Eidson v. State of Tn Dept. of Children's Services, 07-5406.

• Decision Date: 20 December 2007
• Docket Number: No. 07-5406.,07-5406.
• Citation: 510 F.3d 631
• Parties: Ronald EIDSON, Plaintiff-Appellant, v. STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

510 F.3d 631

Ronald EIDSON, Plaintiff-Appellant, v. STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, et al., Defendants-Appellees.

No. 07-5406.

United States Court of Appeals, Sixth Circuit.

Argued: October 23, 2007.

Decided and Filed: December 20, 2007.

[510 F.3d 632]

ARGUED: William E. Phillips II, Phillips & Hale, Rogersville, Tennessee, for Appellant. Juan G. Villaseñor, Office of the Attorney General, Nashville, Tennessee, for Appellees. ON BRIEF: William E. Phillips II, Phillips & Hale, Rogersville, Tennessee, for Appellant. Juan G. Villaseñor, Office of the Attorney General, Nashville, Tennessee, for Appellees.

Before: BOGGS, Chief Judge; McKEAGUE, Circuit Judge; COHN, District Judge.^*

OPINION

McKEAGUE, Circuit Judge.

This case arises from the temporary removal of plaintiff-appellant Ronald Eidson's minor daughters by Tennessee Child Protective Services and the Tennessee Department of Children's Services after one of his daughters falsely accused him of sexual abuse. Full custody was restored to plaintiff eleven months later, after his daughter recanted her accusation. One year later, plaintiff filed suit, charging that various wrongful acts by child protective services workers had deprived him of liberty without due process. The district court dismissed the action as time-barred, rejecting plaintiff's arguments that the accrual of his cause of action should be deemed to have been extended due to application of the continuing violation doctrine or, alternatively, abstention principles. The district court's ruling is well-reasoned. For the reasons that follow, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND¹

In September 2003, plaintiff-appellant Ronald Eidson had been awarded custody of his three children; their mother, Nancy Eidson, was granted visitation rights. On November 17, 2003, his daughter Amanda accused her father of sexual abuse. On November 18, Child Protective Services ("CPS") responded to the accusation, sending CPS investigator Leilani Mooneyham to interview Amanda. After speaking with Amanda, in the company of Amanda's mother, Mooneyham determined that removal of both of plaintiff's daughters, Amanda and Kathryn, from his custody was appropriate.² Without conducting any further investigation, Mooneyham removed both daughters on November 18, 2003, pursuant to a safety plan created by CPS, and placed them with their mother. Plaintiff was to have no contact with the daughters.

Despite a Tennessee law requirement that a hearing be conducted within three days following an immediate removal of a child from a parent's custody, no such proceeding was initiated by the Tennessee Department of Children's Services ("DCS"). On May 24, 2004, DCS finally filed a petition in juvenile court alleging plaintiff's children were dependent and neglected. At the conclusion of the ensuing hearing, the juvenile court awarded temporary custody of the children to DCS, which placed them with their mother.³

On June 7, 2004, investigator Myra Ramey, who had been assigned to replace Mooneyham, sent plaintiff a "standard perpetrator notification letter," informing him that he was "indicated for sexual abuse" and that he had a right to appeal the decision. Plaintiff alleges this letter served as notification that his name had been added to an internal DCS sex-offender registry.

On June 22, 2004, plaintiff's daughter recanted her allegations of sexual abuse and admitted that her mother had instigated the false charge. A hearing was held on June 28, 2004, where the juvenile court was informed of the recantation. Custody of the children was removed from the mother and transferred to an aunt and uncle.

On July 22, 2004, the juvenile court returned the daughters to plaintiff for a 90-day trial period. Plaintiff alleges that during the 90-day period, he and his family were "subject to continual interference by DCS." The nature of the alleged interference is not identified in the complaint or in plaintiff's appellate briefing. On October 22, 2004, after successful completion of the trial period, the juvenile court returned full custody of the children to plaintiff. One year later, Eidson filed this action on October 24, 2005 in the Eastern District of Tennessee, claiming violations of his procedural and substantive due process rights under 42 U.S.C. § 1983.⁴ Named as defendants are DCS and CPS and several of their employees.

