United States District Court, S.D. Ohio, Western Division
AND ENTRY SUSTAINING MOTION TO DISMISS OF DEFENDANT DAVID
FIERST, GUARDIAN AD LITEM (DOC #42); PLAINTIFF NANCY
ARSAN'S CLAIMS FOUR AND FIVE AGAINST FIERST ARE DISMISSED
WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF
CAN BE GRANTED (FED. R. CIV. P. 12(b)(6)); JUDGMENT SHALL
ULTIMATELY ENTER IN FAVOR OF FIERST AND AGAINST ARSAN ON
CLAIMS FOUR AND FIVE
H. RICE UNITED STATES DISTRICT JUDGE.
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.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL
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.
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.
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.
RULE 12(b)(6) STANDARD
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)).
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).
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
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
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