The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
HOLLY CRISTEN ELLIS
JEREMY EDWARD ELLIS PLAINTIFFS
No. 3:22-cv-64-DPM
STATE OF ARKANSAS;
ASA HUTCHINSON, Governor;
KEITH CHRESTMAN, Prosecutor;
DOUG BRIMHALL, Prosecutor;
ASHTEN MASSEY, Deputy/Officer;
JORDON KENNEDY, Detective;
D & H COMPANY: and
B. NEAL BURNS, PLLC DEFENDANTS
ORDER
1. Holly and Jeremy Ellis bring claims against Arkansas, the
Governor, a state prosecutor, two law enforcement officers (one of
whom is Holly’s sister), Holly’s former employer, and the lawyers who
represent Holly’s ex-husband and the mother of Jeremy’s child in
separate domestic relations disputes in state court.
2. The Ellises represent themselves. Their complaint and the
attached exhibits are detailed and voluminous. This is essentially what
they allege, which the Court takes as true at this stage of the case. Jones
v. Douglas County Sheriff's Department, 915 F.3d 498, 499 (8th Cir. 2019).
Holly was married to Matthew Davis. Their relationship began
while Holly was a minor. Holly alleges that Davis abused her and that
Wendie Parnell, her mother, forced her to marry Davis to cover up the
abuse.
Holly and Davis had two children before they divorced. Holly
later married Jeremy Ellis, her husband and fellow plaintiff. In August
of 2021, Holly and Jeremy told Officer Ashten Massey that Holly’s
daughter said that Davis had abused her. Officer Massey and Holly are
sisters. They also reported the alleged abuse to the state’s child abuse
hotline. Officer Massey did not investigate these allegations or report
them to the authorities. Rather, the Ellises allege, Officer Massey and
others engaged in a conspiracy to protect Davis and Parnell.
Specifically, the Ellises allege that:
e Officer Massey told Davis and Parnell about the
accusation.
e In September of 2021, Davis, represented by Neil Burns,
petitioned for an emergency change of custody over his
two children with Holly. Doc. 1 at 188-193. Officer
Massey allegedly provided Burns with an order of
protection entered against Jeremy in favor of Samantha
Street, an old partner, that Burns used in support of the
petition. The Greene County Circuit Court entered an
emergency Order giving Davis sole custody. Doc. 1 at
196-197. That Court rejected the Ellises’ attempts to
regain custody.
@ In December of 2021, Street, represented by Doug
Brimhall (who is also a part-time prosecutor as reflected
in the case caption), petitioned for an emergency
termination of Jeremy’s visitation rights with their child.
Doc. 1 at 221-226. Officer Massey and others assisted
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Brimhall in these efforts. The Craighead Country Circuit
Court temporarily suspended Jeremy’s visitation rights
and ordered him to complete a_ psychological
examination and anger management counseling.
Doc. 1 at 228-232.
e Also in December, Holly was placed on a seventy-two-
hour inpatient stay at the St. Bernard’s emergency room
for suicidal ideation. While she was in the hospital,
Officer Massey visited the Ellises’ home. Jeremy called
the police. Detective Jordon Kennedy responded. Officer
Massey asked Detective Kennedy to conduct a wellness
check. After Detective Kennedy went inside, Jeremy told
him that Holly had been admitted to St. Bernard’s but that
Officer Massey could not know her whereabouts. Despite
Jeremy’s admonition, Detective Kennedy told Officer
Massey where Holly was. Officer Massey then shared
Holly’s location with (among others) Davis, Burns, Street,
and Brimhall. Burns later subpoenaed Holly’s medical
records related to her hospitalization.
e The Ellises complained about Officer Massey to Keith
Chrestman, a state prosecutor. He did not take action
against Officer Massey, but rather assisted in the alleged
conspiracy.
e Parnell is a manager with D & H Company. Holly
worked at D & H for twelve years and the Ellises allege
that Parnell coerced her to work at D & H for half of that
time. They allege that Parnell participated in the
conspiracy against them because Holly left the company
in June 2021.
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3. The Ellises bring many claims. Most are about the
underlying custody and domestic relations cases that appear to remain
pending in state court. They also allege disability discrimination:
Holly is deaf; while Jeremy suffers from bipolar disorder and
depression. All the defendants move to dismiss the claims against
them.
4. Some initial narrowing is needed. First, every defendant has
moved to dismiss the Ellises’ complaint because the Ellises sued on
behalf of their marriage instead of themselves. Liberally construing the
complaint, the Court has already concluded that the Ellises are the
plaintiffs in this case. Doc. 62 at 2.
Second, the Ellises have moved to dismiss their claims for
damages against Governor Hutchinson, Chrestman, Brimhall, Massey,
and Kennedy in their individual capacities. The Court construes the
motion, Doc. 80, as a request to proceed only for injunctive relief and
official-capacity damages against those defendants. This motion is
granted.
Third, the official-capacity claims against Governor Hutchinson,
Chrestman, and Brimhall duplicate the claims against the State of
Arkansas. Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012).
