Nancy Arsan v. Beth Keller ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0396n.06
Case No. 18-3858
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 01, 2019
NANCY ARSAN, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
BETH KELLER, et al., ) OHIO
)
Defendants-Appellees. )
)
BEFORE: SUHRHEINRICH, CLAY, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Nancy Arsan lost custody of her two
children, KO and KK, in 2015. Following the custody dispute, Arsan sued eight caseworkers; the
guardian ad litem; the Greene County Ohio Department of Job and Family Services, Children’s
Services Division (“Children’s Services”); Greene County, Ohio; and the Greene County, Ohio
Board of Commissioners. She alleged a litany of constitutional violations as well as conspiracy to
violate her constitutional rights, all stemming from one caseworker’s warrantless search. The
district court dismissed the claims against the guardian ad litem and granted judgment on the
pleadings in favor of the county defendants on all but the Fourth Amendment claim against the
caseworker who conducted the search. The court then held a two-day jury trial on the Fourth
Amendment claim; the jury found that Arsan had consented to the alleged search, and that the
Case No. 18-3858, Arsan v. Keller, et al.
caseworker therefore did not violate Arsan’s Fourth Amendment rights. The district court then
denied Arsan’s motions to set aside the jury verdict and for a new trial. On appeal, Arsan
challenges the district court’s dismissal of the guardian ad litem, its judgment on the pleadings in
favor the county defendants, and its denial of Arsan’s post-trial motions. Finding no error, we
affirm all three decisions.
I.
BACKGROUND1
This case stems from a custody dispute between Nancy Arsan, a resident of Greene County,
Ohio, and her children’s fathers, Kristopher Otto and Michael Klumb. Arsan is of Syrian descent
but speaks English and works as an interpreter.
Arsan alleged that on April 29, 2015, a Children’s Services caseworker, Kristi Weber,
“pound[ed]” on her door, and “[w]hen [Arsan] opened the door, Weber, without a warrant, without
consent and without identifying herself, pushed her way into [her] residence[.]” R. 1, PageID 5.
Once inside, Weber identified herself and told Arsan that “there was a report that [she] was abusing
drugs in her home and neglecting her children[.]” Id., PageID 6. In response, Arsan told Weber
that Klumb had previously threatened to take away their child and that “it was probably him who
made such a report,” and showed Weber text messages to support her statement. Id. Then, Arsan
alleged, Weber “without permission began searching [Arsan’s] phone and reviewing other
unrelated messages,” and “despite repeated requests to leave and without consent, began searching
the residence, entering other rooms without permission and opening a closet[.]” Id.
During this time, Weber’s two-year old son, KK, was home, “crying and afraid,” and Arsan
told Weber that her other son, KO, was with his aunt, Jennifer McDermott. Id., PageID 7.
1
All facts taken as alleged in complaint.
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McDermott, Otto’s sister, was a former Children’s Services employee. Weber went out to the
porch and called McDermott to verify that she was with KO. Upon returning inside and in response
to Arsan’s request for Weber to leave, Weber “stated that she would not leave until [Arsan]
admitted to something or she would do an emergency removal and take KK immediately[.]” Id.
Arsan refused to do so. Weber went outside again to call McDermott back “and asked what the
next step was because [Arsan] was not cooperating[.]” Id. Weber then came back inside and
“stated that she would not leave until [Arsan] submitted to a drug test[.]” Id.
Arsan told Weber that she would go to Weber’s office the next day but Weber “refused to
leave and began pretending she did not understand [Arsan’s] accent[.]” Id., PageID 7–8. “It was
late in the evening and [Arsan], under duress and to get Weber to leave, admitted to smoking
marijuana in the past[.]” Id., PageID 8. Weber then “demanded a drug test” and “[u]nder duress,
[Arsan] complied and when asked by Weber, stated that she took Adderall for ADHD[.]” Id.
Weber “swabbed [Arsan’s] mouth and collected the swab but did not seal it, which is against
protocol for taking the test[.]” Id. Weber “threatened to immediately take her son if [Arsan] did
not agree to a safety plan,” and thus Arsan and KK “were placed on a safety plan with her friend
Brittany Hunter as supervisor of the plan[.]” Id.
The next day, Arsan met with Weber, Beth Keller—another Children’s Services
employee—and Otto, who attended by phone, at Children’s Services. Arsan “was told that she
was acting too emotionally,” she “explained that in her culture people express their feelings more
openly,” and “Keller told her that here they could find her crazy for acting in that manner[.]” Id.,
PageID 10. Arsan requested a neutral caseworker but Keller denied her request and assigned
McDermott—without a background or drug test—as supervisor of KK’s safety plan. Arsan later
learned that “McDermott, Keller and Weber had personal relationships and were friends on
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Facebook,” and that prior to meetings scheduled with Arsan, McDermott would meet privately
with the Green County Children’s Services staff. Id.
Arsan’s mother then arrived from Lebanon and became the supervisor of KK’s safety plan.
Later, Weber returned to Arsan’s home with a police officer and told Arsan that she had received
“a tip that [Arsan] had violated the safety plan because her mother had taken a nap in another
room[]” which violated the plan’s requirement that Arsan not supervise the children alone. Id.,
PageID 11. Weber “demanded that [Arsan] make [McDermott] supervisor of the plan or she would
remove [KK],” and Arsan, “in fear agreed[.]” Id. When McDermott “later stated she could no
longer supervise” KK and KO, the boys’ fathers, Klumb and Otto, became the children’s
supervisors. Id., PageID 12. The men did not undergo background checks or drug tests.
Later on, Weber called Arsan to inform her that her drug test was positive for “high levels
of methamphetamines and amphetamines[.]” Id. Wanting to discuss these results, Arsan went to
Children’s Services. While waiting for Weber and Keller, Arsan overheard the receptionist
(Christina “last name unknown”) say to Weber that “the foreign lady” was in the waiting room.
Id. Arsan then met with Weber and Keller and asked for a copy of the drug test. Id., PageID 13.
