United States District Court, E.D. North Carolina, Western Division
C. FOX Senior United States District Judge.
the court is the motion to dismiss filed by Jamie Gleaton and
Kitty Hart ("Defendants") pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. [DE 23]. Plaintiffs
Rachel and Gourab Sahoo responded and Defendants replied.
[DEs 32, 42]. For the reasons stated below, Defendants'
motion is ALLOWED IN PART and DENIED AS MOOT IN PART.
are the parents of a five-year old daughter, MRS, and twin
two-year old sons, NES and NGS. This case arises out of a
child abuse investigation of Plaintiffs conducted by the Wake
County Department of Human Services ("WCHS") and
the entry of an order by the Wake County District Court
("state court") temporarily depriving Plaintiffs of
the custody of NES and NGS. Am. Compl. ¶¶45, 73 [DE
41]. Subsequently, Plaintiffs filed the instant action
against Gleaton, an investigator for Wake County Child
Protective Services ("CPS"), and Hart, a social
worker for WCHS, as a result of their alleged involvement in
depriving Plaintiffs of the custody of their boys and of the
control of their daughter. Plaintiffs allege a civil rights
action under 42 U.S.C. § 1983 (count one), two tort
claims (counts two and three) and an alternative claim under
the North Carolina Constitution. The amended complaint is far
from a model of clarity -nor is it a "short and plain
statement" as envisioned by Fed.R.Civ.P.
Nevertheless, the court finds the pertinent factual
assertions are as summarized below.
NES's Hospital Admission and Medical
February 24, 2015, NES - then five months old - was admitted
to WakeMed Raleigh due to breathing difficulty. Id.
¶¶ 32-33. The results of an electrocardiogram,
electroencephalogram, heart ultrasound and a brain
computerized tomography ("CT") scan were normal.
Also, no signs of current or past physical injuries were
present. NES tested positive, however, for human
metapneumovirus - a virus causing respiratory infections in
people of all ages, especially young children. Id.
¶ 33. That same day, NES was intubated, transferred to
the pediatric intensive care unit ("ICU") and
placed on a ventilator. Id. ¶ 33, 34. On
February 28, 2015, NES was taken off the ventilator and on
March 2, 2015, he was moved to a regular medical floor.
Id. ¶ 34. NES remained placed on monitors,
intravascular lines and a feeding tube. Id.
March 4, 2015, Plaintiffs were informed that a second
radiologist had reviewed NES's February 24, 2015 CT scan
and found "bilateral subdural collections." As a
result, NES-underwent a full skeletal survey, the results of
which indicated "no acute or healing fractures" and
"no suspicious calcifications indicating healed
fractures." Id. ¶ 39. Records from
NES's pediatrician also indicated no evidence of injury.
Id. ¶ 40.
March 5, 2015, NES underwent a magnetic resonance imaging
(MRI) scan, the results of which were interpreted as
"probably reflect[ing] small thin subdural
hematomas." Id. ¶ 41 (alteration in
original). A radiologist concluded the MRI results were
"consistent with chronic subdural hematomas."
Id. ¶ 41. A second radiologist reached the same
conclusion. Id. ¶ 42. On March 6, 2015, NES
underwent an ophthalmology examination, which revealed
"3-4 [scattered retinal] hemorrhages in one layer of
[the] retina, near the back of NES's
eye." Id. ¶ 44.
March 6, 2015, WakeMed notified WCHS of NES's medical
results in accordance with North Carolina law, and WCHS in
turn assigned Gleaton, a WCHS investigator, to investigate
the matter. Id. ¶¶ 1, 45. That same day,
Gleaton "deprived [Plaintiffs] of their parental
rights" as to all three children and prohibited
Plaintiffs from having any contact therewith until further
notice by Child Protective Services. Id. ¶¶ 2,
Juvenile Petition and State Court Order
March 9, 2015, Gleaton filed a juvenile petition
("Petition") in state court, alleging NES, NGS and
MRS had been physically abused. Id. ¶ 3. In the
Petition, Gleaton stated that NES's "retinal
bleeding coupled with blood in the brain is indicative of
traumatic brain injury as a result of [him] having been
shaken." Id. ¶ 65. Gleaton stated further
that despite Plaintiffs' alleged agreement to have no
contact with their three children, Ms. Sahoo "continued
to appear at the hospital to see" NES and
Id. ¶ 69. The Petition also included
allegations regarding Ms. Sahoo's "mental health
issues" and her "violation of [the] 'safety
plan.'" Id. ¶¶ 3, 67. The
Petition omitted Gleaton's findings contained in the
North Carolina Safety Assessment form, wherein she indicated
that Plaintiffs were not violent, had not caused NES serious
physical harm and had not previously maltreated
Id. ¶ 63. The Petition also omitted the
findings of . NGS's medical examinations conducted at
WakeMed. Id. ¶ 72.
