Petition for Writ of Certiorari — Hoffman v. Harris
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QUES ees eee
FILED
931044 DE 20 1%
NO.
in The
SUPREME COURT OF THE UNITED STATES
October Term, 1993
AN HOFFMAN PETITIONER
V.
TAMMY D. HARRIS, INDIVIDUALLY;
COLLEEN WEST, INDIVIDUALLY;
MELISA HOFFMAN, INDIVIDUALLY;
COMMONWEALTH OF KENTUCKY
CABINET FOR HUMAN RESOURCES RESPONDENTS
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
¢
PETITION FOR WRIT OF CERTIORARI
WILLIAM C. JACOBS
Petitioner's Counsel of Record
173 North Limestone Street
Lexington, Kentucky 40507
(606) 255-2464
PEP OEE
So OTR e ers SEP OT RIT =
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’
QUESTIONS PRESENTED FOR REVIEW
1. Is the 11th Amendment a bar to a federal court
§ 1983 action for prospective injunctive relief because the
complaint named the state agency as the §1983 defendant
rather than naming an official of that agency in his or her
official capacity?
2. Is a private citizen, answerable under 42 U.S.C.
§ 1983, as acting under color of state law when she acted
together with or obtained significant aid from two state
social workers to deprive the §1983 plaintiff of his
constitutionally protected liberty interest in the physical
custody of his child by invoking a statute, challenged by the
§ 1983 plaintiff as being procedurally defective under the
Due Process Clause under principles in this Court's opinion
of Zinermon v. Burch?
3. Where a §1983 Plaintiff claims that a §1983
defendant/private citizen acted together with and obtained
significant aid from two co-defendant/state social workers
to invoke a statute, challenged by the Plaintiff as being
unconstitutional, must the court decide whether the statute
is constitutional before it can adjudge whether the private
citizen is a state actor for purposes of §1983?
4. is the Due Process Clause offended by a state
statute that, without regard to whether a pre-deprivation
hearing is feasible, authorizes a court to issue an ex parte
order to deprive a parent of his constitutionally protected
liberty interest in the physical custody of his child?
5. Do state social workers, sued in their individual
capacities, enjoy absolute prosecutorial immunity from
answering in §1983 damages for seeking and obtaining an
ex parte court order that deprived the §1983 plaintiff of his
14th Amendment protected liberty interest in the physical
custody of his child?
ii
QUESTIONS PRESENTED FOR REVIEW (continued)
6. If state social workers, sued in their individual
Capacities, enjoy absolute prosecutorial immunity from
answering in §1983 damages for seeking and obtaining an
ex parte court order that deprived the § 1983 plaintiff of his
14th Amendment protected liberty interest in the physical
custody of his child, is that absolute prosecutorial immunity
lost either because the social workers are statutorily
restricted to performing investigatory functions only, or
because they knew or should have known that jurisdiction
over child custody lay with a court other than the court
where they sought and obtained the ex parte order?
Dera ot .
rn
me
are
TER ER CREO Eee o> OE ERR OCR MR RI Sm
iii
PARTIES
The caption of the case in this Court contains the
names of all parties.
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW .........-.-.-
.... PPerrreerererererreerrrerrr i
TABLE OF AUTHORITIES .... 2... eee eee eens
OPINIONS BELOW .... 1. eee ee ee eee eens i
SUPAGDICTION 2 nc ccc ccc ccc c recess rssescess i
U. S. CONSTITUTIONAL PROVISIONS INVOLVED ....
FEDERAL STATUTEINVOLVED ........ 55 eee eues
STATE STATUTES INVOLVED .... 1... ee ee eee ees
STATEMENT OF THE CASE ..... 1... cece eee e eee
REASONS FOR GRANTING THE WRIT ........----
CONCLUSION .. ccc ccc cece r cere eres recsens
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Vv
TABLE OF AUTHORITIES
Cases:
Alabama v. Pugh.
ei aed do 6 eae aed aah ees
Baker v. Racansky,
OB7 F.28 163 Gee Cir. 1GGS) 2. ww ccc cc cccce
Buckley v. Fitzsimmons,
509 U.S. _, 125 L.Ed.2d 209,
CUD BONED cc ccc ccc cccccese 5
Burns v. Reed,
500 U.S. __, 114 L.Ed.2d 547,
SUE Ge CU OUEENED Se cccccccccsceccss
Corey v. White,
457 U.S. 85, 72 L.Ed.2d 694,
in w+ ccieegeeeenieseces
Czikalla v. Malloy,
649 F.Supp. 1212 (D.C. Colo., 1986) .........
Doe v. County of Suffolk,
494 F.Supp. 179 (E.D.N.Y. 1980) ...........
Doe v. Hennepin County,
858 F.2d. 1325 (8th Cir. 1988) .............
Ex Parte Young,
209 U.S. 123, 52 L.Ed. 714,
i 4s v6 ee eens eeeuceees
Forrester v. White,
SPEC scoccceueesececeies
vi
Green v. Mansour,
474 U.S. 64, 88 L.Ed.2d 371,
106 S.Ct. 423, reh den,
474 U.S. 1111, 88 L.Ed.2d 933,
ee 8,9
Hafer v. Melo,
502U.S.__,, 116 L.Ed.2d 301,
ee es es ide eee e 8
Hodorowski v. Ray,
844 F.2d 1210 (5th Cir. 1988) ................ 16
Imbler v. Pachtman,
424 U.S. 409, 47 L.Ed.2d 128,
creck i ceteeeecedeceses 17
J.H. v. Commonweat!th,
Cabinet for Human Resources,
Ky.App., 767 S.W.2d 330 (1988)............... °
Johnson v. Correll,
Teg Gs Ue OU CUD cc cccccctcccesecee ©
Kentucky v. Graham,
473 U.S. 159, 87 L.Ed.2d 114,
SP Dg cc cbcsccoccecesooes 7,8
Lee v. Patel,
564 F.Supp. 755 (E.D.Va., 1983) ..............., 4
Los Angeles v. Lyons,
461 U.S. 95, 75 L.Ed.2d 675,
Ce .
Lugar v. Edmondson Oil,
457 U.S. 922, 73 L.Ed.2d 482,
UGS B.CR. SFOS (UGSR 2 ww ccc ccccccccs 5, 11-13
ls
:
'
;
vii
Martin v. Supreme Court of State of N.Y.,
644 F.Supp. 1537 (N.D.NY, 1986) .............. 4
Meyers v. Contra Costa County
Department of Social Services,
812 F.2d 1154 (9th Cir. 1987)... 2... ee ee eee 16
Port Auth. Trans-Hudson v. Feeney,
495 U.S. 299, 109 L.Ed.2d 264,
CUO GB.Ge. COBB CIGD occ ccc ccc cccccccccesss 8
Rinderer v. Delaware County
Children and Youth Services,
703 F.Supp. 358 (E.D.Pa. 1987) ..........55-- 16
Roudybush v. Zabel,
813 F.2d 173 (8th Cir. 1987) ............. 12,13
Salyer v. Patrick,
874 F.2d 374 (6th Cir., 1989) .......... 4,5, 14-16
Santosky v. Kramer,
455 U.S. 745, 71 L.Ed.2d 599,
2 to]. ee 11
Snell v. Tunnel,
920 F.2d 673 (10th Cir. 1990)... . 2... eee ee eee 15
Spielman v. Hildebrand,
873 F.2d 1377 (10th Cir. 1969)..........2566. 15
Stump v. Sparkman,
435 U.S. 349, 66 L.Ed.2d 331,
98 S.Ct. 1099 (1978) ... 2... ec eee 18, 19
Taylor v. Gilmartin,
686 F.2d 1346 (10th Cir. 1982)............ 12,13
Whittington v. Milby,
928 F.2d 188 (6th Cir.,
cert. denied, 112 S.Ct. 236, 1991) ..........465. 6
viii
Will v. Michigan Dept. of State Police,
491 U.S. 58, 105 L.Ed.2d 45,
109 S.Ct. 2304(1989) ...........
Zinermon v. Burch,
494 U.S. 113, 108 L.Ed.2d 100,
110 S.Ct. 976 (1990) ............
U. S. Constitutional Provisions:
Federal Statutes:
20 U.S.C. SUSE) 2. wc cr ccacvees
Ge Wee SUGSS cc ccc ccccvccceces
State Statutes:
SP OU UEE UP cc ce cesccccseces
ee
FU EUs ccc ccccccccecens
KRS 620.060(4)...........0e ees
) | ere re eee
be pede x, 1, 18
soos & > Ve VO
Seeees xi, 5, 18
‘eeees xi, 5, 18
xii, 1-5, 10, 11
ix
OPINIONS BELOW
The Opinion of the United States Court of Appeals
for the Sixth Circuit, in appeal No. 92-6161, rendered
September 21, 1993, is unreported. (Appx. 1a-8a).
The Opinion of the U. S. District Court for the
Eastern District of Kentucky at Lexington, No. 91-526,
dismissing the counterclaim of Respondent, Hoffman,
entered February 5, 1992, is unreported. (Appx. 37a-42a).
The Opinion of the U. S. District Court for the
Eastern District of Kentucky at Lexington, No. 91-526,
granting, inter alia, summary judgment to Respondents,
entered June 25, 1992, is unreported. (Appx. 14a-35a).
The Opinion of the U. S. District Court for the
Eastern District of Kentucky at Lexington, No. 91-526,
denying Petitioner's Rule 56 motion, entered August 19,
1992, is unreported. (Appx. 10a-1 2a).
JURISDICTION
The U.S. Court of Appeals for the Sixth Circuit
issued its opinion on September 21, 1993. This Petition is
filed within 90 days after the entry of the Judgment of the
Court of Appeals on September 21, 1993.
The jurisdiction of this Court to review the opinion
and judgment of the is U.S. Court of Appeals for the Sixth
Circuit is invoked pursuant to 28 U.S.C. §1254(1).
x
U. S. CONSTITUTIONAL PROVISIONS INVOLVED
ELEVENTH AMENDMENT
Suits against states; Restriction of judicial powers. The
Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subject of any Foreign
State.
FOURTEENTH AMENDMENT
Section 1. _... nor shall any State deprive any person of
life, liberty, or property, without due process of law;... .
FEDERAL STATUTE INVOLVED
42 U.S.C. §1983
Every person who, under color of any statute, ordinance,
custom or usage of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen
of the United States or any other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
Suit in equity or other proper proceeding for redress. For
the purposes of this section, any Act of Congress applicable
exclusively to the District of Columbia shail be considered
to be a statute of the District of Columbia.
STATE STATUTES INVOLVED
KRS 610.010(1)
(1) Unless otherwise exempted by KRS Chapters 600 to
645, the juvenile session of the district court of each
county shall have exclusive jurisdiction in proceedings
concerning any child living or found within the county who
has not reached his eighteenth birthday... .
xi
KRS 610.010(6)
(6) Nothing in this chapter shall deprive other courts of the
jurisdiction . . . to determine the custody . . . of children
when such custody . . . is incidental to the determination of
other causes pending in such other courts . . . . This section
shall not work to deprive the circuit court of jurisdiction
over cases filed in the circuit court.
KRS 620.040(1)
Duties of prosecutor, police, and cabinet -- Prohibition as to
school personnel -- Multidisciplinary teams.-- (1) Upon
receipt of a report alleging abuse or neglect by a parent,
guardian, or person exercising custodial control or
supervision, pursuant to KRS 620.030(1) or (2), the
recipient of the report shall forthwith notify the cabinet or
its designated representative, the local law enforcement
agency or Kentucky State Police, and the Commonwealth's
or county attorney of the receipt of the report. The cabinet
shall investigate the matter immediately and within forty-
eight (48) hours, exclusive of weekends and holidays, make
a written report to the Commonwealth's or county attorney
and the local enforcement agency or Kentucky State Police
concerning the action which has been taken on the matter.
if the report alleges abuse or neglect by someone other than
a parent, guardian, or person exercising custodial control or
supervision, the cabinet shall forthwith notify the
Commonwealth's or county attorney and the local law
enforcement agency or Kentucky State Police.
KRS 620.050(4)
All information obtained by the cabinet or its delegated
representative, as a result of an investigation made
pursuant to this chapter, shall not be divulged to anyone
except:
xii
(a) Persons suspected of causing dependency, neglect or
abuse, provided that in such cases names of informants
shall be withheld unless ordered by the court;
(b) The custodial parent or legal guardian of the child
alleged to be dependent, neglected or abused;
(c) Persons within the cabinet with a legitimate interest or
responsibility related to the case;
(d) Other medical, psychological, educational, or social
service agencies, corrections personnel or law enforcement
agencies, including the county attorney’s office, that have
a legitimate interest in the case;
(e) A noncustodial parent when the dependency, neglect
or abuse is substantiated; or
(f) Those persons so authorized by court order.
KRS 620.060(1)
The court for the county where the child is present may
issue an ex parte emergency custody order when it appears
to the court that there are reasonable grounds to believe, as
supported by affidavit or by recorded sworn testimony, that
the child is in danger of imminent death or serious physical
injury or is being sexually abused and that the parents or
other person exercising custodial control or supervision are
unable or unwilling to protect the child. Custody may be
placed with a relative taking into account the wishes of the
custodial parent or any other appropriate person or agency
including the cabinet.
