Jacob Clark v. Bernadette Stone

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0111p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

JACOB CLARK and GENETTA CLARK, individually and

│

as next friends and guardians of H.C., a minor,

│

Plaintiffs-Appellants, │

> No. 20-5928

│

v. │

│

BERNADETTE STONE, CATHERINE CAMPBELL, and │

DOUGLAS HAZELWOOD, in their individual and official │

capacities; ERIC FRIEDLANDER and MARCUS │

HAYCRAFT, in their official capacities only, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Western District of Kentucky at Owensboro.

No. 4:19-cv-00166—Joseph H. McKinley, Jr., District Judge.

Argued: April 27, 2021

Decided and Filed: May 19, 2021

Before: SUHRHEINRICH, GRIFFIN, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher Wiest, CHRIS WIEST ATTORNEY AT LAW, PLLC, Crestview Hills,

Kentucky, for Appellants. David Brent Irvin, CABINET FOR HEALTH AND FAMILY

SERVICES, Frankfort, Kentucky, for Appellees. ON BRIEF: Christopher Wiest, CHRIS

WIEST ATTORNEY AT LAW, PLLC, Crestview Hills, Kentucky, Robert A. Winter, Jr., Fort

Mitchell, Kentucky, Thomas A. Bruns, BRUNS, CONNELL, VOLLMAR & ARMSTRONG,

LLC, Cincinnati, Ohio, for Appellants. David Brent Irvin, CABINET FOR HEALTH AND

FAMILY SERVICES, Frankfort, Kentucky, for Appellees.

No. 20-5928 Clark, et al. v. Stone, et al. Page 2

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge.

I. INTRODUCTION

Jacob and Genetta Clark are fundamentalist Christians who sincerely believe that their

religion requires them to use corporal punishment when necessary upon their children. When

one of their children came to school with marks on his arms from being hit with a belt, the

Kentucky Cabinet for Health and Family Services (“CHFS”) became involved. Pursuant to

guidance from a Kentucky regulation, the social workers launched and maintained for several

months an investigation for child abuse. This underlying abuse investigation formed the factual

predicate for the legal claims now before this court.

Here, the Clarks claim that the Substantive Due Process Clause of the Fourteenth

Amendment gives them a fundamental right to use corporal punishment that may leave marks on

their children, and a concomitant right not to be investigated for having done so. They therefore

contend that the aforementioned Kentucky regulation is facially unconstitutional. They further

argue that by the conducting the investigation, the defendants interfered with this right. The

defendants (all employees of CHFS) argue that if there is a such a right, it was certainly not

clearly established at the time of the events at issue here and they are therefore entitled to

qualified immunity.

The Clarks also take issue with how the investigation was conducted. They allege that a

court order requiring them to cooperate with the investigation and permit home visits violated

their Fourth Amendment rights. They further claim that their First Amendment rights were

violated when they were allegedly retaliated against for insisting on filming the home visits.

Finally, the Clarks allege that the investigation violated their Free Exercise rights because it

interfered with their ability to use corporal punishment.

For the reasons that follow, we AFFIRM the district court’s dismissal of all claims.

No. 20-5928 Clark, et al. v. Stone, et al. Page 3

II. BACKGROUND

Genetta and Jacob Clark have three children: C.C., age 16, N.C., age 14, and H.C., age

12. Genetta and Jacob are devout Christians, who believe that their faith compels the use of

corporal punishment on their children when it is needed.

On December 16, 2018 Genetta was assisting her son N.C. with dealing with his acne.

N.C. became aggravated and slammed the door in his mother’s face. Genetta claims that she

believed he was going to strike her and that only physical punishment would get his attention, so

she struck him twice on the rear end with a wooden back scratcher. When the situation did not

de-escalate, Jacob became involved and struck N.C.’s rear end five or six times with his belt. In

attempt to stop his father, N.C. stuck his arm up, and Jacob hit his arm with the belt.

C.C. then tried to intervene, at which point Jacob also disciplined him with the belt. The

next day C.C. reported to a school counselor that he was being abused at home. The counselor,

who is legally obligated to report instances of suspected abuse to the authorities, called the

Kentucky Cabinet for Health and Family Services.

Kentucky law requires CHFS to initiate a prompt investigation and take necessary

protective action when it receives a report of an abused child. Ky. Rev. Stat. § 620.050(4).

Defendant Douglas Hazelwood, supervisor of CHFS’s Grayson County office, assigned

Defendant Bernadette Stone to the case.

Stone interviewed H.C. and N.C. at their school on December 17, 2018. During this

interview Stone saw light red marks left on N.C.’s arm from the belt and took photographs of his

arm on her cell phone. She interviewed C.C. the next day at his school. All of the children

confirmed that their parents used corporal punishment on them when necessary, but also stated

that they were not abused and felt safe at home. When she called Jacob to discuss the matter, he

told Stone he would not bring the children in to CHFS for further interviews without a court

order.

Stone brought the matter to Assistant County Attorney Sidney Durham, who assists and

represents CHFS in juvenile court matters. Based on the photos Stone had taken of N.C.’s arm,

No. 20-5928 Clark, et al. v. Stone, et al. Page 4

Durham told her that this was sufficient evidence of abuse for her to file juvenile court petitions

for each child. The petitions went before Judge Embry of the District Court of Grayson County,

Kentucky on December 19, 2018. The Clarks allege that they were not informed of the hearing

until less than an hour before it was set to begin, so they were not able to be there.

At this hearing, Judge Embry, relying at least in part on Stone’s report (including the

photographs) and testimony, issued an order that stated: “no physical discipline, parents to

cooperate w/ CHFS” (“no discipline order”).1 Judge Embry made no findings of abuse, and

instructed the Clarks to appear in court again on January 9, 2019. At that January 9 hearing,

which was before Judge Goff (another Grayson County District Court judge), the court ordered

the Clarks, who were in attendance, to “cooperate” with CHFS and to allow CHFS into their

home. Judge Goff told Jacob that he did not have a Fourth Amendment right to stop the visits,

and that if he failed to cooperate with CHFS, the children could be removed from his and

Genetta’s custody.

