Manship v. Brothers et al
Filing
47
MEMORANDUM OPINION Re: 20 MOTION to Dismiss, MOTION for Sanctions by Sherri Brothers, Valerie Cuffee, Suzanne Eisner, Tammee Gaymon, Jason McCandless, Marita Y. Wilson, 24 MOTION to Dismiss Amended Complaint by Karen Marie Grane, George Varoutsos , Esther Wiggins, 27 MOTION to Add Pltfs, JSZ and Her Mother Lori Saxon, Next Friend, to Add as Deft, JDR Court Appointed Gal Ketchie, to Add as Deft Court Appointed Attorney Kaldenbach re: 7 Amended Complaint by James Renwick Manship, Lori Saxon, 41 MOTION to Stay re: 20 MOTION to Dismiss, MOTION for Sanctions, 24 MOTION to Dismiss Amended Complaint by Lori Saxon, and 44 MOTION for Temporary Restraining Order by Lori Saxon. Signed by District Judge James C. Cacheris on 12/27/11. (stas)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JAMES RENWICK MANSHIP,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SHERRI BROTHERS, et al.,
Defendants.
1:11cv1003 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendants Sherri
Brothers, Marita Wilson, Tammee Gaymon, Valerie Cuffee, Suzanne
Eisner, and Jason McCandless’ Motion to Dismiss [Dkt. 20] and
Defendants Karen Marie Grane, Esther Wiggins, and George
Varoutsos’ Motion to Dismiss [Dkt. 24].
Also, before the Court
is Plaintiff James Renwick Manship’s Motion to Add Plaintiffs
and Defendants.
[Dkt. 27.]
And, Lori Saxon, who seeks to be
added as a plaintiff, has a Motion to Stay [Dkt. 41] and Motion
for Temporary Restraining Order [Dkt. 44] before the Court.
For
the following reasons, the Court will grant Defendants’ motions
to dismiss and deny Plaintiff Manship and Lori Saxon’s motions.
I.
Background
This case involves a sprawling assortment of
unsupported allegations regarding the treatment of children who
1
are placed into the foster care system in Arlington County,
Virginia.
A.
Parties
The Court will begin by reviewing the assorted parties
in this case.
i. Plaintiffs
On September 30, 2011, in response to a Court order,
pro se Plaintiff James Renwick Manship filed an “Answer to
Order” and an Amended Complaint.
[Dkt. 8.]
Plaintiff Manship
asserts that he brings the Amended Complaint on behalf of, and
as the “next friend” of, eight minors: A.B., N.B., O.B., T.B.,
Z.B., T.J., A.O., and S.S.
(Id.)
The caption of the Amended
Complaint also states that he brings the Amended Complaint
“[i]ndividually and on behalf of all others similarly situated.”
(Id.)
The Amended Complaint names five other adults as
plaintiffs, but Mr. Manship is the only one to have fully
complied with Fed. R. Civ. P. 11 in that he signed the complaint
personally and provided an address and telephone number.
Compl. [Dkt. 8] at 29.)
(Am.
Three other adults signed the Amended
Complaint: Salim Bennett, Delores O’Brien Heffernan, and Nancy
Hey Slitor.
(Id.)
The caption states that Salim Bennett is
father and “next friend” of five of the minors: A.B., N.B.,
O.B., T.B., and Z.B.
It states Delores O’Brien Heffernan is
2
legal guardian and “next friend” of one minor: A.O.
And it
states that Nancy Hey Slitor is the mother and “next friend” of
one minor: S.S.
The Amended Complaint also names two other
adults as plaintiffs.
Christopher “Kit” Slitor is named as
father and “next friend” of S.S.
And Tiffany Johnson is named
as mother and “next friend” of the remaining minor: T.J.
Neither Mr. Slitor nor Ms. Johnson signed the Amended Complaint.
ii. Defendants
The Arlington County Juvenile and Domestic Relations
District Court is a court of the Commonwealth of Virginia, not
of Arlington County.
Shirley v. Drake, No. 98-1750, 1999 U.S.
App. LEXIS 7209, at *8 (4th Cir. 1999).
As a result, there are,
in effect, two groups of defendants in this case.
The first
group includes defendants employed by the Commonwealth of
Virginia.
The defendants in this group are Karen Marie Grane,
Esq., in her official capacity as Arlington County, Virginia,
Juvenile and Domestic Relations District Court-Appointed
Guardian ad Litem;1 the Honorable Esther Wiggins in her official
capacity as Arlington County Juvenile and Domestic Relations
District Court Judge; and, the Honorable George Varoutsos in his
official capacity as Arlington County Juvenile and Domestic
Relations District Court Judge (together the “Commonwealth
Defendants”).