1
STATEMENT OF THE CASE
On November 15, 1991, Petitioner, lan Hoffman
("Hoffman"), commenced this action under 42 U.S.C.
§ 1983 against two social workers, Respondents, Tammy D.
Harris, individually, and Colleen West, individually ("the
social workers") who were employed by the Cabinet for
Human Resources of the Commonwealth of Kentucky.
Hoffman also asserted a §1983 damages claim against a
private citizen, Respondent, Melisa Q. Hoffman, his
estranged wife. He named Respondent, Commonwealth of
Kentucky, Cabinet for Human Resources ("CHR"), as a
§ 1983 defendant for the purpose of obtaining prospective
injunctive relief.
On December 4, 1987, the Fayette Circuit Court, a
Kentucky court of general jurisdiction, pursuant to its
jurisdiction to dissolve the marriage of Hoffman and his
estranged wife, had entered an order granting temporary
custody to her, and granted him the right to physical
custody in the form of "liberal visitation” with the infant
child of their marriage, B.H. His physical custody of B.H.
averaged nearly 50 percent of the time, from December 4,
1987, until November 16, 1990.
On November 16, 1990, that Fayette Circuit Court
temporary custody order was still in effect. On that date,
the social workers, acting in concert with and at the behest
of his estranged wife, deprived Hoffman of his 14th
Amendment-protected liberty right to the physical custody
of his child by invoking in Fayette District Court a Kentucky
statute [KRS 620.060(1)] to obtain an ex parte order to
summarily strip him of that right. Because of KRS
610.010(1) & (6), jurisdiction over custody of B.H. lay with
the Fayette Circuit Court rather than the Fayette District
Court.
2
Pursuant to KRS 620.060(1), Harris made oath in
Fayette District Court to obtain the ex parte order of which
Hoffman complains. Harris’ affidavit was, in its entirety, as
follows:
Child is allegedly being sexually abused by
father lan Hoffman. Parents are separated
and father is to have a visit with this child on
11-16-90. Father was found by CHR to have
sexually abused older sibling’ . . . age 6 in
June 1990.
On November 19, 1990, three days after the ex
parte order was obtained, the first interview of the infant,
B.H. was conducted by the Cabinet. Because of the ex
parte order, Hoffman was denied physical custody of B.H.
for several months thereafter.
On January 18, 1991, Hoffman was arrested on sex
abuse charges precipitated by the individual Respondents.
Because local law enforcement did not perceive grounds
for probable cause, the Respondents had enlisted the aid of
a Kentucky State trooper. On April 30, 1991, Hoffman was
acquitted after brief jury deliberations. After acquittal, one
of the social workers stated to Hoffman’s defense counsel,
in words and substance, that the matter was not over, and
that she intended to continue to pursue Hoffman on the
matter. It is because of this threat by the social worker, as
an officer of the CHR, to continue to badger Hoffman, even
. J.H. v. Commonwealth, Cabinet for Human Resources,
Ky.App., 767 S.W.2d 330 (1988), held that evidence that one child
may have been abused will not support a finding that another child in
the same family was abused. No evidence that Hoffman sexually
abused the older sibling was presented.
ana?
3
though he had been acquitted, that Hoffman demanded
prospective injunctive relief against CHR in his Complaint.”
Finally, on December 9, 1992, after protracted
litigation against his estranged wife over custody of B.H.,
Hoffman was awarded permanent legal custody of his child
by the Fayette Circuit Court.
Hoffman claimed in his verified Complaint? (set out
in its entirety at Appx. 43a-51a) that the statute [KRS
620.060(1)] invoked by the individual Respondents is
procedurally defective under the Due Process Clause of the
14th Amendment under Zinermon v. Burch, 494 U.S. 113,
108 L.Ed.2d 100, 110 S.Ct. 975 (1990) (Due Process
Clause requires a pre-deprivation hearing before taking
liberty and property, where State can feasibly do so).
Additionally, Hoffman claimed that the individual
Respondents achieved the deprivation of his constitutionally
protected liberty interest by failing to see to it that the
deprivation did not occur without adequate procedural
protections, notwithstanding the absence of such
safeguards from KRS 620.060(1).
Hoffman further claimed that a pre-deprivation
hearing could have feasibly been provided before depriving
him of his right to custody, that such pre-deprivation
hearing would not have been unduly burdensome in
proportion to the liberty interest at stake, and that the
individual respondents had no reasonable grounds to believe
that B.H. was in danger of imminent death or serious
physical injury or was being sexually abused by Hoffman.
2
See, Los Angeles v. Lyons, 461 U.S. 95, 75 L.Ed.2d 675,
103 S.Ct. 1660 (1983).
3
Respondents filed no affidavits to counter any allegation of
the verified Complaint.
4
Hoffman sought compensatory and punitive damages
from the individual Respondents and demanded a
mandatory injunction against CHR, "its officers, agents,
servants, employees, and attorneys” (Complaint, 431,
Appx. 4a) from invoking the ex parte provisions of KRS
620.060(1), or otherwise undertaking to deprive Hoffman
of his constitutionally protected liberty interest in the
physical custody of his infant child, B.H.
Without benefit of any discovery or supporting
affidavits, on January 15, 1992, the social workers and
CHR moved for summary judgment. On March 2, 1992,
Hoffman’s estranged wife moved for summary judgment.
On June 25, 1992, after briefing by the parties, the
trial court entered its Order and Judgment, inter alia,
granting the summary judgment motions of the social
workers and CHR and Hoffman's estranged wife.
Relying on Salyer v. Patrick, 874 F.2d 374 (6th Cir.,
1989), the trial court decided that the social workers
enjoyed absolute prosecutorial immunity from answering in
damages to Hoffman's §1983 claim.
Relying on Lee v. Patel, 564 F.Supp. 755 (E.D.Va.,
1983) and Martin v. Supreme Court of State of N.Y., 644
F.Supp. 1537 (N.D.NY, 1986), the trial court decided that
Hoffman’s estranged wife was not a “state actor” under
§1983.
Relying on Alabama v. Pugh, 438 U.S. 781 (1978),
the trial court decided that the 11th Amendment barred
Hoffman’s §1983 claim for injunctive relief against the
CHR.
Upon timely appeal, the 6th Circuit Court of Appeals,
like the trial court, declined to address the underlying
question of whether KRS 620.060(1) offended the Due
Process Clause as not requiring a court, before issuing an
ex parte order, to determine whether a pre-deprivation
5
hearing is feasible. Likewise, neither court below addressed
the underlying question of whether the individual
Respondents had violated Hoffman's rights under the Due
Process Clause.
The statutory functions of the social workers are
defined as being wholly investigatory by KRS 620.040(1)
and KRS 620.050(4). Nevertheless, the Court below,
relying on Salyer v. Patrick, supra, and Buckley v.
Fitzsimmons, 509 U.S. _, 125 L.Ed.2d 209, 113 S.Ct.
2606 (1993), held that the social workers enjoyed absolute
prosecutorial immunity from answering in damages under
§1983.
Hoffman by his verified Complaint alleged that the
social workers and his estranged wife “acted in concert”
and “jointly to deprive [him] of his constitutionally protected
liberty right" to the physical custody of his child and that
his estranged wife was “a state actor and acted under color
of state law by reason of having acted together with and
having obtained significant aid from" the social workers to
effect the constitutional deprivation, all by invoking KRS
620.060(1), which is constiutionally defective under the
principles of Zinermon v. Burch, supra. (Complaint, 4413-
17; Appx. 46a-47a).
Relying on portions of Lugar v. Edmondson Oil, 457
U.S. 922, 73 L.Ed.2d 482, 102 S.Ct. 2744 (1982), which
define when a private citizen is not a state actor and not
acting under color of state law, rather than the portions of
Lugar which Hoffman pled and relied upon as defining when
a private citizen /s a state actor, the Court below held that
Hoffman's estranged wife was not a state actor under
§1983.
6
Solely because Hoffman named CHR as the
defendant, rather than naming an official of the CHR in an
official capacity, to obtain prospective iniunctive relief
relying on Whittington v. Milby, 928 F.24 1°38 (6th Cir.,
cert. denied, 112 S.Ct. 236, 1991), which relied upon
Alabama v. Pugh, supra, the court below held that his
injunction claim was barred by the 11th Amendment.
The basis for federal jurisdiction in the court of first
instance is 28 U.S.C. §1343(3) & (4).
7
REASONS FOR GRANTING THE WRIT
issue No. 1: és the 11th Amendment a bar to a federal
court § 1983 action for prospective injunctive relief because
the complaint named the state agency as the $1983
defendant rather than naming an official of that agency in
his or her official capacity?
it was the form used by Hoffman to plead his claim
for prospective injunctive relief which led to its dismissal.
According to Kentucky v. Graham, 473 U.S. 159, 87
L.Ed.2d 114, 105 S.Ct. 3099 (1985), official capacity
actions under §1983 are but another way of pleading the
action against the entity of which an officer is an agent.
Will v. Michigan Dept. of State Police, 491 U.S. 58,
71 n. 10, 105 L.Ed.2d 45, 58 n. 10, 109 S.Ct. 2304
(1989), reaffirmed this Court's position in Kentucky v.
Graham, 473 U.S. at 167, n. 14, that a state official in his
or her official capacity, when sued for injunctive relief,
would be person under §1983 because official capacity
actions for prospective relief are not treated as actions
against the state for 11th Amendment purposes.
This Court granted certiorari in Alabama v. Pugh,
328 U.S. 781, 57 L.Ed.2d 1114, 98 S.Ct. 3057 (1978) for
the sole purpose of dismissing on 1 1th Amendment grounds
@ mandatory injunction claim asserted under the
Constitution against the Alabama Board of Corrections (and
the State of Alabama).
Here, prospective injunctive relief was sought under
$1983 against the Cabinet for Human Resources of the
Commonwealth of Kentucky, “its officers, agents, servants,
employees, and attorneys,” by naming the "Commonwealth
of Kentucky, Cabinet for Human Resources” as a
defendant. The state officials, the social workers, were
sued in their individual capacities for damages only in
reliance upon Hafer v. Melo, 502 U.S. _, 116 L.Ed.2d
301, 112 S.Ct. 358 (1991).
It was solely because of the method employed to
plead the injunction claim against the state agency that the
Court below held that the 11th Amendment barred it. Had
the complaint sought injunctive relief against the Cabinet for
Human Resources by the vehicle of naming the state
officials in their official capacities, rather than seeking that
relief directly against the Cabinet as it did, presumably the
court below would not have ruled that the 11th Amendment
was a bar to the prospective injunctive relief sought.
Alabama v. Pugh seriously conflicts, perhaps
irreconcilably, with the principles of Graham and Wil/. Only
if form is exalted over substance can the holding of
Alabama v. Pugh (prospective injunctive relief may not be
sought in federal court directly against a state agency
because of the 11th Amendment) co-exist with the
principles of Graham (official capacity action is but another
way of pleading an action against an entity of which an
officer is an agent), and Wil// (the 11th Amendment does not
bar federal court §1983 actions for prospective injunctive
relief brought against state officials in their official
capacities).
This Court’s decisions in Corey v. White, 457 U.S.
85, 72 L.Ed.2d 694, 102 S.Ct. 2325 (1982); Green v.
Mansour, 474 U.S. 64, 88 L.Ed.2d 371, 106 S.Ct. 423, reh
den, 474 U.S. 1111, 88 L.Ed.2d 933, 106 S.Ct. 900
(1985); Port Auth. Trans-Hudson v. Feeney, 495 U.S. 299,
109 L.Ed.2d 264, 110 S.Ct. 1868 (1990), although
implicating the 11th Amendment, are inapposite because
the necessary element of the legal fiction of Ex Parte
Young, 209 U.S. 123, 159-160, 52 L.Ed. 714, 28 S.Ct.
441 (1908) was absent, i.e., there were no claims of
constitutionally impermissible conduct by a state official.
re |
9
it is with some trepidation that Hoffman suggests
that it would be appropriate for this Court to revisit the
meaning of the 11th Amendment. If the 11th Amendment
were applied to this case according to its plain language,
the Amendment would be no bar to Hoffman's claim for
prospective injunctive relief against an agency of the state
of his residence. See Green v. Mansour, 474 U.S. at 74,
Brennan, Marshall, Blackmun and Stevens, dissenting.
Hoffman's trepidation acknowledges the immense body of
precedent interpreting and applying the 11th Amendment in
@ manner other than its plain language would require, i.e.,
as being applicable as a bar to federal court actions by a
citizen against the state of his residence.
This Court ought to grant the writ so as to revisit its
non-literal interpretation of the 11th Amendment, or at a
minimum decide whether the legal fiction of Ex Parte Young
requires that form must prevail over substance in federal
court §1983 actions when prospective injunctive relief is
sought against a state agency by turning the decision on
the manner in which the state agency is named in the
complaint.
10
Issue No. 2: /s a private citizen, answerable under 42
U.S.C. §1983, as acting under color of state law when she
acted together with or obtained significant aid from two
state social workers to deprive the $1983 plaintiff of his
constitutionally protected liberty interest in the physical
custody of his child by invoking a statute, challenged by the
§ 1983 plaintiff as being procedurally defective under the
Due Process Clause under principles in this Court's opinion
of Zinermon v. Burch?
issue No. 3: Where a §1983 Plaintiff claims that a §1983
defendant/private citizen acted together with and obtained
significant aid from two co-defendant/state social workers
to invoke a statute, challenged by the Plaintiff as being
unconstitutional, must the court decide whether the statute
is constitutional before it can adjudge whether the private
citizen is a state actor for purposes of § 1983?
issue No. 4: /s the Due Process Clause offended by a state
statute that, without regard to whether a pre-deprivation
hearing is feasible, authorizes a court to issue an ex parte
order to deprive a parent of his constitutionally protected
liberty interest in the physical custody of his child?
