Opinion
5:20-CV-477-BO
02-01-2022
KAHLEIGHIA N. ROGERS, et al, Plaintiffs, v. CUMBERLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, et al, Defendants.
ORDER MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge
This matter is before the court on a motion to dismiss filed by Defendants James Dill, Brandy Briza, Tamika Walker, Virgie Devane-Hayes, LaTanya Burgan, Megan Phillips, Shakeisha McClain, Sharita Hamilton, Michael Simmons, Brenda Reid Jackson, and Danielle Farrior, (collectively, the "DSS Defendants"), [DE-52]; a motion to dismiss filed by Defendants Mariamarta Conrad and Carrie A. Carter (collectively, the "GAL Defendants"), [DE-58]; Plaintiffs Kahleighia Rogers and Sondra Bruton's motion for an extension of time to respond to the motions to dismiss, [DE-62]; and Plaintiff Sondra Bruton's motion to be appointed representative for Kahleighia Rogers, or alternatively a motion for an extension of time for Rogers to be notified of court proceedings, [DE-63]. Plaintiffs Kahleighia Rogers and Sondra Bruton filed a joint response to the motions to dismiss, [DE-66], and the time for further briefing has expired. For the reasons that follow, the motion for extension of time and motion to appoint a representative are denied as moot, and it is recommended that the motions to dismiss be allowed.
I. BACKGROUND
A. Procedural Background
Plaintiff Sondra Bruton ("Bruton") is the mother of Plaintiff Kahleighia Rogers ("Rogers"), and Rogers is the mother of the minor plaintiffs, L.R., K.B., K.G., and K.R. 2d Am. Compl. [DE-22] at 3, 12. Plaintiffs brought this action pro se and in forma pauperis against Cumberland County, the Cumberland County Department of Social Services ("DSS"), multiple employees of DSS including social workers and their supervisors, a Guardian Ad Litem ("GAL") volunteer attorney, a GAL supervisor, and a court-appointed attorney. [DE-1, -1-1]. Plaintiffs, in an amended complaint, alleged that DSS and its employees petitioned the non-secure custody of infants K.G. and K.R, born testing positive to a substance (THC), and their siblings L.R. and K.B, and in doing so violated Plaintiffs' constitutional rights and committed several torts under North Carolina law. Am. Compl. [DE-7-1]. On frivolity review, the undersigned recommended dismissal of several claims and that other claims be allowed to proceed. See Rogers v. Cumberland Cnty. Dep't of Soc. Servs., No. 5:20-CV-477-BO, 2020 WL 9216464, at *19 (E.D. N.C. Nov. 24, 2020), report and recommendation adopted, 2021 WL 916924 (E.D. N.C. Mar. 10, 2021). Plaintiffs filed objections to the Memorandum and Recommendation and also moved to file a second amended complaint. [DE-16, -17]. The court overruled Plaintiffs' objections, adopted the Memorandum and Recommendation, allowed the motion to amend, and conducted a frivolity review of the second amended complaint. Rogers, 2021 WL 916924, at *4-7. The court dismissed several of Plaintiffs' claims but allowed to proceed certain Due Process and Fourth Amendment claims, a fraud claim, and legal malpractice claim. Id. at *8.
Fed.R.Civ.P. 17(c)(2) provides that "[a] minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action." A motion to appoint a guardian ad litem ("GAL") for K.R. and/or L.R. has been filed in this case as an attachment to the proposed complaint. [DE-1-11]. In the event the minor plaintiffs' claims are not dismissed, the court should consider appointment of a GAL and counsel to represent their interests. See Myers v. Loudoun County Public Sch, 418 F.3d 395, 401 (4th Cir. 2005) ("non-attorney parents generally may not litigate the claims of their minor children in federal court."); Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 285-86 (4th Cir. 1979) ("a next friend or guardian ad litem cannot step forward and assume on his own the authority to prosecute the infant plaintiffs suit; rather, his authority is based on appointment by the court."); Verbal v. Krueger, No. 1:09-CV-990, 2010 WL 276644, at *3 (M.D. N.C. Jan. 15, 2010) (dismissing a claim on frivolity review because a pro se plaintiff could not proceed as next friend for her minor child).
The United States Marshals Service ("USMS") next attempted service of the summonses and second amended complaint on Defendants. [DE-23 through -38]. Ultimately, the USMS failed to serve four Defendants, Antoine O. Edwards, Cumberland County, Terri Morton, and Tenise Lampley, and the court issued to Plaintiffs the notice of failure to make service. [DE-69 through -71]. Plaintiffs dispute that Cumberland County has not been properly served, [DE-73], and whether Tamika Walker has been properly served is the subject of a motion to dismiss, [DE-53] at 15-16. The DSS Defendants and the GAL Defendants filed motions to dismiss all claims against them, [DE-52, -58], and Plaintiffs filed objections to the DSS Defendants' exhibits, [DE-64], a response in opposition to the motions to dismiss, [DE-66], and documentary "evidence," [DE-74].
These four defendants have not filed a motion to dismiss.
Plaintiffs' motion for an extension of time to file a response to the motions to dismiss, [DE-62], and Plaintiffs' motion to appoint representative, [DE-63], are both mooted by the filing of Plaintiffs' joint response to the motions to dismiss, which was signed by both Bruton and Rogers, [DE-66] at 4. Accordingly, the motion for extension of time and motion to appoint representative are denied as moot.
B. The Second Amended Complaint
The allegations of the second amended complaint are summarized as follows. On March 21, 2018, Rogers gave birth to K.G. in Cumberland County. 2d Am. Compl. [DE-22] at 12. K.G. was born prematurely, admitted to the intensive care unit, and tested positive for THC. Id. Hospital staff notified DSS that K.G. had tested positive for a substance, as they were required to do by law. Id. As a result, Defendant Tamika Walker ("Walker"), a DSS social worker, visited Rogers's home to ensure that K.G. had a proper place to reside when he was released from the hospital. Id. The home was located in Harnett County, not Cumberland County, and was owned by Bruton. Id. Rogers lived in the home with L.R. and K.B. Id.
On April 6, 2018, Walker informed Bruton that DSS had filed a petition for non-secure custody of L.R., K.B., and K.G., and Bruton turned over L.R. and K.B. to DSS on April 10. Id. at 13. At a hearing on April 11, the infant K.G. was placed into foster care because Walker and Hamilton advised that a caregiver trained to care for premature babies was needed. Id. at 13. Bruton and other family members were present, willing to care for K.G., and could have been trained to provide the necessary care. Id. at 14. L.R. and K.B. were returned to Bruton, and K.G. remained in foster care for two months, because ICG's father had requested to care for K.G. but was unable to pass a drug test and did not take a paternity test. Id. at 15. Bruton was barred by the presiding judge from attending one hour weekly supervised visits with K.G. in retaliation for complaining about the unlawful acts of county officials. Id.
Another hearing regarding the custody of the children was held in July 2018, but neither Rogers nor the children's fathers were present. Id. A consent agreement indicated that Rogers agreed that the children were neglected, but she denies that allegation. Id. at 16. In October 2018, K.G.'s father, Goodwin, was granted full legal custody of K.G. Id. at 17-18. On June 12, 2019, a hearing was held to determine whether L.R. and K.B. would be released from non-secure custody, but the hearing was continued because GAL Carrie Carter had attempted to make an unscheduled home visit while no one was home. Id. at 18.
On June 21, 2019, GAL Carter and Shakeisha McClain, a DSS social worker, made an unscheduled visit to Bruton s home to assess whether L.R. and K.B. could be released there, but no one answered the door. Id. McClain left a message on Bruton's voicemail threatening to remove the children if she did not answer. Id. at 18-19. Carter and McClain contacted the Harnett County Sheriffs Office, and a deputy arrived and banged loudly enough on the door to wake Bruton. Id. at 19. Once inside, McClain was frustrated and threatened Bruton, while Carter and the deputy remained silent. Id. After McClain left, Bruton called Danielle Farrior, a DSS supervisor, who accused Bruton of being rude to McClain. Id. Farrior told Bruton that she and McClain would return to Bruton's home to conduct a safety check that afternoon. Id. On June 22, an investigator told Bruton that there was a report that Bruton was sleeping all day and leaving the children unattended, that there was an unknown male in the home, and that Bruton did not have a valid driver's license. Id. Bruton later received a letter stating those claims were found to be unsubstantiated. Id. at 20.