March 9, 2015, the state court, upon finding "there are
no other reasonable means available to protect the children,
" entered an ex parte order granting WCHS custody of NES
and NGS. Id. ¶ 4. On March 12, 2015, the state
court held a hearing to determine the need for continued
custody at which Gleaton testified. Id.¶5.
Based on Gleaton's testimony, the court entered an order
requiring NES and NGS to remain in WCHS's custody,
finding "efforts to prevent the need for the
children's placement were precluded by an immediate
threat of harm to the children" and "no other
reasonable means [were] available to protect the
children." Id. The state court did not grant
WCHS custody of MRS. Id. ¶¶ 4, 7.
March 9, 2015 and May 22, 2015 ("custody period"),
Gleaton, and Kitty Hart -a social worker assigned to the
custody matter on March 20, 2015 - exercised control over
Plaintiffs' relationship with their children. The
children resided at Plaintiffs' home with their maternal
grandmother while Plaintiffs resided in an apartment.
Id. ¶¶ 8, 57, 82, 84. Gleaton and Hart
limited Plaintiffs' visits with all three children
"to a handful of... hours per week" with
visitations generally limited to two hours or less and under
CPS's direct supervision and observation. Id.
¶ 9-10, 76-77. CPS's supervision included
"critique[s]" of Plaintiffs' interactions with
their children. Id. ¶¶ 10, 77.
unspecified date in May 2015, pediatricians with Duke Medical
Center completed a Child Medical Examination of NES, finding
the WakeMed medical records did not support the conclusion
that NES had been physically abused. Id. ¶ 11.
Rather, these pediatricians concluded NES's symptoms
"were consistent with natural causes" and "the
fact he had been intubated on a breathing machine ... for
almost a week." Id. On May 22, 2015, the state
court dismissed the Petition and all three children were
returned to Plaintiffs' custody and care. Id. at
Standard of Review
state a claim for relief, a pleading must contain "a
short and plain statement of the claim showing the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). A complaint
must be dismissed if it does not allege "enough facts to
state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Giarratano v. Johnson, 521 F.3d 298, 302
(4th Cir. 2008). The purpose of a motion to dismiss under
Rule 12(b)(6) is to test the legal sufficiency of the
complaint, not to resolve conflicts of fact or to decide the
merits of the action. Edwards v. City of Goldsboro,
178 F.3d 231, 243-44 (4th Cir. 1999). In evaluating a
12(b)(6) motion, a court accepts all well-pled facts in the
complaint as true and construes those facts in the light most
favorable to the plaintiff. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009); Adcock v. Freightliner LLC,
550 F.3d 369, 374 (4th Cir. 2008). Legal conclusions,
recitations of the elements of a cause of action, and bare
assertions devoid of further factual enhancement do not
constitute well-pled facts for Rule 12(b)(6) purposes.
See Iqbal, 556 U.S. at 678.
42 U.S.C. § 1983 and the Due Process Clause
1983 is not a source of substantive rights. Instead, it
provides a remedy to redress violations of federal law
grounded in federal constitutional provisions or statutes.
Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). In
order to state a claim under § 1983, a plaintiff must
allege "(1) the deprivation of a right secured by the
Constitution or a federal statute; (2) by a person; (3)
acting under color of state law." Jenkins v.
Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997);
accord West v. Atkins, 487 U.S. 42, 48 (1988). Here,
the § 1983 claims against Defendants are for the alleged
deprivation of "due process of law."
Process Clause of the Fourteenth Amendment to the United
States Constitution affords both procedural and substantive
due process of law. Troxel v. Granville, 530 U.S.
57, 65 (2000). "[T]he Constitution recognizes both a
protectible [sic] procedural due process interest in
parenting a child and a substantive fundamental right to
raise one's child." Bartell v. Lohiser, 215
F.3d 550, 557 (6th Cir. 2000).
