Bambach v. Lapeer Cnty.
| Decision Date | 29 May 2020 |
| Docket Number | CASE NO. 18-14039 |
| Parties | MARK BAMBACH, et al., Plaintiffs, v. LAPEER COUNTY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
HON. DENISE PAGE HOOD
ORDER GRANTING IN PART AND DENYING IN PART STATE DEFENDANTS' MOTION TO DISMISS [#31], GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO STRIKE [#32], GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO STRIKE [#33], GRANTING PLAINTIFFS' MOTION TO STRIKE [#35]
Plaintiffs Mark Bambach and his minor children, M.B. and E.B., filed this 42 U.S.C. § 1983 action on December 23, 2018, alleging that Defendants violated their Fourth, Fifth, and Fourteenth Amendment rights: (1) during a child protective services investigation; (2) when removing Plaintiff Mark Bambach's ("Bambach") two daughters from his home; and (3) pursuing and participating in judicial proceedings against Bambach. On July 5, 2019, Defendants Gina Moegle ("Moegle"), Susan Shaw ("Shaw"), and Stacy May ("May"), all employees of the Michigan Department of Health and Human Services ("MDHHS") in Lapeer County (collectively, the " ") filed a Motion to Dismiss Plaintiff's Second Amended Complaint. [ECF No. 31] Plaintiffs filed a response, to which the State Defendants replied. On July 8-9, 2019, Plaintiffs filed three Motions to Strike the State Defendants' Affirmative Defenses. [ECF Nos. 23, 33, 335] The State Defendants filed a collective response to the Motions to Strike. The Court held a hearing on September 11, 2019 on the four motions.
For the reasons that follow, the Court grants in part and denies in part the Motion to Dismiss [ECF No. 31]; grants in part and denies in part the Motion to Strike the State Defendants' Affirmative Defenses 2, 4, 12, 17, 18, 19, 20, 21, 22, 30, 32, 33, and 37 [ECF No. 32]; grants in part and denies in part the Motion to Strike the State Defendants' Affirmative Defenses 8, 14, 16, 30, 35, 38, 39, and 40 [ECF No. 33]; and grants the Motion to Strike the State Defendants' Affirmative Defenses 3, 6, 23, 24, 25, 26, 27, and 29 [ECF No. 35].
Bambach and his ex-wife, Amy, were the parents of minor children, Plaintiffs M.B. and E.B. (the "Children"). Bambach and Amy were divorced effective September 2013, and Bambach was the custodial parent, with Amy seeing the Children very little between November 2012 and April 2015. Beginning in May 2015, Amy began seeing the Children more. Amy was scheduled to have the Childrenfrom December 23, 2015 to the morning of December 25, 2015. Instead, due to Amy's contentions that Bambach was sexually abusing the Children, the Children were not returned to Bambach on December 25, 2015 and he did not regain custodial rights until November 2016.
Plaintiffs brought this Section 1983 action against Defendants after a Child Protective Services ("CPS") investigation and ensuing events resulted in the Children not being permitted to return to Bambach's home for more than 10 months. Plaintiffs allege in the Second Amended Complaint that:
On Friday, 12/25/15, Despite having no warrant or authorized petition, Moegle notes, in her 12/25/15 5:30 PM entry, that "Amy was informed that this worker will call Mark and inform him that the girls are not returning home until CPS can investigate." (see CPS Investigation Report, p. 8, 12/25/15 5:30 PM entry (emphasis added [by Plaintiffs])).
ECF No. 9, PgID 173 (¶ 39). Plaintiffs allege that Bambach was told on December 29, 2015 that the Children would not be returned to him until the CPS investigation was complete:
ECF No. 9, PgID 174 (¶ 42).
