Pittman v. Cuyahoga County Department of Children & Family Services

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0139p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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RICKY L. PITTMAN,
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Plaintiff-Appellee,
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No. 09-4161
v.
,
>
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CUYAHOGA COUNTY DEPARTMENT OF

Defendant, -
CHILDREN AND FAMILY SERVICES,
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Defendant-Appellant. -
CYNTHIA HURRY, a.k.a. Cynthia Keller,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 05-00541—Ann Aldrich, District Judge.
Argued: January 13, 2011
Decided and Filed: May 20, 2011
Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ARGUED: Steven W. Ritz, CUYAHOGA COUNTY PROSECUTOR’S OFFICE,
Cleveland, Ohio, for Appellant. Kenneth D. Myers, Cleveland, Ohio, for Appellee.
ON BRIEF: Steven W. Ritz, CUYAHOGA COUNTY PROSECUTOR’S OFFICE,
Cleveland, Ohio, for Appellant. Kenneth D. Myers, Cleveland, Ohio, for Appellee.
_________________

OPINION
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CORNELIA G. KENNEDY, Circuit Judge. Defendant-Appellant Cynthia Hurry
née Keller appeals the district court’s order denying her summary judgment on Plaintiff-
Appellee Ricky Pittman’s claims under 42 U.S.C. § 1983. Hurry, a social worker

1
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 2
and Family Servs., et al.

employed by the Cuyahoga County Department of Children and Family Services
(“CCDCFS”), was the primary case worker for Pittman’s son Najee, who was removed
from his mother’s custody by CCDCFS. After Najee was adjudicated neglected by the
Juvenile Division of the Cuyahoga County Court of Common Pleas (the “juvenile
court”), the court granted legal custody of him to Martha and Emmitt Graves, his
maternal great aunt and uncle. Pittman, who maintains that he wished to take custody
of Najee, asserts that Hurry misrepresented his desire and ability to parent Najee to
CCDCFS and the juvenile court. He also alleges that Hurry impeded his ability to
participate in the custody proceedings. As a result, he claims that his fundamental right
to maintain a parent-child relationship with Najee was compromised in violation of the
Fourteenth Amendment guarantee of substantive and procedural due process. Hurry
argues that she is absolutely immune from suit for her participation in juvenile court
proceedings, and that the doctrine of qualified immunity bars the remainder of Pittman’s
claims against her. Because we find that Hurry is immune from Pittman’s claims, we
REVERSE the district court’s order denying her summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Najee Waters, born on September 7, 2000, is the son of Pittman and Latarra
Waters.1 On January 2, 2001, an emergency situation required CCDCFS to assume
custody of Najee and B.W., Najee’s maternal half-sister, both of whom had been in the
care of Latarra, a known drug addict. The following day, January 3, 2001, CCDCFS
filed a complaint in the juvenile court, alleging that Najee and B.W. were neglected and
requesting that CCDCFS be granted temporary custody of the children. The complaint
erroneously stated that Pittman had not established paternity of Najee and was not
involved in Najee’s care or support, when in fact Pittman claims to have established
paternity on January 2, 2001; the complaint was later corrected on the record to reflect
that “[a]lleged father of Najee, Ricky Pitman [sic], has established paternity and provides

1
Both the parties and the district court identify Najee’s mother as Latarra Waters, but some of the
Ohio court documents refer to her as Latarra Palmer. Because of this discrepancy, we refer to Najee’s
mother as “Latarra” throughout.
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 3
and Family Servs., et al.

financial support for the child and was unable to visit with the child on a consistent basis
due to interference from mother.” On January 5, 2001, Pittman attended a hearing on
the complaint, and the juvenile court appointed him counsel, at his request, after he
executed an affidavit of indigency. Both Najee and B.W. were returned to Latarra’s
custody after the hearing.

In early June 2001, CCDCFS again was required to take Najee and B.W. into
emergency custody. This time, a magistrate granted CCDCFS’s motion for emergency
temporary custody of the children during a hearing on June 12, 2001. Pittman attended
the hearing, at which the magistrate renewed his counsel’s appointment. On August 3,
2001, Hurry filed a case plan with the juvenile court, which reflected that the children
had been placed in a foster family home. The case plan also contained an action plan
that the family needed to implement in order to terminate CCDCFS’s temporary custody.
As part of this action plan, Pittman was required to submit to a psychological
examination, take parenting classes, and undergo family preservation services.

At or around the time CCDCFS assumed custody of Najee and B.W., Hurry
began investigating Pittman’s household for the potential placement of Najee while the
children remained in CCDCFS custody. She visited Pittman and his family at their home
at 3207 Central Avenue in Cleveland, Ohio, though during the visit Pittman informed
her they were planning to move. Additionally, Hurry had Pittman and his wife, Bonita
Pittman, complete a Release of Information form used by CCDCFS as part of its
caregiver approval process. Hurry later used the releases to confirm that neither of the
Pittmans had a criminal record, as required by CCDCFS procedure.

Before Hurry could further pursue Pittman’s approval process, she maintains
that, “within the first ninety days of the [June 12, 2001] removal, Mr. Pittman became
very uncooperative.” She claims that Pittman refused to provide her with his new
address or financial records, expressed unwillingness to allow Latarra to have any
contact with Najee should Najee be placed with him, and would not agree to assume care
of B.W. despite CCDCFS’s policy that siblings be placed together whenever possible.
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 4
and Family Servs., et al.