1
Defendant Grane is the court-appointed guardian ad litem only for A.O.
(Arlington Defendants Mem. in Supp. [Dkt. 25] (A.D. Mem.) Ex. B.)
3
The second group includes defendants employed by
Arlington County, Virginia.
The defendants in this group are:
Sherri Brothers in her official capacity as a Foster Care
Supervisor in the Child and Family Services Division of the
Arlington County Department of Human Services; Marita Wilson in
her official capacity as a social worker in the Child and Family
Services Division of the Arlington County Department of Human
Services; Tammee Gaymon in her official capacity as a social
worker in the Child and Family Services Division of the
Arlington County Department of Human Services; Valerie Cuffee in
her official capacity as the Division Chief of the Division of
Child and Family Services in the Arlington County Department of
Human Services; Suzanne Eisner in her official capacity as the
Director of the Arlington County Department of Human Services;
and Jason McCandless in his official capacity an Arlington
Assistant County Attorney (together the “Arlington Defendants”).
The Commonwealth Defendants and Arlington Defendants are
collectively referred to as “the Defendants.”
B.
Allegations
The allegations in this case are not new to this
Court, as they are largely the same as those that existed when
the Court denied Mr. Manship’s September 16, 2011 Emergency
Motion for a Temporary Restraining Order (TRO).
4
The Amended Complaint asserts that this case is a
“civil rights class action.”
(Am. Compl. ¶¶ 1, 48-50.)
The
Amended Complaint does not allege any facts specific to the
treatment of six of the minors -- A.B., N.B., O.B., T.B., Z.B.,
and T.J. -- in foster care.
And, it does not allege any facts
specific to Defendants Marita Wilson, Tammee Gaymon, and Suzanne
Eisner.
The Amended Complaint makes very few specific factual
allegations against the remaining Defendants.
The only factual
allegations specific to Defendant Brothers are that she
“ignored” a “cry for help” report from A.O., and, that Plaintiff
Manship sent her an email message regarding an allegedly false
filing in the Arlington J&DR Court.
(Am. Compl. ¶¶ 15, 21.)
The only factual allegations specific to Defendant Cuffee are
that she made a finding favorable to Mr. Bennett and that she
was interviewed on a radio program and announced a “policy
change” with which the Plaintiffs are in apparent agreement.
(Am. Compl. ¶¶ 5, 10, at 3.)
The only factual allegation
specific to Defendant Wiggins is that Esther Wiggins “did not
demand any facts” during a hearing when allegedly told that
Plaintiff Nancy Slitor was “starving” S.S.
(Am. Compl. ¶ 6.)
The only allegations specific to Defendant McCandless
are that he convinced Defendant Cuffee to change a finding in an
unspecified report, “ignored” a “cry for help” report from A.O.,
5
and filed a request for a Rule to Show Cause in the Arlington
J&DR Court against Plaintiff Heffernan.
33, at 3.)
(Am. Compl. ¶¶ 10, 15,
And the only allegations specific to Defendant Judge
Varoutsos are that he granted an “Ex Parte Order for Emergency
Removal of a Child” with respect to A.O., and also “ignored” a
“cry for help” report from A.O.
(Am. Compl. ¶¶ 15, 28.)
Finally, the only factual allegation specific to Defendant Grane
is that she too “ignored” the “cry for help” report from A.O.
(Am. Compl. ¶ 2.)
The Amended Complaint makes many generalized and
conclusory statements about how the Arlington foster care system
“is causing physical and psychological harm to the abused and
neglected children it is mandated to protect.”
4.)
(Am. Compl. ¶
And it generally and vaguely alleges that Defendants
violated the Due Process Clause of the Fourteenth Amendment and
violated A.O.’s rights to “family association” under the First,
Ninth, and Fourteenth Amendments.
(Am. Compl. ¶ 38.)
In terms of the relief sought, the Amended Complaint
generally requests this Court to “[p]ermanently enjoin
Defendants from subjecting Plaintiff Children to practices that
violate their rights.”
(Am. Compl. ¶ 91.)
It also requests a
variety of broad based policy changes within the Arlington
County Department of Human Services, affecting topics such as
6
education, training, caseload management, and visitation rights.2
(Am. Compl. ¶¶ 90-95.)
The Amended Complaint asks this Court to
assign a “[r]eceiver to assume control and management of the
Arlington CPS cases.”
