Serrano et al v. Serrano et al
OPINION & ORDER: granting in part and denying in part 45 MOTION to Dismiss for Failure to State a Claim by Maria Eiring, Tara W. Moore, School Board for the City of Suffolk. The Court STRIKES paragraphs one (1) and five (5) of the Second Amended C omplaint for violation of this Court's previous Order. The Court GRANTS the School Defendants' Motion to Dismiss, Doc. 45, IN PART, granting it as to Count Nine (9). The Court further REMANDS this case to the Circuit Court for the City of S uffolk because this Court lacks subject matter jurisdiction after dismissing the only federal claim. See 28 U.S.C.§ 1447(c). Copy Order mailed to counsel of record and Circuit Court for the City of Suffolk. Signed by District Judge Henry C. Morgan, Jr. on 6/6/2017. (bgra)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
- 6 2017
OLtHK, U.a, DISTRICT dOU IT
DANA M. SERRANO, et al.,
Civil Action No. 2:16cv454
RAFAEL SERRANO, et al..
OPINION & ORDER
This matter is before the Court pursuant to two related motions. Defendant Rafael
Serrano ("Rafael") filed a Motion to Dismiss the claims against him in Plaintiffs Dana M.
Serrano's ("Dana's"), H.S.'s, D.S.'s, and S.S.'s(the latter three collectively, "Minor Plaintiffs'" or
"Children's", and all four collectively, "Plaintiffs'") Second Amended Complaint ("Rafael's
Motion to Dismiss"). Doc. 43. Defendants Tara W. Moore ("Moore"), Maria Eiring ("Eiring"),
and the School Board for the City of Suffolk ("the School Board") (collectively, "School
Defendants") also filed a Motion to Dismiss the claims against them in Plaintiffs' Second
Amended Complaint ("School Defendants' Motion to Dismiss"). Doc. 45.
For the reasons set
forth herein, the Court GRANTS the School Defendants' Motion to Dismiss IN PART, granting it
as to Count Nine (9).
This is a domestic relations case. Doc. 42 ("Second Am. Compl.")
4. Plaintiff Dana
I "In considering a motion to dismiss, [the Coun] accept[s] as true all well-pleaded allegations and view[s] the
complaint in the light most favorable to the piainlifT." Venkatraman v. REl Svs.. Inc.. 417 F.3d 418, 420 (4th Cir.
2005) (citing Mvian Labs.. Inc. v. Matkari. 7 F.3d 1130, 1134 (4th Cir. 1993)). The Court cautions, however, that the
facts alleged by Plaintiff are recited here for the limited purpose of deciding the instant Motion to Dismiss. The
rccitcd facts arc not factual findings upon which the Parties may rely for any other issue in this proceeding.
and Defendant Rafael are the parents of the MinorPlaintiffs. Id KH 4,7. PlaintiffDanahas sole
custody of the Children, while Defendant Rafael has some visitation rights. See id ^ 7.
On June 13, 2014, Defendant Rafael filed a complaint with Child Protective Services
("CPS") alleging that the Children were abused or neglected by Plaintiff Dana. Id ^ 22. After
investigation, CPS determined that the allegations were unfounded. Id
From October 13, 2015 until February 8, 2016, Defendant Rafael periodically visited the
Children at Northern Shores Elementary School. Id
8, 30. These visits violated court orders
regarding visitation rights and did not occur with Plaintiff Dana's permission. ^
id ^ 8.
During these visits, Defendant Rafael encouraged the Children to complain to school officials
about Plaintiff Dana.
He also shared information about "court activities" with the Children
and with school officials. Id At one point, on May 12, 2015, Defendant Rafael attempted to
kidnap the Children. Id He further encouraged Defendant Hiring to call Plaintiff H.S. to her
office to discuss possible abuse by Plaintiff Dana. Id In addition, he discussed the alleged
abuse with Defendant Moore. Id ^ 30. These school visits by Defendant Rafael were also
approved by Defendant Moore and by the Defendant School Board despite knowledge that
Defendant Rafael was not permitted to visit the Children at those times. Id
With Defendant Moore's authorization and without Plaintiff Dana's knowledge or
approval, Defendant Hiring began counseling sessions with Plaintiff H.S.
physically restrained H.S. at some point in counseling. Id ^ 16. She eventually filed a CPS
complaint alleging that Plaintiff Dana abused or neglected the Children, Id 1[ 26. She filed this
CPS complaint solely to assist Defendant Rafael in his custody proceedings. Id She also filed
notes and affidavits with Suffolk Juvenile Court stating that only Defendant Rafael and not
Plaintiff Dana should receive information about the counseling sessions. Id. f 13.
