RHOADS v. GUILFORD COUNTY NORTH CAROLINA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GINGER RHOADS; SCOTT RHOADS; )

ASHLEY ETHRIDGE; and WAYLON )

ETHRIDGE, )

)

Plaintiffs, )

)

v. )

)

GUILFORD COUNTY, NORTH )

CAROLINA; GUILFORD COUNTY )

DEPARTMENT OF SOCIAL SERVICES; )

SHARON BARLOW, in her )

individual and official )

capacity as Director of )

Guilford County Department of ) 1:23-CV-854

Social Services; GAIL SPINKS; )

CHRISTINA HAIK; KAREN )

WILLIAMSON; LORI GERSHON; )

RACHEL COOLEY; DSS SUPERVISOR )

DOE #1, in his or her )

individual and official )

capacity as an employee of )

Guilford County Department of )

Social Services; and DSS SOCIAL )

WORKER DOE #1, in his or her )

individual and official )

capacity as an employee of )

Guilford County Department of )

Social Services, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

In this putative class action, Plaintiffs allege race-based

discrimination in the placement of foster children. Before the

court is Defendants’ motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). (Doc. 26.) Plaintiffs have responded

in opposition (Doc. 31), and Defendants have replied (Doc. 35).

For the reasons set forth below, the motion to dismiss will be

granted.

I. BACKGROUND

On December 19, 2023, the court granted in part Defendants’

motion to seal portions of the complaint to protect the identities

of minor children involved. (Doc. 23.) The court need not rely

on any redacted allegations to resolve the motion to dismiss and

accordingly refers here solely to the publicly-available redacted

version of the complaint at docket entry 24. The facts alleged

therein, which the court accepts as true for the purpose of the

motion to dismiss, set out the following:

Defendant Guilford Department of Social Services (“Guilford

DSS”) is a subdivision of Defendant Guilford County, a division of

the North Carolina state government amenable to suit under North

Carolina General Statute § 153A-11. (Doc. 24 ¶ 7.) Defendant

Sharon Barlow is the Director of Guilford DSS, and Defendants Gail

Spinks, Christina Haik, Karen Williamson, Lori Gershon, Rachel

Cooley, DSS Supervisor Doe #1, and DSS Social Worker Doe #1 are

Guilford DSS employees. (Id. ¶ 8.) These individuals are all

sued in their respective official and individual capacities.

Plaintiffs are two sets of white foster parents. Plaintiffs

Scott and Ginger Rhoads reside in Alamance County, North Carolina,

and have fostered numerous children. (Id. ¶ 5.) Minor 11 is an

African American child who was placed in the Rhoadses’ care by

Guilford DSS. (Id.) They cared for Minor 1 for twenty-eight

months. (Id. ¶ 14.) At some point during this period, it “became

clear” that Minor 1 would require permanent adoption. (Id.) The

Rhoadses allege that Defendants “participated in and actively

advanced” efforts to have Minor 1 removed from their home and that

Minor 1’s mother’s attorney, the guardian ad litem, and the child’s

attorney “pushed the court to remove the child.” (Id.) The

Rhoadses further allege that Defendants “aided and abetted”

efforts by the guardian ad litem and Minor 1’s attorney to have

Minor 1 adopted by an African American household. (Id. ¶ 15.)

The Rhoadses’ claim is supported solely by comments by Minor

1’s attorney and the guardian ad litem — neither of whom is

employed by any Defendant or sued in this case — at a hearing to

respond to the removal request. The Rhoadses allege that the

guardian ad litem told the judge that Minor 1 should be placed in

“his own culture,” that Ms. Rhoads called him by an “uppity”

nickname, that the Rhoadses could not receive sufficient

assistance to help them understand African American culture, and

that Mrs. Rhoads committed “microaggressions” when discussing her

opinions regarding Minor 1’s hair care. (Id. ¶ 15.) In a

1 The complaint capitalizes the anonymizations as “MINOR X.” The court

adapts the anonymizations as “Minor X” throughout.

permanency planning hearing on April 12, 2022, the guardian ad

litem opined:

I just feel like these are things that, [Minor 1] being

an African-American male, could hurt him in the long

run. He needs to be exposed to culture; he needs to be

able to be around children that look like him; he needs

to be able to be around teachers who look like him, and

I feel like he’s not going to get that if he gets adopted

by the Rhoadses, even though they’re great people.

(Id. ¶ 16.)2

2 This quotation appears in the complaint. Defendants previously

moved to file under seal what they represent are the complete transcripts

from this and other removal proceedings involving the minors in this

case; this court granted Defendants’ motion. (Docs. 29 at 1-2; Doc. 36

at 1-2; see Docs. 28, 28-1 (transcripts).) Defendants now argue these

transcripts show that Plaintiffs’ excerpted quote is misleadingly taken

out of context and that reasons other than race drove the state court’s

removal decision. (Doc. 27 at 21-24.) Notably, no party points to any

portion of the transcripts of the minors’ removal proceedings to argue

that they contain any evidence to support Plaintiffs’ claims in this

case; rather, the transcripts contain information involving placement

of the minors that is protected as confidential under North Carolina

law. See N.C. Gen. Stat. §§ 7B-302, 7B-2901; 10 N.C. Admin. Code

70A.0113. For the reasons noted infra, the court concludes that the

transcripts are unnecessary for resolution of the pending motion to

dismiss. However, because the Fourth Circuit recently held in the

summary judgment context that the court must nevertheless determine the

propriety of sealing even where the sealed documents bore no role in the

court’s consideration, United States ex rel. Oberg v. Nelnet, Inc., 105

F.4th 161 (4th Cir. 2024), further discussion is warranted, and this

court’s prior order (Doc. 36) is supplemented accordingly.