These three (3) issues are interrelated: Issue 2‘ asks
if the private citizen was a state actor under §1983, issue
3 asks whether “state actor” status depends upon a
decision by the trial court that the statute challenged by the
§ 1983 plaintiff is actually unconstitutional and Issue 4 asks
whether the challenged statute is in fact unconstitutional.
Neither court below addressed the question of
whether Hoffman's constitutional rights were violated by
Respondents nor did they address the question of the
constitutionality of the statute [KRS 620.060(1)] invoked
*-State actor” as used in this Petition includes the “acting
under color of state law” element of $1983 actions.
11
jointly by the Respondent/private citizen with her co-
Respondent/social workers.
Lugar v. Edmondson Oil, supra, 457 U.S. 922, 73
L.Ed.2d 482, 102 S.Ct. 2744 (1982), the leading case on
private citizen liability under § 1983, summarized its holding,
as follows: "Petitioner did present a valid cause of action
under §1983 insofar as he challenged the constitutionality
of the Virginia statute... ." 457 U.S. at 942. (Emphasis
added).
Lugar clearly held that if the state statue invoked by
the joint action of a private person and state officials is
challenged by the §1983 plaintiff as being constitutionally
defective, “state actor” status of a §1983 private person/
defendant is established. Lugar is not at all clear, however,
that “state actor” status of a $1983 private person/
defendant is dependent upon the “challenged” statute
actually being unconstitutional, although earlier case law
was fairly settled that the statute implicated in Lugar was
unconstitutional,
Hoffman challenged the constitutionality of KRS
620.060(1), as authorizing the issuance of an ex parte
order to deprive a parent of custody regardless of whether
a pre-deprivation hearing is feasible. The statute does not
require the judge to make a determination of whether a pre-
deprivation hearing is feasible before issuing the ex parte
order. It is settled that natural parents have a fundamental
liberty interest in the care, custody, and management of
their child which is protected by the Due Process Clause.
Santosky v. Kramer, 455 U.S. 745, 71 L.Ed.2d 599, 102
S.Ct. 1388 (1982). The statute invoked by the
Respondent/private citizen and her co-Respondent/social
workers is unconstitutional under Zinermon v. Burch, 494
U.S. 113, 108 L.Ed.2d 100, 110 S.Ct. 975 (1990).
12
The Eighth Circuit in Roudybush v. Zabe/, 813 F.2d
173, 177 (8th Cir. 1987), held, relying on its earlier
authorities:
... we have consistently found that Lugar’s
state policy component is met when the
[private] party charged with an
unconstitutional deprivation has acted in
conformity with an allegedly unconstitutional
State statute or well-settled custom.
(Brackets and emphasis supplied).
The Tenth Circuit in Taylor v. Gilmartin, 686 F.2d
1346 (10th Cir. 1982), relying on Lugar, dismissed a §1983
claim noting that the complaint did not allege that the
state’s guardianship statute was constitutionally defective,
and further noted that Lugar, 112 S.Ct. at 2755 n. 21,
limited its holding “to the factual situation where a
prejudgment attachment order is at issue." 686 F.2d at
1355.
if a §1983 plaintiff need only allege that the joint
action of a private person and state officials was pursuant
to a statute which the $1983 plaintiff cha/lenges as being
constitutionally defective in order to allege that the private
person was a "state actor” for purposes of $1983, then
Hoffman’s verified Complaint met that pleading standard.
lf, on the other hand, the subject statute must
actually be unconstitutional before a private person can be
deemed a “state actor” for purposes of §1983, rather than
merely have its constitutionality challenged by the §1983
plaintiff, the trial court cannot escape addressing the
question of the statute’s constitutionality when deciding
"state actor” status of a private person.
Under the “challenged constitutionality" approach,
the opinion below conflicts with this Court’s summary of its
holding in Lugar, and the Eighth Circuit's rule, both set out
13
above. If “actual unconstitutionality” is the standard, for
determining “state actor" status of a $1983 private
person/defendant, then the writ should be granted so that
this Court can hold that the trial court must decide the
constitutionality of the statute invoked before it can adjudge
whether the private citizen is a state actor for purposes of
§1983.
If the Tenth Circuit erred in Taylor v. Gilmartin by
suggesting that the holding of Lugar is limited to the factual
situation where a prejudgment attachment order is at issue,
this Court ought to grant the writ to resolve the conflict in
the circuits. Neither the Sixth Circuit court below nor the
Eighth Circuit in Zabe/ so restricted Lugar's application.
14
Issue No. 5: Do state social workers, sued in their
individual capacities, enjoy absolute prosecutorial immunity
from answering in §1983 damages for seeking and
obtaining an ex parte court order that deprived the §1983
plaintiff of his 14th Amendment protected liberty interest in
the physical custody of his child?
The Sixth Circuit took the "functional approach" to
the immunity defense of Forrester v. White, 484 U.S. 219
(1988) and turned it inside out. That approach was applied
and characterized in Buckley v Fitzsimmons, supra, as an
examination of “the nature of the function performed, not
the identity of the actor who performed it." Buckley, 113
S.Ct. at 2613.
At least the Ninth Circuit, the Sixth Circuit in Sa/yer
v. Patrick, supra, and again in the opinion below, extend
absolute immunity to social workers. When §1983 was
enacted, social workers had no identifiable immunity at
common law. On the theory that the function performed by
the social workers in initiating change of custody
proceedings resembles that of criminal prosecutors in
commeacing criminal proceedings, the Sixth Circuit and the
like-minded circuit mentioned below, extended to social
workers the absolute immunity enjoyed by criminal
prosecutors.
The inquiry of Forrester and Buckley, however, is
whether a state official who enjoyed absolute immunity at
common law when 81983 was enacted -- Forrester
involved a judge and Buck/ey involved a criminal prosecutor
-- continues to enjoy that immunity regardless of the
function performed.
Because the judge in Forrester was engaged in
discharging an employee rather than acting judicially, and
the criminal prosecutor in Buckley was engaged in
investigatory matters and making statements to the press
Lime Pe ees,
Ne ete +
15
rather than prosecuting, each lost the absolute immunity he
otherwise would have enjoyed.
The following federal courts have held that state
social workers whose actions interrupted the custodial
relationship between parent and child did not enjoy absolute
immunity from liability under § 1983:
The Tenth Circuit in Sne// v. Tunnel/, 920 F.2d 673
(10th Cir. 1990), held that Oklahoma social workers who
applied for and obtained an order for conditional protective
custody of children did not enjoy absolute immunity as
§1983 defendants. Their function, like that of the social
workers here was, ". . . to report findings of neglect or
abuse, even those which might indicate a need for
immediate intervention, to other authorities for further
investigation or advocacy in the form of initiation of court
proceedings.” /d., at 690. The Sne// Court, at 690,
specifically distinguished its holding from Salyer v. Patrick,
supra, the case relied on by the Court below.
The Tenth Circuit in Spielman v. Hildebrand, 873
F.2d 1377 (10th Cir. 1989), subjected the absolute rather
than qualified immunity defense to elaborate analysis, /d.,
at 1381-83, to finally conclude that social workers who had
removed a child from pre-adoptive foster parents without a
prior agency hearing were not entitled to absolute immunity
in a §1983 action.
The Eighth Circuit in Doe v. Hennepin County, 858
F.2d. 1325 (8th Cir. 1988), held that county welfare
agency officials were qualifiedly immune from 81983
damages for the removal of children from a family upon
receipt of allegations of abuse.
The Ninth Circuit in Baker v. Racansky, 887 F.2d
183 (9th Cir. 1989), proceeded under the assumption that
social workers who had removed a suspected child abuse
victim from his parents’ physical custody and taken him
16
into temporary protective custody enjoyed only qualified
immunity.
The Court in Czikalla v. Malloy, 649 F.Supp. 1212
(D.C. Colo., 1986), pointed out that social workers have no
mechanism to control their possible misconduct, similar to
the enforcement of the organized bar to which criminal
prosecutors are subject. Citing Doe v. County of Suffolk,
494 F.Supp. 179 (E.D.N.Y. 1980), for its holding that the
actions of a social worker are more like that of a police
officer than a prosecutor. Malloy held that county social
workers who had removed children from their parents’
custody pursuant to state statutes were not entiiled to
absolute immunity in the civil rights action brought against
them by the parents.
The Fifth Circuit in Hodorowski v. Ray, 844 F.2d
1210 (5th Cir. 1988), held that Texas child protective
service workers were not shielded by absolute immunity
from liability in a §1983 action for the temporary removal
of children from their parents’ home without first obtaining
a court order.
The Court in Rinderer v. Delaware County Children
and Youth Services, 703 F.Supp. 358 (E.D.Pa. 1987),
pointed out, at 361, that "[aJithough courts are split, the
majority view is that social workers, unlike prosecutors, do
not enjoy absolute immunity,” citing cases and agreed with
the majority view.
The following two federal courts have held that state
social workers whose actions interrupted the custodial
relationship between parent and child enjoyed absolute
immunity from liability under § 1983:
The Sixth Circuit in Sa/yer v. Patrick, supra, so held.
The Ninth Circuit in Meyers v. Contra Costa County
Department of Social Services, 812 F.2d 1154 (9th Cir.
1987), held that a California social worker whose
17
responsibility included the bringing of dependency
proceedings enjoyed absolute prosecutoria! immunity from
§ 1983liability for initiating dependency proceedings against
a parent suspected of abusing his child.
Imbler v. Pachtman, 424 U.S. 409, 47 L.Ed.2d 128,
96 S.Ct. 984 (1976), held that a state prosecutor who
acted within the scope of his duties in initiating and
pursuing a criminal prosecution and in presenting the state's
case was absolutely immune from a civil suit for damages
under $1983.
Burns v. Reed, 500U.S.__, 114 L.Ed.2d 547, 111
S.Ct. 1984 (1991), heid that a local prosecutor is entitled
only to whatever defense qualified immunity affords him for
purposes of damages liability under §1983 in connection
with his conduct during the investigatory phase of a
criminal case.
Buckley v. Fitzsimmons, supra, applying the
"functional approach” of Burns to look at "the nature of the
function performed, not the identity of the actor who
performed it,” Forrester v. White, 484 U.S. at 299, held
that the §1983 claim against the state prosecutor for
allegedly fabricating evidence and the §1983 claim for
statements of the prosecutor at a press conference were
not claims entitling the prosecutor to absolute immunity.
The conflict between the circuits needs resolution.
18
Issue No. 6: /f state social workers, sued in their individual
capacities, enjoy absolute prosecutorial immunity from
answering in §1983 damages for seeking and obtaining an
ex parte court order that deprived the $1983 plaintiff of his
14th Amendment protected liberty interest in the physical
custody of his child, is that absolute prosecutorial immunity
lost either because the social workers are statutorily
restricted to performing investigatory functions only, or
because they knew or should have known that jurisdiction
over child custody lay with a court other than the court
where they sought and obtained the ex parte order?
Granting the writ will afford this Court the
opportunity to decide under what circumstances absolute
immunity, if it exists, can be lost. This is so because of the
special facts of this case: the social workers went outside
their investigatory duties to obtain an ex parte order from a
court which they should have known lacked the jurisdiction
to issue. See KRS 610.010(1) & (6).
Although judicial officers enjoy absolute immunity for
acts within their judicial role, Stump v. Sparkman, 435 U.S.
349, 55 L.Ed.2d 331, 98 S.Ct. 1099 (1978), that immunity
is lost when the judicial officer acts in the absence of all
jurisdiction.
lf the application by the social workers for the ex
parte order is deemed to be prosecutorial, then that
application was outside their statutory duties as defined by
KRS 620.040(1) and 620.050(4).° As such the principle of
8 Johnson v. Correll, Ky., 332 S.W.2d 843, 845 (1960) held:
Powers not conferred (by statute] are just as plainly
prohibited as those which are expressly forbidden.
When powers are given to be performed in a
specified manner, there is an implied restriction upon
the exercise of those powers in excess of the grant.
19
Stump should apply, and absolute immunity, if it exists, be
lost.
If obtaining the ex parte order is somehow deemed
an investigatory function, then the principle of Burns v.
Reed would apply and the social workers would be entitled
only to whatever defense qualified immunity affords them.
By granting the writ sought here, this Court can
adjudicate for the first time whether state social workers
enjoy the same absolute immunity which prosecuting
attorneys enjoy when acting within the scope of their duties
in initiating and pursuing criminal prosecutions.
There are many zealous as well as over-zealous
social workers abroad in the land. Whether, or under what
circumstances, they can be made to answer for
constitution-offending conduct should be decided this Court
by granting the writ sought.
CONCLUSION
WHEREFORE, Petitioner prays that his Petition for
Writ of Certiorari to the United States Court of Appeals for
the Sixth Circuit be granted to review the decision thereof,
with proceedings pursuant to the Rules of this Court.