After the counseling and CPS investigations, Plaintiffs are fearful, anxious, and nervous.
Id T137. They incurred "mental and emotional suffering, fright, anguish, shock, nervousness, and
anxiety." Id The Minor Plaintiffs "suffer intense feelings of fear, anger, confusion, and
Plaintiffs filed a thirty-four (34) page Complaint containing seven (7) counts in the Circuit
Court for the City of Suffolk on June 9, 2016. Doc. 1, Ex. 1. On July 22, 2016, Defendants
removed the case to this Court under its federal questionjurisdiction over Plaintiffs' claims under
42U.S.C. §§ 1983,1985,1988, andthe Firstand Fourteenth Amendments to the Constitution, Id
After receiving an extension of time from the Court, Doc. 8, Plaintiffs filed the Amended
Complaint on August 22, 2016, Doc. 9 ("Am. Compl."). The Amended Complaint spanned one
hundred twenty-seven (127) pages, had one hundred seventy-four (174) pages of exhibits, and
contained twelve (12) counts across seven hundred twenty-seven (727) numbered paragraphs and
forty-six (46) imnumbered paragraphs. ^
id On January 23, 2017, the Court GRANTED a
Motion to Strike Plaintiffs' Amended Complaint, Doc. 16, for violation of Rule 8(a)(2), which
mooted several other pending motions. Docs. 40-41. The Court also directed Plaintiffs to file a
Second Amended Complaint no more than thirteen (13) pages in length within ten (10) days of
January 23,2017. See id.
Plaintiffs filed the Second Amended Complaint on February 1, 2017. See Second Am.
Compl. Defendant Rafael filed his Motion to Dismiss on February 10, 2017. Doc. 43. The
School Defendants filed their Motion to Dismiss on the same day. Doc. 45. Plaintiffs filed their
opposition briefs on February 24,2017. Docs. 47—48. Defendant Rafael filed his reply brief on
March 2, 2017. Doc. 49. The School Defendants filed their reply on the same day. Doc. 50.
Final Pretrial Conference was scheduled for May 4, 2017, and trial was scheduled for May 16,
2017, Doc. 38, although both dates are currently continued, Doc. 65.
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss tests the sufficiency of
a complaint; it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses. Republican Party ofN.C. v. Martin. 980 F.2d 943,952 (4th Cir. 1992).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 556 U.S. 662,678
(2009) (citing Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570 (2007)); see al^ Venkatraman. 417
F.3d at 420 ("In consideringa motion to dismiss, we accept as true all well-pleaded allegationsand
view the complaint [or counterclaim] in the light most favorable to the plaintiff [or counterclaim
plaintiff]")(citing MvlanLabs.. 7 F.3d at 1134). A complaintestablishes facial plausibility "once
the factual content of a complaint allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Nemet Chevrolet. Ltd. v. Consumeraffairs.com.
Inc.. 591 F.3d 250,256 (4th Cir. 2009) (quoting Iqbal. 556 U.S. at 678). Therefore, the complaint
need not include"detailed factual allegations" as long as it pleads"sufficient factsto allow a court,
drawing on judicial experience and common sense, to infer more than the mere possibility of
misconduct." Id Although a court must accept as true all well-pleaded factual allegations, the
same is not true for legal conclusions. "Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Iqbal. 556 U.S. at 678.
In deciding the motion, a court may consider the facts alleged on the face of the complaint
as well as "'matters of public record, orders, items appearing in the record of the case, and exhibits
attached to the complaint.'" Moore v. Flaestar Bank. 6 F. Supp. 2d 496, 500 (E.D. Va. 1997)
(quoting 5A Charles A. Wright &Arthur R. Miller, Federal Practice &. Procedure § 1357 (1990)).
