Booker v. Sullivan et al

Filing 35

ORDER RULING ON REPORT AND RECOMMENDATIONS for 23 Report and Recommendations; Booker's complaint is dismissed without prejudice and without issuance and service of process; 3 Motion to Appoint Counsel filed by Patrick L Booker is DENIED. Signed by Honorable Henry M Herlong, Jr on 8/22/11. (sfla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION

Patrick L. Booker, #297590, personally
and as next friend for J.J., a minor,
Plaintiff,
vs.
Brandy P. Sullivan, Human Services
Specialist II; Tammy Childs, Human
Services Specialist II; Shawnee Peeples,
Greenville County Sheriff’s Investigator;
Greenville County Sheriff’s Office,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

C.A. No. 8:11-1131-HMH-JDA
OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States
Magistrate Judge Jacquelyn D. Austin, made in accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02 of the District of South Carolina.1 Patrick L. Booker (“Booker”), a pro se state
prisoner, filed a civil rights action under 42 U.S.C. § 1983 “personally and as next friend for J.J.,2
a minor, alleging violation of his and his minor child’s constitutional rights, and seeking money
damages, as well as declaratory judgement.” (Compl. at 1.) Booker is a state prisoner currently
incarcerated at Lieber Correctional Institution, a South Carolina Department of Corrections

1

The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See Mathews v. Weber, 423
U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific objection is made. The court may
accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge
or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
2

Booker refers to J.J. as Janet in his complaint. The court will refer to Booker’s
daughter as J.J. throughout the order.

(“SCDC”) facility and is proceeding pro se under 28 U.S.C. § 1915. Magistrate Judge Austin
recommends that the complaint be dismissed without prejudice and without issuance and service
of process and that the motion to appoint counsel be denied.
I. FACTUAL AND PROCEDURAL HISTORY
According to the complaint, in September 2008, the mother of Booker’s child, J.J.,
agreed after an investigation by the South Carolina Department of Social Services (“DSS”) for
physical neglect and drug abuse (drug testing determined that the children had been exposed to
drugs), to place her children, including J.J., in the care of grandparents while she received
treatment. (Compl. ¶¶ 7-9.) On November 4, 2008, Brandy P. Sullivan (“Sullivan”) was
appointed as the social services caseworker. (Id. ¶ 13.) In January 2009, drug testing again
revealed that two of the mother’s minor children had been exposed to drugs. (Id. ¶ 14.) J.J. did
not test positive for exposure to drugs. (Id.) Pursuant to agreement, the mother’s contact with
her children was restricted to supervised visitation. (Id. ¶ 15.)
On February 6, 2009, Shawnee Peeples (“Peeples”) of the Greenville County Sheriff’s
Office (“GCSO”) and Sullivan visited the mother’s home and discovered two minor children
present without supervision by either grandparent. (Compl. ¶¶ 17-18, 22.) Booker alleges that
Peeples placed the two children in emergency custody and then went to J.J’s school and placed
her in emergency custody without a court order or probable cause and without any evidence that
the children were in imminent danger. (Id. ¶ 23.) Booker submits that at “the probable cause
hearing, Sullivan and Peeples claimed that the minor children were taken into emergency custody
without a court order because the child has loss [sic] adult protection and supervision” and
intentionally misrepresented J.J.’s location when she was taken into custody. (Id. ¶ 33.) Further,
Booker alleges that he was not informed of the emergency removal of J.J. and was not notified of
2

the 72-hour probable cause hearing. (Id. ¶ 26.) In addition, Booker contends Sullivan made
several misrepresentations in the removal petition, which was prepared by Tammy Childs
(“Childs”), including indicating that J.J. was at the residence when she was removed when in fact
she was removed from school; failing to state that the grandmother arrived at the residence
before the children were removed; and indicating that Booker’s address was unknown. (Id. ¶ 43.)
Booker raises the following claims: (1) due process violation for “arbitrary interference
with family association” and failure to provide notice and opportunity to be heard, (2)
“Fourteenth Amendment right to be free of judicial deception,” (3) violation of J.J.’s Fourth
Amendment right to be free from unreasonable seizure, and (4) state law claims for false
imprisonment of J.J., denial of access to J.J.’s medical records, failure to comply with state law
notice requirements, and gross negligence. In addition, Booker moves for the appointment of
counsel.
II. DISCUSSION OF THE LAW
A. Report and Recommendation
Magistrate Judge Austin recommends denying Booker’s motion for appointment of
counsel because there are “no unusual circumstances to justify the appointment of counsel in this
case.” (Report & Recommendation 6.) In addition, the magistrate judge found that Booker could
not proceed pro se on behalf of his minor child. Further, the magistrate judge found that J.J.’s
Fourth Amendment rights were not violated when she was placed in protective custody because
she was afforded procedural due process as a hearing was held within 72 hours of J.J. being
placed in state custody. In addition, the magistrate judge recommends declining supplemental
jurisdiction over J.J.’s state law claim against GCSO. As to Booker’s due process claim, the
magistrate judge recommends dismissing the claim because Sullivan and Childs have absolute
3