Respectfully submitted,
WILLIAM C. JACOBS
173 North Limestone Street
Lexington, Kentucky 40507
(606) 254-9086
ATTORNEY FOR PETITIONER
APPENDIX
FILED
SEP 21 1993
LEONARD GREEN, Clerk
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
NO. 92-6161
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IAN HOFFMAN, )
Plaintiff-Appellant, )
)
v. )
TAMMY D. HARRIS, COLLEEN WEST, )
MELISA HOFFMAN, COMMONWEALTH)
OF KENTUCKY CABINET FOR HUMAN )
RESOURCES )
Defendants-Appellees. )
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
Sixth Circuit Rule 24 limits citation to specific situations. Please see
Rule 24 before citing in a proceeding in a court in the Sixth Circuit. If
cited, a copy must be served on other parties and the Court.
This notice is to be prominently displayed if this decision is reproduced.
la
BEFORE: JONES and NORRIS, Circuit Judges; and
CLELAND, District Judge.”
PER CURIAM. Plaintiff-Appellant lan Hoffman
appeals the summary judgment for the defendants in this
§1983 action. The district court granted the judgment on
immunity grounds, and we affirm.
Hoffman brought suit under 42 U.S.C. $1983
(1988), alleging that Defendants wrongfully acted under
color of state law to deprive him of his constitutionally
protected liberty interest in visitation with his minor
daughter, known as "B.H." Defendant Melisa Hoffman is
the former wife of the plaintiff. The two of them separated
in 1987, at which time she was awarded custody of B.H.
while he received visitation privileges for five nights out of
every two weeks. lan Hoffman was scheduled to have
visitation on November 16, 1990. Shortly before that date,
Melisa Hoffman contacted the Commonwealth of Kentucky
Cabinet for Human Resources ("CHR") and reported that lan
had been sexually molesting B.H.
Defendants Tammy Harris and Colleen West are
social workers for CHR. Acting on Melissa's suspicion,
they obtained from a state court an ex parte order, issued
pursuant to a Kentucky statute, blocking lan Hoffman's
“Honorable Robert H. Cleland, United States
District Judge for the Eastern District of Michigan,
sitting by designation.
2a
visitation.’ Subsequent to the ex parte order, the state
brought criminal charges against the plaintiff, charging him
with sexually molesting B.H. During the time these charges
were pending, Hoffman's visitation rights were for a time
completely eliminated and for a time drastically reduced. A
jury acquitted him of the charges on April 30, 1991.
Hoffman then filed his complaint in this action
against Melissa Hoffman, the two social workers, and CHR.
The defendants moved for summary judgment and both
sides briefed the issues. Hoffman then filed a motion under
Federal Rule of Civil Procedure 56(f) for the court to order
a continuance of the proceedings because more discovery
was needed. The Court denied that motion and granted the
summary judgment motion, finding all the defendants
immune from suit. This timely appeal followed.
The district court's grant of summary judgment is to
be reviewed de novo. Rector v. General Motors Corp., 963
"The state court issued the order persuant (sic) to §
620.060(1) of the Kentucky Revised Statutes Annotated, which
provides:
The court for the county where the child is present
may issue an ex parte emergency custody order
when it appears to the court that there are
reasonable grounds to believe, as supported by
affidavit or by recorded sworn testimony, that the
child is in danger of imminent death or serious
physical injury or is being sexually abused and that
the parents or other person exercising custodial
control or supervision are unable or unwilling to
protect the child. Custody may be placed with a
relative taking into account the wishes of the
custodial parent or any other appropriate person or
agency including the cabinet.
The Kentucky statutes also state, in $620.060(3), that the
emergency custody order shall be effective for no longer than 72
hours, unless a temporary removal hearing with notice to the affected
parent is held. lan Hoffman challenges neither the timeliness nor the
constitutionality of the post-removal hearing in this case.
3a
F.2d 144, 146 (6th Cir. 1992). The question on review of
a summary judgment is "whether the evidence presents a
sufficient disagreement to require submission to a jury or
wheiher it is so one sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242,
251-52 (1986).
The c' strict court held that the social workers, Harris
and West, had absolute immunity from § 1983 liability under
Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989). Following
Salyer, we affirm this conclusion.
Salyer held that family service workers have absolute
immunity in filing juvenile abuse petitions. /d. at 378. The
Salyer immunity derives from the common law absolute
immunity that judges and prosecutors have always had
under §1983, an immunity that ensures they are not
deterred from vigorously performing their jobs as they might
be if they feared personal liability. In Butz v. Economu, 438
U.S. 478 (1978), the Supreme Court extended this
prosecutorial immunity to administrative officials performing
prosecutorial actions. Salyer applied this “quasi-
prosecutorial" immunity to social workers instituting legal
actions.
Salyer does not require, however, that a social
worker has absolute immunity in any role relating to a child
abuse prosecution. In Achterhof v. Se/vaggio, 886 F.2d
826 (6th Cir. 1989), we held that a social worker in an
“investigatory” role receives only qualified immunity from
§1983 actions. The basis for Achterhof is that, when
investigating, the social worker has exceeded the
prosecutorial function and is performing a _ standard
administrative one that receives only the qualified immunity
usually given to government officials. This circuit's
distinction between Sa/yer and Achterhof follows Supreme
4a
Court precedent, including the Court’s recent decision
Buckley v. Fitzsimmons, 113 S.Ct. 2606 (1993). In
Buckley, the Court emphasized the "functional approach” to
determining absolute immunity, which looks to "’the nature
of the function performed, not the identity of the actor who
performed it.’" /d. at 2613 (quoting Forrester v. White,
484 U.S. 219, 229 (1988)). Buckley held that the activities
of searching for clues at the scene of a crime and of making
assertions to the media are functions that are not absolutely
immunized, even for prosecutors themselves. /d. at 2616-
17.
Here, there is no evidence that a genuine issue of
material fact exists regarding .vhether Harris and West fall
under the scope of Sa/yers absolute immunity or
Achterhof's qualified immunity. They fall squarely under
Salyer. The complaint alleges only that the social workers
harmed Hoffman when they “invoked” the Kentucky statute
and when they “testified” against him to receive the ex
parte order to block his visitation. J.A. at 10,11. These
clearly are the sort of actions that Say/er (sic) countenanced
when granting absolute immunity in filing a child abuse
petition. Besides bald assertions that Harris and West were
acting outside of Say/ler's (sic) scope, the plaintiff offers
nothing that would indicate that there is any genuine
question that they were. Say/er (sic) requires us to grant
absolute immunity to the social workers here.
The district court also found immune the estranged
wife, Melisa Hoffman, who contacted CHR with allegations
of sexual abuse of her daughter, on the ground that she
was not a state actor under §1983. We need not even
apply Sa/yer to Melisa Hoffman's function in this case, for
she was not acting on behalf of the state and thus cannot
have violated the Appellant's due process rights. A private
person “may fairly be said to be a state actor” under Lugar
5a
v. Edmondson Oil, 457 U.S. 922, 937 (1982), only if she
has obtained "significant aid" from state officials or if her
conduct is “otherwise chargeable” to the state. This occurs
where the state has exercised “coercive power” over, or
given “significant encouragement” to, the private party.
Blum v. Yaretsky, 457 U.S. 991, 1004 (1992); Simescu v.
Emmet Co. Dep't of Soc. Serv., 942 F.2d 372, 374 (6th
Cir. 1991). Without such limits upon who is a state actor,
"private parties could face constitutional litigation whenever
they seek to rely on some state rule governing their
interactions with the community surrounding them." Lugar,
457 U.S. at 937. Melisa Hoffman presumably knew that
Kentucky law forbids child abuse, and reported her
concerns. As a matter of law, a mother who reports her
suspicions of her daughter's sexual abuse is not a state
actor and therefore cannot be liable under §1983.
The district court further held that the Eleventh
Amendment to the United States Constitution renders CHR
immune from all relief in this §1983 suit. This holding
follows Sixth Circuit law. In fact, we have previously so
held for this particular defendant in another §1983 action.
The Kentucky Cabinet of Human Resources
[sic] was not subject to suit by [Plaintiff]
because a state agency may not be sued in
federal court, regardless of the relief sought,
unless the state has waived its sovereign
immunity or Congress has overriden (sic) it.
Alabama v. Pugh, 438 U.S. 781, 782, 98 S.
Ct. 3057, 57 L.Ed.2d 1114(1978). It is well
settled that "Congress [did not] intend[] (sic)
by the general language of § 1983 to override
the traditional sovereign immunity of the
6a
States.” Quern v. Jordan, 440 U.S. 332,
342, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358
(1979).
Whittington v. Milby, 928 F.2d 188, 193-94 (6th Cir.),
cert.denied, 112 S.Ct. 236 (1991). This holding requires
us to find CHR--sued in its own name in the complaint--
immune from all relief sought.’
IV
Hoffman also asks us to review the district court's
denial of his Rule 56(f) motion to postpone judgment
pending further discovery. Though we review a summary
judgment itself de novo, the district court has wide
discretion in denying Rule 56(f) motions, and we review
such a denial only to determine whether the district court
has abused its discretion and caused substantial prejudice
to a party. Elvis Presley Enterprises v. Elvisly Yours, 936
F.2d 889, 893 (6th Cir. 1991).
Hoffman’s Rule 56(f) motionis (sic) simply a bald
assertion that he needs more time. J.A. 101-103. A mere
assertion that further discovery will reveal a genuine issue
of material fact is insufficient grounds for granting a 56(f)
motion. The moving party has the burden of demonstrating
“why he could not oppose the summary judgment motion
by affidavit and how postponement of a ruling on the
motion would enable him to rebut Appellees’ showing of
the absence of a genuine issue of fact." Emmons v.
2We note that the Appellant did not name an official of CHR
as @ party to his complaint. An official can be sued for injunctive or
declaratory relief when it is alleged that the official violated the
plaintiff's constitutional rights. E£.g., Thiokol Corp. v. Department of
Treasury, State of Michigan, 987 F.2d 376, 381 (6th Cir. 1993); Ex
Parte Young, 209 U.S. 123, 155-56 (1908); cf. Heller v. Doe, 1135S.
Ct. 2637 (1993) (CHR Secretary sued in his own name for due
process and equal protection violations).
7a
McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989); see a/so
Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d
828, 833 (10th Cir. 1986). The district court therefore did
not abuse its discretion in denying the Rule 56(f) motion.
Vv
For the reasons stated above, we have no power to
reach the merits of the alleged § 1983 violation in this case,
as the various named defendants are immune from suit. As
no other reversible error has been shown, we affirm the
judgment of the district court.
Eastern District of Kentucky
FILED
AUG 19 1992
AT LEXINGTON
LESLIE G. WHITMER
CLERK: U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CIVIL ACTION NO. 91-526
IAN HOFFMAN, PLAINTIFF
Vv. ORDER
TAMMY D. HARRIS, ET.AL., DEFENDANTS
This matter comes before the Court on the Motion of
the Plaintiff pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure to Alter, Amend or Vacate the Judgment
entered herein on June 25, 1992, in favor of the
Defendants. The matter is fully briefed and ripe for review
by the Court.
Most of the arguments made by Plaintiff are
rehashed versions of the arguments he put forth in
responding to the summary judgment motions. As the
Court has previously considered these arguments and
concluded that the Defendants were entitled to summary
9a
judgment despite them, it will not review the identical
arguments.
However, the Plaintiff criticizes the Court’s Order
and Judgment on a few additional grounds. As to
Defendant Melisa Hoffman, the Plaintiff argues that contrary
to the Court’s findings, she was a state actor and asserts
that the Court did not examine this allegation in light of
Lugar v. Edmondson Oil, 457 U.S. 922 (1982). Plaintiff
argues that in order to do so, the Court must first consider
the constitutionality of KRS 620.060(1).
The Plaintiff has blatantly mischaracterized the Lugar
holding. Plaintiff argues that Lugar mandates examination
of the constitutionality of the state statute prior to a
determination of whether the state citizen's actions were
properly chargeable to the state. In reality, the Lugar Court
stated that “the first question is whether the claimed
deprivation has resulted from the exercise of a right or
privilege having its source in state authority. The second
question is whether .. . private parties, may be
appropriately characterized as ‘state actors.’" 457 U.S.
939.
Melisa Hoffman's action in reporting her suspicion
that her daughter was being sexually abused did not result
from “the exercise of a right or privilege having its source
in state authority." Her action resulted from her status as
the mother of two children. This is additional support for
the Court's finding that summary judgment in favor of
Melisa Hoffman is appropriate. Plaintiff's argument to the
contrary is without merit.
As to Defendants Harris and West, the Plaintiff
argues that the court failed to address the impact of KRS
620.050(4) upon Plaintiff's argument that Harris and West
acted outside the scope of their duties. Plaintiff argues that
Harris and West divulged the results of their investigation to
10a
a district Court judge, and a district court judge is not one
of the persons to whom such information may be divulged
as specified in KRS 620.050(4), therefore they acted
outside the scope of their duties.
KRS 620.050(4) states, in relevant part, as follows:
All information obtained by the cabinet or its
delegated representative . . . shall not be
divulged to anyone except:
(d) Other medical, psychological, education,
or social service agencies, corrections
personnel or law enforcement agencies,
including the county attorney's office, that
have a legitimate interest in the case; [or] . .
