United States District Court, W.D. North Carolina, Asheville Division
BRIAN HOGAN, on his own behalf and as representative of all unnamed class members who are similarly situated, and BRIAN HOGAN, as parent and next friend of H.H., both on her own behalf and as representative of all unnamed class members who are similarly situated, Plaintiffs,
CHEROKEE COUNTY, CHEROKEE COUNTY DEPARTMENT OF SOCIAL SERVICES, SCOTT LINDSAY, in his individual capacity, CINDY PALMER, in her individual capacity, SCOTT LINDSAY, in his official capacity as Attorney for Cherokee County Department of Social Services, CINDY PALMER, in her official capacity as Director of Cherokee County Department of Social Services, DSS SUPERVISOR DOE #1, both in his/her individual capacity and his/her capacity as an employee of Cherokee County Department of Social Services, and DSS SOCIAL WORKER DOE #1, both in his/her individual capacity and his/her official capacity as an employee of Cherokee County Department of Social Services, Defendants.
MEMORANDUM AND RECOMMENDATION
Carleton Metcalf, United States Magistrate Judge
matter is before the Court upon a “Notice of Partial
Motion to Dismiss, ” filed pursuant to Rules 12(b)(2)
and 12(b)(6) of the Rules of Civil Procedure by Defendants
Cherokee County, Cherokee County Department of Social
Services, Scott Lindsay in His Official Capacity, and Cindy
Palmer in Her Official Capacity (“Moving
Defendants”) (Doc. 9), which has been referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). The
issues have been fully briefed, and the motion is now ripe
for ruling. Following a careful review of the Complaint, the
motion, and applicable law, the undersigned recommends that
the Partial Motion to Dismiss be granted in part and denied
case originated on or about March 14, 2018 through the filing
of a Complaint in the Superior Court Division of the General
Court of Justice for Cherokee County, North Carolina by Brian
Hogan (“Hogan”), who appears: 1) on his own
behalf, 2) as a putative class representative for
similarly-situated parents, and 3) as the parent and next
friend of H.H, who is also the putative representative of
similarly-situated minor children. See Not. Rem.
(Doc. 1) at 2. The 62-page Complaint (exclusive of exhibits)
contains 17 separate claims, as reflected by the chart of
claims appearing below.
April 13, 2018, the case was removed to this Court.
See Not. Rem. (Doc. 1).
April 18, 2018, the Partial Motion to Dismiss (Doc. 9) and a
Brief in Support (Doc. 10) were filed by the Moving
Defendants. Plaintiffs filed a Response in Opposition (Doc.
13) on May 1, 2018, and the Moving Defendants replied on May
8, 2018 (Doc. 14). Plaintiffs filed a Notice of Supplemental
Authority on May 16, 2018 (Doc. 15).
allegations in Plaintiffs' Complaint, taking all disputed
facts and reasonable inferences in favor of Plaintiffs, may
be summarized as follows:
a minor child born on January 16, 2006 to Hogan and Amanda
Edmondson (“Edmondson”), all of whom are
residents of Cherokee County, North Carolina. Compl. (Doc.
1-1) ¶¶ 3, 39-40. Id.
about September 14, 2015, Defendant Cherokee County
Department of Social Services (“Cherokee DSS”)
received a report of suspected neglect involving Hogan, H.H.,
and Edmondson. Id. ¶ 40. Cherokee DSS
investigated the report and ultimately filed a juvenile
petition that alleged abuse, neglect, and/or dependency of
H.H. Id. ¶ 41. The juvenile petition was
contained in Cherokee County File Number 15-JA-73 and is
referred to as In re H.H. Id. Throughout
the In re H.H. litigation, Hogan was represented by
court-appointed counsel Melissa Jackson. Id. ¶
about April 1, 2016, North Carolina state District Court
Judge Tessa Sellers entered an order that placed H.H. in
Hogan's custody. Id. ¶¶ 42-43.
Cindy Palmer (“Director Palmer”) was the director
of Cherokee DSS during the investigation and litigation of
In re H.H. Id. ¶ 44. Defendant Scott
Lindsay (“Attorney Lindsay”) represented Cherokee
DSS during the In re H.H. proceedings and provided
advice and guidance to Cherokee DSS with respect to its
investigation and practices relevant to the allegations set
forth in Plaintiffs' Complaint. Id. ¶¶
November 21, 2016, Cherokee DSS again contacted Hogan with
concerns involving Hogan and H.H. Id. ¶ 48. At
the request of an “agent” of Cherokee DSS, Hogan
attended a meeting at Cherokee DSS's office with Lauren
Smith (“Social Worker Smith”), a social worker
for Cherokee DSS. Id. ¶ 49. During the meeting,
Social Worker Smith asked Hogan to execute a Custody and
Visitation Agreement (“Custody Agreement”) that
purported to take custody of H.H. from Hogan and place
physical and legal custody of H.H. with Hogan's father,
Warren Hogan. Id. ¶¶ 50-51.
suffers from learning disabilities and is unable to read and
write adequately, id. ¶ 52, and Cherokee DSS
was aware of these limitations, id. ¶ 53.
