RONALD EIDSON, Plaintiff-Appellant, v. STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES, et al., Defendants-Appellees.
No. 07-5406
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: December 20, 2007
07a0497p.06
Before: BOGGS, Chief Judge; McKEAGUE, Circuit Judge; COHN, District Judge.*
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 05-00276—J. Ronnie Greer, District Judge. Argued: October 23, 2007.
COUNSEL
OPINION
McKEAGUE, Circuit Judge. This case arises from the temporary removal of plaintiff-appellant Ronald Eidson’s
I. FACTUAL AND PROCEDURAL BACKGROUND1
In September 2003, plaintiff-appellant Ronald Eidson had been awarded custody of his three children; their mother, Nancy Eidson, was granted visitation rights. On November 17, 2003, his daughter Amanda accused her father of sexual abuse. On November 18, Child Protective Services (“CPS”) responded to the accusation, sending CPS investigator Leilani Mooneyham to interview Amanda. After speaking with Amanda, in the company of Amanda’s mother, Mooneyham determined that removal of both of plaintiff’s daughters, Amanda and Kathryn, from his custody was appropriate.2 Without conducting any further investigation, Mooneyham removed both daughters on November 18, 2003, pursuant to a safety plan created by CPS, and placed them with their mother. Plaintiff was to have no contact with the daughters.
Despite a Tennessee law requirement that a hearing be conducted within three days following an immediate removal of a child from a parent’s custody, no such proceeding was initiated by the Tennessee Department of Children’s Services (“DCS”). On May 24, 2004, DCS finally filed a petition in juvenile court alleging plaintiff’s children were dependent and neglected. At the conclusion of the ensuing hearing, the juvenile court awarded temporary custody of the children to DCS, which placed them with their mother.3
On June 7, 2004, investigator Myra Ramey, who had been assigned to replace Mooneyham, sent plaintiff a “standard perpetrator notification letter,” informing him that he was “indicated for sexual abuse” and that he had a right to appeal the decision. Plaintiff alleges this letter served as notification that his name had been added to an internal DCS sex-offender registry.
On June 22, 2004, plaintiff’s daughter recanted her allegations of sexual abuse and admitted that her mother had instigated the false charge. A hearing was held on June 28, 2004, where the juvenile court was informed of the recantation. Custody of the children was removed from the mother and transferred to an aunt and uncle.
Defendants moved to dismiss the complaint as time-barred. On March 6, 2006, the district court granted the motion and dismissed plaintiff’s claims as barred by the one-year Tennessee statute of limitations applicable to
II. ANALYSIS
A. Standard of Review
Whether the district court properly dismissed the complaint pursuant to Rule 12(b)(6) is a question of law subject to de novo review. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). The reviewing court must construe the complaint in a light most favorable to plaintiff, accept all well-pled factual allegations as true, and determine whether plaintiff undoubtedly can prove no set of facts in support of those allegations that would entitle him to relief. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). Yet, to survive a motion to dismiss, the complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory. Mezibov, 411 F.3d at 716. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice. Id. See also, Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (explaining that complaint must contain something more than a statement of facts that merely creates speculation or suspicion of a legally cognizable cause of action).
B. Continuing Violation
The statute of limitations applicable to a
The date on which the statute of limitations begins to run in a
The precipitating event in this action, plaintiff concedes, was defendants’ initial removal of his daughters from his custody on November 18, 2003. At the time of the initial removal, plaintiff knew of the injury which is the basis of his claims. Yet, plaintiff argues that defendants’ continuing wrongful conduct, from the date of the initial removal through the completion of the 90-day trial placement period on October 22, 2004, constituted a continuing violation, extending accrual of his cause of action.
The test for determining whether a continuing violation exists is summarized as follows:
First, the defendant’s wrongful conduct must continue after the precipitating event that began the pattern. . . . Second, injury to the plaintiff must continue to accrue after that event. Finally, further injury to the plaintiff[] must have been avoidable if the defendants had at any time ceased their wrongful conduct.