On June 23, 2019, Farrior contacted Bruton regarding a safety check of the home. Id. Bruton informed her that McClain had made a false report and that the investigator had already completed the safety check. Id. Farrior responded that the safety check had not been properly completed, and they scheduled it for the following day. Id. However, no one contacted Bruton on June 24. Id. Instead, on June 26, Farrior and McCain attempted to complete the safety check, but Bruton was visiting an elderly friend. Id. Bruton offered to send a neighbor to help them complete the safety check, but Farrior refused. Id. Farrior told Bruton that because she was never at home during the unscheduled visits and because she had an accident the prior year that caused her license to be suspended, they would have to remove the children for safety reasons. Id. Brandi Briza, the DSS Program Manager, and Terri Morton, a DSS attorney, authorized the removal. Id. The children were placed in foster care until the next hearing. Id. at 21. Bruton spoke with Briza and DSS Section Chief McLeod, who took a formal complaint and told Bruton she would have to speak with Briza again. Id. Briza told Bruton she would not be getting the children back due to an accident and a charge of reckless driving from a year prior. Id. Bruton spoke with Sandy Connors, an Assistant Director at DSS, and Connors advised Bruton that removal was not necessary and that Connors would refer the matter to DSS Director Reid-Jackson. Id. Bruton left a voicemail for Reid-Jackson, and Reid-Jackson responded with an apology email. Id.
At a hearing on July 14, 2019, Farrior stated that the children had informed her Bruton had held them under cold water as a form of punishment and beaten them with a belt. Id. at 22. The court ordered a forensic examination of the children. Id. The examination revealed no evidence of abuse, so the children were returned on or about September 14, after two supervised visits, drug tests of Bruton and Rogers, and a home study. Id. at 23. During a phone call, Farrior told Bruton that the case would be closed at the next court hearing. Id. However, at an October 2019 hearing, the case was not closed because Bruton had moved and DSS informed the court that they needed to monitor the new residence. Id. In January 2020, an investigator visited Bruton and stated that there were allegations that she was beating the minors with sticky bushes, was transporting them without a license, and had no income. Id. At a February 2020 meeting at DSS, Megan Phillips, a social worker, stated that the children had been removed in June 2019 after a forensic report found that they had been improperly disciplined; however, there had never been such a report. Id. at 23-24. Bruton believes that Philips acted with malice in an attempt to discredit Bruton before the panel of DSS supervisors. Id. at 24.
Before the next hearing, DSS advised Investigator Leon Williams not to close the case, and they told him not to attend the hearing to impede closure of the case. Id. at 24. Investigator Williams left DSS, and the next investigator closed the case two weeks after the hearing. Id. However, Michael Simmons, a DSS attorney, stated that DSS was still investigating for evidence of abuse and neglect, and the case was continued in violation of state mandated procedures and policies. Id. at 25.
On June 18, 2020, Rogers gave birth to another infant, K.R., who tested positive for THC. Id. On June 22, Tenise Lampley, a DSS investigator, completed a Temporary Safety Plan assessment at Bruton s home and told her that as long as her background check was good, she could pick up the infant from the hospital. Id. On June 24, Bruton learned from Lampley that Phillips had scheduled an emergency ex parte hearing and that Rogers had been informed she must attend. Id. at 26. On that same day, Phillips told Bruton that the infant would be released from the hospital at 2:30 p.m. and that Bruton should arrive early to receive training on caring for infants exposed to THC. Id. Bruton was suspicious because the emergency ex parte hearing was scheduled for the same time. Id. Bruton decided to attend the hearing with Rogers. Id. Terri Morton, a DSS attorney, represented DSS and Phillips at the hearing, and they requested that the court order non-secure custody and place K.R. in foster care. Id. at 26-27. Bruton advised the court of the two years of retaliation and harassment by DSS against her family by placing the children, who did not meet the criteria for non-secure custody, into foster care. Id. at 27. The court decided to place K.R. in foster care because Phillips stated that she was concerned Rogers would try to remove K.R. from Bruton's care. Id. GAL attorney Mariamarta Conrad, who had participated with DSS in retaliation against the family since the removal of the children in 2019, agreed with the court's decision. Id.
Following the hearing, Bruton began a social media campaign to expose DSS's allegedly unlawful removal of children in which she posted photos of DSS employees taken from their Facebook pages. Id. At a June 29, 2020 hearing, Phillips advised the court that Bruton had violated child protection laws and shared confidential information, and GAL Conrad agreed, adding that Bruton's two prior CPS (Child Protective Services) reports, though unsubstantiated, were concerning for the safety of the children. Id. The court kept K.R. in foster care and banned Bruton from having any contact with the child. Id. at 28. Phillips also stated at the hearing that because the two older children were not attending play therapy services and because of a conflict between Bruton and Rogers, she would be seeking to remove them at the next hearing. Id.
On July 13, 2020, Phillips told Bruton that she would be taking the children to a play therapy session, and Bruton responded that Valarie Johnson of the North Carolina Department of Health and Human Services ("NCDHHS") advised her that the children were not to attend nonemergency appointments during the Covid-19 pandemic. Id. Phillips attempted to transport the children to therapy in an alleged effort to unlawfully remove them and place them in foster care, and on July 16, DSS and its employees involved the police in a search of Bruton's home. Id. at 29. Defendants told the officers they could remove the children whenever they chose without a court order. Id. Phillips, two other social workers, and three police officers arrived at Bruton's home, attempted to force entry, and threatened to imprison Bruton if she did not turn over the children. Id. Bruton refused and stated that they were not going without an order. Id. Defendant Simmons deceived Rogers's attorney, Sarita Mallard, and stated that he did have an order for removal. Id. Bruton then turned the children over to Phillips at the Cumberland County courthouse. Id. Phillips and Simmons requested that Bruton be barred from all contact with the children in retaliation for Bruton exposing the unlawful acts of DSS. Id.
The complaint further alleges examples of the unlawful acts committed by DSS: Virgie Devane-Hayes, a DSS CPS supervisor, stated in a recorded conversation that one of the infants was deemed neglected because she tested positive for THC at birth, but the law is that an infant is not neglected solely because she tests positive for THC; K.R. was in foster care for 120 days due to DSS continuances, but the law states that evidence of abuse, neglect, or dependency must be shown within sixty days and no more without good cause; a hearing has not been held because there is no evidence to support the petition for non-secure custody; and the system has been corrupted by DSS's unlawful removal of infants born testing positive for substances and DSS's filing of fraudulent custody petitions to obtain federal grant monies. Id. at 30.
Plaintiffs asserted numerous violations on the Constitution and North Carolina law. Id. at 31-50. After frivolity review, the following claims were allowed to proceed: (1) Rogers's and the minor plaintiffs' substantive due process claim; (2) Rogers's procedural due process claim relating to the July 2018 hearing; (3) Bruton's Fourth Amendment claim for the search of her home; (4) the minor plaintiffs' Fourth Amendment claim for the seizure of their persons; (5) Bruton's fraud claim for Simmons's allegedly deceitful statement that there was a court order for the removal of the children; and (6) Rogers's legal malpractice claim against Edwards. Rogers, 2021 WL 916924, at*8.
II. DISCUSSION
A. The DSS Defendants' Motion to Dismiss [DE-52]
The DSS Defendants move to dismiss the claims against them in the Second Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim, and also request the court strike the return of service relating to Tamika Walker and to dismiss the claims against her, pursuant to Fed.R.Civ.P. 12(b)(2), (4), and (5), for lack of jurisdiction, insufficiency of process, and insufficiency of service of process. [DE-52].