The confidentiality of records filed in judicial proceedings

represents an exception to the “general right to inspect and

copy . . . judicial records and documents.” Nixon v. Warner Commc’ns,

Inc., 435 U.S. 589, 597 (1978). This right of public access derives

from both the common law and the First Amendment. See Va. Dep’t of State

Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004). The common

law right provides a “presumption of access” which may be rebutted “by

a showing that countervailing interests heavily outweigh the public

interests in access.” Oberg, 105 F.4th at 171 (internal quotation marks

and citation omitted). A court may restrict access to a document

protected by the First Amendment “only if closure is ‘necessitated by a

compelling government interest’ and the denial of access is ‘narrowly

tailored to serve that interest.’” Id. (footnote and citation omitted).

And “[w]hile the common law presumption in favor of access attaches to

all ‘judicial records and documents,’ the First Amendment guarantee of

access has been extended only to particular judicial records and

documents.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180

(4th Cir. 1988) (citation omitted).

The First Amendment right attaches only “to any judicial proceeding

or record (1) that has historically been open to the press and general

public; and (2) where public access plays a significant positive role

in the functioning of the particular process in question.” Oberg, 105

F.4th at 171 (internal quotation marks and citation omitted). This

standard is clearly met in connection with an opposition to summary

judgment and related documents, even to those documents on which the

trial court did not rely in reaching its summary judgment decision. Id.

at 172-74.

The present case involves a motion to dismiss pursuant to Rule

12(b)(6). While “public access plays a significant positive role in the

functioning of the particular process in question” here, id. at 171,

such a motion involves a judicial determination of the sufficiency of a

complaint without resolution of “contests surrounding the facts, the

merits of a claim, or the applicability of defenses,” Burgess v.

Goldstein, 997 F.3d 541, 562 (4th Cir. 2021) (citation omitted). There

are limited circumstances where documents referenced in the complaint

can be considered without converting the motion to one for summary

judgment. Jenkins v. United States, No. CV 3:17-1775-TLW-PJG, 2018 WL

1720926, at *3 (D.S.C. Mar. 12, 2018) (“[T]he district court cannot go

beyond [the complaint and documents attached or incorporated therein]

on a Rule 12(b)(6) motion; if it does, it converts the motion into one

for summary judgment.”) (quoting E.I. du Pont de Nemours & Co. v. Kolon

Indus., 637 F.3d 435, 448 (4th Cir. 2011)) (alterations in original),

report and recommendation adopted, No. 3:17-CV-1775-TLW-PJG, 2018 WL

1709921 (D.S.C. Apr. 9, 2018), aff'd, 778 F. App'x 227 (4th Cir. 2019);

cf. Phillips LCI Int’l., Inc., 190 F.3d 609, 618 (4th Cir. 1999)

(explaining that, on a motion to dismiss, a court may consider a document

not attached to the complaint where the document was “integral to and

explicitly relied on in the complaint” and its authenticity is

unchallenged). The transcripts offered by Defendants do not fall within

those limited circumstances, and they would therefore ordinarily not be

considered at this stage.

Although it does not appear to be settled whether First Amendment

access rights attach to documents filed in support of a motion to

dismiss, see Oberg, 105 F.4th at 173 n.10 (discussing In re Policy

The Rhoadses allege that Defendants “failed to make any

objection to this racially-biased testimony; aided, abetted, and

acquiesced in its presentation; acquiesced in the Court’s ruling

based on that testimony; and made no effort to appeal the Court’s

erroneous ruling.” (Id. ¶ 17.) They also allege that Defendants

have not convened a review or permanency hearing to “address this

racially discriminatory result,” despite “being advised of this

violation.” (Id. ¶ 18.)

Plaintiffs Ashley and Waylon Ethridge reside in Charleston

County, South Carolina. (Id. ¶ 6.) They cared for two African

Management Systems Corp., Nos. 94-2254 & 94-2341, 1995 WL 541623, at *3–

4 (4th Cir. Sept. 13, 1995) (unpublished)), the court can assume, without

deciding, that the more stringent First Amendment access rights apply.

That is because here there is a compelling government interest in sealing

the transcripts: the protection of children. Globe Newspaper Co. v.

Superior Ct. for the Cnty. of Norfolk, 457 U.S. 596, 607-08 (1982)

(finding that “safeguarding the physical and psychological well-being

of a minor [qualifies as] a compelling [interest]” that can outweigh the

public's right of access). North Carolina law protects the interests

of minors by providing that the records of certain juvenile cases,

including those relating to dependency, be “withheld from public

inspection and . . . may be examined only by order of the court.” N.C.

Gen. Stat. § 7B-2901(a) (2021). Moreover, sealing the transcripts, where

the pertinent basis for Plaintiffs’ claim appears already in the

complaint, is narrowly tailored to serve that compelling interest. North

Carolina law requires that the hearing transcripts be closed to public

inspection. See N.C. Gen. Stat. §§ 7B-302, 7B-2901; 10A N.C. Admin.

Code 70A.0113. This court has previously sealed the records of nonparty

minors after finding that “a compelling interest in protecting the

minors’ privacy outweighs the public’s right of access to those materials

[under both the common law and First Amendment].” Vang v. Ashby, No.

1:18CV565, 2020 WL 5764388, at *4, *5 (M.D.N.C. Sept. 28, 2020).

Therefore, continued sealing of the transcripts is warranted. This

is true even though the court did not rely on their contents to resolve

the present motion.

American children, Minor 2 and Minor 3, who are siblings. (Id.

¶ 20.) Guilford DSS personnel had initiated “numerous

conversations” with the Ethridges about adopting the children.

(Id.) Before a “key court hearing” in July 2021, Guilford DSS

personnel inquired of the Ethridges how they planned to support a

minor’s “‘cultural’ needs” and to maintain a connection to the

mother’s religion, which is Islam, and to “cultural food, events,

and hairstyles.” (Id. ¶ 21.) At the hearing, the attorney for

Minors 2 and 3 — who is neither a party to this case nor employed

by any Defendant — “interrogated” Mrs. Ethridge about “racial

issues.” (Id.) The Ethridges alleged that Defendants “aided,

abetted, and acquiesced in the Court’s removal of [Minors 2 and 3]

from the Ethridges on racial grounds.” (Id. ¶ 22.)