Tolbert v. State of Ohio Dep’t of Transp., 172 F.3d 934, 940 (6th Cir. 1999). See also, Paschal v. Flagstar Bank, 295 F.3d 565, 572 (6th Cir. 2002). “[A] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.” Tolbert, 172 F.3d at 940 (quoting National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)). Passive inaction does not support a continuing violation theory. Id.; Paschal, 295 F.3d at 573.
In evaluating whether plaintiff has alleged facts sufficient to make out a continuing violation, it is necessary to first consider the contours of the civil rights claims he has asserted. “In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty or property’ is not itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting Parratt v. Taylor, 451 U.S. 527, 537 (1981)) (emphasis in Zinermon). It is undisputed that parents have a fundamental liberty interest in the custody of their children and that state intervention in the relationship between a parent and child must be accomplished by procedures meeting the requisites of the Due Process Clause. See Smith v. Williams-Ash, 173 F. App’x 363, 366 (6th Cir. 2005). Even a temporary deprivation of physical custody requires a hearing within a reasonable time. Id. Plaintiff has asserted a colorable procedural due process claim—i.e., that he was denied a hearing within a reasonable time.
“To state a cognizable substantive due process claim, the plaintiff must allege ‘conduct intended to injure in some way unjustifiable by any government interest’ and that is ‘conscience-shocking’ in nature.” Mitchell v. McNeil, 487 F.3d 374, 377 (6th Cir. 2007) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). The government’s interest in protecting children is just as compelling as the parents’ “abstract fundamental liberty interest in family integrity.” Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2000). Here, the juvenile court’s finding of probable cause to remove plaintiff’s daughters, based on Amanda’s accusation of sexual abuse, is supported by a compelling interest and does not, on its face, suggest government over-reaching that “shocks the conscience.” However, to the extent plaintiff’s substantive due process claim is premised on allegations that defendants denied him a hearing for some seven months after initially removing his daughters and then deliberately perpetrated a fraud on the juvenile court, he makes a colorable “shocks the conscience” claim.
With respect to both due process claims, however, the district court determined that plaintiff was aware of the complained-of wrongful conduct well over twelve months prior to the filing of his complaint and his claims were therefore time-barred. The court rejected plaintiff’s reliance on the continuing violation theory. Although the court reviews the district court’s decision de novo, the district court’s analysis of the continuing violation issue is clear and succinct and represents a useful starting point.
The district court acknowledged, with reference to the Tolbert standard, that plaintiff had alleged wrongful acts by defendants that post-dated the initial removal of his daughters, i.e., the continued denial of custody without proper notice and hearing, as well as Mooneyham’s perjured testimony in the May 2004 hearing. By the time the hearing was conducted, however, the district court observed, injury resulting from the alleged denial of procedural due process had ceased to accrue, as plaintiff had, by then, been afforded notice and a hearing. Further, the court properly recognized that, by the conclusion of the May 2004 hearing, the premises of plaintiff’s substantive due process claims, i.e., Mooneyham’s allegedly perjured testimony and the finding of probable cause to remove the daughters, were certainly known to plaintiff. The only allegation that was deemed to possibly amount to a continuing violation after the hearing was that of continued interference by defendants during the 90-day trial placement period. The district court considered the allegation too vague to make out a due process violation. Accordingly, the district court held that plaintiff’s claims failed to meet the requirements of the continuing violation doctrine and that his cause of action accrued more than one year prior to the filing of his complaint.
