Grosse Pointe Pub. Sch. Sys., 654 F. App’x 713, 723–24 (6th Cir.
2015) (quoting U.S. Citizens Ass’n v. Sebelius, 705 F.3d 588, 598 (6th Cir. 2013)). The Plaintiffs
have alleged that the Defendants pursued more child service investigations of them because they
decided to get married. The right to intimate association, including marriage, has long been clearly
established under Supreme Court precedent. At this stage, the Plaintiffs have met their burden
under Rule 12.
Whether the facts alleged by Plaintiffs constitute violations of their constitutional rights,
however, “are factual issues not appropriate for determination at the pleading stage, much less on
the basis of qualified immunity.” Adams, 300 F. Supp. 3d at 1002 (quoting Thompson v. Ohio State
Univ., 990 F. Supp. 2d 801, 816 (S.D. Ohio 2014)). As to their First Amendment claims, Plaintiffs
do allege sufficient facts to survive the motion to dismiss stage and this Court cannot yet ascertain
whether the Defendants are entitled to qualified immunity. Accordingly, Defendants’ qualified
immunity defense is premature at the motion to dismiss stage.
Fourth Amendment Rights
The Plaintiffs also allege that their constitutional rights under the Fourth Amendment were
violated by the Defendants. They contend that their rights to security in the home were wellestablished and that the Defendants’ warrantless entry violated those rights. (ECF No. 22 at 17).
The Plaintiffs additionally argue that it is well-established that the warrant requirements and the
exigent circumstances exception apply to the removal of children from the home, so the defiance
of those requirements violated their rights. (Id.). It is clearly established that the Fourth
Amendment’s requirements apply to the social workers, including that caseworkers must have
exigent circumstances or a warrant to search premises or remove a child from the home. Kovacic
v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 724 F.3d 687, 695 (6th Cir. 2013) (“Kovacic
II”). Individuals thus have a constitutional right to be free from unreasonable searches and seizures
by caseworkers. See Andrews v. Hickman Cnty., Tenn., 700 F.3d 845, 860 (6th Cir. 2012). While
the Defendants have produced a certified copy of the ex parte court order, the Plaintiffs have
alleged that the SCOJFS Defendants sought that order despite a lack of probable cause and then
executed it, knowing that it was deficient. (ECF No. 1 ¶ 105). The Sixth Circuit has held that “an
officer cannot rely on a judicial determination of probable cause if that officer knowingly makes
false statements and omissions to the judge such that but for these falsities the judge would not
have issued the warrant.” Yancey v. Carroll Cnty., Ky., 876 F.2d 1238 (6th Cir. 1989). Whether
Plaintiffs’ allegations about the method in which Defendants obtained the order amount to a
constitutional violation is an issue not appropriate for resolution at this stage, “much less on the
basis of qualified immunity.” Adams, 300 F. Supp. 3d at 1002 (quoting Thompson, 990 F. Supp.
2d at 816). This Court cannot determine whether the Defendants are shielded by qualified
immunity at this stage, as the factual issues have not been adequately developed.
Fourteenth Amendment Rights
The Plaintiffs also contend that their procedural and substantive due process rights under
the Fourteenth Amendment were violated by Defendants. First, they allege that their substantive
rights to family integrity and security in their residence were compromised by both the removal of
L.S. without any exigent circumstances and the continued investigations of the family without any
new information justifying such investigations. (ECF No. 1 ¶ 263). Second, they allege that their
procedural due process rights were violated because they were not given notice and an opportunity
to be heard before L.S. was removed from their home. (Id. ¶ 105). The Defendants seek to raise
the defense of qualified immunity against the Plaintiffs’ procedural and substantive due process
claims, asserting that Plaintiffs cannot show the existence of clearly established rights.
The core of due process is protection against arbitrary government action, including “the
exercise of power without any reasonable justification in the service of a legitimate governmental
objective.” County of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998). The Sixth Circuit has
held that “[i]t is clearly established that the Constitution recognizes both a protectible procedural
due process interest in parenting a child and a substantive fundamental right to raise one’s child.”
Bartell v. Lohiser, 215 F.3d 550, 557 (6th Cir. 2000); see also Smith v. Williams-Ash, 520 F.3d
596, 599 (6th Cir. 2008) (quoting Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006)) (“[U]nder
the [Fourteenth Amendment], the parent-child relation gives rise to a liberty interest that a parent
may not be deprived of absent due process of law.”). The Sixth Circuit has contrasted the
differences between procedural and substantive due process claims as follows: “While procedural
due process principles protect persons from deficient procedures . . . substantive due process
provides that, irrespective of the constitutional sufficiency of the processes afforded, government
may not deprive individuals of fundamental rights unless the action is necessary and animated by
a compelling purpose.” Bartell, 215 F.3d at 557–58 (citing Mathews v. Eldridge, 424 U.S. 319,
333–34 (1976) and Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). This Court will turn to
each of the Plaintiffs’ Fourteenth Amendment claims in turn and determine whether their rights
were clearly established.
The Sixth Circuit characterized the right to family integrity and association as a
“paradigmatic example of a substantive due process guarantee.” Schulkers v. Kammer, 955 F.3d
510, 540 (6th Cir. 2020). In reaching this conclusion in Schulkers, the Sixth Circuit relied on prior
cases from the Supreme Court, including Cleveland Board of Education v. LaFleur, 414 U.S. 632
(1974), and Lassiter v. Department of Social Services, 452 U.S. 18 (1981). In LaFleur, the Court
opined that “freedom of personal choice in matters of . . . family life is one of the liberties protected
by the Due Process Clause of the Fourteenth Amendment.” 414 U.S. at 639. The Court later
declared in Lassiter that it was “plain beyond the need for multiple citation” that a parent’s “desire
for and right to ‘the companionship, care, custody and management of his or her children’ is an
important interest that ‘undeniably warrants deference and, absent a powerful countervailing
interest, protection.’” 452 U.S. at 27 (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). When
plaintiffs have alleged that the government lacked a justifiable reason to remove the child at the
time of interference, the Sixth Circuit has found that the government has no countervailing interest
in preventing child abuse. Schulkers, 955 F.3d at 540–41. Here, the Plaintiffs assert that the
Defendants suddenly sought removal of L.S. from the home without any new information and
without either visiting their home or speaking with them to evaluate L.S.’s safety. The Defendants
had fair notice that the Scharbroughs had a substantive due process right to their family integrity,
which could not be compromised absent a compelling government interest. At this stage, the
Plaintiffs have met their burden in pleading that the Defendants did not have such a compelling
government interest to interfere with their clearly established rights.