state a substantive due process claim, a plaintiff must
allege (1) a liberty (or property) interest; (2) the
deprivation of that interest by the state; and (3) "the
state's action falls so far beyond the outer limits of
legitimate governmental action that no process could cure the
deficiency." Sylvia Dev. Corp. v. Calvert
Cnty., 48 F.3d 810, 827 (4th Cir. 1995); accord
Acorn Land, LLC v. Bait. Cnty., 402 Fed.App'x 809,
819 (4th Cir. 2010). In the context of executive action, as
here, substantive due process "protects against
government power arbitrarily and oppressively
exercised." Cty. of Sacramento v. Lewis, 523
U.S. 833, 846 (1998) ("Our cases dealing with abusive
executive action have repeatedly emphasized that only the
most egregious official conduct can be said to be arbitrary
in the constitutional sense . . . ."). "[T]he
cognizable level of executive abuse of power [is] that which
shocks the conscience." Cty. of Sacramento, 523
U.S. at 846; accord Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990). An '
executive act is "conscience-shocking [or] arbitrary in
the constitutional sense . . . [when it is] not only wrong,
but egregiously so by reason of its abusive or oppressive
purpose and its lack of justification by any government
interest." Hawkins v. Freeman, 195 F.3d
732, 744 (4th Cir. 1999).
state a procedural due process claim, a plaintiff must
allege: "(1) a cognizable liberty or property interest;
(2) the [intentional] deprivation of that interest by some
form of state action; and (3) that the procedures employed
were constitutionally inadequate." Kendall v.
Balcerzak, 650 F.3d 515, 528 (4th Cir. 2011) (alteration
and footnote added). Procedural due process generally
requires notice and an opportunity to be heard. See
Id. at 528-29.
Absolute and Qualified Immunity
§ 1983 does not mention immunities, the United States
Supreme Court has read the statute "in harmony with
general principles of tort immunities and defenses rather
than in derogation of them." Imbler v.
Pachtman, 424 U.S. 409, 418 (1976). Courts recognize two
forms of immunity under § 1983 - qualified and absolute.
See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)
("Congress did not intend § 1983 to abrogate
immunities well grounded in history and reason."). These
forms of immunity, however, "do not extend beyond
[the] scope that existed at common law in 1871, when §
1983['s predecessor] was enacted,  nor do
[they] persist unless the policy behind the common-law rule
is still applicable." Lampton v. Diaz, 639 F.3d
223, 226 (5th Cir. 2011) (footnote added); see Malley v.
Briggs, 475 U.S. 335, 340 (1986) (stating "while we
look to the common law for guidance, we do not assume that
Congress intended to incorporate every common-law immunity
into § 1983 in unaltered form").
presumption is that qualified rather than absolute immunity
is sufficient to protect government officials in the exercise
of their duties." Bums v. Reed, 500 U.S. 478,
486-87 (1991). That said, certain officials - judges,
legislators, prosecutors and trial witnesses -perform
"special functions" such that they "require a
full exemption from liability" based on common-law forms
of immunity in place when Congress enacted the Civil Rights
Act of 1871.Butz, 438 U.S. at 508. State
agency officials "performing certain functions analogous
to those of a prosecutor [or judge]" have absolute
immunity as well - "their immunities being termed
[quasi-prosecutorial and] quasi-judicial, "
respectively. Imbler, 424 U.S. at 409 n.20 (first
alteration added); see Harlow v. Fitzgerald, 457
U.S. 800, 811 n. 16 (1982) (discussing Butz and
noting it extended absolute immunity to officials
"engaged in quasi-prosecutorial functions").
official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in
question." Buckley, 509 U.S. at 269. Once a
court determines that an official was functioning in a core
judicial or prosecutorial capacity, absolute immunity applies
"however erroneous the act may have been, and however
injurious in its consequences it may have proved to the
plaintiff." Cleavinger v. Saxner, 474 U.S. 193,
immunity shields government officials from civil damages
liability unless the official violated a statutory or
constitutional right that was clearly established at the time
of the challenged conduct." Reichle v. Howards,
566 U.S. 658, 664 (2012); Perry v. Pamlico Cnty., 88
F.Supp.3d 518, 538 (E.D. N.C. 2015) ("Qualified immunity
can apply to social workers involved in child abuse and
custody cases.") (citation omitted). To determine
whether a defendant's conduct is covered by qualified
immunity, a court "must first determine whether the
plaintiff has alleged the deprivation of an actual
constitutional right at all." Wilson v. Layne,
526 U.S. 603, 609 (1999). If so, the court considers
"whether the constitutional right violated was . clearly
established in the specific context of the
case" - that is, whether "the contours of
a right are sufficiently clear" that a reasonable person
in the defendant's position would have known that his or
her actions violated that right. Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011). Although a case
exactly on point is not required, "existing precedent
must have placed the statutory or constitutional question
beyond debate." Id.; see McKee v. Hart, 436
F.3d 165, 171 (3d Cir. 2006) (stating a right is clearly
established if there is "sufficient precedent at the
time, of the action, factually similar to the plaintiffs
allegations, to put the defendant on notice that his or her
conduct is constitutionally prohibited").