1. Failure to State a Claim
The DSS Defendants contend the Second Amended Complaint fails to state a claim on which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). DSS Defs.' Mem. [DE-53] at 3-6. Specifically, they contend that the claims against Devane-Hayes, Dill, Burgan, Briza, Hamilton, and Jackson should be dismissed because there are no allegations of wrongdoing directed toward these Defendants, and Plaintiffs have failed to state a plausible claim for relief. Id. at 4-6.
a. Legal Standard
Amotion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must "nudge[ ] [his] claims," Twombly, 550 U.S. at 570, beyond the realm of "mere possibility" into "plausibility." Iqbal, 556 U.S. at 678-79.
In the present case, Plaintiffs are proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
b. Analysis
The remaining claims are for violation of the right to procedural and substantive due process and to be free from unreasonable search and seizure, fraud, and legal malpractice. Rogers, 2021 WL 916924, at *8. There are no allegations that Devane-Hayes, Dill, Burgan, Briza, Hamilton, or Jackson were involved in the events related to Rogers's procedural due process claim, Bruton's fraud claim, or Rogers's legal malpractice claim. See 2d Am. Compl. [DE-22]; Iqbal, 556 U.S. at 676 (explaining that "[b]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). Accordingly, the court considers whether the allegations related to each of these defendants states a substantive due process claim.
The Due Process Clause of the Fourteenth Amendment bars states from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1. While the Due Process Clause guarantees fair process, it also "includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests." Troxel v. Granville, 530 U.S. 57, 65 (2000). To state a substantive due process claim, a plaintiff must allege: (1) that she has been deprived of "interests encompassed by the Fourteenth Amendment's protection of liberty and property" Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972); and (2) that the deprivation was by some form of state action, Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). "[W]here liberty interests are asserted as a basis for liability pursuant to § 1983, courts have consistently undertaken a threshold inquiry at the onset of litigation" to determine whether the plaintiff has alleged the deprivation of an actual constitutional right. McCurdy v. Dodd, 352 F.3d 820, 826 (3d Cir. 2003). For a substantive due process claim, a plaintiff must also show that the state's action is so arbitrary and egregious that it "shocks the conscience." Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); see also Sahoo v. Gleaton, No. 5:16-CV-153-F, 2017 WL 1102623, at *8 (E.D. N.C. Mar. 23, 2017) (finding that the plaintiff had failed to state a claim for a substantive due process violation because "there are no express allegations that Defendants engaged in 'arbitrary,' 'oppressive' or conscience-shocking conduct.").
Virgie Devane-Hayes is alleged to be a CPS supervisor with DSS. 2d Am. Compl. [DE-22] at 9 ¶ 53. Plaintiffs allege that Devane-Hayes stated to Bruton on a recorded conversation that "the baby was deemed neglected because she tested positive to THC at birth, and the law says that simply because an infant test positive does not make the infant neglected." Id. at 30 ¶ 141. This is the only factual allegation specific to Devane-Hayes. LaTanya Burgan is alleged to have been a social worker with DSS assigned to Plaintiffs' case from May 2018 through May 2019, and was promoted to supervisor in June 2019. Id. at 8 ¶ 41. The only factual allegations as to Burgan state that she performed a background check on a father of one of the minors; in June 2019, L.R. and K.B. were to be released from non-secure custody by Burgan, but she was promoted to supervisor and Shakeisha McClain took over the case; and Burgan and McClain did not notify Bruton of the change. Id. at 9 ¶¶ 52-53. These allegations do not demonstrate any wrongdoing on the part of Devane-Hayes or Burgan and are insufficient to state a substantive due process claim under the pleading standard of Iqbal and Twombly. Additionally, the court previously dismissed the negligent supervision claims against the DSS supervisors. Rogers, 2021 WL 916924, at *8. Accordingly, it is recommended that Devane-Hayes and Burgan be dismissed as defendants.
James Dill is alleged to have been DSS attorney until he separated from DSS prior to the July 14, 2019 hearing. 2d Am. Compl. [DE-22] at 22 ¶ 84. Aside from allegations identifying Dill and his position, id. at 6-7 ¶¶ 35, 36, there are no other factual allegations specific to Dill. Thus, Plaintiffs have failed to allege any facts that would support a substantive due process claim against Dill under the pleading standard of Iqbal and Twombly, and the court previously dismissed the negligence and negligent supervision claims asserted against Dill. Rogers, 2021 WL 916924, at *8. Accordingly, it is recommended that Dill be dismissed as a defendant.
Brandi Briza is alleged to have been a CPS program manager with DSS, who supervised social workers and supervisors. 2d Am. Compl. [DE-22] at 8 ¶ 49. The specific facts alleged are that Briza and Morton authorized removal of the minors from Bruton on June 26, 2019, and Briza confirmed to Bruton that she had authorized removal of the children; a representative of NCDHHS, contacted by Bruton, advised that DSS could remove the children at any time because they were in the non-secure custody of DSS; the children were then removed and placed in foster care until the next hearing; Bruton filed a formal complaint and was directed to speak with Briza again; Briza told Bruton DSS would not return the children to her due to an accident and reckless driving charge from a year prior; and Bruton took the issue to DSS Director Reid-Jackson, who apologized and acknowledged the conduct was inappropriate but advised that the presiding judge had ordered the children be removed for other reasons. Id. at 20-22 ¶¶ 71-82.
Even assuming Briza erred in authorizing removal of the children on June 26, 2019, not every wrong amounts to a constitutional violation. For a substantive due process claim, a plaintiff must also show that the state's action is so arbitrary and egregious that it "shocks the conscience." Lewis, 523 U.S. at 846; see also Sahoo, 2017 WL 1102623, at *8 (finding that the plaintiff had failed to state a claim for a substantive due process violation because "there are no express allegations that Defendants engaged in 'arbitrary,' 'oppressive' or conscience-shocking conduct."). The alleged conduct by Briza does not rise to the level of being so arbitrary and egregious that it "shocks the conscience." Furthermore, the allegations indicate that DSS was authorized to remove the children at any time, and a judge ultimately upheld the removal, albeit on different grounds according to Bruton. Plaintiffs' allegations against Briza are insufficient to state a substantive due process claim, and the court previously dismissed the negligent supervision claims against the DSS supervisors, Rogers, 2021 WL 916924, at *8. Accordingly, it is recommended that Briza be dismissed as a defendant.
Sharita Hamilton is alleged to have been a CPS social worker supervisor, who supervised Tamika Walker throughout Plaintiffs' DSS case. 2d Am. Compl. [DE-22] at 7-8 ¶¶ 39-40. Bruton surrendered L.R. and K.B. to Hamilton and Walker on April 10, 2018. Id. at 13 ¶ 15. Atahearing the next day, after the judge ordered K.G. into foster care, Hamilton and Walker advised the court that the infant's caregiver needed special training for the care of a premature infant and that DSS would provide that training. Id. at 13 ¶ 16. The judge ordered K.G. to be placed in foster care and L.R. and K.B. returned to Bruton after a home study. Id. at 14 ¶ 19. Bruton questions whether special training to care for K.G. was necessary and suggests she could have been trained in order to keep the siblings together. Id. at 13 ¶ 17. First, with respect to Hamilton's supervision of Walker, the court has dismissed the negligent supervision claims against the DSS supervisors, Rogers, 2021 WL 916924, at *8. With respect to the events of April 10 and 11, the facts fail to state a claim for a substantive due process violation, where it was the judge, not Hamilton, who ultimately determined the appropriate placement for K.G., and Hamilton's statement that K.G.'s caregiver would need special training to care for a premature baby is altogether reasonable and falls far short of arbitrary and egregious conduct. See Lewis, 523 U.S. at 846; Forgus v. Mattis, 753 Fed.Appx. 150, 152 (4th Cir. 2018) ("To survive a motion to dismiss [] a plaintiffs allegations must 'statef] a plausible claim for relief that 'permitfs] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'") (quoting Iqbal, 556 U.S. at 679). Accordingly, it is recommended that Hamilton be dismissed as a defendant.