On January 28, 2019, Stone, Defendant Catherine Campbell (another social worker at

CHFS), and an accompanying police officer arrived at the Clark’s residence to perform a home

visit. Jacob had taped a copy of the text of the Fourth Amendment to the front door. Jacob

stated that Stone had perjured herself at the hearing and insisted on videotaping the entire

interaction between himself and Stone and Campbell, which Stone and Campbell stated they did

not consent to. Stone and Campbell told Jacob that if he did not allow them to enter their then

they would call the county attorney to see how to proceed, at which point Jacob allegedly

relented and allowed them to enter the home.

Stone and Campbell interviewed the family members, and during these interviews

Genetta admitted to having struck C.C. with a wooden backscratcher (though denied that she had

hit him in the crotch), and Jacob admitted striking N.C. and C.C. with a belt. Though Jacob

stated that the hearing before Judge Goff was “a joke”, Genetta agreed to follow all court orders

and to cooperate with CHFS.

1Judge Embry stated in her affidavit that “Stone’s imprecise use of the words ‘laceration’ or ‘abrasion’ in

describing the child’s wounds were not relevant to my decision,” and explained that she had relied on her own

observations of the photographs.

No. 20-5928 Clark, et al. v. Stone, et al. Page 5

On January 30, 2019, another hearing was held. Jacob alleges that Stone only continued

with the abuse charges as retaliation for his insistence on videotaping the home visit. According

to Tina Moore, who had taken over the case from Stone, the judge told Hazelwood that the

Clarks had the right to continue recording any home visits.

On February 3, 2019, Stone recorded in her notes that having conducted interviews and

reviewed the evidence, she believed there was a substantial risk of abuse, and that the “family

functioning” had “broke[n] down due to [Jacob’s] temper.” Her involvement with the case

ceased after this point.

On August 1, 2019, the abuse cases were dismissed. During the entire pendency of these

cases, from December 19, 2018, through August 1, 2019, the orders requiring the Clarks to

refrain from using physical discipline on their children and to cooperate with CHFS were in

place. The Clarks maintain that all the home visits, investigations, and the abuse cases

themselves were all based on the initial testimony from Stone regarding the marks on N.C.’s

arm, which the Clarks allege amounts to perjury. They allege that CHFS was acting based on

religious animus against Jacob, whom CHFS employees referred to as “the crazy preacher,”

according to Moore. The Clarks further allege that the investigation caused substantial

interference to their fundamental right to make decisions concerning how to raise their children.

In November 2019, Jacob and Genetta, for themselves, and on behalf of H.C., sued

Stone, Campbell, and Hazelwood in both their individual and official capacities. They also sued

a CHFS regional supervisor, Marcus Haycraft, and Cabinet Secretary Eric Friedlander in their

official capacities.2 The Clarks sought prospective, declaratory and injunctive relief against all

five of the official capacity defendants because title 922, section 1:330, subsection 2(5)(f) of the

Kentucky Administrative Regulations, which offers guidance to CHFS workers on when to

investigate corporal punishment as child abuse, chilled the exercise of their constitutional right to

dictate how to raise their children. They sued the three individual capacity defendants for

violations of their First, Fourth, and Fourteenth Amendment rights, and filed a supplemental state

law claim against them for malicious prosecution.

2The complaint initially named Adam Meier as a defendant, but Friedlander was substituted for Meier

when the Kentucky Governor appointed him as the acting Cabinet Secretary for CHFS.

No. 20-5928 Clark, et al. v. Stone, et al. Page 6

The district court dismissed the official capacity claims for declaratory and injunctive

relief for lack of Article III standing. It also dismissed the suit against Stone, Campbell, and

Hazelwood in their individual capacities, reasoning that the defendants were all protected by

absolute and qualified immunity. The court then declined to exercise jurisdiction over the

supplemental state law claim and dismissed it without prejudice.

This timely appeal followed.

III. ANALYSIS

A. The District Court Did Not Err in Dismissing the Official Capacity Claims

for Lack of Article III Standing

We review de novo determinations of a plaintiff’s standing to pursue claims for

declaratory or injunctive relief. Kanuszewski v. Mich. Dep’t of Health & Human Servs.,

927 F.3d 396, 405 (6th Cir. 2019). Here, because the plaintiffs’ suit was dismissed at the

pleading stage we are required to “accept as true all material [factual] allegations of the

complaint.” White v. United States, 601 F.3d 545, 551 (6th Cir. 2010) (alteration in original)

(quotation omitted).

The plaintiffs carry the burden of establishing subject matter jurisdiction. Moir v.

Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). To have Article III

standing the plaintiff must satisfy three elements: (1) “the plaintiff must have suffered an ‘injury

in fact’; (2) that injury must have been ‘cause[ed]’ by the defendant’s conduct; and (3) the injury

must be ‘redress[able] by a favorable decision.’” Bearden v. Ballad Health, 967 F.3d 513, 516

(6th Cir. 2020) (alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

(1992)). At issue in this case is the injury in fact requirement. In cases dealing with declaratory

and injunctive relief plaintiffs “must show actual present harm or a significant possibility of

future harm in order to demonstrate the need for pre-enforcement review.” Grendell v. Ohio

Sup. Ct., 252 F.3d 828, 832 (6th Cir. 2001) (quoting Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d

272, 279 (6th Cir. 1997)).

In order to satisfy the injury in fact requirement of Article III standing the “threatened

injury must be certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).

No. 20-5928 Clark, et al. v. Stone, et al. Page 7

Speculative allegations “of possible future injury are not sufficient.” Id. (quotation omitted).

The Supreme Court has specifically noted that “past exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief . . . if unaccompanied by any

continuing present adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)

(alteration in original) (quotation omitted).