Pittman does not deny that he did not want to take charge of B.W., though he disputes
Hurry’s remaining allegations. Specifically, Pittman asserts that he “never failed to
cooperate with Cynthia Hurry or anyone else at [CCDCFS],” he “never refused to give
Cynthia Hurry [his] address,” he “never told Cynthia Hurry or anyone at [CCDCFS] that
if [he] got custody of Najee that [he] didn’t want LaTarra [sic] to be a part of his life,”
and he “never refused to give Cynthia Hurry or anyone at [CCDCFS] financial
information.” Nevertheless, Hurry “never completed or finished” Pittman’s approval
process, alleging Pittman “would not have been approved” for placement due to his
“uncooperativeness” and failure to facilitate a CCDCFS inspection of his new home.
Hurry also asserts that she verbally notified Pittman his approval process had come to
a stop in the late summer or fall of 2001, though Pittman claims “[he] was never told that
[he] was out of consideration.”

On November 16, 2001, at a hearing attended by Pittman and his counsel, a
magistrate adjudicated Najee and B.W. neglected. The magistrate found that
“[Latarra]’s whereabouts are unknown. She has no stable housing nor has produced any
proof of income. She was referred for a psychological evaluation, but has not
complied.” The magistrate further ruled that CCDCFS should retain custody of the
children until their dispositional hearing. The juvenile court approved the magistrate’s
decision on December 5, 2001.

The magistrate held Najee and B.W.’s dispositional hearing on January 18, 2002.
Pittman claims that he attended the hearing, though the juvenile court records are unclear
on this point.2 The magistrate granted temporary custody of the children to CCDCFS,
which order the juvenile court adopted on February 4, 2002. The magistrate’s decision
notes that “[f]ather Ricky Pittman did not show he was interested in receiving custody
of his child Najee.” After the hearing, CCDCFS transferred the children from foster care
into the care of their maternal great aunt, Martha Graves, and her husband, Emmitt
Graves.

2
While the juvenile court records note “mother nor fathers present,” they also state that “all
necessary parties were present this day in court” and “father Ricky Pittman has counsel.”
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 5
and Family Servs., et al.

CCDCFS filed a motion for permanent custody of Najee and B.W. with the
juvenile court on February 22, 2002. As part of the motion, Hurry submitted an affidavit
containing the following statements: “Najee’s relationship with his father has been
adversely affected by father’s failure to visit or communicate with his child for a time
period of greater than 90 days”; “[f]ather of Najee has expressed his intent to agree with
permanent custody to CCDCFS”; “[p]arents have failed continuously and repeatedly to
substantially remedy the conditions causing the children to be placed outside the home”;
and “[p]arents have failed to substantially comply with their court ordered case plan.”
Furthermore, Hurry admits that CCDCFS never considered Pittman for custody of Najee.

Pittman contests Hurry’s representations to the juvenile court and the basis for
her decision to discount him as a potential custodian of Najee, again disputing the notion
that he was uncooperative with Hurry and CCDCFS. He also alleges that “[he] never
told anyone at [CCDCFS] that [he] agreed with a grant of Permanent Custody, . . . [he]
never agreed to allow [his] parental rights to be severed,” and “[he] visited Najee when
[Najee] was made available to [him].” Furthermore, he challenges Hurry’s assertion that
his failure to comply with the case plan was a driving force in her decision not to
recommend him for custody. Though Pittman does not dispute that he failed to complete
the case plan’s objectives, he offers evidence that Hurry did not receive notice of his
failure to attend the required parenting classes until after she filed the affidavit in support
of permanent custody; he also points to Hurry’s assessment that CCDCFS policy usually
allows parents at least twelve months to complete their case plan before CCDCFS seeks
permanent custody. Finally, Pittman alleges that Hurry indicated to him that he was
“next in line” for custody of Najee in the event that CCDCFS’s plan for reunification
with Latarra proved unworkable.

On June 10, 2002, Najee and B.W.’s case was reassigned to a social worker from
Beechbrook, a private agency, making Hurry no longer the primary case worker in the
matter. CCDCFS held a Semi-Annual Administrative Review (“SAR”) of the case on
June 13, 2002; present were Latarra, the Graveses, the Beechbrook case worker, another
CCDCFS social worker, and a CCDCFS facilitator. The SAR report prepared by the
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 6
and Family Servs., et al.

facilitator indicated that “Mr. Pittman does not want to be involvement [sic],” Pittman
and his wife had attended some parenting classes but had dropped out, and “[n]either
father has any contact or involvement with the children at this time.” As a result of the
SAR, on June 19, 2002, CCDCFS filed a motion with the juvenile court seeking to
withdraw the motion for permanent custody and requesting instead that Martha Graves
be granted legal custody of Najee and B.W.