Defendants moved to dismiss the complaint as time-barred. On March 6, 2006, the district court granted the motion and dismissed plaintiff's claims as barred by the one-year Tennessee statute of limitations applicable to § 1983 actions. In its memorandum opinion and order, the district court concluded that plaintiff's claims do not satisfy the requirements of the continuing violation doctrine. The court further rejected plaintiff's attempt to invoke abstention principles to forestall dismissal. The court thus held the claims time-barred because all unlawful acts alleged in support of the claims occurred more than one year prior to the filing of the complaint.

II. ANALYSIS

A. Standard of Review

Whether the district court properly dismissed the complaint pursuant to Rule 12(b)(6) is a question of law subject to de novo review. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005). The reviewing court must construe the complaint in a light most favorable to plaintiff, accept all well-pled factual allegations as true, and determine whether plaintiff undoubtedly can prove no set of facts in support of those allegations that would entitle him to relief. Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005). Yet, to survive a motion to dismiss, the complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory. Mezibov, 411 F.3d at 716. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice. Id. See also, Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (explaining that complaint must contain something more than a statement of facts that merely creates speculation or suspicion of a legally cognizable cause of action).

B. Continuing Violation

The statute of limitations applicable to a § 1983 action is the state statute of limitations applicable to personal injury actions under the law of the state in which the § 1983 claim arises. Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 519 (6th Cir.1997). The parties agree that a one-year limitation period, borrowed from Tennessee law, Tenn.Code Ann. § 28-3-104(a)(3), applies in this case. Plaintiff contends his cause of action did not accrue until the juvenile court proceedings concluded on October 22, 2004. He argues that his complaint, filed on October 24, 2005, was timely filed, because the date on which the one-year period would have expired, October 22, 2005, fell on a Saturday and the first business day thereafter was October 24, 2005.

The date on which the statute of limitations begins to run in a § 1983 action is a question of federal law. Kuhnle Bros., 103 F.3d at 520. Ordinarily, the limitation period starts to run when the plaintiff knows or has reason to know of the injury which is the basis of his action. Id. at 520. "[I]n determining when the cause of action accrues in section 1983 actions, we have looked to what event should have alerted the typical lay person to protect his or her rights." Id. (quoting Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir.1991)). See also, Bell v. Ohio State University, 351 F.3d 240, 247 (6th Cir.2003); Hughes v. Vanderbilt University, 215 F.3d 543, 548 (6th Cir.2000).

The precipitating event in this action, plaintiff concedes, was defendants' initial removal of his daughters from his custody on November 18, 2003. At the time of the initial removal, plaintiff knew of the injury which is the basis of his claims. Yet, plaintiff argues that defendants' continuing wrongful conduct, from the date of the initial removal through the completion of the 90-day trial placement period on October 22, 2004, constituted a continuing violation, extending accrual of his cause of action.

The test for determining whether a continuing violation exists is summarized as follows:

First, the defendant's wrongful conduct must continue after the precipitating event that began the pattern. . . . Second, injury to the plaintiff must continue to accrue after that event. Finally, further injury to the plaintiff[] must have been avoidable if the defendants had at any time ceased their wrongful conduct.

Tolbert v. State of Ohio Dep't of Transp., 172 F.3d 934, 940 (6th Cir.1999). See also, Paschal v. Flagstar Bank, 295 F.3d 565, 572 (6th Cir.2002). "[A] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." Tolbert, 172 F.3d at 940 (quoting National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)). Passive inaction does not support a continuing violation theory. Id.; Paschal, 295 F.3d at 573.

In evaluating whether plaintiff has alleged facts sufficient to make out a continuing violation, it is necessary to first consider the contours of the civil rights claims he has asserted. "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in `life, liberty or property' is not itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (quoting Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)) (emphasis in Zinermon). It is undisputed that parents have a fundamental liberty interest in the custody of their children and that state intervention in the relationship between a parent and child must be accomplished by procedures meeting the requisites of the Due Process Clause. S...