The Clarks sued several CHFS employees in their official capacity, seeking prospective

declaratory relief because they claim that they fear engaging in reasonable corporal punishment

of their children. See Ex parte Young, 209 U.S. 123, 156 (1908) (allowing claims against state

officials “who threaten and are about to commence proceeding . . . to enforce against parties

affected an unconstitutional act.”). Specifically, they challenge 922 KAR 1:330 § 2(5)(f) as

unconstitutional. The challenged portion of the regulation reads as follows: “The following

criteria shall be used in identifying a report of abuse, neglect, or dependency not requiring a child

protective services investigation or assessment . . . Pursuant to KRS 503.110(1), corporal

punishment appropriate to the age of the child, without an injury, mark, bruise, or substantial risk

of harm . . . .” 922 KAR 1:330 § 2(5)(f) (emphasis added). The Clarks suggest that by negative

implication this regulation establishes that any corporal punishment that leaves a “mark”

constitutes evidence of abuse that requires further investigation. They argue that this regulation

violates the Due Process Clause of the Fourteenth Amendment as well as KRS § 503.110(1),

which establishes a parental right to use reasonable corporal punishment on one’s children.

Moreover, they claim that 922 KAR 1:330 § 2(5)(f) too easily enables baseless prosecutions and

therefore chills their ability to use corporal punishment on their children without fear of being

investigated for abuse.

The district court correctly found that the Clarks lack standing to bring this claim.

Existing case law makes clear that their claims are too speculative to satisfy the Article III

standing requirements. In Barber v. Miller, the father of a minor child who had been removed

from his custody after being interviewed by a social worker at school challenged a Michigan

statute that authorized public schools to allow in-school interviews of minor children without

parental consent. 809 F.3d 840, 843 (6th Cir. 2015). This court found that Barber lacked

standing because he “provided no evidence that he ha[d] been threatened with further or repeated

No. 20-5928 Clark, et al. v. Stone, et al. Page 8

removals of [his child] or future proceedings in family court.” Id. at 848. We found that

“Barber’s allegations fail[ed] to establish that this scenario certainly impends.” Id. at 849.

Indeed, though there was even a follow-up visit from a social worker after the minor had been

returned to his father’s custody, this court found that the risk of future harm from the statute was

too speculative to confer standing. Id.

Similar to the plaintiffs in that case, the Clarks here have failed to demonstrate that their

rights will certainly be violated in the future as a result of the challenged regulation. While the

previous actions of CHFS may be “‘evidence bearing on whether there is a real and immediate

threat of repeated injury.’ . . . However, where the threat of repeated injury is speculative or

tenuous, there is no standing to seek injunctive relief.’” Grendell, 252 F.3d at 833 (quoting

Lyons, 461 U.S at 102). To demonstrate certain future injury the Clarks must show it is likely

that: (1) they will use corporal punishment on one or more of their children that will leave a mark

or visible sign of injury; (2) someone will report the mark to CHFS; (3) CHFS will interpret the

mark as evidence of child abuse; (4) as a result of learning about this mark CHFS will open a

child abuse investigation into the Clarks; (5) the investigation itself will interfere with Jacob and

Genetta Clark’s rights to parent their children as they see fit. 3 This chain of events is simply too

speculative to confer standing. See Grendell at 833 (finding that a four-step chain of events was

too attenuated to demonstrate injury in fact). Here, there has been no sign that CHFS will further

investigate the Clarks and they have not demonstrated the aforementioned chain of events is

sufficiently certain to occur such that future injury is certainly impending.

The Clarks’ argument that their parental rights have been chilled due to fear of false

prosecution for child abuse is also unavailing because they have failed to demonstrate false

prosecution with any level of certainty. See White, 601 F.3d at 553–54 (finding that chicken

breeders challenging anti-cockfighting legislation lacked standing where they alleged that they

transported chickens for legal purposes but feared false prosecution for being mistakenly taken to

be transporting illegal fighting gamecocks, because the “threat of injury . . . rest[s] on a string of

3The inquiry does not end at step 4 because “[m]ere investigation by authorities into child abuse allegations

without more . . . does not infringe upon a parent’s right to custody or control of a child.” Kottmyer v. Maas,

436 F.3d 684, 691 (6th Cir. 2006).

No. 20-5928 Clark, et al. v. Stone, et al. Page 9

actions the occurrence of which is merely speculative”). While there are instances in which

“chill” is sufficient to establish an injury in fact, the Supreme Court has explicitly required that

the “[challenged] government power [be] regulatory, proscriptive, or compulsory in nature, and

[that] the complainant was either presently or prospectively subject to the regulations,

proscriptions or compulsions.” Laird v. Tatum, 408 U.S. 1, 11 (1972). The regulation the Clarks

are challenging is neither proscriptive nor compulsory. The Clarks argue that the statutory

language “[t]he following criteria shall be used in identifying a report of abuse, neglect, or

dependency not requiring a child protective services investigation or assessment: . . .”

demonstrates that this regulation goes beyond being internal guidance for CHFS workers. They

are wrong. The challenged “mark” provision is one factor for CHFS workers to consider, and

the guideline simply suggests that corporal punishment that does not result in a mark is

appropriate corporal punishment. It does not require mandatory investigation of any report that

does involve a mark, but merely advises that this should be one factor CHFS workers should

consider when deciding whether to open an investigation. Their fear of being wrongfully

prosecuted for lawful corporal punishment is analogous to the subjective fear of the gamecock

breeders in White. The Clarks may well be afraid of future investigations because of this

provision, but “the mere subjective fear that [they] will be subjected again to an allegedly illegal

action is not sufficient to confer standing.” Hange v. City of Mansfield, 257 F. App’x 887, 891

(6th Cir. 2007).

Because standing is a threshold issue and the Clarks have failed to satisfy their burden of

establishing subject matter jurisdiction, we affirm the district court’s dismissal of the official

capacity claims.

B. The District Court Did Not Abuse Its Discretion When It Decided not to

Convert the Rule 12(c) Motion into a Motion for Summary Judgment on the

Individual Capacity Claims

Both the Clarks and the individual capacity defendants attached and referred to

documents outside of the pleadings in their motions. The Clarks therefore argue that the district

court erred by not converting the Rule 12(c) motion for judgment on the pleadings into a Rule 56

motion for summary judgment because they allege it considered some of the defendants’

documents but not the Clarks’.