After several unsuccessful attempts to serve Pittman at his Central Avenue
address with CCDCFS motions and notices of hearings, on June 25, 2002, Hurry filed
an affidavit for notice by publication with the juvenile court. In the affidavit, Hurry
stated that she had “made reasonably diligent efforts to locate” Pittman, including
“[a]sking father for his new address [which] he refused to provide [and he] stated he
wants nothing to do with the child.” However, Pittman claims that “[a]t all times[]
Cynthia Hurry knew my address and/or phone number or how to obtain it,” including
checking with Latarra, inquiring through various Cuyahoga County agencies, or cross-
referencing his child support payments. Further, he alleges that he never knew that
CCDCFS had applied for permanent custody or that “the Graveses were being
considered for adoption,” even though he asked to be kept “in the loop” and “abreast of
everything that was going on” in the custody proceedings. On the other hand, Pittman
admits that he did not try to contact his court-appointed attorney after the dispositional
hearing on January 18, 2002, nor did he file a change of address with the juvenile court
after moving from his Central Avenue address.

On August 21, 2002, the juvenile court convened a hearing on CCDCFS’s
pending motions, but it was continued based on the court’s finding that “notice
requirements have not been met and that all necessary parties were not present this day
in court.” Conspicuously absent was Pittman and his attorney; the juvenile court noted
that “[e]fforts to serve Ricky Pittman were unsuccessful. CCDCFS reports that it will
serve Mr. Pittman by publication.” The hearing reconvened on October 30, 2002.
Neither Pittman nor his attorney were present, but the juvenile court nonetheless found
that “Pittman has been served by publication” and “[s]ervice has been perfected on all
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 7
and Family Servs., et al.

the parties.” The juvenile court proceeded to grant legal custody of Najee and B.W. to
Martha and Emmitt Graves. The magistrate decided to terminate CCDCFS’s protective
supervision over the case at a hearing on January 28, 2003; this decision was adopted by
the juvenile court on February 10, 2003.

Latarra died on November 2, 2003. After learning of her death, Pittman sought
custody of Najee by filing a motion for modification of custody with the juvenile court
on February 18, 2004. Pittman claims that “[he] had always been ready, willing and able
to parent Najee, but . . . [he] reasonably relied on the representations of [CCDCFS] that
their first effort would be to reunite Najee with his mother and that if that failed, [he]
would be next in line.” Therefore, according to Pittman, he “relied on [CCDCFS] to
contact [him]” regarding “a serious legal matter of . . . awarding the child to a great
aunt,” and “[h]ad [he] realized earlier that [CCDCFS] had intentionally cut [him] out of
the process, [he] would have made more of an effort to pursue custody.” On October 6,
2004, the juvenile court found that it lacked subject-matter jurisdiction to consider the
motion, as more than one year had elapsed since the conclusion of the custody
proceedings and the Graveses had since moved with the children to Indiana. The Ohio
Court of Appeals affirmed.

On February 9, 2005, Pittman filed the instant action against CCDCFS and Hurry
in the United States District Court for the Northern District of Ohio. Pittman seeks
damages and a declaratory judgment under 42 U.S.C. § 1983, claiming that Defendants
unconstitutionally deprived him of his fundamental right to family integrity, failed to
accord him requisite due process before awarding custody of Najee to Martha Graves,
and acted wantonly and recklessly in the state court custody proceedings. The district
court initially granted Defendants’ motion to dismiss Pittman’s claims under the Rooker-
Feldman doctrine, Pittman v. Cuyahoga Cnty. Dep’t of Children & Family Servs., No.
05-00541, 2006 WL 42341 (N.D. Ohio Jan. 6, 2006), but this court reinstated all claims
on appeal, Pittman v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 241 F. App’x
285 (6th Cir. 2007). Defendants moved for summary judgment on October 15, 2008,
arguing that Pittman’s claims are barred by the statute of limitations, Pittman cannot
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 8
and Family Servs., et al.

establish a violation of his Fourteenth Amendment rights, CCDCFS is not responsible
for any constitutional injury to Pittman, and Hurry is immune from suit. The district
court granted summary judgment to CCDCFS, but denied summary judgment to Hurry
on all of Pittman’s claims. Pittman v. Cuyahoga Cnty. Dep’t of Children & Family
Servs., No. 05-00541, 2009 WL 2567776 (N.D. Ohio Aug. 17, 2009). Hurry filed a
timely interlocutory appeal of the district court’s decision that she was not entitled to
immunity.

JURISDICTION AND STANDARD OF REVIEW

This case comes to us on a denial of summary judgment, a posture which is not
normally appealable to this Court. However, orders denying absolute or qualified
immunity may be immediately appealed as final decisions within the meaning of 28
U.S.C. § 1291, Will v. Hallock, 546 U.S. 345, 350 (2006) (citing Nixon v. Fitzgerald,
457 U.S. 731, 742 (1982) and Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)), “to the
extent they present issues of law separable from the merits yet potentially determinative
of a claim,” Skousen v. Brighton High Sch., 305 F.3d 520, 525 (6th Cir. 2002) (citing
Mitchell, 472 U.S. at 526-28 and Mattox v. City of Forest Park, 183 F.3d 515, 518-19
(6th Cir. 1999)). Pittman argues that this Court lacks jurisdiction over this appeal
because the district court denied Hurry’s claim of immunity based on factual disputes.

