R.S. v. Lucas County Children Services

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

R.S., et al., CASE NO. 3:20 CV 2791

Plaintiffs,

v. JUDGE JAMES R. KNEPP II

CHARMAINE WEST, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

Currently pending before the Court in this 42 U.S.C. § 1983 action is Defendants

Charmaine West, Susan Hickey, Rebecca Von Sacken, and Courtney Mowery’s Motion for

Summary Judgment. (Doc. 109). Plaintiffs oppose the Motion (Doc. 113), and Defendants reply

(Doc. 121). Also pending are Plaintiffs’ Motions to Strike (Doc. 114) and Conduct Additional

Discovery (Doc. 115). Defendants oppose these Motions (Doc. 119) and Plaintiffs reply (Doc.

120). Jurisdiction is proper under 28 U.S.C. § 1331. For the reasons set forth below, the Court

DENIES Plaintiffs’ Motions to Strike and to Conduct Additional Discovery, and GRANTS

Defendants’ Motion for Summary Judgment.

BACKGROUND

This case arises out of horrific and life-altering abuse that Plaintiffs suffered while in the

care of Anthony and Alisa (sometimes “Lisa”) Haynes following placement by the Lucas County

Children Services (“LCCS”) and the Lucas County Juvenile Court. The Court summarizes only

the information necessary and relevant to the pending motions below.

Factual Background

Plaintiffs lived with their mother Victoria Hubbard (also “Victoria Bailey”) and her

husband in 2014. In early July 2014, Lucas County Children’s Services received a referral that

an infant sibling of Plaintiffs had been abused or neglected. (Ryan Parker Aff., Doc. 109-2, at ¶¶

2-3). Parker, a LCCS Night Intake Case Worker, investigated and met with Victoria Hubbard,

Plaintiffs’ and the infant’s mother, at the hospital. Id. at ¶¶ 4-5. Hubbard identified her pastor and

his wife (Anthony and Alisa Haynes) as individuals the children could stay with temporarily. Id.

at ¶ 7. Parker discussed with his supervisor that the Haynes family “already had a case worker in

the home and had recently been fingerprinted”. Id. at ¶ 9.1 Parker consulted with his supervisor,

Ms. Hoffman:

Ms. Hoffman instructed me to ensure criminal records checks were completed and

to check the Statewide Automated Child Welfare Information System (SACWIS)

to see if the family had any LCCS involvement. I was also to check and ensure a

case worker had been in the home within the last month. I followed up on Ms.

Hoffman’s direction and found the records checks with no disqualifying history. I

also ran a records check on the Haynes’[s] 19 year old son and found no results. I

checked SACWIS records for the Haynes[’s] and found no involvement for Mr.

Haynes or Mrs. Haynes as a substantiated perpetrator of abuse or neglect. I saw

the case note that a case worker had been in the home within the past month.

Id. at ¶ 9; see also Doc. 109-10, at 9 (Parker Activity Log). After doing so, Parker entered his

case notes into SACWIS2 and then transferred the case “to the assessment’s department.” Id. at ¶

10.

1. According to Parker, “Ms. Haynes indicated that she had been working with LCCS on another

case and that a worker had been out to their home recently. Ms. Haynes indicated they had

already been fingerprinted and cleared by LCCS staff to care for another child in their home.”

(Parker Aff., Doc. 109-2, at ¶ 8). This child was not related to Plaintiffs. (Temple Aff., Doc. 109-

3, at ¶ 2).

2. SACWIS is a “statewide information system to keep and maintain case information on child

welfare cases.” (Cully Aff., Doc. 109-4, at ¶ 4).

Defendant Rebecca Von Sacken was the LCCS Assessment Case Worker assigned to

Plaintiffs’ case. (Doc. 106-1, at 52). Von Sacken was involved with Plaintiffs’ case for

approximately three weeks in July 2014, starting with an emergency placement custody meeting

on July 3 and ending the week of July 21. Id. at 55-65. She completed the “preliminary home

study” and then transferred the case to another LCCS employee, Susan Hickey. Id. at 69-70.

Von Sacken started the preliminary home study with the “Home Study for Placement of

Children” document, and her name appears on it as “Caseworker.” (Doc. 109-9, at 30-38). To

complete this portion of the study, Von Sacken testified, “you are supposed to see the home,

gather information about the people who live in the home[,] . . . do police checks, sex offender

registry checks, [and] SACWIS history check[s].” (Doc. 106-1, at 70). Von Sacken testified she

did these checks. Id. at 71-73. She also testified that the SACWIS history for an individual “pre-

populates” into the home study form. Id. at 74-75. “If there was something that was populated

and we had questions about it, we would definitely talk to [our] managers[.]” Id. at 75. Certain

convictions and SACWIS-documented information could exclude someone from being a

placement. Id. at 75-76. As to information from SACWIS, Von Sacken testified:

A: And then as far as SACWIS, we would look at what the allegations were

and what the disposition of those allegations were and what your role was

in that investigation.

Q: Okay. And then, was there any type of policy on that? Like there were

certain things that were excluded if they popped up on SACWIS?

A: I believe they just looked at each one case-by-case and what the

all[e]gations were, what their role was. Like, you can’t just broadband

exclude everybody. So I think you have to look at what the allegations

were, what their role was, and what the disposition of that was.

Q: Okay. And then was that the policy? The policy was we would look at

them and then make a decision on it?

A: I can’t say it as a policy. I’m not for sure if that was a policy, but that’s

what we did. We talked about it with our manager, and then we talked –

the manager would talk to our supervisor, and our supervisor would talk to

the manager if there was anything concerning that popped up on there.

Q: Okay.

A: And then the court would obviously be the ultimate decider on placement.

Q: Right. If you gave the court the information about the different, I guess,

issues that may have popped up on a police check or a background check?

A: It’s all – it’s pre-populated, and then you attach the whole report to the

home study.

Id. at 76-77.

The “Summary of Referrals” section of the home study document contains the following:

SUMMARY OF REFERRALS (attach incident history print-out or record)

5/1999 Alisa was listed as the caretaker on an Indicated Sexual Abuse referral.