Plaintiffs plead three substantive counts on behalf of

themselves and others similarly situated: (1) violations of 42

U.S.C. § 1983 and the Multi-Ethnic Placement Act of 1994 (“MEPA”),

codified at 42 U.S.C. §§ 671(a)(18), 1996b; (2) violations of 42

U.S.C. § 1983, as interpreted by Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 (1978); and (3) a

conspiracy to violate civil rights in violation of 42 U.S.C.

§§ 1985 and 1986. (Doc. 24 ¶¶ 32-39.) Plaintiffs also plead

“counts” for injunctive relief, monetary damages, and attorneys’

fees predicated on the merits of their three substantive counts.

(Id. ¶¶ 40-42.) As to injunctive relief, Plaintiffs seek an order

(1) returning Minor 1 to the Rhoadses and Minors 2 and 3 to the

Ethridges and to “allow[] them to become potential adoptive

parents . . . without fear of retaliation”; (2) appointing an

independent, court-selected monitor to review the current

practices of Guilford County DSS with regard to MEPA compliance;

and (3) requiring that Guilford County take steps to change its

policies and practices to ensure MEPA compliance. (Id. ¶ 40.)

Defendants move to dismiss the complaint pursuant to Federal Rules

of Civil Procedure 12(b)(1) and (6), arguing multiple grounds.

(Doc. 26.) The motion is fully briefed and ready for resolution.

II. ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) provides that a

pleading must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P.

(8)(a)(2). A Rule 12(b)(6) motion to dismiss is meant to “test[]

the sufficiency of a complaint” and not to “resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943,

952 (4th Cir. 1992). To survive such a motion, “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) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

In considering a Rule 12(b)(6) motion, a court “must accept

as true all of the factual allegations contained in the complaint,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all

reasonable inferences must be drawn in the non-moving party’s

favor, Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).

However, the court “need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments.” Giarratano v. Johnson,

521 F.3d 298, 302 (4th Cir. 2008) (quotation marks and citation

omitted). Rule 12(b)(6) protects against meritless litigation by

requiring sufficient factual allegations “to raise a right to

relief above the speculative level” so as to “nudge[] the[] claims

across the line from conceivable to plausible.” Twombly, 550 U.S.

at 555, 570; see Iqbal, 556 U.S. at 678. Thus, mere legal

conclusions should not be accepted as true, and “[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

As to a Rule 12(b)(1) motion, a court must consider its

subject matter jurisdiction as a “threshold matter” prior to

addressing the merits of the case. Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94–95 (1998); Constantine v. Rectors &

Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005).

“The plaintiff has the burden of proving that subject matter

jurisdiction exists.” Evans v. B.F. Perkins Co., a Div. of Standex

Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999) (citing Richmond,

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,

768 (4th Cir. 1991)). “When a defendant challenges subject matter

jurisdiction pursuant to Rule 12(b)(1), ‘the district court is to

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.’” Id. (quoting Richmond,

Fredericksburg & Potomac R.R. Co., 945 F.2d at 768). “The district

court should grant the Rule 12(b)(1) motion to dismiss ‘only if

the material jurisdictional facts are not in dispute and the moving

party is entitled to prevail as a matter of law.’” Id. (quoting

Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768).

B. Motions to Dismiss

1. MEPA and Private Right of Action

MEPA is codified in two places in the United States Code.

First, under 42 U.S.C. § 1996b,

(1) A person or government that is involved in adoption

or foster care placements may not—

(A) deny to any individual the opportunity to

become an adoptive or a foster parent, on the basis of

the race, color, or national origin of the individual,

or of the child, involved; or

(B) delay or deny the placement of a child for

adoption or into foster care, on the basis of the race,

color, or national origin of the adoptive or foster

parent, or the child, involved.

“Noncompliance with paragraph (1) is deemed a violation of title

VI of the Civil Rights Act of 1964.” Id. § 1996b(2). Title VI,

in turn, provides that “[n]o person in the United States shall, on

the ground of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 42 U.S.C. § 2000d.

Second, under 42 U.S.C. § 671(a)(18), MEPA sets out

nearly identical standards as under section 1996b:

In order for a State to be eligible for payments under

this part, it shall have a plan approved by the [Health

and Human Services] Secretary which

. . .

(18) . . . provides that neither the State nor any other

entity in the State that receives funds from the Federal

Government and is involved in adoption or foster care

placements may—

(A) deny to any person the opportunity to become an

adoptive or a foster parent, on the basis of the race,

color, or national origin of the person, or of the child,

involved; or

(B) delay or deny the placement of a child for adoption

or into foster care, on the basis of the race, color, or

national origin of the adoptive or foster parent, or the

child, involved[.]

In the complaint, Plaintiffs allege violations of both

sections 1996b and 271(a)(18) in some paragraphs but, under Count

I, only cite section 1996b. (Doc. 24 ¶¶ 1, 17, 32.) In any event,

Defendants have not argued that either codification of MEPA is

unenforceable via an express or implied private right of action

and/or via a section 1983 claim. (See generally Doc. 27;) see 42

U.S.C. § 674(d)(3)(A) (providing for cause of action for

individual aggrieved by violation of 42 U.S.C. § 671(a)(18)).

Because, as explained below, the court dismisses the complaint on

alternative grounds, it assumes without deciding that a private

right of action is available both directly through MEPA and through

a parallel action pursuant to a 42 U.S.C. § 1983 claim. See Health

& Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 183-84

(2023) (citing Gonzaga Univ. v. Doe, 536 U.S. 273 (2002))

(discussing circumstances in which a federal statute confers a

cause of action under section 1983). Nevertheless, the assumed

existence of a private cause of action under MEPA does not obviate

any separate substantive requirements under a parallel section

1983 claim predicated on a MEPA violation, and the court will

consequently consider the parallel claims separately. See

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257-58 (2009)

(stating that the “standards for establishing liability may not be

wholly congruent” where a plaintiff alleges a parallel section

1983 claim).

