Arsan v. Keller
| Decision Date | 16 August 2018 |
| Docket Number | Case No. 3:17-cv-121 |
| Parties | NANCY ARSAN, Plaintiff, v. BETH KELLER, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #68); OVERRULING PLAINTIFF'S OBJECTIONS (DOC. #69); SUSTAINING IN PART AND OVERRULING IN PART COUNTY DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. #47); SUSTAINING DEFENDANT JENNIFER MCDERMOTT'S MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. #57).
This matter is currently before the Court on Magistrate Judge Sharon L. Ovington's Report and Recommendations, Doc. #68, and Plaintiff's Objections to that judicial filing, Doc. #69. Defendant Jennifer McDermott has filed a Response to Plaintiff's Objections, Doc. #70, and Defendants Beth Keller, Kristi Weber, Christina Knowles, Amy Weinman, Amy Amburn, Lana Penney, Joshua Coomer, Chad King, Greene County Department of Job & Family Services, Children's Services Division ("Children's Services"), Greene County, Ohio, Board of Commissioners and Greene County ("County Defendants") have filed a Response in Opposition to Plaintiff's Objections, Doc. #71. The Court has also reviewed and considered the Reply to Defendant Jennifer McDermott's Response, Doc. #72. Magistrate Judge Ovington recommended that the Motion for Judgment on the Pleadings filed by the County Defendants, Doc #47, be granted, in part, as to Plaintiff's first cause of action against Defendants Keller, Weinman, Auburn, Penney, Coomer, and King; and as to Plaintiff's second, third, fourth, fifth, sixth, and seventh causes of action; that County Defendants' Motion for Judgment on the Pleadings, Doc #47, be denied, in part, as to Plaintiff's first cause of action against Defendant Weber; and that Defendant Jennifer McDermott's Motion for Judgment on the Pleadings, Doc #57, be granted. Based upon the above-mentioned pleadings and for the reasons set forth below, the Court adopts the Report and Recommendations of Magistrate Judge Sharon L. Ovington, Doc. #68, in their entirety.
This case concerns Plaintiff Nancy Arsan's loss of the custody of her two children, Karson and Kaden. According to Plaintiff, information unconstitutionally obtained by Children's Services was used in the Greene County Juvenile Court to deprive Plaintiff of the custody of her sons and to award custody to the fathers of Kaden and Karson instead. Plaintiff, who is of Syrian descent, a Maronite Christian and works as an English interpreter, claims that Defendants, largely the employees and supervisors of Children's Services, violated her Fourth Amendment right against unreasonable search and seizure, Fifth Amendmentright against self-incrimination, and Fourteenth Amendment rights of equal protection under the law and due process of law. Plaintiff has also alleged a claim of conspiracy by Defendants to deprive her of her constitutional rights. Finally, Plaintiff claims that Defendants Children's Services, Greene County, Ohio, and the Greene County Board of Commissioners failed to train and properly supervise their employees and that Defendants Keller, Weinman, Amburn, Penney, Coomer and King should not be granted qualified immunity.
The Complaint alleges that on April 29, 2015, Defendant Weber, a caseworker for Defendant Children's Services, without a warrant or consent and without identifying herself, pushed her way into Plaintiff's residence and told Plaintiff that there was a report she was abusing drugs and neglecting her children. Defendant Weber allegedly looked through text messages on Plaintiff's cell phone and later searched through rooms and opened a closet. At one point, Defendant Weber told Plaintiff that she could not understand her due to her accent. After twice telephoning Defendant McDermott, a former employee of Children's Services and the aunt of Kaden, Defendant Weber told Plaintiff that she needed to admit to something or Karson, who was with Plaintiff at her residence, would be removed on an emergency basis. Plaintiff was then allegedly told by Defendant Weber that she (Weber) would not leave unless Plaintiff submitted to a drug test. Under duress, Plaintiff's mouth was swabbed. During this time, Plaintiff admitted to having previously smoked marijuana and taken Adderall for ADHD. Plaintiff alleged that she agreed to a safety plan for Karson and consented to herfriend, Brittany Hunter, as supervisor, only because Plaintiff was threatened with removal of her son. At the time of this meeting, Kaden was with Defendant McDermott. Plaintiff was told to report the next day to Children's Services.