immunity for prosecutorial actions and Booker fails to state a claim for any nonprosecutorial
actions. Finally, Magistrate Judge Austin recommends declining to excercise supplemental
jurisdiction over Booker’s state law claims. (Report & Recommendation, generally.)
B. Objections
Objections to the Report and Recommendation must be specific. Failure to file specific
objections constitutes a waiver of a party’s right to further judicial review, including appellate
review, if the recommendation is accepted by the district judge. See United States v. Schronce,
727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and
Recommendation of the magistrate judge, this court is not required to give any explanation for
adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Upon review, the court finds that some of Booker’s objections are non-specific, unrelated
to the dispositive portions of the magistrate judge’s Report and Recommendation, or merely
restate his claims. However, Booker argues that the magistrate judge erred in finding that
counsel should not be appointed in this case. In addition, Booker objects to the magistrate
judge’s conclusion that J.J.’s Fourth Amendment rights and due process rights were not violated
when she was taken into emergency custody. Further, Booker argues that his due process rights
were violated when he did not receive notice of the 72-hour probable cause hearing and he was
deprived of his right to family association. Finally, Booker argues that Sullivan and Childs are
not entitled to absolute immunity for their misrepresentations at the 72-hour probable cause
hearing and in the petition.
1. J.J.’s Fourth Amendment and Procedural Due Process Claim
Booker raises a Fourth Amendment claim on behalf of J.J. alleging that she was seized in
violation of her rights when she was taken into protective custody at school. Booker objects to
4

the magistrate judge’s conclusion that the seizure was proper and that J.J. “received the required
procedural due process.” (Objections at 13-16; Report & Recommendation 7.) As an initial
matter, “non-attorney parents generally may not litigate the claims of their minor children in
federal court.” Myers v. Loudoun County Public Sch., 418 F.3d 395, 401 (4th Cir. 2005).
Further, “it is well settled that in civil actions [under § 1983] the appointment of counsel should
be allowed only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); 28
U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford
counsel.”). However, “[i]f it is apparent . . . that a pro se litigant has a colorable claim but lacks
the capacity to present it, the district court should appoint counsel to assist him.” Gordon v.
Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978). Booker has moved for the appointment of counsel.
However, after de novo review, the court finds that Booker has failed to show exceptional
circumstances or a colorable claim for relief for the reasons set forth in the Report and
Recommendation. Based on the foregoing, Booker cannot proceed on J.J.’s Fourth Amendment
and due process claims.3 These claims are dismissed without prejudice.
2. Absolute Immunity
Booker objects to the magistrate judge’s conclusion that Sullivan and Childs are entitled
to absolute immunity based on alleged material false statements made by Sullivan at the hearing
and contained in the removal petition prepared by Childs. (Objections at 19-21; Compl. ¶¶ 2730, 37.) Booker argues that the alleged misstatements were “non-prosecutorial acts.”

3

Booker objects that the magistrate judge failed to evaluate whether J.J. had stated a
claim for violation of her liberty interest in family association. (Objections at 22.) However,
this objection does not support a finding of exceptional circumstances because it fails for the
same reasons as Booker’s claim for interference in family association.
5

(Objections at 19-21.) “[A]bsolute immunity applies . . . to those activities of social workers that
could be deemed prosecutorial.” Vosburg v. Dep’t of Soc. Servs., 884 F.2d 133, 138 (4th Cir.
1989); Gedrich v. Fairfax County Dep’t of Family Servs., 282 F. Supp. 2d 439, 467 (E.D. Va.
2003) (absolute immunity for alleged false statements in petition); Malachowski v. City of
Keene, 787 F.2d 704, 712 (1st Cir. 1986) (finding that a juvenile officer was entitled to absolute
immunity for filing an allegedly false delinquency petition). However, social workers are not
absolutely immune “from liability arising from their conduct in investigating the possibility that a
removal petition should be filed.” Vosburg, 884 F.2d at 138. Instead, “social workers [are]
entitled to only good faith immunity for their investigative conduct prior to filing a . . . petition.”
Id.
[T]he filing of a removal petition is, in essence, the start of judicial proceedings
against the parent or guardian of a minor child, and the duties of the social worker
at that point are those of an advocate in that process . . . . Like a prosecutor, a
social worker must exercise her best judgment and discretion in deciding when to
file a Removal Petition. The welfare of the state’s children would be jeopardized
if social workers had to weigh their decision in terms of their potential personal
liability.
Id. at 137. “[S]ocial workers are absolutely immune . . . when they are acting in their capacity as
legal advocates–initiating court actions or testifying under oath . . . .” Holloway v. Brush, 220
F.3d 767, 775 (6th Cir. 2000) (en banc). Based on the foregoing, Childs and Sullivan are
absolutely immune for their alleged misstatements in the removal petition and at the removal
hearing. Therefore, this objection is without merit and Booker’s claim alleging a Fourteenth
Amendment right to be free of judicial deception is dismissed.
3. Due Process Claims
Booker objects to the magistrate judge’s finding that his procedural due process rights
were not violated when he was not notified of the 72-hour emergency hearing after J.J. was taken
6