2. Rule 12(b)(1) Motion and Rooker-Feldman Doctrine

Defendants first argue that the complaint should be dismissed

pursuant to Rule 12(b)(1) because Plaintiffs seek federal court

review of a final state court judgment, in violation of the Rooker-

Feldman doctrine.3 (Doc. 27 at 9-10.) The doctrine “prohibits

federal courts from adjudicating cases brought by state-court

losing parties challenging state-court judgments.” Reed v.

Goertz, 598 U.S. 230, 235 (2023). However, “where the federal

complaint presents an ‘independent claim,’ even ‘one that denies

a legal conclusion that a state court has reached in a case to

which he was a party, then there is jurisdiction and state law

determines whether the defendant prevails under principles of

preclusion.’” Jonathan R. by Dixon v. Justice, 41 F.4th 316, 340

(4th Cir. 2022) (quoting Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 293 (2005)). Moreover, “state administrative

and executive actions are not covered by the doctrine — even where

ratified, acquiesced in, or left unpunished by a state-court

decision.” Id. (internal quotation marks and citations omitted).

Here, while Plaintiffs’ claims arise out of state court

proceedings, the lion’s share of the allegations and requested

relief is directed at conduct beyond the state court judgments

themselves. Plaintiffs do seek one specific form of injunctive

relief among several — namely, reversal of the state court decision

awarding custody to persons other than themselves — that would

challenge a final state court judgment. (Doc. 24 ¶ 40 (seeking an

3 Named after Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983),

the doctrine is appropriately raised on a Rule 12(b)(1) motion because

it relates to the court’s subject matter jurisdiction.

“order returning the children to Plaintiffs’ foster homes”).)

While issuing that specific remedy would be barred under Rooker-

Feldman, the court does not otherwise lack subject matter

jurisdiction over Plaintiffs’ claims. Defendants’ motion to

dismiss on this ground will therefore be granted in part and denied

in part.

3. Rule 12(b)(6) Motion

a. Claims Against Guilford DSS

Defendants contend that any claims against Guilford DSS must

be dismissed because it is not capable of being sued under North

Carolina law. (Doc. 27 at 10.) Plaintiffs concede this point in

their complaint and response in opposition to Defendants’ motion.

(Doc. 24 ¶ 7; Doc. 31 at 7-8.) The claims against Guilford DSS

will therefore be dismissed.

b. Monell Claim

The court turns next to Plaintiffs’ section 1983 claim against

Guilford County under Monell, 436 U.S. 658. Defendants argue that

the Monell claim against Guilford County should be dismissed

because Plaintiffs do not plausibly allege a “policy, custom, or

practice of the County that caused the alleged MEPA violation.”

(Doc. 27 at 26.) In response, Plaintiffs argue that Guilford

County’s MEPA violations “resulted from a wider policy” but do not

cite to any allegations in the complaint in support. (Doc. 31 at

21-22.)

In Monell, the Supreme Court held that a plaintiff may sue a

municipality under section 1983 for a “federal constitutional

deprivation only when the municipality undertook the allegedly

unconstitutional action pursuant to an ‘official policy’ or

‘custom.’” Starbuck v. Williamsburg James City Cnty. Sch. Bd., 28

F.4th 529, 533 (4th Cir. 2022) (quoting Monell, 436 U.S. at 690-

91). The Fourth Circuit has enumerated four ways in which Monell

liability may arise:

(1) through an express policy, such as a written

ordinance or regulation; (2) through the decisions of a

person with final policymaking authority; (3) through an

omission, such as a failure to properly train officers,

that “manifest[s] deliberate indifference to the rights

of citizens”; or (4) through a practice that is so

“persistent and widespread” as to constitute a “custom

or usage with the force of law.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (alteration in

original) (internal quotation marks and citation omitted). In

their briefing, Plaintiffs rely only on the last ground – a

persistent and widespread practice that constitutes a custom or

usage. (Doc 31 at 21-22.)4

4 The complaint alleges that Defendant Barlow is the “final social

services policymaker for Guilford County” and that “to the exten[t] any

Defendant [] claims ignorance of the requirements of MEPA-IEP,” Guilford

County failed to “properly train employees of Guilford DSS” in

“deliberate indifference to the rights of citizens.” (Doc. 24 ¶¶ 24,

34.) While Plaintiffs fail to identify any policy allegedly adopted by

Barlow and Defendants do not claim ignorance of the requirements of MEPA,

Plaintiffs raise neither of these grounds in their response, and thus

these grounds are deemed abandoned. See Mentch v. E. Savings Bank, FSB,

949 F. Supp. 1236, 1247 (D. Md. 1997) (deeming a claim abandoned where

plaintiff failed to address it in her opposition to defendant’s motion

for summary judgment).

Establishing liability under the “custom or usage” method is

“no easy task” because “[s]poradic or isolated violations of rights

will not give rise to Monell liability.” Owens v. Balt. City

State’s Att’ys Off., 767 F.3d 379, 402-03 (4th Cir. 2014). To

establish custom or usage liability, a plaintiff must show that a

“pattern of comparable practices has become actually or

constructively known to responsible policymakers.” Howard v. City

of Durham, 68 F.4th 934, 952 (4th Cir. 2023) (quoting Spell v.

McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987)). “In other words,

a custom or usage can support Monell liability only if its

continued existence can be laid to the fault of municipal policy-

makers, and a sufficient causal connection between the municipal

custom and usage and the specific violation can then be

established.” Id. at 952-53 (internal quotation marks and citation

omitted). More specifically, a municipality is liable where “(1)

the municipality [has] actual or constructive knowledge of the

custom and usage by its responsible policymakers, and (2) there

[is] a failure by those policymakers, as a matter of specific

intent or deliberate indifference, to correct or terminate the

improper custom and usage.” Id. at 953 (quoting Randall v. Prince

George’s Cnty., 302 F.3d 188, 210 (4th Cir. 2002)) (internal

quotation marks and citation omitted).

