Holloway v. Brush

Decision Date08 December 1999
Docket NumberNo. 96-3732,96-3732
Citation220 F.3d 767
Parties(6th Cir. 2000) Sammye R. Holloway, Plaintiff-Appellant, v. Sally Brush; Clermont County, Ohio, Defendants-Appellees. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati; No. 94-00214--Jack Sherman, Magistrate Judge. [Copyrighted Material Omitted] Donna S. Rose, ROSE LAW FIRM, Ft. Thomas, Kentucky, for Appellant.



BOGGS, J., delivered the opinion of the court, in which MARTIN, C. J., MERRITT, NELSON, RYAN, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, and GILMAN, JJ., joined. CLAY, J. (pp. 780-805), delivered a separate dissenting opinion.


BOGGS, Circuit Judge.

The district court awarded summary judgment to all defendants in Sammye Holloway's § 1983 suit for damages, brought after an order of the Clermont County Court of Common Pleas Juvenile Division terminated her parental rights and granted permanent custody of her children to the Clermont County Department of Human Services ("CCDHS"). Holloway appealed the district court's ruling as to two of the defendants, Sally Brush and Clermont County. A three-judge panel of this court held that both these defendants enjoy absolute immunity from suit for actions taken in a judicial context. See Holloway v. Ohio, 179 F.3d 431 (6th Cir. 1999). The full court then granted a rehearing en banc to decide the question of the extent to which a public child services agency caseworker, in this case Sally Brush, may be entitled to immunity for her acts in connection with a child custody proceeding. See Holloway v. Ohio, 197 F.3d 236 (6th Cir. 1999). For the reasons that follow, we reverse the district court's ruling that Sally Brush enjoys absolute immunity for her conduct in this case, and its grant of summary judgment in her favor on that basis. The district court's grant of summary judgment to Clermont County, however, is affirmed.


Sammye Holloway, a mother who despite a high-school diploma reads and writes at a third-grade level due to dyslexia, lost track of her two children, then six months and two years old, when, as alleged in her complaint, her husband threw her out of their Oklahoma home in November 1988 and absconded with the children to another state. Over several years, she made numerous attempts to locate them through the relevant agencies of many states. She had no success until, in 1992, her letter to authorities in the State of Washington led them to notify Ohio, resulting ultimately in contact between Holloway and the CCDHS in the person of Sally Brush, a caseworker there. The sequence of events appears to be as follows.

In 1990, after an odyssey through several states, a sequence of failed jobs and the three of them living out of vehicles, the father and the children were stranded in Clermont County, Ohio after his car broke down there. In November, Ohio authorities became aware that the children were living in a car, in extremely unsanitary conditions. Proceedings were instituted to deprive the father of custody on grounds of abuse and to award custody to CCDHS, preparatory to having the children adopted. CCDHS was granted temporary custody of the Holloway children on November 29, 1990. Efforts to notify Holloway by mail were fruitless, so Clermont County attempted to notify her of the proceedings by publication in the spring of 1991. CCDHS also attempted to place the children with a paternal relative in Spokane, Washington, but this was unsuccessful and the children were returned to Ohio in May or June of 1992. Brush began administering the children's case plan on March 1, 1992. In November 1992, Brush provided an affidavit that Sammye Holloway's whereabouts were unknown, permitting her to be served with notice by publication in The Clermont Sun. On December 15, 1992, Brush testified before a referee appointed by the Clermont County Juvenile Court that the children's father should not regain custody and recommended that permanent custody be awarded to CCDHS. The referee agreed, embodying his recommendations in a report filed on January 26, 1993. See Twelfth Appellate District Court of Appeals, Original Action in Habeas Corpus, Case No. CA96-06-052, Stipulated Statement of Evidence, at ¶ 20 (October 11, 1996). Ohio law provides that such a referee's recommendations are to be reviewed, and may be adopted, modified, or set aside by the juvenile court, which also "may hear additional testimony . . . ." Ohio Rev. Code Ann. § 2151.16 (Baldwin 1994). Brush continued to follow the process throughout 1993, in coordination with Clermont County Assistant Prosecutor Thomas Flessa.