They refused to give her one. A few months later after she secured a copy from her new
caseworker, Kelly Mohammad, Arsan “confronted Keller about her refusal[.]” Id. Keller “stated
that she had not understood [Arsan] due to her accent[.]” Id.
Throughout this time period, Children’s Services supervisors held weekly “administrative
review” meetings in which they “reviewed and approved” Weber and Keller’s work. Id., PageID
14. The supervisors involved in the meetings included Amy Amburn, Lana Penney, Joshua
Coomer, and Chad King, all named defendants.
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The Greene County Juvenile Court held a custody hearing on May 22, 2015. Weber
testified that she “had a report of [Arsan] using methamphetamine and physically abusing her
children,” and that Arsan “had been seen smoking crack cocaine.” Id. She reported that the drug
test from May 4, 2015 indicated high levels of methamphetamines and amphetamines but that she
did not have the results of a second drug test, which turned out to be negative. Weber further
testified that Arsan had no criminal record and that she had “no concerns regarding the condition
of [Arsan’s] residence[.]” Id. at 9. Following the hearing, Children’s Services Program Resource
Manager, Amy Weinman, found that the report of “physical abuse and neglect of KO and KK was
substantiated.” Id. at 13.
On May 29, 2015, the court granted temporary custody of KK to his father, Klumb, and
custody of KO, under the supervision of Children’s Services, to Otto. Since Klumb lived outside
Greene County, Children’s Services terminated its involvement with KK. Otto filed a custody
action and the Greene County Juvenile Court appointed David Fierst as guardian ad litem for KO.
Although Fierst was asked to visit Arsan’s home, he declined to do so, saying that he “already had
enough evidence[,]” “didn’t have time,” and could rely on the reports from Children’s Services
and Otto. Id. At subsequent custody hearings in October and November 2016, Fierst testified that
since Arsan was Middle Eastern, “she was probably a[] Muslim.” Id. When asked “what
difference that would make,” Fierst said to “turn on the TV to see what these people do[.]” Id. On
March 29, 2017, Fierst participated in a conference call between the Juvenile Court judge and the
attorneys for each party.
Arsan filed a seven-count complaint, pursuant to 42 U.S.C. §§ 1983 and 1985(3), in the
Southern District of Ohio on April 11, 2017. In counts one through four, she alleged that the
Children’s Services employees, either through direct action or supervisory review, violated her
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Fourth Amendment right against unreasonable searches and seizures, her Fifth Amendment right
against self-incrimination, her Fourteenth Amendment due process right, and her Fourteenth
Amendment equal protection right. In her fifth cause of action, Arsan alleged that the Children’s
Services employees conspired to deprive her of these rights and take custody of her children. In
the sixth and seventh counts, Arsan alleged that Children’s Services, the Greene County Ohio
Board of Commissioners, and Greene County, Ohio, failed to supervise and train their employees.
In addition, Arsan brought the equal protection claim against Fierst and the conspiracy claims
against Fierst and McDermott. Arsan requested $32,830.00 in actual damages—equal to
remodeling expenses for Otto’s home, lost wages and legal expenses2 —and $250,000 in punitive
damages.
The district court disposed of the case in three main stages. First, it granted Fierst’s
12(b)(6) motion to dismiss the claims against him. The court held that since Fierst was sued in his
capacity as guardian ad litem, he was protected by quasi-judicial immunity. The court also held,
assuming arguendo, that even if Fierst were not immune, the conspiracy claim would fail because
Arsan failed to state a plausible claim and the Fourteenth Amendment claim would fail because
Fierst was not a state actor. Second, the court granted the defendants’ motions for judgment on
the pleadings with respect to every claim except the Fourth Amendment unreasonable search
allegation against Weber. The court then held a two-day jury trial on the Fourth Amendment claim
against Weber; the jury found that Weber did not violate Arsan’s Fourth Amendment rights
2
In its order denying Weber’s motion for summary judgment, the district court opined on Arsan’s damages request.
It stated that “Plaintiff’s alleged damages of $32,500 consist of remodeling expenses for a house that she did not own,
lost wages and legal expenses to litigate the Greene County Juvenile Court custody dispute. Plaintiff has specifically
stated that the lost wages are not attributable to Defendant Weber, and at this stage, it is difficult to see any legal
connection between Weber’s alleged actions and remodeling expenses for a residence that Plaintiff did not own or a
legal determination made by the juvenile court.” R. 90, PageID 817. It then noted that “[b]ased on Plaintiff’s
deposition testimony, as well as the above cited legal authority, compensatory damages may not be recoverable in this
case leaving Plaintiff with, at most, nominal damages.” Id., PageID 818.
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because Arsan consented to the search, drug test, and implementation of a safety plan. Third, the
court denied Arsan’s motions to set aside the jury verdict and for a new trial. On appeal, Arsan
challenges all three district court decisions. We find Arsan’s arguments unpersuasive and affirm
the district court in all respects.
II.
ANALYSIS
Arsan’s overarching argument is that the district court “artificially separate[ed] facts into
air-tight categories” rather than taking a “totality of the circumstances approach.” Appellant Br.
at 17. We review each of the district court’s decisions—its granting of Fierst’s motion to dismiss,
its granting judgment on the pleadings in favor of the defendants on all but the Fourth Amendment
claim, and its denial of Arsan’s motions to set aside the jury verdict and for a new trial—separately
and conclude that the district court correctly ruled at each stage of the litigation. We therefore
affirm in full.