Here, Plaintiffs allege that the “repeated” MEPA violations

“were part of a pattern and practice that was widespread and

persistent within the child welfare, foster care, and adoption

work carried out by Defendants to the extent that it constituted

a custom or usage with the force of law.” (Doc. 24 ¶ 33.) Aside

from the allegations related to the Rhoadses and Ethridges,

however, Plaintiffs allege no facts to support the conclusion that

the conduct is “widespread” or part of a “pattern.” See Howard,

68 F.4th at 954 (describing as fatal to the Monell claim that the

plaintiff offered evidence of “only a single incident of

unconstitutional activity: the incident in this very case”). The

conclusory allegation that the conduct is widespread does not lead

to a reasonable inference that Guilford County had actual or

constructive knowledge. Iqbal, 556 U.S. at 678 (“Threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). Accordingly,

Plaintiffs’ Monell claim under Count Two will be dismissed for

failure to plausibly allege a policy or custom of Guilford County.5

c. Section 1983, 1985, and 1986 Claims

The court turns next to Plaintiffs’ claims under 42 U.S.C.

§§ 1983, 1985, and 1986. Section 1983 prohibits the deprivation

of federal rights by any person acting under color of state law.

5 Even if Plaintiffs alleged a custom or usage under Monell, they failed

to state a Monell claim predicated on a MEPA violation for the reasons

set forth relating to the MEPA claim, infra. Thus, the dismissal will

be with prejudice. See Cozzarelli v. Inspire Pharmaceuticals, Inc., 549

F.3d 618, 630-31 (4th Cir. 2008) (affirming dismissal with prejudice

where “amendment would be futile in light of the fundamental deficiencies

in plaintiffs’ theory of liability”).

42 U.S.C. § 1983. Section 1985 prohibits a conspiracy to deprive

individuals of their civil rights. 42 U.S.C. § 1985. Under

section 1985(3), a plaintiff must plausibly allege:

(1) a conspiracy of two or more persons, (2) who are

motivated by a specific class-based, invidiously

discriminatory animus to (3) deprive the plaintiff of

the equal enjoyment of rights secured by the law to all,

(4) and which results in injury to the plaintiff as (5)

a consequence of an overt act committed by the defendants

in connection with the conspiracy.

Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995). Section 1986

is “derivative of § 1985.” Strickland v. United States, 32 F.4th

311, 360 (4th Cir. 2022) (quoting Park v. City of Atlanta, 120

F.3d 1157, 1160 (11th Cir. 1997)). Section 1986 “provides a cause

of action against anyone who has knowledge of a § 1985 conspiracy

and who, ‘having the power to prevent or aid in preventing the

commission of’ acts pursuant to that conspiracy, ‘neglects or

refuses so to do.’” Id. (quoting 42 U.S.C. § 1986).

It is unclear whether Plaintiffs raise section 1983 claims

against each individual Defendant, in addition to the section 1985

and 1986 claims. (Doc. 24 ¶ 32 (citing 42 U.S.C. § 1983 but not

specifically alleging which Defendants the claim is raised

against).) The court nevertheless broadly construes the complaint

to allege section 1983, 1985, and 1986 claims against each

individual Defendant predicated on alleged violations of MEPA.

(Doc. 24 ¶¶ 32, 35.)

Defendants contend that Plaintiffs’ section 1983, 1985, and

1986 claims must be dismissed because the individual Defendants

are entitled to absolute immunity for these claims. (Doc. 27 at

12-13.) Plaintiffs respond that Defendants have not exercised

prosecutorial functions such that absolute immunity applies.

(Doc. 31 at 15-16.)

In determining state official immunity, courts employ a

“functional approach” — i.e., the court must assess the nature of

each alleged wrong, rather than the identity of the actor, to

determine whether and what type of immunity attaches. Buckley v.

Fitzsimmons, 509 U.S. 259, 269 (1993). The Fourth Circuit has

held that state social services workers are entitled to absolute

immunity for “activities . . . that could be deemed prosecutorial”

in nature. Vosburg v. Dep’t of Soc. Servs., 884 F.2d 133, 138

(4th Cir. 1989). In the criminal context, prosecutorial activities

are those that are “intimately associated with the judicial phase

of the criminal process.” Van de Kamp v. Goldstein, 555 U.S. 335,

342-43 (2009) (quoting Imbler v. Pachtman, 424 U.S. 409, 430

(1976)). In Vosburg, the Fourth Circuit applied Imbler’s absolute

prosecutorial immunity to social workers who decided to file a

child removal petition with the court. 884 F.2d at 134, 138.

There, the court reasoned that the public policy considerations

present in Imbler applied with equal force for social workers

engaged in prosecutorial functions:

Like a prosecutor, a social worker must exercise her

best judgment and discretion in deciding when to file a

Removal Petition. The welfare of the state’s children

would be jeopardized if social workers had to weigh their

decision in terms of their potential personal liability.

In short, the denial of absolute immunity here has the

potential to adversely affect the efficient functioning

of the state’s child welfare system. Additionally, the

chances are high that suits against the social workers

would occur with some degree of regularity. Parents,

resentful of and humiliated by an attempt to usurp their

rights, would likely channel their frustration “into the

ascription of improper and malicious actions to the

State’s advocate.”

Id. at 137 (quoting Imbler, 424 U.S. at 425); see also Meyers v.

Contra Costa Cnty. Dept. of Soc. Servs., 812 F.2d 1154, 1157 (9th

Cir. 1987) (“The social worker’s independence, like that of a

prosecutor, would be compromised were the social worker constantly

in fear that a mistake could result in a time-consuming and

financially devastating civil suit.”).