into protective custody. (Objections 24-25.) Further, Booker objects to the magistrate judge’s
conclusion that the Defendants did not violate his liberty interest in family association. (Id. at
22-23.) “[A] parent is entitled to a hearing initiated by the State before he may be deprived of the
custody of his child, and in an emergency a prompt hearing may ratify the state action.” Weller
v. Dep’t of Soc. Servs. for City of Baltimore, 901 F.2d 387, 398 (4th Cir. 1990) (internal
quotation marks omitted).
Due process does not mandate a prior hearing in cases where emergency action
may be needed to protect a child. “However, in those ‘extra-ordinary situations’
where deprivation of a protected interest is permitted without prior process, the
constitutional requirements of notice and an opportunity to be heard are not
eliminated, but merely postponed.”
Id. at 393 (internal citations omitted). “[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
S.C. Code Ann. § 63-7-710 provides that “[t]he family court shall schedule a probable cause
hearing to be held within seventy-two hours of the time the child was taken into emergency
protective custody.” Further, S.C. Code Ann. § 63-7-700(B)(1) provides that “the department
shall exercise every reasonable effort to promptly notify the noncustodial parent that a removal
proceeding has been initiated and of the date and time of any hearings scheduled.” Booker
alleges that Sullivan knew that he was incarcerated and should have notified him of the hearing.
The issue is whether Sullivan violated Booker’s constitutional right to due process, not whether
Sullivan violated S.C. Code Ann. § 63-7-700(B)(1). “[N]oncustodial parents must be notified
and offered a hearing before their parental rights are terminated. Terry v. Richardson, 346 F.3d
781, 786 (7th Cir. 2003). However, the hearing at issue in this case was a probable cause hearing
to determine “whether there was probable cause for taking emergency protective custody and for
the department to assume legal custody of the child and shall determine whether probable cause
7

to retain legal custody of the child remains at the time of the hearing.” S.C. Code Ann. § 63-7710(C). At all times relevant to this action, Booker has been incarcerated and did not have
custody and was incapable of taking custody of J.J. In addition, Booker states in his objections
that subsequent to the 72-hour hearing, he “did attend multiple court hearings regarding his
daughter’s custody.” (Objections at 22.) Based on the foregoing, the court finds that his
constitutional rights to procedural due process were not violated when he did not receive notice
and an opportunity to be heard at the 72-hour hearing which did not affect his right to custody or
ability to care for J.J.
In addition, Booker objects arguing that he has stated a claim for Fourteenth Amendment
violation of his liberty interest in family association. (Id. 22-23.) It “is beyond question that
parents have a fundamental liberty interest in the care, custody, and management of their
children. This right, however, is not absolute.” Zakrzewski v. Fox, 87 F.3d 1011, 1013-14 (8th
Cir. 1996) (internal citations and quotation marks omitted) (finding that the plaintiff’s “liberty
interest in the care, custody, and management of his son ha[d] been substantially reduced by the
terms of the divorce decree and Nebraska law” and noting that although the court has
“recognized the possibility that visitation and placement decisions may be subject to due process
scrutiny, as such decisions may infringe upon a parent’s interest in the care, custody, and
management of their child,” there has not been “a case where the right to visitation was infringed
in a manner that rose to the level of a constitutional violation”). At the most, Booker’s right to
contact and have his daughter visit him at Booker’s place of incarceration was temporarily
affected by J.J.’s placement in state custody. To the extent Booker is alleging that the
Defendants’ nonprosecutorial acts related to their investigation and placement of J.J. in
emergency protective custody deprived him of his liberty interest in family association, the
8

alleged conduct in this case “does not amount to a deprivation of liberty.” Id. at 1014. The court
finds that the facts, as alleged by Booker, “are insufficient to indicate that the defendants
intentionally infringed upon [his] liberty interest in a manner that shocks the conscience.” Id.
Based on the foregoing, Booker’s substantive due process based on interference with family
association is dismissed.
Further, the court declines to exercise supplemental jurisdiction over the state law claims.
Therefore, after a thorough review of the Report and Recommendation and the record in this
case, the court adopts the magistrate judge’s Report and Recommendation.
It is therefore
ORDERED that Booker’s complaint, docket number 1, is dismissed without prejudice
and without issuance and service of process. It is further
ORDERED that Booker’s motion to appoint counsel, docket number 3, is denied.
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
August 22, 2011

NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified that he has the right to appeal this order within thirty (30)
days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
Procedure.

9