(Am. Compl. ¶ 90.)
The Amended Complaint invokes the jurisdiction of this
Court under 28 U.S.C. §§ 1343(a)(3) and 1331.
Section
1343(a)(3) is the jurisdictional counterpart of 42 U.S.C. §
1983, which creates a cause of action for state action which
violates a person’s “rights, privileges, or immunities secured
by the Constitution and laws.”
Section 1983 provides a cause of
action against any “person who, under color of any statute,
ordinance, regulation, custom, or usage” causes deprivation of
another citizen's right under the Constitution or federal law.
Thorne v. Hale, No. 1:08cv601, 2009 U.S. Dist. LEXIS 104326, at
*9 (E.D. Va. Oct. 29, 2009)(quoting 42 U.S.C. § 1983).
C.
Procedural History
On September 16, 2011, Plaintiff Manship filed a
Complaint and Emergency Motion for Restraining Order.
2.]
[Dkts. 1,
On September 21, 2011, this Court issued a Memorandum
Opinion detailing reasons for denying that motion for a TRO.
[Dkt. 3.]
The Court also issued an Order outlining steps that
Plaintiff Manship could pursue going forward.
[Dkt. 6.]
Specifically, the Court stated:
2
The Court assumes that when the Amended Complaint mentions “DHS / CPS,” it
is referencing the Child and Family Services Division of the Arlington County
Department of Human Services.
7
Plaintiff has ten (10) days from the entry of this
Order to amend the Complaint to clarify Plaintiff’s
relationship with the eight minors on whose behalf he
is suing and to sufficiently allege facts that make
out a cause of action; [and]
Plaintiff has twenty (20) days from the entry of this
Order to show cause as to why the Defendants are not
entitled to immunity.
(Id.)
On September 22, 2011, Plaintiff Manship filed an
Amended Complaint and Emergency Motion for a Restraining Order.
[Dkt. 7.]
On September 30, 2011, Plaintiff Manship filed an
Answer to Order and Memorandum Opinion.
[Dkt. 8.]
This Answer
added additional plaintiffs, as described above, contained an
Amended Complaint, and included a number of exhibits.
Id.
The
Amended Complaint highlights that two of the exhibits are
responsive to the Court’s Order.
(Am. Compl. [Dkt. 8] at 30.)
The first is Exhibit D, which lists 53 cases related “trends in
judicial decisions related to children and parents’ rights as
contrasted with government abuse of those citizen rights.”
[Dkt. 8-D.]
The second is Exhibit G, which is a sprawling
“Memorandum of Law on ‘Next Friend’ Legal Status.”
3
[Dkt. 8-G.]
Defendants were served on October 25, 2011, and on
November 10, 2011, the Arlington Defendants filed a Motion to
Dismiss and a Motion for Rule 11 Sanctions.
3
[Dkt. 20.]
The
The Court also notes that Exhibit H states that it is in response to the
Court’s Order requesting information about immunity, but that it lists ten
cases related to “the constitutional right of parents to raise their own
children.” [Dkt. 8-H.]
8
Motion to Dismiss seeks to dismiss the Amended Complaint under
Fed. R. Civ. P. 8, 12(b)(1) and 12(b)(6).
Mot. to Dismiss [Dkt. 20] at 2.)
(Arlington D. (A.D.)
On November 14, 2011,
Commonwealth Defendants filed a Motion to Dismiss.
[Dkt. 24.]
Their Motion to Dismiss seeks to dismiss the Amended Complaint
under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
(Commonwealth D.
(C.D.) Mot. to Dismiss [Dkt. 24] at 1.)
On November 18, 2011, Plaintiff Manship filed a Motion
to Add Plaintiffs and Defendants.
[Dkt. 27.]
The Motion seeks
to add the minor, J.S.Z., along with her mother Lori Saxon, as
“next friend” to the Amended Complaint.
(Id.)
And it seeks to
add Mina Ketchie and Isabel Kaldenbach as defendants, asserting
that they are representatives of the Arlington County, Virginia,
Juvenile and Domestic Relations District Court.
(Id.)
Motion is signed by Plaintiff Manship and Lori Saxon.
The
(Id. at
3.)
On November 28, 2011, Plaintiff Manship filed a Motion
for Judicial Cognizance for Summary Judgment to Strike Frivolous
Rule 11 Motion for Sanctions.
[Dkt. 28.]
Plaintiff Manship is
the only Plaintiff to have signed this motion for judicial
cognizance.
Id.
