Rippy v. HattawayRippy v. Hattaway
SANDRA S. BECKWITH, District Judge.* On May 23, 1995, the Juvenile Court of Robertson County, Tennessee, issued an order placing Travis Rippy (“Travis“) in the custody
The Rippys then filed a civil rights action, pursuant to
The Appellants moved the District Court for the dismissal of the complaint pursuant to
Appellants appeal the District Court‘s failure to dismiss the complaint on the bases of absolute and qualified immunity. For the reasons that follow, we REVERSE and REMAND for the entry of judgment in favor of the Appellants.
In considering a motion to dismiss pursuant to
When a defendant asserts qualified immunity in the face of a claim under
not only the violation of his rights, but also that these rights were so clearly established when the acts were committed that any official in the defendant‘s position, measured objectively, would have clearly understood that he was under an affirmative duty to refrain from the conduct. Dominique v. Telb, 831 F.2d 673, 676 (6th Cir. 1987).
Veney v. Hogan, 70 F.3d 917, 921 (6th Cir. 1995). This court reviews decisions on the legal sufficiency of the allegations in a complaint according to a de novo standard. See RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).
II1
In her petition for temporary custody of Travis, Appellant Bryant erroneously alleged that Aaron and Janet Rippy had been indicted for the sexual abuse of their older son, Brandon. She further alleged that Aaron and Janet Rippy‘s parental rights to Brandon had been terminated and that the Rippys had refused to provide the Department with the address where Brandon could be found. Bryant had not observed Travis or conducted any investigation into his condition or risk of harm prior to filing the petition. She alleged that Travis was a neglected and dependent child.
On May 23, 1995, the Juvenile Court awarded temporary protective custody of Travis to the Department without conducting a hearing. The court conducted a hearing on May 25, 1995 in the absence of Aaron and Janet Rippy. The Juvenile Court did not immediately issue an order following that hearing, and Travis remained in the actual custody of his parents until February 9, 1996, when the Department took custody of Travis. On February 15, 1996, without further hearing, the Juvenile Court issued an order of disposition awarding custody of Travis to the Department. The court found that Travis was a neglected and dependent child on the basis of Appellant Bryant‘s allegations in the initial petition alone.
Between May 1995 and February 1996, no one from the Department observed, interviewed, or examined Travis. Travis resided in Kentucky during that time. Appellants Bryant and Bartlett did not take action to ensure that Travis was represented by a guardian ad litem at the May 25, 1995 hearing or that Aaron and Janet Rippy were aware of the right to counsel afforded to them by Tennessee law.
Bryant prepared plans of care for Travis pursuant to Tennessee law applicable to neglected and dependent children and unspecified procedures promulgated and enforced by Appellant Hattaway. Appellant Bartlett instructed her to do so. The plans of care included attendance at classes for sexual perpetrators by Aaron and Janet Rippy, in spite of the absence of evidence that Travis had been sexually abused or that his parents had been indicted or convicted of sexual offenses. Participation in those classes would have required Aaron and Janet Rippy to admit to being sexual perpetrators. They refused to attend the classes, and Appellants Bryant and Bartlett refused to return Travis to his parents’ custody.
Appellants argue that they are shielded from liability with respect to the Rippys’
III
“[S]ocial workers who initiate judicial proceedings against those suspected of child abuse or neglect perform a prosecutorial duty, and so are entitled to absolute immunity.”
The investigation of a social worker that precedes the filing of a complaint or petition is not necessarily a judicial act covered by absolute immunity. See Achterhof, 886 F.2d at 830. The Rippys do not allege that Appellants conducted any such investigation, however. Indeed, to the extent that their
The Rippys allege that Bryant filed the petition, which included erroneous accusations concerning conduct of Aaron and Janet Rippy. The implication is that Bryant failed to conduct a careful investigation before incorporating the false accusations in the petition. The District Court concluded, however, that Appellants Bryant and Bartlett are absolutely immune from liability arising from the filing of the petition. See Achterhof, 886 F.2d at 830. That immunity extends to unintentional errors in the petition. The Rippys do not allege that Appellant Bryant intentionally misrepresented that Aaron and Janet Rippy had been indicted for a sexual offense.
