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Arsan v. Keller

United States District Court, S.D. Ohio, Western Division

December 12, 2017

NANCY ARSAN, Plaintiffs,
BETH KELLER, et al, Defendants.



         Plaintiff Nancy Arsan ("Plaintiff' or "Arsan") alleges that Defendant David Fierst ("Fierst"), individually and in his official capacity as guardian ad litem for her son, Kaden Otto ("Kaden"), violated her right to equal protection under the Fourteenth Amendment to the United States Constitution (claim brought under 42 U.S.C. § 1983), and furthered a conspiracy to deprive Arsan of her constitutional rights, in violation of 42 U.S.C. § 1985. Doc. #1, ¶148, 150, 155, 157, PAGEID #19, 20. She claims that Fierst did so: by refusing to visit her residence while serving as guardian ad litem for Kaden, instead relying on the reports of employees of Greene County, Ohio, Children's Services Board ("Children's Services Board"); and by giving sworn testimony during custody hearings that was biased against her based on her race, ethnicity and religion. Id., ¶¶ 121, 123- 25, 148, PAGEID#15, 19. Fierst filed a Motion to Dismiss, Doc. #42, which, for the reasons set forth below, is SUSTAINED.


         On April 29, 2015, Defendant Kristi Weber ("Weber"), a Children's Services Board caseworker, came to Plaintiff's house. Doc #1, ¶¶ 3, 17, 20, PAGEID #3, 5. Weber stated that there was a report that the Plaintiff was abusing drugs in her home and neglecting her children. Id., ¶ 27, PAGEID #6. Weber swabbed Plaintiff's mouth and, at a May 22, 2015, hearing, testified that the drug screen results from the swab indicated a high level of methamphetamines and amphetamines. Id., ¶¶ 49, 59, 60, PAGEID #8, 9.

         On May 29, 2015, Defendant Amy Weinman, Program Resource Manager of the Children's Services Board, concluded that there was physical abuse and neglect of Arsan's son, Kaden Otto ("Kaden"), and temporary custody was given to Kris Otto ("Kris"), Kaden's father, under the supervision of the Children's Services Board. Doc #1, ¶¶ 109, 111, PAGEID #13, 14. Kris filed a custody action, and Fierst was appointed guardian ad litem for Kaden by the Greene County, Ohio Common Pleas Court, Juvenile Division ("Greene County Court"). Id., ¶121, PAGEID #15. Although Fierst was asked to visit Arsan's home, he did not, stating that he had enough evidence and did not have time to do so. Id., ¶ 122. At subsequent custody hearings in October and November 2016, Fierst relied on the Children's Services Board's reports and Kris's unverified statements, and testified that "since the Plaintiff was 'Middle Eastern' she was probably a[] Muslim." Id., ¶¶ 123-24. When asked "what difference that would make, Fierst said to turn on the TV to see what these people do." Id., ¶ 125. On March 29, 2017, Fierst participated in a conference call among Arsan's attorney, the Greene County Court Judge, and the attorney for the other parties to the custody action. During the call, Arsan's attorney made a request for the audio recordings of the custody hearings, which the Greene County Court denied. Id., ¶¶ 127, 133, PAGEID #15, 16.

         On April 11, 2017, Arsan filed the instant Complaint, bringing two claims against Fierst in his individual and official capacities. Doc. #1. In Claim Four, Arsan alleges that Fierst violated her Fourteenth Amendment right to equal protection when he "gave testimony under oath based upon ethnic, racial and religious bias in his position as guardian ad litem in Plaintiff's custody case[.]" Id., PAGEID #19. She claims that his testimony "had an adverse effect upon this [custody] case and the Plaintiff's health, emotional well-being, and reputation." Id. In Claim Five, Arsan alleges that Fierst "relied upon the plan and the fruits of the actions to further the conspiracy of [co-Defendants] [Jennifer] McDermott and Weber and [Beth] Keller [sic] to ensure that custody of Kaden Otto be given to Kris Otto[.]" Id., ¶155, PAGEID #19. On June 14, 2017, Fierst filed his Motion to Dismiss. Doc. #42.