Those official-capacity claims are unnecessary and will be dismissed
without prejudice. The Court will evaluate the State’s liability, if any,
on a claim-by-claim basis.
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Last, Officer Massey seeks dismissal of the Ellises’ claims against
her in her official capacity as a Deputy for the Greene County Sherriff’s
Department because she began working for the department after the
events described in the complaint. Officer Massey’s employment
records are not the type of public records that this Court may consider
on a Rule 12(b)(6) motion. McAuley v. Fed. Ins. Co., 500 F.3d 784,
788 (8th Cir. 2007); Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999). The Ellises, however, agree that Officer Massey
was not employed by Greene County during the relevant time period.
Doc. 38. The claims against Officer Massey in her official capacity as a
Greene County Sheriff’s Deputy will be dismissed without prejudice.
5. The Ellises bring many claims under the Rehabilitation Act
of 1973 and the Americans with Disabilities Act of 1990 against all of
the defendants. At this stage of the case, the Court will assume that the
Ellises’ alleged disabilities are covered under these statutes.
Title I of the ADA. The Ellises do not allege that they were
employed by the State of Arkansas, Governor Hutchinson, Chrestman,
Brimhall, Massey, Kennedy, or B. Neal Burns, PLLC. The claims
brought under Title I of the ADA against those defendants will
therefore be dismissed without prejudice. 42 U.S.C. § 12112(a).
Jeremy does not allege that he was employed by D & H Company, so
his TitleI claim against the company will be dismissed without
prejudice as well. Ibid. And Holly’s Title I claim against D & H
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Company will be dismissed without prejudice because she has not
alleged that she suffered any adverse employment action because of her
deafness. E.E.O.C. v. Product Fabricators, Inc., 763 F.3d 963, 969 (8th Cir.
2014).
Rehabilitation Act / Title II of the ADA. The Rehabilitation Act and
Title II of the ADA do not create individual liability, so the individual-
capacity claims brought under those statutes against Governor
Hutchinson, Chrestman, Brimhall, Massey, and Kennedy will be
dismissed with prejudice. Durand v. Fairview Health Services, 902 F.3d
836, 841 (8th Cir. 2018); Damron v. North Dakota Commissioner of
Corrections, 299 F.Supp.2d 970, 979 (D.N.D. 2004), aff'd, 127 Fed. App’x
909 (8th Cir. 2005) (unpublished per curiam). The claims against D & H
Company and B. Neal Burns, PLLC, will be dismissed without
prejudice because those companies are not public entities. O’Connor v.
Metro Ride, Inc., 87 F. Supp. 2d 894, 900 (D. Minn. 2000).
The Rehabilitation Act and Title II official-capacity claims against
Massey and Kennedy, and the claims against the State, will be
dismissed without prejudice because the Ellises have not plausibly
alleged that the officers’ or state officials’ actions were taken on the
basis of, or by reason of, their alleged disabilities. Folkerts v. City of
Waverly, lowa, 707 F.3d 975, 983 (8th Cir. 2013). The Ellises say that they
were denied access to child protective services because of their alleged
disabilities. Doc. 1 at § 137. They have not alleged, however, that any of
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the defendants are responsible for administering child protective
services. Even if they had, the Court is doubtful that the Ellises, as
opposed to their children, would have been qualified to receive services
from the Arkansas Department of Human Services. 42 U.S.C.
§ 12131(2). And the Department's duty to protect children only runs to
those in its care and custody. Terry B. v. Gilkey, 229 F.3d 680, 682 (8th
Cir. 2000).
Title III of the ADA. The State of Arkansas, Governor Hutchinson,
Chrestman, Brimhall, Massey, and Kennedy are not private entities,
so the claims against them under Title III of the ADA will be dismissed
with prejudice. Koester v. Young Men’s Christian Association of Greater St.
Louis, 855 F.3d 908, 910 (8th Cir. 2017). And the Ellises have not alleged
that D & H Company or B. Neal Burns, PLLC, failed to reasonably
accommodate their alleged disabilities. Ibid. The Title III claims against
those companies will therefore be dismissed without prejudice.
Title V of the ADA. The Ellises’ claims under Title V* of the ADA
will be dismissed without prejudice because they have not plausibly
alleged that they engaged in any activity protected by the ADA.
42 U.S.C. § 12203(b); Frakes v. Peoria School District No. 150, 872 F.3d 545,
550-51 (7th Cir. 2017).
* The Ellises’ complaint incorrectly refers to 42 U.S.C. § 12203(b) as Title
IV. The Court does not construe the complaint to raise any Title IV
issues. The anti-interference provisions of the ADA are in Title V.
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6. The Ellises have failed to state a claim against any of the
defendants for conspiracy under 42 US.C. § 1985(2) & (3).
Those subsections bar four broad classes of conspiratorial activity, only
two of which are relevant here: § 1985(2)’s prohibition against
interfering with the administration of justice in state court; and
§ 1985(3)’s prohibition against interference with the private enjoyment
of “equal protection of the laws” and “equal privileges and immunities
under the laws.” 42 U.S.C. § 1985(2) & (3); Kush v. Rutledge, 460 U.S.