Brenda Reid Jackson is alleged to have been appointed DSS director in 2008, and Plaintiffs generally allege she "exercised personal and professional deliberation, made decisions, and exercised personal and professional judgment, participated in retaliation and unlawful seizure of infants who test positive to substances, and varies [sic] other unlawful acts as described within this complaint." 2d Am. Compl. [DE-22] at 4-5 ¶¶ 10-15. Specific allegations involving Jackson are that when Bruton's complaint regarding a removal of the children on June 26, 2019 was brought to Jackson's attention, she sent Bruton an apology email and advised that despite the alleged inappropriate conduct, a judge had ordered the children removed. Id. at 21 ¶¶ 80-82. Bruton also alleges that she advised Jackson by email that Phillips had not completed a monthly video visit, id. at 28 ¶ 129, and that Jackson stated, in response to Plaintiffs' efforts to obtain assistance from the police, NCDHHS, and district attorney, and others, that "jurisdiction is of very little concern" and Plaintiffs would be referred back to Jackson, id. at 31 ¶ 146.
Plaintiffs' specific allegations as to Jackson fail to demonstrate any misconduct and, to the contrary, indicate Jackson was responsive to Plaintiffs' concerns. The general allegations of wrongdoing, e.g., that Jackson participated in retaliation and unlawful seizure of infants who test positive to substances and various unlawful acts and was not concerned with her jurisdiction, are conclusory and unsupported by specific factual allegations; thus, they are insufficient to state a claim. See Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," and while "the pleading standard Rule 8 announces does not require 'detailed factual allegations, '... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (citing Twombly, 550 U.S. at 555). Finally, the court previously dismissed the negligent supervision and misrepresentation claims against Jackson. Rogers, 2021 WL 916924, at *8. Accordingly, it is recommended that Jackson be dismissed as a defendant.
2. Immunity
The DSS Defendants contend that because the social workers have absolute immunity for prosecutorial functions and qualified immunity for investigative functions, the substantive and procedural due process, Fourth Amendment, and Fraud claims should be dismissed against the remaining DSS Defendants, McClain, Farrior, Simmons, and Phillips. DSS Defs. Mem. [DE-53] at 6-14.
a. Legal Standard
Public officials, including social workers, are entitled to absolute immunity for conduct that could be deemed prosecutorial, such as preparing and filing a removal petition, and may be entitled to qualified immunity for investigative conduct. Vosburg v. Dep't of Soc. Servs., 884 F.2d 133, 138 (4th Cir. 1989); Evans v. Perry, 578 Fed.Appx. 229, 232 (4th Cir. 2014). In determining whether officials have absolute or qualified immunity, courts "employ a 'functional approach' that examines the particular wrongs the defendant is alleged to have committed .... That is, these courts look to the particular task the social worker performed and its nexus to the judicial process rather than deciding that social workers as a class are entitled to absolute immunity." Sahoo, 2017 WL 1102623, at *6. To determine whether an action is prosecutorial rather than investigative, "the key consideration is whether the action is 'closely associated with the judicial process.'" Kline v. Cleveland Cnty., No. 1:19-CV-197-MOC-WCM, 2020 WL 1692348, at *7 (W.D. N.C. Apr. 7, 2020) (quoting Burns v. Reed, 500 U.S. 478, 495 (1991)).
For conduct that is investigative in nature rather than prosecutorial, public officials may have qualified immunity. Vosburg, 884 F.2d at 138. "Generally, qualified immunity operates to protect law enforcement and other government officials from civil damages liability for alleged constitutional violations stemming from their discretionary functions." Raub v. Campbell, 785 F.3d 876, 880-81 4th Cir. 2015) (citation omitted). "The protection extends to all but the plainly incompetent or those who knowingly violate the law." Id. at 881 (citation and internal quotation marks omitted). The Fourth Circuit has "emphasized repeatedly, '[officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines."' Id. (citations omitted). The qualified immunity analysis considers "(1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation." Id. (citations omitted). However, the court need not address both inquiries and can take them in "the order ... that will best facilitate the fair and efficient disposition of each case." Id. (citation omitted).
b. Analysis
The Fourth Circuit explained the application of absolute immunity to the conduct of social workers when acting as prosecutors as follows:
the filing of a removal petition is, in essence, the start of judicial proceedings against the parent or guardian of a minor child, and the duties of the social worker at that point are those of an advocate in that process. Additionally, the four primary public policy considerations discussed by the court in Imbler apply with equal force in this situation. Like a prosecutor, a social worker must exercise her best judgment
and discretion in deciding when to file a Removal Petition. The welfare of the state's children would be jeopardized if social workers had to weigh their decision in terms of their potential personal liability. In short, the denial of absolute immunity here has the potential to adversely affect the efficient functioning of the state's child welfare system. Additionally, the chances are high that suits against the social workers would occur with some degree of regularity. Parents, resentful of and humiliated by an attempt to usurp their rights, would likely channel their frustration "into the ascription of improper and malicious actions to the State's advocate."
We emphasize, however, that our grant of absolute immunity applies only to those activities of social workers that could be deemed prosecutorial. We in no way intend our decision to be read as holding that such workers are immune from liability arising from their conduct in investigating the possibility that a removal petition should be filed.Vosburg, 884 F.2d at 137.
The Sahoo court noted that while Vosburg concerned a social worker's actions pursuant to Virginia law, a North Carolina federal court has observed that "[t]here is no substantive difference between the Virginia child removal statute underlying Vossberg [sic] and the North Carolina statutes permitting petitions for non-secure custody." Sahoo, 2017 WL 1102623, at *6 n.18 (quoting Preston v. McDowell Cnty., No. 1:05-CV-343, 2006 WL 3434928, at *7 (W.D. N.C. Nov., 8, 2006), recommendation adopted by 2006 WL 3434928 (W.D. N.C. Nov. 28, 2006)).
Plaintiffs alleged that on April 6, 2018, Walker advised Bruton that DSS had filed a petition for non-secure custody of the minors and had been granted custody of all three children. 2d Am. Compl. [DE-22] at 13 ¶ 12. No wrongful conduct is alleged to have occurred prior to the filing of the removal petition. The DSS Defendants, relying on Vosburg, argue that they are entitled to absolute immunity for all conduct after the filing of the petition because they were acting as agents of the court and performing prosecutorial functions after the petition was filed. DSS Defs.' [DE-53] at 8.
In Vosburg, the Fourth Circuit held that social workers were absolutely immune from liability resulting from their decision to file a removal petition, explaining that "the filing of a removal petition is, in essence, the start of judicial proceedings against the parent or guardian of a minor child, and the duties of the social worker at that point are those of an advocate in that process." 884 F.2d at 137-38. The court expressly did not review the district court's finding that absolute immunity applied to the social worker's conduct in caring for the child after she was removed from her mother's custody, because that issue was not appealed. Id. at 135 n.2. District courts have reached conflicting conclusions regarding whether conduct on the part of a social worker after the filing of a removal petition is protected by absolute immunity. Compare Kline, 2020 WL 1692348, at *7 ("Actions taken 'prior to a ... determination' to pursue judicial action are protected by qualified immunity, while actions taken in the 'judicial phase' are protected by absolute immunity.") (citing Goldstein v. Moatz, 364 F.3d 205, 214 (4th Cir. 2004)), with Nelson v. Green, No. 3:06-CV-00070, 2014 WL 131055, at *6 (W.D. Va. Jan. 14, 2014) (finding that while social workers "are immune for their actions in state court and elsewhere related to the prosecutorial function of filing and maintaining the removal petition, they are not absolutely immune for all actions taken after the filing of that removal petition. Any non-prosecutorial actions that were investigative or administrative, taken after the filing of the February 9, 2005 removal petition, are not included in their Vosburg immunity").