1. MOTION TO DISMISS
Arsan alleged two claims against Fierst: (1) violation of her Fourteenth Amendment equal
protection right by giving “testimony under oath based upon ethnic, racial and religious bias in his
position as Guardian ad litem in Plaintiff’s custody case for KO”; and (2) conspiracy to violate her
constitutional rights by “[relying] upon the plan and the fruits of the actions to further the
conspiracy of McDermott and Weber and Keller to ensure that custody of KO be given to Kris
Otto.” R. 1, PageID 19–20. Granting Fierst’s 12(b)(6) motion to dismiss both claims, the district
court held that Fierst, as guardian ad litem, was protected by quasi-judicial immunity, and that,
assuming arguendo that he was not entitled to immunity, Arsan failed to plausibly state equal
protection and conspiracy claims against him. Arsan argues that the court erred because immunity
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only shields liability for Fierst’s words, not his actions. We disagree and affirm the district court’s
granting of Fierst’s motion to dismiss the claims against him on the basis of absolute quasi-judicial
immunity.
a. Standard of Review
This court reviews de novo a district court’s grant of a motion to dismiss under Fed. R. Civ.
P. 12(b)(6). Republic Bank & Tr. Co. v. Bear Stearns & Co., 683 F.3d 239, 246 (6th Cir. 2012).
In evaluating a Rule 12(b)(6) motion to dismiss, we construe “the record in the light most favorable
to the non-moving party” and determine whether the complaint “‘contain[s] sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.’” Id. at 246–47
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim lacks facial plausibility unless the
plaintiff “pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). The plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully” but is not akin to a probability requirement. Id.
In conducting this analysis, the court “‘primarily considers the allegations in the complaint,
although matters of public record, orders, items appearing in the record of the case, and exhibits
attached to the complaint, also may be taken into account.’” Amini v. Oberlin Coll., 259 F.3d 493,
502 (6th Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)).
b. Quasi-Judicial Immunity
Because Arsan sued Fierst for actions taken in his capacity as guardian ad litem, Fierst is
entitled to absolute immunity. The district court therefore correctly granted his motion to dismiss.
Absolute immunity protects judges from liability for acts performed in their judicial
capacity. See Cleavinger v. Saxner, 474 U.S. 193, 199 (1985). The Supreme Court has extended
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this defense—sometimes called “quasi-judicial immunity”—to others “who perform functions
closely associated with the judicial process.” Id. at 200. Guardians ad litem are entitled to such
immunity when they act within the scope of their roles as “advocate[s] for the child in judicial
proceedings.” Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984). This is because
guardians ad litem “must also be able to function without the worry of possible later harassment
and intimidation from dissatisfied parents.” Id. As such, “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.
This immunity applies to federal constitutional claims, see id., and Ohio state law claims, see
Dickson v. Gorski, 100 N.E.3d 857, 859 (Ohio Ct. App. 2017).
On appeal, Arsan contends that while quasi-judicial immunity protects Fierst from “words
spoken in office[,]” “[n]othing bars him from liability for his actions.” Appellant Br. at 44. Arsan
misunderstands the doctrine. Quasi-judicial immunity shields guardians ad litem for precisely
what Arsan argues it does not—the actions they take while investigating, gathering information
about the parents and children, and reporting to the court their custody recommendations.
Kurzawa, 732 F.2d at 1458. Here, Arsan would have the court hold Fierst liable because he “gave
testimony under oath based upon ethnic, racial and religious bias in his position as Guardian ad
litem in Plaintiff’s custody case for KO” and “relied upon the plan and the fruits of the actions to
further the conspiracy . . . to ensure that custody of KO be given to Kris Otto[.]” R. 1, PageID 19–
20. Leaving aside other threshold issues, like whether Fierst was a state actor and whether these
allegations plausibly amount to cognizable constitutional violations, we find that all of Arsan’s
grievances against Fierst stem from his actions as guardian ad litem. Reporting custody
recommendations to the court—based on biases or not—is within the scope of a guardian ad
litem’s functions. Thus, the district court properly dismissed the claims against Fierst because he
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was entitled to absolute immunity for the § 1983 equal protection and § 1985(3) conspiracy and
Ohio state law conspiracy claims. We affirm.
2. MOTIONS FOR JUDGMENT ON PLEADINGS
Arsan challenges the district court’s judgment on the pleadings in favor of the county
defendants and McDermott. She argues that the district court erred in dismissing the § 1983
constitutional claims against the individual county defendants, all of whom she sued in their
personal and official capacities. She also contends that the district court erred in dismising the
§ 1983, § 1985(3), and Ohio state law conspiracy claims against the individual county defendants
and McDermott, for failure to state a claim. Last, she argues that the court erred in dismissing the
§ 1983 failure to train and supervise claims against Greene County, Ohio Board of Commissioners
and Greene County, Ohio. Arsan’s arguments are meritless. Because Arsan failed to state
plausible claims for relief against anyone (except for Weber in her personal capacity for the alleged
Fourth Amendment violation), we affirm the district court’s grant of judgment on the pleadings
with respect to McDermott and all county defendants.
a. Standard of Review
This court reviews a district court’s judgment on the pleadings pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure under the same de novo standard as it reviews a decision
granting a motion to dismiss under Rule 12(b)(6). Warrior Sports, Inc. v. Nat’l Collegiate Athletic
Ass’n, 623 F.3d 281, 284 (6th Cir. 2010). Judgment on the pleadings is proper “when no material
issue of fact exists and the party making the motion is entitled to judgment as a matter of law.”
Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991). The
“complaint must contain direct or inferential allegations respecting all the material elements under
some viable legal theory.” Commercial Money Ctr. v. Ill. Union Ins., 508 F.3d 327, 336 (6th Cir.
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2007). Accordingly, the court construes the complaint in the light most favorable to the
nonmoving party, accepts the well-pled factual allegations as true, and determines whether the
complaint contains enough facts to make the legal claims facially plausible. Id. (citing United
States v. Moriarty, 8 F.3d 329, 332 (6th Cir. 1993)).
b. Constitutional Claims Against Individual Defendants in their Official Capacities
Arsan challenges the district court’s judgment on the pleadings dismissing all of her
constitutional claims, except for her Fourth Amendment claim against Weber in her personal
capacity. Arsan alleged all constitutional violations against the individual county officials in their
official capacities.3 An official-capacity claim, however, is just a claim against the municipality.