On November 30, 2011, Plaintiffs filed a Reply
to Refute Arlington Attorney Motion to Dismiss and Motion for
Rule 11 Sanctions [Dkt. 29] and a Reply to Refute [the
9
Commonwealth’s] Motion to Dismiss [Dkt. 30].
Again, only
Plaintiff Manship signed these replies.
On December 2, 2011, the Commonwealth Defendants filed
a Rebuttal in Support of the Motion to Dismiss.
[Dkt. 31.]
On
December 5, 2011, the Arlington Defendants filed Opposition to
the Motion to Add Plaintiffs and Defendants.
[Dkt. 32.]
Also
on December 5, 2011, the Arlington Defendants filed a Rebuttal
in Support of the Motion to Dismiss and Motion for Rule 11
Sanctions [Dkt. 33] and a Motion for Rule 11 Sanctions [Dkt.
34].
A hearing for on the Motion for Rule 11 Sanctions is set
for January 6, 2011, before Magistrate Judge John F. Anderson.
[Dkt. 36.]
Since then Plaintiff Manship has filed a number of
documents with the Court.
On December 8, 2011, Plaintiff
Manship filed an Emergency Motion for Temporary Restraining
Order.
2011.
[Dkt. 37.]
[Dkt. 39.]
This Court denied that motion on December 9,
On December 16, 2011, he filed a “Memorandum
of Law Against Sovereign Immunity for Prosecutors, Social
Workers, [and] Judges.”
[Dkt. 43.]
And on December 19, 2011,
he filed a “Notice of Supplemental Authority.”
[Dkt. 45.]
Finally, Lori Saxon has filed two motions.
On
December 14, 2011, she filed a “Motion for Stay,” which requests
the court to stay the Defendants motions to dismiss.
It is signed only by Ms. Saxon.
(Id.)
10
[Dkt. 41.]
And on December 19,
2011, Ms. Saxon filed a Motion for Temporary Restraining Order.
[Dkt. 44.]
It too is signed only by Ms. Saxon.
(Id.)
Defendants’ motions to dismiss, Plaintiff Manship’s
motion, and Lori Saxon’s motions are now before this Court.
II.
Standard of Review
A. Jurisdiction
Pursuant to Rule 12(b)(1), a claim may be dismissed
for lack of subject matter jurisdiction.
12(b)(1).
Fed. R. Civ. P.
Defendants may attack subject matter jurisdiction in
one of two ways.
First, defendants may contend that the
complaint fails to allege facts upon which subject matter
jurisdiction may be based.
See Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982); King v. Riverside Reg’l Med. Ctr., 211 F.
Supp. 2d 779, 780 (E.D. Va. 2002).
In such instances, all facts
alleged in the complaint are presumed to be true.
Adams, 697
F.2d at 1219; Virginia v. United States, 926 F. Supp. 537, 540
(E.D. Va. 1995).
Alternatively, defendants may argue that the
jurisdictional facts alleged in the complaint are untrue.
Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780.
In that
situation, “the Court may ‘look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’”
Virginia v. United States, 926 F.
11
Supp. at 540 (citing Capitol Leasing Co. v. FDIC, 999 F.2d 188,
191 (7th Cir. 1993)); see also Velasco v. Gov’t of Indonesia,
370 F.3d 393, 398 (4th Cir. 2004) (holding that “the district
court may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting
the proceeding to one for summary judgment”); Adams, 697 F.2d at
1219; Ocean Breeze Festival Park, Inc. v. Reich, 853 F. Supp.
906, 911 (E.D. Va. 1994).
In either circumstance, the burden of
proving subject matter jurisdiction falls on the plaintiff.
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189
(1936); Adams, 697 F.2d at 1219; Johnson v. Portfolio Recovery
Assocs., 682 F. Supp. 2d 560, 566 (E.D. Va. 2009) (holding that
“having filed this suit and thereby seeking to invoke the
jurisdiction of the Court, Plaintiff bears the burden of proving
that this Court has subject matter jurisdiction”).
B. Motion for Leave to Amend
A party may amend a pleading once as a matter of
course if the party does so either (i) within 21 days after
serving the pleading to be amended or (ii) within 21 days after
service of a responsive pleading or after the service of a
motion under Rule 12(b), whichever is earlier.
15(a)(1).
Fed. R. Civ. P.
When the Rule 15(a)(1) time period expires, the
proposed amendment falls under Rule 15(a)(2), which requires
either leave of court or written consent of the opposing party
12
to amend a pleading.
