Holloway v. Ohio, 96-3732

• Decision Date: 03 June 1999
• Docket Number: No. 96-3732,96-3732
• Citation: 179 F.3d 431
• Parties: Sammye R. HOLLOWAY, Plaintiff-Appellant, v. STATE OF OHIO; Ohio Department of Human Services; Sally Brush; Clermont County, Ohio, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

179 F.3d 431

Sammye R. HOLLOWAY, Plaintiff-Appellant, v. STATE OF OHIO; Ohio Department of Human Services; Sally

Brush; Clermont County, Ohio, Defendants-Appellees.

No. 96-3732.

United States Court of Appeals, Sixth Circuit.

Argued April 30, 1998.

Decided and Filed June 3, 1999.

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 94-00214--Jack Sherman, Magistrate Judge.

ARGUED: Anita M. Bechmann, Cincinnati, Ohio, for Appellant. Christopher T. Carlson, OFFICE OF THE ATTORNEY GENERAL OF OHIO, HEALTH & HUMAN SERVICES SECTION, Columbus, Ohio, Helen E. Mason, CLERMONT COUNTY PROSECUTING ATTORNEY, Batavia, Ohio, for Appellees. ON BRIEF: Anita M. Bechmann, Cincinnati, Ohio, for Appellant. Christopher T. Carlson, OFFICE OF THE ATTORNEY GENERAL OF OHIO, HEALTH & HUMAN SERVICES SECTION, Columbus, Ohio, Helen E. Mason, CLERMONT COUNTY PROSECUTING ATTORNEY, Batavia, Ohio, for Appellees.

Before: NELSON, BOGGS, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which NELSON, J., joined. BOGGS, J. (pp. ---- - ----), delivered a separate opinion concurring in part and dissenting in part.

CLAY, Circuit Judge.

Plaintiff, Sammye R. Holloway, appeals from the order entered by the United States District Court for the Southern District of Ohio granting Defendants' motion for summary judgment in this case alleging, among other things, violation of Plaintiff's civil rights in relation to the termination of her parental rights by the Clermont County, Ohio Juvenile Court. For the reasons set forth below, the district court's order is AFFIRMED.

I. Procedural Background

Plaintiff filed this action pro se under 42 U.S.C. § 1983 on March 17, 1994, claiming that Defendants ¹ had deprived her of children without due process of law in violation of the Fourteenth Amendment; that Defendants had conspired to violate her civil rights; and that their actions violated her rights under the Sixth and Eighth Amendments. Defendants filed motions to dismiss, and the magistrate issued a report finding that 1) the court had jurisdiction over Plaintiff's § 1983 claims; 2) Plaintiff failed to state a claim for relief as to the conspiracy to violate her rights under § 1983; 3) Plaintiff failed to state a claim for relief under the Sixth and Eighth Amendments; and 4) Plaintiff's claims for money damages against the State of Ohio and the Ohio Department of Human Services were barred by the Eleventh Amendment. The magistrate recommended that the State and the Ohio Department of Human Services' motion to dismiss be granted, and that Clermont County and Sally Brush's motion to dismiss for lack of jurisdiction and failure to state a claim be denied.

Subsequently, an order was issued directing Plaintiff to show cause why the court should not sua sponte issue summary judgment on the basis that the remaining parties were entitled to immunity. Based upon Plaintiff's response, an order was issued to Clermont County and Brush to provide evidence of the notice of hearing to terminate Plaintiff's parental rights which Clermont County allegedly had attempted to be served upon Plaintiff. Clermont County and Brush were also ordered to brief the issue of their entitlement to immunity.

Clermont County and Brush provided evidence of notice to Plaintiff by way of publication, and briefed the issue of immunity. In addition, they filed a motion for summary judgment, and, thereafter, an order was entered granting summary judgment to both parties on the basis of absolute immunity. It is from this order that Plaintiff now appeals.

Facts

Plaintiff alleged that in November of 1988, her husband threw her out of their home in Oklahoma and left the state with their two minor sons. Plaintiff allegedly commenced a several years long search throughout the United States for her children. In 1990, Plaintiff's children had been living with their father in Clermont County. Subsequently, the Clermont County Department of Human Services ("CCDHS") became involved with the children after receiving a report that they were not being properly cared for by Plaintiff's husband. On November 28, 1990, CCDHS filed a complaint for temporary custody of the children. Defendants sent notice of the Complaint for Temporary Custody to Plaintiff via certified mail to the last known address given by Plaintiff's husband in Phoenix, Arizona. The notice was returned to Defendants under the directive that no such person lived at that address. Defendants attempted to serve Plaintiff by publication using the Phoenix address as the last known address. Temporary custody of the children was granted to CCDHS inasmuch as the court found that the children were living in unhealthy and unsanitary conditions.

