Scarso v. Cuyahoga County Dept. of Human Services

• Decision Date: 31 October 1989
• Docket Number: No. C88-402.,C88-402.
• Citation: 747 F. Supp. 381
• Parties: Joseph D. SCARSO, Joseph R. Scarso, etc., Plaintiffs, v. The CUYAHOGA COUNTY DEPARTMENT OF HUMAN SERVICES, Mark Landau, etc., James Mack, etc., The Honorable Betty Willis Ruben, etc., Valerie Burke, etc., Richard Graham, etc., William Kurtz, etc., Martin Keenan, etc., Donna Lindsey, Defendants.
• Court: U.S. District Court — Northern District of Ohio

747 F. Supp. 381

Joseph D. SCARSO, Joseph R. Scarso, etc., Plaintiffs, v. The CUYAHOGA COUNTY DEPARTMENT OF HUMAN SERVICES, Mark Landau, etc., James Mack, etc., The Honorable Betty Willis Ruben, etc., Valerie Burke, etc., Richard Graham, etc., William Kurtz, etc., Martin Keenan, etc., Donna Lindsey, Defendants.

No. C88-402.

United States District Court, N.D. Ohio, E.D.

October 31, 1989.

James R. Willis, Willis & Blackwell, Cleveland, Ohio, for plaintiffs.

Jeffrey I. Sherwin, Colleen C. Cooney, Cuyahoga County Prosecutor's Office, Cleveland, Ohio, for Cuyahoga County Dept. of Human Services, Landau, Mack, Burke, Graham and Kurtz.

Burt Fulton, Gallagher, Sharp, Fulton & Norman, Cleveland, Ohio, for Ruben.

David Irwin Sindell, Sr., William J. Novak, Sindell, Rubenstein, Einbund, Pavlik, Cleveland, Ohio, for Keenan.

MEMORANDUM OF OPINION RE: GRANTING DEFENDANTS' MOTIONS TO DISMISS AND FOR SANCTIONS

KRENZLER, District Judge.

This case evolves from Joseph D. Scarso's ("plaintiff") obsession with obtaining legal custody of his son, Joseph R. Scarso ("Joey").¹

Plaintiff's amended complaint alleges violation of 42 U.S.C. § 1983 and several pendent state claims. The defendants are Judge Betty Willis Ruben ("Judge Ruben") of the Juvenile Division of the Court of Common Pleas, the Cuyahoga County Department of Human Services ("CCDHS"), various employees of CCDHS and the Juvenile Court, the mother of the child, Donna Lindsey, and her attorney, Martin Keenan.

The gist of plaintiff's § 1983 action is that the defendants conspired to deprive plaintiff of the physical possession of his son, Joey, without due process of law, during the course of a presently pending child abuse proceeding initiated by CCDHS.

I. Motions

Pending before the Court are (1) a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), and a motion for summary judgment, pursuant to Fed.R.Civ.P. 56, filed by Judge Ruben; (2) a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), filed by CCDHS, CCDHS employees and Juvenile Court employees; and (3) a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), filed by attorney Martin Keenan. In addition, the above defendants have all moved for sanctions, pursuant to Fed.R.Civ.P. 11.

For the reasons stated below, this Court grants the above motions to dismiss with respect to the § 1983 claim. Because no federal claims remain, this Court declines to exercise its pendent jurisdiction over the remaining pendent claims and shall dismiss them, without prejudice. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

II. Facts

It is noted initially that the Court takes judicial notice of the relevant facts because they are all a matter of public record.

Joseph D. Scarso and Donna Lindsey were married in 1980. In 1981, while living in Florida, their son, Joey, was born. In 1984, the parties were divorced. In December 1985, following a custody battle in two states,² the Florida court awarded permanent custody of Joey to Donna Lindsey, a Florida resident. Plaintiff, an Ohio resident, was awarded three months visitation annually, which were to be exercised in Ohio.

Pursuant to the Florida court order, Donna Lindsey sent Joey to visit his father in Cleveland, Ohio, on June 1, 1986. On August 21, 1986, at plaintiff's request, CCDHS filed a child abuse complaint (Case No. 8608869) in the Juvenile Division of the Cuyahoga County Court of Common Pleas. The complaint alleged that "during the time of the child's residence with the mother in Florida, the child was sexually abused by mother and child's stepfather.... Should the child be returned pursuant to the Florida divorce decree, the child would again be in danger of sexual abuse...."³

On August 25, 1986, Judge Ruben granted emergency temporary custody of Joey to CCDHS pending an investigation of the abuse complaint. CCDHS, in turn, placed Joey with his father.

On October 8, 1986, the Florida court issued an order directing plaintiff to return Joey to Florida where the Department of Health and Rehabilitative Services would take temporary custody while it investigated the sex abuse allegations. Plaintiff ignored this order. On October 23, 1986, Donna Lindsey, through her attorney, Martin Keenan, filed a motion to dismiss or, in the alternative, a motion to transfer the child abuse complaint to Florida.