5/2000 Alisa was listed as the caretaker on a Substantiated Sexual Abuse referral.

10/2000 Alisa was listed as OIC on an Unsubstantiated Neglect referral.

10/2003 Alisa was listed as the caretaker on a Substantiated Sexual Abuse

referral.

4/2004 Anthony was listed as the AP and Alisa was listed as the caretaker on an

Unsubstantiated Sexual abuse referral.

(Doc. 109-9, at 31).3 Von Sacken testified she specifically recalled discussing the SACWIS

information about the Hayneses with her supervisor. (Doc. 106-1, at 77-82). When asked what

her understanding of Anthony and Alisa Haynes’s history in the SACWIS system, she recalled:

I believe that they had some referrals with the – our agency that were either they

were not listed as alleged perpetrator, if they were substantiated, or if they – I

don’t believe they had anything that sub – where they were listed as alleged

perpetrators where they were – that were substantiated, if that makes sense. So

3. It is clear that “AP” stands for “Alleged Perpetrator.” Neither party identifies what “OIC”

means.

there were no referrals in our system that said that they were alleged perpetrator

and it was substantiated.

Id. at 82; see also id. at 132 (“I just want to reiterate that they had nothing – the Haynes adults

had no substantiated cases where they were listed as alleged perpetrators. So – that none of that

would have excluded – any of their SACWIS history was not excludable based off of that. They

were not listed as alleged perpetrators on a substantiated or indicated . . . I’ll say substantiated

case.”).

Von Sacken did not do any further independent investigation into the prior allegations

contained in the SACWIS system. Id. at 106. Rather, she described the process as: “We read the

- - what was contained in the intake and then reviewed, like, the dispositional narrative or the

closed - - case-closing narrative or the narrative when the case was finalized. . . . Those

investigations were completed by somebody else.” Id. at 106. In responses to a similar question

asked later about whether she did “anything in terms of digging around in SACWIS or

contacting anybody identified in those previous hits in SACWIS related to the Hayneses” or “call

any of the . . . alleged victims or anything else or talk to anybody involved in those cases that

popped up in the SACWIS system for the Hayneses”, she explained:

No. I reviewed the allegations, reviewed the dispositions and what happened in

the case, and I did not investigate those cases. So that’s - - that was the

expectation. So that’s what I did. . . . We don’t go back and contact previous

victims of things that were already investigated . . .. It was unsubstantiated. They

had a chance to discuss that with the investigator and higher-ups if they disagreed

with that disposition.

Id. at 129-30. The intake forms for Anthony and Alisa Haynes show that neither was the alleged

perpetrator of abuse on a claim found to be substantiated. See Docs. 109-11 (Alisa) and 109-12

(Anthony). Specifically, with respect to the incidents listed in the “summary of referrals” section

of the home study document completed by Von Sacken: (1) in May 1999, Alisa was listed as a

“caretaker” on an intake form describing sexual abuse of a child by a different adult man; this

case was disposed of as an “indicated” sexual abuse claim. (Doc. 109-11, at 12); (2) in May

2000, Alisa was again listed as a “caretaker” on an intake form describing sexual abuse by the

same adult man who was identified as the “alleged perpetrator”; this case was determined to be

“substantiated”, id. at 8; (3) In October 2000, Alisa was listed in the role of “exception” on a

case alleging neglect by the same adult man (as to his two children) who was identified as the

“alleged perpetrator”; this case was found “unsubstantiated”, id. at 5; (4) in October 2003, Alisa

was listed as a “caretaker” on an intake form describing child sexual abuse by the same adult

male, again identified as the alleged perpetrator; the case was determined to be “substantiated”;

and (5) in April 2004, Anthony was listed as the alleged perpetrator on a sexual abuse claim

involving a nine year old girl (his stepdaughter) and Alisa was listed as the “caretaker”; the case

was disposed of as “unsubstantiated” in May 2004 (Doc. 109-12, at 1).4

Von Sacken further recalled reviewing the Hayneses criminal history as part of the

preliminary home study, and recalled that it contained “[n]othing that would exclude them from

placement with the children” but she did not specifically recall whether there was anything in

that criminal history. Id. at 130-31. She also testified that she had no knowledge of Plaintiffs

suffering abuse or neglect in the Haynes home. Id. at 52, 116-20.

Susan Hickey was the LCCS Department of Family Services (“DFS”) case worker

assigned when Plaintiffs were placed with the Haynes family in July 2014. (Doc. 107-1, at 16-

4. Under Ohio law, a “[s]ubstantiated report” is a disposition “in which there is an admission of

child abuse or neglect by the person(s) responsible; an adjudication of child abuse or neglect; or

other forms of confirmation deemed valid by the [investigating agency].” Kyser v. Summit Cnty.

Children’s Servs., 175 Ohio St. 3d 392, 399 (Ohio 2004) (quoting Ohio Admin. Code § 5101:2-

1-01(B)(313). An ‘Unsubstantiated report’ means the report disposition in which the assessment/

investigation determined no occurrence of child abuse or neglect.” In re A.Z., 2022-Ohio-3943

(Ohio Ct. App. 2022) (quoting Ohio Admin. Code. § 5101:2-1-01(B)(341)).

18). Hickey testified that generally, when a case was referred from an assessment caseworker to

the DFS caseworker, the two would hold a transfer conference, set up a time to meet with the

family together, and then set up a case plan. Id. at 19-20. When Hickey took over the case from

Von Sacken, they held a transfer conference. Id. at 17-18. She also visited the Haynes home

“within a couple of days” of getting the case. Id. at 31-32. Hickey’s role was “[t]o get the

children into case plan services, [and] to monitor them until [they] went to court and a permanent

plan was made.” Id. at 24-25. It was her responsibility to establish a case plan; recommendations

come from the assessment case worker, but it was ultimately the DFS case worker’s

responsibility. Id. at 32.

Hickey did not independently investigate Anthony or Alisa Haynes’s background, but

that was typically the job of the assessment caseworker. Id. at 33-34. When asked if she “ever

double-check[ed] that, Hickey said “I just saw what she had - - what was written on the home

study.” Id. at 34. She reviewed those sections when she completed the home study “but nothing

must have stood out to me.” Id. at 34-35. She said she “kn[ew] that they were caretakers in

regards to, you know, some history” but “d[idn’t] know that they were considered perpetrators or

anything like that in regards to it.” Id. at 34.