No. 20-5928 Clark, et al. v. Stone, et al. Page 10

We review the district court’s procedural decision not to convert the defendant’s Rule

12(c) motion into a motion for summary judgment for an abuse of discretion. See Bennett v. City

of Eastpointe, 410 F.3d 810 816 (6th Cir. 2005). Federal Rule of Civil Procedure 12(c) requires

a court to convert a motion for judgment on the pleadings to a summary judgment motion “where

matters outside the pleadings are presented to and not excluded by the court.” Notwithstanding,

documents attached to the pleadings are considered a part of the pleadings and may therefore be

“considered without converting a motion to dismiss into one for summary judgment.” Com.

Money Ctr. Inc., v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007); see also Kreipke v.

Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015) (“In reviewing a motion to dismiss the

Court ‘may consider the [c]omplaint and any exhibits attached thereto, public records, items

appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long

as they are referred to in the [c]omplaint and are central to the claims contained therein.’”

(quoting Bassett v. Natl. Collegiate Athletic Ass’n., 528 F.3d 426, 430 (6th Cir. 2008))).

The district court listed numerous documents submitted outside of the pleadings by both

parties but chose not to consider most of them. Of the seven attachments submitted by the

defendants, it found that it could consider three of them without converting the motion into one

for summary judgment: the CHFS records, color photos of N.C.’s arms, and the video recordings

of the family court hearings. It explicitly stated that it could consider these exhibits because they

“pertained to the underlying abuse cases,” without which the Clarks would have no claims.4 The

Clarks claim that the court should have treated their own submitted documents similarly because,

they argue, many of them also pertained to the abuse cases. Specifically, they suggest that the

affidavit of Moore speaks to the hostility towards the plaintiffs’ religious beliefs, and that the

affidavit of Jacob reaffirmed most of the factual allegations of the complaint.

The three documents examined by the district court all merely corroborate the facts

alleged in the Clarks’ complaint. In that complaint the Clarks alleged, amongst other things, that

a child abuse investigation took place, that a photo was taken of N.C.’s arm, and that they

participated in a hearing related to this investigation. The three exhibits considered by the

4Courts may take judicial notice of the proceedings of other courts of record. See Rodic v. Thistledown

Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980).

No. 20-5928 Clark, et al. v. Stone, et al. Page 11

district court all speak to the existence of that investigation and the events that took place. This

is how they “pertain to the underlying abuse cases.” The district court did not consider them as

evidence of whether the Clarks’ First, Fourth, and Fourteenth Amendment rights had been

violated.

By contrast, the affidavits of Moore and Clark that were submitted by the plaintiffs

pertain to the First, Fourth, and Fourteenth Amendment claims at issue in this case. They

contained potentially relevant information about religious animus, perjury, and home searches—

all pertinent facts for proof of the legal claims in this case— but did not speak to the underlying

abuse cases directly. The same is true for the other documents submitted by defendants, which

included redacted domestic violence records related to the Clarks, the affidavit of Judge Embry,

an affidavit from Assistant County Attorney Durham, and the CHFS standards of practice,

because those documents were offered to refute the legal claims in the instant case, not to

provide a factual background for the underlying abuse cases themselves. Because the court did

not consider these other documents and instead limited its consideration to only those submitted

documents that pertained directly to the facts of the underlying abuse cases, it did not abuse its

discretion by declining to convert the motion to one for summary judgment.

“If we find no abuse of discretion in the district court’s procedural decision, we review

the decision substantively.” Bennett, 410 F.3d at 816. As such, we must now consider whether

dismissal on the pleadings was correct.

C. The District Court Did Not Err in Dismissing the Individual Capacity Claims

1. Standard of Review

As discussed, the district court dismissed the individual capacity claims on the pleadings

under Federal Rule of Civil Procedure 12(c). This court reviews a judgment on the pleadings

under the same de novo standard we apply to 12(b)(6) motions for dismissal. Com. Money Ctr.,

508 F.3d at 336. To survive a motion to dismiss a complaint must contain sufficient facts to

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007).

No. 20-5928 Clark, et al. v. Stone, et al. Page 12

We “construe the complaint in the light most favorable to the nonmoving party, accept

the well-pled factual allegations as true, and determine whether the moving party is entitled to

judgment as a matter of law.” Comm. Money Ctr., 508 F.3d at 336. We need not, however,

accept as true the “plaintiff’s legal conclusions or unwarranted factual inferences.” Id.

Furthermore, this court may take judicial notice of public records, and we are not required to

accept as true factual allegations that are contradicted by those records. Bailey v. City of Ann

Arbor, 860 F.3d 382, 387 (6th Cir. 2017).

2. Absolute Immunity

As an initial matter, we note which of the defendants’ actions are not at issue here due to

the doctrine of absolute immunity. As the district court held, Stone is absolutely immune for

filing the initial abuse petitions on December 19 before Judge Embry because social workers are

given absolute immunity for initiating judicial proceedings. Rippy ex rel. Rippy v. Hattaway,

270 F.3d 416, 421 (6th Cir. 2001). Similarly, Stone’s discussion and preparations of those

petitions in conjunction with Assistant County Attorney Durham are also protected. Holloway v.

Brush, 220 F.3d 767, 774–75 (6th Cir. 2000) (en banc). Any statements given under oath at that

time or at subsequent court proceedings are shielded by absolute immunity. Barber, 809 F.3d at

844.

3. Qualified Immunity

The district court analyzed the remaining investigatory actions, including the home visits

and subsequent proceedings, undertaken by Stone, Campbell, and Hazelwood under a qualified

immunity framework. In the Sixth Circuit, when a defendant invokes qualified immunity it

becomes the plaintiff’s burden to demonstrate: (1) that the defendant violated a constitutional

right and (2) that this right was clearly established at the time of the alleged violation. Id. If the

court finds that the plaintiff’s right was not clearly established, we can start with the second

factor and do not “need to determine whether the alleged conduct was in fact unconstitutional.”

