# Rippy v. Hattaway > Court of Appeals for the Sixth Circuit · November 2, 2001 · 270 F.3d 416 URL: https://www.frixlaw.com/law-library/cases/7006969 ## Case - **Full name:** Travis RIPPY, by next friend, Aaron and Janet RIPPY Aaron Rippy and Janet Rippy v. George HATTAWAY, individually and in his official capacity as Commissioner, Tennessee Department of Children's Services Anne Marie Bryant, individually and in her official capacity as social counsellor of the Tennessee Department of Children's Services and Shirley Bartlett, individually and in his official capacity as field supervisor of the Tennessee Department of Children's Services - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** November 2, 2001 - **Citations:** 270 F.3d 416 - **Precedential status:** Published - **Opinion:** Concurrence by Gilman - **Judges:** Beckwith, Boggs, Gilman - **Cited by:** 116 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7006969 ## How later opinions describe it (automated extraction) - holding that social worker had absolute immunity including for actions taken during the underlying investigation, when that investigation was “intimately related to the judicial phase of child custody proceedings” - rejecting argument that inadequate investigation by social worker that led to a recommendation premised on false information was excluded from immunity ## Opinion text GILMAN, Circuit Judge, concurring. I fully concur with the lead opinion’s analysis regarding the absolute immunity of Bartlett and Bryant, and agree that Hattaway is entitled to qualified immunity. But because I believe that the Supreme Court’s opinion in Crawford-El v. Britton, 523 U.S. 574 , 118 S.Ct. 1584 , 140 L.Ed.2d 759 (1998), overrules the heightened pleading standard that this court created in Veney v. Hogan, 70 F.3d 917 (1995), I write separately to address footnote 3 of the lead opinion. In Veney , this court imposed a heightened pleading standard upon plaintiffs suing a public official when the official asserts the defense of qualified immunity. Veney, 70 F.3d at 921 . The lead opinion concludes that the Rippys did not satisfy this burden with respect to their claim against Hattaway. Although I agree that *426 the Rippys have failed to state a claim against Hattaway, I do not believe that the pleading standard outlined in Veney is the correct rule to apply now that the Supreme Court has expressed its disagreement with court-fashioned pleading requirements not contained in the Federal Rules of Civil Procedure. See Crawford-El, 523 U.S. at 600-01 , 118 S.Ct. 1584 (expressing a preference for allowing district judges to have broad discretion over the management of the lawsuit, as permitted by the Federal Rules of Civil Procedure, rather than “categorical rule[s] imposed by the Court of Appeals.”). In Crawford-El , the Supreme Court rejected the D.C. Court of Appeals’s rule requiring a plaintiff alleging unconstitutional motivation to prove such intent by clear and convincing evidence. The rationale used to strike down this heightened burden of proof calls into question all such court-fashioned rules. For example, the Supreme Court cautioned that the sua sponte creation of procedural rules, without precedential support or authorization by the Federal Rules of Civil Procedure or any other statutory grant of power, “would stray far from the traditional limits on judicial authority.” Id. at 594 , 118 S.Ct. 1584 . Although the Court describes its qualified immunity jurisprudence as an exception to this rule of restraint, it goes on to express its reluctance to allow qualified immunity itself to support a wide array of court-created procedural rules. The Court in fact pointed out that the defense of qualified immunity “did not implicate the elements of the plaintiffs initial burden of proving a constitutional violation.” Id. at 588 , 118 S.Ct. 1584 . In reflecting on its history of restraint, the Court stated that “[i]n the past, we have consistently declined similar invitations to revise established rules that are separate from the qualified immunity defense. We refused to change the Federal Rules governing pleading by requiring the plaintiff to anticipate the immunity defense.... ” Id. at 595 , 118 S.Ct. 1584 . Crucial to the Court’s discussion of judicial restraint in rulemaking was its belief that the Federal Rules of Civil Procedure currently provide a variety of tools that a district court can use to effectively weed out unmeritorious claims, but that do not also unduly restrict a district court from exercising its discretion given the peculiarities and uniqueness of each case. Id. at 598-601 , 118 S.Ct. 1584 . For example, a district court “may order a reply to the defendant’s or a third party’s answer under Federal Rule of Civil Procedure 7(a), or grant the defendant’s motion for a more definite statement under