While a defendant raising an immunity defense “may not appeal a district court’s
summary judgment order insofar as that order determines whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial,” Johnson v. Jones, 515 U.S. 304, 319-
20 (1995), this Court may entertain the questions of law raised in such an appeal
“‘regardless of the district court’s reasons for denying qualified immunity,’” Livermore
ex rel. Rohm v. Lubelan, 476 F.3d 397, 402 (6th Cir. 2007) (quoting Williams v. Mehra,
186 F.3d 685, 689-90 (6th Cir. 1999) (en banc)). To this end, “a defendant seeking
qualified immunity must be willing to concede to the facts as alleged by the plaintiff and
discuss only the legal issues raised by the case.” Sheets v. Mullins, 287 F.3d 581, 585
(6th Cir. 2002) (citing Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir. 1999)). Though
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 9
and Family Servs., et al.

Hurry “disputes [Pittman]’s version of the story,” she has nonetheless limited her
arguments before this Court to whether, as a matter of law, she is entitled to absolute or
qualified immunity based on “the evidence viewed in the light most favorable to
[Pittman].” Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (citing Dickerson v.
McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996)). Therefore, we may review the district
court’s denial of summary judgment based on Hurry’s claims of immunity.

“We review the district court’s denial of summary judgment de novo, using the
same Rule 56(c) standard as the district court.” Moldowan v. City of Warren, 578 F.3d
351, 373 (6th Cir. 2009), cert. denied, 130 S. Ct. 1504 (2010). Summary judgment is
proper where “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A] party seeking
summary judgment always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). In considering
a motion for summary judgment, “the court must view the evidence and draw all
reasonable inferences in favor of the nonmoving party.” Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (citing Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). At issue is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). “That [Hurry’s] motion[] for summary judgment
w[as] based on claims of absolute and qualified immunity does not affect the standard
of review that applies. Whether a defendant is entitled to absolute or qualified immunity
from liability under 42 U.S.C. § 1983 is a legal question that this Court reviews de
novo.” Moldowan, 578 F.3d at 374 (citing Gregory v. City of Louisville, 444 F.3d 725,
737, 742 (6th Cir. 2006)).
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 10
and Family Servs., et al.

ANALYSIS

Pittman claims that Hurry violated his right to substantive and procedural due
process under the Fourteenth Amendment. Specifically, he argues that Hurry
unconstitutionally deprived him of his fundamental liberty interest in maintaining a
parental relationship with Najee by “regularly, repeatedly and on an ongoing basis
misrepresenting his status, his whereabouts and his attitude toward parenting Najee
in . . . filings to the Juvenile Court”3; by misrepresenting his “status [and] his attitude
toward parenting” when “participating in agency decisions” regarding the placement and
custody of Najee; and by “completely cut[ting] him out of the [placement and custody]
process.” On this last point, Pittman objects to Hurry’s handling of his caregiver
approval process, in particular her alleged failure to inform him that she had halted his
consideration. Additionally, Pittman alleges that he was precluded from participating
in the juvenile court proceedings due to his reliance on Hurry’s misrepresentation to him
that, as Najee’s “natural father,” he would be the “next choice to care for Najee” if and
when CCDCFS determined Latarra an unfit parent. He also claims that Hurry should
have personally informed him of the status and schedule of the juvenile court
proceedings once it became clear that he was not receiving the court notices sent to his
Central Avenue address. The district court concluded that Hurry was not entitled to
absolute or qualified immunity with respect to any of these actions. We disagree, and
decide that Hurry is immune from all of Pittman’s claims.

3
In his complaint, Pittman also claims injury from misrepresentations in “internal government
documents.” The only CCDCFS document in the record containing statements that Pittman disputes is the
SAR report prepared in June 2002, after Hurry was no longer the primary social worker on Najee and
B.W.’s case. The SAR report was prepared by CCDCFS facilitator Richard Grace and reflects decisions
made in a meeting that Hurry did not attend. Because Hurry appears to have had no part in the preparation
of the SAR report and Pittman does not argue that she was responsible for any of the statements therein,
any alleged harm resulting from the report is not germane to Pittman’s claims against Hurry.
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 11
and Family Servs., et al.

I. Absolute Immunity

Hurry first argues that she is entitled to absolute immunity with respect to her
allegedly erroneous statements to the juvenile court regarding Pittman. These alleged
misrepresentations are contained in three filings: the original complaint4 filed with the
juvenile court on January 3, 2001; Hurry’s sworn affidavit supporting CCDCFS’s
motion for permanent custody; and her sworn affidavit requesting that the juvenile court
serve Pittman by publication.

“[U]nder certain circumstances, social workers are entitled to absolute
immunity.” Holloway v. Brush, 220 F.3d 767, 774 (6th Cir. 2000) (en banc). The scope
of this immunity is akin to the scope of absolute prosecutorial immunity, id., which
applies to conduct “intimately associated with the judicial phase of the criminal
process,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). As this Court previously has
described:

The analytical key to prosecutorial immunity . . . is
advocacy—whether the actions in question are those of an advocate. See
Buckley [v. Fitzsimmons], 509 U.S. [259,] 273-74 [(1993)]; Kalina [v.
Fletcher], 522 U.S. [118,] 125 [(1997)]; Pusey [v. City of Youngstown],
11 F.3d [652,] 658 [(6th Cir. 1993)]. By analogy, social workers are
absolutely immune only when they are acting in their capacity as legal
advocates—initiating court actions or testifying under oath—not when
they are performing administrative, investigative, or other functions. The
case before us turns on whether the actions of which [the plaintiff]
complains were taken by [the defendant social worker] in her capacity
as a legal advocate.