Schulkers v. Kammer, 955 F.3d 520, 532 (6th Cir. 2020) (citing Pearson v. Callahan, 555, U.S.

223, 236–43 (2009)). When a qualified immunity defense is asserted at the pleading stage, we

have historically found that the inquiry should be limited to the “clearly established” prong of the

No. 20-5928 Clark, et al. v. Stone, et al. Page 13

analysis if feasible. See Barber 809 F.3d at 844; Lyons v. City of Xenia, 417 F.3d 565, 582 (6th

Cir. 2005) (Sutton, J., concurring).

In the qualified immunity context, a right is considered clearly established when existing

precedent has placed the question “beyond debate” and “any reasonable official in the

defendant’s shoes would have understood that he was violating [the right]”. Schulkers, 955 F.3d

at 533 (quotation omitted). “When determining whether the right is clearly established, ‘we look

first to decisions of the Supreme Court, then to our own decisions and those of other courts

within the circuit, and then to decisions of other Courts of Appeal.’” Barber, 809 F.3d at 845

(quoting Andrews v. Hickman Cnty., 700 F.3d 845, 853 (6th Cir. 2012)).

4. Fourteenth Amendment Claims

The Clarks argue that the defendants violated their substantive due process rights under

the Fourteenth Amendment by depriving them of their parental liberty interest in disciplining

their children. They assert that the no discipline order interfered with their right to use

reasonable corporal punishment on their children. The defendants suggest that they are entitled

to absolute immunity for the court order because any deprivation of rights stemming from that

order was perpetrated by the juvenile courts, not the defendants. They also argue that they are

entitled to qualified immunity on this issue because there is no clearly established right to use

corporal punishment on children.

When examining a substantive due process claim we apply a two-part test. We first “ask

whether the plaintiff has shown a deprivation of a constitutionally protected liberty interest,”

then we consider “whether the government’s discretionary conduct that deprived that interest

was constitutionally repugnant.” Siefert v. Hamilton Cnty., 951 F.3d 753, 756–66 (6th Cir. 2020)

(cleaned up).

Defendants first argue that they cannot be liable for the no discipline order because to the

extent that the Clarks were deprived of any fundamental rights it was the juvenile court, not the

defendants, that burdened them. The defendants cite to Pittman v. Cuyahoga County

Department of Children & Family Services., where this court held that where the juvenile court

has the ultimate authority to do something, social workers cannot be sued for substantive due

No. 20-5928 Clark, et al. v. Stone, et al. Page 14

process harms because the court, not the social workers, is the cause of the harms. 640 F.3d 716,

728–29 (6th Cir. 2011). However, as the district court recognized, there is a general exception to

this absolute immunity where “the court order is based on a bad-faith child-services

investigation.” Heithcock v. Tenn. Dep’t of Children’s Servs., No. 3:14-CV-2377, 2018 WL

1399586, at *6 (M.D. Tenn. Mar. 20, 2018). Because the Clarks have alleged bad faith on the

part of Stone and the other defendants in how they presented the investigation to the juvenile

court, they have overcome this initial hurdle. We therefore must consider whether they have

asserted a claim for a violation of a clearly established right.

While the plaintiffs cite an ample number of cases that support the general notion that the

Due Process Clause protects the right to bring up one’s children, they point to no case law from

either the Supreme Court or this circuit that indicates there is a clearly established right to use

corporal punishment that leaves marks. Cf. Washington v. Glucksberg, 521 U.S. 702, 720 (1997)

(finding that there is no Fourteenth Amendment Due Process right to assisted suicide); Meyer v.

Nebraska, 262 U.S. 390, 399, 401–02 (1923) (finding that a law restricting foreign-language

education violated the Fourteenth Amendment’s Due Process Clause); Pierce v. the Soc’y of

Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534–35 (1925) (striking down a law

that required all children to attend public school); Ingraham v. Wright, 430 U.S. 651, 681 (1977)

(holding that reasonable “corporal punishment serves important educational interests” and is

therefore permissible in public schools); Troxel v. Granville, 530 U.S. 57, 60, 66, 75 (2000)

(finding that the Due Process Clause protects “the fundamental right of parents to make decisions

concerning the care, custody, and control of their children” and striking down a law that allowed

any person to try to obtain visitation rights over parental objections); Doe v. Heck, 327 F.3d 492,

523 (7th Cir. 2003) (“[T]he plaintiff parent’s liberty interest in directing the upbringing and

education of their children includes the right to discipline them by using reasonable,

nonexcessive corporal punishment.”)

While all of the aforementioned cases consider a general right for parents to determine

how to raise their children, only two consider the use of corporal punishment, and neither finds a

right to use corporal punishment that leaves marks. In Ingraham, the Supreme Court found that

public schools could engage in “limited corporal punishment” without running afoul of the

No. 20-5928 Clark, et al. v. Stone, et al. Page 15

Eighth and Fourteenth Amendments. 430 U.S. at 676. In Heck the Seventh Circuit found that

parents had the “right to physically discipline their children, or to delegate that right to private

school officials.” 327 F.3d at 525–26.

The Clarks next cite to Schulkers as evidence that their right to use corporal punishment

that leaves marks on their children is clearly established within this circuit. In that case, we

found that a parent’s due process rights were violated when a prevention plan limited her ability

to decide when and where she could be alone with her children. 955 F.3d at 540. Notably, in

that case the state found that there were no reasonable grounds to suspect child abuse at the time

the order went into effect. Id.