Q: Okay. And then did you look at either Anthony Haynes’ or Lisa Haynes’

background with regard to the placement?

A: That was already done when I got the case.

Q: Okay. Do you know who did that?

A: Rebecca – well, you know what? I can’t say that for sure because I don’t

know if it came in on nights or you know, on the weekend. If that

happened, then it would have been someone from there.

Q: But if not, it’s usually the assessment caseworker?

A: Yes.

Q: And what are they supposed to do?

A: Run a background check, fingerprints, look at them in our system to see if

they have any history.

Q: When you say “our system,” do you mean the SACWIS system?

A: Yes.

Q: Okay. Did you ever double-check that?

A: I just saw what she had - - what was written on the home study.

Id. at 33-34.

Hickey completed the home study started by Von Sacken; she then gave it to her

supervisor, who reviewed and signed it. Id. at 36. She had monthly visits with the Haynes family

and Plaintiffs until the Hayneses obtained legal custody in February 2015. (Doc. 107-1, at 16-20,

36, 41-44.

Neither Hickey nor Von Sacken (nor anyone else) informed Hubbard of the SACWIS or

criminal history information obtained for the Hayneses. (Doc. 117, at 2). If anyone had shared

this information, Hubbard avers she would not have consented to placement with the Haynes

household. Id.

There is no dispute that Plaintiffs suffered terrible abuse while in the Haynes home.

In the background section of their brief, Plaintiffs paste two records, seemingly from

LCCS, and state the documents “were produced by Defendants in discovery.” (Doc. 113, at 4-5).

These records, based on their similarity to other records provided and cited by Defendants,

appear to be from LCCS employee activity logs.5 The first record, which follows the intake

5. Defendants rely on and attach the Activity Log Reports of Fraber, West, Mowery, Hickey,

Von Sacken, and Parker in support of their Motion for Summary Judgment. (Docs. 109-5

report regarding the April 2004 sexual abuse allegations against Anthony, contains no date or

author name; it describes various background information and possibly contains interview notes

with Alisha and Anthony, but it is not entirely clear. Id. at 4. It also contains a note that Alisha

went to jail for fourteen days in 2000. Id. The second record, again not specifically identified but

merely pasted into the brief, is dated May 23, 2004, authored by a Melissa Coburn, and identified

as a note regarding case category: Assess/Invest (presumably short for “investigate”). Id. at 5. It

states that an assistant Lucas County Prosecutor left a message to return a call and then the

following note: “mom served some jail-felony-false identification couple years ago-idenify

[sic].” Id.

Procedural Background

This case was originally filed in December 2020. (Doc. 1). Following the filing of an

Amended Complaint (Doc. 49), this Court granted Defendants’ Motion for Judgment on the

Pleadings. (Doc. 70). The Sixth Circuit reversed as to this Court’s determination on the

Fourteenth Amendment substantive due process claim against Von Sacken, and, because this

Court had not reached the claims against West, Mowery, or Hickey, the Sixth Circuit remanded

for “individualized analysis” as to these Defendants. (Doc. 76); R.S. v. Lucas County Children

Servs., et al., 2022 WL 17730531, at *6 (6th Cir.). Following remand, with Court leave,

Plaintiffs filed the now-operative Second Amended Complaint on March 17, 2023. (Doc. 80).6

Following a period of delay that defense counsel attests was due in large part to Plaintiffs’

counsel’s lack of responsiveness (Ranazzi Aff., Doc. 119-1, at ¶ 4), an agreed protective order

through 109-9). These total 208 pages and do not appear to the Court to contain the documents

pasted in the brief, so the Court has no more information regarding them.

6. The Second Amended Complaint added additional defendants. See Doc. 80. However,

Plaintiffs failed to serve any of these defendants with the Amended Complaint, and, following

the issuance of a show cause order to which Plaintiffs did not respond, the Court dismissed the

claims against these additional defendants without prejudice in July 2023. (Docs. 84, 85).

was entered in June 2023. (Doc. 83). Plaintiffs’ counsel then reviewed documents prepared by

LCCS in September 2023 (id.), and these were turned over as part of Defendants’ initial

disclosures in October 2023. (id.; Doc. 120, at 5).

In a September 2023 status conference, the Court set a discovery deadline of June 14,

2024, and dispositive motion deadline of July 31, 2024. The docket entry noted that no

extensions would be granted on these deadlines. Defendants took depositions of Plaintiffs and

their mother in November and December 2023. Plaintiffs took depositions of the four Defendants

in March 2024. On May 31, 2024 (two weeks before the discovery deadline), Plaintiffs served

Defendants with their first set of interrogatories and requests for production. (Doc. 114-1).

Defendants responded on June 28, 2024. Id. at 27.

STANDARD OF REVIEW

Summary judgment is appropriate where there is “no genuine issue as to any material

fact” and “the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

When considering a motion for summary judgment, the Court must draw all inferences from the

record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or

determine the truth of any matter in dispute; rather, the Court determines only whether the case

contains sufficient evidence from which a jury could reasonably find for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the

burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

This burden “may be discharged by ‘showing’—that is, pointing out to the district

court—that there is an absence of evidence to support the nonmoving party’s case.” Id. The

nonmoving party must go beyond the pleadings and “present affirmative evidence in order to

defeat a properly supported motion for summary judgment.” Anderson, 477 U.S. at 257. Further,

the nonmoving party has an affirmative duty to direct the Court’s attention to those specific

portions of the record upon which it seeks to rely to create a genuine issue of material fact. See

Fed R. Civ. P. 56(c)(3) (noting the court “need consider only the cited materials”).