Holloway, 220 F.3d at 775.

Hurry filed both the complaint and the affidavit in support of the motion for
permanent custody in her capacity as a legal advocate, and she is therefore entitled to
absolute immunity with regard to these actions. “[F]amily service workers [are]

4
The complaint identifies Terrance Evans—Hurry’s supervisor—as the complainant.
Nevertheless, Pittman alleges that Hurry actually prepared and/or filed the complaint. Viewing the
evidence in the light most favorable to Pittman, we assume that Hurry was responsible for the
misrepresentations in the complaint.
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 12
and Family Servs., et al.

absolutely immune from liability in filing [a] juvenile abuse petition, due to their quasi-
prosecutorial function in the initiation of child abuse proceedings.” Salyer v. Patrick,
874 F.2d 374, 378 (6th Cir. 1989). The filing of the affidavit—which reflects Hurry’s
opinion “[t]hat permanent custody is in the best interest of [Najee and
B.W.]”—represents precisely the sort of conduct within a social worker’s absolute
immunity “for her testimony or recommendations given in court concerning the child’s
best interests as she saw the matter.” Holloway, 220 F.3d at 776. Both of these actions
are essential to Hurry’s ability to “protect the health and well-being of the children,” and
this Court has recognized the need to allow her “to perform the necessary tasks to
achieve this goal without the worry of intimidation and harassment from dissatisfied
parents.” Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984).

Hurry’s submission of the affidavit for publication was conduct intimately
associated with the judicial process and also qualifies for absolute immunity. Ensuring
adequate service of process in juvenile court proceedings is a judicial function
committed to the juvenile court under Ohio law. See Ohio R. Juv. P. 15(A) (“After the
complaint has been filed, the court shall cause the issuance of a summons directed to the
child, the parents, guardian, custodian, and any other persons who appear to the court to
be proper or necessary parties.”); Ohio Rev. Code Ann. § 2151.29 (setting procedures
for the service of summons, which allow the clerk of the juvenile court to undertake
notice by publication “[w]henever it appears by affidavit that after reasonable effort the
person to be served . . . cannot be found or the person’s post-office address
ascertained”). Hurry’s affidavit for publication contained sworn testimony relevant to
the juvenile court’s duty to execute proper service of process, and this Court has
specifically stated that “testifying under oath” is conduct within social workers’
“capacity as legal advocates.” Holloway, 220 F.3d at 775 (emphasis omitted); cf.
Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1373 (8th Cir. 1996) (“To the
extent [defendant child welfare authorities] are sued because [defendant social worker]
made arguably false statements in her affidavit in her role as a witness before the state
court, the doctrine of absolute witness immunity applies.”).
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 13
and Family Servs., et al.

Whether Hurry made intentional misrepresentations to the juvenile court in the
complaint and affidavits does not affect the conclusion that she is entitled to absolute
immunity. The district court reasoned that “ma[king] misrepresentations . . . to the
juvenile court . . . is conduct that would not constitute advocacy.” Pittman, 2009 WL
2567776, at *8. However, this conclusion is at odds with the functional approach
towards prosecutorial immunity adopted by both the Supreme Court and this Court, and
therefore it is at odds with the absolute immunity accorded to social workers. As this
Court has recognized, prosecutorial immunity applies “so long as the general nature of
the action in question is part of the normal duties of a prosecutor,” even when that
immunity “bar[s] § 1983 suits arising out of even unquestionably illegal or improper
conduct by the prosecutor.” Cady v. Arenac Cnty., 574 F.3d 334, 340 (6th Cir. 2009).
Pursuant to this rule, prosecutors do not forfeit their absolute immunity when they
knowingly make false statements while advocating before the court: “Like witnesses,
prosecutors and other lawyers were absolutely immune from damages liability at
common law for making false or defamatory statements in judicial proceedings (at least
so long as the statements were related to the proceeding), and also for eliciting false and
defamatory testimony from witnesses.” Burns v. Reed, 500 U.S. 478, 489-90 (1991).
Because absolute immunity for social workers is akin to absolute immunity for
prosecutors, the same protection must apply here, no matter how undesirable the results.
In the words of Chief Judge Learned Hand, absolute immunity represents “a balance
between . . . evils”; “[I]t has been thought in the end better to leave unredressed the
wrongs done by dishonest officers than to subject those who try to do their duty to the
constant dread of retaliation.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949),
quoted in Imbler, 424 U.S. at 428.

Neither can Pittman circumvent Hurry’s absolute immunity for filing the
complaint and affidavits by stating a claim based on “her underlying action in failing to
properly investigate [him], which led her to put false information” in those documents.
While conduct pursuant to a social worker’s investigatory functions are not entitled to
absolute immunity, see Achterhof v. Selvaggio, 886 F.2d 826, 830 (6th Cir. 1989)
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 14
and Family Servs., et al.