Plaintiff’s objection to this reasoning is groundless. He argues that his complaint contains allegations of three kinds of wrongful action that continued after the May 2004 hearing: (1) placement of his name on an internal sex offender registry; (2) continued prosecution of the neglect petition after Amanda recanted her accusation; and (3) continued interference during the trial placement period. He insists the injury he sustained as the result of a continuous series of events did not accrue until October 22, 2004, when legal custody of his daughters was finally restored to him. Yet, none of these allegedly continuing wrongful acts make out a deprivation of liberty without due process or otherwise suggest unlawful conduct; and the complaint offers no reason to conclude any of them continued beyond October 21, 2004. Granted, full legal custody was not restored until October 22, 2004, but actual physical custody of his daughters had been returned to plaintiff in July 2004. That is, the injury resulting from the precipitating
Any harmful effects resulting from actions allegedly taken by defendants after the juvenile court proceeding are appropriately characterized as “continuing ill effects,” which do not make out a continuing violation. The letter plaintiff received informing him that he had been indicated for sexual abuse and his name placed in an internal database was not an unlawful act, but represents a reasonable precaution, incidental to his daughter’s later-recanted allegation of sexual abuse. Even though Amanda subsequently recanted her accusation, the earlier inclusion of plaintiff’s name on the internal list, without more, hardly implicates any deprivation of liberty without due process.
Plaintiff’s allegation of continued prosecution of the petition after Amanda’s recantation appears to be based on the contention that defendants continued to fail to conduct the sort of thorough investigation that would have exonerated him. Further, defendants are alleged to have known of Mooneyham’s false testimony regarding his consent to the children’s removal and yet continued to refrain from informing the juvenile court. These allegations fail to establish a continuing violation, as mere inaction is not enough to satisfy the doctrine. Tolbert, 172 F.3d at 940; Paschal, 295 F.3d at 573.
Plaintiff has not identified any affirmative acts taken by defendants in furtherance of “continued prosecution” except for his vague allegation of “continual interference” during the trial placement period. This, too, hardly suggests unlawful conduct and, in any event, is nothing but an ill effect of the original removal of the children, since the juvenile court had awarded temporary custody to DCS in the May 2004 proceeding. Considering the seriousness of the original accusation, and Amanda’s recanting thereof, DCS was certainly justified in cautiously questioning whether the truth had in fact emerged and whether the daughters’ best interests were served by their return to their father’s household. DCS had a legitimate reason and arguably an affirmative duty to continue monitoring the children during the trial placement period. Plaintiff’s complaint affords no support for the conclusion that the “continual interference” he complains of was anything other than ordinary inconvenience attendant to legitimate monitoring by DCS.
Even viewing the allegations in the light most favorable to plaintiff, they fail, due to their vagueness, to warrant a reasonable inference that the alleged interference rose to the level of a deprivation of liberty without due process. As the Supreme Court recently reiterated, even under Rule 12(b)(6) review, a complaint containing a statement of facts that merely creates a suspicion of a legally cognizable right of action is insufficient. Bell Atlantic, 127 S.Ct. at 1965. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. Plaintiff’s complaint simply does not pass muster under this standard.
Hence, it is apparent that plaintiff has failed to set forth facts facially establishing a continuing violation during the twelve-month period immediately preceding the filing of his complaint. The district court did not err in rejecting plaintiff’s continuing violation theory.
C. Abstention Principles
Plaintiff’s alternative argument for extension of the date of accrual of his cause of action is based at least derivatively on ill-fitting abstention principles. Plaintiff contends that if he had filed his
Despite plaintiff’s characterization of his argument, the ruling in Shamaeizadeh is not based on application of abstention principles. Yet, abstention principles are not totally inapposite. Except in extraordinary circumstances federal courts should “permit state courts to try state cases free from interference by federal courts.” Younger v. Harris, 401 U.S. 37, 43 (1971). The underlying concern of Younger is the “threat to our federal system posed by displacement of state courts by those of the National Government.” Moore v. Sims, 442 U.S. 415, 423 (1979). The Sixth Circuit has held that Younger abstention is appropriate “when the state proceeding (1) is currently pending, (2) involves an important state interest, and (3) affords the plaintiff an adequate opportunity to raise constitutional claims.” Coles v. Granville, 448 F.3d 853, 865 (6th Cir. 2006). “[T]he temporary removal of a child in a child-abuse context is . . . ‘in aid of and closely related to criminal statutes’” and Younger abstention has been applied when there was a pending state court child abuse proceeding. Moore, 442 U.S. at 423 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)). “A district court deciding to abstain under Younger has the option of either dismissing the case without prejudice or holding the case in abeyance.” Coles, 448 F.3d at 866.