See Cady v. Arenac Cty., 574 F.3d 334, 342 (6th Cir. 2009) (“In an official capacity action, the
plaintiff seeks damages not from the individual officer, but from the entity for which the officer is
an agent.”) (citation omitted); Essex v. Cty. of Livingston, 518 F. App’x 351, 354 (6th Cir. 2013)
(“[A]n official-capacity claim is merely another name for a claim against the municipality.”).
Arsan’s official-capacity claims fail for the same reason her municipal liability claims fail, as
discussed below. We therefore affirm the dismissal of all constitutional claims against the
individual county officials in their official capacities.
c. Constitutional Claims Against Individual Defendants in their Personal Capacities
Arsan also challenges the district court’s judgment on the pleadings for the alleged
constitutional violations (with the exception of the Fourth Amendment claim against Weber)
pursuant to § 1983 against the individual county officials in their personal capacities. We agree
3
In its judgment on the pleadings, the district court did not differentiate between the claims brought against the county
officials in their personal and official capacities. But because the capacities implicate different pleading requirements
and potential immunities, we do.
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with the district court that Arsan failed to plead plausible constitutional violations against the
individual county defendants in their personal capacities under § 1983. We therefore affirm.
1. Fifth Amendment
The district court dismissed Arsan’s Fifth Amendment claim upon finding that there were
no criminal proceedings in which Arsan was compelled to testify against herself. It therefore held
that she failed to state a plausible claim for relief. On appeal, Arsan does not contest the district
court’s dismissal of her Fifth Amendment claim. She has therefore waived any challenge to the
district court’s disposition of this claim. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311
(6th Cir. 2005). We thus affirm the district court’s judgment on the pleadings in favor of all county
defendants on Arsan’s Fifth Amendment claim.
2. Substantive Due Process
Although Arsan alleged only a general “due process” violation in her complaint, she
clarified in her response to defendants’ motion for judgment on the pleadings that she was bringing
both substantive and procedural due process claims. The district court analyzed both types of due
process claims and granted judgment on the pleadings in favor of the county officials, and we
agree.
Here, once we wade through what Arsan labels as due process claims but are really Fourth
Amendment, Fifth Amendment, and equal protection claims, see Smith v. Jefferson Cty. Bd. of
Sch. Comm’rs, 641 F.3d 197, 217 (6th Cir. 2011) (“Substantive-due-process challenges usually do
not survive if a provision of the Constitution directly addresses the allegedly illegal conduct at
issue.”), we are left with a claim that Arsan’s substantive due process right to raise her children
was violated when she lost custody. As the district court observed, “[a]t the heart of Plaintiff’s
substantive due process claim, and in fact the entire case, is the alleged violation of Plaintiff’s
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rights as a parent and the removal of her children from her home.” R. 92, PageID 829. On appeal,
Arsan confirms the district court’s understanding of her substantive due process claim: she argues
that the county defendants violated her “substantive parenting rights” through their involvement
and influence in the custody proceedings. Appellant Br. at 33.
Arsan is correct that there is a qualified substantive due process right “to raise one’s child.”
Bartell v. Lohiser, 215 F.3d 550, 557 (6th Cir. 2000); see Kottmyer v. Maas, 436 F.3d 684, 690
(6th Cir. 2006) (noting that right to family integrity “is limited by an equal[ly] compelling
governmental interest in the protection of children, particularly where the children need to be
protected from their own parents”). But county caseworkers cannot be held liable for a juvenile
court’s decision to deprive a parent of custody “[b]ecause Ohio law refers custody decisions to the
juvenile court, which has independent authority to conduct hearings and collect evidence.” Teets
v. Cuyahoga Cty, 460 F. App’x 498, 502 (6th Cir. 2012) (citing Pittman v. Cuyahoga Cty. Dep’t
of Children & Family Servs., 640 F.3d 716, 729 (6th Cir. 2011)). “[E]ven intentional
misrepresentations by a social worker during an investigation leading up to Ohio custody
proceedings do not violate the parent’s substantive due process rights because the social worker
has no independent ability to institute the alleged deprivation.” Id. Thus, when “the [plaintiff]
seek[s] to hold [county caseworkers] accountable for subsequent criminal or juvenile court actions,
that argument also fails.” Id. But that is precisely what Arsan attempts to do. Her claim against
the individual county officials for violating her substantive due process right to raise her children
therefore fails.
3. Procedural Due Process
Arsan similarly challenges the district court’s judgment on the pleadings in favor of the
county defendants on her procedural due process claim. She argues that her custody hearing was
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“hardly a fair or meaningful hearing” because it was “tainted by” Weber’s testimony, including
her testimony regarding the positive results from the allegedly coerced drug test. Appellant Br. at
27. Arsan also argues that Weber and her supervising caseworkers violated her right to a fair
hearing by not introducing the negative drug test results from her second test.
Procedural due process requires that “an individual be given the opportunity to be heard
‘in a meaningful manner.’” Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996) (quoting
Loudermill v. Cleveland Bd. of Educ., 721 F.2d 550, 563 (6th Cir. 1983)). When an aggrieved
parent sues county caseworkers for their conduct during child custody proceedings culminating in
the deprivation of custody by the juvenile court, however, responsibility for procedural
deficiencies lies with the juvenile court, not the caseworkers. Pittman, 640 F.3d at 730. When
caseworkers give testimony or otherwise participate as legal advocates in custody hearings, quasi-
prosecutorial immunity shields them from liability. Id. at 724. This immunity, which is absolute
and applies in the same way as prosecutorial immunity, shields caseworkers from damages even
when they knowingly make false or defamatory statements, id. at 725, or when their conduct is
“unquestionably illegal or improper,” Cady, 574 F.3d at 340. All that matters is that the alleged
illegal conduct stems from the caseworker’s “capacity as a legal advocate,” such as testifying in
juvenile court. Pittman, 640 F.3d at 724.