The District Court also concluded that Appellants Bryant and Bartlett are entitled to absolute immunity with respect to actions undertaken in the execution of the Juvenile Court‘s order awarding custody of Travis to the Department. That immunity is not defeated by a showing that the order was issued erroneously. See Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994). The Rippys do not challenge that ruling. The actions encompassed in the District Court‘s conclusion include the seizure of Travis when he was found at his
In order to determine whether the District Court identified all of the alleged acts of the Appellants with respect to which they are entitled to absolute immunity, the Court must identify all of the actions that underlie the Rippys’
The case law makes little distinction between prosecutors and social workers who initiate judicial proceedings related to the welfare of a child. See Salyer, 874 F.2d at 378. “Immunity rests not on status or title but on the function performed.” Id. Prosecutors and, by analogy, social workers who initiate proceedings related to the welfare of a child are entitled to absolute immunity while functioning in roles intimately associated with the judicial phase of proceedings. See Grant v. Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989).
The appointment of guardians ad litem and representation of counsel are matters intimately related to the judicial phase of child custody proceedings. The alleged failures of Appellants Bryant and Bartlett to ensure representation for Travis and to inform Aaron and Janet Rippy of their right to
The Rippys allege that Appellants Bryant and Bartlett violated Travis’ right to due process and the Rippys’ right to privacy by failing to observe, interview, or examine Travis between May 1995 and February 1996. They allege that Appellants Bryant and Bartlett violated the same rights by failing to effect Travis’ return to his parents’ custody between February 1996 and August 1997 in spite of the absence of evidence of a risk of harm. The implication of their allegations is that Appellants Bryant and Bartlett could have brought about Travis’ return had they performed an adequate investigation at any time after the Juvenile Court ordered Travis’ removal from his parents’ custody in May 1995.
Tennessee law entrusts the decision whether to return a neglected child to the home from which he was removed to the Juvenile Court. See
The Rippys also contend that Appellants Bryant and Bartlett‘s formulation of and attempt to implement a plan of care that required Aaron and Janet Rippy to admit to being sexual perpetrators is an administrative act and that Bryant and Bartlett are not entitled to absolute immunity with respect to those actions. Under Tennessee law, the Juvenile Court, and not the Department, is responsible for adopting a plan for permanent placement of a child, including a plan that places the child with his parents. See
All of the alleged acts of Appellants Bryant and Bartlett are covered by absolute immunity. They are, therefore, entitled to the dismissal of the Rippys’ claims against them on that basis. The only alleged act of any of the Appellants that is not covered by absolute immunity is Appellants Hattaway‘s promulgation and enforcement of policies. The promulgation and enforcement of policies is not related to the judicial phase of child custody proceedings. Appellant Hattaway is not, therefore, entitled to absolute immunity with respect to the Rippys’
IV
Government officials performing discretionary functions “generally are shielded from 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A constitutional right must be clearly established in a particularized sense. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. The fact that a
[O]ur cases establish that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must have been sufficiently clear that a reasonable official would understand that what he is doing violates the right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.
Anderson, 483 U.S. at 640. Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
When a qualified immunity challenge to the complaint is asserted,
the plaintiff is entitled to the opportunity to come forward with additional facts or allegations that show not only the violation of his rights, but also that these rights were so clearly established when the acts were committed that any official in the defendant‘s position, measured objectively, would have clearly understood that he was under an affirmative duty to refrain from the conduct. Dominique v. Telb, 831 F.2d 673, 676 (6th Cir. 1987). If this pleading burden is not carried by Plaintiff in either the original complaint or by a pleading in response to defendant‘s assertion of the qualified immunity defense, dismissal is proper. Cameron v. Seitz, 38 F.3d 264, 273 n.2 (6th Cir. 1994).
Veney, 70 F.3d at 921.3
In their amended complaint, the Rippys make only one allegation of specific conduct by Appellant Hattaway in violation of rights guaranteed by the Constitution. They allege that he promulgated and enforced procedures pursuant to which Appellant Bryant removed Travis from his parents’ custody, failed to inform Aaron and Janet Rippy of their right to counsel, and prepared a plan for Travis’ permanent placement. While the promulgation and enforcement of procedures is a conceivable basis for a claim under
The only specific procedure the Rippys identify in their amended complaint is that pursuant to which Appellant Bryant failed to inform Aaron and Janet Rippy of their right to counsel. Appellees cannot, however, establish that a right of parents to be informed by a governmental agency involved in child custody proceedings of their right to counsel was
V
For all of the reasons set forth above, the decision of the District Court denying, in part, the Appellants’ motion to dismiss is REVERSED. This matter is REMANDED with instructions to enter judgment in favor of Appellants with respect to the Rippys’ claim under
RONALD LEE GILMAN, Circuit Judge, concurring. I fully concur with the lead opinion‘s analysis regarding the absolute immunity of Bartlett and Bryant, and agree that Hattaway is entitled to qualified immunity. But because I believe that the Supreme Court‘s opinion in Crawford-El v. Britton, 523 U.S. 574 (1998), overrules the heightened pleading standard that this court created in Veney v. Hogan, 70 F.3d 917 (1995), I write separately to address footnote 3 of the lead opinion.