DISCUSSION

Defendants move for summary judgment on the remaining 42 U.S.C. § 1983 substantive

due process claim against West, Mowery, Von Sacken, and Hickey, arguing each is entitled to

qualified immunity (and summary judgment). Plaintiffs respond that issues of material fact

remain, particularly as to Von Sacken and Hickey. (Doc. 113). Plaintiffs further assert that they

have separately filed a motion regarding the completeness of discovery. Id. at 13 n.1. In reply,

Defendants contend Plaintiffs have abandoned their claims as to West and Mowery and have not

shown questions of material fact as to Von Sacken or Hickey’s entitlement to qualified

immunity. (Doc. 121). For the reasons set forth below, the Court grants Defendants’ motion for

summary judgment.

Motion to Strike / Motion to Conduct Additional Discovery

The Court begins with the pending procedural motions. After requesting and receiving

three extensions of time to respond to Defendants’ Motion for Summary Judgment, Plaintiffs

filed their opposition brief. One day later, Plaintiffs filed the currently-pending Motions to Strike

(Doc. 114) and to Conduct Additional Discovery (Doc. 115).

Motion to Strike

In their first motion, Plaintiffs seek to strike the Affidavits of Faber, Parker, and Temple,

which Defendants rely upon in moving for summary judgment, arguing Defendants did not

properly disclose these individuals as witnesses in their initial disclosures or in written discovery.

(Doc. 114). Defendants respond that they did disclose these individuals, in emailed supplemental

witness disclosures, and claim that any alleged disclosure noncompliance was harmless because

Plaintiffs were aware of these witnesses based on other discovery in this case and the prior

juvenile court custody proceedings. (Doc. 119). Defendants further assert that all the documents

they rely upon in support of summary judgment were turned over to Plaintiffs in 2023. Id. at 5.

Plaintiffs do not dispute this latter assertion (Doc. 120, at 5).

It appears undisputed that Defendants’ initial disclosures did not identify these three

individuals by name. But it also appears undisputed that Defendants provided these names in

emailed supplemental witness lists in early 2024, and that these three individuals were referenced

by Plaintiffs and their mother in their late 2023 depositions.

Rule 26(a)(1)(A)(i) provides that initial disclosures must include: “(i) the name and, if

known, the address and telephone number of each individual likely to have discoverable

information—along with the subjects of that information—that the disclosing party may use to

support its claims or defenses, unless the use would be solely for impeachment”. Rule

26(e)(1)(A) requires a party to supplement its disclosures “if the party learns that in some

material respect the disclosure or response is incomplete or incorrect, and if the additional or

corrective information has not otherwise been made known to the other parties during the

discovery process or in writing”. And Rule 37(a)(3)(A) provides: “If a party fails to make a

disclosure required by Rule 26(a), any other party may move to compel disclosure and for

appropriate sanctions.” “The distinct purpose of the initial disclosure is to alert the opponent to

the existence of a witness whose testimony may be helpful to the disclosing party.” Harris v.

Advance Am. Cash Advance Ctrs., Inc., 288 F.R.D. 170, 171 (S.D. Ohio 2012).

It appears undisputed that these witnesses were not disclosed in Defendants’ initial

disclosures. It is also undisputed that Defendants did not specifically identify any of the three in

response to Plaintiffs’ discovery request to identify “any and all persons known to you who

possess or claim to possess knowledge of any facts concerning any allegation in the Complaint”.

(Doc. 114-1, at 5-6). But Defendants’ response to this interrogatory states “[t]his information has

been previously provided in both the initial disclosures, numerous correspondence providing

names of potential witnesses and documents exchanged in discovery and the initial disclosures.”

Id. at 6. And Plaintiffs’ initial disclosures included reference to “Employees and staff of Lucas

County Children Services”, which would include Parker and Fraber, although they are not

identified by name. And defense counsel identifies emails from early 2024 entitled “Defendant’s

Supplemental Witness disclosures” that list several names under the subheading “LCCS Case

Workers”, and includes Parker and Fraber. See Doc. 119-1, at ¶ 4; see also Doc. 100-1, at 10-11.

Defense counsel further states he became aware of Temple as a possible witness in March 2024,

and again identified her as a witness in an email. See Doc. 119-1, at ¶ 5; see also Doc. 100-1, at

7. Victoria Hubbard’s November 2023 deposition references Parker as “the investigating

worker” for LCCS. (Doc. 102-1 at 216). Plaintiffs’ depositions reference Temple throughout (see

Docs. 103-1, and 104-1), and one Plaintiff responded to questions regarding interactions with

Fraber (Doc. 104-1, at 134-35). And the documents on which Parker and Fraber’s Affidavits are

based (their Activity Log notes) were turned over to Plaintiffs in 2023. Further, Temple resided

in the Haynes house at the same time as Plaintiffs and was mentioned repeatedly in their

depositions. See Docs. 103, 104.

Plaintiffs contend the emails were “insufficient to comply with Rule 26(a)(1) because

Defendants only provided names, withheld contact information for fact witnesses, and did not

summarize the subjects that these fact witnesses may have information regarding.” (Doc. 120, at

3). They further contend the discovery responses were insufficient. At no time during the

discovery period did Plaintiffs file a motion to compel or any other motion to dispute the

adequacy or format of Defendants’ disclosures. Thus, their complaints at this late juncture

regarding an alleged “document dump” and not properly identifying responsive documents, ring

fairly hollow. Cf. DeLaval Inc. v. Hardy’s Holsteins, LLC, 2023 WL 6396574, at *8 (E.D.

Mich.) (“[I]n any event, the Court declines to strike LaBean’s declaration because Hardy never

moved to compel DeLaval to serve its initial disclosures during discovery.”); FCA US LLC v.

Bullock, 446 F. Supp. 3d 201, 217 (E.D. Mich. 2020) (declining to strike a claim for damages

where the moving party “fail[ed] to file a timely motion to compel during the discovery phase.”).

The Court finds unpersuasive Plaintiffs’ contention that they were unaware of the

witnesses whose affidavits Defendants rely upon in support of their summary judgment motion.

Even if the witnesses were not properly disclosed pursuant to Rule 26, the Court finds any

violation harmless. See Fed. Civ. R. 37(c)(1) (“If a party fails to provide information or identify a

witness as required by Rule 26(a) or (e), the party is not allowed to use that information or

witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless.”). “[T]he burden is on the potentially sanctioned party to

show harmlessness.” U.S. ex rel. Tenn. Valley Auth. v. 1.72 Acres of Land in Tenn., 821 F.3d

742, 752 (6th Cir. 2016).