The court may look to documents attached to the complaint and those incorporated by reference
without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See
Pueschel v. United States. 369 F.3d 345,353 n.3 (4th Cir. 2004) (citations omitted).
The Complaint Blatantly Violates This Court's Order
Before addressing any claims, the Court must address a preliminary matter. The Second
Amended Complaint violates theCourt'sOrder limiting the Complaint to thirteen (13) pages, as it
incorporates seventy-six (76) paragraphs from the First Amended Complaint by reference. S^
Second Am. Compl.
U 5; ^
also Doc. 41 (ordering a thirteen (13) page limit). Defendant
Rafael's Motion to Dismiss disregards the incorporated paragraphs, see Doc. 44 at 1n. 2, whilethe
School Defendants' Motion to Dismiss does not address the issue, see Doc. 46.
Plaintiffs incorporation clearly violates this Court's Order, the Court STRIKES paragraphs one
(1) and five (5) of the Second Amended Complaint, thus disregarding any allegations not within
the ordered thirteen (13) pages.
Federal Claim against the School Defendants, Count Nine (9): § 1983^
Thiscaseis largely a domestic relations case, and it is onlybefore this Court on one federal
claim: violation of 42 U.S.C. § 1983 ("§ 1983"). Section 1983 holds any person liable for
damages who deprives someone of Constitutional rights while acting under color of state law.
States and state officials in their official capacity are not "persons" subject to liability under
^ Plaintiff states that the claim is pursuant to 42 U.S.C. §§ 1983 and 1988, but the latter statute is only a source of
remedies and not a source of claims. Sm 42 U.S.C. § 1988. Thus, the Court only needs to address § 1983.
§ 1983. Will V. Michigan Deo't of State Police. 491 U.S. 58, 71 (1989). State officials in their
personal capacity are "persons" subject to liability, though, even for actions of an official nature.
Haferv. Melo. 502 U.S. 21, 31 (1991).
Due Process Claim
Plaintiff Dana alleges that the School Defendants violated her fundamental liberty interest
of"a parent's right to raise her children protected by the Constitutional guarantee of due process."
Second Am. Compl. ^37.
The Due Process Clauses of the Fourteenth Amendment protects citizens against
deprivation "of life, liberty, or property, without due process of law
amend. XIV. One of the fundamental liberty interests that this clause protects is "the sanctity of
the family unit." Hodge v. Jones. 31 F.3d 157,163 (4th Cir. 1994). Due Process claims based on
familial privacy are restricted to two types of claims: "(1) thwarting governmental attempts to
interfere with particularly intimate family decisions, and (2) voiding government actions that
sever, alter, or otherwise affect the parent/child relationship." Id In addition, a court may find
that the interest in familial privacy is "outweighed by a legitimate government interest," such as
the state's interest in "curtailing the abuse and neglect of its minor citizens." Id at 164 (citing
Santoskv v. Kramer. 455 U.S. 745,766 (1982)).
The School Defendants argue that the alleged facts do not show deprivation of any
legitimate liberty interest. Doc. 46 at 22-23. They contend that their alleged policy of allowing
an ex-husband with limited visitations rights to have access to his children carmot violate Plaintiff
Dana's liberty interest because the alleged policy does not deprive her of any care, custody, or
control of the Children. Id at 22; ^
also id at 20 (citing Rinderer v. Del. Ctv. Children & Youth
Servs.. 703 F. Supp. 358, 361 (E.D. Pa. 1987); Randobh-Ali v. Steelton Police Dep't. No.
I:16cv01625,2016 U.S. Dist. LEXIS 153436, at *38 (M.D. Pa. Nov. 3, 2016); Proctorv. Green.
No. 3:07cv45, 2008 U.S. Dist. LEXIS 39401, at *10, *15, *19 (W.D. Va. May 14, 2008)).
PlaintiffDana responds that both granting Defendant Rafael access to the Children and detaining
child H.S. in counseling withoutPlaintiffDana's permission interfered withher rights. Doc. 48 at
In the best possible reading of these facts for Plaintiff, the School Defendants are merely
complicit in a violation of visitation rights. No authority supports finding that such activity
qualifies as tortious interference with parental rights, let alone a violation of the Due Process
clause. Accordingly, the Court FOUND that the Second Amended Complaint fails to allege a
cognizable tortious interference claim with parental rights or a Due Process violation. The
secretive counseling further diminishes the claim, as Plaintiff Dana would need to plead why the
state's interest in stopping abuse and neglect is outweighed by her liberty interest here. See
Hodee. 31 F.3d at 163. She fails to make any such pleading. ^
Second Am. Compl.