The case before us is readily distinguishable from cases described above. First, Schulkers

did not involve the use of corporal punishment at all. And, unlike the court there, the juvenile

court in our case put the no discipline order in place after viewing photographs of N.C.’s arm and

considering the evidence presented from the interviews with the Clark children.5 Second, it is

important to note that both Ingraham and Heck allow for the use of reasonable corporal

punishment. Nothing in Kentucky law conflicts with that premise. KRS §503.110 specifically

provides that parents may use physical force when disciplining their children. However,

922 KAR 1:330, the regulation at issue in this case, merely offers guidance as to the limitations

of that right. It allows for the use of “corporal punishment appropriate to the age of the child

without an injury, mark, bruise or substantial risk of harm.” This regulation is perfectly

compatible with the Courts’ holdings in Ingraham and Heck, which contain no indication that

parents have an unlimited right to use whatever force they deem fit to discipline their children.

The right that the Clarks are asserting, that is, the right to use corporal punishment even if it

leaves more than fleeting marks on a child, is not clearly established.

While we can state with ease that there is a general right to use reasonable corporal

punishment at home and in schools, that right is not an unlimited one. The Clarks have offered

5The Clarks allege that the order was fraudulently obtained because they claim that Stone perjured herself

by telling the judge that N.C.’s arms had “lacerations” and “abrasions,” which they claim is false. But, as stated

earlier, Judge Embry provided in her affidavit, that she issued the no discipline order based purely on the evidence in

the photographs and the children’s accounts of how they were disciplined.

No. 20-5928 Clark, et al. v. Stone, et al. Page 16

no authority that imposing corporal punishment that leaves marks is reasonable and is therefore a

protected right. We find, therefore, that the district court did not err in dismissing the Clarks’

Fourteenth Amendment claims.

5. Fourth Amendment Claims

The Clarks contend that Hazelwood, Campbell, and Stone violated their Fourth

Amendment rights when they entered their home without a warrant and without an applicable

exception to the warrant requirement. The defendants contend that they did not violate the

Fourth Amendment because they entered pursuant to the court orders from Judge Embry and

Judge Goff, and they argue that if they did violate the Clarks’ rights they are entitled to qualified

immunity on this claim.

Social workers are generally governed by the Fourth Amendment’s warrant requirement.

Andrews, 700 F.3d at 859. Here, the court order fell well below the requirements of a valid

warrant. The order contains no facts that detail probable cause, nor does it describe with any

particularity the area of the home to be searched. See United States v. Beals, 698 F.3d 248, 264

(6th Cir. 2012) (detailing requirements for valid search warrants). The defendants do not assert

that they entered the home due to exigency or under any other exception to the warrant

requirement. The district court was therefore correct in finding that the entries into the Clarks’

home were Fourth Amendment violations.

Our inquiry then becomes whether a reasonable social worker would have known based

on these particular circumstances that their actions were violating the Clarks’ constitutional

rights. See District of Columbia. v. Wesby, 138 S. Ct. 577, 590 (2018) (“[A] legal principle

[must be settled law, and it must] clearly prohibit the officer’s conduct in the particular

circumstances before him”) (internal citations omitted) (emphasis added); Arrington-Bey v. City

of Bedford Heights, 858 F.3d 988, 993 (6th Cir. 2017) (explaining that plaintiffs must identify a

case with a similar fact pattern to the circumstances at issue in order to show that officers had

sufficient warning about what the law requires). And while it is established that a social worker

does need a warrant to search a home, this court has recognized that the boundaries of that

requirement are not clearly established. Andrews, 700 F.3d at 863 (finding that the law was

No. 20-5928 Clark, et al. v. Stone, et al. Page 17

“hazy” as to whether a social worker could rely on the good faith guidance from a police officer

that entry was lawful because of the “lack of clarity” in the law surrounding social workers and

the Fourth Amendment).

In Kovacic v. Cuyahoga County Department of Children & Family Services., we found

that it was clearly established that a social worker needs a warrant before removing a child from

the home. 724 F.3d 687, 699 (6th Cir. 2013). However, we also recognized that there “remain

unresolved issues related to the Fourth Amendment” and that there was a “lack of clarity”

present in cases surrounding the warrantless entry of social workers into the home. Id. The most

on-point case for the situation here is Andrews, where we found that social workers entering the

home without a warrant do violate the Fourth Amendment, but that they may rely upon the good

faith instruction of police officers about the legality of their entry. 700 F.3d at 863.

As the district court recognized, however, Andrews does not clearly establish that a

reasonable social worker in this situation would know that his conduct was violating the Fourth

Amendment. First, Judge Goff stated in open court that the Fourth Amendment did not fully

apply in this context. While his statement may have been in error, it was not unreasonable for

the defendants to rely upon instruction from a judge to conclude that their conduct was allowed.

More importantly, each home visit by CHFS workers was conducted under the direct provenance

of a court order issued specifically for this case. No such order existed in either Andrews or

Kovacic, and it is significant in our assessment of what a social worker ought to have known

about the legality of their conduct. Given that we have previously found that social workers may

rely on police officers in assessing whether they are allowed to enter a home, it is hard to

imagine that a reasonable social worker would not also believe that they could rely on an order

from a judge, an even more authoritative source on the law. And indeed, at their first home visit

Stone and Campbell were accompanied by a police officer. Despite Jacob’s assertion that his

rights were being violated, Stone and Campbell proceeded with the visit. If nothing else, this

demonstrates an implicit endorsement from the police officer, upon which Stone and Campbell

were entitled to rely. Andrews, 700 F.3d at 864.

Because the presence of the court order meaningfully distinguishes this case from

Andrews, a reasonable social worker in the position of the defendants would not have understood

No. 20-5928 Clark, et al. v. Stone, et al. Page 18

that he was violating the Clarks’ Fourth Amendment rights. Indeed, this case represents

precisely the type of haziness that Andrews alluded to in this area of law. Since the doctrine of

qualified immunity is designed to protect “all but the plainly incompetent or those who

knowingly violate the law,” we agree with the district court that the plaintiffs have not overcome

the qualified immunity defense. Malley v. Briggs, 475 U.S. 335, 341 (1986).6

6. First Amendment Claims

a. Right to Film the Home Visits

The Clarks next assert that the district court erred in dismissing their First Amendment

claim that they were retaliated against for exercising their right to record the defendants during

the home visits. For their part, the defendants claim that this right is nonexistent, or at least is

not clearly established. They further argue that the Clarks are unable to demonstrate a causal

connection between their request not to being recorded and the alleged retaliatory actions.7 We

note that Jacob was able to film the home visits and does not appear to have alleged a retaliatory

action for doing so other than the continuation of the investigation beyond this first visit.