The Advisory Committee’s comments identify, among other circumstances, that a

situation in which a party omits disclosure of a name “of a potential witness known to all

parties,” or omits “to list as a trial witness a person so listed by another party,” would be

harmless. Fed. R. Civ. P. 37(c), advisory committee notes, 1993 amend. Along the same lines,

the supplementation provisions of Rule 26, which require updating of a Rule 26(a)(1) disclosure

throughout a case, contain an exemption for information that has otherwise been made known to

the opposing party during the discovery process. Fed. R. Civ. P. 26(e)(1)(A). The Sixth Circuit

counsels a Court to consider five factors to evaluate harmlessness:

(1) the surprise to the party against whom the evidence would be offered; (2) the

ability of that party to cure the surprise; (3) the extent to which allowing the

evidence would disrupt the trial; (4) the importance of the evidence; and (5) the

nondisclosing party’s explanation for its failure to disclose the evidence.

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Russell v. Absolute Collection

Servs., Inc., 763 F.3d 385, 396-97 (4th Cir. 2014)). The Court has “broad discretion in applying

these factors and need not apply each one rigidly.” Bisig v. Time Warner Cable, Inc., 940 F.3d

205, 219 (6th Cir. 2019) (internal quotation and citation omitted). “The factors simply lend

themselves to the task at the heart of Rule 37(c)(1): separating ‘honest,’ harmless mistakes from

the type of ‘underhanded gamesmanship’ that warrants the harsh remedy of exclusion.” Id.

(quoting Bentley v. Highlands Hosp. Corp., 2016 WL 5867496, at *10 (E.D. Ky.)). The Court

finds this case falls into the former, rather than the latter, category given Plaintiffs’ awareness of

these witnesses as set forth above. And there is “no binding authority for the proposition that

Rule 26(e) requires . . . an explicit statement” that a party “intend[s] to rely on [a particular

witness] and his records in moving for summary judgment.” Baker Hughes Inc. v. S&S Chem.,

LLC, 836 F.3d 554, 568 (6th Cir. 2016). In Baker Hughes, the Sixth Circuit noted that the

objecting party “had both (1) knowledge of Giles and his role in th[e] litigation, and (2) ample

time to depose Giles or otherwise seek discovery with respect to Giles and his records. Any

failure of Defendants to comply with Rule 26 was therefore a ‘harmless’ violation that did not

require the district court to exclude the Giles-related documents.” Id. at 568-69.

For these reasons, the Court denies Plaintiffs’ Motion to Strike (Doc. 114).

Motion to Conduct Additional Discovery

Relatedly, Plaintiffs seek to conduct additional discovery, namely “discovery on

Defendants’ factual assertions set forth in their affidavits submitted in support of their Motion for

Summary Judgment.” (Doc. 115, at 5). Federal Civil Rule 56(d) provides:

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by

affidavit or declaration that, for specified reasons, it cannot present facts essential

to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). The determination on a Rule 56(d) motion is within the district court’s

discretion. In re Bayer Healthcare & Merial Ltd. Flea Control Prods. Mktg. & Sales Practices

Litig., 752 F.3d 1065, 1074 (6th Cir. 2014). The Sixth Circuit has “cited approvingly other

circuits’ view that ‘[a] . . . motion requesting time for additional discovery should be granted

almost as a matter of course unless the non-moving party has not diligently pursued discovery of

the evidence.’” Doe v. City of Memphis, 928 F.3d 481, 490-91 (6th Cir. 2019) (quoting F.T.C. v.

E.M.A. Nationwide, Inc., 767 F.3d 611, 623 n.7 (6th Cir. 2014) (further internal quotations and

citations omitted)) (alterations in original). There are five factors to consider in a Rule 56(d)

motion:

(1) when the appellant learned of the issue that is the subject of the desired

discovery; (2) whether the desired discovery would have changed the ruling

below; (3) how long the discovery period had lasted; (4) whether the appellant

was dilatory in its discovery efforts; and (5) whether the appellee was responsive

to discovery requests.

CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008) (quoting Plott v. Gen. Motors Corp., 71

F.3d 1190, 1196-97 (6th Cir. 1995)) (the “Plott factors”). But the “main inquiry is whether the

moving party was diligent in pursuing discovery.” Doe, 928 F.3d at 491 (quoting E.M.A.

Nationwide, Inc., 767 F.3d at 623); see also Wilson v. Ebony Constr. LLC, 2018 WL 4743063, at

*5 (S.D. Ohio) (“[T]hree of the five Plott factors hinge on issues of timeliness and diligence,”

i.e., the first, third, and fourth factors.).

Here, the discovery period ran for ten months (September 2023 to June 2024), and the

bulk of Defendants’ documents were turned over early in that time period (September/October

2023). These documents are the ones which Defendants’ motion and witness affidavits are based.

Plaintiffs submitted their only written discovery requests a mere two weeks prior to the end of

the discovery period.7 And Plaintiffs did not raise any discovery dispute promptly upon receipt

of Defendants’ motion for summary judgment; instead, it was raised sixty-one days later, after

seeking three extensions of time that did not reference any potential discovery-related issue, and

not until the day after the opposition brief was filed. The Court finds the clear lack of diligence

dictates no further discovery should be permitted. See, e.g., Marie v. Am. Red Cross, 771 F.3d

344, 367 (6th Cir. 2014) (finding no abuse of discretion in denying motion to conduct additional

discovery when plaintiff “waited nearly nine months to submit their initial discovery requests,

which were served only a few weeks before the discovery deadline”); Williams v. Schismenos,

2017 U.S. Dist. LEXIS 38054, *12-13 (N.D. Ohio) (“Plaintiff also waited more than a month

after discovery had closed and summary judgment was pending to allege a discovery dispute.

This dilatory conduct weighs heavily against delaying this case any further.”).

For these reasons, Plaintiff’s Motion for Additional Discovery (Doc. 115) is denied.