The court finds a blanket application of absolute immunity for all actions by the DSS Defendants after the filing of the petition is not appropriate. See Booker v. S.C. Dep't of Soc. Servs., 583 Fed.Appx. 147, 148 (4th Cir. 2014) (finding DSS employee was entitled to qualified immunity regarding conduct "in the wake of J.J's removal"). Rather, the court will consider the specific conduct alleged to determine whether it is prosecutorial or investigative/administrative in nature. See Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) ("[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.") (citations omitted); Evans, 578 Fed.Appx. at 232 (explaining "immunity extends only to prosecutorial actions, however, including preparing and filing a removal petition and prosecuting that action") (citing Vosburg, 884 F.2d at 135-38).
i. Rogers's and the Minors' Substantive Due Process Claims
Plaintiffs have alleged what the DSS Defendants concede are "egregious facts" against certain defendants that form the basis of the substantive due process claims. However, most of the allegations relate to the DSS Defendants alleged conduct toward Bruton and the removal of the minors from Bruton's care, and the court previously dismissed Bruton's substantive due process claim. Rogers, 2021 WL 916924 at *8. Accordingly, only the conduct alleged that is arguably related to the familial rights of Rogers and the minors will be considered in assessing their substantive due process claims-specifically, that the DSS Defendants unlawfully petitioned for the non-secure custody of the minor infants born testing positive for substances and their siblings, presented false allegations in petitions to the court, and committed fraud upon the court to place the minors in foster care for the purpose of receiving federal foster care grants; that Farrior "committed perjury before the court in order to manipulate the court to hold the children in foster care"; that DSS employees told Investigator Williams not to attend a hearing unless subpoenaed by DSS because he would have testified that he found no cause for non-secure custody; and that "Defendant Simmons deceived Plaintiff Rogers['s] attorney Sarita Mallard stating that he had an order for removal." 2d Am. Compl. [DE-22] at 2-3 ¶ 3; 22 ¶ 90; 24 ¶ 105; 291 ¶ 138.
Examples of allegations related to conduct directed at Bruton include: McClain left a threatening voicemail message for Bruton, threatened Bruton in person at her home, and made a false report; removal of the minors from their placement with Bruton without a report of abuse or neglect; Phillips made a false statement before a CCDSS panel "with malice in an attempt to discredit Plaintiff Bruton['s] character"; and Phillips scheduled an appointment for Bruton at the hospital for the youngest infant at the same time a hearing was to be held to prevent Bruton from attending the hearing. See 2d Am. Compl. [DE-22].
The DSS Defendants are entitled to absolute immunity for the filing of the petitions seeking custody of the minors, including for any false allegations contained in the petitions or fraud on the court related to the filing of the petition, its content, or in-court statements concerning the petition. See Vosburg, 884 F.2d at 138 (holding that public officials, including social workers, are entitled to absolute immunity for conduct that could be deemed prosecutorial, such as preparing and filing a removal petition); Sahoo, 2017 WL 1102623, at *6 (holding that a social worker was entitled to absolute immunity in prosecutorial functions even if the social worker intentionally misrepresented facts in a petition or in testimony).
Some examples of the in-court conduct Plaintiffs take issue with that is covered by absolute immunity are: the July 2018 hearing at which neither parent was present or notified; an October 2018 hearing at which Goodwin was awarded custody of the infant; a June 2019 hearing at which GAL Carter requested a continuance; a July 2019 hearing at which Farrior stated that the children had informed her that Bruton was holding them under cold water and beating them with a belt; an October 2019 hearing at which CCDSS did not request to close the case; and a June 2020 hearing at which the youngest infant was placed in foster care, GAL Advocate Conrad agreed with the decision, and Phillips advised the court of Bruton's social media campaign. See generally, 2d Am. Compl. [DE-22].
Farrior is entitled to absolute immunity for the alleged conduct that she committed perjury before the court, 2d Am. Compl. [DE-22] at 22 ¶ 90, because providing testimony, even if false, in the removal proceeding is a protected prosecutorial function directly related to the judicial process. Sahoo, 2017 WL 1102623, at *6.
The DSS Defendants are entitled to absolute immunity for the alleged conduct that they told Investigator Williams not to attend a hearing unless subpoenaed because he would have testified that he found no cause for non-secure custody. 2d Am. Compl. [DE-22] at 24 ¶ 105. The decision to call, or not to call, a witness at a hearing is a prosecutorial function directly related to the judicial process for which the DSS Defendants enjoy absolute immunity. See Savage v. Maryland, 896 F.3d 260, 270 (4th Cir. 2018) ("decisions about 'which witnesses to call' are among the 'sensitive issues' that prosecutors must address in their capacity as advocates as they prepare for trial, fully shielded by immunity").
Michael Simmons, an attorney for DSS, has absolute immunity for the alleged conduct that he "deceived Plaintiff Rogers['s] attorney Sarita Mallard stating that he had an order for removal" in violation of her constitutional rights. 2d Am. Compl. [DE-22] at 29 ¶ 138. "An attorney for the state who represents DSS in a proceeding involving the alleged abuse and neglect of a child is entitled to the same protection in her advocacy role that she would have if she were representing the state in a criminal proceeding." See Shirley v. Drake, 176 F.3d 475 (4th Cir. 1999) (citing Vosburg, 884 F.2d at 138). Plaintiffs allege that on July 16, 2020, DSS attempted to remove the minors from Bruton's home but she refused to turn them over without an order, and Simmons deceived Rogers's attorney by stating he did have an order for removal. 2d Am. Compl. [DE-22] at 29 ¶¶ 134-38. However, as an exhibit to their memorandum in support of the motion to dismiss, the DSS Defendants filed a copy of a court order dated July 16, 2020, which orders the removal of K.B. and L.R. from placement with Bruton. DSS Defs.' [DE-53-2]. The order also indicates that Sarita Mallard, Rogers's counsel, was present at the hearing. Id. at 1.
"If, on a motion under Rule 12(b)(6)... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). However, this rule is subject to several exceptions. "[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makar Issues & Rights, Ltd, 551 U.S. 308, 322 (2007). The court "may also consider documents... attached to the motion to dismiss, so long as they are integral to the complaint and authentic." Phillips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
The Second Amended Complaint references the custody proceedings in the Cumberland County District Court Juvenile Division, and those proceedings and resulting orders are integral to Plaintiffs' complaint. The DSS Defendants assert that the exhibit is a true copy of the July 16, 2020 order, and the order is file stamped. Plaintiffs contend that the July 16, 2020 order is fraudulent and assert that court transcripts will so prove, but they do not offer court transcripts or anything other than a bare assertion that the order is fraudulent. Pls.' Resp. [DE-66] at 1-4, 10-13. The court finds that the July 16, 2020 order is integral to the complaint and authentic, and it is also the type of document of which the court can take judicial notice. See Tessler v. Nat'l Broad. Co., 364 Fed.Appx. 5, 7 (4th Cir. 2010) (finding the district court did not abuse its discretion in rejecting the plaintiff's challenge to the authenticity of the material submitted by defendant that was integral to the complaint); Vlasaty v. Wake Cnty. Pub. Sch. Sys. Bd. of Educ., No. 5:17-CV-578-D, 2018 WL 4515877, at *3 (E.D. N.C. Sept. 20, 2018) (the court "may take judicial notice of public records without converting the motion to dismiss into a motion for summary judgment.") (citations omitted).
The July 16, 2020 order demonstrates that a judge ordered the removal of K.B. and L.R. from placement with Bruton, and Simmons was effectuating the court's order by conveying to Rogers's counsel that the court had ordered removal. See Evans, 578 Fed.Appx. at 233 (concluding DSS employees were entitled to absolute immunity from plaintiffs claim that they violated her due process rights in depriving her of her property when her assets were frozen and seized after DSS petitioned and obtained guardianship of plaintiff s elderly mother and also obtained a court order freezing many of the plaintiffs assets); Fullard v. Home, No. 5:17-CT-3159-FL, 2018 WL 3302732, at *3 (E.D. N.C. July 5, 2018) (court officer acting pursuant to the court's direction or to carry out the court's order was entitled to derivative judicial immunity, which is absolute), aff'd, 747 Fed.Appx. 162 (4th Cir. 2019).
Accordingly, because the DSS Defendants have absolute immunity for the acts forming the basis of Rogers's and the minors' substantive due process claims, it is recommended these claims be dismissed.
ii. Rogers's Procedural Due Process Claim
Rogers alleges that she was not given notice of the July 2018 hearing to adjudicate custody of the minors. 2d Am. Compl. [DE-22] at 15-16 ¶¶ 33-42. Providing notification of a hearing is acting in the role of an advocate and is closely related to the judicial hearing itself. See Booker, 583 Fed.Appx. at 148 (finding absolute immunity extended to DSS employee's alleged failure to notify the father of the child's removal and the resulting probable cause hearing) (citing Pusey v. City of Youngstown, 11 F.3d 652, 658-59 (6th Cir.1993)). Accordingly, the DSS Defendants are absolutely immune from Rogers's claim that she was not given notice of the July 2018 hearing, and it is recommended that the Rogers's procedural due process claim be dismissed.
