Byrd v. Buckner, CASE NO. 2:18-CV-122-WKW [WO]

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
PartiesSANDY BYRD, et al., Plaintiffs, v. NANCY BUCKNER, in her personal and individual capacity and in her official capacity as Commissioner of the Alabama Department of Human Resources, et al., Defendants.
Docket NumberCASE NO. 2:18-CV-122-WKW [WO]
Decision Date06 September 2018

SANDY BYRD, et al., Plaintiffs,
NANCY BUCKNER, in her personal and individual capacity
and in her official capacity as Commissioner of the Alabama Department of Human Resources, et al., Defendants.

CASE NO. 2:18-CV-122-WKW [WO]


September 6, 2018



Plaintiffs Sandy Byrd, Jonathan Ponstein, Leeann Ponstein, A.P., Monica Hardman, and Matthew Lawrence allege that Alabama Department of Human Resources ("DHR") officials deprived them of procedural due process in violation of 42 U.S.C. § 1983 and committed several state law torts. Plaintiffs' claims arise out of DHR placing their names on a Central Registry that catalogues the outcome of child abuse and neglect allegations, disclosing that information from the Central Registry to third parties, and failing to provide Plaintiffs with due process hearings to challenge the information on the Central Registry. Before the court is Plaintiffs' motion for a preliminary injunction, moving the court to compel DHR officials

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Nancy Buckner, Kim Mashego, and Carla Emmons to remove Plaintiffs' name from the registry until Plaintiffs have a due process hearing. (Doc. # 2.) This motion is due to be denied.


Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 28 U.S.C. § 1367. Personal jurisdiction and venue are not contested.


A party seeking a preliminary injunction must establish four elements: "(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that its own injury outweighs the injury to the nonmovant; and (4) that the injunction would not disserve the public interest." Thompson v. Alabama, No. 2:16-cv-783, 2017 WL 3223915, at *4 (M.D. Ala. July 28, 2017) (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000)). "A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant establishes the burden of persuasion as to the four prerequisites." Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). "The chief function of a preliminary injunction is to preserve the status quo until the merits of the controversy can be fully and fairly adjudicated." Powers v. Sec'y Fla. Dep't of Corr., 691 F. App'x. 581, 583 (11th Cir. 2017) (quoting Ne. Fla. Chapter of Ass'n

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of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1284 (11th Cir. 1990)).

Where, as here, the plaintiff seeks a mandatory preliminary injunction, the burden of persuasion is even higher. See Thompson, 2017 WL 3223915, at *4. A mandatory injunction "goes well beyond simply maintaining the status quo[,] is particularly disfavored and should not be issued unless the facts and law clearly favor the moving party." Powers, 691 F. App'x. at 583 (quoting Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)). "Only in rare instances is the issuance of a mandatory preliminary injunction proper." Harris v. Wilters, 596 F.2d 678, 680 (5th Cir. 1979).


With certain exceptions not applicable in this case, DHR is the state agency in Alabama responsible for investigation of all reports of suspected child abuse and neglect. Ala. Code § 26-14-6.1. Pursuant to its statutory authority, DHR has propounded regulations and established procedures for investigation and disposition of child abuse reports and for review, recording, and disclosure of the outcome of child abuse investigations. Ala. Code § 26-14-12; Ala. Admin. Code r. 660-5-34-.01, et seq.

"Once a report of suspected child abuse/neglect has been received, it must be investigated." Ala. Admin. Code r. 660-5-34-.04. Upon receipt of a report of child

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abuse or neglect, the state or county DHR promptly begins an investigation, which includes research into previous reports, home visits, interviews with the child and custodial parents, and so forth. Ala. Code § 26-14-7; Ala. Admin. Code r. 660-5-34-.05. After completing the investigation, the investigating DHR social worker reaches a disposition as to whether the child experienced abuse or neglect and the identity of the person responsible for the abuse or neglect. Ala. Admin. Code r. 660-5-34-.07. The worker assigns one of the following dispositions to the report of abuse and to the person alleged to be responsible for the abuse: (1) "Indicated," which means that "a preponderance of the credible evidence . . . and the professional judgment of the worker indicate that abuse/neglect has occurred;" (2) "Unable to Complete;" or (3) "Not Indicated," which means that "a preponderance of the credible evidence and professional judgment does not substantiate that abuse/neglect has occurred." Id.; see also Ala. Code § 26-14-8 (defining "indicated" and "not indicated").