Here, Arsan argues that the custody hearing was not “fair or meaningful” due to Weber’s
testimony and alleged withholding of the negative drug test results. Appellant Br. at 35. If true,
Weber’s alleged conduct is “unquestionably” improper. Cady, 574 F.3d at 340. But her testimony
and actions in juvenile court nonetheless stem from her capacity as a legal advocate. Pittman, 640
F.3d at 725. Thus, Weber is entitled to quasi-prosecutorial absolute immunity with respect to
Arsan’s procedural due process claim. Likewise, the only link Arsan alleged between Weber and
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the rest of the county caseworkers is that they “ratified and endorsed” Weber’s actions and “failed
to discipline Weber in any way,” thereby making them responsible for the alleged procedural due
process violation, too. R. 1, PageID 17–18. But § 1983 makes no room for respondeat superior
liability. See Iqbal, 556 U.S. at 676. “[A] supervisor cannot be held liable simply because he or
she was charged with overseeing a subordinate who violated the constitutional rights of another.”
Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016). As such, “a mere failure to act
will not suffice to establish supervisory liability.” Id. Thus, the district court correctly granted
judgment on the pleadings in favor of all county defendants on Arsan’s procedural due process
claim.
4. Equal Protection
Arsan challenges the district court’s judgment on the pleadings in favor of the county
defendants on her Fourteenth Amendment equal protection claim. She argues that the county
caseworkers “engaged in a pattern of discrimination based on her ethnicity.” Appellant Br. at 37.
To support this allegation, she contends that (1) the Children’s Services receptionist referred to her
as “the foreign lady”; (2) Keller told her “she could be considered crazy” by acting too emotional,
which Arsan contends is “within her ethnic cultural norms”; and (3) her mother—also Lebanese—
received a background check and lost supervision status, while “[w]hite persons were readily made
supervisors of the safety plans for her children without background checks.” Id.4 We agree with
4
She also points to Fierst’s comment about persons of Middle Eastern descent as terrorists and his assertion that she
“must be Muslim.” Appellant Br. at 37. As discussed above, however, Fierst is entitled to absolute immunity for his
conduct in his capacity as guardian ad litem, and the rest of the caseworkers are not responsible for Fierst’s racist
statements.
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the district court that Arsan failed to allege facts that plausibly amount to an equal protection
violation.
The Fourteenth Amendment’s Equal Protection Clause commands that “[n]o state shall . .
. deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. To state an equal protection claim, a plaintiff must adequately plead that the government
actor treated her “disparately as compared to similarly situated persons and that such disparate
treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.”
Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 298 (6th Cir.
2006), overruled on other grounds by Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008). Thus,
“[t]he threshold element of an equal protection claim is disparate treatment,” Scarbrough v.
Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006), and only intentional, purposeful
discrimination violates the equal protection clause, see Washington v. Davis, 426 U.S. 229, 239–
40 (1976). Further, the right to equal protection is personal; barring a recognized exception, a
plaintiff cannot assert an equal protection claim on behalf of a third party. See Kowalski v. Tesmer,
543 U.S. 125, 129 (2004).
Arsan has failed to meet the threshold requirement of an equal protection claim. While the
receptionist’s and Keller’s alleged commentary is at best rude and at worse racist, such
commentary, without any allegation that Arsan was treated differently from similarly situated
parents on the basis of race, does not constitute an equal protection violation. See Scarbrough,
470 F.3d at 260. Further, to the extent Arsan asserts that her mother was discriminated against
based on race when she underwent a background check and eventually lost supervision status, this
claim fails because Arsan cannot assert this claim on behalf of a third party. See Kowalski, 543
U.S. at 129. Likewise, to the extent Arsan argues she is not enforcing the rights of her mother, but
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instead “is trying to have a person of her own ethnicity for her children for her own benefit,”
Appellant Br. at 39, this claim fails because Arsan has not alleged any facts regarding whether
other parents are appointed supervisors of their same ethnicities. Thus, we agree with the district
court that Arsan failed to plausibly allege an equal protection claim against any county defendant.
We affirm accordingly.
5. Fourth Amendment / Qualified Immunity
The district court dismissed Arsan’s Fourth Amendment claim against all county
caseworkers except for Weber upon finding that “nowhere in the Complaint is there any allegation
that those individual County Defendants had any direct involvement in any search at Plaintiff’s
home” and that they were therefore entitled to qualified immunity. R. 92, PageID 841. It is unclear
to what extent Arsan challenges this determination, as her argument, structured as a list of
rhetorical questions and no caselaw, is that if the court finds the defendants liable for the Fourth
Amendment violation, then they are not entitled to qualified immunity. Because county defendants
do not have supervisory liability under § 1983, and therefore cannot be liable for Weber’s search
under a respondeat superior theory, see Peatross, 818 F.3d at 241, we find that Arsan failed to
plausibly allege a Fourth Amendment violation against anyone but Weber.5 Thus, we agree with
the district court’s grant of judgment on the pleadings in favor of the individual county defendants
and need not reach the issue of qualified immunity.
5
On appeal, Arsan seems to argue that Weber was not entitled to qualified immunity on the Fourth Amendment claim.
See Appellant Br. at 45 (“Weber forced herself into Appellant’s home and searched without consent or warrant based
on a tip.”). But no one argues that she was, and the district court explicitly found that she was not. Indeed, Weber’s
warrantless search is the very issue for which the case proceeded to trial. Arsan’s arguments concerning Weber’s
entitlement to qualified immunity on the Fourth Amendment claim are therefore misplaced and irrelevant.
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d. Conspiracy Claims Against County Defendants, Fierst, and McDermott
Arsan alleged three conspiracy claims6 against the county caseworkers, Fierst,7 and
McDermott, and the district court granted judgment on the pleadings in favor of the defendants for
all. We agree that Arsan has failed to plausibly allege conspiracy—of any sort—and affirm.
1. 42 U.S.C. § 1985(3): Conspiracy to Deprive Arsan of Equal Protection
Arsan contends that the district court erred in dismissing her § 1985(3) allegation for failure
to state a claim. She argues that the caseworkers’ and McDermott’s “interactions were aimed at
depriving the Appellant of her son and placing him in the case of the Otto family” and that “in the
interactions with the state workers involved in her case, ethnic animus was blatantly displayed.”