The hearing resulted in a temporary adjudication order, [DE-53-1], and there are no allegations that Rogers failed to receive notice of any subsequent proceedings.
iii. Bruton's and the Minors' Fourth Amendment Claim
Bruton's Fourth Amendment claim for the search of her home and the minor plaintiffs' Fourth Amendment claim for the seizure of their persons stem from the same set of facts: Phillips attempted to transport the children to therapy in an alleged effort to unlawfully remove them and place them in foster care; on July 16, 2020, DSS and its employees involved the police in a search of Bruton's home; Defendants told the officers they could remove the children whenever they chose without a court order; Phillips, two other social workers, and three police officers arrived at Bruton's home, attempted to force entry, and threatened to imprison Bruton if she did not turn over the children; Bruton refused and stated that they were not going without an order; Simmons deceived Rogers's attorney and stated that he did have an order for removal; and Bruton later turned the minors over to Phillips at the Cumberland County Courthouse. Id. at 29 ¶¶ 132-139.
The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures. U.S. Const, amend. IV. A search conducted without a warrant issued upon a showing of probable cause is "per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted). The Fourth Circuit has held that "investigative home visits by social workers are not subject to the same scrutiny as searches in the criminal context." Wildauer v. Frederick Cnty., 993 F.2d 369, 372 (4th Cir. 1993) (holding that a search of a foster home by a social worker and sheriffs deputies was reasonable under the circumstances). However, this circuit has "not articulated the legal standard that applies to Fourth Amendment unlawful seizure claims in the child removal context." Susan Virginia Parker v. Henry & William Evans Home for Children, Inc., 762 Fed.Appx. 147, 155 (4th Cir. 2019).
As explained above, a judge ordered the minors' removal from Bruton's care on July 16, 2020, and the order provided for DSS to obtain the assistance of law enforcement to enter private property and take custody of the minors, to include forcible entry if necessary. [DE-53-2]. Therefore, neither Bruton's nor the minors' Fourth Amendment rights were violated. See Renter v. Washington Cnty. Supervisors, No. CV CCB-06-334, 2006 WL 8456668, at *3 (D. Md. Aug. 9, 2006) (finding no Fourth Amendment violation where DSS had obtained a prior court order authorizing the entry and removal of the plaintiffs elderly mother). Furthermore, even assuming there was no valid court order, qualified immunity protects Phillips's actions in involving law enforcement to search Bruton's home in an attempt to remove the minors, after Bruton refused to turn them over, as well as the ultimate removal of the minors.
The Fourth Circuit has "emphasized repeatedly, '[officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.'" Raub, 785 F.3d at 880-81. The qualified immunity analysis considers "(1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation." Id. (citations omitted). Because the Fourth Circuit "has never articulated a clear standard by which social workers' investigations should be judged" for Fourth Amendment violations, Words of Faith Fellowship, Inc. v. Rutherford Cnty. Dep't of Soc. Servs., 329 F.Supp.2d 675, 687 (W.D. N.C. 2004), Phillips did not violate a clearly established right. See Parker, 762 Fed.Appx. at 154-55 (holding that the defendants were entitled to qualified immunity because "a reasonable social worker would not have known that the initial seizure and continued withholding of the children violated the Fourth Amendment," for "the law for the removal of a child and the child's continued detention was not clearly established"); see also Ross v. Klesius, 715 Fed.Appx. 224, 226 (4th Cir. 2017) ("Even assuming, without deciding, that Defendants violated Ross' Fourth Amendment rights, their conduct in entering or directing others' entry into Ross' home to retrieve her foster children, under the circumstances presented, did 'not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'") (quoting Graham v. Gagnon, 831 F.3d 176, 182 (4th Cir. 2016)). The minors' claim that they were seized in violation of the Fourth Amendment, likewise, fails for the same reasons. See Parker, 762 Fed.Appx. at 154- 55. Accordingly, it is recommended that Rogers's and the minors' Fourth Amendment claims be dismissed.
3. Bruton's Fraud Claim
Bruton alleges that Simmons committed fraud in violation of North Carolina law when, on July 16, 2020, he "deceived Plaintiff Rogers['s] attorney Sarita Mallard stating that he had an order for removal." 2d Am. Compl. [DE-22] at 29 ¶ 138. In order to state a claim for fraud under North Carolina law, a plaintiff must plead with particularity facts showing (1) a false representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. Forbis v. Neal, 361 N.C. 519, 526-27, 649 S.E.2d 382, 387 (2007). Bruton cannot satisfy the first or, alternatively, the fifth elements necessary to state a claim for fraud.
First, Simmons's statement was not false because a court did, in fact, issue an order for the minors' removal on July 16, 2020. [DE-53-2]. Next, Simmons made the statement to Mallard, not to Bruton, and Plaintiffs' earlier filing indicates Bruton did not rely on Simmons's statement when she turned over the minors. A timeline of events, filed as Exhibit A to Plaintiffs' initial complaint, states that on July 16, 2020, Phillips attempted to remove the minors from Bruton's home, Bruton advised that the minors were not in imminent danger and so DSS needed a court order to remove them, Phillips stated a DSS attorney (presumably Simmons) was at the courthouse seeking an order to remove the minors, the judge granted the removal order, and the children were taken to the Cumberland County Courthouse and turned over to Phillips. Ex. 1 [DE-1-2] at 24-25. Therefore, Bruton's own supplemental filing demonstrates that she did not actually rely on Simmons's statement, nor was she damaged by Simmons's statement, because she turned the minors over later at the Cumberland County Courthouse in response to the judge's removal order, 2d Am. Compl. [DE-22] at 29 ¶ 139. See Wilson v. Dryvit Sys., Inc., 206 F.Supp.2d 749, 755 (E.D. N.C. 2002) (finding no "North Carolina cases in which a plaintiff has been permitted to recover on a fraud claim for misrepresentations that were made to third parties. However, even if plaintiffs could pursue such a cause of action, their claim would fail because they have produced absolutely no evidence to show that they actually relied on Dryvit's alleged misrepresentations to any third parties.") (citing Pitts v. American Sec. Ins. Co., 144 N.C.App. 1, 550 S.E.2d 179, 189 n.8 (2001) ("[t]o recover in an action for fraud in North Carolina, a Plaintiff must show actual reliance")), aff'd, 71 Fed.Appx. 960 (4th Cir. 2003). Accordingly, it is recommended that Bruton's fraud claim against Simmons be dismissed for failure to state a claim.
4. Claims Against Defendant Tamika Walker
The DSS Defendants contend that Tamika Walker has not been served and request the court strike the return of service filed as to her on March 24, 2021, which indicates the USMS served Walker by certified mail that was signed for by an individual not Walker, at the Robeson County Department of Social Services, [DE-28]. DSS Defs.' Mem. [DE-53] at 15-16. On November 22, 2021, the court entered an order addressing the alleged failure of service, as follows:
On March 24, 2021, the U.S. Marshals Service filed a return of summons [DE-28], indicating that it served defendant Tamika Walker on March 18, 2021 by certified mail. On May 10, 2021, a motion to dismiss the claims against Walker was filed and stated that the Robeson County Department of Social Services ("RCDSS") notified counsel that Tamika Walker is no longer employed by RCDSS, the initial certified mailing was received and the receipt presumably signed by an individual at RCDSS responsible for receiving the mail (the return receipt was not signed by Walker), and counsel has no information as to the status of the documents that were received by RCDSS. [DE-53] at 15- 16.
The court directs the Cumberland County Attorney's Office to provide the court with the last known address of Tamika Walker within fourteen (14) days from the filing of this order, or to inform the court by the same deadline that no such address is available. If defendant is no longer employed by the agency, the information shall be provided under seal, and the court will disclose the information only to the U.S. Marshals Service to effect service of process.