The county DHR submits a complete written report of the investigation and disposition to DHR's statewide Central Registry for reports of child abuse and neglect. Ala. Code § 26-14-7(d); Ala. Code § 26-14-8; Ala. Admin. Code r. 660-5-34-.09. All persons who have been assigned an "indicated" disposition are given an opportunity to disagree with DHR's findings "through either a CA/N hearing or an administrative record review." Ala. Admin. Code r. 660-5-34-.08 (1)-(4). Some

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individuals qualify for a CA/N hearing based on the nature of their employment; the rest qualify only for administrative record review. Ala. Admin. Code r. 660-5-34-.08(4). The accused is afforded ten DHR working days from receipt of the notice to submit a written request for either a CA/N hearing or an administrative record review, whichever of the two is available to that person. Ala. Admin. Code r. 660-5-34-.08(4). If DHR receives no written request for review by the end of the ten-day period, the accused is considered to have waived review, and the "indicated" disposition is entered on the Central Registry. Id. Once an "indicated" disposition is entered on the Central Registry, it is confidential, but it may be released under certain circumstances to employers, prospective employers, licensing and certifying agencies, etc. Ala. Code § 26-14-8; Ala. Admin. Code r. 660-5-34-.08(4); Ala. Admin. Code r. 660-5-34-.09.

Only certain persons — for example, those certified to care for children, such as teachers and educators, and those employed by certified child care facilities, such as day care workers—are entitled to a CA/N hearing.1 A CA/N hearing is "an internal investigatory hearing that is fact finding in nature and designed to elicit the facts in an atmosphere that allows the person responsible for the abuse/neglect to contest the evidence presented against him [or her]." Ala. Admin. Code r. 660-5-

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34-.08(6); see also Ala. Code § 26-14-7.1 (providing due process rights for certain persons (such as educators) who have come under DHR investigation for child abuse or neglect). DHR bears the burden of persuasion at the CA/N hearing. Ala. Code § 26-14-7.1; Ala. Admin. Code r. 660-5-34-.08(6).

For the majority of Alabama citizens (everyone who is not a teacher, day care worker, or other person who falls within the narrow qualifications for entitlement to a CA/N hearing), only an administrative record review is available to challenge an "indicated" disposition.2 Ala. Admin. Code r. 660-5-34-.08(3)-(4). Unlike a CA/N hearing, which is "fact finding in nature" and allows the accused to directly challenge the "indicated" disposition using evidence outside the administrative record, an administrative record review is limited to consideration of whether the DHR's own administrative record "contains sufficient documentation based on a preponderance of credible evidence to support the 'indicated' disposition of child abuse/neglect." Ala. Admin. Code r. 660-5-34-.08(3). "Administrative record reviews are conducted by [DHR] staff who are not involved with the case." Ala. Admin. Code r. 660-5-34-.08(7). "The [administrative record] reviewers have the authority to overturn the dispositional finding of the worker and supervisor, and their decision is final." Ala. Admin. Code r. 660-5-34-.08(7) (emphasis added).

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After the conclusion of the CA/N hearing or administrative record review, there are no further procedures available for challenging the merits of an "indicated" disposition.


Plaintiff Sandy Byrd is a municipal employee who represents that she interacts with, and provides services to, children and adults on a regular basis. She asserts that Shelby County DHR received a report suggesting that Plaintiff Byrd abused and/or neglected eight teenage children. She alleges that she received written notification of the preliminary finding of "indicated" that also informed her that she had the opportunity to defend herself at a CA/N hearing. Through her attorney, Plaintiff Byrd provided written notice of her acceptance of the opportunity to defend herself and requested a hearing be scheduled. That request was denied.

Plaintiffs Jonathan Ponstein and Leeann Ponstein are parents to minor children. They assert that Shelby County DHR received a report that they abused and/or neglected their minor daughter. At the conclusion of the investigation, they each received a notification of their indicated status and the opportunity to participate in an administrative record review. Through their attorney, they each requested a hearing. Those requests were ignored or denied. Plaintiffs represent that they intend to be...

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