State social services officers do not have absolute immunity

for all acts, however. Where the conduct is administrative or

investigative, rather than prosecutorial, such officers may be

entitled to qualified immunity. See Vosburg, 884 F.2d at 138.

For example, in Chambliss, the Fourth Circuit held that social

services officials were entitled to qualified immunity where they

involuntarily removed a minor from her natural mother’s home and

placed her in a foster home where she died from trauma to the head.

White by White v. Chambliss, 112 F.3d 731, 733-34, 736-37 (4th

Cir. 1997). “Qualified immunity shields government officials from

civil damages liability unless the official violated a statutory

or constitutional right that was clearly established at the time

of the challenged conduct.” Atkinson v. Godfrey, 100 F.4th 498,

504 (4th Cir. 2024) (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)).

Here, the Rhoadses allege that Defendants failed to “make any

objection to . . . racially-biased testimony; aided, abetted, and

acquiesced in its presentation; acquiesced in the Court’s ruling

based on that testimony; and made no effort to appeal the Court’s

erroneous ruling.” (Doc. 24 ¶ 17.) They also allege that

Defendants have not “convene[d] a review or permanency hearing

before the Court.” (Id. ¶ 18.) The Ethridges similarly allege

that Defendants “aided, abetted, and acquiesced in the Court’s

removal of both children from the Ethridges on racial grounds” and

have “failed and refused to take action within their power to

remedy the intentional racial discrimination.” (Id. ¶ 22.) They

also allege that, prior to the removal hearing, Defendants

“inquir[ed] of the Ethridges” how they would support the child’s

“cultural” needs. (Id. ¶ 21.)

Plaintiffs have cited no authority to support a finding that

these activities are anything but prosecutorial in nature.

Plaintiffs contend that Vosburg cabins absolute immunity to

situations where “safety concerns” are present for removal

proceedings (Doc. 31 at 15), but nowhere in Vosburg did the Fourth

Circuit limit absolute prosecutorial immunity to public safety

cases or removal proceedings. Indeed, the Vosburg court’s

discussion of Imbler belies Plaintiffs’ position, as the relevant

policy considerations do not make public safety or removal at all

necessary factors. Vosburg, 884 F.2d at 137. Moreover, Plaintiffs

allege that these are removal proceedings. (Doc. 24 ¶¶ 3-4.)6

Plaintiffs’ allegations (1) that Defendants did not object to

and aided and abetted the presentation of allegedly discriminatory

testimony, (2) that Defendants “acquiesced” in and did not appeal

the court’s ruling, and (3) that Defendants did not “convene a

review or permanency hearing before the Court” are plainly

prosecutorial in nature because they are “intimately associated

with the judicial phase of the [removal] process.” Van de Kamp,

555 U.S. at 342-43 (citation omitted). As to the presentation of

testimony, the Supreme Court has made clear that absolute immunity

applies to the elicitation of testimony, even where the testimony

is false. Imbler 424 U.S. at 416, 430-31; Carter v. Burch, 34

F.3d 257, 263 (4th Cir. 1994) (applying absolute immunity to

allegation that prosecutor was “involved in a conspiracy to present

false testimony”). As to the allegations involving the decision

to appeal, such decisions are “at the core of the prosecutorial

6 While Plaintiffs observe that investigative activities only give rise

to qualified immunity, they do not argue that there is any specific

allegation in the complaint that would fall into the investigative

category. (Doc. 31 at 15-16.)

function.” Whitfield v. City of Philadelphia, 587 F. Supp. 2d

657, 666 (E.D. Pa. 2008). Accordingly, Defendants are entitled to

absolute immunity for this alleged conduct.

The parties do not address the appropriate immunity framework

to apply to the allegation that, prior to a removal hearing,

Defendants “inquir[ed]” of the Ethridges’ plans to provide for the

“cultural” needs of a minor. (Doc. 24 ¶ 21.) Even assuming that

only qualified immunity applies because this conduct is arguably

investigative, see Vosburg, 884 F.2d at 138, Plaintiffs have not

alleged that this inquiry alone amounts to illegal conduct, let

alone a violation of “clearly established statutory or

constitutional rights.” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

While Plaintiffs appear to imply that qualified immunity should

not generally apply in this case because MEPA expressly prohibits

some conduct (Doc. 31 at 16), they neither argue nor cite any

authority to support the proposition that Defendants’ mere inquiry

of the Ethridges is proscribed by MEPA, clearly or otherwise.

Section 1996b prohibits the denial or delay of a placement based

on the Constitution-protected factors noted, but an inquiry into

“cultural needs” in a removal investigation is not expressly

prohibited. Accordingly, even if qualified immunity, rather than

absolute immunity, applied to the inquiry of the Ethridges,

Plaintiffs’ section 1983, 1985, and 1986 claims are barred.

Finally, while the complaint makes only conclusory and/or

speculative allegations regarding inadequate training and

omissions by senior Guilford DSS officials (Doc. 24 ¶¶ 34-39),

Supreme Court precedent squarely forecloses an individual

liability claim on this basis. In Van de Kamp, the Court stated

that “a suit charging that a supervisor made a mistake directly

related to a particular trial [by a prosecutor], on the one hand,

and a suit charging that a supervisor trained and supervised

inadequately, on the other, would seem very much alike.” Van de

Kamp, 555 U.S. at 346. This followed, in the Court’s view because

a “‘faulty training’ claim . . . rests in necessary part upon a

consequent error by an individual prosecutor.” Id. Accordingly,

while Plaintiffs do not allege any facts regarding Guilford DSS’s

training, even if they had, the claim could not survive because it

rests entirely upon specific alleged errors by subordinates.

Plaintiffs’ claims against the individual Defendants in their

individual capacity under Counts One and Three will therefore be

dismissed.

