Arsan v. Keller et al

Filing 68

REPORT AND RECOMMENDATIONS: County Defendants' Motion for Judgment on the Pleadings 47 be GRANTED, in part, as to Plaintiff's first cause of action against Defendants Keller, Weinman, Amburn, Penney, Coomer, and King; and as to Plaintiff 's second, third, fourth, fifth, sixth, and seventh causes of action; County Defendants' Motion for Judgment on the Pleadings 47 be DENIED, in part, as to Plaintiff's first cause of action against Defendant Weber; and Defendant Jennifer Otto nka McDermotts Motion for Judgment on the Pleadings 57 be GRANTED. Objections to R&R due by 2/14/2018. Signed by Magistrate Judge Sharon L. Ovington on 1/31/2018. (lk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NANCY ARSAN,
Plaintiff,
vs.
BETH KELLER, et al.,
Defendants.

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Case No. 3:17-cv-121
District Judge Walter H. Rice
Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Nancy Arsan brings this action alleging Defendants violated her

constitutional rights, including her Fourth Amendment right against unreasonable
searches and seizures; Fifth Amendment right against self-incrimination; Fourteenth
Amendment right to equal protection under the law; and her right to due process of law.
She further alleges Defendants conspired to deprive her of her constitutional rights. Last,
she alleges Defendants Greene County Children’s Services, Greene County, Ohio, and
Greene County Board of Commissioners failed to properly train and failed to properly
supervise their employees.
This case is presently before the Court upon County Defendants’ Motion for
Judgment on the Pleadings (Doc. #47), Plaintiff’s Response (Doc. #49), Defendants’

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Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

Reply (Doc. #53), Defendant Jennifer McDermott’s Motion for Judgment on the
Pleadings (Doc. #57), and Plaintiff’s Response (Doc. #58).
II.

Background
The present case stems from custody disputes concerning Plaintiff’s two

children—Karson and Kaden. Plaintiff is of Syrian descent and is a Maronite Christian.
(Doc. #1, PageID #s 8, 13). She speaks English and works as an interpreter. Id.
Plaintiff alleges that on April 29, 2015, Defendant Kristi Weber, a caseworker for
the Greene County Children’s Services Board, pounded on her door, and “[w]hen
Plaintiff opened the door, Weber, without a warrant, without consent and without
identifying herself, pushed her way into Plaintiff’s residence.” Id. at 5. Weber told
Plaintiff “there was a report that the Plaintiff was abusing drugs in her home and
neglecting her children.” Id. at 6. Plaintiff suggested that one of her son’s father had
threatened to take their child and “it was probably him who made such a report.” Id.
When she showed Weber text messages supporting her statement, Weber looked through
Plaintiff’s other messages without permission. Id. Weber also began searching
Plaintiff’s house, going into other rooms and opening a closet. Id. Plaintiff’s two-yearold son, Karson, “was crying and afraid” and “Plaintiff also began to cry because
Defendant Weber was upsetting her child, refused to leave and was searching her
premises without either a warrant or permission.” Id. at 7. Weber asked about Plaintiff’s
other son, Kaden, and Plaintiff reported he was with his aunt. As it turns out, Kaden’s
aunt is Defendant Jennifer McDermott, a former employee of Greene County Children’s

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Services, and sister of Kristopher Otto, Kaden’s father. Id. at 7, 15. Weber then went out
to the porch to verify Kaden was with McDermott. Id. at 7.
“When Defendant Weber returned[,] Plaintiff again asked Weber to leave but
Weber stated that she would not leave until Plaintiff admitted to something or she would
do an emergency removal and take Karson immediately.” Id. Plaintiff did not, and
Weber went outside again to call McDermott back. Id. Weber then came back inside and
“stated that she would not leave until Plaintiff submitted to a drug test[.]” Id. Plaintiff
said that she would go to Weber’s office the next day. Id. “Weber refused to leave and
began pretending she did not understand Plaintiff’s accent[.]” Id. at 8. “It was late in the
evening and Plaintiff, under duress and to get Weber to leave, admitted to smoking
marijuana in the past[.]” Id. Weber then “demanded a drug test, [and] [u]nder duress,
Plaintiff complied and when asked by Weber, stated that she took Adderall for ADHD[.]”
Id. Weber “swabbed Plaintiff’s mouth and collected the swab but did not seal it, which is
against protocol for taking the test[.]” Id. “Weber again threatened to immediately take
her son if Plaintiff did not agree to a safety plan,” and thus, “Plaintiff and her child
Karson were placed on a safety plan with her friend Brittany Hunter as the supervisor of
the plan[.]” Id. Weber told Plaintiff she must report the next day to Greene County
Children’s Services.
The next day, at Greene County Children’s Services, Plaintiff met with Weber,
Beth Keller, and Kaden’s father, Kristopher Otto (who attended via telephone). Id. at 4,
9. “Plaintiff was told that she was acting too emotionally, [] Plaintiff explained that in
her culture people express their feelings more openly, [] Defendant Keller told her that
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here they could find her crazy for acting in that manner[.]” Id. at 10. Plaintiff requested
a neutral caseworker but Keller denied her request and named McDermott—without a
background check or drug test—the supervisor of the safety plan for Karson. Id.
After the meeting, Plaintiff found out that Defendants McDermott, Keller, and
Weber had personal relationships and were friends on Facebook. Id. Before the
meetings that included McDermott, she met with the staff of Greene County Children’s
Services—without Plaintiff—for about an hour. Id.
When Plaintiff’s mother arrived from Lebanon, Plaintiff requested that she be
named the supervisor of Karson’s safety plan. Id. After Keller denied her request,
Plaintiff told Keller that they took her child without a court order and she planned to hire
an attorney. Id. at 11. Keller informed her that her mother could not be named
supervisor until she found an Arabic interpreter. Id. But, “Plaintiff was informed by a
friend that Keller’s statement was false since an interpreter had already been
appointed[.]” Id. Plaintiff’s mother then became the supervisor of the safety plan for
Karson. Id. Later, Weber went back to Plaintiff’s residence with a police officer. Id.
She told Plaintiff that she had received “a tip that Plaintiff had violated the safety plan
because her mother had taken a nap in the other room[.]” Id. Weber “demanded that
Plaintiff make Defendant McDermott supervisor of the plan or she would remove
Karson, Plaintiff in fear agreed[.]” Id. Later, Michael Klumb, Karson’s father, became
supervisor of the safety plan for Karson. Kaden’s father, Kristopher Otto, became
supervisor of the safety plan for Kaden. Id. at 12.