(f) Those persons so authorized by court
order.
To argue that a district court judge may not be the
recipient of such information in the face of a statute which
recognizes that a court may order the same information to
be divulged to others is, at the very least, illogical.
For the foregoing reasons, IT IS HEREBY ORDERED
that the Motion of the Plaintiff pursuant to Rule 56 is
DENIED.
This _19th_ day of August, 1992.
/s/ Kar S. Forester
KARL S. FORESTER, JUDGE
lla
Eastern District of Kentucky
FILED
JUN 25 1992
AT LEXINGTON
LESLIE G. WHITMER
CLERK: U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CIVIL ACTION NO. 91-526
IAN HOFFMAN, PLA'NTIFF
V. R A GMENT
TAMMY D. HARRIS, ET.AL., DEFENDANTS
In accordance with the Memorandum Opinion issued
on the same date herewith, IT IS HEREBY ORDERED as
follows:
1. That the Motion of the Defendant Melisa
Hoffman to Amend her Answer is DENIED;
2. That the Plaintiff's Motion to postpone
consideration of the pending summary judgment motions
pursuant to Fed.R.Civ.P. 56(f) is DENIED;
3. That the Motion of the Defendant Melisa
Hoffman for Summary Judgment is GRANTED and
Judgment is hereby ENTERED in her favor;
12a
:
d
4
4. That the Motion of Defendants Harris, West,
Commonwealth of Kentucky and the Cabinet for Human
Resources (CHR) to Strike the Plaintiff's Response to their
Motion for Summary Judgment is DENIED;
5. That the Motion of Defendants Harris, West,
Commonwealth of Kentucky and CHR for Summary
JUDGMENT is GRANTED and Judgment is hereby ENTERED
in their favor; and
6. All issues being hereby decided, this action is
DISMISSED and STRICKEN from the Court's active docket.
This 25th day of June, 1992.
Karl S. For r
KARL S. FORESTER, JUDGE
13a
Eastern District of Kentucky
FILED
JUN 25 1992
AT LEXINGTON
LESLIE G. WHITMER
CLERK: U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CIVIL ACTION NO. 91-526
\AN HOFFMAN, PLAINTIFF
V. M A M OPINION
TAMMY D. HARRIS, ET.AL., DEFENDANTS
1. INTRODUCTION
This matter is before the Court on various pending
motions brought by several parties to this action. The
pending motions are as follows: 1) Motion of Defendants
Tammy Harris, Colleen West and the Commonwealth of
Kentucky for Summary Judgment; 2) Motion of Defendants
Harris, West and the Commonwealth of Kentucky to Strike
the Plaintiff's Response to their Motion for Summary
Judgment; 3) Motion of Defendant Melisa Hoffman for
Summary Judgment; 4) Motion of Defendant Melisa
Hoffman to Amend Answer; and 5) Motion of the Plaintiff
pursuant to Rule 56(f) of the Federal Rules of Civil
Procedure to Refuse the Application(s) for Summary
14a
Judgment and Order a Continuance for Plaintiff to Complete
Additional Discovery.
Opposing parties have filed responses to each
motion and the various matters are now ripe for a review by
the Court. To proceed though this melange of motions in
the most logical manner, the Court will first consider the
Motion of Melisa Hoffman to Amend her Answer, then turn
to the Plaintiff's Motion Pursuant to Fed.R.Civ.P. 56(f) and
finally address the summary judgment issues.
li. FACTUAL BACKGROUND
lan Hoffman brought suit under 42 U.S.C. §1983,
alleging the Defendants wrongfully acted under color of
state law to deprive him of his constitutionally protected
liberty interest in the physical custody of his child.
Defendant Melisa Hoffman ("Melisa") is the mother of B.H.,
a minor child of lan Hoffman. Defendants Tammy Harris
("Harris") and Colleen West ("West") are social workers
with the Kentucky Cabinet for Human Resources ("CHR").
Melisa was separated from her then-husband Plaintiff
lan Hoffman during November of 1990, the relevant time
period. Melisa had temporary custody of B.H. The Plaintiff
was scheduled to have visitation with B.H. on November
16, 1990.
Prior to the scheduled visitation, Melisa contacted
CHR and reported that lan Hoffman had been sexually
molesting B.H. Thereafter, an ex parte order was obtained
which gave full custody of B.H. to Melisa and allowed
Plaintiff to have only one hour per week of supervised
custody of the child.
In January of 1991, criminal charges were brought
against the Plaintiff accusing him of sexually molesting B.H.
For approximately two weeks, between the time of
Hoffman's initial appearance in Fayette District Court to the
15a
time he waived formal hearing of the charges and the case
was sent to the Fayette County Grand Jury, Plaintiff was
allowed no visitation with B.H. The day after the case was
waived to the grand jury, Plaintiff's visitation with B.H. was
reinstated.
On February 27, 1991, Plaintiff's visitation was
again limited to weekly sessions. On March 8, 1991,
Plaintiff was arraigned on felony charges in Fayette Circuit
Court and the court ordered the elimination of all visitation
pending resolution of the criminal charges. On April 30,
1991, the Plaintiff was acquitted on criminal charges by a
Fayette County jury.
Plaintiff initiated this action on November 15, 1991,
alleging the Defendants violated his rights under the Due
Process Clause of the 14th Amendment and seeking relief
in the form of a declaration that KRS 620.060(1) is
unconstitutional.
ill. MOTION OF MELISA HOFFMAN TO AMEND ANSWER
The Defendant Melisa Hoffman seeks to amend her
answer to include a fourth defense of immunity under
K.R.S. 620.050. No supporting memorandum was
submitted to accompany this Motion and Melisa relies only
upon the authority of Rule 15 of the Federal Rules of Civil
Procedure.
Rule 6(a) of the Joint Local Rules of the U.S. District
Courts of the Eastern and Western Districts of Kentucky
states, in pertinent part, as follows: “Except for routine
motions, . . . each motion shall be accompanied by a
supporting memorandum which complies with the
provisions of this RULE. Failure to do so may be grounds
for denying the motion.”
The Plaintiff objects to the Motion to Amend,
arguing that under the Supreme Court's holding in Foman
16a
Oe te ele Rite nial
’
‘
v. Davis, 371 U.S. 178 (1962), a motion to amend should
not be granted when the amendment would be futile. The
Plaintiff argues that adding this immunity defense would be
futile because the cited statute is a state statute intended
to give immunity to one who in good faith reports
suspected child abuse or neglect, and under Felder v.
Casey, 487 U.S. 131 (1988), a state law may not operate
to immunize a defendant from Section 1983 liability.
The Defendant filed no reply.
The Felder Court held that “a state law that
immunizes government conduct otherwise subject to suit
under §1983 is preempted, even where the federal civil
rights litigation takes place in state court, because the
application of the state immunity law would thwart the
congressional remedy.” Id. at 139 (citation omitted).
Plaintiff's only claim against Defendant Melisa is a
federal one based on Section 1983. Therefore, Melisa
Hoffman's Motion to Amend her Answer must be denied.
IV. PLAINTIFF'S MOTION PURSUANT TO RULE 56(/f)
The Plaintiff moves the Court to postpone
consideration of the pending summary judgment motions,
arguing that no discovery has yet been taken in this action.
In effect, the Plaintiff is asking the Court to review the
motions for summary judgment, the Plaintiff's responses
thereto, and if the Court determines that the Plaintiff has
not set forth specific facts showing a genuine issue for trial,
then to deny the motions and order a continuance to permit
him to obtain additionai discovery.
Defendants Harris and West respond that Rule 56(b)
imposes no requirement on a movant to support a motion
for summary judgment with affidavits or other materials
negating the opponent's claim. They also argue that the
Plaintiff has misconstrued the purpose of Rule 56(f), which
17a
they contend is to allow a party additional time to complete
discovery if he or she is unable to respond to a summary
judgment motion. The Defendants contend the instant
motion is inappropriate because the Plaintiff has set forth no
facts showing that he is unable to rebut the Defendants’
Motion for Summary Judgment. Defendants further argue
that the very fact that the Plaintiff filed a lengthy response
to the Motions for Summary Judgment defeats the
argument that he is unable to respond to the motions.
The Court notes that the Plaintiff has failed to
comply with the requirement of Rule 56(f) to file an affidavit
in order to request a delay in ruling on the summary
judgment motion pending further discovery. Numerous
courts have held that a Rule 56(f) motion may not be
granted in the absence of an affidavit setting forth the
reasons why the affiant is unable to present the facts
justifying a postponement of the court’s consideration of
the summary judgment motion. See Keebler Co. v. Murray
Bakery Products, 886 F.2d 1386(C.A. Fed. 1989), Helmich
v. Kennedy, 796 F.2d 1441 (11th Cir. 1986).
In United States v. Hodges X-Ray, Inc., 759 F.2d
557 (6th Cir. 1985), the court noted that "the provisions of
Fed.R.Civ.P. 56(e) . . . demand that sworn affidavits [be]
submitted.
Additionally, the Sixth Circuit in Emmons _v.
McLaughiin, 874 F.2d 351, 356-57 (6th Cir. 1989)
approvingly cited the following language from Willmar
Poultry Co. v. Morton-Norwich Products, Inc., 520 F.2d
289, 297 (8th Cir. 1975), cert.den. 424 U.S. 915 (1976):
"Rule 56(f) is not a shield that can be raised
to block a motion for summary judgment
without even the slightest showing by the
opposing party that his opposition is
meritorious. A party invoking his protections
18a
must do so in good faith by affirmatively
demonstrating why he cannot respond to a
movant's affidavits as otherwise required by
Rule 56(e) and how postponement of a ruling
on the motion will enable him, by discovery
or other means, to rebut the movant’s
showing of the absence of a genuine issue of
fact. Where, as here, a party fails to carry
his burden under Rule 56(f), postponement of
a ruling on a motion for summary judgment is
unjustified.”
It is clear that Hoffman has not sustained the burden
of demonstrating why he cannot oppose the pending
summary judgment motions. Contrary to the requirement
of Rule 56(f), he has filed no affidavit in support of his
Motion stating why he is unable to oppose the Summary
Judgment Motions. The Court interprets Hoffman’s Motion
as a request that the Court evaluate the summary judgment
motions and his responses thereto and determine if grounds
exist for the Rule 56(f) motion. This is an extraordinary
request which should not be granted.
For the foregoing reasons, Plaintiff Hoffman's Motion
under Rule 56(f) must be denied.
V. SUMMARY JUDGMENT MOTIONS
A. Standards for Summary Judgment
Summary judgment is appropriate if the moving party
establishes that there is no genuine issue of materia! fact
for trial and that he is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett,
477 U.S. 317 (1986). The Court must consider all
pleadings, depositions, affidavits, and admissions on file
and draw reasonable inferences in favor of the party
opposing the motion. Matsushita Elec. Indus. Co. v. Zenith
Radio Coro., 475 U.S. 574 (1986); see Smith v. Hudson,
19a
600 F.2d 60 (6th Cir.), cert. dismissed, 444 U.S. 986
(1979).
Once the movant shows that there is an absence of
evidence to support the nonmoving party’s case, the
opposing party has the burden of coming forward with
evidence raising a triable issue of fact. Celotex Corp., 477
U.S. at 323. To sustain this burden, the opposing party
may not rest on the mere allegations of his pleadings.
Instead, it must set forth specific facts showing that there
is a genuine issue for trial. r . Center v. Cit
Hosp. Ass‘n., 800 F.2d 1129 (6th Cir. 1986).
Ultimately, the standard for determining whether
summary judgment is appropriate is "whether the evidence
presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must
prevail as a matter of law." Booker v. Brown & Williamson
Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)).
Applying these standards, the Court determines that
the Defendants are entitled to summary judgment.
B. Motion of Melisa Hoffman for Summary Judgment
1. Motion
The Defendant Melisa Hoffman moves for summary
judgment on the ground that she is a private citizen rather
than a state actor and therefore cannot be a party
defendant in an action brought under 42 U.S.C. §1983.
Citing Caulder _v. Durham Housing Authority, 401 U.S.
1003 (1971), Melisa argues that to act under color of state
law, a private citizen must derive legal authority or financial
assistance from the state government and that she derived
neither from the Commonwealth of Kentucky.
20a
Defendant Hoffman asserts that her only action was
in reporting her suspicion that her child had been sexually
abused by the Plaintiff to CHR and that a request for relief
from a governmental agency does not constitute state
action.
She also argues that CHR made no move to
intervene in the situation until a third party reported that
B.H. had been sexually abused.
Additionally, Melisa argues that the Plaintiff has
failed to demonstrate that the post-deprivation hearing he
was afforded was insufficient to provide sufficient due
process, a requirement of a Section 1983 claim. Melisa
contends that the Plaintiff has failed to demonstrate that
any harm resulted from the denial of a pre-deprivation
hearing, based upon Zinermon v. Burch, 494 U.S. 100
(1990), which holds that when a predeprivation hearing
would be unduly burdensome in proportion to the liberty
interest at stake a post-deprivation hearing may satisfy due
process.
Finally, Melisa asserts that Hoffman has failed to
show that KRS 620.060(1) is unconstitutional, but argues
that even if the statute is unconstitutional it is inapplicable
because she acted only as a parent in reporting the alleged
abuse and did not act pursuant to KRS 620.060 or any
other statute. As support, Melisa cites the unpublished
opinion of Federal District Judge William Bertelsman, in
Marksberry v. Campbell County Fiscal Court, No. 86-12
(E.D.Ky. Dec. 8, 1986) (order denying summary judgment).