(denying absolute immunity to a social worker’s decision to initiate and continue an
investigation of possible child abuse), this Court rejected a similar failure-to-investigate
claim in Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416 (6th Cir. 2001). In that case, this
Court extended absolute immunity to two social workers who “failed to conduct a
careful investigation before incorporating . . . false accusations in [a child abuse]
petition.” Id. at 421. This Court also determined that defendant social workers were
absolutely immune from plaintiffs’ allegation that they could have facilitated the return
home of plaintiffs’ child “had [they] performed an adequate investigation at any time
after [the child’s removal from plaintiffs’ home by the juvenile court].” Id. at 422. After
noting that “Tennessee law entrusts the decision whether to return a neglected child to
the home from which he was removed to the Juvenile Court,” this Court held that a
social worker’s “function of making . . . recommendations” on such matters to the
juvenile court, “including the underlying investigation, is . . . intimately related to the
judicial phase of child custody proceedings” and therefore protected by absolute
immunity. Id. at 422-23 (emphasis added). Like the state law at issue in Rippy, Ohio
law charges the juvenile court with making custody determinations, see Ohio Rev. Code
Ann. §§ 2151.353(A)(3), 2151.414(A)(1), and executing service of process, see Ohio R.
Juv. P. 15(A); Ohio Rev. Code Ann. § 2151.29. Thus, Hurry’s absolute immunity also
protects her from Pittman’s claim that her allegedly false assertions in the complaint and
affidavits stem from an inadequate investigation. For these reasons, the district court
erred by determining that Hurry was not absolutely immune from Pittman’s claims based
on the complaint and two affidavits she submitted to the juvenile court.

II. Qualified Immunity

Of course, Hurry’s absolute immunity does not extend to conduct unrelated to
her role as an advocate before the juvenile court. This includes her alleged
misrepresentation of Pittman’s “status [and] his attitude toward parenting” Najee while
participating in “agency decisions” concerning Najee, as well as Pittman’s assertion that
Hurry “cut him out of the [placement and custody] process” by improperly investigating
him as a potential caregiver, misrepresenting to him that he was “next in line” for
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 15
and Family Servs., et al.

custody, and failing to keep him abreast of the developments in the juvenile court
proceedings. Hurry asserts that she is entitled to qualified immunity for these actions.

The doctrine of qualified immunity protects “government officials performing
discretionary functions . . . from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Determining whether a government official is entitled to qualified immunity involves
two inquiries: “first, we must determine whether the plaintiff has alleged facts which,
when taken in the light most favorable to [him], show that the defendant-official’s
conduct violated a constitutionally protected right; [second,] we must . . . determine
whether that right was clearly established such that a reasonable official, at the time the
act was committed, would have understood that his behavior violated that right.”
Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001) (citing Saucier v. Katz, 533
U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.
Ct. 808 (2009)). The order in which we address the two prongs of the qualified
immunity analysis is left to our discretion. Pearson, 129 S. Ct. at 818. Our inquiry
begins, and ends, with an analysis of whether Hurry’s actions violated a constitutionally
protected right—namely, Pittman’s substantive and procedural due process rights.

Pittman premises both his substantive and procedural due process claims on an
alleged deprivation of his “fundamental liberty interest in family integrity.” See Prater
v. City of Burnside, Ky., 289 F.3d 417, 431 (6th Cir. 2002) (“To establish either a
substantive or procedural due process violation, [plaintiff] must first show that the
[government official] deprived it of a constitutionally protected liberty or property
interest.”). We assume for the purposes of our discussion that Pittman has a fundamental
liberty interest in maintaining his parent-child relationship with Najee. See Lehr v.
Robertson, 463 U.S. 248, 261 (1983) (“When an unwed father demonstrates a full
commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in
the rearing of his child,’ his interest in personal contact with his child acquires
substantial protection under the due process clause.” (quoting Caban v. Mohammed, 441
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 16
and Family Servs., et al.

U.S. 380, 392 (1979))); see also Caban, 441 U.S. at 397 (Stewart, J., dissenting);
Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Stanley v. Illinois, 405 U.S. 645, 651-52
(1972). But see Michael H. v. Gerald D., 491 U.S. 110, 123-30 (1988) (plurality
opinion) (concluding that biological father who had an established relationship with his
child did not have liberty interest sufficient to invalidate state statutory presumption that
the mother’s husband was the child’s father). We also assume Pittman has alleged a
deprivation of this right that would trigger the substantive and procedural protections of
the Due Process Clause—namely, the failure to award him placement or custody of
Najee, or “to even consider” him for placement or custody.5 Nevertheless, because
Hurry’s conduct neither caused that deprivation nor interfered with the process due upon
that deprivation, Pittman cannot show that she violated his constitutional rights. She
therefore is entitled to qualified immunity.

A. Substantive Due Process

“Substantive due process . . . serves the goal of preventing governmental power
from being used for purposes of oppression, regardless of the fairness of the procedures
used.” Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996) (internal quotation marks
omitted). “Substantive due process claims may be loosely divided into two categories:
(1) deprivations of a particular constitutional guarantee; and (2) actions that ‘shock the
conscience.’” Valot v. Se. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir.