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At some later point, Weber called Plaintiff to inform her that the drug test was
positive for high levels of methamphetamines and amphetamines. Id. Plaintiff, wanting
to discuss these results, went to Greene County Children’s Services. Id. She was told
she could not see Weber without an appointment, and Plaintiff said she would wait. Id.
After about an hour, “Plaintiff heard the Defendant say to Weber that the foreign lady
was still in the waiting room[.]” Id. Plaintiff then met with Weber and Keller and
requested a copy of the drug test results but they refused to provide her a copy. Id. at 1213.
A few months later, Kelly Mohammad was assigned as Plaintiff’s new
caseworker. Id. at 13. She provided Plaintiff with a copy of the drug test results. Id.
Later, when Plaintiff confronted Keller about her refusal to give Plaintiff the results,
“Keller stated that she had not understood Plaintiff due to her accent.” Id.
On May 22, 2015, Weber testified at a hearing in the Greene County Juvenile
Court that she received a report that Plaintiff was using methamphetamine, physically
abusing her children, and “had been seen smoking crack cocaine[.]” Id. at 9. Weber
indicated that she informed Plaintiff of these allegations when she first visited her home
on April 29, 2015. Id. She reported Plaintiff’s drug test revealed high levels of
methamphetamines and amphetamines. Id. She further testified that Plaintiff had no
criminal record and “noted no concerns regarding the condition of Plaintiff’s residence.”
Id. Weber also reported that she had not received the results of Plaintiff’s second drug
test. Id. at 13. Plaintiff’s “second drug test was negative and had been with Defendant
Greene County Children’s Services prior to the hearing[.]” Id. Weber “later stated that
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the results of this test had been given to the wrong person, [and] Defendant Keller
affirmed this statement. Id.
After the hearing, temporary custody of Karson Klumb was granted to his father,
Michael Klumb. Id. Mr. Klumb does not live in Greene County and thus, Greene
County Children’s Services terminated its involvement with Karson. Id. at 14.
On May 29, 2015, Defendant Amy Weinman, Program Resource Manager at
Greene County Children’s Services, “approved a finding that physical abuse and neglect
of Kaden Otto and Karson Klumb was substantiated[.]” Id. at 3, 13. Greene County
Children’s Services filed for custody of Kaden and “gave custody to Kris Otto under their
supervision[.]” Id. at 14. Plaintiff explained, “Custody actions were filed by the fathers
of Kaden and Karson and used information from Defendant Greene County Children’s
Services to obtain custody of these children[.]” Id. at 15.
Greene County Children’s Services gave Plaintiff a set of steps to complete to be
re-united with her children. Id. at 14. One of the steps required a psychological
evaluation plus group and individual therapy for two years. Id. Plaintiff’s psychologist
and psychiatrist—who she had been seeing for four years—“wrote a letter to [] Greene
County Children’s Services stating that they had no basis to believe additional therapy
was necessary[.]” Id. Weber “called the Plaintiff’s psychologist to claim that they had
not properly diagnosed the Plaintiff and suggest the altering of their diagnosis[.]” Id.
During this time period, supervisors of caseworkers at Greene County Children’s
Services had “Administrative Review meetings” at least weekly. Id. The supervisors
involved in these meeting include Defendants Amy [Amburn], [Lana] Penney, Joshua
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Coomer, and Chad King. Id. at 15. They “reviewed and approved the work of
Defendants Weber and Keller in Plaintiff’s case begun on April 29, 2015[.] Id. at 14.
III.

Standard of Review
Defendants Beth Keller, Kristi Weber, Christina Knowles, Amy Weinman, Amy

Amburn, Lana Penney, Joshua Coomer, Chad King, Greene County Department of Job &
Family Services, Children Services Division, Greene County, Ohio Board of
Commissioners, and Greene County, Ohio (County Defendants) contend that Judgment
on the Pleadings is warranted in their favor. (Doc. #47). Defendant Jennifer McDermott
also asserts that Judgment on the Pleadings should be granted in her favor. (Doc. #57).
A Rule 12(c) motion “is granted when no material issue of fact exists and the party
making the motion is entitled to judgment as a matter of law.” Paskvan v. Cleveland
Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991); see Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (citations omitted) (“The standard of review
for a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.”). “In reviewing the motion, [the Court]
must construe the complaint in the light most favorable to the plaintiff, [and] accept all of
the complaint’s factual allegations as true ….” Hoven v. Walgreen Co., 751 F.3d 778,
783 (6th Cir. 2014) (citing Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir.
2001)).
Under Federal Rule of Civil Procedure 8, “A pleading that states a claim for relief
must contain: … a short and plain statement of the claim showing that the pleader is
entitled to relief; and … a demand for the relief sought ….” This standard “does not
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require ‘detailed factual allegations,’ but it demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ 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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citation and internal quotation
marks omitted) (“a complaint must contain (1) enough facts to state a claim to relief that
is plausible, (2) more than a formulaic recitation of a cause of action’s elements, and (3)
allegations that suggest a right to relief above a speculative level.”).
IV.

Discussion
a.

Greene County Children’s Services Board

Defendants contend that the Greene County Department of Job & Family Services,
Children Services Division (identified improperly by Plaintiff as Greene County
Children’s Services Board) is a branch of the Greene County government and therefore
lacks the capacity to be sued. (Doc. #47, PageID #251). Plaintiff agrees that it is a
division of Defendant Greene County, Ohio and under the supervision and control of
Defendant Greene County Board of Commissioners. (Doc. #49, PageID #270).
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As a branch of the County government, Greene County Children’s Services Board
lacks the capacity to be sued (i.e., is not sui juris). Adams v. Montgomery Cnty.
Children’s Servs., No 3:15cv127, 2015 WL 4638872, at *3 (S.D. Ohio Aug. 4, 2015)
report and recommendation adopted, 2016 WL 224096 (S.D. Ohio Jan. 19, 2016) (Rose,
D.J.)(citing Wilson v. Trumbull Cnty. Dep’t of Job & Family Servs., No. 4:12cv2163,
2013 WL 5820276, at *3 (N.D. Ohio Oct. 29, 2013) (and cases cited therein); Evans v.
Cordray, No. 2:09cv587, 2012 WL 1021698, at *3 (S.D. Ohio Mar. 26, 2012); McGuire
v. Ameritech Servs., Inc., 253 F.Supp.2d 988, 1015 (S.D. Ohio 2003)). Accordingly,
Defendant Greene County Children’s Services Board must be dismissed as a party.
b.