2. Response
In his Response, the Plaintiff argues that Melisa
jointly engaged in unconstitutional acts with state actors
West and Harris and therefore acted under color of state
law for purposes of this § 1983 action. In support of this
argument, Plaintiff relies on the holdings of Lugar v.
21a
Edmondson Oil Co., 457 U.S. 922 (1982), In re Jackson
Lockdown/MCO Cases, 568 F.Supp. 869 (E.D.Mich.S.D.
1983), Heitmanis v. Austin, 899 F.2d 521 (6th Cir. 1990)
and Duncan v. Peck, 752 F.2d 1135 (6th Cir. 1985).
The Plaintiff further argues that because the state
could feasibly have provided a predeprivation hearing which
would not have been unduly burdensome in light of the
Plaintiff's interest at stake, he was entitled to a
predeprivation hearing. Plaintiff relies on Zinermon, supra,
to support his contention that the availability of a post
deprivation is irrelevant to the Plaintiff's due process right
to a predeprivation hearing.
Finally, the Plaintiff argues that KRS 620.060(1) is
unconstitutional because it does not require the court to
make inquiry into whether a predeprivation hearing is
feasible under the particular circumstances of the case.
3. Discussion
There are two elements that must be proved to
constitute a viable action under 42 U.S.C. §1983. An
individual must first show that he or she has been deprived
of a right secured by the Constitution and laws of the
United States. Secondly, he or she must show that the
defendant or defendants acted "under color of any statute,"
42 U.S.C. §1983, of the relevant state in depriving the right
in question. In Flagg Brothers Inc. v. Brooks, 436 U.S.
149, 156 (1978), the Court stated that "most rights
secured by the Constitution are protected only against
infringement by governments.”
it is well-settled that Section 1983 was enacted to
protect individuals against the "misuse of power, possessed
by virtue of state law and made possible only because ae
wrongdoer is clothed with the authority of state law.
Monroe v. Pape, 365 U.S. 167, 184 (1961).
22a
a hel ell Re Sella ame BN lt cen ROS Od cmd er ce TP ny eg italaais. hela
ith tah,
In Lee v. Patel, 564 F.Supp. 755 (E.D.Va. 1983), a
tenant brought an action against a landlord and magistrate,
alleging the two had violated his constitutional rights under
color of state law by virtue of the landlord swearing out a
warrant for the tenant’s arrest. The court held:
If a citizen who has been a victim of a crime,
or believes himself to be the victim of a
crime, is engaged in State action under color
of State law when he swears out a warrant,
then he is also engaged in State action when
he drives on the right hand side of the
highway, or pays his State taxes, or conveys
title to an automobile through the State
Division of Motor Vehicles, or records the
deed to his property, obtains a marriage
license, or probates his will. Most everything
we do in our intercourse with others we do
by virtue of or under authority of State law.
Id. at 760-61.
in v. reme C f f_N.Y., 644
F.Supp. 1537, 1543 (N.D.N.Y. 1986), the court stated: "It
is well established that a private actor’s employment of
available statutory remedies does not convert such private
action into action of the state.”
As the Patel court points out, taking the Plaintiff's
position to its extreme, would make each and every citizen
a state actor by virtue of dozens of daily interactions with
the state.
The Court is of the opinion that Melisa did not
become a state actor when she contacted the Cabinet for
Hume Resources to relete her concerns that her daughter
had been and was in danger of being sexually abused.
23a
Therefore, summary judgment in favor of Melisa
Hoffman should and shall be granted.
B. Motion of Defendants West, Harris and Commonwealth
of Kentucky for Summary Judgment
1. Motion
The Defendants West and Harris claim that they are
entitled to absolute immunity from suit and therefore cannot
be liable for any action which the Plaintiff has alleged as
grounds for his Section 1983 action. The Defendants argue
that despite the style of the complaint against them,
alleging they acted individually as well as officially, the
Plaintiff has made no allegation of acts or omissions
committed outside the scope of their official duties.
Defendants Harris and West argue that in their official
capacities they are entitled to absolute immunity as they
were performing a quasi-prosecutorial function, citing Salyer
v. Patrick, 874 F.2d 374 (6th Cir. 1989).
The Defendant CHR argues that it has Eleventh
Amendment protection and is immune from liability for
damages. It further argues that CHR is not a “person” for
purposes of Section 1983.
Further, the Defendants contend that the Plaintiff
has made no showing that the post-deprivation hearing was
inadequate to protect the Plaintiff's due process rights.
They argue that courts have allowed officials to temporarily
deprive a parent of custody in emergency situations without
benefit of the other parent’s consent or a court order, thus
no violation could have occurred here where there was in
fact the consent of the other parent and a court order.
Defendants next argue that the Plaintiff has not
established a causal connection between the failure of a
pre-deprivation hearing and Hoffman’s injury. Defendants
contend that at a post-deprivation hearing, probable cause
24a
ee ee ee ee ee 2 ee eee ee eee oe er
i
j
was found that Plaintiff sexually abused his daughter.
Citing Lossman v. Pekarske, 707 F.2d 288 (7th Cir. 1983),
the Defendants argue that to show an injury, a plaintiff
must demonstrate that a pre-deprivation hearing would have
prevented the deprivation, which Defendants argue the
Plaintiff cannot show.
As to the Plaintiff's substantive due process claim,
the Defendants argue that they engaged in no conduct
which “shocks the conscience," a necessary element to
such a claim.
Finally, the Defendants argue that the challenged
state statute, KRS 620.060, bears a presumption of
constitutionality and the Court should exercise restraint
prior to making a determination of constitutional deficiency.
2. Response
Plaintiff argues that no discovery has yet been taken
in this action, therefore there are no “facts” in the record.
Thus, the Plaintiff argues, material issues of fact exist
precluding the entry of summary judgment.
The Plaintiff counters the Defendants’ claim of
absolute immunity, citing Hafer v. Melo, 502U.S. __, 116
L.Ed.2d 301 (1991), which holds that state officials are
personally liable for damages in a Section 1983 case based
on official acts if the action is brought against them in their
individual capacities. Further, the Plaintiff argues that the
Defendants are not absolutely immune from liability as KRS
620.040(1) does not authorize CHR workers to undertake
any prosecutorial action. Plaintiff argues that the statute
contemplates that CHR will contact law enforcement or
prosecutors’ offices, allowing one of those entities to
undertake prosecution, rather than the CHR workers
initiating it. Plaintiff alleges that the Defendants Harris and
West did not have probable cause to believe that B.H. was
being abused, the fact that a magistrate or judge issued a
25a
warrant based upon less than probable cause does not
insulate those seeking the warrant.
Plaintiff argues that the Defendants Harris and West
do not have qualified immunity under Harlow v. Fitzgerald,
457 U.S. 800 (1982), which holds that there is no qualified
immunity for an official who violates clearly established
constitutional rights of which a reasonable person would
have known. Plaintiff argues that Harris and West should
have reasonably known that he was entitled to a pre-
deprivation hearing and that such a hearing was feasible.
Hoffman asserts that he is seeking no money
damages from CHR, but only injunctive relief which is not
barred by the Eleventh Amendment.
As to the adequacy of the post-deprivation hearing,
the Plaintiff states that because a pre-deprivation hearing
was feasible and not unduly burdensome, his due process
rights were violated. He cites Zinermon v. Burch, 494 U.S.
113 (1990), which establishes the standards by which the
adequacy of a post-deprivation hearing is evaluated ior due
process purposes and argues that this standard was not
met in his circumstances.
Plaintiff argues that his substantive due process
claim is based upon his “fundamental” liberty right to
custody of his child, rather than upon conduct which
"shocks the conscience.”
Finally, Plaintiff contends that KRS 620.060 is
presumptively unconstitutional because it deprives persons
of protected interests via an ex parte action of the State.
The Plaintiff argues that the Zinermon standard, whereby a
pre-deprivation hearing must be held if feasible, is ignored
by this statute which does not require the Court to even
inquire if a pre-deprivation hearing is feasible. The Plaintiff
also asserts that the standard of proof for deprivation of
26a
ee a ne a
i
i =
custody, "reasonable grounds to believe,” is too low in light
of the liberty interest involved.
Defendants assert in their Reply that the Plaintiff has
not pled and cannot show that he had a clearly established
right to unsupervised visitation. Citing Scrivner v.
Andrews, 816 F.2d 261 (6th Cir. 1987), Defendants argue
that parents has no enforceable right to “meaningful
visitation,” therefore the Plaintiff has suffered no due
process violation.
Defendants also counter the Plaintiff's argument that
they are not authorized to perform quasi-prosecutorial
functions, citing Salyer v. Patrick, supra.
3. Motion to Strike or in the Alternative, Reply of
Defendants Harris, West, Commonwealth of Kentucky and
CHR
Defendants seek an order striking the Plaintiff's
Response to their Motion for Summary Judgment in whole
or in part, arguing that certain statements made in the
Response are inflammatory, prejudicial, impertinent and
scandalous.
Essentially, the Defendants argue that the Plaintiff's
recitation of “facts” is incorrect and inflammatory. They
contend that any reference to Hoffman's arrest and criminal
prosecution for sex abuse charges is irrelevant to this civil
action. Citing no case law, but nominally pursuant to
Fed.R.Civ.P. 12(f), they seek to have his Response stricken
or edited by the Court.
The Plaintiff filed a Response to the Motion to Strike,
arguing that Rule 12(f) refers only to “pleadings” and
“pleadings” are defined under Fed.R.Civ.P. 7\(a) as the
complaint, answer, reply to counterclaim, answer to cross-
claim, a third party complaint and a third party answer.
27a
Courts have widely held that a motion to strike is not
favored and is usually denied unless language in the
pleading has no possible relation to the controversy. See
Chi ic C Ass'n of Michi ; ; Medical
Ass‘n, 617 F. Supp. 264 (D.C. Mich. 1985). Further, the
purpose behind Rule 12(f) is to allow a party to move to
strike affirmative defenses, most often asserted in an
answer or counterclaim. Several courts have held that Rule
12(f) does not apply to motions, see Krass v. Thomson-
CGR Medical Corp., 665 F.Supp. 844 (N.D.Cal. 1987).
The matters objected to are asserted in the Plaintiff's
statement of the facts. This section of the Plaintiff's
Response is preceded by a disclaimer as to the accuracy of
the events and dates asserted. Further, the Defendants
seek to strike portions of the Plaintiff's Response to
Defendants’ Summary Judgment motion, the type of motion
which is not contemplated as a “pleading” for purposes of
Rules 7(a) or 12(f). Therefore, the Defendants’ Motion to
Strike must be denied.
4. Discussion of Summary Judgment Motion
a. Immunity of Harris and West
in Salyer _v. Patrick, supra, the Sixth Circuit
addressed the issue of whether family service workers are
immune from § 1983 liability for investigating and filing
abuse petitions.
The Salyer court determined that workers were
“absolutely immune from liability in filing the juvenile abuse
petition, due to their quasi-prosecutorial function in the
initiation of the child abuse proceedings.” id. at 378;
accord Meyers v. Contra Costa County Dep't of Social
Services, 812 F.2d 1154, 1157 (9th Cir. 1987), cert.
denied, 484 U.S. 829 (1987). The court reasoned that the
social workers were acting as prosecutors in bringing the
child before the court.
28a
However, the court did not reach the question of
whether the social workers were entitled to absolute
immunity in conducting the investigation. That issue was
resolved by the Sixth Circuit in Achterhof v. Selvaggio, 886
F.2d 826 (6th Cir. 1989), wherein the court concluded that
a social worker who begins an investigation of alleged child
abuse is entitled only to qualified immunity. The court
differentiated between those acts which are "intimately
associated with the judicial process ... and duties which
are administrative or investigatory." Id. at 829. Absolute
immunity applies only to the former.
The Achterhof court concluded that the social
worker's action in investigating an allegation of child abuse
was mandated by statute and therefore "an administrative
function not intimately related with the judicial process.”
Plaintiff Hoffman's Complaint alleges Defendants
Harris and West committed the following overt acts:
1) [That they] "invoked the provisions of KRS
620.060(1) to achieve the substantial deprivation of
Plaintiff's constitutionally protected liberty interest .. ."
2) That... at the behest of West and Defendant,
Hoffman, Harris, testified by Affidavit or sworn testimony
to the Fayette District Court that [lan Hoffman was
allegedly sexually abusing a child].
These allegations, taking them in the light most
favorable to the Plaintiff, specify overt actions which are an
initiation of the judicial process. The filing of an Affidavit
in court is an activity intimately associated with the judicial
process. Therefore, none of the allegations in the
Complaint protest of investigatory activity undertaken by
Harris and West. The Plaintiff appears to concede that he
is Not asserting that Harris and West infringed his rights via
investigatory activity.
29a
Rather, he contends that under KRS 620.040(1), the
functions of CHR and its social workers are wholly
investigatory and that Harris and West were acting outside
the scope of their duties by initiating court proceedings.
Therefore, Hoffman contends, they are not entitled to any
immunity, citing Imbler v. Pachtman, 424 U.S. 409 (1976).
