Linda Evans v. George Perry , 578 F. App'x 229 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2256
LINDA A. EVANS,
Plaintiff – Appellee,
v.
GEORGE L. PERRY, Director of Pitt County Social Services in
his official capacity; CYNTHIA M. ROSS, in her individual
capacity; LINDA MILLION, in her individual capacity,
Defendants – Appellants,
and
PITT COUNTY DEPARTMENT OF SOCIAL SERVICES; APRIL HANNING,
in her individual capacity; LINDA MARTIN CURTIS, in her
individual capacity,
Defendants.
No. 13-2294
LINDA A. EVANS,
Plaintiff – Appellant,
v.
PITT COUNTY DEPARTMENT OF SOCIAL SERVICES; GEORGE L. PERRY,
Director of Pitt County Social Services in his official
capacity; APRIL HANNING, in her individual capacity;
CYNTHIA M. ROSS, in her individual capacity; LINDA MILLION,
in her individual capacity,
Defendants – Appellees,
and
LINDA MARTIN CURTIS, in her individual capacity,
Defendant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:12-cv-00226-FL)
Submitted: June 30, 2014 Decided: July 11, 2014
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Vacated in part; dismissed in part by unpublished per curiam
opinion.
Scott C. Hart, SUMRELL, SUGG, CARMICHAEL, HICKS & HART, P.A.,
New Bern, North Carolina, for Appellants/Cross-Appellees George
L. Perry, Cynthia M. Ross, Linda Million, Pitt County Department
of Social Services and April Hanning. David C. Sutton,
Greenville, North Carolina, for Appellee/Cross-Appellant Linda
A. Evans.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Linda A. Evans filed a 42 U.S.C. § 1983 (2012)
complaint against the Pitt County Department of Social Services
(“DSS”), George Perry, Linda Million, Cynthia Ross, April
Hanning, and Linda Curtis. The complaint alleged a series of
events in which employees of DSS petitioned for and ultimately
obtained guardianship of Evans’ elderly and infirm mother, also
obtaining a court order freezing many of Evans’ assets. While
Curtis filed an answer to the complaint, the remaining
Defendants filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss
the complaint.
The magistrate judge recommended dismissing the claims
against the DSS, dismissing Evans’ claims of violations of her
First, Seventh, Ninth, and Fourteenth Amendment rights based on
Medicaid planning and familial association, and dismissing
Evans’ state law claims for abuse of process and intentional
infliction of emotional distress. The magistrate judge also,
however, recommended denying the motion to dismiss with respect
to Evans’ claim against Ross and Million of a procedural due
process violation based on the deprivation of her property when
her assets were frozen, and the derivative claim against Perry
of failure to train and supervise.
In their objections to the magistrate judge’s report
and recommendation, Ross, Million, and Perry asserted that they
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were entitled to absolute immunity as to Evans’ procedural due
process claim. The district court adopted the magistrate
judge’s report and recommendation in all respects, and rejected
the assertion of absolute immunity. Ross, Million, and Perry
filed an interlocutory appeal of the district court’s order
denying their claim of absolute immunity. Evans cross-appealed,
and seeks to challenge in this appeal the dismissal of the
remaining claims.
This court may exercise jurisdiction only over final
orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
545-46 (1949). A “final decision” is “one which ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment.” Catlin v. United States, 324 U.S.
229, 233 (1945). An order is not final if it disposes of
“‘fewer than all the claims or the rights and liabilities of
fewer than all the parties.’” Robinson v. Parke-Davis & Co.,
685 F.2d 912, 913 (4th Cir. 1982) (quoting Fed. R. Civ. P.
54(b)).
A district court’s grant or denial of immunity is an
immediately appealable order. See Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). The court’s dismissal of Evans’ remaining
claims, however, is not an immediately appealable interlocutory
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or collateral order. It is also not a final order, as it did
not dispose of all the claims, and there is still a Defendant,
Curtis, against whom Evans’ claims remain pending in the
district court.
We may exercise pendent appellate jurisdiction to
review issues “that are not otherwise subject to immediate
appeal when such issues are so interconnected with immediately
appealable issues that they warrant concurrent review.” Rux v.
Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006) (citation
omitted). Such “jurisdiction is available only (1) when an
issue is inextricably intertwined with a question that is the
proper subject of an immediate appeal; or (2) when review of a
jurisdictionally insufficient issue is necessary to ensure
meaningful review of an immediately appealable issue.” Id.(citing Swint v. Chamber Cnty. Comm’n, 514 U.S. 35, 50-51
(1995)) (internal quotation marks omitted). We conclude,
however, that the issues Evans seeks to raise on appeal are not
inextricably intertwined with the immunity issue, and
determination of the issues she seeks to raise is not necessary
to meaningfully review the immunity issue, properly before this
court. We therefore decline to exercise jurisdiction over the
issues raised in Evans’ cross-appeal.
With respect to the narrow issue on appeal, we review
de novo a district court’s ruling on a Rule 12(b)(6) motion,
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accepting factual allegations in the complaint as true and
drawing all reasonable inferences in favor of the nonmoving
party. Kensington Volunteer Fire Dep’t v. Montgomery Cnty., 684
F.3d 462, 467 (4th Cir. 2012). To survive a Rule 12(b)(6)
motion to dismiss, a complaint must contain sufficient “facts to
state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Social workers are entitled to absolute immunity for
actions taken in a prosecutorial rather than investigative or
policing capacity. Vosburg v. Dep’t of Soc. Serv., 884 F.2d
133, 135 (4th Cir. 1989). That immunity extends only to
prosecutorial actions, however, including preparing and filing a
removal petition and prosecuting that action. Id. at 135-38.
To state a valid procedural due process claim, Evans
was required to demonstrate “(1) that [she] had a property
interest; (2) of which [the Appellants] deprived [her];
(3) without due process of law.” Tri County Paving, Inc. v.
Ashe County, 281 F.3d 430, 436 (4th Cir. 2002) (citation
omitted). In determining whether there has been a procedural
due process violation, a court must first determine whether the
plaintiff has a property or liberty interest and whether such an
“interest is within the Fourteenth Amendment’s protection of
liberty and property.” Smith v. Org. of Foster Families for
Equal. & Reform, 431 U.S. 816, 841 (1977). Due process of law
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generally requires notice and an opportunity to be heard. Tri
County Paving, 281 F.3d at 436.
Here, the district court determined that Evans had a
property interest in her assets that were frozen during the
removal hearings. See, e.g., Sansotta v. Town of Nags Head, 724
F.3d 533, 540 (4th Cir. 2013) (money and right to enjoy real
property are clearly cognizable property interests). The court
rejected immunity, however, finding that Evans had pleaded
actions taken by Ross and Million that were not prosecutorial in
nature. Having carefully reviewed the record and the relevant
legal authorities, we conclude that the actions allegedly taken
by Ross and Million cited by the district court did not relate
to the specific claim of a procedural due process violation
based on the deprivation of Evans’ property. The actions
relevant to Evans’ claim of a procedural due process violation
based on the deprivation of her property * were prosecutorial in
nature under Vosburg. See 884 F.2d at 135-38 (prosecutorial
actions include preparing and filing a removal petition and
prosecuting that action).
*
To the extent that Evans sought to plead a procedural due
process violation based on the deprivation of any other liberty
interest, that issue is not before this court as the district
court concluded that Evans had not properly pleaded a protected
liberty interest, and that conclusion is not subject to
interlocutory review, as we have declined to exercise pendant
jurisdiction.
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We therefore conclude that Ross and Million were
entitled to absolute immunity from Evans’ claim that they
violated her procedural due process rights in depriving her of
her property when her assets were frozen. Moreover, the claim
against Perry for failure to train or supervise was a derivative
claim that survived because the underlying procedural due
process claim survived against Ross and Million. See
Vathekan v. Prince George’s County, 154 F.3d 173, 180-81 (4th
Cir. 1998) (municipal liability is derivative of liability of
individual officers, and plaintiff must demonstrate custom or
policy that resulted in constitutional violation). As we find
that Ross and Million were entitled to absolute immunity on the
underlying claim, the derivative claim against Perry must fail.
Accordingly, we vacate the district court’s order with
respect to the court’s finding that Ross, Million, and Perry
were not entitled to absolute immunity from Evans’ claim of a
procedural due process violation based on the deprivation of her
property and from the derivative claim of failure to train and
supervise, with directions that the district court dismiss those
claims. We dismiss Evans’ cross-appeal. We dispense with oral
argument because the facts and legal contentions are
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adequately presented in the materials before this court and
argument would not aid in the decisional process.
VACATED IN PART;
DISMISSED IN PART
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