Fifth Amendment Claim

County Defendants contend, “Because the allegations in Plaintiff’s Complaint do
not pertain to criminal proceedings, and Plaintiff has never been compelled to testify as a
witness against herself in a criminal proceeding arising out of the instant case, the Court
should dismiss Plaintiff’s claim under the Fifth Amendment.” (Doc. #47, PageID #251).
Under the Fifth Amendment, “No person … shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. Amend. V.2 As Plaintiff correctly
observes, “the ‘Fifth Amendment privilege against compulsory self-incrimination ... can
be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory
or adjudicatory ….’” Chavez v. Martinez, 538 U.S. 760, 770, 123 S.Ct. 1994, 2002-03,
155 L.Ed.2d 984 (2003) (plurality opinion) (quoting Kastigar v. United States, 406 U.S.
2

The Fifth Amendment is made applicable to the States by the Fourteenth Amendment. Malloy v.
Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

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441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)); see Lefkowitz v. Turley, 414 U.S.
70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973) (“The Amendment not only protects the
individual against being involuntarily called as a witness against himself in a criminal
prosecution but also privileges him not to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.”).
Although an individual may assert the privilege in any proceeding, there was in
years past a question of whether an individual “has suffered the requisite constitutional
injury for purposes of a § 1983 action” if the compelled statement is not used in a
criminal case. McKinley v. City of Mansfield, 404 F.3d 418, 430 (6th Cir. 2005)
(citations omitted). In 2005, the Sixth Circuit answered that question: “it is now clear
that ‘mere coercion does not violate the … Self-Incrimination Clause absent use of the
compelled statements in a criminal case.’ It is only once compelled incriminating
statements are used in a criminal proceeding … that an accused has suffered the requisite
constitutional injury for purposes of a § 1983 action.” Id. (quoting Chavez, 538 U.S. at
769; citing Lingler v. Fechko, 213 F.3d 237, 238-40 (6th Cir. 2002)).3
In the present case, Plaintiff did make incriminating statements, admitting—
“under duress and to get Weber to leave”—that she had smoked marijuana in the past.

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In 2015, the Sixth Circuit again examined the Supreme Court’s opinion in Chavez—this time
recognizing the effects of the plurality opinion. Moody v. Michigan Gaming Control Bd., 790 F.3d 669
(6th Cir. 2015). The Court explained that in Chavez, the plaintiff answered the police officer’s questions,
but, in the case before them, the plaintiffs did not answer questions—invoking their rights not to
incriminate themselves. Id. The Court concluded, “Chavez only applies where a party actually makes
self-incriminating statements ….” Id. (internal quotation marks and citation omitted).

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(Doc. #1, PageID #8). Plaintiff does not allege, however, that she was prosecuted for a
crime or compelled to be a witness against herself in a criminal case. Accordingly,
Plaintiff fails to state a plausible claim under the Fifth Amendment.
c.

Due Process Claim

County Defendants assert Plaintiff’s due process claim must fail because “her own
Complaint establishes that she was afforded a hearing on the custody of her children and
that she was represented by counsel. Further, Plaintiff cannot plead that the County
Defendants prevented her from defending herself against the reports of child abuse and
drug use.” (Doc. #47, PageID #254).
The Fourteenth Amendment provides, “[n]o State shall ... deprive any person of
life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1.
The Due Process clause has a substantive component and a procedural component—and
Plaintiff claims Defendants violated her right to both.
Substantive Due Process
“Substantive due process … serves the goal of preventing governmental power
from being used for purposes of oppression, regardless of the fairness of the procedures
used.” Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996) (quoting, in part, Daniels
v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (internal
quotation marks omitted)). Substantive due process claims generally fall under “two
categories: (1) deprivations of a particular constitutional guarantee; and (2) actions that
shock the conscience.” EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 861 (6th
Cir. 2012) (quoting Valot v. S.E. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th
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Cir. 1997) (internal quotation marks omitted)). In the present case, Plaintiff’s claim that
her substantive rights as a parent were violated falls under the first type.
Importantly, “Substantive-due-process challenges usually do not survive if a
provision of the Constitution directly addresses the allegedly illegal conduct at issue.”
Smith v. Jefferson Cnty. Bd., 641 F.3d 197, 217 (6th Cir. 2011) (citing Montgomery v.
Carter Cnty., 226 F.3d 758, 769 (6th Cir. 2000)).
[T]he Supreme Court has repeatedly cautioned that the
concept of substantive due process has no place when a
provision of the Constitution directly addresses the type of
illegal governmental conduct alleged by the plaintiff. See,
e.g., Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989) (concluding that the
reasonableness or unreasonableness of force used by police
during an investigatory stop or arrest must be analyzed as a
Fourth Amendment claim, rather than under “the more
generalized notion of ‘substantive due process”).
Carter Cnty., 226 F.3d at 769.
Plaintiff’s claims that Defendants Weber and Keller violated her due process
rights by using “information obtained from an unreasonable search and seizure, [and] a
forced incriminating statement[.]” The Fourth Amendment specifically addresses
unreasonable search and seizure and the Fifth Amendment specifically addresses selfincrimination. Accordingly, these claims must be analyzed under the Fourth Amendment
and Fifth Amendment—not under substantive due process.4 See Doc. #1, Page ID #s 1617.
4

In Plaintiff’s response, she appears to allege ethnic discrimination also violated her substantive due
process rights. To the extent that is what she is alleging, it must be analyzed in connection with her
Fourteenth Amendment equal protection claim.