7. The Court notes that pursuant to Local Civil Rule 16.1(b)(6), the discovery deadline “is that

date by which all responses to written discovery shall be due . . . and by which all depositions

shall be concluded. Counsel must initiate discovery requests and notice or subpoena depositions

sufficiently in advance of the discovery cut-off date so as to comply with this rule, and discovery

requests that seek responses or schedule depositions after the discovery cut-off are not

enforceable except by order of the Court for good cause shown.” By virtue of Federal Civil

Rules 33(b)(2) and 34(b)(2)(A), parties have 30 days to respond to interrogatories and requests

for production. Plaintiffs’ written discovery requests put Defendants’ responses due past the

Court’s discovery deadline. Nevertheless, Defendants responded within the 30-day time period

permitted by the rules, despite the fact that it was past the deadline.

Motion for Summary Judgment

Defendants move for summary judgment on the remaining substantive due process claim,

brought pursuant to 42 U.S.C. § 1983. (Doc. 109). They contend each Defendant is entitled to

qualified immunity. Defendants moved for summary judgment as to the claims against each of

them. In opposition, Plaintiffs contend there are genuine issues of material fact which prevent

summary judgment on their claims against Von Sacken and Hickey. In a footnote, Plaintiffs

state: “based on discovery to date, Defendants Mowery and West/Elkins did not take any

affirmative act which removed Plaintiffs from their mother and placed them with the Hayneses.”

(Doc. 113, at 13 n.1). Cf. Bennett v. Hurley Med. Ctr., 86 F.4th 314, 325 (6th Cir. 2023) (“When

a litigant fails to address a claim in response to a motion for summary judgment, that claim is

deemed abandoned or forfeited.”). Because the Court has determined the Plaintiffs are not

entitled to further discovery, and Plaintiffs concede that they have not identified an affirmative

act, Defendants Mowery and West are entitled to summary judgment.

Claims Against Von Sacken and Hickey

Remaining are Plaintiffs’ claims against Von Sacken and Hickey. At core, Plaintiffs

assert Von Sacken and Hickey took actions that violated their substantive due process rights;

their action (and alleged inaction) resulted in Plaintiffs being placed in the Haynes household

where they were subsequently abused. Defendants contend Plaintiffs cannot establish a genuine

issue of material fact regarding whether Von Sacken or Hickey violated Plaintiffs’ clearly

established constitutional rights.

The Fourteenth Amendment’s Due Process Clause limits “the State’s power to act.”

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). It “does not

impose on the state an affirmative duty to protect individuals against private acts of violence.”

Engler v. Arnold, 862 F.3d 571, 575 (6th Cir. 2017) (citation omitted). Rather, “[i]ts purpose was

to protect the people from the State, not to ensure that the State protected them from each other.”

DeShaney, 489 U.S. at 196. There are two exceptions to this maxim. One arises when the

plaintiff is harmed while in state custody. See Lipman v. Budish, 974 F.3d 726, 741 (6th Cir.

2020). Exception two is the state-created-danger theory. It allows a plaintiff to hold the state

responsible for harm caused by a third party if:

(1) an affirmative act by the state which either created or increased the risk that

the plaintiff would be exposed to an act of violence by a third party; (2) a special

danger to the plaintiff wherein the state’s actions placed the plaintiff specifically

at risk, as distinguished from a risk that affects the public at large; and (3) the

state knew or should have known that its actions specifically endangered the

plaintiff.

Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003) (citation omitted).

Plaintiffs argue there are genuine issues of material fact remaining on their due process

claim pursuant to the state-created danger theory. The Court addresses each element below. As

with all § 1983 actions, each defendant’s liability “must be assessed individually based on his [or

her] own actions.” Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010); see also Jones v. City

of Elyria, 947 F.3d 905, 913 (6th Cir. 2020) (“[Courts] do not lump together each of the relevant

government actors. Rather, [they] assess each actor’s liability on an individual basis.”).

Affirmative Act

“Whether conduct amounts to an ‘affirmative act’ in this context is at times a difficult

question.” Engler, 862 F.3d at 575. “[A] failure to act is not enough.” Lipman, 974 F.3d at 744.

The key “question is whether the individual ‘was safer before the state action than . . . after it.’”

Jasinski v. Tyler, 729 F.3d 531, 539 (6th Cir. 2013) (quoting Cartwright, 336 F.3d at 493).

Defendants seem to briefly contend Plaintiffs cannot satisfy this element because they

“were initially in a home where the youngest child was starved and beaten by an unknown

assailant until his ribs and other bones were broken.” (Doc. 109, at 16). But the Court rejects this

argument and declines to find that it must weigh the physical abuse of one child against the

placement of a different child in an environment involving sexual abuse to determine which is

“safer”. On the facts before the Court, Plaintiffs were certainly less safe from sexual abuse

following their placement in the Haynes home. Cf. R.S., 2022 WL 17730531, at *4 (stating, at

the pleadings stage in the instant case: “Plaintiffs went from a neglectful (and in the baby’s case,

abusive) home to a living hell, which certainly meets the definition of an affirmative act.”).

Plaintiffs contend that “Von Sacken and Hickey took actions which removed Plaintiffs

from their home and placed them with the Haynes[es].” (Doc. 113, at 13 n.1). They cite Von

Sacken’s statement on the home study that the Hayneses were a low-risk placement and Hickey’s

participation in completing that home study as the “affirmative act” at issue. Id. at 14-17, 18-20.

As the Sixth Circuit found, the action of recommending to the juvenile court that the children be

removed and placed with the Hayneses is a sufficient affirmative act. R.S., 2022 WL 17730531,

at *4. As discussed below, discovery has changed the facts from what they were alleged to be at

the pleadings stage (where it was alleged Von Sacken knew of substantiated sexual abuse

allegations against the Hayneses but failed to investigate them). But the Court presumes at least

arguendo, for purposes of proceeding through the remaining steps of the analysis, that taking

actions to recommend placement can constitute the affirmative act necessary under the state

created danger exception.