Likewise, it is clearly established that the parent-child relationship gives rise to a liberty
interest that a parent may not be deprived of without due process of law. The Sixth Circuit has
acknowledged that it is “clearly established” that “both a protectible procedural due process
interest in parenting a child and a substantive fundamental right to raise one’s child” derive from
the Constitution. Bartell, 215 F.3d at 557; see also Smith, 520 F.3d at 599 (quoting Kottmyer, 436
F.3d at 689)) (“[U]nder the [Fourteenth Amendment], the parent-child relation gives rise to a
liberty interest that a parent may not be deprived of absent due process of law.”). In Schulkers, the
Sixth Circuit noted that its previous decisions, including Smith, had “reiterate[d] the wellestablished rule that a state must afford a parent fair process before interfering with a parent’s
fundamental right to family integrity and the companionship of his or her children.” 955 F.3d at
543 (citing Smith, 520 F.3d at 599, and Bartell, 215 F.3d at 557). The Schulkers court found the
only exception to that well-established rule is “when a parent voluntarily consents to the terms of
a safety plan without duress.” Id.
Here, the Plaintiffs challenge the removal of L.S. from their home without notice and a
pre-deprivation opportunity to be heard, and in the absence of exigent or compelling
circumstances. While Plaintiffs style their Fourteenth Amendment claims as a challenge to a
warrantless entry to their home and unlawful seizure of their minor child, the substance of their
allegations takes aim at the information upon which L.S. was removed, a lack of notice, and the
fact that they only learned of the government’s allegations against them and given any opportunity
to be heard after the deprivation had occurred. The Plaintiffs are seeking vindication of their clearly
established rights to constitutionally adequate procedures before the state interferes with their
parent-child relationships. This is sufficient at the motion to dismiss stage. Once again, whether
the facts alleged by Plaintiffs constitute violations of their clearly established rights is not
appropriate for resolution at this stage, “much less on the basis of qualified immunity.” Adams,
300 F. Supp. 3d at 1002 (quoting Thompson, 990 F. Supp. 2d at 816). This Court cannot determine
whether the Defendants are shielded by qualified immunity at this stage, as the factual issues have
not been adequately developed. As was the case with their claim of qualified immunity as to
Plaintiffs’ First Amendment claims, the claim of qualified immunity against the Fourteenth
Amendment claims is also premature.
Statutory Immunity is Premature
Finally, the Defendants also make claims to statutory immunity under Ohio law as to the
state tort claims against them. The Municipal Defendants, SCOJFS and RSCO, claim statutory
immunity against Plaintiffs state law claims under R.C. § 2744.02(A)(1), which extends immunity
to political subdivisions under certain conditions. (ECF No. 13 at 13). The Municipal Defendants
argue that the Plaintiffs have not pled any facts to suggest that any of the five exceptions to
§ 2744.02(A)(1) apply and so they are entitled to immunity. (Id.). The individual SCOJFS and
RSCO Defendants likewise claim immunity under R.C. § 2744.03(A)(6), which provides
immunity to employees of political subdivisions unless an exception applies. (Id. at 14). The
Defendants again claim entitlement to immunity because the Plaintiffs have not pled any facts
suggesting one of the exceptions applies here. (Id.). In response, the Plaintiffs argue that they have
in fact pled sufficient facts to suggest that the Defendants were acting beyond the scope of their
duties and responsibilities and that they were performed with the requisite malicious purpose, bad
faith, or recklessness for the exceptions to statutory immunity to apply. (ECF No. 22 at 18–19).
The Defendants are correct in their assertion that the availability of immunity is properly
determined by a court prior to trial. See Carpenter v. Scherer-Mountain Ins. Agency, 733 N.E.2d
1196, 1206 (Ohio Ct. App. 1999) (citing Conley v. Shearer, 595 N.E.2d 862, 869 (Ohio 1992)).
The Supreme Court of Ohio has also instructed that this purely legal issue should be determined
“preferably on a motion for summary judgment.” Conley, 595 N.E.2d at 869 (quoting Roe v.
Hamilton Cnty. Dep’t of Hum. Serv., 560 N.E.2d 238, 243 (Ohio Ct. App. 1988)). Ohio courts
frequently find that immunity defenses present issues “not normally amenable to resolution” at the
motion to dismiss stage and emphasize the preferability of resolving these issues at the summary
judgment stage. See, e.g., Roe v. Franklin County, 673 N.E.2d 172, 181 (Ohio Ct. App. 1996)
(finding that affirmative defense of governmental immunity “presents issues not normally
amenable to resolution on a Civ.R. 12(b)(6) motion to dismiss”); Cole v. John G. Johnson & Sons,
No. 68174, 1995 WL 558897, at *3 (Ohio Ct. App. Sept. 21, 1995) (noting necessity of developing
factual record before determining whether immunity is appropriate); Roe v. Hamilton County, 560
N.E.2d at 243 (same).
Ohio courts will only grant a motion to dismiss premised on an affirmative defense when
it is “apparent from the face of the complaint that the defense is available.” Molnar v. City of
Green, 140 N.E.3d 1208, 1213 (Ohio Ct. App. 2019) (quoting OBLH, LLC v. O’Brien, No. 2013T-0111, 2015 WL 1443226, at ¶ 20 (Ohio Ct. App. 2015)). Affirmative defenses typically require
reference to materials outside the fact of the complaint, making it inappropriate to resolve such
defenses prior to summary judgment. See id. Importantly, the Defendants do not argue that it is
apparent from the face of Plaintiffs’ complaint that the defense of statutory immunity is available.
Ohio precedent makes clear that a plaintiff is under no obligation “to prove his case in his initial
pleadings,” nor must he “affirmatively dispose of the immunity question altogether at the pleading
stage.” Id. (quoting Chunyo v. Gauntner, No. 28346, 2017 WL 2802216, at ¶ 10 (Ohio Ct. App.
June 28, 2017)).
A plaintiff need not demonstrate an exception to immunity at the pleading stage, as it
“would be tantamount to requiring [a] plaintiff to overcome a motion for summary judgment at
the pleading stage.” Scott v. Columbus Dept. of Pub. Utils., 949 N.E.2d 552, 554 (Ohio Ct. App.
2011). This, however, is the basis of the Defendants’ arguments for statutory immunity: that the
Plaintiffs have not affirmatively pled or established any exception to statutory immunity, so the
Defendants are entitled to immunity at this stage. (ECF No. 13 at 14). The Plaintiffs are not
required to meet some heightened pleading standard and “anticipate a political subdivision’s
defenses and plead specific facts to counteract a possible affirmative defense of sovereign
immunity” to survive a motion to dismiss. Molnar, 140 N.E.3d at 1213. The same is true for the
individual employees’ claims of statutory immunity—Plaintiffs were under not obligation to
“rebut a presumption of immunity” when crafting their complaint. Id.
The Defendants have not argued that it is apparent from the face of the pleadings that there
exists no set of facts under which the Scharbroughs could succeed in countering the defense of
statutory immunity. Instead, they erroneously attempt to place the burden on the Plaintiffs to
overcome statutory immunity in drafting their initial pleadings. The Defendants’ claims of
statutory immunity are more amenable to resolution at the summary judgment stage and nothing
in this Opinion should be construed as denying them the opportunity to raise such arguments again
at the appropriate stage of litigation. Accordingly, the Defendants’ motion to dismiss Plaintiffs’
state law claims on the grounds of statutory immunity is premature at this stage of the litigation.