Appellant Br. at 24–25. We find that these statements do not constitute sufficient conspiracy
allegations under § 1985(3).
To state a claim under § 1985(3), a plaintiff must allege:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any right
or privilege of a citizen of the United States.
United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828–29 (1983).
Thus, a plaintiff who alleges a conspiracy to deprive her of equal protection under § 1985(3) must
establish not only that the defendants share a common plan but that they share a “common
discriminatory objective.” Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 368 (6th Cir. 2012).
Plaintiffs must plead conspiracy claims “with some degree of specificity and . . . vague and
6
Notably, Arsan’s complaint contains only one generalized conspiracy allegation: “conspiracy for deprivation of
constitutional rights.” R. 1, PageID 19. After the defendants moved for judgment on the pleadings, Arsan specified
which theories she was bringing, see R. 49, PageID 276, and the district court analyzed and dismissed all three theories.
We do the same.
7
Because we find that the district court properly dismissed Arsan’s claims against Fierst on the basis of guardian ad
litem immunity, we exclude him from our present analysis.
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conclusory allegations unsupported by material facts will not be sufficient to state such a claim.”
Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Here, Arsan’s complaint contains one
paragraph relating to conspiracy: that the caseworkers “planned and acted in concert to deprive”
her of her constitutional rights, and “to coerce the Plaintiff into accepting unjustified safety plan
supervisors and the removal and/or change of custody of her children.” R. 1, PageID 19–20. On
appeal, she attempts to support these allegations by arguing that Weber, Keller, and McDermott
“were in real time communication” regarding the search at Arsan’s home, which shows
“conspiracy to deprive [Arsan] of her children and give them to white individuals.” Appellant Br.
at 26–27. She also points to the receptionist’s referring to her as “the foreign lady” and Fierst’s
racist comment about terrorists. Id. at 25. But the existence of communication between
caseworkers and McDermott—who were all involved with the custody case—does not plausibly
allege a common scheme to deprive her of constitutional rights, let alone one that is race-based.
Likewise, the receptionist’s and Fierst’s comments are rude, but they are just that. They do not
indicate a conspiracy between all county caseworkers, McDermott, and Fierst to deprive Arsan of
her children based on her race. Thus, the district court properly granted judgment on the pleadings
upon finding that “Plaintiff has offered no specificity to any alleged conspiracy, common
discriminatory animus or a particular plan between Defendants.” R. 92, PageID 836.
2. 42 U.S.C. § 1983: Conspiracy to Deprive Arsan of Constitutional Rights
Arsan similarly challenges the district court’s judgment on the pleadings in favor of
defendants on her § 1983 conspiracy claim. As best we can tell, Arsan’s § 1983 claim concerns
an alleged conspiracy to deprive her of her children, in violation of her due process right to raise
her own kids. See Appellant Br. at 28 (“There is thus a constitutionally protected liberty interest
in family relationships, child rearing and education[.] . . . The Appellant’s rights herein are both
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procedural and substantive. She, as pled, was deprived of both.”). Arsan “refer[s] to the facts
elicited above” to support this conspiracy, too. Id. Arsan’s arguments are unavailing.
To successfully plead a § 1983 conspiracy, a plaintiff must allege sufficient facts to state a
claim that “(1) a single plan existed, (2) the conspirators shared a conspiratorial objective to
deprive the plaintiffs of their constitutional rights, and (3) an overt act was committed.” Revis v.
Meldrum, 489 F.3d 273, 290 (6th Cir. 2007) (citing Am. Postal Workers Union, Local 96 v. City
of Memphis, 361 F.3d 898, 905–06 (6th Cir. 2004)). A plaintiff’s “failure to plead a plan or
agreement to violate his constitutional rights is fatal to his conspiracy claim.” Heyne v. Metro.
Nashville Pub. Schs., 655 F.3d 556, 564 (6th Cir. 2011). Like a § 1985(3) claim, a § 1983
conspiracy claim “must be pled with some degree of specificity and . . . vague and conclusory
allegations unsupported by material facts will not be sufficient to state such a claim.” Spadafore
v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (quoting Gutierrez, 826 F.2d at 1538). This pleading
standard is “relatively strict.” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008).
Here, Arsan’s § 1983 claim rests on the same paragraph in her complaint as her § 1985(3)
claim: the caseworkers “planned and acted in concert to deprive” her of her constitutional rights,
and “to coerce the Plaintiff into accepting unjustified safety plan supervisors and the removal
and/or change of custody of her children.” R. 1, PageID 19–20. Just as this was not enough to
state a claim for conspiracy to deprive Arsan of her equal protection right, it is not enough to state
a claim for conspiracy to deprive her of her due process right to raise her children. We agree with
the district court that Arsan’s allegations are merely conclusory as she has failed to adequately
“plead any factual allegations of a ‘single plan’ or a ‘conspiratorial objective.’” R. 92, PageID
837. Thus, this failure is “fatal” to her claim, Heyne, 655 F.3d at 564, and we affirm the district
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Case No. 18-3858, Arsan v. Keller, et al.
court’s judgment on the pleadings in favor of the defendants with respect to the § 1983 conspiracy
allegation.