Rule 12(e).” Id. at 598 , 118 S.Ct. 1584 . These and many other rules, rather than a blanket commandment such as that imposed by Veney , are more effective tools “to protect public officials from undue harassment.” Id. at 600, 118 S.Ct. 1584 . The Court concluded its discussion by stating: It is the district judges rather than appellate judges like ourselves who have had the most experience in managing cases in which an official’s intent is an element. Given the wide variety of civil rights and “constitutional tort” claims that trial judges confront, broad discretion in the management of the fact-finding process may be more useful and equitable to all the parties than the categorical rule imposed by the Court of Appeals. Id. at 600-01 , 118 S.Ct. 1584 . Although the lead opinion is technically correct that the factual underpinnings of Crawford-El involved “claims that require proof of wrongful motive,” the Court’s discussion and framing of the issue indicate that the role of appellate courts in rule-making was generally at issue rather than *427 simply the specific challenge to the D.C. Circuit’s decision. This conclusion is supported by the Court’s own formulation of the question presented in Crawford-El : The broad question presented is whether the courts of appeals may craft special procedural rules for such cases to protect public servants from the burdens of trial and discovery that may impair the performance of their official duties. The more specific question is whether, at least in cases brought by prisoners, the plaintiff must adduce clear and convincing evidence of improper motive in order to defeat a motion for summary judgment. Id. at 577-78 , 118 S.Ct. 1584 ; see also Currier v. Doran, 242 F.3d 905, 916 (10th Cir.2001) (“[T]he manner in which the Court framed the ‘broad’ question presented for appeal ... suggests that the Court’s ruling is not limited to the D.C. Circuit’s heightened burden of proof.”). Because Veney , like the rejected rule in Crawfordr-El, was not derived from the Federal Rules of Civil Procedure, nor was its creation by this court permitted by any other grant of authority, I believe that Crawfordr-El invalidated this Sixth Circuit-created rule of heightened pleading. Although one panel of this court is generally prohibited from overruling the holding found in the published opinion of a prior panel, it may do so when an intervening decision of the Supreme Court invalidates the previous decision. See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.1985) (“The prior decision remains controlling authority unless an inconsistent- decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”). I believe that Crawford-El has done just that — invalidating the rule created by Veney . The Tenth Circuit, in Currier , recently set aside a similar rule of heightened pleading that was fashioned by a prior panel of that court, based on the conclusion that “[tjhis court’s heightened pleading requirement cannot survive Crawford-El.” Currier, 242 F.3d at 916 . That court, like our own, acknowledged that “[ajlthough we are generally bound by the prior precedent of this court, there is an exception to this rule when that precedent is superceded by contrary decisions of the Supreme Court.” Id. at 912 . The First and Seventh Circuits have also addressed the impact of Craiuford-El on court-created rules of heightened pleading. Although the First Circuit disagrees with my reading of Crawford-El , the Seventh Circuit is in agreement. See Judge v. City of Lowell, 160 F.3d 67, 74-75 (1st Cir.1998) (holding that its heightened pleading requirement for discrimination cases survives Crawfordr-El); Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir.1998) (“Civil rights complaints are not held to a higher standard than complaints in other civil litigation.”); see also Currier, 242 F.3d at 915-16 (criticizing the analysis and conclusion of the Judge case). Accordingly, I would evaluate the Rippys’ claim against Hattaway under the notice-pleading standard as outlined in Rule 8 of the Federal Rules of Civil Procedure rather than under the higher standard described by Veney . The Rippys’ complaint, however, even under Rule 8’s less stringent pleading requirement, still fails to state a claim against Hattaway. We need not, for example, “accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Indeed, the Rippys’ inclusion of Hattaway is at best cursory, and their assertions of unconstitutional acts on his part as Commissioner of the Tennessee *428 Department of Children’s Services are just that — legal conclusions lacking any factual support. This is insufficient even under a more liberal pleading standard. I therefore concur in the lead opinion’s dismissal of the complaint against Hattaway. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7006969. Public record. Not legal advice.