Failure to State a Claim
The Defendants also seek to dismiss several counts of Plaintiffs’ complaint on the grounds
that the Plaintiffs have failed to state a claim upon which relief may be granted. A complaint
brought by pro se Plaintiffs is to be liberally construed, but still must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
motion to dismiss under Rule 12(b)(6) for failure to state a claim “is a test of the plaintiff’s cause
of action as stated in the complaint, not a challenge to the plaintiff’s factual allegations.” Golden
v. City of Columbus, 404 F.3d 950, 958–59 (6th Cir. 2005). A court contemplating the motion to
dismiss must construe the complaint in the light most favorable to the plaintiff, see Benefits
Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008), but
need not accept as true any mere legal conclusions unsupported by factual allegations. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6) requires that the complaint’s factual allegations
“must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). With the requisite legal standard in mind, this Court will turn to each of
the claims which Defendants argue must be dismissed under Rule 12(b)(6).
Plaintiffs have Failed to State a § 1985 Claim
Section 1985 provides a cause of action against those who conspire to interfere with an
individual’s civil rights. In their Complaint, the Plaintiffs bring their constitutional claims not only
under 42 U.S.C. § 1983 but also 42 U.S.C. § 1985 against the individual defendants employed by
SCOJFS and RSCO. The Defendants seek to dismiss any civil conspiracy claims under Section
1985 because the Plaintiffs have failed to identify which provision of § 1985 they are utilizing.
They further argue that the Plaintiffs cannot state a claim under any of § 1985’s provisions. As the
Plaintiffs are proceeding pro se, this Court will consider whether they have pled a claim under any
subsection of 42 U.S.C. § 1985.
Section 1985 prohibits three types of conspiracies. Subsection (1) of § 1985 relates to a
conspiracy to keep a person from accepting or holding an office or preventing him from
discharging his duties. Subsection (2) deals with a conspiracy to obstruct justice with the intent to
deny equal protection of the law. Subsection (3) is directed to conspiracies to deprive persons or
classes of persons of federally protected rights based on some protected class such as race, gender,
or religion. See, e.g., Crosky v. Ohio Dep’t of Rehab. & Corr., No. 2:09-cv-400, 2012 WL 748408,
at *11 (S.D. Ohio Mar. 8, 2012). The Plaintiffs do not identify which prong of § 1985 they are
invoking, but rather append it to each federal claim without any substantive allegations of
conspiracy. The only allegations that Plaintiffs assert as to any conspiracy is in relation to their
claims for state torts. The Plaintiffs allege that the Defendants conspired to deprive Plaintiffs of
their constitutional and statutory rights in violation of Ohio law. (ECF No. ¶ 289). They also allege
that the defendants conspired with one another in the commission of criminal acts of dereliction
of duty, interfering with civil rights, interference with custody, and kidnapping in violation of Ohio
law. (Id. ¶ 292). The Plaintiffs also allege that the SCOJFS Defendants and Ms. Ater “conspired
to recklessly fail to perform duties imposed by law,” “conspired to recklessly commit acts
forbidden by law,” “conspired to interfere with Plaintiffs’ constitutional and statutory rights,”
“conspired to interfere with the Plaintiffs’ custody” of L.S., and conspired to kidnap L.S. (Id. ¶
297). This Court will nevertheless assess whether Plaintiffs have stated a colorable claim under
either 42 U.S.C. § 1985(2) or 42 U.S.C. § 1985(3)
Section 1985(2) provides for a private cause of action against individuals who acts, by
“force, intimidation, or threat,” to obstruct justice or intimidate a party or witness to testify
truthfully “in any court of the United States.” See Easterling v. Rice, No. 3:15-CV-257, 2015 WL
4917008, at *3 (S.D. Ohio Aug. 18, 2015). The Plaintiffs make allegations that two Defendants,
Perry and Ater, intimidated, threatened, and coerced Cyndi into forfeiting the Plaintiffs’ rights to
a trial and to stipulate to a dependency. What is missing, however, from the Plaintiffs’ allegations
is any charge that Perry and Ater conspired to engage in this course of action together. Section
1985(2) clearly requires two or more co-conspirators for a civil conspiracy for a cause of action to
lie. Accordingly, the Plaintiffs cannot state a claim under 42 U.S.C. § 1985(3).
To bring a civil conspiracy claim under 42 U.S.C. § 1985(3), the Plaintiffs must show “‘that
(1) a single plan existed, (2) the conspirators shared a conspiratorial objective to deprive the
plaintiffs of their constitutional rights, and (3) an overt act was committed’ in furtherance of the
conspiracy that caused the injury.” Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014) (quoting
Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007)). Additionally, the civil conspiracy claim
must be based on “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Smith
v. Martin, 542 F.2d 688, 690 (6th Cir. 1976) (explaining that a § 1985(3) claim “must be founded
on a class-based invidious discrimination.”). The Sixth Circuit has further expanded upon who
may successfully bring a 1985(3) claim: “(1) classes who receive heightened protection under the
Equal Protection Clause; and (2) those individuals who join together as a class for the purpose of
asserting certain fundamental rights.” Warner v. Greenebaum, Doll & McDonald, 104 F. App’x
493, 498 (6th Cir. 2004). The Plaintiffs do not allege that any alleged conspiracy was motivated
by a racial or other class-based, invidiously discriminatory animus. As such, they have failed to
state a claim under 42 U.S.C. § 1985(3).
Plaintiffs have Failed to State an Equal Protection Claim
The Fourteenth Amendment also confers a guarantee of equal protection of the laws. The
Defendants seek to dismiss Count XI of Plaintiffs’ complaint because they cannot state a claim for
a violation of the Equal Protection Clause of the Fourteenth Amendment. (ECF No. 15 at 16). The
Defendants argue that the Plaintiffs cannot allege a violation of the Equal Protection Clause
because they have not alleged membership in a protected class, nor can they show a discriminatory
purpose. (Id.). The Defendants further argue that the Plaintiffs have not articulated any way in
which the Defendants treated Plaintiffs any differently than other similarly situated without any
rational basis. (Id. at 17). In response, the Plaintiffs argue that they have pled sufficient facts to
support their equal protection claim against the Defendants. They mount two arguments against
the Defendants’ motion to dismiss. First, they assert that parents whose custody of their children
is challenged constitute a “unique class of individuals, whose fundamental right to their children
cannot be deprived without . . . equal protection” of the law. (ECF No. 22 at 20). Second, they
argue that the removal of L.S. without notice or a pre-deprivation hearing deprived them of equal
The Equal Protection Clause “safeguards against the disparate treatment of similarly
situated individuals as a result of government action that ‘either burdens a fundamental right,
targets a suspect class, or has no rational basis.’” Paterek v. Vill. of Armada, Mich., 801 F.3d 630,
649 (6th Cir. 2015) (quoting Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 364, 379
(6th Cir. 2011)). An equal protection claim can also be premised on a “class-of-one” theory under
which plaintiffs must allege that, due to animus, they were treated differently than similarly
situated individuals. See Benalcazar v. Genoa Twp., No. 2:18-cv-01805, 2020 WL 4933797, at *4
(S.D. Ohio Aug. 24, 2020) (citing Paterek, 801 F.3d at 649–50). To withstand a motion to dismiss,
the Plaintiffs must allege either “(1) disparate treatment from similarly situated individuals with
no rational basis for the difference, or (2) that the challenged conduct was motivated by animus or
ill-will.” Id. (citing Paterek, 801 F.3d at 650). The Plaintiffs appear to be proceeding under the
first of these options, as they have not raised any allegations of animus or ill-will in their
As previously discussed, the right to intimate association and familial integrity are
established, fundamental rights. According to the Sixth Circuit, the “threshold element of an equal
protection claim is disparate treatment; once disparate treatment is shown, the equal protection
analysis to be applied is determined by the classification” at issue. Napolitano, 648 F.3d at 379
(quoting Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006)). The
Plaintiffs allege that the Defendants deprived them of these fundamental rights without providing
adequate pre-deprivation procedures “that are extended to all other parents whose custody of their
children” is at issue. (ECF No. 1 ¶ 270). They also claim their rights were violated by the removal
of L.S. without notice and a pre-deprivation hearing. Taken together, these allegations by Plaintiffs
suggest they are arguing that all other parents whose custody is potentially compromised by the
Defendants receive notice and a pre-deprivation hearing before a removal is sought.