In addition, the complaint does not plausibly allege a section

1985 conspiracy against any Defendant. “[T]he law is well settled

that to prove a section 1985 ‘conspiracy,’ a claimant must show an

agreement or a ‘meeting of the minds’ by defendants to violate the

claimant’s constitutional rights.” Strickland, 32 F.4th at 360-

61 (alteration in original) (citation omitted). The plaintiff

must allege a “single plan, the essential nature and general scope

of which was known to each person who is to be held responsible

for its consequences.” Id. at 361 (citation omitted). The Fourth

Circuit has rejected purported conspiracies that are alleged “in

a merely conclusory manner, in the absence of concrete supporting

facts.” Id. (citation omitted). Here, the complaint’s conspiracy

allegations are entirely conclusory and devoid of any factual

support. (Doc. 24 ¶ 36 (merely enumerating elements of conspiracy

under Strickland)); Iqbal, 556 U.S. at 678.7 Accordingly, the

section 1985 conspiracy, Count III will be dismissed against all

Defendants, including to the extent Plaintiffs intend to allege

Guilford County was a member of, or had knowledge of, the

conspiracy.8

d. MEPA Claim

Lastly, the court addresses Plaintiffs’ MEPA claim against

7 Moreover, Defendants rightfully challenge Plaintiffs’ group-pleading

practice. (Doc. 27 at 16.) “Courts in this circuit have said that the

group-pleading approach . . . may run afoul of federal pleading

requirements.” Bryant v. Core Contents Restoration, LLC, No. 7:20-CV-

40, 2021 WL 1207719, at *11 (E.D.N.C. Mar. 30, 2021). Indeed, “the

repeated refrain that all [defendants] committed each and every act must

be read as an allegation that one of the[m] did each act, an assertion

that amounts to speculation and which is deficient under Twombly.”

Proctor v. Metro. Money Store Corp., 579 F. Supp. 2d 724, 744 (D. Md.

2008).

8 Similarly, for the reasons set forth for the MEPA claim, infra,

Plaintiffs fail to state section 1983, 1985, and 1986 claims against any

Defendant because these claims are predicated entirely on violations of

MEPA for which Plaintiffs have failed to state a claim.

Guilford County.9 As noted above, Plaintiffs at times allege

violations of both 42 U.S.C. § 271(a)(18) and 42 U.S.C. § 1996b.

The two statutes contain the same material language. In Count I,

Plaintiffs cite to section 1996b, which provides:

(1) A person or government that is involved in adoption

or foster care placements may not—

(A) deny to any individual the opportunity to

become an adoptive or a foster parent, on the basis of

the race, color, or national origin of the individual,

or of the child, involved; or

(B) delay or deny the placement of a child for

adoption or into foster care, on the basis of the race,

color, or national origin of the adoptive or foster

parent, or the child, involved.

42 U.S.C. § 1996b(1).10

Guilford County contends that none of its officers took any

action based on Plaintiffs’ race. (Doc. 27 at 21.) In addition,

it claims that the state court’s decision to remove the children

supersedes any causation that might theoretically be attributable

to Guilford County. (Id. at 20-24.)11 Plaintiffs respond that,

9 The claims against the individual Defendants in their respective

official capacities are effectively claims against Guilford County.

Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that official capacity

suits “generally represent only another way of pleading an action against

an entity of which an officer is an agent” (internal quotation marks and

citation omitted)).

10 The court assumes without deciding that this statute covers removals

from existing foster parents, as Defendants do not argue that it does

not.

11 Guilford County also maintains, in reliance on the full transcripts

from which Plaintiffs selectively quoted in the complaint, that the

as to the Ethridges, Guilford DSS personnel asked questions that

“were of a racial nature and implied that the Ethridges, as a white

family, could not properly provide a permanent home for a black

child.” (Doc. 31 at 18 (citing Doc. 24 ¶ 21).) As to the Rhoadses,

Plaintiffs argue that Guilford DSS “made no objection to highly

racially-charged statements” during a removal hearing. (Doc. 31

at 18 (citing Doc. 24 ¶¶ 14-17).) They contend that Guilford DSS’s

“silen[ce]” shows “agreement with the racial animus of the other

participants in the foster care process.” (Doc. 31 at 19.)

By Plaintiffs’ own admission, “there is a dearth of decisions

specifically applying the prohibitions on racial discrimination in

foster and adoptive placements.” (Doc. 31 at 7.) Despite the

novelty of their claim, Plaintiffs do not advocate for the court

to proceed under any existing legal framework applicable to related

anti-discrimination schema. Rather, Plaintiffs rely on alleged

direct evidence of discriminatory intent. Cf. Foster v. Univ. of

Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015) (“It is left

to the plaintiff’s discretion whether to proceed by direct and

indirect evidence or by means of the McDonnell Douglas burden-

shifting framework.”); see also Students for Fair Admissions, Inc.

v. President & Fellows of Harvard Coll., 600 U.S. 181, 198 n.2

allegations ignore that factors other than race drove the removal

decision. (Id. at 21-22.) As noted above, the court resolves the motion

to dismiss without reference to these transcripts.

(2023) (citing Gratz v. Bollinger, 539 U.S. 244, 276 n. 23 (2003))

(discussing congruence between Title VI claims and Equal

Protection claims); 42 U.S.C. § 1996b(2) (tying MEPA to Title VI).

Accepting Plaintiffs’ factual allegations as true, they do

not amount to a plausible MEPA violation by Guilford County.

Importantly, MEPA’s proscription is directed to “delay[ing] or

deny[ing] the placement of a child for adoption or into foster

care” on the basis of race. 42 U.S.C. § 1996b(1)(B);12 cf. Muldrow

v. City of St. Louis, 601 U.S. 346, 354-55 (2024) (noting, in Title

VII context, that a statute’s description of the necessary injury

“circumscribes the injuries that can give rise to a suit”). Rather

than attribute to Defendants any harm against which MEPA protects,

Plaintiffs’ own complaint alleges that the state court ordered the

removal of the children — i.e., the putative MEPA “denial.” (Doc.