Plaintiffs allege that Moegle, an unlicensed CPS investigator at the MDHHS in Lapeer County, was investigating the claims that Bambach sexually abused his daughters until January 13, 2016, when she signed a removal petition, which was heard by the Court the next day. Id. at 194. Plaintiffs allege that Moegle made false statements and omissions to justify the seizure of his daughters, particularly after Bambach informed Moegle on December 30, 2015 that he would not speak to law enforcement and was taking the Fifth Amendment. Id. Plaintiffs further allege that Moegle "knowingly made false statements and omissions in order to 'justify' her removal of the Bambach children" from Bambach's home. [ECF No. 9 at ¶¶ 153-156, 165-167, 234-235]
Shaw was a licensed CPS Supervisor with the MDHHS in Lapeer County and Moegle's supervisor during the time period relevant to this action. Plaintiffs allege that, on December 30, 2015, Moegle conducted a Case Conference with the Children's Supervisor (Shaw), who was provided information regarding the case. ECF No. 9, PgID 211. On January 12, 2016, Moegle conducted another Case Conference with Shaw at the Lapeer County MDHHS office. Shaw was provided information regarding the case, and this Case Conference was deemed a "Successful Supervision." ECF No. 9, PgID 211. Moegle stated in her deposition that Shaw was the one whoauthorized the Petition. See ECF No. 9, PgID 212.
May was a CPS Ongoing Worker with the MDHHS in Lapeer County with a Master's in Social Work and a limited licensed Counselor requiring supervision by someone fully licensed. May did not become involved in the MDHHS case until after the Court ordered the Children removed from Bambach's custody. Plaintiffs allege that May, as the Ongoing Worker on the MDHHS case, "knew or should have known that the order to remove the Bambach Children . . . was based upon Moegle knowingly making falsities and omissions." [ECF No. 9 at ¶¶ 271-272, 275]
Plaintiffs assert that all of their claims for relief relate to the investigative and administrative actions by the State Defendants: (a) removing the Children from Bambach's custody without a warrant in violation of the 4th Amendment (Moegle); (b) removing the Children from Bambach's custody without affording Plaintiffs their procedural due process rights, in violation of the 14th Amendment (Moegle and Shaw); (c) removing the Children from Bambach's custody without any justification in violation of their 14th Amendment substantive due process rights (Moegle and Shaw); (d) executing a removal order in violation of the 4th Amendment which was issued based upon false statements and omissions that were made to the judge and which the judge relied upon in issuing that removal order (Moegle and Shaw); (e) implicitly authorizing, approving, or knowingly acquiescing to a subordinate'sunconstitutional conduct (Shaw); (f) failing to intervene when May knew that Moegle executed a removal order in violation of the 4th Amendment which was issued based upon false statements and omissions that were made to the judge and which the judge relied upon in issuing that removal order (May); and (g) imposing severe sanctions for failing to waive the 5th Amendment right against self-incrimination (Moegle).
In deciding a motion brought pursuant to Rule 12(c), the standard is the same as that used in evaluating a motion brought under Fed.Civ.P. 12(b)(6). See, e.g., Stein v U.S. Bancorp, et. al, 2011 U.S. Dist. LEXIS 18357, at *9 (E.D. Mich. February 24, 2011). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff's complaint. The Court must accept all well-pleaded factual allegations as true and review the complaint in the light most favorable to the plaintiff. Eidson v. Tennessee Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007); Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006).
As a general rule, to survive a motion to dismiss, the complaint must state sufficient "facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint must demonstrate more than a sheer possibility that the defendant's conduct was unlawful. Id. at 556. Claimscomprised of "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In this case, the key issue is when the Children were "removed" from Bambach's home/custody; it is an issue that permeates the claims and defenses of Plaintiffs and the State Defendants, respectively.
The State Defendants assert that the Children were not removed until January 15, 2016, when the Lapeer County Family Court issued an Order of Removal that preliminarily and temporarily but formally deprived Bambach of custodial rights. The State Defendants suggest that Bambach could have pursued his rights to custody of the Children at any time prior to the entry of the Order of Removal, as he had custodial rights of the Children between December 25, 2015 and January 15, 2016.
Plaintiffs contend that the Children were removed from Bambach 20 days earlier, on December 25, 2015, when Moegle determined that she would call Bambach and "inform him that the girls are not returning home until CPS can investigate." ECF No. 9, PgID 173 (¶ 9). Plaintiffs also allege that "Moegle removed the BambachChildren from their custodial home [at Bambach's home] on 12/25/15 . . . without first obtaining judicial pre-approval or a warrant." ECF No. 9, PgID 194. For these reasons, Plaintiffs allege that the removal of the Bambach Children occurred without notice or consent; that Bambach was not...
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