To assert a First Amendment retaliation claim, plaintiffs must establish that: (1) they

engaged in constitutionally protected speech, (2) an adverse action taken against them caused an

injury that would chill a person of ordinary firmness from continuing the speech, and (3) that

action was motivated at least in part by the protected speech. Ryan v. Blackwell, 979 F.3d 519,

526 (6th Cir. 2020). Plaintiffs must “be able to prove that the exercise of the protected right was

6Notably, Jacob was present in court when Judge Goff explained that the order required him to allow home

visits. Though he did request a more detailed explanation of what the social workers would be looking for, Jacob

did not indicate that he would require a warrant before allowing entry to his home, which at least implies that he

may have been consenting to the search. While he did not immediately consent to the search when defendants

arrived for the first home visit, it is not illegal for the defendants to have warned him that refusal to cooperate could

result in Judge Goff finding him in contempt of court to secure his consent. See United States v. Jones, 647 F. Supp.

2d. 1055, 1059 (W.D. Wis. 2009) aff’d, 614 F.3d 423 (7th Cir. 2010) (finding that telling a non-consenting party to a

search that officers would call Child Protective Services to remove the children if she did not consent was a fair

tactic that did not render consent involuntary). Jacob claims that he was coerced into allowing the searches, but any

coercion derives from the court order, not from the conduct of the defendants themselves.

7The defendants attempt to argue that they are absolutely immune from suit for subsequent further

investigation of the Clark family following this first home visit, but this argument is unavailing because social

workers do not enjoy absolute immunity from suit for actions that are investigatory in nature. Holloway, 220 F.3d at

774. Subsequent home visits and abuse investigations fall squarely within this camp.

No. 20-5928 Clark, et al. v. Stone, et al. Page 19

a substantial or motivating factor in the defendant’s alleged retaliatory conduct.” Smith v.

Campbell 250 F.3d 1032, 1037 (6th Cir. 2001).

The Clarks assert that they had a clear First Amendment right to record the home visits

conducted by Hazelwood, Stone, and Campbell. In doing so, they cite to numerous cases from

other circuits and one from the Northern District of Ohio that stand for the proposition that there

is a constitutional right to film an encounter with a police officer. See Glik v. Cunniffe, 655 F.3d

78, 84–86 (1st Cir. 2011) (finding a First Amendment right to film police officers performing

their duties in public spaces); Gericke v. Begin, 753 F.3d 1, 7–10 (1st Cir. 2014) (same); Fields

v. City of Philadelphia, 862 F.3d 353, 359 (3rd Cir. 2017) (same); Turner v. Lieutenant Driver,

848 F.3d 678, 688–90 (5th Cir. 2017) (adopting Glik); ACLU v. Alvarez, 679 F.3d 583, 595–96

(7th Cir. 2012) (allowing the audio recording of the police in public spaces; Smith v. City of

Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (permitting the filming of police conduct

subject to reasonable time place and manner restrictions); Crawford v. Geiger, 131 F. Supp. 3d

703, 714–15 (N.D. Ohio 2015) (concluding that “there is a First Amendment right openly to film

police officers carrying out their duties in public”),8 rev’d on other grounds, 656 F. App’x 190

(6th Cir. 2016). The Clarks reason that because we have held that social workers are held to the

same standard as police officers when it comes to other constitutional rights, the cases listed

above are sufficient to demonstrate that the right to film interactions with a social worker is

clearly established. We disagree.

First and foremost, the Clarks have not cited a single case that applies this right to social

workers. While we have clearly established that a social worker is not excepted from the Fourth

Amendment, this concerns an entirely different set of rights. We should not take the equivalence

of social workers and police officers in one context as determinative in a completely different

area of civil rights law. Doing so would violate our mandate to avoid construing rights too

generally. See Hagans v. Franklin Cnty. Sheriff’s Office, 695, F.3d 505, 508 (6th Cir. 2012)

(citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

8This was the second time the district court considered this case. In Crawford v. Geiger, 996 F. Supp.2d

603, 616 (N.D. Ohio 2014), the court found not only that the right to film a public encounter with the police existed,

but that it was also clearly established. It then reversed itself in part, finding that the right existed, but was not

clearly established.

No. 20-5928 Clark, et al. v. Stone, et al. Page 20

Furthermore, the cases cited by the plaintiffs do not demonstrate that the right to film a

social worker during a home visit was clearly established. A single district court opinion (and

here, a district court opinion emanating from an entirely different district than where the events

at issue took place) is not sufficient to demonstrate that a right is clearly established in this

circuit for purposes of qualified immunity. See Hall v. Sweet, 666 F. App’x 469, 481 (6th Cir.

2019) (“A single district court opinion is not enough to pronounce a right is clearly established

for purposes of qualified immunity.”) And, as the district court recognized, other district courts

in this circuit have found that the right is not clearly established. See e.g., Williams v. City of

Paris, No. 5:15-108-DCR, 2016 WL 2354230, at *4 (E.D. Ky. May 4, 2016); Davis-Bey v. City

of Warren, No. 16-CV-11707, 2018 WL 895394, at *6 (E.D. Mich. Jan. 16, 2018). The

existence of this conflict is itself evidence that the right was not sufficiently established such that

any reasonable social worker in the defendants’ shoes would have clear notice of the right.

Moreover, the Clarks’ arguments fail even if we do not find that the defendants are

entitled to qualified immunity on this issue because they have failed to allege facts that would

demonstrate that a retaliatory action was taken against them that was motivated by their demand

to record the home visits. It is worth noting that despite the protests of the social workers, Jacob

was allowed to film the home visits, and was never subject to arrest or legal sanctions for doing

so.