Fed. R. Civ. P. 15(a)(2).
Rule 15(a)(2)
of the Federal Rules of Civil Procedure directs that a court
“should freely give leave when justice so requires.”
Id.
In the Fourth Circuit, a motion for leave to amend
pursuant to Rule 15(a)(2) can be denied only where “the
amendment would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the amendment
would have been futile.”
Steinberg v. Chesterfield Cnty.
Planning Comm'n, 527 F.3d 377, 390 (4th Cir. 2008) (quoting
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)).
In
determining whether a proposed amendment is futile, a court may
consider whether the proposed amendments could withstand a
motion to dismiss.
Perkins v. United States, 55 F.3d 910, 917
(4th Cir. 1995) (affirming denial of plaintiff’s motion for
leave to amend her complaint as futile because “the proposed
amendments could not withstand a motion to dismiss.”); 6 Charles
Alan Wright, et al., Federal Practice and Procedure § 1487, at
743 n.28 (2010).
Thus, a court may test the sufficiency of the
proposed amendments by applying the standard of review
applicable in a Rule 12(b)(6) motion to dismiss.
C. Pro Se Plaintiff
Complaints filed by pro se plaintiffs are construed
more liberally than those drafted by an attorney.
Kerner, 404 U.S. 519, 520 (1972).
13
See Haines v.
“However inartfully pleaded
by a pro se plaintiff, allegations are sufficient to call for an
opportunity to offer supporting evidence unless it is beyond
doubt that the plaintiff can prove no set of facts entitling him
to relief.”
Thompson v. Echols, No. 99-6304, 1999 U.S. App.
LEXIS 22373, at *3 (4th Cir. 1999) (citing Cruz v. Beto, 405
U.S. 319 (1972)).
While a court is not expected to develop
tangential claims from scant assertions in a complaint, if a pro
se complaint contains potentially cognizable claims, the
plaintiff should be allowed to particularize those claims.
Id.
(citing Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir.
1985); Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965)).
III.
A.
Analysis
Justiciability
“[I]t is well-settled that federal courts may only
adjudicate cases or controversies under Article III of the
Constitution.”
Mohammed v. Holder, 695 F. Supp. 2d 284, 289
(E.D. Va. 2010) (citing Marshall v. Meadows, 105 F.3d 904, 906
(4th Cir. 1997)).
“To that end, ‘[t]he Supreme Court has
developed a number of constitutional justiciability doctrines .
. . including . . . the doctrines of standing, ripeness, and
mootness.’”
Id. (quoting United States v. McClure, 241 F. App'x
105, 107 (4th Cir. 2007)).
mootness issues.
i.
This case presents both standing and
The Court will address each in turn.
Standing
14
The “irreducible constitutional minimum of standing
requires (1) an injury in fact--a harm suffered by the plaintiff
that is concrete and actual or imminent, not conjectural or
hypothetical; (2) causation--a fairly traceable connection
between the plaintiff's injury and the complained-of conduct of
the defendant; and (3) redressability--a likelihood that the
requested relief will redress the alleged injury.”
McBurney v.
Cuccinelli, 616 F.3d 393, 402 (4th Cir. 2010) (quoting Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83, 102-03 (1998)
(internal quotation marks and citations omitted).
See also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(setting forth the three-part constitutional test for standing).
“In determining whether a party has standing to bring suit, the
party invoking the jurisdiction of the court bears the burden of
establishing standing.”
Bishop v. Bartlett, 575 F.3d 419, 424
(4th Cir. 2009).
The adult individuals named as plaintiffs in the
Amended Complaint bring this case pro se and as “next friends”
of the minors.
The Amended Complaint, however, simply states
that the named plaintiffs “will fairly and adequately protect
the interests of the entire class of Plaintiff Children” and
that “each next friend is sufficiently familiar with the facts
of the child’s situation to fairly and adequately represent the
child’s interest in this litigation.”
15
(Am. Compl. ¶¶ 51, 53.)
The Amended Complaint fails to provide nearly any detail on the
named plaintiffs’ relationships to the minors.
The Court will
consider the issues related to standing by reviewing each named
plaintiff in turn.
a. James Renwick Manship
Plaintiff Manship asserts “next friend” status on
behalf of all eight minors and has signed all of the pleadings.
Mr. Manship does not, however, appear to have any biological or
legal relationship with any of the minors.
It its September 21,
2011, Memorandum Opinion denying Plaintiff Manship’s TRO, the
Court noted that it is “not apparent that Mr. Manship has
standing to sue” and gave him ten days to clarify his
relationship with the eight minors.