Special Danger

Under the second prong, Plaintiffs must show each Defendant’s actions “place[d] [them]

specifically at risk, as distinguished from a risk that affects the public at large.” Kallstrom v. City

of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998). The Sixth Circuit explained that “[t]his

element is met when ‘the government could have specified whom it was putting at risk, nearly to

the point of naming the possible victim or victims.’” R.S., 2022 WL 17730531, at *5 (citing

Jones v. Reynolds, 438 F.3d 685, 696 (6th Cir. 2006)). At the pleadings stage, the Sixth Circuit

found this element satisfied because “Plaintiffs’ complaint plausibly alleges a special danger

because only R.S., T.H., and their siblings were subject to Von Sacken’s placement

recommendation.” Id. The same is true here – Von Sacken, and subsequently Hickey, conducted

the home study upon which Plaintiffs’ placement with the Hayneses was at least partially based.

Deliberate Indifference

Defendants ultimately contend they are entitled to qualified immunity and therefore

summary judgment because Plaintiffs have not established that either Von Sacken or Hickey

acted with deliberate indifference. The Court agrees that Plaintiffs’ claims falter at the third

prong of the state-created danger exception in light of the evidence presented.

Under the third prong, Plaintiffs must show each Defendant acted with the requisite

culpability to establish a constitutional violation. See Arledge v. Franklin Cnty., 509 F.3d 258,

263 (6th Cir. 2007). Plaintiffs must show that each Defendant “knew or should have known that

[her] actions specifically endangered the plaintiff.” Cartwright, 336 F.3d at 493. The Sixth

Circuit has equated deliberate indifference with subjective recklessness, meaning “the official

must both be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.” McQueen v. Beecher Cmty. Schs., 433

F.3d 460, 469 (6th Cir. 2006) (quoting Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 493 (6th

Cir. 2002)). Subjective recklessness can “be proven circumstantially by evidence showing that

the risk was so obvious that the official had to have known about it.” Bukowski v. City of Akron,

326 F.3d 702, 710 (6th Cir. 2003).

Moreover, the qualified immunity doctrine protects government officials “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). “Qualified immunity balances two important interests—the need to

hold public officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity is an affirmative defense;

once a defendant raises it, the burden shifts to the plaintiff to demonstrate: (1) the defendant’s

acts violated a constitutional right, and (2) the right at issue was clearly established at the time of

the defendant’s alleged misconduct. T.S. v. Doe, 742 F.3d 632, 635 (6th Cir. 2014). A “clearly

established right”, for the purpose of determining whether a public official is entitled to qualified

immunity, “is one that is ‘sufficiently clear that every reasonable official would have understood

that what he is doing violates that right.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting

Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). “For a right to be clearly established,

‘existing precedent must have placed the statutory or constitutional question beyond debate.’”

Bell v. City of Southfield, 37 F.4th 362, 368 (6th Cir. 2022) (emphasis in original) (quoting

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021)). “The plaintiff bears the burden of showing

that the right was clearly established” and, to meet such a burden, “must provide on-point

caselaw that would bind a panel of [the Sixth Circuit].” Bell, 37 F.4th at 367-68.

Defendants here contend they are entitled to qualified immunity because Plaintiffs cannot

establish the mental state required – deliberate indifference – for a state-created danger claim.

Plaintiffs respond that “Von Sacken had information in the SACWIS report contained in the

home study for the placement of [Plaintiffs] which showed that the Hayneses had a history which

involved abuse cases” and “also should have known that Lisa Haynes had previously been

convicted of identity fraud under R.C. 2913.49, which can be a disqualifying conviction for

adults seeking to have children placed with them.” (Doc. 113, at 17-18). They argue similarly as

to Hickey: “Like Von Sacken, Hickey had information in the SACWIS report which showed that

the Hayneses had a history involving abuse cases. Hickey also should have known about Lisa

Haynes’[s] prior convictions and jail sentences. Hickey also should have known that putting the

children with the Hayneses would place them in danger.” Id. at 20. Thus, Plaintiffs rely solely on

the SACWIS records and Alisa Haynes’s prior conviction on this prong. The Court addresses

each below.

SACWIS Records

Defendants contend Plaintiffs have pointed to no clearly established case law to show

either Von Sacken or Hickey acted with deliberate indifference in taking actions which resulted

in their placement with the Hayneses, where a records check in SACWIS revealed only abuse or

neglect claims previously determined to be unsubstantiated or, where substantiated, the

individuals were not listed as the alleged perpetrator.

Again, to establish deliberate indifference, “the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must

also draw the inference.” McQueen, 433 F.3d at 469 (quoting Sperle, 297 F.3d at 493).

In contrast to the record at the pleadings stage, the developed discovery record

demonstrates it is undisputed that the SACWIS system at the time of Plaintiffs’ placement

contained no substantiated abuse or neglect allegations where Alisa Haynes was the alleged

perpetrator. And although it contained one record in which Anthony Haynes was identified as the

alleged perpetrator of sexual abuse, that claim was found to be unsubstantiated. That is, there

were no claims of abuse against Alisa Haynes, and the only claim against Anthony had been

determined to be unsubstantiated. See Docs. 109-11 (Alisa), 109-10 (Anthony). The record

reflects that Von Sacken reviewed those prior allegations as part of her preliminary home study.

(Doc. 106-1, at 75-82, 129-32). Plaintiffs seemingly argue Von Sacken (and Hickey) should have

done more: “Von Sacken and . . . Hickey had this information available to them when they

created the home safety plan for the children in July 2014. They never followed up on any of this

information to find out what the circumstances of the entries were for Lisa Haynes or Anthony

Haynes.” (Doc. 113, at 2-3) (citing “Summary of Referrals” section of home study). Plaintiffs

provide no citations for these factual assertions in their brief. And Von Sacken explicitly testified

that she “read . . . what is contained in the intake and then reviewed . . . the narrative when the

case was finalized” (Doc. 106-1, at 106), and “reviewed the allegations, reviewed the

dispositions and what happened in the case”, id. at 129.

It is worth reiterating that deliberate indifference requires a showing that the individual is

(1) “aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists”, and (2) “also dr[e]w that inference”. McQueen, 433 F.3d at 469. Here, the

undisputed evidence reflects that Von Sacken reviewed the allegations in SACWIS and

determined there were no substantiated allegations as determined by prior investigations. (Doc.