5
This is hardly a foregone conclusion. The deprivation Pittman alleges is not one that has
traditionally been designated by the courts as a deprivation of parental rights. As the district court failed
to recognize, this is not a case where Hurry or CCDCFS removed Najee from Pittman’s custody. See
Pittman, 2009 WL 2567776, at *8 (denying Hurry qualified immunity based on O’Donnell v. Brown, 335
F. Supp. 2d 787, 827-28 (W.D. Mich. 2004), a removal case). At no point in Najee’s life has Pittman
acquired physical custody, or any form of legal custody, of Najee. Cf. Brittain v. Hansen, 451 F.3d 982,
992 (9th Cir. 2006) (holding that “non-custodial parents with court-ordered visitation rights have a liberty
interest in the companionship, care, custody, and management of their children” that is “unambiguously
lesser in magnitude than that of a parent with full legal custody”). This also is not a situation in which the
state terminated the parent-child relationship, an action that “‘must be accomplished by procedures meeting
the requisites of the Due Process Clause.’” Santosky v. Kramer, 455 U.S. 745, 753 (1982) (quoting
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 37 (1981) (Blackmun, J., dissenting)). Pittman’s parental
rights survived the award of legal custody of Najee to the Graveses; under Ohio law, a grant of legal
custody to a non-parent leaves intact parents’ “residual parental rights, privileges, and responsibilities,
including, but not limited to, the privilege of reasonable visitation, consent to adoption, the privilege to
determine the child’s religious affiliation, and the responsibility of support.” Ohio Rev. Code Ann.
§ 2151.353(A)(3)(c). Overall, Pittman remains a non-custodial parent capable of seeking visitation rights
or even custody of Najee from the Indiana courts. See Ind. Code §§ 31-14-10-1, 31-34-23-1.
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 17
and Family Servs., et al.

1997) (citing Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993) and
Mansfield Apartment Owners Ass’n v. City of Mansfield, 988 F.2d 1469, 1474 (6th Cir.
1993)). Pittman premises his substantive due process claim on the deprivation of his
fundamental liberty interest in parenting Najee, so his claim is of the first type.6 In this
regard, “substantive due process provides that, irrespective of the constitutional
sufficiency of the processes afforded, government may not deprive individuals of
fundamental rights unless the action is necessary and animated by a compelling
purpose.” Bartell v. Lohiser, 215 F.3d 550, 557-58 (6th Cir. 2000) (citing Washington
v. Glucksberg, 521 U.S. 702, 721 (1997)).

Hurry cannot be liable for violating Pittman’s substantive due process rights
because, to the extent that Pittman suffered a deprivation of his fundamental right to
family integrity, that deprivation was perpetrated by the juvenile court, not by Hurry.
Pittman alleges that, due in large part to her mishandling of Pittman’s caregiver approval
process, Hurry made detrimental misrepresentations about Pittman in internal CCDCFS
proceedings concerning Najee. As a result, Pittman asserts, CCDCFS determined that
he was unfit for placement or custody of Najee. However, even if Hurry’s actions led
CCDCFS to conclude that he was an unfit caregiver, this did not result in the failure to
award or “to even consider” Pittman for placement or custody. Under Ohio law, the
juvenile court decides whether to grant permanent custody to CCDCFS or to grant legal

6
The district court improperly analyzed Pittman’s substantive due process claim under the “shock
the conscience” standard. See Pittman, 2009 WL 2567776, at *5-*6. In the past, this Court has used both
the “shock the conscience” rubric and the deprivation of fundamental rights theory to assess substantive
due process claims against social workers. Compare Bartell v. Lohiser, 215 F.3d 550, 557-59 (6th Cir.
2000) (applying strict scrutiny to mother’s substantive due process claim based on state child services
workers’ role in terminating her custody of her son), with Eidson v. Tenn. Dep’t of Children’s Servs., 510
F.3d 631, 635-36 (6th Cir. 2007) (stating that father had to allege “‘conduct intended to injure in some way
unjustifiable by any government interest’ and that is ‘conscience-shocking’ in nature” to state a substantive
due process claim based on the removal of his daughters from his custody (quoting Mitchell v. McNeil, 487
F.3d 374, 377 (6th Cir. 2007))), and Smith v. Williams-Ash, 173 F. App’x 363, 365, 367 (6th Cir. 2005)
(applying the “shock the conscience” standard to plaintiffs’ claims that a social worker violated their
substantive due process rights by “thwarting [the plaintiffs’] attempts to recover the[ir] children” after
removal and “not providing a probable cause hearing to determine the children’s placement”).
Nonetheless, Pittman clearly claims a substantive due process violation based on the alleged deprivation
of his fundamental liberty interest in family integrity, not on allegedly conscience-shocking conduct. See
Appellee’s Br. 30-31 (“Where the plaintiff does not allege violation of a specific protected liberty or
property interest, the test is whether the conduct ‘shocks the consience[]’; but where the plaintiff, as here,
alleges a violation of a recognized liberty interest, in this case family integrity, the Court applies a different
substantive due process test, which requires a compelling government interest and narrowly tailored
conduct.”); accord Pl.’s Resp. Mot. Summ. J. 16, ECF No. 32.
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 18
and Family Servs., et al.