The Amended Complaint fails to make a plausible allegation that similarly situated parents
in Ross County have not been subject to the same treatment by Defendants. To do so, Plaintiffs
would have to assert that the Defendants have never sought and executed ex parte removal orders
of other children. Yet that assertion would directly contradict the Plaintiffs’ allegation that
SCOJFS engaged in a custom, practice, and/or policy of working with RSCO sheriff deputies to
execute ex parte removal of Ross County residents’ minor children. (Id. ¶ 210). As such, the
Plaintiffs have failed to put forth any plausible factual allegations that they have been subject to
disparate treatment as compared to other similarly situated parents. The Defendants’ motion to
dismiss Count XI of Plaintiffs’ Complaint is therefore GRANTED.
Supervisory Liability Claims
A supervisor may be held liable for constitutional violations committed by their
subordinates when they implicitly authorize, approve, or knowingly acquiesce in the
unconstitutional conduct. See Garza v. Lansing Sch. Dist., 972 F.3d 853, 865 (6th Cir. 2020).
Several of the SCOJFS Defendants seek to dismiss the supervisory liability claims asserted against
them in Counts II, III, and IV of Plaintiffs’ Complaint. The Defendants first argue that there are
no underlying unconstitutional actions to which supervisory liability may attach. (ECF No. 15 at
18–19). The Defendants also argue that the Plaintiffs have failed to state supervisory liability
claims against them because the Plaintiffs have pled failures to act by those in supervisory
positions, when the Plaintiffs must instead show these Defendants condoned or encouraged
unconstitutional behavior by subordinate employees. (Id.). As previously discussed, the Plaintiffs
identified clearly established rights under the First and Fourteenth Amendments and have pled
allegations related to violations of those rights that are sufficient to withstand a motion to dismiss.
This Court will thus consider whether the supervisory liability allegations are related to Plaintiffs’
surviving claims and, if so, whether the Plaintiffs have carried their burden at this stage of the
To state a supervisory liability claim, a plaintiff must allege that a supervisory official
“encouraged the specific incident of misconduct or in some other way directly participated in it.”
Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010) (citing Cardinal v. Metrish, 564 F.3d 794,
802–03 (6th Cir. 2009)). This means that plaintiffs must allege facts that indicate that the SCOJFS
supervisors “at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Id. Mere allegations of respondeat superior
supervisory liability will not support a § 1983 claim. Peatross v. City of Memphis, 818 F.3d 233,
241 (6th Cir. 2016). The Sixth Circuit requires a showing of some “active unconstitutional
behavior” on the part of the supervisor for supervisory liability to attach. Id. (citing Bass v.
Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). “Active” behavior does not require a supervisor
to be physically present or involved at the time of the constitutional violation, however. See id. A
plaintiff will satisfy the pleading standard for supervisory liability by alleging that the defendant
“at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct
of the offending [subordinates].” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Defendant Walker argues that Plaintiffs cannot succeed on their supervisory liability claim
against him because there is no underlying unconstitutional behavior and, if there was an alleged
violation, the Plaintiffs have not alleged that Walker himself condoned or encouraged that
unconstitutional behavior. (ECF No. 15 at 18). Defendant Walker is the Director at SCOJFS, and
according to Plaintiffs, “was the day-to-day policymaker at SCOJFS.” (ECF No. 1 ¶ 9). The
Plaintiffs allege that they submitted multiple formal complaints to Defendant Walker about the
constitutional deficiencies in their investigation and case, as well as the conflicts of interest in
SCOJFS carrying out any investigation at all. (Id. ¶¶ 87–88). The Plaintiffs contend that Walker
dismissed their formal complaints, claiming they were meritless or unfounded. (Id.). The Plaintiffs
also allege that Walker facilitated or otherwise participated in the constitutional and statutory rights
alleged by Plaintiffs. (Id. ¶¶ 222, 226).
The Plaintiffs also make several allegations against the “SCOJFS Defendants” collectively,
which they have defined to include Defendant Walker. (Id. ¶ 22). Specifically, the Plaintiffs argue
that the SCOJFS Defendants, including Walker, conducted weekly meetings “to discuss and make
case decisions on all children service cases handled by SCOJFS in Ross County.” (Id. ¶ 58). The
Plaintiffs also allege that the collective decision to pursue an ex parte removal order for L.S.
occurred during one of these weekly meetings and was a decision that went “through everyone.”
(Id. ¶ 104). The Plaintiffs have asserted that the Defendants’ decisions coming out of these
meetings, including to seek ex parte removal of L.S. without sufficient investigation and to later
open unwarranted investigations against them, violated their Fourteenth Amendment rights.
Plaintiffs’ allegations that Defendant Walker was present at the meetings wherein these key
decisions were taking place, without proper investigation of the Scharbroughs or L.S.’s safety, are
sufficient to withstand the motion to dismiss. They also allege he was present at meetings after
which new cases were opened against the Scharbroughs for retaliatory reasons. Certainly, the
presence of the SCOJFS Director at case meetings where allegedly unconstitutional decisions were
being made sufficiently alleges that the Director condoned or acquiesced in this behavior. As such,
Defendant Walker’s motion to dismiss Count II against him is DENIED.
Defendant Flick raises similar arguments to those raised by Defendant Walker, which are
similarly unavailing at this stage. Defendant Flick is SCOJFS’s Protective Services Manager. (Id.
¶ 10). The Plaintiffs allege that they raised their concerns about the conflict of interest with
SCOJFS investigating one of their recent employees “multiple times,” but that Defendant Flick
dismissed those concerns. (Id. ¶¶ 114–15). A previous investigation into the Plaintiffs had been
investigated by SCOJFS in Vinton County, rather than Ross County. (Id. ¶ 37). Defendant Flick is
also included in the collective of “SCOJFS Defendants,” against whom the Plaintiffs raise several
relevant allegations. (Id. ¶ 22). As discussed, this includes the allegation that Flick was a part of
the group that made a collective decision to seek ex parte removal of L.S., despite a lack of
sufficient information, and the allegation that Flick regularly participated in weekly meetings
wherein case decisions were made. (Id. ¶¶ 58, 104). According to Plaintiffs, her participation at
these meetings where allegedly unconstitutional decisions were being made by the SCOJFS
employees constituted facilitation of or participation in the unlawful conduct. (Id. ¶¶ 230, 235).