The U.S. Marshals Service is directed to attempt service of Tamika Walker at the new address if one is provided. Plaintiff is advised that the action against this defendant may be subject to dismissal without prejudice pursuant to Rule 4(m), Fed. R. Civ. P., if service cannot be made. See also Notice to PI. of Failure to Make Service Within 90 Days [DE-71].[DE-72]. On January 14, 2022, the USMS filed a return of service Form USM-285, indicating that "[t]his process was served at Ms. Walkers [sic] place of employment. Ms. Walker's Supervisor Danyle Williams spoke with Ms. Walker and verified the DUSM could leave the process with her and she would get it to the defendant." [DE-78].
"Failure to properly serve a defendant prevents a court from obtaining personal jurisdiction over the defendant and entitles the defendant to dismissal under Rule 12(b)(2)." Fordham v. Doe, No. 4:ll-CV-32-D, 2011 WL 5024352, at *3 (E.D. N.C. Oct. 20, 2011) (citations omitted). Moreover, a defendant is entitled to dismissal under Rule 12(b)(5) where service is deficient, and the "plaintiff must establish that service was adequate when a defendant seeks dismissal pursuant to Rule 12(b)(5)." Id. (citation omitted).
Under the Federal Rules, an individual may be served by
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.Fed. R. Civ. P. 4(e). Under North Carolina law, an individual may be served "[b]y delivering a copy of the summons and of the complaint to the natural person or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein" or by delivering the same to "an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute." N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 4(j)(1) a, b; see also Patten v. N.C. Dep't of Pub. Safety, No. 5:15-CT-3118-FL, 2016 WL 1595382, at *3 (E.D. N.C. Apr. 20, 2016) (outlining the service requirements for an individual). Because Plaintiffs are proceeding in forma pauperis, they may rely on the USMS to serve the summons and complaint. See Johnson v. Fields, No. 2:14-CV-38-FDW, 2016 WL 3850167, at *3 (W.D. N.C. July 13, 2016) ("Plaintiffs who are proceeding in forma pauperis must rely on the district court and the U.S. Marshals Service to effect service of process according to 28 U.S.C. § 1915.") (citing 28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3)). Importantly, however, the plaintiff must provide the correct service information, including the defendant's address, for the U.S. Marshals to effect service. See Scott v. Md. State Dep't of Labor, No. 15-1617, 2016 WL 7378091, at *4 (4th Cir. Dec. 20, 2016) (per curiam) (citing Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993) ("[I]t [is the plaintiffs] responsibility to provide proper addresses for service ....")).
Based on the January 14, 2022 return of service, it appears that Walker was properly served with the summons and complaint in this action when the Deputy I .S. Marshal left the documents with Walker's supervisor at Walker's place of employment. See Richardson v. Wellpath Health Care, No. L20-CV-777, 2021 WL 5235334, at *9 (M.D. N.C. Nov. 10, 2021) (recommending denial of a motion to dismiss for failure of service where service of process was made by sending the papers to the defendant's place of business by certified mail) (citing Moore v. Cox, 341 F.Supp.2d 570, 573 (M.D. N.C. 2004)). Furthermore, according to the statement of the Deputy Marshal on the return, Walker now has actual notice of this action. Id. (citing Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963) ("[W]here actual notice of the commencement of the action and the duty to defend has been received by the one served, the provisions of Rule 4 .. should be liberally construed to effectuate service and uphold the jurisdiction of the court, thus insuring the opportunity for a trial on the merits.")); Collins v. First Fin. Servs., Inc., No. 7:14-CV-288-FL, 2015 WL 6449304, at *2 (E.D. N.C. Oct. 23, 2015) ("'When the process gives the defendant actual notice of the pendency of the action, the rules ... are entitled to a liberal construction' and 'every technical violation of the rule or failure of strict compliance may not invalidate the service of process.'") (quoting Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)). Accordingly, it is recommended that the motion to dismiss for failure of service be denied, and the request to strike is denied as futile.
Notwithstanding, Walker should be dismissed from this action because she is entitled to absolute immunity for her alleged conduct. Plaintiffs allege that Walker "initiated my children's case on April 6, 2018 by filing a fraudulent petition upon the court to retain my newborn son, minor Plaintiff K.G. in foster care as an elaborate scheme orchestrated by CCDSS its employees and agents"; advised the court during an April 11, 2018 hearing that the caregiver would need special training to care for a premature infant; and Walker did not suspect or have reason to believe the minors were abused or neglected when filing the petition and did not state the specifics of the allegations. 2d Am. Compl. [DE-22] at 7 ¶ 37, 13 ¶ 16, 14 ¶ 22. Each of these actions relates directly to the decision to file, or the filing of, the removal petition and providing statements to the court in prosecution of the removal petition. These are functions for which Walker is entitled to absolute immunity, even if she misrepresented facts in the petition or in her statements to the court. Vosburg, 884 F.2d at 138; Sahoo, 2017 WL 1102623, at *6. Accordingly, it is recommended that Walker be dismissed as a defendant.
Because Plaintiffs proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(ii), (iii).
* * *
In sum, it is recommended that the DSS Defendants' motion to dismiss be allowed and that James Dill, Brandy Briza, Tamika Walker, Virgie Devane-Hayes, LaTanya Burgan, Megan Phillips, Shakeisha McClain, Sharita Hamilton, Michael Simmons, Brenda Reid Jackson, and Danielle Farrior be dismissed from this matter because Plaintiffs have failed to state a claim against them or they are entitled to immunity for their alleged conduct.
B. The GAL Defendants' Motion to Dismiss [DE-58]
The GAL Defendants move to dismiss the claims against them in the Second Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(1), (2), and (6), for lack of subject matter and personal jurisdiction and failure to state a claim. [DE-58].
1. Official Capacity Claims
The GAL Defendants, Mariamarta Conrad, a Guardian Ad Litem Volunteer for North Carolina's 12th District, and Carrie Carter, a Guardian Ad Litem Supervisor for North Carolina's 12th District, contend that the official capacity constitutional claims asserted against them for violations of Due Process and the Fourth Amendment, pursuant to 42 U.S.C. § 1983, are barred by the Eleventh Amendment.
The Eleventh Amendment provides that "[t]he 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 Subjects of any Foreign State." U.S. Const, amend. XI. "Under the Eleventh Amendment, . neither a State nor its officials in their official capacity may be sued for damages in federal court without their consent." Gamache v. Cavanaugh, 82 F.3d 410, 1996 WL 174623, at *1 (4th Cir. 1996); see also Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995). Such immunity "extends as well to state agencies and other government entities properly characterized as 'arms[s] of the State.'" Gray, 51 F.3d at 430 (quoting Mt. Healthy City Sch. Dist. Bd of Educ. v. Doyle, 429 U.S. 274, 280 (1977); then citing Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)); see also Snow v. N.C. Dep't Health & Human Servs., No. 5:12-CV-724-FL, 2014 WL 808646, at *5 (E.D. N.C. Feb. 28, 2014) ("The Supreme Court has specifically held the Eleventh Amendment to preclude claims against a State and its instrumentalities brought pursuant to 42 U.SC. § 1983.") (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)). However, sovereign immunity may be waived or abrogated where the state agency has waived its immunity or where Congress has overridden that immunity. Philips v. N.C. State, No. 5:15-CV-95-F, 2015 WL 9462095, at *6 (E.D. N.C. Dec. 28, 2015) (citing Will, 491 U.S. at 66).
Plaintiffs allege that Cumberland County waived governmental immunity, an allegation the court rejected as "a legal conclusion without any supporting details," Rogers, 2021 WL 916924, at *7, but Plaintiffs have not alleged any facts from which the court could find that sovereign immunity has been waived by the state or abrogated by federal statute as to the § 1983 claims. Accordingly, the GAL Defendants are entitled to sovereign immunity for the official capacity constitutional claims brought against them under § 1983, and it is recommended that those claims be dismissed.