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Plaintiff, however, asserts other violations of her substantive due process rights.
And, she correctly observed that parents have a “right to the care, custody, and control of
their children.” (Doc. #49, PageID #272). Indeed, “the Supreme Court has repeatedly
reaffirmed the existence of a constitutional right to the maintenance of a parent-child
relationship.” Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006); see Lassiter v. Dep’t
of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Troxel v.
Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (“it cannot now
be doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and control
of their children.”). However, “the right to family integrity, while critically important, is
neither absolute nor unqualified.” Kottmyer, 436 F.3d at 690 (citing Martinez v. Mafchir,
35 F.3d 1486, 1490 (10th Cir. 1994)). “The right is limited by an equaling compelling
governmental interest in the protection of children, particularly where the children need
to be protected from their own parents.” Kottmyer, 436 F.3d at 690 (citing Myers v.
Morris, 810 F.2d 1437, 1462 (8th Cir. 1987)).
In the State of Ohio, “the juvenile court decides whether to grant permanent
custody to [the county’s department of children and family services] or to grant legal
custody to a relative.” Pittman v. Cuyahoga Cnty. Dep’t of Children & Family Servs.,
640 F.3d 716, 729 (6th Cir. 2011) (citing Ohio Rev. Code §§ 2151.353(A)(3),
2151.414(A)(1)). In Pittman, a father alleged that the county’s department of children
and family services determined that he was unfit for placement or custody of his child
because the social worker mishandled the caregiver approval process and made
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detrimental misrepresentations about him in an internal proceeding. 640 F.3d at 729.
The Sixth Circuit found that even if the father’s allegations were true, “this did not result
in the failure to award or to even consider [the father] for placement or custody.” Id.
Although the “caseworker makes an initial determination as to the appropriate placement
for a child in CCDCFS custody, that determination is not binding on interested parties,
including the parents, until the juvenile court approves and journalizes the child’s case
plan; if a parent disagrees with the CCDCFS case plan, his recourse is with the juvenile
court, which will hear ‘evidence on the contents of the case plan’ and, ‘based upon [that]
evidence ... and the best interest of the child, shall determine the contents of the case
plan.’” Id. (citing Ohio Rev. Code § 2151.412(D)). The Court concluded, “Because the
juvenile court has the ultimate decisionmaking power with respect to placement and
custody, it alone could deprive [a parent] of his fundamental right. Id.; see also Teets v.
Cuyahoga Cnty., 460 F. App’x 498, 502 (6th Cir. 2012) (“Because Ohio law refers
custody decisions to the juvenile court, which has independent authority to conduct
hearings and collect evidence, we held that even intentional misrepresentations by a
social worker during an investigation leading up to Ohio custody proceedings do not
violate the parent’s substantive due process rights because the social worker has no
independent ability to institute the alleged deprivation.”) (citation omitted).
Plaintiff alleges that Defendants Weber and Keller “refused to provide the Plaintiff
with the results of her drug tests, most notably the clean test obtained by Defendants prior
to the May 22, 2015 custody hearing, placed persons in the positions of safety plan
supervisors without following protocols, removed Plaintiff’s children through
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intimidation and coercion and attempted to interfere with the reporting of the Plaintiff’s
psychologist to deprive the Plaintiff of her children ….” (Doc. #1, Page ID #18).
However, because these matters are pertinent to Plaintiff’s custody rights and because
Defendants Weber and Keller have “no independent ability” to deprive Plaintiff of her
children, Plaintiff’s allegations are insufficient to state a plausible due process claim
against these Defendants.
Procedural Due Process
“The touchstone of procedural due process is the fundamental requirement that an
individual be given the opportunity to be heard ‘in a meaningful manner.’” Grinage, 82
F.3d at 1349 (quoting Loudermill v. Cleveland Bd. of Educ., 721 F.2d 550, 563 (6th Cir.
1983)). “To establish a procedural due process claim, a plaintiff must show that (1) [she]
had a life, liberty, or property interest protected by the Due Process Clause; (2) [she] was
deprived of this protected interest; and (3) the state did not afford [her] adequate
procedural rights. Daily Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014)
(citing Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006)). “A
procedural due process limitation … does not require that the government refrain from
making a substantive choice to infringe upon a person’s life, liberty, or property interest.
It simply requires that the government provide ‘due process’ before making such a
decision.” Grinage, 82 F.3d at 1349 (“The goal is to minimize the risk of substantive
error, to assure fairness in the decision-making process, and to assure that the individual
affected has a participatory role in the process.”).

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In the present case, the parties do not dispute the first and second elements. At
issue is whether Plaintiff was afforded adequate due process. Plaintiff maintains, “While
it is true that the Plaintiff was given a hearing concerning the custody of her child, this
hearing was hardly a fair or meaningful hearing and was tainted by the use of material in
the testimony of Kristi Weber obtained by an illegal entry into the Plaintiff’s home and
by coercion ….” (Doc. #49, PageID #274). Further, Plaintiff claims the results of the
second drug test were withheld, Defendant Weber violated protocol in obtaining the first
drug-test swab, and Defendant Weber’s actions were under the direction of and in
collaboration with Defendant McDermott. Id.
Plaintiff’s argument fails because, as explained in more detail above, “placement
determinations are the province of the juvenile court. …” Pittman, 640 F.3d at 730. In
Pittman, the Court found that the social worker’s mishandling of the caregiver approval
process and the social worker’s interference with the parent’s right to notice of the
custody proceedings did not violate the parent’s procedural due process rights. Id. The
Court stressed that the social worker “is not responsible for any deficiencies in [the
child’s] custody proceedings before the juvenile court, and she has not violated [the
parent’s] procedural due process right to those proceedings.” Id.
In the present case, Plaintiff acknowledges that she had a hearing prior to her
deprivation. And, like the parent in Pittman, she was represented by counsel at the
hearing. Id. at 730 (“the fact that Pittman had his own counsel implies that the fairness of
the underlying juvenile court proceedings was not compromised.” (citing Lassiter, 452
U.S. at 27 (“If, as our adversary system presupposes, accurate and just results are most
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likely to be obtained through the equal contest of opposed interests, the State’s interest in
the child’s welfare may perhaps best be served by a hearing in which both the parent and
the State acting for the child are represented by counsel, without whom the contest of
interests may become unwholesomely unequal.”). According, Plaintiff’s procedural due
process claim fails.
d.