This includes decisions that denied the Plaintiffs their due process rights and to use new
investigations to retaliate against the Plaintiffs for raising concerns. These allegations are sufficient
to withstand a motion to dismiss. Accordingly, Defendant Flick’s motion to dismiss Count III
against her is DENIED.
Defendants Evans, Lindsey, Sparks, Reeves, and Mills
The Plaintiffs also assert claims of supervisory liability against Defendants Evans, Lindsey,
Sparks, Reeves, and Mills, all of whom argue that the Plaintiffs have not met their pleading burden
to maintain these claims past the motion to dismiss stage. Defendants Evans, Sparks, and Reeves
argue that the Plaintiffs have not pled any affirmative acts to support their claim and, as such,
alleging only a failure to act is insufficient to maintain supervisory liability claims against them.
(ECF No. 15 at 19). In turn, Defendants Lindsey and Mills argue that there is no unconstitutional
behavior by a subordinate that they can be held liable for as supervisors. (Id.).
According to Plaintiffs, Defendant Evans supervised Defendant Snow, who was Plaintiffs’
initial caseworker from SCOJFS Ross County in 2018. (ECF No. 1 ¶¶ 54–55). Defendant Evans
was employed as a Protective Services Supervisor and was Cyndi’s immediate supervisor when
she was employed at SCOJFS. (Id. ¶¶ 11, 56). The Plaintiffs allege that Evans was directly
responsible for deciding that SCOJFS in Ross County would handle the case, despite a conflict of
interest. (Id.). The Plaintiffs make several allegations that Defendant Snow did not thoroughly
investigative other issues they raised to her. (Id. ¶¶ 59–60). They also allege that Defendants Snow
and Evans regularly conferred on their case in 2018 and jointly made case decisions. (Id. ¶ 71).
This includes the decision by Snow to knowingly allow L.S. to remain in the home, despite the
removal of the other children in the home ex parte. (Id. ¶ 67). Important to the Plaintiffs’ due
process and retaliation claims, the Plaintiffs contend that nothing new transpired between the
removal of the other children and the Defendants’ eventual decision to remove L.S. months later.
While these allegations provide important overall context, they pertain primarily to the
investigation concerning the other children which is not at issue in this suit. (Id. ¶ 76). As such,
the Plaintiffs have not adequately pled a claim of supervisory liability against Defendant Evans.
Defendant Evans’s motion to dismiss Count IV against her is GRANTED.
As described in the Plaintiffs’ complaint, Defendant Sparks supervised Defendant Schreck,
who was assigned to L.S.’s case in April 2019. (Id. ¶¶ 135–36). Cyndi raised several concerns
about exculpatory evidence and conflicts of interest to both Schreck and Sparks in May 2019, but
her concerns were again dismissed. (Id. ¶ 138). Cyndi alleges that Sparks, in conjunction with
Schreck, advised her to file a motion to return pertaining to L.S. and informed her that they would
support her motion. (Id. ¶ 139). Defendant Sparks, in conjunction with her subordinate, dismissed
Cyndi’s concerns about conflicts of interest in the investigation and allegedly declined to pursue
evidence that was relevant to L.S.’s case. These allegations are relevant to the Plaintiffs’ due
process claims and allege that Defendant Sparks was actively involved in and otherwise sanctioned
the purportedly insufficient and biased investigatory tactics in Plaintiffs’ case. At this stage, the
Plaintiffs have sufficiently pled a claim of supervisory liability and Defendant Sparks’s motion to
dismiss Count IV against her is DENIED.
The Plaintiffs allege that Defendant Reeves also supervised Defendant Snow, who was one
of the case workers assigned to L.S.’s case in 2019, after L.S. had been returned to Cyndi’s
custody. As discussed previously, the Plaintiffs allege that they sent L.S. to live outside of the
jurisdiction of SCOJFS, but that the agency nevertheless continued to open baseless investigations
into them. In November 2019, Defendants Snow and Radcliff came to the Plaintiffs’ shared
residence because another child services case had been opened against Cyndi. (Id. ¶ 153). Once
these employees left, Cyndi called Defendant Reeves and asked why SCOJFS was not recusing
itself from the case because of the conflict of interest. (Id. ¶ 156). Defendant Reeves informed
Cyndi that she would speak to Defendant Flick about the matter. Cyndi called several Defendants,
including Reeves, and requested that SCOJFS stop “harassing” her and her family. (Id. ¶ 159). The
Plaintiffs have alleged that later child services investigations pertaining to L.S. were part of a
course of retaliation against them and were also founded on allegations that the Defendant knew
to be baseless. Cyndi expressed concern about the conflicts of interest and the harassing nature of
the investigation to Defendant Reeves, who Plaintiffs argue acquiesced or otherwise condoned the
unlawful conduct by her subordinate. The Sixth Circuit has found the pleading standard for
supervisory liability to be satisfied by a plaintiff who alleges that a defendant “at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending
[subordinates].” Shehee, 199 F.3d at 300. The allegations by Plaintiffs do not sufficiently link
Defendant Reeves to Defendant Snow’s misconduct, such that Reeves plausibly authorized or
knowingly acquiesced in it. Plaintiffs have not sufficiently pled a claim of supervisory liability
against Defendant Reeves and so her motion to dismiss Count IV is GRANTED.
Defendant Lindsey was also employed as a Protective Services Supervisor at SCOJFS
while Plaintiffs were under investigation. Defendant Lindsey supervised the Scharbroughs’
ongoing caseworker during 2018, Defendant Radcliff. (Id. ¶¶ 78, 79). Defendant Lindsey, as well
as her subordinate Defendant Radcliff, were present for the ex parte removal of L.S. in September
2018. (Id. ¶¶ 99–100). Defendant Lindsey was present when Defendant Radcliff denied Cyndi’s
offers to submit to a voluntary safety plan for L.S. or have her placed with friends or relatives. (Id.
¶ 100). She was also present when Radcliff refused to consider non-foster care placement options
for L.S. and insisted upon taking L.S. to a foster home. (Id.). Defendant Lindsey was allegedly in
the group of SCOJFS Defendants who made the collective decision to seek removal of L.S.; the
group also included her subordinate, Defendant Radcliff. (Id. ¶¶ 104–05). This group made this
decision despite never visiting Plaintiffs’ home, notifying Plaintiffs of concerns, or obtaining
credible information or knowledge about L.S.’s living circumstances. (Id. ¶ 105). Defendant
Lindsey also supervised Defendants Perry and Schreck. Defendant Perry was assigned to the
Plaintiffs’ case in November 2018. (Id. ¶ 122). The Plaintiffs allege that Defendant Perry
threatened and coerced them into stipulating to a dependency after offering favorable arrangements
concerning L.S. The Plaintiffs also allege that they called Defendant Lindsey in 2019, when
Defendants Schreck and Radcliff were again assigned to the case, and asked SCOJFS to stop
harassing them via the investigations when L.S. was not in the jurisdiction. (Id. ¶ 159).