In Veney, this court imposed a heightened pleading standard upon plaintiffs suing a public official when the official asserts the defense of qualified immunity. Veney, 70 F.3d at 921. The lead opinion concludes that the Rippys did not satisfy this burden with respect to their claim against Hattaway. Although I agree that the Rippys have failed to state a claim against Hattaway, I do not believe that the pleading standard outlined in Veney is the correct rule to apply now that the Supreme Court has expressed its disagreement with court-fashioned pleading requirements not contained in the Federal Rules of Civil Procedure. See Crawford-El, 523 U.S. at 600-01 (expressing a preference for allowing district judges to have broad discretion over the management of the lawsuit, as permitted by the Federal Rules of Civil Procedure, rather than “categorical rule[s] imposed by the Court of Appeals.“).
In Crawford-El, the Supreme Court rejected the D.C. Circuit of Appeals‘s rule requiring a plaintiff alleging unconstitutional motivation to prove such intent by clear and convincing evidence. The rationale used to strike down this heightened burden of proof calls into question all such court-fashioned rules. For example, the Supreme Court cautioned that the sua sponte creation of procedural rules, without precedential support or authorization by the Federal Rules of Civil Procedure or any other statutory grant of power, “would
Crucial to the Court‘s discussion of judicial restraint in rulemaking was its belief that the Federal Rules of Civil Procedure currently provide a variety of tools that a district court can use to effectively weed out unmeritorious claims, but that do not also unduly restrict a district court from exercising its discretion given the peculiarities and uniqueness of each case. Id. at 598-601. For example, a district court “may order a reply to the defendant‘s or a third party‘s answer under
It is the district judges rather than appellate judges like ourselves who have had the most experience in managing cases in which an official‘s intent is an element. Given the wide variety of civil rights and “constitutional tort” claims that trial judges confront, broad discretion in the management of the fact-finding process may be more useful and equitable to all the parties than the categorical rule imposed by the Court of Appeals.
Although the lead opinion is technically correct that the factual underpinnings of Crawford-El involved “claims that require proof of wrongful motive,” the Court‘s discussion and framing of the issue indicate that the role of appellate courts in rulemaking was generally at issue rather than simply the specific challenge to the D.C. Circuit‘s decision. This conclusion is supported by the Court‘s own formulation of the question presented in Crawford-El:
The broad question presented is whether the courts of appeals may craft special procedural rules for such cases to protect public servants from the burdens of trial and discovery that may impair the performance of their official duties. The more specific question is whether, at least in cases brought by prisoners, the plaintiff must adduce clear and convincing evidence of improper motive in order to defeat a motion for summary judgment.
Id. at 577-78; see also Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001) (“[T]he manner in which the Court framed the ‘broad’ question presented for appeal . . . suggests that the Court‘s ruling is not limited to the D.C. Circuit‘s heightened burden of proof.“).
Because Veney, like the rejected rule in Crawford-El, was not derived from the Federal Rules of Civil Procedure, nor was its creation by this court permitted by any other grant of authority, I believe that Crawford-El invalidated this Sixth Circuit-created rule of heightened pleading. Although one panel of this court is generally prohibited from overruling the holding found in the published opinion of a prior panel, it may do so when an intervening decision of the Supreme Court invalidates the previous decision. See Salmi v. Sec‘y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en
The Tenth Circuit, in Currier, recently set aside a similar rule of heightened pleading that was fashioned by a prior panel of that court, based on the conclusion that “[t]his court‘s heightened pleading requirement cannot survive Crawford-El.” Currier, 242 F.3d at 916. That court, like our own, acknowledged that “[a]lthough we are generally bound by the prior precedent of this court, there is an exception to this rule when that precedent is superceded by contrary decisions of the Supreme Court.” Id. at 912.