Plaintiff further argues that the Salyer case is not on point
because KRS 620.040 was amended after that decision.
KRS 620.040(1), amended with an effective date of
July 13, 1990, states, in pertinent part:
Upon receipt of a report alleging abuse .. .
by a parent. . . the recipient of the report
shall forthwith notify the cabinet [CHR] or its
designated representative. ... The cabinet
shall investigate the matter immediately and
within forty-eight hours . . . make a written
report to the Commonwealth’s or county
attorney and the local enforcement agency or
Kentucky State Police concerning the action
which has been taken on the matter.
The earlier version of the statute, in effect at the
time the underlying facts occurred which are considered in
Salyer, states as follows:
Upon receipt of a report [of abuse] the
county attorney, the Commonwealth's
attorney, the local law enforcement agency
or Kentucky state police, if they are the
recipients of the report, shall forthwith notify
the cabinet or its designated representative
and the Commonwealth or county attorney
of the receipt of the report and its contents
and, if the report alleges abuse, they shall
investigate the matter and within forty-eight
(48) hours make a written report to the
30a
—e eee es
cabinet or its designated representative and
the Commonwealth or county attorney
concerning the action which has been taken
on the matter.
If anything, the earlier statute is more restrictive of
cabinet social workers than the current version. Despite a
stricter standard, however, the Salyer court ruled that social
workers initiating judicial action were entitled to absolute
immunity. Therefore, Plaintiff's argument that Salyer is not
on point is unpersuasive.
In Imbler, supra, the Court set forth the public policy
considerations underlying the necessity of absolute
immunity for prosecutors defending themselves against a
civil action under §1983.
If a prosecutor had only a qualified immunity,
the threat of § 1983 suits would undermine
performance of his duties no less than would
the threat of common-law suits for malicious
prosecution. A prosecutor is duty bound to
exercise his best judgment both in deciding
which suits to bring and in conducting them
in court. The public trust of the prosecutor's
office would suffer if he were constrained in
making every decision by the consequences
of his own potential liability in a suit for
damages. Such suits could be expected with
some frequency, for a defendant often will
transform his resentment at being prosecuted
into the ascription of improper and malicious
action to the State’s advocate.
id. at 424-25.
The Court is of the opinion that Defendants Harris
and West were not acting outside the scope of their duties
as CHR employees hired to protect the interests of
31a
neglected and abused children. The Sixth Circuit has
previously determined that such workers are absolutely
immune from §1983 liability when engaged in quasi-
prosecutorial acts, such as filing a petition with the court
for a hearing. The Court finds that Salyer is controlling
precedent for the decision to be made herein, and that
based upon that case and the facts outlined above, the
Defendants West and Harris are entitled to summary
judgment on the Plaintiff's claim for damages under §1983
as they are absolutely immune for the acts alleged in the
Plaintiff's complaint.
b. Immunity of CHR
The Defendants argue that the Plaintiff is not entitled
to money damages from CHR or the Commonwealth of
Kentucky as such a claim is barred by the Eleventh
Amendment. The Plaintiff does not dispute this, and
asserts that he seeks only declaratory and injunctive relief
against CHR.
The Eleventh Amendment is an “explicit limitation on
federal judicial power, . . . (and) a federal court is without
jurisdiction to hear a claim against an unconsenting state
absent congressional abrogation.” Cowan v. University of
Louisville School of Medicine, 900 F.2d 936 (6th Cir. 1990)
(citations omitted).
The Court noted in Kentucky v. Graham, 473 U.S.
159 (1985) that
{ulniess a State has waived its Eleventh
Amendment immunity or Congress has
overridden it, however, a State cannot be
sued directly in its own name regardless of
the relief sought. Thus, implementation of
state policy or custom may be reached in
32a
federal court only because official-capacity
actions for prospective relief are not treated
as actions against the State.
Id. at 167, n. 14. (citations omitted).
Through his complaint, the Plaintiff seeks declaratory
and/or injunctive relief against the Commonwealth of
Kentucky, CHR and its officers and agents, asserting that
these entities
ought to be mandatorily enjoined from
undertaking to deprive, or depriving Plaintiff
of his constitutionally protected liberty
interest in physical custody of his infant
child, B.H.; further [the Commonwealth of
Kentucky and CHR] ought to be mandatorily
enjoined from invoking the ex parte
provisions of KRS 620.060(1), or otherwise
undertaking to deprive, or depriving Plaintiff
of his constitutionally protected liberty
interest in physical custody of his infant
child, B.H., without affording Plaintiff the
requisite due process required by the 14th
Amendment to the U.S. Constitution,
including but not limited to, a pre-deprivation
hearing...
Plaintiff asserts that the decisions of the Supreme
Court do not preclude a § 1983 injunctive and/or declaratory
ection against a state or state agency, citing Will v.
Michigan Dept. of State Police, 491 U.S. 58 (1989).
Therein, the Court states that "a state official in his or her
official capacity, when sued for injunctive relief, would be
a person under § 1983 because ‘official-capacity actions for
prospective relief are not treated as actions against the
State.’” Id. at (sic)
33a
However, in Alabama v. Pugh, 438 U.S. 781 (1978),
the Court reversed a federal district court's issuance of an
injunction against the State of Alabama and the Alabama
Board of Corrections. The Court held that "[t}here can be
no doubt. . . that suit against the State and its Board of
Corrections is barred by the Eleventh Amendment, unless
Alabama has consented to the filing of such a suit.” Id. at
782.
Moreover, the Plaintiff's reliance upon Will for the
proposition that a State may be sued for injunctive relief is
unfounded. Will merely recognizes that an “official-
capacity” action, that is an action against a state officer in
his or her official capacity, is not barred by the Eleventh
Amendment. !t does not alter the Court’s holding in Pugh
v. Alabama, (sic) supra, that the Eleventh Amendment
protects a State from all types of suits absent state consent
or congressional abrogation of immunity.
Therefore, the Motion of Defendants Commonwealth
of Kentucky and CHR for summary judgment must be
granted and the Plaintiff's claims against them dismissed.
c. Constitutionality of KRS 620.060/(1)
The Supreme Court has consistently reaffirmed the
principle that courts have a duty to avoid deciding a
constitutional issue if the case may be disposed of on non-
constitutional grounds. See Escambia County v. McMillan,
466 U.S. 48 (1984) (per curiam), on remand 748 F.2d
1037 (11th Cir. 1984). Due to the Court’s findings as
outlined above, this case is properly disposed of on non-
constitutional grounds; therefore this Court need not reach
the issue of the constitutionality of KRS 620.060(1).
d. Additional Arguments
As this case will decided on the grounds discussed
above, the Court need not and shall not reach the additional
34a
Wadd 6 es ti ee
ural agen Nib BD
Greer. 6 «+ em
arguments made by Defendants in favor of summary
judgment.
Vi. CONCLUSION
For the reasons outlined above, the Defendants’
Motions for Summary Judgment shall be granted and this
action dismissed. An Order consistent with this
Memorandum Opinion shall be issued contemporaneously.
This _25th_ day of June, 1992.
/s/ Karl S. Forester
KARL S. FORESTER, JUDGE
35a
Eastern District of Kentucky
FILED
FEB -5 1992
AT LEXINGTON
LESLIE G. WHITMER
CLERK: U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CIVIL ACTION NO. 91-526
IAN HOFFMAN, PLAINTIFF
V. ORDER
TAMMY D. HARRIS, et.al., DEFENDANTS
In conjunction with the Memorandum Opinion issued
on the same date herewith, IT IS HEREBY ORDERED that
the Plaintiff's Motion to Dismiss the Counterclaim of Melisa
Q. Hoffman is GRANTED.
This ___5th_ day of February, 1992.
_/s/ Karl S. Forester
KARL S. FORESTER, JUDGE
36a
Eastern District of Kentucky
FILED
FEB -5 1992
AT LEXINGTON
LESLIE G. WHITMER
CLERK: U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CIVIL ACTION NO. 91-526
IAN HOFFMAN, PLAINTIFF
V. MEMORANDUM OPINION
TAMMY D. HARRIS, et.al., DEFENDANTS
1. INTRODUCTION
This matter comes before the Court on the Motion of
the Plaintiff, lan Hoffman, to Dismiss the Counterclaim of
Defendant, Melisa Q. Hoffman, under F.R.Civ.P. 12(b)(6).
The Defendant has responded and the matter is now ripe
for review by the Court.
ll. FACTUAL BACKGROUND
lan Hoffman brought suit under 42 U.S.C. §1983,
alleging the Defendants, including Melisa Hoffman, acted
under color of state law to deprive him of his
constitutionally protected liberty interest in physical custody
of his child. Melisa Hoffman answered the complaint and
counterclaimed, alleging that the Section 1983 suit was
37a
brought against her as harassment and for purely malicious
purposes.
lil. MOTION TO DISMISS
As grounds for his Motion to Dismiss the
Counterclaim, lan Hoffman states that Melisa Hoffman's
claim for intentional infliction of emotional distress fails to
State a claim for which relief can be granted. lan Hoffman
argues that the conduct of which Melisa Hoffman
complains, the filing of this Section 1983 lawsuit, is not
conduct which exceeds the bounds tolerated by society.
Further, lan Hoffman argues that a malicious prosecution
claim cannot stand until the underlying litigation is
completed.
Melisa Hoffman responds that her counterclaim is
not based on malicious prosecution, but solely on
intentional infliction of emotional distress. Melisa Hoffman
argues that lan Hoffman’s actions are outrageous because
he was not denied due process, but in fact was given a
post-deprivation hearing during which it was determined
that he had sexually abused their child. She also contends
that lan Hoffman’s action in filing suit against her under
Section 1983 is outrageous because she is a private citizen
incapable of acting under color of state law.
IV. STANDARDS FOR DISMISSAL
In considering a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court will look
principally to the pleadings. See Innovative Digital
Equipment _v. Quantum Technology, 597 F.Supp. 983
(1984). Under F.R.Civ.P. 8(a)(2), the standard for a well-
pleaded complaint is that it "shall contain a short and plain
statement of the claim showing that the pleader is entitled
to relief and whether relief can be granted on such a claim.”
38a
As the Innovative Digital Equipment court held:
the question is whether the Complaint with
all the well-pleaded material facts taken as
true and construed in the light most favorable
to the plaintiff sets forth facts sufficient to
state a legal claim.
597 F.Supp. at 987.
V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The substantive aspects of Melisa Hoffman's
counterclaim are, in full,
1. Defendant, Melisa Q. Hoffman filed this
counterclaim against Plaintiff as a tort of
emotional outrage. Plaintiff and this
Defendant are still under the jurisdiction of
the Fayette circuit Court in an action to
determine the custody of the parties (sic)
minor child. Plaintiff's action herein has been
purposefully and maliciously taken to
intimidate and harrass (sic) this Defendant
and cost her severe emotional harm as well
(sic) to prejudice the Fayette Circuit Court.
2. That by reason of Plaintiff’s action, this
Defendant/Counterclaimant has_ suffered
mental anguish, stress, humiliation and
embarrassement (sic), all to her damage in
the amount of $50,000.00 which sum this
Counterclaimant ought to recover of the
Plaintiff.
Answer of Def. Melisa Q. Hoffman and Countercl., p. 3.
In Kentucky, the tort of “emotional outrage” or
"intentional infliction of emotional distress” was first
recognized in the case of Craft v. Rice, Ky., 671 S.W.2d
247 (1984). Therein, the Supreme Court of Kentucky
39a
adopted the Restatement (Second) of Torts § 46, which
provides as follows:
One who by extreme and outrageous
conduct intentionally or recklessly causes
severe emotional distress to another is
subject to liability for such emotional
distress, and if bodily harm to the other
results from it, for such bodily harm.
In Humana of Kentucky, Inc. v. Seitz, Ky., 796
S.W.2d 1 (1990), the court considered a case in which a
patient who gave birth to a stillborn fetus filed suit against
the hospital, claiming the nursing staff's insensitive conduct
constituted intentional infliction of emotional distress. The
Plaintiff alleged that during her labor one of the nurses
ordered her to “shut up” because she was disturbing the
other patients. She also alleged that after the doctor
arrived and pronounced the baby dead, one of the nurses
wrapped the deceased baby in a sheet and told her,
“Honey, we dispose of them right here at the hospital.”
796 S.W.2d at 2.
The Kentucky Supreme Court found that the
defendants were entitled to summary judgment on the claim
of intentional infliction of emotional distress. The court set
forth the elements of proof necessary to maintain such a
cause of action.
1) the wrongdoer’s conduct must
be intentional or reckless;
2) the conduct must be
outrageous and intolerable in
that it offends against the
generally accepted standards
of decency and morality;
40a
3) there must be a causal
connection between the
wrongdoer’s conduct and the
emotional distress: and
4) the emotional distress must be
severe.
796 S.W.2d at 2-3.
In rejecting the Seitz plaintiff's Claim, the court relied
on Comment d to Section 46 of the Restatement (Second)
of Torts, which states that “[iability has been found only
where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.”
In the case of nfectioner
Tobacco Wkrs, 753 F.Supp 209 (W.D.Ky. 1989), aff'd 914
F.2d 256, the court considered the claim of a factory
worker who was discharged for fighting with a co-worker
on company property. He filed suit against the company for
terminating his employment and against his union for its
failure to take the matter to arbitration on his behalf. The
court found the plaintiff's claim of intentional infliction of
emotional distress untenable, holding that the right to
recover for this tort “is a rather extraordinary one and must
spring from conduct which is so extreme as to go beyond
all possible bounds of decency..." 753 F.Supp. at 215.