On January 30, 1987, Judge Ruben held a hearing on the motion. At that hearing CCDHS moved to dismiss its complaint for lack of evidence.

Judge Ruben held the motion to dismiss of CCDHS in abeyance, yielded jurisdiction to the Florida court and stayed the proceedings pending resolution by the Florida court. In addition, Judge Ruben ordered CCDHS, which at this juncture still had temporary custody of the child, to oversee arrangements for returning Joey to Florida.

On February 2, 1987, plaintiff filed a notice of appeal of this decision in the Court of Appeals, Eighth District. Though initially granting a motion for stay of Judge Ruben's order, the Court of Appeals vacated the stay on February 24, 1987.

For the next eight months, execution of Judge Ruben's January 30, 1987, order was blocked by a series of legal gambits instituted by plaintiff and his counsel. The methods used included affidavits of prejudice and writs of prohibition filed in the Supreme Court of Ohio.⁴

Throughout the proceedings, Judge Ruben issued a total of three orders directing Joey's return to Florida. Each time Judge Ruben issued an order, no stay or other legal impediment existed that would have limited her authority to issue and enforce such an order. Finally, on February 4, 1988, the Court of Appeals, in an unfortunate decision, reversed Judge Ruben's January 30, 1987, order and remanded the case for an evidentiary hearing on the issue of whether it would be in the child's best interest to exercise jurisdiction and act on the child abuse complaint. In May 1988, Judge Ruben recused herself because plaintiff filed the instant § 1983 action in this court.

III. Discussion

Plaintiff premises his § 1983 action on two theories: (1) Judge Ruben had no authority to order Joey's return to Florida in her January 30, 1987, order because she was without subject matter jurisdiction; and (2) Judge Ruben had no authority to issue subsequent orders directing Joey's return to Florida because once plaintiff filed a notice of appeal on February 4, 1987, Judge Ruben's jurisdiction over the matter ceased. The liability of the remaining defendants is premised upon their efforts at enforcing the allegedly void order. Plaintiff thus concludes that defendants' actions constituted a conspiracy intended to deprive him of the physical possession of his son without due process of law.

At this juncture it is appropriate to briefly discuss several applicable § 1983 concepts.

To maintain a § 1983 action, a defendant must have acted under color of state law and the conduct complained of must have deprived the plaintiff of rights, privileges or immunities secured by the Constitution. Parrett v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir.1983), rev'd and remanded sub nom, Brandon v. Hall, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Haag v. Cuyahoga County, 619 F.Supp. 262, 271 (N.D. Ohio 1985).

Where the action is premised upon violations of procedural due process resulting in a deprivation of a substantive constitutional right, the complaint must allege (1) a deprivation of a substantive constitutional right, (2) that the deprivation occurred under color of state law, and (3) that the state remedy was inadequate, both in form and in substance, Haag, 619 F.Supp. at 271. With respect to the first factor, it is clear that the complaint must allege an injury in fact. Where a complaint fails to allege an actual deprivation of the substantive constitutional right in issue, it fails to state a claim upon which relief can be granted. Regarding the inadequacy of the state remedy, a mere allegation that the state remedy is inadequate is insufficient. The plaintiff must allege facts, in specific detail, upon which the plaintiff relies to demonstrate the inadequacy of the state remedy. Eaton v. City of Solon, 598 F.Supp. 1505, 1512 (N.D.Ohio 1984).

Finally, where the § 1983 action is against public officials who may be entitled to absolute or qualified immunity, the complaint must state with factual detail and particularity "the basis for ... why the defendant official cannot successfully maintain the defense of immunity." Ginter v. Stallcup, 641 F.Supp. 939, 974 (E.D. Ark.1986), quoting from Elliot v. Perez, 751 F.2d 1472 (5th Cir.1985), affirmed in part and reversed in part, 869 F.2d 384 (8th Cir.1989).

In granting the defendants' respective motions to dismiss, this Court is enforcing the doctrine of absolute judicial immunity, as well as the statutory absolute immunity accorded participants involved in child abuse proceedings codified at Ohio Rev. Code Ann. § 2151.421. In addition, the Court recognizes the existence of an adequate state remedy to address the alleged wrongs plaintiff asserts in his amended complaint, i.e., denial of procedural due process. Indeed, this Court cannot ignore the fact that plaintiff has utilized that remedy by appealing Judge Ruben's January 30, 1987, decision. He has therefore exercised and benefited from the procedural due process mechanism available to a litigant unhappy with a trial judge's decision.

Finally, this Court is of the opinion that the amended complaint is wholly insufficient. It simply fails to present sufficient allegations to state a § 1983 cause of action. Incredibly, the amended complaint fails to allege that the claimed denial of procedural due process resulted in the deprivation of the constitutional right for which plaintiff seeks redress, i.e., loss of the "physical possession" of his son. Indeed, there is no substantive constitutional right to ...