The First and Seventh Circuits have also addressed the impact of Crawford-El on court-created rules of heightened pleading. Although the First Circuit disagrees with my reading of Crawford-El, the Seventh Circuit is in agreement. See Judge v. City of Lowell, 160 F.3d 67, 74-75 (1st Cir. 1998) (holding that its heightened pleading requirement for discrimination cases survives Crawford-El); Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998) (“Civil rights complaints are not held to a higher standard than complaints in other civil litigation.“); see also Currier, 242 F.3d at 915-16 (criticizing the analysis and conclusion of the Judge case). Accordingly, I would evaluate the Rippys’ claim against Hattaway under the notice-pleading standard as outlined in
The Rippys’ complaint, however, even under
BOGGS, Circuit Judge, dissenting. From the pleadings and from the decision of the Tennessee courts in the underlying habeas corpus case, we know that Travis Rippy was unlawfully detained by the Tennessee Department of Human Services, in violation of his and his parents’ constitutional rights to due process. Under Tennessee law, an adjudicatory hearing should have been held within thirty days of the time that he was brought into the custody of the department. Instead, he was detained for more than eighteen months, and released only when his parents obtained a writ of habeas corpus. The question that remains is: Whose fault was this state of affairs, and what kind of immunity do any possible perpetrators have?
I agree with the majority that there is no basis for liability for any of the actions undertaken by the courts and the social workers, with one possible exception. I part company from the court on the question of whether there is a possible claim based on the actions of the social workers in detaining Travis for eighteen months without a hearing. It is the state‘s position, endorsed by the court‘s opinion, that the social workers either have no liability or have qualified or absolute immunity.
The plaintiffs’ claims were dismissed on a
Under these circumstances, I would permit the case to go forward, with at least enough discovery so that a court could ascertain whether genuine issues of material fact remain -- an inquiry that is appropriate at the summary judgment stage, but not at the stage of a dismissal under
To defeat qualified immunity, a plaintiff must show that the defendant violated clearly established rights of which any reasonable official would be aware.
The facts might be sufficient to defeat qualified immunity, because a reasonable official would know that it violates constitutional rights to prevent for 18 months a hearing that should have happened in 30 days.
On this record, the Rippys might be able to prove that social workers Bryant and Bartlett knew that the parents had a right to an adjudicatory hearing. The Rippys might also be able to prove that Bryant and Bartlett actively (and successfully) sought to prevent such a hearing, by various dilatory and obfuscatory tactics. These may have included preparing draft plans of care that imposed on the parents onerous obligations that they would refuse, such as admitting falsely to being sex offenders. While the court is correct that actually filing in court such a draft plan would be protected by absolute immunity, the administrative action of using such drafts as a tactic to defeat the parents’ right to a hearing would not be so protected. Willful failure to prepare a reasonable plan of care may be one of the things that prevented the parents from getting a hearing for over a year and a half.
This would meet the standard for violation of rights.
The central question is therefore whether there exists any set of facts that, if proven by the plaintiff, would state a claim against the defendants. The answer is indubitably yes.
In Egevary, the defendants were federal employees in the State Department, and the attorneys appointed by the federal employees. Id. at *22. The attorneys, with support from the federal defendants, obtained an order from a federal district judge ordering the immediate removal of a child from his father in Pennsylvania and his return to Hungary without a hearing. Id. at *26. There was considerable evidence that the federal employees and the attorneys caused the judge in the case to fail to schedule a pre- or post-deprivation hearing. Ibid. Judge Thomas O‘Neill found that these actions would, if proven, constitute a violation of a clearly established constitutional right, and that summary judgment in favor of defendants was inappropriate. Id. at *146.
In order to dispose of this case on a
In this case, the department obtained physical custody of Travis Rippy on February 9, 1996. It is undisputed that, pursuant to
Based on the allegations in the complaint, it seems possible that the parents could prove that the social workers deliberately acted to prevent the holding of an adjudicatory hearing, despite well knowing that such a hearing was constitutionally required. Further, it is possible that plaintiffs could prove that the social workers deliberately attempted to create a plan of care that included false admissions of misconduct and that this was done “by holding . . . Travis hostage.” (Amended Complaint, ¶ 19)
Our recent en banc holding in Holloway v. Brush clearly indicates that not every action taken by a social worker that has some connection to court proceedings is cloaked with absolute prosecutorial immunity. 220 F.3d 767 (6th Cir. 2000). At the
As Egervary also shows, actions much closer to the courtroom door than those in our case have been denied qualified and absolute immunity. See Egervary, 2001 U.S. Dist. LEXIS 13726 at *146 (denying claim that representations by a federal agent in an ex parte hearing before a judge are protected by immunity).