719, 724 (1983). Both subsections require a meeting of the minds
between or among the defendants, or between or among the defendants
and another person. Kelly v. City of Omaha, 813 F.3d 1070, 1077-78 (8th
Cir. 2016). The Ellises “must allege with particularity and specifically
demonstrate with material facts that the defendants reached an
agreement.” Ibid. (internal quotations omitted). They have not done
so. The Ellises’ § 1985 claims will therefore be dismissed without
prejudice.
7. The Ellises press claims under § 1983 for violations of their
rights under the First and Fourteenth Amendments.
The State is immune from suit under § 1983; the claims against it
will therefore be dismissed with prejudice. Murphy v. State of Arkansas,
127 F.3d 750, 754 (8th Cir. 1997).
The Ellises do not allege that Governor Hutchinson was
personally involved in the events described in their complaint, so the
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claims against him in his individual capacity will be dismissed without
prejudice. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Heartland Academy
Community Church v. Waddle, 595 F.3d 798, 806 (8th Cir. 2010).
The official-capacity claims for money damages against
Chrestman and Brimhall are barred by sovereign immunity.
Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995).
Those claims will therefore be dismissed with prejudice.
D & H Company and B. Neal Burns, PLLC, are not state actors,
and the Ellises do not allege that the companies acted under color of
state law. Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir.
2007). The claims against those companies will therefore be dismissed
without prejudice.
The Ellises do not clearly raise any claims under the First
Amendment. The Court’s obligation to read the complaint as a whole,
and to construe it liberally, does not require finding claims where none
are adequately made. Warmington v. Board of Regents of University of
Minnesota, 998 F.3d 789, 795-96 (8th Cir. 2021). The Ellises say that they
reported Holly’s sexual abuse and the abuse of her daughter. That is
protected activity. Their complaint, however, does not give rise to a
plausible inference that any of the defendants acted against the Ellises
out of retaliatory animus because of that activity. Mitchell v. Kirchmeier,
28 F.Ath 888, 896-98 (8th Cir. 2022). Their First Amendment
§ 1983 claims will therefore be dismissed without prejudice.
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The Court abstains from considering the merits of the Ellises’
equal protection and due process claims. Younger v. Harris, 401 U.S. 37,
44-45 (1971). The Court construes those claims as related to the
ongoing custody disputes in state court, which involve important state
interests and in which the Ellises have had the opportunity to raise —
and have raised—their constitutional claims. Tony Alamo Christian
Ministries v. Selig, 664 F.3d 1245, 1249 (8th Cir. 2012). The Ellises request
that this Court either stay those state proceedings or overturn the
decisions made by the state courts in at least three matters that were
open when they filed this case— Davis v. Davis, No. 28DR-16-267 (Cir.
Ct. Greene Cty.); Ellis v. Street, No. 16JDR-14-3 (Cir. Ct. Craighead
Cty.); and Ellis v. Davis, No. 16JCV-22-2 (Cir. Ct. Craighead Cty.).
Under the principles set out in Younger and Tony Alamo Christian
Ministries, the Court declines to do so.
On 10 August 2022, the Circuit Court of Greene County, Arkansas
entered a final order placing full custody of Holly’s children in Davis.
Davis v. Davis, 283DR-16-267 (Cir. Ct. Greene Cty. 10 Aug. 2022).
In addition to the Court’s obligation to abstain from interfering in that
case, this Court does not have the power to second guess the state
court’s judgment. Exxon Mobil Corp. v. Saudi Basic Industries Corp.,
544 U.S. 280, 284 (2005); see also Skinner v. Switzer, 562 U.S. 521,
531-32 (2011). This Court does not have jurisdiction to oversee state
court proceedings.
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The Ellises’ equal protection and due process claims will therefore
be dismissed without prejudice.
8. The Ellises’ motion, Doc. 83, to add the Craighead County
Sheriff's Office as a defendant is denied because that entity cannot be
sued. De La Garza v. Kandiyohi Cnty. Jail, Corr. Inst., 18 F. App'x 436,
437 (8th Cir. 2001) (unpublished per curiam).
9. The remaining claims are all state law matters over which
the Court declines to exercise supplemental jurisdiction.
28 U.S.C. § 1367(c)(3); Streambend Properties II, LLC v. Ivy Tower
Minneapolis, LLC, 781 F.3d 1003, 1016-17 (8th Cir. 2015).
The Ellises’ motion, Doc. 80, is granted. Their motion to add the
Craighead County Sheriff’s Office as a defendant, Doc. 83, is denied.
The defendants’ motions, Doc. 36, 44, 46, 48, 55 & 63, are all granted as
specified in this Order. The Ellises’ motions, Doc. 77, 78, 79, 82, & 84,
are denied as moot. Judgment will issue.
So Ordered.
_ Tel Fe
D.P. Marshall Jr.
United States District Judge
8 Aecemby 0A
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