Equal Protection Claim

County Defendants assert, “Plaintiff fails to plead that her rights under the equal
protection clause were violated, and the Court should dismiss this claim against the
County Defendants.” (Doc. #47, PageID #258).
Under the Fourteenth Amendment’s Equal Protection Clause, “No State shall …
deny to any person within its jurisdiction the equal protection of the laws. U.S. Const.
Amend. XIV. “The Equal Protection Clause prohibits discrimination by government
which either burdens a fundamental right, targets a suspect class, or intentionally treats
one differently than others similarly situated without any rational basis for the
difference.” Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 681-82 (6th Cir. 2011)
(citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005)). “To state
an equal protection claim, a plaintiff must adequately plead that the government treated
the plaintiff ‘disparately as compared to similarly situated persons and that such disparate
treatment either burdens a fundamental right, targets a suspect class, or has no rational
basis.’” Ctr. for Bio–Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir.
2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470
F.3d 286, 299 (6th Cir. 2006)); see Raymond v. O’Connor, 526 F. App’x 526, 530 (6th
17

Cir. 2013) (“‘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 used by government decision-makers.’”) (quoting
Scarbrough v. Morgan Cnty., 470 F.3d 250, 260 (6th Cir. 2006)).
Defendants assert that Plaintiff’s equal protection claim fails because she did not
“identify any similarly situated, Caucasian, individuals who were treated differently by
the County Defendants.” (Doc. #47, PageID #247). But, Plaintiff disagrees—
Defendants make much of the terms “similarly situated
persons” and go to great lengths trying to turn the Equal
Protection Clause into a search for identical twins. Similarly
situated persons in this instance are mothers, plain and
simple: mothers. Are other clients of the Defendants referred
to as “the foreign lady”? Are other mothers claimed to be
unable to be understood to avoid providing documents and
relevant information although the facts demonstrate a
professional facility with English on the part of the Plaintiff?
Are other mothers told that if they act according to their
cultural norms and backgrounds that they could be found
“crazy”? …
(Doc. #49, PageID #276). These questions, however, are not for the Court or Defendants
to answer: “In making an equal protection challenge, the plaintiff must demonstrate that
a discrimination of some substance has occurred which has not occurred against other
individuals who were similarly situated.” Hall v. Callahan, 727 F.3d 450, 457 (6th Cir.
2013) (emphasis added) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)).
Plaintiff alleges in her complaint: “Defendants Weber, Keller, and Receptionist
Christina (Last name unknown) discriminated against the Plaintiff based upon her

18

ethnicity and race in their interactions with and the reports generated by them for
Defendant Greene County Children’s Services, thereby violating the Plaintiff’s
Fourteenth Amendment right to equal protection under the law[.]” (Doc. #1, PageID #s
18-19).
Notably, Plaintiff does not allege in her complaint that she was treated differently
from other mothers or other individuals who are similarly situated to her. Nor can a
reasonable inference of such arise from the facts alleged in her Complaint. To the extent
that she now claims that Mr. Otto, Mr. Klumb, Ms. McDermott, and Ms. Hunter are
similarly situated, her argument fails because Plaintiff does not allege any of them were
being investigated for drug use and neglect of their children. “Courts do not require
‘exact correlation’ when evaluating whether parties are similarly situated, but they do
demand ‘relevant similarity.’” Ryan v. City of Detroit, 174 F. Supp. 3d 964, 976 (E.D.
Mich. 2016), aff’d sub nom. Ryan v. City of Detroit, 698 F. App’x 272 (6th Cir. 2017)
(citing Loesel, 692 F.3d at 462; Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120
L.Ed.2d 1 (1992)).
In Plaintiff’s response, she asserts that “non-Middle Eastern, white persons were
treated differently than the Plaintiff and her mother.” (Doc. #49, PageID #s 275-76).
Specifically, several individuals—all of whom are both Caucasian and American—were
named supervisor of the safety plans for one or both of Plaintiff’s children without
background checks: Brittany Hunter, Doc. #1, Page ID #s 8-9, ¶¶53-55; Jennifer
McDermott, id. at 10, ¶¶73-75; Michael Klumb, id. at 12, ¶¶87-89; and Kris Otto, id. at
12, ¶¶90-92. By comparison, when Plaintiff’s mother arrived from Lebanon and Plaintiff
19

requested she be named the supervisor of the safety plan for Karson, Defendant Keller
initially denied her request. Id. at 10-11, ¶¶76-77.
Plaintiff also claims in her response that her mother was similarly situated:
Obviously, Plaintiff’s mother, was similarly situated as a
relative of the children for the supervisor of the children’s
safety plan, except she was an Arab. Thus, she was treated
differently and other white, non-Arab relatives of the children
were given preference. Therefore, the Plaintiff was denied
the ability to have a relative from her family as supervisor and
that right was given to the members of the father’s side of the
family based on ethnicity as the actions of the caseworkers
demonstrate.
(Doc. #49, PageID #276).
There are three errors in Plaintiff’s analysis. First, Plaintiff’s Complaint does not
state or even suggest an equal protection claim based on Defendants’ interactions with
Plaintiff’s mother. See Robertson v. Lucas, 753 F.3d 606, 623 (6th Cir. 2014) (“Rule 8
requires that a plaintiff’s pleadings ‘give the defendant fair notice of what the claim is
and the grounds upon which it rests.’”) (citation omitted). Second, Plaintiff does not cite
any authority for her proposition that she has a right to “have a relative from her family
as supervisor.” Finally, to extent that Plaintiff is asserting that Defendants violated her
mother’s right to equal protection, “a ‘plaintiff generally must assert his own legal rights
and interests, and cannot rest his claim to relief on the legal rights or interests of third
parties.’” Jefferson Cnty. Bd., 641 F.3d at 206 (quoting Valley Forge Christian Coll. v.
Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982)). Although this “rule against third-party standing is not absolute[,]”
Plaintiff provides no explanation as to why she should be permitted to bring a claim on
20

behalf of her mother. Jefferson Cnty. Bd., 641 F.3d at 208 (citing Kowalski v. Tesmer,
543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004)).
Accordingly, Plaintiff’s claim under the equal protection clause fails.
e.

