Sherrard v. Owens
| Decision Date | 18 March 1981 |
| Docket Number | No. 80-1102,80-1102 |
| Citation | 644 F.2d 542 |
| Parties | Wayne SHERRARD and Janet Sherrard, Plaintiffs-Appellants, v. Donald S. OWENS, Judge of Probate Court, Ingham County; Michigan Department of Social Services, Family & Children Services of The Capitol Area; Lucille Barber, Individually and as an employee; Barbara McLean, employee; Timothy G. Holland, Attorney, Individually and as Guardian for Candace and Vernita Smith, Minors, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gerald M. Stevens, Owosso, Mich., for plaintiffs-appellants.
George M. Brookover, Foster, Swift, Collins & Coey, John F. Fuzak, Warner, Hart, Morgan, Fuzak & Williams, Lansing, Mich., Timothy G. Holland, Guardian ad Litem, Frank J. Kelley, Atty. Gen., Janis Meija, Erica Weiss, Thomas L. Casey, Asst. Attys. Gen., Lansing, Mich., for defendants-appellees.
Before WEICK, LIVELY and ENGEL, Circuit Judges.
The plaintiffs appeal from summary judgment in favor of the defendants in this action brought pursuant to 42 U.S.C. §§ 1983, 1985 and 1988 seeking a declaratory judgment, preliminary and permanent injunctions and money damages. In their complaint the plaintiffs alleged that the defendants, state officers, employees and agencies, had deprived them of a constitutionally protected "liberty" interest without due process of law. The liberty interest asserted by the plaintiffs arose out of "a viable familial relationship" which developed between the plaintiffs, their adopted son and two children who were placed with the plaintiffs as foster parents by the Probate Court of Ingham County, Michigan.
The first ground for reversal urged by the plaintiffs on appeal is that the district court improperly "converted" a motion by various defendants to dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P. into a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Upon consideration of the record the court notes that at least one defendant also moved for summary judgment under Rule 56 and that the district court received matters outside the pleadings from various parties, including the plaintiffs. It is clear from the record that the plaintiffs were not taken by surprise as a result of the court's determination to treat the case as submitted for summary judgment and that they had adequate opportunity to present documentary materials to the court. See Kistner v. Califano, 579 F.2d 1004 (6th Cir. 1978). It further...
To continue reading
Request your trial
-
Rivera v. Marcus, 189
...cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1141 (1978); Sherrard v. Owens, 484 F.Supp. 728 (W.D.Mich.1980), aff'd, 644 F.2d 542 (6th Cir.) (per curiam), cert. denied, 454 U.S. 823, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981). Each of these cases was decided in the wake of, and relied pr......
-
Rodriguez ex rel. Kelly v. McLoughlin
...with foster child did not involve a liberty interest); Sherrard v. Owens, 484 F.Supp. 728, 741-42 (W.D.Mich.1980), aff'd, 644 F.2d 542 (6th Cir.1981) (per curiam) (same); Kyees v. County Dep't of Public Welfare, 600 F.2d 693, 695, 697 (7th Cir.1979) (per curiam) (same); Drummond v. Fulton C......
-
Johnson v. Lyon
...the same conclusion a few years later. Sherrard v. Owens , 484 F. Supp. 728, 741 (W.D. Mich. 1980) (Hillman, J.), aff'd , 644 F.2d 542, 543 (6th Cir. 1981). While this precedent may be revisited in the future, the Court is bound by it here. As to the latter theory, Plaintiffs' Substantive D......
-
Snell v. Tunnell, CIV.-87-1812-P.
...Children's Serv., 563 F.2d 1200, 1207 (5th Cir.1977), cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1141 (1978); Sherrard v. Owens, 644 F.2d 542, 543 (6th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981); Kyees v. County Dept. of Public Welfare, 600 F.2d 693, ......
-
Representing Foster Parents in Dependency and Neglect Proceedings
...Drummond v. Fulton County Department of Family and Children's Services, 563 F.2d 1200 (5th Cir. 1977) (en banc); Sherrard v. Owens, 644 F.2d 542 (6th Cir. 1981); Kyees v. County Department of Welfare, 600 F.2d 693 (7th Cir. 1979). In contrast, the U.S. District Court for the Eastern Distric......