         II. RULE 12(b)(6) STANDARD

         Federal Rule of Civil Procedure 8(a) provides that a complaint must contain "a short and plain statement of the claim showing that the [plaintiff] is entitled to relief." The complaint must provide the defendant with 'fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombfy, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80(1957)).

         Rule 12(b)(6) allows a party to move for dismissal of a complaint on the basis that it "fail[s] to state a claim upon which relief can be granted." The moving party "has the burden of showing that the plaintiff has failed to [adequately] state a claim for relief." DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991)). The purpose of a Rule 12(b)(6) motion to dismiss "is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). In ruling on a Rule 12(b)(6) motion, the Court must "construe the complaint in the light most favorable to the plaintiff, accept its [well-pleaded] allegations as true, and draw all reasonable inferences in favor of the plaintiff." Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Treesh, 487 F.3d at 476).

         Nevertheless, to survive a Rule 12(b)(6) motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550, U.S. at 570. Unless the facts alleged show that the plaintiff's claim crosses "the line from conceivable to plausible, [the] complaint must be dismissed." Id. Although this standard does not require "detailed factual allegations, " it does require more than "labels and conclusion" or "a formulaic recitation of the elements of a cause of action." Id. at 555. "Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Legal conclusions "must be supported by [well-pleaded] factual allegations. . . [that] plausibly give rise to an entitlement of relief." Id. At 679. "Although for the purposes of this motion to dismiss we must take all the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

         III. ANALYSIS

         Arsan's only specific allegations against Fierst in the Complaint are: (1) Fierst's refusal visit Arsan at her home, stating that he did not have time to do so, and that he had gathered enough evidence to represent Kaden's interests without such a visit; (2) his allegedly biased testimony at hearings in October and November 2016 regarding Arsan's national origin and religion; (3) his improper reliance upon the reports of Children's Services Board employees as the basis for his testimony; and (4) his presence on a conference call with Arsan and the other defendants, which ultimately resulted in the Greene County Court Judge denying the request of Arsan's counsel for audio recordings of the October and November 2016 hearings. Doc. #1, ¶¶ 122-125, 127, PAGEID #15. Fierst notes that these alleged acts or failures to act were all undertaken in his capacity as a court-appointed guardian ad litem; consequently, he argues, he is entitled to "quasi-judicial immunity, " a form of absolute immunity. Doc. #42, PAGEID #202 (citing Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984); Williams v. Barrick, 10th Dist. Franklin No. 08AP-133, 2008-Ohio-4592, ¶ 12 (Sept. 11, 2008)). Fierst is entitled to such immunity, he claims, because a guardian ad litem is an integral part of the judicial process, and "[a] failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in judicial proceedings." Id., PAGEID #202-03 (quoting Kurzawa, 732 F.2d at 1456); see also Williams, 2008-Ohio-4592, at ¶ 12 (citation omitted) ("Under Ohio law, a guardian ad litem enjoys absolute immunity from actions arising out of his or her services in that role.").

         In her memorandum in opposition, Arsan does not dispute that Fierst is entitled to quasi-judicial immunity as to his allegedly racially-biased testimony at the custody hearings. Doc. #44, PAGEID #226. However, she argues that quasi-judicial immunity does not extend to Fierst's actions-specifically, his: failure to visit Arsan's residence; reliance upon reports from Children's Service Board employees as the basis for his testimony; and participation in the March 29, 2017, conference call, after which the Greene County Court refused to turn over audio recordings of the custody hearings to her. Id., PAGEID #226-27. Yet, Arsan cites no caselaw supporting the proposition for limiting Fierst's immunity to only the testimony given, and indeed, Sixth Circuit precedent compels the opposite conclusion. In affirming the dismissal of federal claims against a guardian ad litem based on quasi-judicial immunity, the Kurzawa Court held that the guardian "must act in the best interests of the child he represents. Such a position clearly places him squarely within the judicial process to accomplish that goal. A guardian ad litem must also be able to function without the worry of possible ...

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