Plaintiff responded with a
“Memorandum of Law on ‘Next Friend’ Legal Status – History and
Application.”
[Dkt. 8-G.]
The memorandum fails to provide any
facts explaining Mr. Manship’s relationship with the minors.
Thus, the Court is left with his statement, that he knows one of
the minors –- A.O. -– “personally, generally knows the issues
regarding her foster care custody described here and is well
suited to represent her best interests in this case.”
Compl. II ¶ 37.)
(Am.
There is no indication of Mr. Manship’s
relationship with the other minors.
Mr. Manship has been previously informed of the need
to establish standing and the requirements for “next friend”
16
status.
See Manship v. Thomson, No. 5:11CV00030, 2011 U.S.
Dist. LEXIS 42294, (W.D. Va. Apr. 19, 2011) (dismissing
Manship’s complaint because he did not have standing to sue to
on behalf of the daughter of a murder victim).
Despite this
notice, Mr. Manship has fallen far short of establishing
standing to sue on behalf of A.O., or any of the other minors,
in this case.
To assert standing as a “next friend,” a plaintiff
“must provide an adequate explanation -- such as
inaccessibility, mental incompetence, or other disability -- why
the real party in interest cannot appear on his own behalf to
prosecute the action.”
64 (1990).
Whitmore v. Arkansas, 495 U.S. 149, 163-
Additionally, the “‘next friend’ must be truly
dedicated to the best interests of the person on whose behalf he
seeks to litigate, and it has been further suggested that a
‘next friend’ must have some significant relationship with the
real party in interest.”
Id. (internal citations omitted).
“Next friend” standing is typically asserted by a parent on
behalf of a child.
2001).
status.
See Brown v. Gilmore, 258 F.3d 265 (4th Cir.
Here, there is no showing to warrant “next friend”
Thus, the Court finds that Mr. Manship does not have
standing to bring the Amended Complaint.
b. Salim Bennett
Turning to the remaining adults named as plaintiffs,
17
the Court first notes that although, Fed. R. Civ. P. Rule 11(a)
requires the Court to strike an unsigned paper unless the
omission of the signature is promptly corrected after being
called to the attention of the party, the Court finds that
curing the omissions in this case would be futile for the
reasons described below.
First, in considering Salim Bennett, the caption of
the Amended Complaint states that Mr. Bennett is father and
“next friend” of five minors: A.B., N.B., O.B., T.B., and Z.B.
Mr. Bennett is not an attorney and has already been told by this
Court, that “as a non-attorney parent, [he] cannot bring an
action pro se on behalf of his children.”
Bennett v. MacIsaac,
et al., No. 1:11cv920, 2011 U.S. Dist. LEXIS 128602, at *12
(E.D. Va. Nov. 7, 2011).
In the Fourth Circuit, “non-attorney
parents generally may not litigate the claims of their minor
children in federal court.”
Myers v. Loudoun Cnty. Pub. Schs,
418 F.3d 395, 401 (4th Cir. 2005); see also Shaw v. Lynchburg
Dep't of Soc. Servs., No. 6:08cv00022, 2009 U.S. Dist. LEXIS
6659, at *13-14 (W.D. Va. Jan. 29, 2009).
The Court explained
that “[t]he right to litigate for oneself [] does not create a
coordinate right to litigate for others.”
Id. at 400.
The
Court finds that Mr. Bennett has not made a sufficient showing
for “next friend” status and, as a result, he lacks standing to
bring this action on behalf of any of the minors.
18
c. Nancy and Kit Slitor
Nancy Hey Slitor signed the Amended Complaint as the
mother and “next friend” of one minor: S.S.
Although Ms. Slitor
is the birth mother of S.S., her parental rights were terminated
by the Arlington J&DR Court and that termination was affirmed by
the Virginia Court of Appeals.
See Hey v. Arlington County
Dep't of Human Servs., No. 2795-07-4, 2008 Va. App. LEXIS 572,
at *19 (Va. Ct. App. Dec. 30, 2008).
Furthermore, S.S. has been
adopted and is no longer in foster care.
[Dkt. 21] at 4.)
(A.D. Mem. in Supp.
Thus, the Court similarly finds that Ms.
Slitor does not have standing to sue.
Christopher “Kit” Slitor did not sign the Amended
Complaint, but is named as father and “next friend” of S.S.
Kit
Slitor is not the biological father of S.S. and has been denied
custody of S.S. (A.D. Mem. in Supp. at 3.)