Thus, because Plaintiff Dana fails to state a cognizable deprivation of her liberty interest,
the Court GRANTED the School Defendants' Motion to Dismiss as to Count Nine (9).
The Court alternatively FOUND that the School Defendants are entitled to immunity on
Virginia law treats municipalities as agencies of the state when acting in a governmental
capacity. S^ Snvder v. Citv of Alexandria. 870 F. Supp. 672, 691 (E.D. Va. 1994) (citations
omitted). Thus, municipalities are immune from suits for actions in their governmental capacity.
See id. "A function is govenunental if it is 'directly tied to the health, safety, and welfare of the
citizens.'" Niese v. Citv of Alexandria. 264 Va. 230, 239 (2002) (quoting Edwards v. Citv of
Portsmouth. 237 Va. 167, 171 (1989)). This immunity for governmental functions applies to
school boards in Virginia. See Linhart v. Lawson. 261 Va. 30,36 (2001).
Individual government officials are protected from liability under § 1983 by qualified
immunity. They arenotliable fordiscretionary actions within thescope of theirauthority as long
as those actions do not violate "clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald. 457 U.S. 800, 818 (1982). As a
result, qualified immunity protects "all but the plainly incompetent or those who knowingly
violate the law." Mallev v. Briees. 475 U.S. 335, 341 (1986).
The School Defendants' actions to allow Defendant Rafael to visit his children at lunch and
to administer counseling to one of the children were actions within the scope of their authority.
Plaintiff Dana arguesthat the School Defendants' actionswere outsidethe scope of their authority
because they were favoring Defendant Rafael over her. Doc. 48 at 18. This argument is
Plaintiff Dana essentially seeks a ruling from this Court that the School
Defendantsact outside their authority wheneverthey use their discretion in a way that she opposes.
The purpose of discretionary actions to protect children is to act to the disadvantage of the parent
that the school believes is threatening the safety of the children. Whether they correctly use their
discretion is immaterial to whether they are acting within the scope of their authority. Thus, the
Court FOUND that the alleged actions of the Defendant School Board are governmental actions
and that the alleged actions of Defendants Moore and Hiring are discretionary actions within the
scope of their authority. Assuming areuendo that the Court should find a novel Due Process
violation on these facts, such a Due Process right would not be clearly established prior to that
novel finding. Accordingly, the alleged acts of Defendants Moore and Hiring could not violate
any clearly established right.
Thus, the Court FOUND in the alternative that even if a
constitutional violation existed on the alleged facts, the School Defendants are all immune from
suit for such a violation because the Defendant School Board acted in a governmental capacity and
because Defendants Moore and Eiring are entitled to qualified immunity.
State Law Claims
The Court DECLINES to further address the state law claims. This type of domestic
relations case is best addressed by the statecourts, which have greaterexperience and expertise in
this subject matter. The state courts have also handled many of the domestic relations issues
between Plaintiff Dana and Defendant Rafael in related cases.
Furthermore, the Court is
concerned that the Guardian ad Litem, who represents the children in other state court proceedings
between these same parties, has not participated in this proceeding. The alleged conflicts of
interest in this case between Plaintiff Dana and the Minor Plaintiffs are best addressed by the state
The Court STRIKES paragraphs one (1) and five (5) of the Second Amended Complaint
for violation of this Court's previous Order. The Court GRANTS the School Defendants'
Motion to Dismiss, Doc. 45, IN PART, granting it as to Count Nine (9).
The Court further REMANDS this case to the Circuit Court for the City of Suffolk because
this Court lacks subject matter jurisdiction after dismissing the only federal claim. ^
The Clerk is REQUESTED to send a copy of this Order to all counsel of record.
It is so ORDERED.
HENR^ COKE MORGAN'JR.^
SENIOR bfeJITED STATES DISTRICT JUDGE
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