3. State Law Conspiracy
Arsan also challenges the district court’s grant of judgment on the pleadings in favor of the
defendants on her Ohio conspiracy claim. She argues that the district court “was fixated on labels,
not facts pled, contrary to Iqbal.” Appellant Br. at 29. To the extent we can discern what this
means, we find it meritless. There is no indication that the district court failed to consider Arsan’s
factual allegations. On the contrary, the district court concluded that Arsan failed to state a claim
for Ohio conspiracy upon finding that she did not plead “the elements of the torts of defamation
or misuse of process in her Complaint,” R. 92, PageID 838, as is relevant to an Ohio conspiracy
claim’s requirement for “an underlying tortious act that causes an injury,” Doane v. Givaudan
Flavors Corp., 919 N.E.2d 290, 298 (Ohio Ct. App. 2009). We agree with the district court that
Arsan failed to plead defamation or misuse of process claims in her complaint, and therefore
further agree that she failed to state a claim for Ohio conspiracy. We affirm the district court’s
grant of judgment on the pleadings in favor of the defendants on the Ohio civil conspiracy claim.
e. Failure to Train and Supervise Claims Against the County, Board of Commissioners,
and Children’s Services for Fourth Amendment Violation
Arsan challenges the district court’s grant of judgment on the pleadings in favor of
defendants on Arsan’s failure to supervise and train claims against Children’s Services, Greene
County, and the Greene County, Ohio Board of Commissioners. She argues that they are liable
for their employees’ constitutional violations because they exhibited deliberate indifference to
such violations. First, we agree with the district court’s determination that Children’s Services is
not sui juris, and therefore lacks the capacity to be sued. Second, we agree with the district court’s
determination that Arsan failed to state claims for failure to supervise and train against the County
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and Board because she did not sufficiently plead deliberate indifference to the alleged Fourth
Amendment violation, the only claim for which Arsan stated a plausible constitutional violation.
We therefore affirm the district court’s grant of judgment on the pleadings in favor of defendants
on the failure to supervise and train claims.
1. Children’s Services
In her report and recommendation regarding judgment on the pleadings, the magistrate
judge concluded that as a branch of the county government, Children’s Services must be dismissed
as a party because it is not sui juris and therefore “lacks the capacity to be sued.” R. 68, PageID
376. Although the district court did not write separately on this issue, it adopted the magistrate’s
recommendations “in their entirety.” R. 92, PageID 821. On appeal, Arsan does not contend that
Children’s Services is sui juris. Thus, we find that Arsan forfeited any challenge to Children’s
Services’ capacity to be sued, and we affirm the district court’s dismissal of Children’s Services
as a party. See Radvansky, 395 F.3d at 311.
2. Greene County and the Board of Commissioners
On appeal, Arsan challenges the district court’s dismissal of her failure to train and
supervise claims against Greene County and the Greene County, Ohio Board of Commissioners.
She argues that in dismissing her claims, the district court provided “a blanket statement and no
analysis” and that “this issue should [therefore] be remanded to the District Court for explication.”
Appellant Br. at 43. We disagree. In her complaint, Arsan included a one-sentence factual
allegation concerning the failure to supervise or train theories: the County and Board are liable
because they “have taken no action, remedial or otherwise to address these problems through
training programs or other measures to improve staff sensitivities or performance.” R. 1, PageID
22. The district court appropriately found that Arsan did not state claims for failure to supervise
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and train. We therefore affirm its judgment on the pleadings on the failure to train and supervise
claims with respect to the County and the Board.
Section 1983 creates a federal cause of action against “any person” who deprives someone
of a federal constitutional right while acting under color of state law. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691–92 (1978). Although § 1983 does not abrogate state sovereign
immunity, the statute provides a vehicle to sue local governments for constitutional violations. Id.
at 690. A city can be a “person” for the sake of a § 1983 claim. Id. But a municipality cannot be
held liable under § 1983 on a respondeat superior theory—or, in other words, because it employs
a tortfeasor. Id. at 691. Rather, local governing bodies are “liable under § 1983 only if the
challenged conduct occurs pursuant to a municipality’s ‘official policy,’ such that the
municipality’s promulgation or adoption of the policy can be said to have ‘caused’ one of its
employees to violate the plaintiff’s constitutional rights.” D’Ambrosio v. Marino, 747 F.3d 378,
386 (6th Cir. 2014) (brackets omitted) (quoting Monell, 436 U.S. at 692). The “touchstone,” then,
is an “official policy” that causes the alleged constitutional violation. Monell, 436 U.S. at 690.
One way a plaintiff can hold a municipality liable for a constitutional violation is to show
a policy of inadequate training or supervision that “amounts to deliberate indifference to
constitutional rights.” Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 994 (6th Cir. 2017)
(citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). In a deliberate-indifference case, the
plaintiff must show: (1) the employee’s act caused a constitutional tort; (2) the city’s failure to
train its employee caused the employee’s violation; and (3) the city knew or should have known
that the failure to train would lead to the constitutional violation and nonetheless declined to train
its employees. Id. at 995 (citing Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409
(1997)). Thus, in order to state a failure-to-train claim against the County and Board, Arsan must
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allege “prior instances of unconstitutional conduct demonstrating that the municipality had ignored
a history of abuse and was clearly on notice that the training in this particular area was deficient
and likely to cause injury.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citation,
quotation marks, and brackets omitted).
Here, Arsan does not specify the alleged constitutional violations for which she seeks to
hold the County and Board liable. Because we find that Arsan failed to state claims for any
constitutional violations aside from the Fourth Amendment claim against Weber, however, we
cabin our analysis of municipal liability to Weber’s warrantless search. See Arrington-Bey, 858
F.3d at 994. Arsan’s only factual allegation concerning the County and Board’s relation to the
alleged unreasonable search is that Weber’s supervisors “reviewed” her actions and “failed to
discipline Weber in any way.” R. 1, PageID 16. We agree with the district court that this allegation
sounds in respondeat superior—which does not form the basis for municipal liability under
Monell—rather than deliberate indifference to a constitutional violation. See id. Further, Arsan’s
contention that the County and Board were “aware through lawsuits that employees of Greene
County Children’s Services have been sued for racial and ethnic discrimination and irregularities
and failure to follow protocols,” R. 1, PageID 21, is inapposite to Arsan’s assertion that the
defendants were deliberately indifferent to their employees’ potential Fourth Amendment
violations. See City of Canton, 489 U.S. at 390–91. We therefore affirm the district court’s
judgment on the pleadings on the failure to supervise and train claims against the County and
Board.