Conspiracy

County Defendants and Defendant McDermott contend that Plaintiff failed to state
a claim for civil conspiracy under 42 U.S.C. § 1985(3), 42 U.S.C. § 1983, or Ohio law.
(Doc. #47, PageID #s 258-60); (Doc. #53, PageID #s 304-07); (Doc. #57, PageID #s
320-28).
Plaintiff broadly describes the alleged conspiracy,
Defendants Weber and McDermott planned and acted in
concert to deprive the Plaintiff of her rights against
unreasonable searches and seizures, self-incrimination, and
due process of law and committed overt acts of forcible entry,
demanding incriminating statements, all based upon false or
unverified information and utilized such actions and false and
unverified information to coerce the Plaintiff into accepting
unjustified safety plan supervisors and the removal and/or
change of custody of her children[.]
(Doc. #1, PageID #19-20). She further alleges that Defendants Weinman, Amburn,
Penney, Coomer, and King “reviewed the actions of Defendants Weber and Keller on
these occasions delineated in [her Complaint] Paragraph 153 and failed to discipline
Weber or Keller in any way,” id. at 20, ¶ 153,5 and “ratified and endorsed the actions of
Defendants Weber and Keller and their plan on these occasions ….” Id. at 20, ¶154. It is
not clear if Plaintiff intended to allege that these Defendants reviewed the actions of
5

Given that this allegation was made in paragraph 153, Plaintiff presumably intended to refer to
paragraph 152.

21

Defendant Weber and McDermott or if she intended to allege Defendants Weber and
Keller planned and acted in concert.
42 U.S.C. § 1985
To state a claim for conspiracy under § 1985(3), a plaintiff must allege:
(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges or
immunities of the laws; (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right or privilege of a
citizen of the United States.
Center for Bio–Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir.
2007) (citing Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003)). Additionally, “[t]he
Supreme Court requires that § 1985 claims contain allegations of ‘class-based,
invidiously discriminatory animus.’” Webb v. United States, 789 F.3d 647, 672 (6th Cir.
2015) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338
(1971)).
Plaintiff does not allege that Defendants Weber and McDermott were motivated
by racial or any other class-based animus. Indeed, in the entire complaint, Plaintiff does
not allege facts reasonably suggesting that there was any “class-based invidiously
discriminatory animus” behind any of Defendant McDermott’s actions. And even if
Plaintiff alleged Defendant Weber acted with discriminatory animus, her conspiracy
claim would fail because she does not allege that Defendant McDermott shared that
animus. See Pahssen v. Merrill Cnty., 668 F.3d 356, 368 (6th Cir. 2012) (“a plaintiff
alleging a conspiracy to deprive her of her civil rights must establish that the alleged

22

conspirators shared a common discriminatory objective.”) (citing Hinkle v. City of
Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)).
42 U.S.C. § 1983
To state a claim for conspiracy under § 1983, a plaintiff must allege: “‘(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.’” Faith Baptist Church
v. Waterford Twp., 522 F. App’x 322, 329 (6th Cir. 2013) (quoting Revis v. Meldrum,
489 F.3d 273, 290 (6th Cir. 2007)). “Although circumstantial evidence may prove a
conspiracy, ‘[i]t is well-settled that conspiracy claims must be pled with some degree of
specificity and that vague and conclusory allegations unsupported by material facts will
not be sufficient to state such a claim under § 1983.’” Gavitt v. Born, 835 F.3d 623, 647
(6th Cir. 2016) (quoting Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 563 (6th Cir.
2011)).
Plaintiff’s conclusory allegations are not sufficient plead a plausible § 1983 claim.
She does not allege that a single plan existed. Instead, she merely states, “Defendants
Weber and McDermott planned and acted in concert ….” (Doc. #1, PageID #19).
Plaintiff’s “failure to plead a plan or agreement to violate [her] constitutional rights is
fatal to [her] conspiracy claim.” Heyne, 655 F.3d at 564 (citing Mettetal v. Vanderbilt
Univ., 147 F. App’x 577, 585 (6th Cir. 2005) (district court correctly dismissed certain
conspiracy claims for failure to allege that the parties had entered into an agreement or
formed a single plan)).

23

Ohio Law
Plaintiff also asserts in her Response that she plausibly states a claim of civil
conspiracy under Ohio law: “Plaintiff would also point to her jurisdictional statement in
which she invokes this Court’s supplemental jurisdiction. ...” (Doc. #49, PageID #279).
“In Ohio, a civil conspiracy consists of the following: (1) a malicious combination; (2)
two or more persons; (3) injury to person or property; and (4) existence of an unlawful
act independent from the actual conspiracy.” Replogle v. Montgomery Cnty., No.
3:09cv102, 2009 WL 1406686, at *6 (S.D. Ohio May 19, 2009) (Rice, D.J.) (citing
Universal Coach v. NYC Transit Auth., 90 Ohio App.3d 284, 629 N.E.2d 28 (1993).
“Conspiracy claims must be pled with some degree of specificity; vague and conclusory
allegations unsupported by material facts will not be sufficient to state a claim.”
Replogle, 2009 WL 1406686, at *7 (citing Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th
Cir. 1987)).
Plaintiff contends, “there exists, as pleaded a combination with a malicious
purpose (to deprive the Plaintiff of her child), involving at least three (Weber, Keller,
McDermott, and also the Defendant supervisors), which resulted in a personal injury, (the
loss of her child), and the torts of defamation and misuse of process.” (Doc. # 49,
PageID #280).
Plaintiff does not allege any defamatory statements by Defendants Weber or
McDermott. This is a fatal omission because Ohio law requires as an essential element of
a defamation claim “‘(a) a false and defamatory statement concerning another; …’”
Harris v. Bornhorst, 513 F.3d 503, 522 (6th Cir. 2008) (quoting Akron–Canton Waste
24

Oil, Inc. v. Safety–Kleen Oil Serv., Inc., 81 Ohio App.3d 591, 611 N.E.2d 955, 962
(1992)). Nor does Plaintiff allege “misuse of process.” “To establish an abuse of process
claim under Ohio law, a plaintiff must show that (1) a legal proceeding has been
commenced in proper form and with probable cause; (2) the proceeding has been
perverted to attempt to accomplish an ulterior motive for which it was not designed; and
(3) direct damage has resulted from the wrongful use of process.” Gillman v.
Schlagetter, 777 F. Supp. 2d 1084, 1098 (S.D. Ohio 2010) (Rose, D.J.) (citing Hahn v.
Star Bank, 190 F.3d 708, 718 (6th Cir. 1999)). Plaintiff does not allege, and the facts do
not suggest, that Defendants committed any unlawful act independent from the
conspiracy itself. Accordingly, Plaintiff’s claim for civil conspiracy under Ohio law
fails.
f.