106-1, at 77-82, 132). It also reflects that Hickey reviewed the information on the completed

home study “but nothing must have stood out to [her].” (Doc. 107-1, at 35). Although Plaintiffs

have demonstrated that allegations of abuse had been made against Anthony Haynes prior to

their placement, they have not demonstrated that being aware of abuse allegations that were

investigated and determined to be unsubstantiated, or records on which an individual was not the

alleged perpetrator of abuse were “facts from which the inference could be drawn that a

substantial risk of serious harm exists”. McQueen, 433 F.3d at 469. Further, even if they had,

they have certainly not provided facts from which a jury could conclude that either Von Sacken

or Hickey “dr[e]w the inference”. Id. Nor have Plaintiffs presented facts from which a jury could

conclude that it was subjectively reckless to rely on these previous investigatory determinations.

It is tragic that the risk identified in the abuse report determined by previous investigators to be

unsubstantiated is precisely the harm ultimately inflicted upon Plaintiffs. But the benefit of

hindsight does not demonstrate that either Von Sacken or Hickey acted with deliberate

indifference. For these reasons, the Court finds Plaintiffs have not demonstrated a question of

material fact regarding Defendants’ deliberate indifference as it relates to the SACWIS records.

Prior Convictions

In their opposition brief, Plaintiffs paste the two records described in the above

background section, which contain references to Alisa Haynes serving jail time, then contend:

Neither Rebecca Von Sacken nor Sue Hickey reviewed this information, which

would have alerted them to Lisa Haynes’ previous convictions in 2000 for

attempted identity theft, attempted misuse of a credit card, and attempted forgery.

See Lucas County Common Pleas Case No. G-48010CR0200002865-000.

Notably, Lisa Haynes’ conviction in 2000 under R.C. 2913.49 (identity fraud)

could have disqualified her from allowing Plaintiffs to be placed with her. LCCS

would have had to review her conviction and probation. Lisa Haynes’ probation

for that conviction had been terminated unsuccessfully after she had been in jail in

2004 and again in 2006 for violating the terms of her probation. Lisa Haynes had

not successfully completed her probation for these offenses, yet Plaintiffs were

placed in her home. Neither Von Sacken no[r] Hickey obtained or reviewed this

information before placing the children with the Hayneses, even though it was

readily available to them.

(Doc. 113, at 5-6). Other than the included case citation, Plaintiffs’ brief provides no other

citations for the statements in the above-quoted paragraph. The Court notes that Plaintiffs’

counsel asked no questions of either Von Sacken or Hickey at their depositions regarding these

records or these now-cited specific prior convictions. Von Sacken testified a criminal history was

run and there were no disqualifying convictions (Doc. 106-1, at 73-75, 109-13, 130-31), and

Ryan Parker avers that he was instructed by his supervisor “to ensure criminal records checks

were completed” and he “found the records checks with no disqualifying history” (Doc. 109-2, at

¶ 9).8 Further, at the time Plaintiffs were placed with the Hayneses, they were already caring for

another child with LCCS approval. Id. And although Plaintiffs assert the cited conviction “could

have disqualified her”, they point the Court to nothing from which to assess the accuracy of that

statement. Defendants respond that the conviction was not disqualifying.

Resolving the question of whether Alisa Haynes’s convictions from the year 2000 were

disqualifying is not necessary. Even assuming the convictions were disqualifying, and that Von

Sacken or Hickey should have known about it and did not, such a failure does not rise to the

level of deliberate indifference in the present context; Plaintiffs have pointed to no clearly

established law suggesting it does.

Deliberate indifference is a high bar—one that surpasses mere negligence. Doe v.

Jackson Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925, 932 (6th Cir. 2020). “[O]nly extreme

misconduct”—conduct that shocks the conscience—“will violate the [Due Process] clause.” Id.

at 933. Plaintiffs’ argument appears to conflate the affirmative act prong with the deliberate

indifference prong. That is, taken to its logical conclusion, Plaintiffs’ argument is that if Von

Sacken and Hickey had properly identified that Alisa Haynes had a disqualifying criminal

conviction, they would not have been placed with the Hayneses and would not have suffered as

they did. But this is not the standard. Rather, the Sixth Circuit has explained, the standard “has

two parts”:

8. Defendants also submit, in conjunction with their motion for summary judgment, criminal

history records checks from September 2014 that indicate no records for either Anthony or Alisa

Haynes (identified as “Lisa Haynes”). (Doc. 109-18).

An official must “be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.”

Ewolski, 287 F.3d at 513 (quoting Farmer, 511 U.S. at 837). “Having drawn the

inference,” the official next must “act or fail to act in a manner demonstrating

‘reckless or callous indifference’ toward the individual’s rights.” Id. (citation

omitted). Given the call for caution in this area, Collins, 503 U.S. at 125, our

cases set demanding rules for both parts of this standard.

Id. at 933. As to the first part, to “be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists,” “a public official must know of more than a general

risk of harm. The official must know of the specific risk that later develops.” Id. at 933-34

(quotation omitted) (emphasis in original). Here, even if it is somehow enough that Von Sacken

and Hickey should have known of the prior convictions (or did know, although Plaintiffs have

presented no evidence that they did), there is nothing to suggest that such a conviction would

support an inference that there was a substantial risk of the specific harm suffered here, child

abuse. Cf. McQueen, 433 F.3d at 469-70 (finding a teacher’s knowledge of a student’s

“sometimes violent behavior” was not enough to prove that she knew that student posed a risk of

gun violence).

The Court therefore finds Defendants have established their entitlement to summary

judgment on the 42 U.S.C. § 1983 substantive due process claim against Von Sacken and

Hickey.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Plaintiffs’ Motion to Strike (Doc. 114) be, and the same hereby is,

DENIED; and it is

FURTHER ORDERED that Plaintiffs’ Motion to Conduct Additional Discovery (Doc.

115) be, and the same hereby is, DENIED; and it is

FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Doc. 109) be,

and the same hereby is, GRANTED.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: March 27, 2025