Sammye R. Holloway v. State of Ohio Ohio Department of Human Services Sally Brush Clermont County, Ohio

179 F.3d 431, 1999 U.S. App. LEXIS 11230, 1999 WL 350033
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 3, 1999
Docket96-3732
StatusPublished
Cited by6 cases

This text of 179 F.3d 431 (Sammye R. Holloway v. State of Ohio Ohio Department of Human Services Sally Brush Clermont County, Ohio) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sammye R. Holloway v. State of Ohio Ohio Department of Human Services Sally Brush Clermont County, Ohio, 179 F.3d 431, 1999 U.S. App. LEXIS 11230, 1999 WL 350033 (6th Cir. 1999).

Opinions

CLAY, J., delivered the opinion of the court, in which DAVID A. NELSON, J., joined. BOGGS, J. (pp. 448-53), 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 Plaintiffs civil rights in relation to the ter-[434]*434urination 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 Defendants1 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 Plaintiffs § 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) Plaintiffs 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 Plaintiffs response, an order was issued to Clermont County and Brush to provide evidence of the notice of hearing to terminate Plaintiffs parental rights which Clermont County allegedly had attempted to be served upon Plaintiff. Cler-mont 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, Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 [435]*435(“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 Plaintiffs husband in accomplishing the goals of the case plan. Because Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Qhio.

Plaintiff filed a pro se

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179 F.3d 431, 1999 U.S. App. LEXIS 11230, 1999 WL 350033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sammye-r-holloway-v-state-of-ohio-ohio-department-of-human-services-sally-ca6-1999.