The Plaintiffs do not plead that Defendant Lindsey knew of, authorized, or acquiesced in
either Perry or Schreck’s conduct toward the Plaintiffs. The Plaintiffs do, however, make sufficient
allegations that Lindsey was actively involved in Defendant Radcliff’s unlawful conduct toward
them, such that she could be considered a participant in it or, at the very least, that she had
authorized or acquiesced in it. Accordingly, Plaintiffs have stated a claim of supervisory liability
against Defendant Lindsey and her motion to dismiss Count IV is DENIED.
The Plaintiffs allege that Defendant Mills was present during the ex parte removal of L.S.
and also participated in investigations into the Plaintiffs in summer 2020, despite the Plaintiffs’
continued assertions that L.S. did not reside with Duston and in fact did not live within the purview
of SCOJFS for Ross County. (Id. ¶¶ 99, 177–78). The Plaintiffs do not, however, make any
allegations that Defendant Mills supervised anyone and thus a claim for supervisory liability has
not been adequately pled against her. Defendant Mills’s motion to dismiss Count IV against her
is therefore GRANTED.
The Plaintiffs’ Monell Claim May Proceed
A municipality may also be held liable under 42 U.S.C. § 1983 for constitutional violations.
In order to pursue a § 1983 claim against a municipality, a plaintiff must allege an unconstitutional
action that “implements or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers” or a “constitutional deprivation visited
pursuant to governmental ‘custom’ even though such a custom has not received formal approval
through the body’s official decisionmaking channels.” Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658, 690–91 (1978). Like supervisory liability, a municipality may not be held
liable for the acts of its employees under a theory of respondeat superior. Id. at 691. The Plaintiffs
have brought a Monell claim against SCOJFS and RSCO, alleging that these entities had a custom,
policy, pattern, or practice of tolerating unconstitutional behavior by its employees, including
retaliation and improper removal of children. (ECF No. 1 at 37–40). SCOJFS and RSCO move for
dismissal of the claims against them because the complaint does not identify a prior incident or
pattern. (ECF No. 15 at 20). They also argue that the Plaintiffs cannot prove the required elements
of a “failure to supervise” theory of liability. (ECF No. 15 at 21–22).
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must adequately plead “(1)
that a violation of a federal right took place, (2) that the defendants acted under color of state law,
and (3) that a municipality’s policy or custom caused that violation to happen.” Bright v. Gallia
County, 753 F.3d 639, 660 (6th Cir. 2014) (citing Lambert v. Hartman, 517 F.3d 433, 439 (6th
Cir. 2008)). Municipal liability will lie if the plaintiff has pled that a government’s custom is “so
permanent and well-settled as to constitute a custom or usage with the force of law” or when the
government’s official policy is the “moving force” of the constitutional violation. See Mathis v.
Ohio Rehab. & Corr., No. 2:10-cv-574, 2010 WL 39822345, at *2 (S.D. Ohio Oct. 7, 2010)
(quoting Davenport v. Simmons, 192 F. Supp. 2d 812, 824 (W.D. Tenn. 2001) and Monell, 436
U.S. at 694).
The Plaintiffs have alleged that SCOJFS acquiesced in, approved of, or otherwise
maintained a custom, practice, or policy of deliberate indifference to the unconstitutional behaviors
by its staff in assessing, investigating, and intervening in child services cases. (ECF No. 1 ¶¶ 188–
89). They allege that SCOJFS was aware of the unconstitutional behavior by its agents, but took
no substantive action to reprimand, discipline, or other correct these behaviors. (Id. ¶¶ 190–92).
The Plaintiffs also argue that SCOJFS maintained a custom or practice of deliberate indifference
to retaliation, reliance on known false allegations to pursue action against individuals, and The
Plaintiffs also allege a policy of failing to investigate allegations of unconstitutional behavior by
its employees. (Id. ¶ 208). Finally, they allege a failure by SCOJFS to supervise its employees
adequately in their assessments, investigations, and interventions of child abuse, neglect, and
dependency. (Id. ¶ 211). As to RSCO, the Plaintiffs allege that the entity also maintained a policy
or custom of aiding SCOJFS in entry to homes and removal of children without exigent
circumstances or other adequate justification, and that RSCO was deliberately indifferent to these
alleged constitutional violations. (Id. ¶ 213–17). The Plaintiffs allege that the agents of SCOJFS
and RSCO, who engaged in the unconstitutional behavior, were acting in accordance with the
customs, policies, and practices of their employers.
The Defendants, however, attempt to hold Plaintiffs to a standard of proving their case this
stage, rather than make adequate allegations to survive a motion to dismiss. This demands too
much. The Plaintiffs have repeatedly alleged in their complaint that the violations of their
constitutional and civil rights resulted from customs, practices, and/or policies of SCOJFS and
RSCO. They have also alleged a course of wrongful conduct towards them by SCOJFS and its
employees, over the course of several years, coupled with formal complaints. The Plaintiffs also
argue that the removal of their other children without proper investigation suffices to show a
pattern. (ECF No. 22 at 25). This is sufficient to survive the motion to dismiss as to Monell liability.
See, e.g., Lyons v. Jacobs, No. 2:16-cv-813, 2017 WL 4168369, at *7 (S.D. Ohio Sept. 20, 2017)
(finding that where Plaintiffs had alleged that the violations of their constitutional and civil rights
were a direct result of the city’s “custom, practice and/or policy,” a Monell claim could proceed).
It is also unclear to the Court whether the Plaintiffs have asserted a distinctive “failure to
supervise” claim, as the Defendants argue. The Plaintiffs have styled Count I of their complaint as
“Unconstitutional Policies and Customs,” arising pursuant to “42 U.S.C. § 1983 (MONELL).” A
failure to supervise its employees adequately is but one of many alleged customs, practices, and
policies that the Plaintiffs allege should give rise to liability here. According to Plaintiffs, they
expressed their concerns about constitutional deficiencies in the investigatory tactics and decisions
of SCOJFS employees, both orally and in formal, filed complaints. SCOJFS and its employees
deemed those allegations “meritless” and decided to maintain the allegedly deficient policies.
When a municipality is on actual or constructive notice that particular omissions in training or
supervision leads to a violation of constitutional rights, a decision to retain that program may be
deemed deliberately indifferent. Connick v. Thompson, 563 U.S. 51 (2011). A so-called “policy of
inaction,” when a municipality is on notice of constitutional violations, can be considered the
“functional equivalent of a decision by the [municipality] itself to violate the Constitution.” Id.
(quoting Canton, 489 U.S. at 395). At this stage, the Plaintiffs have sufficiently alleged deliberate
indifference by SCOJFS, who was on actual notice that its child services investigations and
interventions were constitutionally deficient. Accordingly, Defendants’ motion to dismiss Count
I of the complaint is DENIED.