These abstention principles form the backdrop for the parties’ arguments regarding accrual of plaintiff’s cause of action, but are only marginally related to plaintiff’s argument based on Shamaeizadeh. Shamaeizadeh represents an extension of the rule established in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that Heck’s post-conviction action under
In Shamaeizadeh, the Sixth Circuit extended the reasoning of Heck to a pre-conviction situation. Shamaeizadeh never was convicted; criminal charges against him were dismissed pre-trial. For purposes of evaluating the timeliness of his
Plaintiff here maintains that the district court erred in its failure to recognize that the juvenile court child neglect proceedings are quasi-criminal in nature. He insists that the reasoning of Shamaeizadeh is directly applicable and that his
In Wallace, the court specifically held that Heck is not to be extended into the pre-conviction arena. Id. at 1098. The Wallace court recognized that deferred-accrual reasoning was unnecessary and inappropriate in the pre-conviction setting because the common abstention practice of staying the
In Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007), the Sixth Circuit explicitly recognized that Wallace “abrogates the holding in Shamaeizadeh”:
This court, drawing on the reasoning in Heck . . . held [in Shamaeizadeh] that when a
§ 1983 claim would imply the invalidity of a future conviction, the statute of limitations would not begin to run until the criminal charges have been dismissed. . . . In no uncertain terms, however, the Court in Wallace clarified that the Heck bar had no application in the pre-conviction context.
Id. at 234 (citations omitted; emphasis in original).
Still, plaintiff argues that this case is distinguishable from Wallace. Even as he maintains that child neglect and custody proceedings are quasi-criminal, he nevertheless insists that his
Granted, some of plaintiff’s allegations are analogous to the sort of malicious-prosecution claims addressed in Heck. Yet, they are not analogous in the ways that mattered most to the Heck court. What made Heck’s malicious-prosecution-type
Plaintiff acknowledges that the precipitating event in this action was the initial removal of his daughters from his custody on November 18, 2003, based on the misconduct of a nonparty to this action (i.e., his daughter’s false accusation) and before any of the alleged misconduct by defendants occurred. Plaintiff could theoretically have prevailed on his due process claims (based on the alleged ensuing misconduct of defendants) even if Amanda had never recanted her accusation and plaintiff had ultimately been held responsible for abuse. Plaintiff’s due process claims are in this respect more analogous to the false-arrest-type
Moreover, irrespective of the difference between types of
The Wallace court thus took the same approach employed in this case by the district court, which held first, that the pendency of juvenile court proceedings did not delay the accrual of plaintiff Eidson’s
Plaintiff’s protest is overstated. The Wallace court did not hold that the running of the limitation period could not be tolled; only that tolling is traditionally a matter of state law and that adoption of an “omnibus” federal tolling rule would not be appropriate. Id. The Wallace court was content to entrust the matter of tolling to abstaining district courts in the exercise of their discretion on a case-by-case basis. Yet, prerequisite to obtaining any such tolling relief, of course, is the timely filing of the
Accordingly, because we conclude that the rule of Heck does not apply in the pre-conviction setting to delay accrual of plaintiff’s due process cause of action, we concur in the district court’s ruling that plaintiff’s
III. CONCLUSION
Victimized once by his daughter’s false accusation, plaintiff may have been doubly victimized by overzealous or incompetent actions of child protection services workers. Yet, in the face of a one-year limitation period, he failed to act quickly enough in seeking relief for the alleged civil rights violations. The district court did not err in rejecting plaintiff’s arguments that accrual of the cause of action was delayed or extended pursuant to the continuing violation doctrine or the rule of Heck v. Humphrey. The district court’s dismissal of plaintiff’s complaint as time-barred is therefore AFFIRMED.