2. Individual Capacity Claims
The GAL Defendants contend the remaining individual capacity claims under § 1983 for violation of Rogers's and the minor Plaintiffs' substantive due process rights, Rogers's procedural due process rights, Bruton's Fourth Amendment rights, and the minor plaintiffs' Fourth Amendment rights are subject to dismissal under the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971) and its progeny, and because Plaintiffs have failed to state a claim upon which relief can be granted. GAL Defs.' Mem. [DE-59] at 10-19.
First, the court considers whether Younger abstention is appropriate. Younger abstention requires a federal court to abstain if there is: "(1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the federal lawsuit." Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 165 (4th Cir. 2008); see Parsons v. McDaniel, 784 Fed.Appx. 164, 165 (4th Cir. 2019) (affirming court's abstention under Younger from exercising jurisdiction over § 1983 claim seeking the return of a child to her parents) (citing Moore v. Sims, 442 U.S. 415, 435 (1979) (explaining that "[f]amily relations are a traditional area of state concern" and that the court is "unwilling to conclude that state processes are unequal to the task of accommodating the various interests and deciding the constitutional questions that may arise in child-welfare litigation")). However, "Younger abstention is limited by certain narrowly tailored exceptions. When a state action is continued in bad faith, when it constitutes harassment, or when it could result in irreparable injury without federal intervention, abstention is inappropriate." Berry v. S.C. Dep't of Soc. Servs., 121 F.3d 697 (4th Cir. 1997). Plaintiffs allege that the removal action and subsequent action by Defendants constituted harassment of her family. 2d Am. Compl. [DE-22] at 11; 27 ¶ 122. Accordingly, it is not clear that Younger abstention is appropriately applied in this case. See Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) ("[A] federal court's obligation to hear and decide a case [within its jurisdiction] is virtually unflagging.") (citation and internal quotation marks omitted).
Alternatively, the GAL Defendants contend Plaintiffs have failed to allege facts to support a plausible Fourth Amendment claim against them, and the remaining claims are barred by absolute quasi-judicial immunity. GALDefs.' Mem. [DE-59] at 14-19. The factual allegations with respect to the GAL Defendants are as follows:
Defendant Carrie Carter, is a Cumberland County volunteer guardian ad litem who was assigned by the court to represent the best interest of my children beginning April 6, 2018 until on or about September 14, 2020 after learning of the filing of a complaint against her.
Defendant Mariamarta Conrad is a licensed attorney advocate for the Cumberland County GAL program whose responsibilities is to advise, and assist the GAL Defendant Carter in the proper administration of law as it concerns the best interest of children involved in child welfare abuse, neglect, and dependency cases. She was assigned to my case beginning April 5, 2018 until recently, following the filing of this complaint.
On or about, June 12, 2019, a permanency hearing was held. GAL Carrie Carter requested a continuance due to her attempting to make an unscheduled home visit and no one was at home, although she stated there was a car in the yard.
The Hon. Judge Olivera ordered Defendant GAL Carter to make another unscheduled visit to the Harnett County home, accompanied by the Defendant McClain, and to request the assistance of law enforcement if necessary.
On June 21, 2019, Defendants GAL Carter and DSS McClain did make an unscheduled visit to assess the minor Plaintiffs for release.
Defendants Carter and DSS McClain then proceeded to contact Harnett County sheriff department for assistance.
Once inside, Defendant McClain was very frustrated at this point and begin to intimidate and threaten Plaintiff Bruton before the officer. Defendant Carter and the officer remained silent and observed.
Defendant Reid-Jackson did advise that although the conduct was inappropriate, the Hon. Judge Olivera had ordered the children to be removed, and due to the Defendants Carter and McClain having to get police assistance and because the GAL had stated that she had made an unscheduled visit and there was no answer. (email attached)
The children were returned on or about September 14, 2019, and prior to the next court hearing a meeting was held over the phone with CCDSS Defendants Farrior, and DSS Rice, who was assigned after Defendant McClain's unlawful acts against the Plaintiff Bruton; GAL Carter and others.
Defendant Morton objected to the review of events in the court, but the Judge overruled as it was an informal hearing. The Judge did decide to place the infant in foster care simply due to Defendant Phillips stating that she was concerned that the mother Plaintiff Rogers would remove the infant from the care of the grandmother. Defendant, Conrad who was the Gal advocate agreed with the decision as she has also participated in retaliatory acts of malice along with CCDSS and its employees and agents since 2019 when the children were unlawfully removed.
At the hearing on June 29, 2020 Defendant Phillips advised the court that Plaintiff Bruton had violated child protection laws and shared confidential information. Defendant Conrad, the representative for the infant agreed and stated that due to Plaintiff Bruton also having two prior CPS reports though unsubstantiated they were concerning for the child's safety.
CCDSS and its employees and agents and Defendant Conrad should know that child protection policies pertain to agencies and facilities use and procedures and not that of the parent or care giver, who have the discernment of sharing information so long as it does not cause harm.2d Am. Compl. [DE-22] 10 ¶ 58, 59; 18 ¶¶ 54-56; 19 ¶¶ 59, 61; 21-22 ¶ 82; 23 ¶ 93; 27 ¶ 123, 125; 28 ¶ 126 (grammatical errors in original).
As explained above, Bruton's Fourth Amendment claim for the search of her home and the minor plaintiffs' Fourth Amendment claim for seizure of their person appear to stem from the events of July 16, 2020. Id. at 29 ¶¶ 132-139. There are no allegations that either of the GAL Defendants were involved in the July 16, 2020 search of Bruton's home or the minors' removal at that time. Plaintiffs do allege that on June 21, 2019, "Defendants GAL Carter and DSS McClain did make an unscheduled visit to assess the minor Plaintiffs for release," "Defendants Carter and DSS McClain then proceeded to contact Harnett County sheriff department for assistance," and "once inside, Defendant McClain was very frustrated at this point and begin to intimidate and threaten Plaintiff Bruton before the officer. Defendant Carter and the officer remained silent and observed." Id. at 18-19 ¶¶ 56, 59, 61. These allegations do not support a claim that Carter entered Bruton's home without consent or searched Bruton's home, and the minors were not removed on this occasion. Accordingly, it is recommended that Bruton's and the minor plaintiffs' Fourth Amendment claims against the GAL Defendants be dismissed.
Finally, the GAL Defendants are entitled to absolute immunity from the remaining substantive and procedural due process claims. The Fourth Circuit has extended quasi-judicial immunity to guardians ad litem in custody cases where their actions occurred within the judicial process. Fleming v. Asbill, 42 F.3d 886, 889 4th Cir. 1994). In Fleming, the court found the GAL to be immune from § 1983 liability, even if the GAL lied to the judge in open court. Id. Here, the above complained of acts involving the GAL Defendants were in-court representations and a home visit ordered by the judge, all of which "occurred within the judicial process." Id.; Grant v. S.C. Dep't of Soc. Servs., CPS, No. CV 2:18-1804-RMG-BM, 2019 WL 2093861, at *5 (D.S.C. Feb. 14, 2019) (concluding defendant was entitled to absolute immunity from § 1983 claims for duties performed within the confines of her role as a guardian ad litem) (citing Fleming, 42 F.3d at 889), report and recommendation adopted, 2019 WL 1110795 (D.S.C. Mar. 11, 2019). Accordingly, the GAL Defendants are entitled to absolute judicial immunity from § 1983 liability for the substantive and procedural due process claims, and it is recommended that these claims be dismissed.
* * *
In sum, it is recommended that the GAL Defendants' motion to dismiss be allowed and Mariamarta Conrad and Carrie Carter be dismissed from this matter, because they have sovereign immunity for the official capacity claims, and Plaintiffs have failed to state a claim against them or they have immunity for the individual capacity claims.
III. CONCLUSION
For the reasons stated herein, the motion for extension of time, [DE-62], and motion to appoint a representative, [DE-63], are denied as moot, and it is recommended that the motions to dismiss [DE-52, -58] be allowed and Defendants James Dill, Brandy Briza, Tamika Walker, Virgie Devane-Hayes, LaTanya Burgan, Megan Phillips, Shekeisha McClain, Sharita Hamilton, Michael Simmons, Brenda Reid Jackson, Danielle Farrior, Marimata Conrad, and Carrie A. Carter be dismissed from this action.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 15, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).