Plaintiffs’ Intentional Infliction of Emotional Distress Claim May Proceed
The Defendants also seek to dismiss several of Plaintiffs’ state law claims against them on
the grounds that the Plaintiffs have failed to state a claim. This Court will first consider
Defendants’ motion to dismiss Plaintiffs’ claim for intentional infliction of emotion distress. The
Defendants argue that the Plaintiffs have not put forth sufficient facts to support the claim that they
suffered severe emotional distress and the conduct alleged does not rise to the level of extreme or
outrageous. (ECF No. 15 at 22–23). The Plaintiffs respond that the care, custody, and control of
their children is one of the most serious rights provided under the Constitution. (ECF No. 22 at
25). They further argue that the unlawful separation from L.S. meets the standard for outrageous
conduct and that they can produce records of emotional trauma. (Id. at 26–27).
To state a claim for intentional infliction of emotional distress, a plaintiff must prove “(1)
that the defendant intended to cause the plaintiff serious emotional distress, (2) that the defendant’s
conduct was extreme and outrageous, and (3) that the defendant’s conduct was the proximate cause
of plaintiff’s serious emotional distress.” Phung v. Waste Mgmt., Inc., 410, 644 N.E.2d 286, 289
(Ohio 1994). Conduct will not be considered extreme and outrageous if it amounts to “mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.” Ettayem v. Ramsey, No.
17AP-155, 2019 WL 952037, at *5 (Ohio Ct. App. Feb. 26, 2019) (quoting Yeager v. Local Union
20, 453 N.E.2d 666, 671 (Ohio 1983) (overruled on other grounds)). The conduct must instead go
beyond the bounds of decency and be “utterly intolerable in a civilized community.” See id. What
the Plaintiffs have alleged here—the removal of a child from the home without sufficient
investigation and on known false information, as well as the use of the child services system to
retaliate against the Plaintiffs for expressing their concerns—is not a mere insult or petty
oppression. If taken as true, the alleged conduct is beyond the bounds of decency.
The Defendants also argue that the Plaintiffs have not adequately pled that they suffered
an emotional injury from L.S.’s removal. Ohio law instructs that severe emotional distress is shown
when there is an emotional injury that is severe and debilitating. See Mendlovic v. Life Line
Screening of Am., Ltd., 877 N.E.2d 377, 386 (Ohio Ct. App. 2007). In their complaint, the Plaintiffs
state several times that the Defendants’ conduct has caused them “severe mental emotional
distress” and “severe anxiety.” (ECF No. 1 ¶¶ 248, 260, 267). The mere fact that these statements
appear in the claims for relief section, rather than the facts section, does not defeat their claim,
especially as this Court is to construe the pleadings of pro se litigants liberally. Taking Plaintiffs’
well-pled allegations as true, this Court finds that the Plaintiffs may sustain a claim for intentional
infliction of emotional distress. Accordingly, the Defendants motion to dismiss Count XV is
Plaintiffs’ Loss of Consortium Claim May Proceed
Ohio courts have long recognized a cause of action for a loss of consortium, wherein a
parent loses the companionship of their child can seek to recover damages. See, e.g., Gallimore v.
Children’s Hosp. Med. Ctr., 617 N.E.2d 1052, 1053–54 (Ohio 1993). The Defendants argue that
the Plaintiffs cannot state a claim for loss of consortium because they cannot establish an
underlying tort and the Plaintiffs respond that they have put forth facts to sustain several different
torts. (ECF No. 15 at 23; ECF No. 22 at 27). This Court has already found that the Plaintiffs have
sufficiently pled facts to sustain a claim for intentional infliction of emotional distress, in additional
to their federal constitutional claims. The Plaintiffs also raise several other tort claims against the
Defendants, including interference with parental interest and criminal acts.
The Defendants also argue that the loss of consortium claim cannot stand without any
physical injury to L.S. (ECF No. 15 at 23). The Plaintiffs respond that parents may pursue recovery
for losses that result from interference with the parent-child relationship. (ECF No. 22 at 27). Ohio
law does recognize a loss of consortium claim “when the child has actually been removed from
the parent’s company.” Bock v. Hamilton Cnty. Bd. of Park Comm’rs, 726 N.E.2d 509, 510 (Ohio
Ct. App. 1999); see also Gallimore, 617 N.E.2d at 1057 (noting that a loss of consortium includes
“services, society, companionship, comfort, love and solace”). Given that Ohio allows parents to
bring loss of consortium claims for removal of their children, the Plaintiffs have pled sufficient
allegations to state a claim because they allege that the Defendants removed L.S. from their
company without proper investigation or adequate justification. As a result, the Defendants’
motion to dismiss Count XVI is DENIED.
Plaintiffs’ Civil Conspiracy Claim May Proceed
Like their argument about Plaintiffs’ loss of consortium claim, the Defendants also argue
that the Plaintiffs cannot state a claim for civil conspiracy because they cannot establish an
underlying tort. The Plaintiffs again respond that they have pled a variety of underlying torts and
that it cannot be said at this stage, as a matter of law, that there exists “no proof tending to establish
a conspiracy.” (ECF No. 22 at 27). This Court has already found that they have pled sufficient
facts to sustain a claim for intentional infliction of emotional distress. The Plaintiffs also raise
several other tort claims against the Defendants, including interference with parental interest and
criminal acts, which have not been dismissed by this Court. From the face of the complaint, The
Plaintiffs have raised adequate allegations that the Defendants’ conspired together to deprive them
of custody of L.S., including through the Defendants’ weekly meetings. Accordingly, the
Defendants’ motion to dismiss Count XVIII is DENIED.
Defendants Snow, Perry, Lightle, and Schreck each independently move to dismiss the
claims against them. Each argues that the Plaintiffs have not pled sufficient facts to sustain any
claim against them. These claims include First Amendment retaliation, Fourteenth Amendment
procedural and substantive due process claims, interference with parental interest, intentional
infliction of emotional distress, loss of consortium, criminal acts, and civil conspiracy.
Defendant Snow seeks to dismiss the claims against her because many of the factual
allegations about her conduct related to the removal of the Plaintiffs’ other children, which is not
the subject of this lawsuit. Ms. Snow was assigned as the Plaintiffs’ initial caseworker in 2018,
including the period when the other children were removed from the Plaintiffs’ custody. According
to Plaintiffs, Defendant Snow permitted L.S. to remain at home when the other children were
removed, despite possessing the same information she did when SCOJFS later sought removal of
L.S. (ECF No. 1 ¶ 77). In November 2019, Defendant Snow was allegedly part of the group that
initiated another child services investigation against the Plaintiffs, who threatened to take custody
of L.S. and to open children services cases on knowingly false allegations. (Id. ¶ 153). This conduct
occurred shortly after the Plaintiffs were threatened in court for their decision to marry and the
Plaintiffs’ refusals to cooperate with an investigation, beyond informing the Defendants that L.S.
no longer resided within SCOJFS’s jurisdiction. (Id. ¶¶ 150–51). This conduct also occurred
immediately after the SCOJFS Defendants had their weekly case meeting together. Taking
Plaintiffs’ well-pled allegations as true, Defendant Snow’s 2019 conduct can reasonably support
the Plaintiffs’ claims under the federal Constitution and Ohio law. Defendant Snow’s motion to
dismiss the claims against her is DENIED.