Further, Plaintiffs allege that Cherokee DSS
“agents” made various statements to Hogan when he
was presented with the Custody Agreement, including that: (1)
the Custody Agreement was entered into in lieu of court
involvement; (2) adverse legal proceedings and other
consequences would follow if Hogan refused to sign the
Custody Agreement; and (3) if Hogan did not agree to the
Custody Agreement: (i) H.H. would be adopted, and he would
never see her again; (ii) H.H. would be placed in foster
care, and he would not see her; and (iii) H.H. would be
placed in a location where he would have little or no contact
with her. Id. ¶ 54.
time of the November 21, 2016 meeting, Hogan was not
represented by counsel - the previous representation by
appointed counsel Melissa Jackson had concluded - and he was
not given an opportunity to contact new counsel. Id.
context, Hogan agreed to and signed the Custody Agreement,
which Plaintiffs allege was directed and approved by Director
Palmer and Attorney Lindsay. Id. ¶¶ 59-60.
was removed from Hogan's care and placed with Warren
Hogan. Id. ¶ 61. During this period, Hogan was
not allowed to see H.H. and, at best, had de minimis
contact with her. Id. ¶ 62.
December 4, 2017, Hogan contacted the Cherokee County
Sheriff's Office about the situation but was told that
Judge Sellers' Order was not valid. Id. ¶
63. Similarly, on December 6, 2017, Hogan attempted to pick
H.H. up from school, but school officials would not release
H.H. to Hogan, notwithstanding that he had a certified copy
of Judge Sellers' Order. Id. ¶¶ 65,
66. School officials contacted the Andrews Police Department
and Warren Hogan, who arrived with a copy of the Custody
Agreement, after which Hogan was precluded from retrieving
H.H. by threat of arrest. Id. ¶ 66.
December 7, 2017, Attorney Jackson filed a motion in In
re H.H on behalf of Hogan to enforce Judge Sellers'
Order. Id. ¶ 67.
December 13, 2017, North Carolina state District Court Judge
Monica H. Leslie heard the motion. Id. ¶ 68.
Hogan alleges that, when the Court asked what legal authority
Cherokee DSS had for the execution of the Custody Agreement,
Attorney Lindsay admitted that there was “none.”
Id. ¶ 69. Attorney Lindsay also informed the
Court that he was aware of twenty (20) such agreements that
were either drafted by him or at his direction. Id.
¶ 70. Judge Leslie found that the Custody Agreement was
not a valid or enforceable legal document and was null and
void, that the previous order entered by Judge Sellers was
valid, and that full legal custody and control of H.H. was to
be returned to Hogan. Id. ¶ 71.
Leslie also reported Cherokee DSS and Attorney Lindsay to the
North Carolina Department of Health and Human Services
(“DHHS”). Id. ¶ 72. In a December
20, 2017 letter to all county directors of social services,
DHHS advised that “facilitating such private custody
agreements without the oversight of the Court falls outside
of both law and policy.” Id. ¶ 74.
allege that, as a result of Defendants' conduct, Hogan
was denied the opportunity to provide care and love to H.H.
who was denied the care and protection of Hogan, and that
Hogan and H.H. lost the society, companionship, comfort,
guidance, kindly offices, and advice of each other.
Id. ¶ 75.
considering a motion made pursuant to Rule 12(b)(2), the
court has “broad discretion” to determine the
procedure that it will follow. Grayson v. Anderson,
816 F.3d 262, 268 (4th Cir. 2016). The court may consider
jurisdictional evidence “in the form of depositions,
interrogatory answers, admissions, or other appropriate
forms.” Id. at 269.
the plaintiff bears the burden of demonstrating jurisdiction
by a preponderance of the evidence, but when the court
considers a challenge to personal jurisdiction without
holding an evidentiary hearing, the plaintiff need only make
a prima facie showing of personal jurisdiction. Carefirst
of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc.,
334 F.3d 390, 396 (4th Cir. 2003). Jurisdiction is determined
at the time the claim arose. Glynn v. EDO Corp., 536
F.Supp.2d 595, 606 n.15 (D. Md. 2008).
central issue in connection with a motion made pursuant to
Rule 12(b)(6) is whether the complaint states a plausible
claim for relief. See Francis v. Giacomelli, 588
F.3d 186, 189 (4th Cir. 2009). In considering the motion, the
court accepts the allegations in the complaint as true and
construes them in the light most favorable to the plaintiff.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588
F.3d at 192. A court is not, however, required to accept
“legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement.”
Consumeraffairs.com, 591 F.3d at 255; see
Giacomelli, 588 F.3d at 192.
need not contain “detailed factual allegations, ”
but must contain enough factual allegations to suggest the
required elements of a cause of action. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
Consumeraffairs.com, 591 F.3d at 256. “[A]
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Nor
will mere labels and legal conclusions suffice. Id
Federal Rule of Civil Procedure 8 “demands more than an
unadorned, the defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
chart that follows represents an attempt to illustrate, in a
succinct form, the various claims asserted in the Complaint,
taken in the light most favorable to
Moving Defendants seek dismissal of some, but not all, of the
claims pending against them. Specifically, the Moving
Defendants seek dismissal of:
• all claims against Cherokee DSS
• all claims against Cherokee County
• all claims against Attorney Lindsay in his official
capacity, except the Eleventh Claim for relief:
“Deprivation of Rights 42 U.S.C. § 1983”;
• all claims against Director Palmer, in her official
capacity, except the Eleventh Claim for relief:
“Deprivation of Rights 42 U.S.C. § 1983.”
Defs.' Mem. (Doc. 10) at 4. The claims targeted by the
Partial Motion to Dismiss are highlighted on the claim chart.
Defendants have not sought dismissal. Attorney Lindsay and
Director Palmer, in their individual capacities, are
represented by separate counsel and have answered the
Complaint. See (Docs. 11, 12). Defendant DSS
Supervisor Doe #1 and DSS ...