Furthermore, the court held that “even if conduct is extreme
and outrageous, the actor is never liable where he has done
no more than to insist upon his legal rights in a permissible
way.” Id.
Vi. DISCUSSION
Upon examination of the counterclaim of Melisa
Hoffman in light of the relevant case law, it is clear that the
4la
Plaintiff's Motion to Dismiss must be granted.
The counterclaim merely states that lan Hoffman's
action has been “purposefully and maliciously taken to
intimidate and harrass (sic)" Melisa Hoffman. Applying the
standard set forth by the court in Innovative Digital
Equipment v. Quantum Technology, 597 F.Supp 983, 987
(N.D.Ohio 1984), it is evident that Melisa Hoffman has
failed to “set forth facts sufficient to state a legal claim.”
Under Kentucky law, a plaintiff must show conduct
that is so outrageous as to be beyond all bounds tolerated
by a civilized society. In our society, the filing of a lawsuit
to vindicate rights and settle disputes is among the most
civilized methods of resolving differences. Only in the most
extreme situation could such an action be termed “beyond
all possible bounds of decency." Restatement (Second) of
Torts, § 46, Comment d. Such is not the situation herein.
Vil. CONCLUSION
Therefore, the Plaintiff's Motion to Dismiss the
Counterclaim must be granted. An order consistent with
this Memorandum Opinion will be issued on the same date
herewith.
This 5th _ day of February, 1992
/s/ Karl S. Forester
KARL S. FORESTER, JUDGE
42a
Eastern District of Kentucky
FILED
NOV 15 1991
AT LEXINGTON
LESLIE G. WHITMER
CLERK: U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
AT LEXINGTON
IAN HOFFMAN
Vv. COMPLAINT
TAMMY D. HARRIS, Individually,
COLLEEN WEST, Individually,
MELISA Q. HOFFMAN, Individually,
and COMMONWEALTH OF KENTUCKY,
CABINET FOR HUMAN RESOURCES
Serve pursuant to Fed.R.Civ.P. 4:
TAMMY D. HARRIS, Individually
627 West Fourth Street
Lexington, Kentucky 40508
COLLEEN WEST, Individually —
627 West Fourth Street
Lexington, Kentucky 40508
MELISA Q. HOFFMAN, Individually
126 St. James Drive
Lexington, Kentucky
43a
NO. 91-526
COMMONWEALTH OF KENTUCKY,
CABINET FOR HUMAN RESOURCES
Attorney General
116 The Capitol Building
Frankfort, Kentucky 40601
Comes the Plaintiff, lan Hoffman, for his Complaint
herein, and states:
JURISDICTION
1. That jurisdiction of Plaintiff's claim against the
Defendants is conferred upon this Court under 28 U.S.C.
§ 1343(a)(3) and (4), which gives District Courts jurisdiction
over actions commenced to redress the deprivation, under
color of state law, of rights secured by the Federal
Constitution or by Acts of Congress; Plaintiff's claim herein
arises under 42 U.S.C. §1983, an Act of Congress
protecting Federal Constitutional rights;
VENUE
2. That venue of this action is governed by 28
U.S.C. §1391(b); that all Defendants are residents of the
U.S. Judicial District for the Eastern District of Kentucky;
3. That all of the acts complained of herein occurred
in Fayette County, Kentucky;
4. That Plaintiff, lan Hoffman ("Plaintiff"), is resident
of Lexington, Kentucky;
5. That Defendant, Tammy D. Harris ("Harris"), is
a resident of the Commonwealth of Kentucky and at all
relevant times herein was acting in her capacity as an
employee of the Commonwealth of Kentucky, Cabinet for
Human Resources;
6. That Defendant, Colleen West ("West"), is a
resident of the Commonwealth of Kentucky and at all
44a
relevant times herein was acting in her capacity as an
employee of the Commonwealth of Kentucky, Cabinet for
Human Resources;
7. That Defendant, Melisa Q. Hoffman ("Defendant,
Hoffman"), is a resident of the Commonwealth of Kentucky
8. That Defendant, Commonwealth of Kentucky,
Cabinet for Human Resources, is an agency of state
government of the Commonwealth of Kentucky;
9. That 42U.S.C. §1983 provides, in pertinent part:
Every person who, under color of any
Statute, ordinance, regulation, custom, or
usage of any State . . » Subjects, or
causes to be subjected, any citizen of the
United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by
the Constitution ... shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress. ..
10. That Defendants are "persons" within the
meaning of §1983;
11. That Defendants’ acts complained of herein
were undertaken under color of Statute, ordinance,
regulation, custom, or usage of the Commonwealth of
Kentucky;
12. That Defendants subjected Plaintiff, a citizen of
the United States, or caused Plaintiff to be subjected to the
deprivation of rights, privileges or immunities secured by
the U.S. Constitution;
45a
13. That the Defendants acted in concert to deprive
Plaintiff of his rights as set out herein; that Harris and West
are state officers with whom Defendant, Hoffman, acted
jointly to deprive Plaintiff of his constitutionally protected
liberty right mentioned herein; that Defendant, Hoffman, is
a state actor and acted under color of state law by reason
of having acted together with and having obtained
significant aid from Harris and West in effecting the
deprivation of Plaintiff's liberty interest mentioned herein;
14. That Defendants invoked the provisions of KRS
620.060(1) to achieve the substantial deprivation of
Plaintiff's constitutionally protected liberty interest
mentioned herein;
15. That KRS 620.060(1) provides:
The court for the county where the child is
present may issue an ex parte emergency
custody order when it appears to the court
that there are reasonable grounds to believe,
as supported by affidavit or by recorded
sworn testimony, that the child is in danger
of imminent death or serious physical injury
or is being sexually abused and that the
parents or other person exercising custodial
control or supervision are unable or unwilling
to protect the child. Custody may be placed
with a relative taking into account the wishes
of the custodial parent or any other
appropriate person or agency including the
cabinet.
16. That the conduct of the Defendants complained
of herein arose both from the absence of a specific
requirement in KRS 620.060(1) that Plaintiff be attorded a
pre-deprivation hearing before being deprived of his liberty
interest mentioned herein, as well as the failure of
46a
RB ah PROD coer YR
ee ee eer
Defendants to see that no deprivation of Plaintiff's
constitutionally protected liberty interest occurred without
adequate procedural protections, notwithstanding the
absence of any such safeguards being prescribed by KRS
620.060(1);
17. That KRS 620.060(1)is procedurally defective
under the Due Process Clause of the 14th Amendment to
the U.S. Constitution;
18. That on or about November 16, 1990, acting
jointly and at the behest of West and Defendant, Hoffman,
Harris, testified by Affidavit or sworn testimony to the
Fayette District Court that the following facts were true:
Child is allegedly being sexually abused by
father lan Hoffman. Parents are separated
and father is to have a visit with this child on
11-16-90. Father was found by C.H.R. to
have sexually abused older sibling . . . age 6
in June 1990.
that any suggestion that Plaintiff was sexually abusing his
infant child (or her older sibling) was false, and Defendants
had no reasonable basis to believe otherwise;
19. That such conduct of Defendants was
undertaken for the purpose of depriving Plaintiff of his
constitutionally protected liberty interest in physical custody
of his infant child, B. H.;
20. That by reason of such conduct of Defendants
Plaintiff was deprived of his constitutionally protected
liberty interest in the physical custody of his infant child, B.
H., on November 16, 1990, and thereafter, without due
process, and in violation of Plaintiff’s substantive and
procedural due process rights, as guaranteed by the 14th
Amendment to the United States Constitution;
21. That Defendants accomplished such deprivation
47a
of Plaintiff's liberty interest, as aforesaid, without benefit of
a pre-deprivation hearing as required by the 14th
Amendment to the United States Constitution;
22. That the Defendants could have feasibly
provided a pre-deprivation hearing before depriving Plaintiff
of his liberty interest, as aforesaid, but did not do so;
23. That a pre-deprivation hearing would not have
been unduly burdensome in proportion to the liberty interest
of Plaintiff which was at stake;
24. That Defendants had no reasonable grounds to
believe that Plaintiff's infant child, B.H., was in danger of
imminent death or serious physical injury or was being
sexually abused by Plaintiff, and that the parents or other
person exercising custodial control or supervision was
unable or unwilling to protect Plaintiff's infant child, B. H.;
25. That Defendants had no evidence before
depriving Plaintiff of his liberty interest, as aforesaid, upon
which, when measured by an objective standard, a
reasonable social officer could have reasonably believed
that Plaintiff's infant child, B. H., was being sexually abused
by Plaintiff;
26. That measured by an objective standard, a
reasonable social worker could not have believed, based on
the information possessed by Defendants, when
undertaking to deprive Plaintiff of his liberty interest, as
aforesaid, that reasonable cause existed sufficient to obtain
the Order of the Fayette District Court on November 16,
1990, so as to deprive Plaintiff of such liberty interest on
that date, and thereafter:
27. That as a direct result of the foregoing, Plaintiff
was damaged by deprivation of his constitutional rights, as
mentioned herein;
48a
28. That by reason of the Defendants’ actions,
Plaintiff has suffered mental anguish, humiliation,
inortification, and embarrassment, all to his damage in the
amount of One Hundred Thousand and 00/100
($100,000.00)Dollars, which sum Plaintiff ought to recover
of Defendants, Harris, West and Hoffman, and each of
them;
29. That by reason of the unconstitutional conduct
of Defendants complained of herein, Plaintiff incurred
attorneys’ fees and other expenses in the amount of Fifteen
Thousand and 00/100($15,000.00)Deo"srs to contest such
conduct, and that by reason thereof Plaintiff ought to
recover the amount of Fifteen Thousand and 00/100
($15,000.00) Dollars of Defendants, Hoffman, Harris and
West, and each of them;
30. That Defendants, Harris, West and Hoffman, in
their individual capacities, acted in disregard of Plaintiff's
federally protected rights and/or were motivated by evil
motive or intent, and that by reason thereof, Plaintiff should
recover punitive damages from Defendants, Harris, West
and Hoffman, and each of them, in the amount of Fifty
Thousand and 00/100 ($50,000.00) Dollars;
31. That Defendant, Commonwealth of Kentucky,
Cabinet for Human Resources, its officers, agents, servants,
employees, and attorneys ought to be mandatorily enjoined
from undertaking to deprive, or depriving Plaintiff of his
constitutionally protected liberty interest in physical custody
of his infant child, B.H.; further, Defendant, Commonwealth
of Kentucky, Cabinet for Human Resources, its officers,
agents, servants, employees, and attorneys ought to be
mandatorily enjoined from invoking the ex parte provisions
of KRS 620.060(1), or otherwise undertaking to deprive, or
depriving Plaintiff of his constitutionally protected liberty
interest in physical custody of his infant child, B.H., without
49a
affording Plaintiff the requisite due process required by the
14th Amendment to the U.S. Constitution, including but not
limited to, a pre-deprivation hearing; :
32. That by reason of the Defendants’ deprivation
of Plaintiff's constitutional rights complained of herein, and
the relief sought by Plaintiff herein, Plaintiff should recover
his costs, including reasonable attorneys fees incurred
herein, pursuant to 42 U.S.C. §1988;
33. That Plaintiff demands a TRIAL BY JURY;
WHEREFORE, Plaintiff, lan Hoffman, demands:
1. Judgment pursuant to 28 U.S.C. §2201,
declaring that the Defendants, by their actions, have
violated Plaintiff's constitutional rights;
2. Judgment in the amount of One Hundred
Thousand and 00/100 ($100,000.00) Dollars, against
Defendants, Hoffman, Harris and West, and each of them,
as compensatory damages;
3. Judgment in the amount of Fifteen Thousand and
00/100 ($15,000.00) Dollars, against Defendants,
Hoffman, Harris and West, and each of them, as attorneys
fees incurred in contesting Defendants’ unconstitutional
conduct;
4. Judgment in the amount of Fifty Thousand and
00/100 ($50,000.00) Dollars, against Defendants,
Hoffman, Harris and West, and each of them, as punitive
damages;
5. Entry of a mandatory injunction against
Defendant, Commonwealthof Kentucky, Cabinet for Human
Resources, as sought herein above;
6. Judgment against all Defendants awarding him
his costs and disbursements expended herein, including a
reasonable attorney's fees pursuant to 42 U.S.C. §1988;
7. A TRIAL BY JURY;
50a
8. Any and all other relief to which he may appear
entitled.
William C. Jacobs
Catherine M. Stevens
173 North Limestone Street
Lexington, Kentucky 40507
(606) 255-2464
BY: /s/ W. C. Jacobs
ATTORNEYS FOR PLAINTIFF
VERIFICATION
i hereby verify that the foregoing is true to the best
of my knowledge, information, and belief.
/s/ lan Hoffman
IAN HOFFMAN
STATE OF KENTUCKY)
COUNTY OF FAYETTE)
The foregoing Complaint was subscribed and sworn
to before me by lan Hoffman on this the _14th day of
November, 1991.
My Commission expires: _June 13,1993 _.
. lellan
NOTARY PUBLIC
5la
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.