Failure to Train or Supervise

To succeed on a municipal liability claim under § 1983, a plaintiff “must
demonstrate both: (1) the deprivation of a constitutional right, and (2) the [municipality]
is responsible for that violation.” Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist.,
455 F.3d 690, 700 (6th Cir. 2006) (citing Doe v. Claiborne Cnty., 103 F.3d 495, 505-06
(6th Cir. 1996)). County Defendants take issue with the second requirement.
“[A] municipality cannot be held liable solely because it employs a tortfeasor—or,
in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. Dep’t of. Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036
(1978). “Instead, it is when execution of a government’s policy or custom, whether made
by its lawmakers or those whose edicts or acts may fairly be said to represent official
25

policy, inflicts the injury that the government as an entity is responsible under § 1983.”
Monell, 436 U.S. at 694.
In the present case, Plaintiff brings both failure to train and failure to supervise
claims. For either claim to survive, plaintiff must allege the following: “(1) the training
or supervision was inadequate for the tasks performed; (2) the inadequacy was the result
of the municipality’s deliberate indifference; and (3) the inadequacy was closely related
to or actually caused the injury.” Ellis, 455 F.3d at 700; see Regets v. City of Plymouth,
568 F. App’x 380, 394 (6th Cir. 2014).
The second requirement—deliberate difference—sets “a stringent standard of
fault, requiring proof that a municipal actor disregarded a known or obvious consequence
of his action.” Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 1360, 179
L.Ed.2d (2011) (quoting Board of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410,
117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)); see Miller v. Sanilac Cnty., 606 F.3d 240, 255
(6th Cir. 2010) (“To establish deliberate indifference, the plaintiff ‘must show prior
instances of unconstitutional conduct demonstrating that the County has ignored a history
of abuse and was clearly on notice that the training in this particular area was deficient
and likely to cause injury.’”) (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir.
2005)).
Plaintiff alleges that three cases provided adequate notice to the county:
“employees of Greene County Children’s Services have been sued for racial and ethnic
discrimination and irregularities and failure to follow protocols leading to deprivation of
Constitutional rights.” (Doc. #1, PageID #21). These allegations, however, are far too
26

general and conclusory to meet the stringent standard required. See Sova v. City of Mt.
Pleasant, 142 F.3d 898, 904 (6th Cir. 1998) (“Mere allegations that an officer was
improperly trained or that an injury could have been avoided with better training are
insufficient to prove liability.”). Further, complaints that “concern unrelated allegations
of misconduct” do not support a failure to train or supervise claim. Smith v. City of
Akron, 476 F. App’x 67, 70 (6th Cir. 2012). It is settled that “[o]nly where a
municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate
indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of
as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton v. Harris,
489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Plaintiff’s conclusory
allegations are insufficient to establish a history of abuse or show notice that training in a
particular area was deficient. Plaintiff does not explain what allegations of misconduct
were alleged in the cases she named or even that the allegations were the same as those
alleged by Plaintiff in the present case. The plaintiffs in each case named by Plaintiff
appear to be former employees of Greene County Children’s Services—unlike Plaintiff in
the present case. In Prado v. Mazeika, No. 3:16cv320 (S.D. Ohio), the complaint was
filed in August 2016—more than one year after the events alleged by Plaintiff in the
present case. Because Plaintiff did not adequately allege deliberate indifference, her
claims for failure to train and failure to supervise fail.
g.

Qualified Immunity

County Defendants contend that the individual Defendants are entitled to qualified
immunity. “The doctrine of qualified immunity protects government officials ‘from
27

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.’”
Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 251
(1982)). “In resolving a government official’s qualified immunity claims, [courts] look
to whether (1) the facts that the plaintiff has alleged or shown establish the violation of a
constitutional right, and (2) the right at issue was ‘clearly’ established at the time of the
alleged misconduct.” Stoudemire v. Michigan Dep’t of Corrs., 705 F.3d 460, 567 (6th
Cir. 2013). “[I]t is generally inappropriate for a district court to grant a 12(b)(6) [or
12(c)] motion … on the basis of qualified immunity. Although an officer’s entitle[ment]
to qualified immunity is a threshold question to be resolved at the earliest possible
point…, that point is usually summary judgment and not dismissal under Rule 12.”
Wesley v. Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015) (internal quotation marks and
citations omitted)).
For the reasons stated above regarding Plaintiff’s failure to state plausible
constitutional claims, Plaintiff has not alleged facts sufficient to state a claim for violation
of her Fifth Amendment right against self-incrimination; her Fourteenth Amendment
right to equal protection under the law; or her right to due process of law. See supra §§
IV(b)-(d).
This leaves Plaintiff’s unreasonable-search claim. Plaintiff does not allege any
direct involvement of Defendants Keller, Weinman, Amburn, Penney, Coomer, and King.
Instead, she alleges that they “reviewed the actions of Defendant Weber on these
28

occasions when [she] forcibly entered Plaintiff’s residence and failed to discipline Weber
in any way[.]” (Doc. #1, PageID #16). Plaintiff also claims they “ratified and endorsed
the actions of Defendant Weber ….” Id. at 17. As explained in more detail above, §
1983 liability cannot be premised solely on the theory of respondeat superior. Monell,
436 U.S. at 691. And, a “mere failure to act” cannot substantiate a § 1983 claim based on
a theory of supervisor liability. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999).
Accordingly, Plaintiff has not stated a constitutional violation; Defendants Keller,
Weinman, Amburn, Penney, Coomer, and King are entitled to qualified immunity.
Plaintiff, however, alleged Defendant Weber personally violated her Fourth
Amendment right against unreasonable searches. But, Defendants assert that Defendant
Weber is entitled to qualified immunity. Once defendants raise qualified immunity,
“plaintiff bears the burden of showing that defendants are not entitled to qualified
immunity.” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015) (citing Reilly v.
Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012)). “At the pleading stage, this burden is
carried by alleging facts plausibly making out a claim that the defendant’s conduct
violated a constitutional right that was clearly established law at the time, such that a
reasonable officer would have known that his conduct violated that right.” Id. (citing
Wesley, 779 F.3d at 428); see Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86
L.Ed.2d 411 (1985) (“Unless the plaintiff's allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is entitled to dismissal before
the commencement of discovery.”) (citing Harlow, 457 U.S. at 818).