Thus, for the same
reasons as described above, Kit Slitor does not have standing to
sue on behalf of S.S.
d. Tiffany Johnson
Tiffany Johnson also failed to sign the Amended
Complaint, but is listed as the mother and “next friend” of T.J.
Ms. Johnson’s parental rights have been terminated [Dkt. 21-3]
and there has been no showing that Tiffany Johnson qualifies for
“next friend” status.
Thus, Ms. Johnson does not have standing
to being a claim on behalf of T.J.
19
e. Delores O’Brien Heffernan
Finally, Delores O’Brien Heffernan signed the Amended
Complaint as legal guardian and “next friend” of one minor: A.O.
Plaintiffs have not provided a description of Ms. Heffernan’s
relationship to A.O. and, as she is a non-attorney, the Court
finds that she has not demonstrated that she has standing to sue
on behalf of A.O.
* * *
As described above, none of the Plaintiffs have
established that they have standing to bring the Amended
Complaint.
As a result, their attempt to establish this case as
a class action is moot.
ii.
Mootness
In addition to finding that the adults named as
plaintiffs do not have standing to sue on behalf of the minors,
the Court notes that at least some of the minor’s claims are
moot.
“[T]he mootness doctrine requires that a claimant suffer
an injury-in-fact or continuing collateral consequence that is
fairly traceable to the challenged action or decision, and that
a favorable decision would be likely to redress the injury.”
Mohammed v. Holder, 695 F. Supp. 2d 284, 289 (E.D. Va. 2010)
(citing Townes v. Jarvis, 577 F.3d 543, 554 (4th Cir. 2009)).
When a case is moot and, thus, fails to present a justiciable
case or controversy, it must be dismissed.
20
See id. at 290.
“Even if the plaintiff has standing at the outset of the case .
. . the action may become moot if, at any subsequent time, the
plaintiff ‘plainly lack[s] a continuing interest’ in the
resolution of the case.”
Lux v. White, 99 F. App'x 490, 492
(4th Cir. 2004) (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192 (2000)).
Here six of the minors are no longer in the foster
care system.
In November 2011, A.B., N.B., O.B., T.B., and Z.B.
were returned to the custody of their mother.
[Dkt. 21-2.]
Furthermore, S.S. has been adopted and is no longer in foster
care.
(A.D. Mem. in Supp. [Dkt. 21] at 4.)
Because the Amended
Complaint seeks only prospective injunctive relief, claims
related to the Child and Family Services Division of the as
Arlington County Department of Human Services are moot.
See 31
Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003)
(finding that claims of children as to the adequacy of foster
care system were moot since the children were adopted and were
no longer in defendants’ legal or physical custody).
B. Abstention
Finally, in considering its jurisdiction over this
case, the Court notes that the Younger doctrine “requires
federal courts to decline to exercise jurisdiction to enjoin
pending state court proceedings despite the presence of alleged
constitutional claims.”
Berry v. South Carolina Dep't of Social
21
Servs., No. 95-2678, 1997 U.S. App. LEXIS 22647, at *9-11 (4th
Cir. 1997); see also Beam v. Tatum, 299 F. App’x 243, 246 (4th
Cir. 2008).
The doctrine has been expanded to require
abstention from child custody and welfare determinations.
Id.
The Younger doctrine stems from the important principles of
comity and federalism and from recognition that state courts are
as capable as federal courts of deciding federal and
constitutional issues.
Martin Marietta Corp. v. Md. Comm'n on
Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994).
Therefore, in the absence of extraordinary
circumstances, which are not present here, “Younger mandates
that a federal court abstain from exercising jurisdiction
and interfering with a state [] proceeding if (1) there is an
ongoing state judicial proceeding brought prior to substantial
progress in the federal proceeding; that (2) implicates
important, substantial, or vital state interests; and (3)
provides adequate opportunity to raise constitutional
challenges.”
2006) (citing
Nivens v. Gilchrist, 444 F.3d 237, 241 (4th Cir.
Middlesex County Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 432 (1982)).
The Defendants contend that
for some of the minors all three factors are satisfied in this
case. (C.D. Mem. [Dkt. 21] at 15-18; A.D. Mem. [Dkt. 25] at 78).
The Court agrees.
22
First, there are ongoing, state proceedings being held
before the Arlington Juvenile and Domestic Relations District
Court concerning A.O., A.B., N.B., O.B., T.B., Z.B., and T.J.
(Amy Burnham Aff. [Dkt. 25-A] at 1.)4
In assessing the Amended
Complaint and the relief requested, this Court finds that a
federal proceeding would interfere with the state proceedings.