24 ¶¶ 17, 22.) But Plaintiffs never allege the state courts’ bases

for their removal orders beyond a bare assertion that the judge’s

decision in Minor 1’s case was “based on [racially biased]

testimony,” and in Minors 2 and 3’s case was “on racial grounds.”

(Id. ¶¶ 17, 22.)13 While the court must draw all reasonable

12 Section 1996b(1)(A), the statutory counterpart, prohibits

“deny[ing] . . . the opportunity to become an adoptive or a foster

parent” on the basis of race. 42 U.S.C. § 1996b(1)(A). Plaintiffs do

not explain what it means to deny an opportunity to become an adoptive

or foster parent, or how this provision might operate differently than

section 1996b(1)(B). (See generally Doc. 31.)

13 This is despite the fact that Plaintiffs apparently have access to the

inferences in Plaintiffs’ favor at this stage, it is a “leap of

faith simply too great” to infer that a state court judge would

base his or her decision on illegal, racially-motivated grounds,

especially when Plaintiffs do not allege any facts to support the

bases for the judges’ respective decisions. Wray v. City of

Greensboro, No. 1:09-CV-00095, 2013 WL 4494460, at *11 (M.D.N.C.

Aug. 19, 2013). Even if the court assumed that Guilford DSS

conspired with witnesses to present racially discriminatory

testimony, which would be merely speculative, the complaint still

does not allege any facts to plausibly support the notion that the

court removed the children from Plaintiffs’ home “on the basis” of

race. Accordingly, Plaintiffs do not plausibly attribute any

alleged harm to the conduct of Defendants.

The complaint also contains only one allegation that

Defendants took any affirmative act that might demonstrate they

were considering the race of the minors: namely that, prior to a

court hearing, “DSS personnel began inquiring of the Ethridges how

they planned to support the child’s ‘cultural’ needs and

specifically requested to know how the Ethridges were going to

maintain the child’s connection with his mother’s religion

[(Islam)], and cultural food, events, and hairstyles.” (Doc. 24

¶ 21.) Notably, MEPA does not consider religion. 42 U.S.C.

transcript of the hearing in Minor 1’s case. (Doc. 24 ¶ 16 (excerpting

from transcript).)

§ 1996b. But more importantly, Plaintiffs do not allege what these

questions were or that these questions were even pretextual. (Doc.

24 ¶ 21.) Plaintiffs do contend in their response brief that they

“believe” these questions were “to create a pretext for removing

the children” (Doc. 31 at 18),14 but the complaint does not allege

that Guilford DSS’s out-of-court inquiries played any role

whatsoever in the court’s decision to remove the children. (Doc.

24 ¶ 22 (alleging, without any discussion of what occurred at the

hearing, that the children were removed “on racial grounds”).)

Moreover, Plaintiffs rely on certain omissions of Guilford

DSS lawyers — e.g., not objecting to “racially-charged” testimony

of the guardian ad litem at a removal hearing, not appealing the

court’s removal orders, etc. — to allege discriminatory intent by

Guilford County. But Plaintiffs have cited no case, even from

other statutory contexts, to support the position that these kinds

of omissions are indicative of discriminatory intent. (See Doc.

31 at 16-20.) And considering the allegations cumulatively, the

complaint fails to plausibly link these omissions to racial animus

of Guilford County with factual allegations. Rather, Plaintiffs

repeatedly rely on legal conclusions and/or bare assertions that

the court must not accept as true. Giarratano, 521 F.3d at 302.

14 It is “axiomatic . . . that a plaintiff may not amend his complaint

in his response brief.” Pirelli Armstrong Tire Corp. Retiree Med.

Benefits Tr. v. Walgreen Co., 631 F.3d 436, 448 (7th Cir. 2011).

For instance, they allege that Defendants “participated in and

actively advanced” removal efforts for Minor 1, but they do not at

all allege what Defendants actually did or whether they were

motivated by race in doing so. (Doc. 24 ¶ 14.) They also allege

that Defendants “aided and abetted” the “racially-biased”

testimony of Minor 1’s guardian ad litem, but they do not allege

that any Defendant played any role in eliciting or preparing the

testimony. (Id. ¶¶ 15-17; see also id. ¶ 22 (same).) As noted

above, Plaintiffs allege that Defendants “acquiesced in the

Court’s ruling based on that testimony,” but they do not allege

any facts to support their allegation that the state court

impermissibly considered race. (Id. ¶ 17.) Absent any factual

allegations to allow a reasonable inference that any Guilford

County employee acted with discriminatory intent, Plaintiffs have

failed to state a MEPA claim. Accordingly, the MEPA claim will be

dismissed.15

e. Counts Four, Five, and Six

Counts Four, Five, and Six of the complaint seek injunctive

relief, monetary relief, and attorneys’ fees. (Doc. 24 ¶¶ 40-42.)

These counts do not plead any independent legal claims; rather,

they are predicated on the merits of the first three counts.

15 The parties contest the appropriate statute of limitations for the

MEPA claim. (Doc. 27 at 11; Doc. 31 at 8.) Because the complaint is

dismissed on other grounds, the court need not reach this issue.

Because the first three counts will be dismissed, counts Four,

Five, and Six will likewise be dismissed.

III. CONCLUSION

For the reasons stated, therefore, as to Defendants’ motion

to dismiss (Doc. 26),

IT IS ORDERED that to the extent the complaint seeks reversal

of the state court’s judgments as to custody of the minors, the

claim is DISMISSED WITHOUT PREJUDICE for lack of subject matter

jurisdiction.

IT IS FURTHER ORDERED that as to all remaining claims, the

motion is GRANTED and the complaint is DISMISSED.

___/s/ Thomas D. Schroeder

United States District Judge

September 27, 2024