29

Plaintiff alleges that Defendant Weber “forcibly entered the Plaintiff’s residence
on April 29, 2015 without a warrant, court order or consent or emergency circumstances
and refused to leave although repeatedly asked to do so. Weber searched Plaintiff’s
residence and opened a closet without consent[,] and on a subsequent occasion again
forcibly entered the Plaintiff’s premises without a warrant or consent ….”
(Doc. #1, PageID #16).
Plaintiff has adequately asserted a plausible violation of her constitutional right to
be free from unreasonable searches. “[A] social worker, like other state officers, is
governed by the Fourth Amendment’s warrant requirement. This would simply mean
that social workers would have to obtain consent, have sufficient grounds to believe that
exigent circumstances exist, or qualify under another recognized exception to the warrant
requirement before engaging in warrantless entries and searches of homes.” Andrews v.
Hickman Cnty., 700 F.3d 845, 859-60 (6th Cir. 2012); see Kovacic v. Cuyahoga Cnty.
Dep’t of Children & Family Servs., 724 F.3d 687, 695 (6th Cir. 2013). Defendants do not
assert any recognized exceptions to the warrant requirement apply in the circumstances
Defendant Weber faced. Viewing the record in the light most favorable to Plaintiff, she
has alleged a violation of her Fourth Amendment right to be free from unreasonable
searches.
The next question is whether this right was “clearly established in a ‘particularized
sense.’ That is, the right said to have been violated must be defined ‘in light of the
specific context of the case, not as a broad general proposition.’” Moseley, 790 F.3d at
654 (citing Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583
30

(2004) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272
(2001)). “The plaintiff has the burden of demonstrating that the law was clearly
established at the time of the challenged conduct.” Andrews, 700 F.3d at 853 (citing
Hughes v. City of North Olmsted, 93 F.3d 238, 241 (6th Cir. 1996)).
Plaintiff, rather than pointing to a specific case, asserts:
What lay person doesn’t know that you can’t force your way
into someone’s home? What lay person doesn’t know that
you can’t force a person to admit to a crime? What human
being doesn’t know that you can get a mother to do or say
anything by threatening to take her children? These are all
basic constitutional knowledge. Barbaric behavior towards a
mother is just a question of basic human decency. If a lay
person would know all of this, what about a supposedly
trained caseworker?
(Doc. #49, PageID #284). These epistemological musings are unhelpful. They do
nothing to show it was clearly established at the time of Defendant Weber’s actions that
social workers cannot enter a home without a warrant or an exception to the warrant
requirement.
Nonetheless, recent Sixth Circuit case law leans in Plaintiff’s favor. See Andrews,
700 F.3d at 865, fn. 7 (“to find a clearly established right, absent extraordinary
circumstances, a district court looks to ‘binding precedent by the Supreme Court, its court
of appeals or itself.’”) (quoting Ohio Civil Serv. Emps. Ass’n v. Seiter, 858 F.2d 1171,
1177 (6th Cir. 1988)). In 2012, the Sixth Circuit—recognizing “the presumption that
state actors are governed by the Fourth Amendment and the sanctity of the home under

31

the Fourth Amendment—unambiguously found that the Fourth Amendment governs
entries and searches of homes made by social workers.”6 Andrews, 700 F.3d at 859-60.
In the present case, the events in question occurred on or after April 29, 2015—
over two years after the Court’s decision in Andrews. To that end, Andrews would have
alerted a reasonable social worker in Defendant Weber’s position that the Fourth
Amendment applied to her decision to enter Plaintiff’s home. See Bing v. City of
Whitehall, 456 F.3d 555, 571 (6th Cir. 2006); Malley v. Briggs, 475 U.S. 335, 341, 106
S.Ct. 1092, 1096 89 L.Ed.2d 271 (1986) (Qualified immunity “provides ample protection
to all but the plainly incompetent or those who knowingly violate the law.”).
Accordingly, it was clearly established at the time Defendant Weber entered
Plaintiff’s home that social workers conducting an investigation are subject to the Fourth
Amendment’s warrant requirement.
IT IS THEREFORE RECOMMENDED THAT:
1.

County Defendants’ Motion for Judgment on the Pleadings (Doc.
#47) be GRANTED, in part, as to Plaintiff’s first cause of action
against Defendants Keller, Weinman, Amburn, Penney, Coomer,
and King; and as to Plaintiff’s second, third, fourth, fifth, sixth, and
seventh causes of action;

6

Although the Andrews Court recognized “that the Fourth Amendment’s strictures apply to social worker
actions,” the Court concluded that at the time (2012), “the reasonable social worker faced with the
circumstances of this case could not ascertain from clearly established law the legality of her conduct.”
700 F.3d at 860-62 (footnote omitted); see Hall v. Sweet, 666 F. App’x 469, 479-80 (6th Cir. 2016)
(“Since then, this circuit has continued to hold that it was not clearly established that the warrant
requirement applied to social workers conducting similar investigations prior to the Andrews decision, at
least through 2011.”) (citing Brent v. Wenk, 555 F. App’x 519 (6th Cir. 2014); Barber v. Miller, 809 F.3d
840 (6th Cir. 2015)).

32

2.

County Defendants’ Motion for Judgment on the Pleadings (Doc.
#47) be DENIED, in part, as to Plaintiff’s first cause of action
against Defendant Weber; and

3.

Defendant Jennifer Otto nka McDermott’s Motion for Judgment on
the Pleadings (Doc. #57) be GRANTED.

January 31, 2018

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

33

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

34