The following day at Children's Services, Defendant Keller told Plaintiff that she was acting too emotional and that people in this country would find her crazy for acting that way. Plaintiff's request for a neutral caseworker was denied and Defendant McDermott, with no background check or drug test, was named supervisor of the safety plan for Karson. Thereafter, Plaintiff's mother arrived from Lebanon and became supervisor of the safety plan for Karson. However, based on a tip that the plan had been violated, Defendant Weber later returned to Plaintiff's premises accompanied by a police officer and Plaintiff's mother was removed as supervisor. According to the Complaint, Plaintiff agreed, again under duress, that Defendant McDermott could be the supervisor although later Karson's father and Kaden's father became supervisors of the safety plan for their respective sons.
Because Plaintiff was told by Defendant Weber that her drug test was positive for high levels of methamphetamines and amphetamines, she went to Children's Services to obtain a copy of the test. At that time, Plaintiff overheard a comment made to Defendant Weber "that the foreign lady was still in the waiting room." Plaintiff was not given a copy of the test until a few months later.
The Greene County Juvenile Court held a hearing on May 22, 2015, which was attended by Plaintiff and her counsel. At the hearing, Defendant Weber testified that she had received a report that Plaintiff was using methamphetamine,physically abusing her children and had been seen smoking crack cocaine. Defendant Weber testified that she informed Plaintiff of these allegations when she first visited Plaintiff's home. Defendant Weber testified at the custody hearing that she had not received the results of Plaintiff's second drug test. Allegedly, the second test was negative and had been with Children's Services prior to the hearing; however, this second test was given to the wrong person. Following the May 22nd hearing, temporary custody of Karson was awarded to his father and because he did not live in Greene County, the involvement of Children's Services as to Karson was terminated. A finding was later approved by Defendant Weinman of Children's Services that physical abuse and neglect of the two children were substantiated and custody of Kaden was given to his father.
Children's Services gave Plaintiff a series of steps to complete in order to be re-united with her children, one of which included a psychological evaluation plus two years of group and individual therapy. According to the Complaint, Plaintiff's psychologist and psychiatrist, whom she had been seeing for some four years, advised that there was no basis for further therapy. Defendant Weber, however, allegedly called Plaintiff's therapist and suggested that the diagnosis was incorrect and should be changed. Plaintiff has also alleged that the work of Defendant Weber was reviewed and ratified by supervisors, Defendants Amburn, Penney, Coomer and King, and that Defendants Weber, McDermott and Keller had personal relationships and were Facebook friends.
County Defendants filed a Motion for Judgment on the Pleadings, Doc. #47, Plaintiff filed a Response, Doc. #49, and County Defendants filed a Reply, Doc. #53. Defendant McDermott filed a Motion for Judgment on the Pleadings, Doc. #57, and Plaintiff filed her Response, Doc. #58.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendations to which an objection is made. The Court may accept, reject, or modify, in whole or in part, the magistrate judge's findings, may receive further evidence, or recommit the matter to the magistrate judge with instructions. Id. See also Fed. R. Civ. P. 72 (b)(3).
In this case, Plaintiff has objected to all recommendations of Magistrate Judge Ovington with the exception of the recommendation that Defendant Children's Services (identified improperly by Plaintiff as "Greene County Children's Services Board") be dismissed due to it not being sui juris, given that it is under the supervision and control of Defendant Greene County Board of Commissioners. Because Defendant Children Services is a branch of the Greene County government and under the direction and control of Defendant Greene County Board of Commissioners, Defendant Children Services is dismissed. Because Plaintiff has objected to all other recommendations of the MagistrateJudge, the Court will review these objections de novo and in accordance with Fed. R. Civ. P. 72.
Motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) are analyzed under the same standard as motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. National Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (internal citation and quotation marks omitted). However, the court need not accept as true legal...
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