On May 12, 1993, the Washington Department of Social and Health Services wrote to CCDHS, addressing the letter to both Melissa O'Farrell, Supervisor, and Sally Brush, Social Worker, attaching the letter Washington had received from Holloway requesting information about her children. A copy of the letter was sent to Holloway. Brush received that letter on May 18th, and called Flessa about it that day. Her notes on this call read: "5-18-93 Telephone call to Tom Flessa, told him about letter. Legally we have custody." Supplemental Brief of Appellees (En Banc Rehearing) at 27 (Appendix C: Holloway/Dictation). On May 20, 1993, Brush received a letter from Holloway requesting that she put the children on a plane to Kansas City, where Holloway proposed to pick them up. The following day Brush and Holloway spoke by telephone.

At that time, CCDHS had temporary custody of the children, while the juvenile court was considering the referee's recommendation regarding permanent custody for CCDHS. But that is not what Brush told Holloway. For reasons that have not been satisfactorily explained, in their telephone conversation on May 21, 1993 Brush falsely informed Holloway that CCDHS had already been awarded permanent custody of her children. Brush concedes this, but characterizes it as a "misstatement." Supplemental Brief of Appellees (En Banc Rehearing) at 15. Brush's own notes of that conversation, however, indicate she did not merely mis-speak: "I told Mrs. Holloway her best bet is to talk to a lawyer about her rights. At this point, our agency has permanent custody." Id. at 27 (Appendix C: Holloway/Dictation). Moreover, Holloway claims that Brush told her "they had taken away her parental rights whether she likes it or not," and refused to discuss the matter further, advising Holloway to get a lawyer. Brief for Appellant at 6. Brush repeated the latter advice in a letter to Holloway dated June 2, 1993. Although the matter of awarding permanent custody to CCDHS was still pending before the juvenile court, the long-sought appearance of the children's mother, who had not been heard at the December proceeding, was not brought to the court's attention by Brush, nor by assistant prosecutor Flessa, who knew as early as May 18th that Holloway had surfaced. Indeed, Holloway alleges that when, on May 24, 1993 Brush failed to keep an appointment to speak with Holloway by phone, due (as Brush's June 2nd letter states) to the fact that Brush was out of her office that afternoon, Brush was actually in court to file a document related to the Holloway custody case. Brief for Appellant at 6. The record indicates that a Case Plan Document Amendment was in fact filed on that date. See Twelfth Appellate District Court of Appeals, Original Action in Habeas Corpus, Case No. CA96-06-052, Stipulated Statement of Evidence, at ¶ 24 (October 11, 1996).

Brush's telephone log of this period continues with entries relating to the children's medical coverage, placement in school as foster children, and other details. On June 15th, the day before the court acted on permanent custody, there is the following entry: "6-15-93 Telephone call to [assistant prosecutor] Tom Flessa. He is writing the letter to Sammye Holloway. I should not worry needlessly at this point about her disrupting the whole process. We did everything legally as to publication/notice" (emphasis added). Supplemental Brief of Appellees (En Banc Rehearing) at 28 (Appendix C: Holloway/Dictation).

On June 16, 1993, the court accepted the referee's report by written order, awarding permanent custody of the children to CCDHS. (The father, Albert Holloway, appealed the juvenile court's award of permanent custody to CCDHS; this was affirmed. See In the Matter of T.J. Holloway, John Holloway, 1994 WL 18161, *1 (Oh. App. 12 Dist., Jan. 24, 1994) (unpublished).) On June 18, 1993, two days after the juvenile court acted, Flessa wrote Sammye Holloway to inform her that CCDHS had permanent custody of her sons, and continued "I suggest that you contact an attorney in regard to your legal rights, as our plan is to seek adoptive homes for the children."

Sammye Holloway moved to have the order of permanent custody set aside by the juvenile court; the motion was denied and Holloway appealed. The Ohio Court of Appeals ruled that Clermont County had not followed proper procedures to give her notice, and remanded the case for a new hearing. See In re Holloway, No. CA95-09-064, 1996 WL 227481 (Ohio App. 12 Dist., May 6, 1996) (unpublished). But no rehearing was held, and Holloway sought habeas corpus relief. Ultimately, the Ohio Supreme Court denied Holloway's habeas petition, in part at least because the Ohio Court of Appeals had previously remanded the case to Clermont County for renewed proceedings with Holloway present. In its ruling the Ohio Supreme Court specifically relied on and reiterated assurances that Holloway's rights...

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