It is not fully clear what the Clarks are alleging was the retaliatory action for filming the

visits, but it appears that they suggest that the continuation of the investigation beyond the initial

home visit was itself retaliatory. They offer no reason to think that the investigation would have

ended after the first home visit but-for Jacob’s demand to film the visit. Without such evidence,

the Clarks cannot show the necessary causation that their assertion of their alleged right to film

social worker visits is what caused the alleged retaliation. As stated earlier, while we must

accept the plaintiff’s factual allegations as true at the pleading stage, we need not accept their

legal argument that the continuation of the investigation was somehow retaliatory. We therefore

agree with the district court that the Clarks have failed to state a plausible First Amendment

retaliation claim.

No. 20-5928 Clark, et al. v. Stone, et al. Page 21

b. Free Exercise Claim

The Clarks allege that the defendants’ institution of the investigation and continuation of

it were acts of religious hostility that violate the First Amendment. The defendants point out that

prior to the beginning of the investigation they were unaware of the Clarks’ religious beliefs

(a fact uncontested by the Clarks), and further argue that the Free Exercise Clause of the First

Amendment does not excuse the Clarks’ from adhering to otherwise valid child-safety laws.

The Clarks did not allege which law violated their right to religious freedom, so the

district court inferred that they were raising a Free Exercise challenge to the same regulation they

challenged in the official capacity claims. The district court held that Clarks’ allegations were

“severely lacking.” It was correct in finding as much.

The Supreme Court has repeatedly found that although targeting religious beliefs is never

acceptable, a generally applicable law that incidentally burdens one’s free exercise rights will

typically be upheld. See Emp’t Div., Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 878–79

(1990) (listing cases), superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L.

No. 103–141, 107 Stat. 1488, as recognized in Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020).

Laws are not neutral when their purpose is “to infringe upon or restrict practices because of their

religious motivation.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533

(1993). To the extent the plaintiffs are challenging 922 KAR 1:330(2)(5)(f), the same regulation

they challenged in their claims for declaratory and injunctive relief, they have failed to state a

plausible Free Exercise claim.9 In addition to never actually referring to the law itself, the Clarks

do not allege that the law was enacted with the intent of discriminating against religion. See New

Doe Child #1 v. Cong. of U.S., 891 F.3d 578, 591 (6th Cir. 2018) (explaining that the “incidental

effect of suppression is permissible under the Free Exercise Clause absent restrictive intent”).

Furthermore, any challenge to this regulation would likely survive strict scrutiny. If the

object of a law is to restrict practices because of their religious motivation it is “invalid unless it

is justified by a compelling interest and is narrowly tailored to advance that interest.” Church of

9The plaintiffs do not specify the nature of their “religious hostility claim.” The district court construed

their complaint as being against the above-mentioned law. The Clarks do not challenge this characterization in their

brief but generally claim the district court “simply ignored the relevant law.”

No. 20-5928 Clark, et al. v. Stone, et al. Page 22

Lukumi Babalu, 508 U.S. at 533 (emphasis added). Here, the state certainly has a compelling

interest in protecting children from physical abuse, and the regulation is written such that it

explicitly does not prohibit corporal punishment that does not leave marks, bruises, etc. Thus,

the regulation is narrowly tailored and serves a compelling government interest.10

In their complaint the Clarks rely heavily upon the affidavit of former CHFS employee

Moore. First, we reiterate that it was procedurally correct for the district court not to consider

this affidavit. But even if it had considered it, the affidavit does not save the Clarks’ claims. On

the one hand, Moore’s accusations that Jacob was routinely referred to at CHFS as “the crazy

preacher” and that there was “extreme hostility” towards his religious briefs is deeply troubling.

Had the Clarks alleged that they were treated differently from other families who engage in

corporal punishment because of this hostility, their claims would carry significantly more weight.

However, the very affidavit that the Clarks claim gives color to their religious hostility claim also

says it was the practice of the local CHFS “to pursue as abuse, any instance of corporal

punishment,” and “[a]ny instances of corporal punishment that could be corroborated were

considered and written up as abuse.” In other words, even if we take as true that CHFS

employees thought Jacob was a “crazy preacher,” this testimony suggests that it did not color the

decision to investigate since they were pursuing any allegation of corporal punishment as a

potential abuse case. Thus, the Clarks have not even plausibly alleged the law has been

discriminatorily applied against them because of their religious beliefs. See Masterpiece

Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1730 (finding that the disparity in

treatment between bakers who refused to make anti-gay-marriage cakes and a baker who refused

to make a custom wedding cake for a gay wedding reception was an indication of impermissible

religious hostility).

Even taking the Clarks’ allegations as true, as we are required to do when reviewing a

Rule 12(c) dismissal, the Clarks have not stated a claim for a violation of their Free Exercise

rights, and the district court therefore did not err in dismissing this claim.

10We also note that while there is a fundamental right for parents to raise their children as they see fit, there

is no clearly established right to engage in corporal punishment that leaves marks. If such a right exists, and this

regulation is seen to unduly burden it, then the defendants would be entitled to qualified immunity since it was not

clearly established at the time this case took place.

No. 20-5928 Clark, et al. v. Stone, et al. Page 23

7. Supervisory Liability Claims

The Clarks argue that Campbell and Hazelwood should both be liable for the conduct

stemming from Stone’s actions during the investigation and before the juvenile court. While this

court has held that the failure to supervise is actionable, we need not consider the issue here.

Because Stone’s conduct was not impermissible, there is nothing to hold Hazelwood and

Campbell liable for. Because we have found for Stone on all the underlying claims, this claim

for supervisory liability melts away.

IV. CONCLUSION

Because the Clarks lack standing to bring the official capacity claims, the district court

was correct to dismiss the claims for lack of subject matter jurisdiction. Since the Clarks failed

either to state a claim or to overcome qualified immunity on the remaining individual capacity

claims, the court did not err in dismissing them on the pleadings. It was therefore also not error

for the district court to dismiss the pendant state law malicious prosecution claim without

prejudice. We AFFIRM the rulings of the district court.