The allegations in this case relate to the treatment of children
who are placed into the foster care system by the Arlington J&DR
Court.
Although the relief requested largely focuses on
executive action, the Amended Complaint appears to be
challenging court proceedings involving the termination of
parental rights and the child’s foster care plan.
Compl. ¶¶ 6, 9, 13, 15.)
(See Am.
And, the Amended Complaint asks this
Court to “permanently enjoin Defendants from subjecting
Plaintiff Children to practices that violate their rights.”
(Am. Compl. ¶ 91.)
This includes the Defendants who are part of
the Arlington J&DR system.
Finally, the Amended Complaint
request that this Court “have continuing jurisdiction to oversee
compliance with [its] order.” (Am. Compl. ¶ 92.)
As a result,
this Court finds that the requested relief would likely have the
4
The Arlington J&DR Court possesses continuing jurisdiction over foster care
cases as long as a child is in foster care. See Va. Code. Ann. § 16.1-282.E
(2011). Generally, the local department of social services must prepare a
detailed foster care plan that must be filed with Arlington J&DR Court within
60 days of placement in foster care, a court hearing on the plan must be held
within 75 days of placement, and the Court must review the plan either every
6 months or every year. See Va. Code Ann. §§ 16.1-281, 16.1-282 (2011).
23
effect of placing decisions now in the hands of state courts
under the direction of the federal district court.
Turning to the second factor, it is well established
that child support matters implicate important state interests.
See Moore v. Sims, 442 U.S. 415, 435 (1979) (family relations
are a traditional area of state concern); Harper v. PSC, 396
F.3d 348, 352 (4th Cir. 2005).
Likewise, in considering the
third factor, state courts provide an adequate remedy.
Berry, 1997 U.S. App. LEXIS 22647, at *12.
See
As a result, this
Court finds that abstention is appropriate for the minors who
are involved in ongoing, state proceedings before Arlington JD&R
Court.
* * *
For the reasons described above related to standing,
mootness, and abstention, the Amended Complaint will be
dismissed without prejudice.
C. Plaintiffs’ Motion to Add Plaintiffs and Defendants
On November 18, 2011, Plaintiff Manship filed a Motion
to Add Plaintiffs and Defendants.
[Dkt. 27.]
The Motion seeks
to add the minor, J.S.Z., and her mother Lori Saxon, to the
Amended Complaint.
Id.
And it seeks to add Mina Ketchie and
Isabel Kaldenbach as defendants.
Id.
The Motion alleges that
Mina Katchie participated in fraudulent behavior with Karen
Grane and filed false statements and frivolous motions for
24
contempt against Lori Saxon.
(P. Mot. Amend [Dkt. 27] ¶ 2, 4.)
The Motion also alleges that Kaldenbach is participating in the
fraud.
(Id. ¶ 2.)
Finally, the Motion states that “J.S.Z. has
NOT been removed from her mother’s care.”
(Id. ¶ 4.)
In assessing this motion, the Court first notes that
Plaintiff Manship has not proposed a Second Amended Complaint.
When a plaintiff seeks leave to amend a complaint, a copy of the
proposed amended pleading must be attached to the motion.
See
Williams v. Wilkerson, 90 F.R.D. 168, 170 (E.D. Va. 1981).
However, even in considering the allegations and facts contained
in the motion as additional to the Amended Complaint, the Court
finds that allowing the amendment would be futile.
Neither Mr.
Manship nor Ms. Saxon have established that they have standing
to bring a claim on behalf of J.S.Z., and J.S.Z.’s claims
related to the Child and Family Services Division are mooted by
the fact that she is not in the care of the Arlington foster
care system.
Therefore, the Court must deny Plaintiff Manship’s
Motion for to Add Plaintiffs and Defendants as futile.
See
Foman v. Davis, 371 U.S. 178, 182 (1962); Johnson, 785 F.2d at
509.
Finally, since the Court has denied Plaintiff
Manship’s Motion to add Lori Saxon as a plaintiff, the Court
denies Ms. Saxon’s Motion to Stay [Dkt. 41] and Motion for a TRO
[Dkt. 44].
25
IV.
Conclusion
For these reasons, the Court will grant the
Defendants’ motions to dismiss and will deny Plaintiff Manship’s
Motion to Add Plaintiffs and Defendants and will deny Ms.
Saxon’s Motion to Stay and Motion for a TRO.
An appropriate Order will issue.
December 27, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
26
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