After receiving temporary custody of the children, CCDHS filed a case plan with the Clermont County Juvenile Court ("CCJC"). In March of 1992, Brush, a caseworker for Clermont County Child Protective Services, took over the children's case. It was Brush's job to monitor the success of the case plan and, pursuant to statute, make a recommendation to the CCJC regarding the progress of Plaintiff's husband in accomplishing the goals of the case plan. Because Plaintiff's husband was unable to demonstrate any progress toward the goals, CCDHS filed a petition on September 21, 1992 with the CCJC requesting permanent custody of the children, and the matter was set for trial. Defendants published notice to Plaintiff in the Clermont Sun newspaper; however, the published notice failed to state Plaintiff's last known address. On November 4, 1992, Brush filed an affidavit with the CCJC in which she stated that she had been unable to obtain a current address for Plaintiff. Brush had attempted to locate Plaintiff by telephoning social service agencies in Arizona, Washington, Oklahoma, California, and Colorado.

A hearing was held where it was recommended that CCDHS retain permanent custody of the children, and thereafter the children were placed with relatives of Plaintiff's husband in the State of Washington. This placement was not successful, and Defendants filed a motion for permanent custody of the children. Defendants sent notice of the motion for permanent custody to Plaintiff at the Phoenix, Arizona address, and attempted to serve Plaintiff via publication as previously done. After receiving a letter from Plaintiff inquiring about her children, the State of Washington contacted Defendants and informed them that Plaintiff was searching for her children. The State of Washington also informed Plaintiff that her children were in Clermont County.

A hearing was then held before a referee on December 15, 1992. The referee recommended that CCDHS be awarded permanent custody of the children, finding by clear and convincing evidence that this was in the best interests of the children. On June 16, 1993, the trial court affirmed the referee's report in its entirety.

On May 20, 1993, Plaintiff contacted Brush by letter asking that Brush put her children on an airplane and send them to Kansas where Plaintiff was then living. Brush telephoned Plaintiff the following day, informed her of the status of her children's case, and suggested that Plaintiff obtain legal counsel. By letter dated June 2, 1993, addressed to Plaintiff in Kansas, Brush confirmed the contents of her call. Plaintiff alleges that during the May 21, 1993, telephone conversation, Brush told Plaintiff that her parental rights had already been terminated.

In May of 1993, Plaintiff sent a letter to the governor of the state of Ohio explaining her situation. She received a reply letter dated June 21, 1993, informing her that her children were doing fine and were happy. The letter also provided a name and telephone number of a contact person for Plaintiff to reach for information about the children.

Assistant prosecutor for the County, Thomas Flessa, wrote Plaintiff a letter on June 18, 1993, informing her that her children were in the permanent custody of the CCDHS, that the plan was to seek an adoptive home(s) for children, and suggested that Plaintiff seek the assistance of an attorney in regard to her legal rights. Thereafter, Plaintiff began filing a series of lawsuits against Defendants in the United States District Court in Kansas, the United States District Court in Ohio.

Plaintiff filed a pro se motion on February 15, 1995 in the CCJC, requesting that the court review the case and reverse its prior order granting CCDHS permanent custody of the children. On August 22, 1995, the court overruled Plaintiff's motion and Plaintiff appealed to the Ohio Twelfth District Court of Appeals. The court of appeals issued an opinion on May 5, 1996, reversing the lower court's decision, finding that service by publication upon Plaintiff was defective and that the trial court had not obtained jurisdiction over Plaintiff for purposes of the custody proceedings. This opinion is not included in the Joint Appendix to this appeal; however, Plaintiff included a copy of the opinion as an addendum to her brief. Defendants filed a motion to strike this opinion from Plaintiff's brief, as well as several statements Plaintiff made in her Statement of Facts in reference to this opinion.

Clermont County failed to act to obtain jurisdiction over Plaintiff or to otherwise cooperate to resolve the matter, and Plaintiff filed for habeas corpus relief in the Ohio Twelfth District Court of Appeals. The court of appeals denied the habeas relief; Plaintiff appealed the court's decision to the Ohio Supreme Court, and her appeal was pending at the time the briefs in this case were filed.

II. Analysis

A.

Plaintiff argues that the district court erred in granting Clermont County and Brush summary judgment on the basis of absolute immunity with respect to Plaintiff's § 1983 claim for violation of Plaintiff's right to due process under the Fourteenth Amendment on the basis that Clermont County and Brush acted as integral parts...