custody to a relative. See Ohio Rev. Code Ann. §§ 2151.353(A)(3), 2151.414(A)(1).
Similarly, though a CCDCFS caseworker makes an initial determination as to the
appropriate placement for a child in CCDCFS custody, that determination is not binding
on interested parties, including the parents, until the juvenile court approves and
journalizes the child’s case plan; if a parent disagrees with the CCDCFS case plan, his
recourse is with the juvenile court, which will hear “evidence on the contents of the case
plan” and, “based upon [that] evidence . . . and the best interest of the child, shall
determine the contents of the case plan.” Id. § 2151.412(D). In contrast, CCDCFS, like
Pittman, is merely a party to the juvenile court proceedings, tasked with presenting to
the juvenile court its recommendation as to the appropriate course of action in a
particular case. Because the juvenile court has the ultimate decisionmaking power with
respect to placement and custody, it alone could deprive Pittman of his fundamental
right. Therefore, Hurry’s conduct did not violate Pittman’s substantive due process
rights, and she has qualified immunity against that claim.

B. Procedural Due Process

“[P]rocedural due process principles protect persons from deficient procedures
that lead to the deprivation of cognizable liberty interests.” Bartell v. Lohiser, 215 F.3d
550, 557 (6th Cir. 2000) (citing Mathews v. Eldridge, 424 U.S. 319, 333-34 (1976)). To
establish a violation of his procedural due process rights, Pittman must show “(1) that
[he] was deprived of a protected liberty or property interest, and (2) that such deprivation
occurred without the requisite due process of law.” Club Italia Soccer & Sports Org.,
Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 296 (6th Cir. 2006) (citing Thomas
v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002)). “[D]ue process requires that when a State
seeks to terminate [a protected] interest . . . , it must afford ‘notice and opportunity for
hearing appropriate to the nature of the case’ before the termination becomes effective.”
Bell v. Burson, 402 U.S. 535, 542 (1971) (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 313 (1950)).
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 19
and Family Servs., et al.

As discussed above, Hurry is not responsible for depriving Pittman of his
protected liberty interest in family integrity. Nevertheless, Pittman argues that Hurry’s
conduct denied him the requisite due process of law, that is, notice and opportunity for
a hearing, before he was denied placement and custody of Najee by the juvenile court.
With respect to the denial of placement, Pittman alleges that Hurry mishandled his
caregiver approval process by improperly discontinuing it without notice to him and
based on her false assessment of his uncooperativeness. But, as previously noted,
placement determinations are the province of the juvenile court. Ohio law allows a
parent to contest CCDCFS’s placement of a child at the dispositional hearing, Ohio Rev.
Code Ann. § 2151.412(D), and permits any party at any time to “propose a change to
a substantive part of the case plan, including . . . the child’s placement,” id.
§ 2151.412(E)(2). Therefore, Pittman had an adequate opportunity to challenge Najee’s
placement, and Hurry’s decision to deny Pittman’s request for placement and her
conduct during the caregiver approval process did not violate Pittman’s procedural due
process rights. See Fitzgerald v. Williamson, 787 F.2d 403, 408 (8th Cir. 1986)
(concluding that parents’ procedural due process rights were not violated by defendant
social workers’ decision to place their child with a foster parent, when state law
“provides adequate protection for the parental interests implicated by such decisions
[because] parents may petition the juvenile court for modification of custody orders at
any time”).

With respect to the custody determination, Pittman maintains that Hurry
interfered with his right to notice of Najee’s custody proceedings. Specifically, he
contends that Hurry deliberately attempted to exclude him from those proceedings by
misrepresenting to him that he was “next in line” for custody, thereby discouraging him
from keeping tabs on the status of the proceedings. He also argues that Hurry should
have personally ensured that he had received notice of CCDCFS’s motions for
permanent and legal custody as well as the dates of relevant court hearings. However,
it is the juvenile court’s responsibility to ensure that Pittman received adequate notice
of the custody proceedings. See Ohio R. Juv. P. 15(A); Ohio Rev. Code Ann. § 2151.29.
No. 09-4161 Pittman v. Cuyahoga Cnty. Dep’t of Children Page 20
and Family Servs., et al.

Hurry had no independent duty to inform Pittman about developments in the juvenile
court proceedings or relevant court dates, and she is not liable for any defects in the
juvenile court’s notice to Pittman. Moreover, Pittman was represented by counsel for
the duration of Najee’s case. Hurry had no responsibility to advise him about the
probable outcome of those proceedings or to recommend to him how best to pursue his
interests before the juvenile court. To the extent that she did so by assuring Pittman he
was “next in line” for custody, the fact that Pittman had his own counsel implies that the
fairness of the underlying juvenile court proceedings was not compromised. Cf.
Lassiter, 452 U.S. at 27 (“If, as our adversary system presupposes, accurate and just
results are most likely to be obtained through the equal contest of opposed interests, the
State’s interest in the child’s welfare may perhaps best be served by a hearing in which
both the parent and the State acting for the child are represented by counsel, without
whom the contest of interests may become unwholesomely unequal.”). Thus, Hurry is
not responsible for any deficiencies in Najee’s custody proceedings before the juvenile
court, and she has not violated Pittman’s procedural due process right to those
proceedings.

CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order denying
Hurry absolute and qualified immunity, and REMAND the case with instructions that
the district court grant summary judgment to Hurry on all § 1983 claims.