3. MOTION TO SET ASIDE JUDGMENT AND GRANT NEW TRIAL
On appeal, Arsan contends that the district court judge, “although himself raising the
pleadings in this case, . . . failed to exercise his judicial experience and common sense in not
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permitting Klumb’s testimony and then denying Appellant’s Motion to Set Aside Judgment, and
thus abused his discretion.” Appellant Br. at 21. To the extent we can make sense of this request
for relief, we deny it.
a. Standard of Review
We review a district court’s denial of a Rule 60(b) motion for abuse of discretion. Franklin
v. Jenkins, 839 F.3d 465, 472 (6th Cir. 2016). The district court abuses its discretion when it
“relies upon clearly erroneous findings of fact, improperly applies the governing law, or uses an
erroneous legal standard.” Luna v. Bell, 887 F.3d 290, 294 (6th Cir. 2018) (quoting Jones v.
Caruso, 569 F.3d 258, 265 (6th Cir. 2009)). We find abuse of discretion only if our review leaves
us with “a definite and firm conviction that the trial court committed a clear error of judgment.”
Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir. 2006) (quoting Amernational Indus., Inc. v.
Action- Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991)). Rule 60(b) relief “is the exception,
not the rule,” as we are guided by “public policy favoring finality of judgments and termination of
litigation.” Franklin, 839 F.3d at 472 (internal quotations omitted). As such, the rule “does not
allow a defeated litigant a second chance to convince the court to rule in his or her favor by
presenting new explanations, legal theories, or proof.” Jinks v. AlliedSignal, Inc., 250 F.3d 381,
385 (6th Cir. 2001).
b. New Information After Trial
Arsan argues that the district court abused its discretion when it denied her Rule 60(b)(2)
motion for relief from final judgment on the grounds of “newly discovered evidence.” Appellant
Br. at 20–21. Here, Arson contends that after the jury verdict, Klumb “revealed for the first time”
that McDermott was the person who originally contacted Children’s Services with the report about
drug use. Id. Arsan also argues that she later learned there was a police car outside of her home
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on the day of the search. Upon review of these arguments, we find that the district court did not
abuse its discretion in denying Arsan’s motion for relief from final judgment.
Under Rule 60(b)(2), a party may ask the district court to reopen the case because of “newly
discovered evidence” that could not have been discovered in time (28 days after final judgment)
to move for a new trial under Rule 59(b). Fed. R. Civ. P. 60(b)(2). “To prevail, a movant must
demonstrate (1) that it exercised due diligence in obtaining the information and (2) that the
evidence is material and controlling and clearly would have produced a different result if presented
before the original judgment.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 615 (6th Cir. 2012)
(citation, internal quotations, and brackets omitted). Thus, the newly discovered evidence “must
have been previously unavailable,” GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834
(6th Cir. 1999), and “cannot be merely impeaching or cumulative,” Good v. Ohio Edison Co., 149
F.3d 413, 423 (6th Cir. 1998).
Here, the district court did not abuse its discretion in denying Arsan’s motion for relief
from final judgment on the basis of newly discovered evidence. Arsan’s “newly discovered
evidence” falls into two categories—that McDermott made the initial call to Children’s Services
and that there was a police car outside her home on the day of Weber’s search. Appellant Br. at
20–21. Arsan does not show—at all, let alone by clear and convincing evidence—that she
exercised reasonable diligence in obtaining this information (in fact, she conducted no written
discovery or depositions), that she could not have learned this information in time to move for a
new trial under Rule 59(b), or that this information was “material and controlling and clearly”
would have changed the jury’s Fourth Amendment finding. HDC, LLC, 675 F.3d at 615. Indeed,
we struggle to understand how any of this “newly discovered evidence” is relevant, much less
material, to whether Arsan consented to Weber’s search. We therefore find that the district court
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did not abuse its discretion in denying Arsan’s Rule 60(b)(2) motion on the basis of newly
discovered evidence.
c. Rebuttal Testimony During Trial
Arsan argues that the district court abused its discretion when it denied her request to call
Klumb as a rebuttal witness during trial. She contends that Klumb would have testified to the
relationship between her and the Ottos, that Weber was biased against her, that there was a police
car parked outside Weber’s home while she was inside, and that Klumb did not make the initial
report regarding Weber’s alleged drug use to Children’s Services. Appellant Br. at 19. Arsan does
not situate this argument within a particular section of Rule 60 (her standard of review section cites
only to Rule 60(b)(2) for newly discovered evidence) so we analyze this argument under general
principles for reviewing a trial judge’s decision to allow or deny rebuttal testimony during trial.
“A trial judge’s determinations regarding the order of proof and scope of rebuttal testimony
will not be disturbed absent an abuse of discretion.” Benedict v. United States, 822 F.2d 1426,
1428 (6th Cir. 1987) (citing Geders v. United States, 425 U.S. 80, 86 (1976)). A district court
judge has the discretion to “limit the scope of rebuttal testimony to that which is directed to rebut
new evidence or new theories proffered in the defendant’s case-in-chief.” Martin v. Weaver, 666
F.2d 1013, 1020 (6th Cir. 1981) (internal citations omitted). Here, the district court did not abuse
its discretion in denying Arsan’s request to call Klumb as a rebuttal witness. None of the
information that Arsan contends Klumb would have provided was relevant to the only issue at
trial—whether Weber violated the Fourth Amendment in conducting the search. We therefore find
that the district court did not abuse its discretion in excluding Klumb’s rebuttal testimony.
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4. DISTRICT COURT’S ORDERING OF CLOSING ARGUMENTS
Last, in a one-sentence paragraph with no citations, Arsan argues that she is entitled to
relief because “[t]he District Court altered the order of closing arguments without authority to do
so.” Appellant Br. at 57. We find this argument meritless.
III.
CONCLUSION
For these reasons, we affirm the district court’s granting of Fierst’s motion to dismiss,
judgment on the pleadings in favor of the county defendants on all but the Fourth Amendment
claim against Weber, and denial of Arsan’s motion to set aside the judgment and for a new trial.
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