Defendant Perry also seeks dismissal of Plaintiffs’ claims against her, claiming insufficient
facts have been pled to support any of the asserted claims. Defendant Perry became the Plaintiffs’
caseworker in November 2018, following the removal of L.S. from the Plaintiffs’ home and
Duston’s appeal concerning the sexual abuse disposition. Cyndi relayed to Perry all the relevant
evidence that had not been pursued by SCOJFS and again raised the couple’s concerns that an
adequate investigation was not being conducted. (Id. ¶ 123). Defendant Perry dismissed Cyndi’s
concerns and then improperly pressured Cyndi to forgo a juvenile court trial. (Id. ¶ 124). Perry
suggested that the Juvenile Court would give SCOJFS whatever SCOJFS sought and that if Cyndi
would stipulate to a dependency of the other children, she could have unsupervised visits with L.S.
and the ICPC process would be started so that L.S. could live with Cyndi’s parents. (Id.). A few
months later, Perry was part of a group who offered to drop the sexual abuse allegations if Cyndi
would stipulate to a dependency. The Plaintiffs accepted the stipulation, fearing further retaliation
and the loss of permanent custody. (Id. ¶ 126). Cyndi further alleges that Perry defied the juvenile
court’s order and refused to give Cyndi weekend visits with L.S. (Id. ¶¶ 126–27). Perry never
began the ICPC process to place L.S. with Cyndi’s parents. Taken together, the Plaintiff’s
allegations suggest that Perry used L.S. as a bargaining chip to achieve a stipulation to dependency
in the other children’s cases and made threats to achieve this outcome. She also interfered with the
juvenile court’s order of weekend visits. Accepting Plaintiffs’ well-pled allegations as true,
Defendant Perry’s conduct is sufficient to sustain Plaintiffs’ claims against her under the federal
Constitution and Ohio law. As a result, Defendant Perry’s motion to dismiss is DENIED.
Defendant Lightle also moves to dismiss the Plaintiffs’ claims against him, arguing that
the Scharbroughs have not put forth sufficient allegations to sustain claims against him. Defendant
Lightle became involved with the Plaintiffs in July 2020. Cyndi came to stay at the Plaintiffs’
shared apartment because she had been subpoenaed for her husband’s trial, but the trial was then
continued. The same day Cyndi left the shared apartment, the SCOJFS Defendants had a weekly
meeting, after which they initiated another children services case against Cyndi. (Id. ¶ 175).
Following the meeting, Defendant Lightle came to the shared apartment and left his business card,
along with a letter, for Cyndi. The letter instructed Cyndi that he wanted to meet with her a few
days later at a set time, and that a failure to attend the appointment could result in court action. (Id.
¶ 176). When Cyndi called Mr. Lightle, he informed her that SCOJFS was investigating an
allegation that L.S. was living with Duston in violation of the no-contact order. (Id. ¶ 177). This
allegation was identical to the allegation investigated in November 2019. (Id.).
Cyndi again informed Mr. Lightle that L.S. was living outside of SCOJFS’s jurisdiction
and had not had any contact with her father. (Id.). Nonetheless, Mr. Lightle arrived at the Plaintiffs’
shared apartment at the set time, where Duston was present. (Id. ¶ 178). Duston repeated that L.S.
resided outside the county’s jurisdiction. (Id.). Mr. Lightle and Ms. Mills searched the apartment
and found no indication L.S. had ever been present in the apartment. (Id. ¶ 179). After this incident,
Duston filed another formal complaint with Defendant Walker, to which he has never received a
response. (Id. ¶ 180). Taken together, the Plaintiffs allege that Defendant Lightle was part of a
group that decided to open another investigation into Cyndi without any new evidence that
warranted an investigation. If accepted as true, the allegations against Mr. Lightle are adequate to
state a claim against him under the First and Fourteenth Amendments and also support the Ohio
tort claims against him. Accordingly, Defendant Lightle’s motion to dismiss the Plaintiffs’ claims
against him is DENIED.
Finally, Defendant Schreck also argues that the claims against her must be dismissed
because they are not supported by sufficient factual allegations. Defendant Schreck became
involved with the Plaintiffs’ case in late April 2019 when she was assigned as their ongoing
caseworker. On May 10, 2019, Cyndi again expressed her concerns to Ms. Schreck and Ms. Sparks
about the insufficient investigation by SCOJFS, as well as the conflict of interest. (Id. ¶ 138).
Cyndi also informed them that she had obtained her own apartment and was living apart from
Duston to facilitate L.S.’s return to her custody. (Id. ¶ 139). Upon hearing that Cyndi was residing
in a new apartment, Ms. Schreck and Ms. Sparks agreed to return L.S. to Cyndi’s custody and told
her they would support her filing a “motion to return” to formalize L.S.’s return to her custody.
(Id.). With Ms. Schreck’s approval, L.S. returned to Cyndi’s custody a few weeks later. Ms.
Schreck allowed Cyndi and L.S. to visit Cyndi’s family in Virginia. Finally, Ms. Schreck approved
of L.S. moving to Virginia in July 2019. (Id. ¶ 141). The motion to return was granted ten days
later and SCOJFS closed their case on L.S. (Id. ¶ 142). Following the Plaintiffs’ marriage in
September 2019, Ms. Schreck questioned the Plaintiffs about L.S., demanding to know her
whereabouts and school enrollment status. (Id. ¶ 151). The Plaintiffs responded that L.S. lived
outside the jurisdiction of Juvenile Court and SCOJFS. (Id.). They also told Ms. Schreck that L.S.
had no contact with Duston. (Id.). Ms. Schreck also called Cyndi’s mother and sought information
about L.S. (Id. ¶ 157). Ms. Schreck told Cyndi’s mother that another case was being initiated
against Cyndi. (Id.). Taking Plaintiffs’ well-pled allegations as true, Ms. Schreck harassed them
and opened new investigations against them because they got married, even though she had
previously approved the move of L.S. to Virginia—outside SCOJFS’s jurisdiction. She pursued
that investigation against them, despite knowing that L.S. with no adequate information that L.S.
had returned to the jurisdiction. These allegations are sufficient to allow Plaintiffs’ constitutional
and Ohio law claims against Ms. Schreck to proceed past the motion to dismiss stage. Thus, Ms.
Schreck’s motion to dismiss is DENIED.
For the reasons discussed above, Defendants’ Motion to Dismiss (ECF No. 13) is
GRANTED IN PART and DENIED IN PART. Counts X and XI are dismissed as to all
Defendants. Count IV is dismissed as to Defendants Evans and Reeves. Count VII and Count IX
are dismissed as to Defendants Speakman and Sams.
IT IS SO ORDERED.
DATED: June 7, 2021
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
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