NORMAN K. MOON, District Judge.
This matter is before the court on two motions to dismiss Plaintiffs Second Amended Complaint: a motion to dismiss filed by defendants Cindy Casey, John
This case stems from Plaintiffs allegation that four employees of the Albemarle County Department of Social Services ("ACDSS"), along with a social worker who worked at their direction, abused their official positions and government powers to coerce Plaintiffs daughter to falsely accuse her father of sexual abuse. Plaintiff filed his original complaint in December 2006, and this case was stayed until the underlying state court proceedings concluded. On January 9, 2013, the Circuit Court of Albemarle County (Higgins, J.) entered a final order, and no appeal was filed.
Plaintiff and the mother of his daughter, who is now twelve years old, were never married. Starting in 2003 and into 2004, in the midst of a custody battle, the mother began alleging that Plaintiff had sexually abused their child. Plaintiff states that the four ACDSS Defendants became aware of the case around that time, as the mother brought the child to various therapists, doctors, and emergency rooms for evaluations. Plaintiff states that several therapists reported to Green, a case worker for Child Protective Services ("CPS") (an office of ACDSS), that the mother's allegations were false, and that the mother was attempting to coach the child or manipulate the therapists into making a false finding of abuse.
In August 2004, the mother presented her allegations to Judge Berry, of the Juvenile & Domestic Relations District Court for the City of Charlottesville (J & DR Court). Judge Berry rejected the mother's allegations that Plaintiff had abused their child. The J & DR Court order, dated August 10, 2004, required that any future request by the mother to take the child to a therapist had to be approved by the J & DR Court's therapist, Wendy Carroll. That order also required that an ACDSS employee or designee accompany the child to any future evaluation.
The ACDSS Defendants began investigating the mother's allegations several months later, in December 2004. According to Plaintiff, the four ACDSS Defendants intentionally violated the J & DR Court's order by sending the child to be questioned by Vaughan-Eden without obtaining
Vaughan-Eden did not videotape the back-to-back, 45-minute interviews she held with the child in February 2005, who at the time was four years old. Plaintiff alleges that Vaughan-Eden worked with Green during both sessions, and instructed his daughter to make a disclosure of abuse. Plaintiff states that in the second session, Green and Vaughan-Eden jointly pressured his daughter through leading questions to tell them "Who hurt your butt?" Plaintiff states that his daughter became "visibly anxious" during the sessions, "bounc[ed] off the walls and the floor," and "made animal calls and cried out" before eventually saying "Daddy." 2d Am. Compl. ¶ 48. Plaintiff states that experts in the state case testified that these sessions were traumatizing and emotionally and psychologically abusive to the child. Plaintiff alleges that Vaughan-Eden's evaluation was corrupt, and was set up for the purpose of manufacturing a false disclosure of abuse. Vaughan-Eden's report implicated Plaintiff in sexually abusing his daughter.
The four ACDSS Defendants used that report to support a petition for a protective order in the J & DR Court of Albemarle County later that month. Plaintiff alleges that Green and Vaughan-Eden executed an affidavit that misrepresented what his daughter had said, and omitted crucial facts pertaining to Vaughan-Eden's evaluation. Plaintiff alleges that Green and Vaughan-Eden continued those misrepresentations through their testimony before the J & DR Court. After multiple hearings, the J & DR Court found that the child had been abused, but could not determine which parent was responsible. The J & DR Court found that the child's disclosure was "tainted" by the procedures Green and Vaughan-Eden employed, and was therefore too unreliable to establish a finding of abuse by the father. The Court issued a final protective order in April 2005 naming both the Plaintiff and the mother as respondents.
Before the J & DR Court issued its final order, the ACDSS Defendants pursued an administrative action against Plaintiff resulting in a Level 1 "founded" disposition,
However, Defendants did not dismiss their abuse allegations or revise their visitation restrictions following that ruling, and so proceedings in state court continued. Those proceedings culminated in a thirteen-day trial in Albemarle Circuit Court in August 2009. Following the conclusion of that trial, the Circuit Court held in September 2009 that (1) the Father did not abuse the Child in any manner, and (2) the Mother had engaged in a pattern of interference in the Father's relationship with the Child, but did not abuse the Child. The Circuit Court also enjoined the Mother from interfering further in the Child's relationship with the Father. The mother appealed, and the Court of Appeals issued a decision on January 11, 2011, reversing certain evidentiary rulings from the trial, as well as the definition of "abuse" as applied to the Mother's conduct. Finally, on January 9, 2013, the Circuit Court reaffirmed its September 16, 2009 order, including its previous findings that (1) the Father did not abuse the Child in any manner, and (2) the Mother engaged in a pattern of interference in the Father's relationship with the Child, and implemented an injunction against the Mother prohibiting any further interference in the Child's relationship with the Father. The Circuit Court also held that Judge Berry's initial August 2004 order, from the Charlottesville J & DR Court, was to remain in effect.
Here in federal court, on March 14, 2013, Magistrate Judge B. Waugh Crigler lifted the stay that had been entered on August 8, 2007, and granted Plaintiff leave to file a second amended complaint. Plaintiffs Second Amended Complaint features seven distinct causes of action: substantive due process/deprivation of liberty, under 42 U.S.C. § 1983 (all defendants) (Count I); conspiracy under 42 U.S.C. § 1983 (all defendants) (Count II); supervisory liability under 42 U.S.C. § 1983 (Green, Casey, Freeman, and Ralston) (Count III); malicious prosecution (Green, Casey, Freeman, and Ralston) (Count IV); intentional infliction of emotional distress (all defendants) (Count V); loss of parent's companionship and society of a child (all defendants) (Count VI); and professional negligence (Vaughan-Eden) (Count VII).
In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain facts sufficient "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible if the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," and if there is "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
Defendants begin their motion by arguing that at least some of Plaintiffs claims are barred by the Eleventh Amendment. Defendants acknowledge that Plaintiffs Second Amended Complaint clearly alleges that he is suing them in their "individual capacity." See 2d Am. Compl. ¶ 13. Still, Defendants contend that Plaintiffs action is largely an official capacity suit, because "the bulk of [Plaintiffs] claims from ¶ 58 forward in the Second Amended Complaint are actually claims against ACDSS...." Defs.' Br. in Supp. of Mot. to Dismiss 2 (Docket No. 123).
However, regarding Plaintiffs supervisory-liability claim (¶ 104), an individual defendant may be held personally liable where there is an affirmative link between official misconduct and the adoption of any plan or policy by government officials that expressly or otherwise shows their authorization or approval of such misconduct. See Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). In this case, Plaintiff contends that he seeks to hold Defendants liable either for: (1) establishing, enforcing, or implementing certain policies and customs, or (2) failing to do so with respect to other policies. Pl.'s Opp. to Defs.' Br. in Supp. 13 (citing Slakan v. Porter, 737 F.2d 368, 374 (4th Cir.1984) (finding prison policies and customs regarding the use of water hoses to be relevant in establishing officials' supervisory liability.)) (Docket No. 127). Ultimately, government officers who abuse the power of their office while violating a constitutional right can be held personally liable, see Hafer v. Melo, 502 U.S. 21, 31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), and Plaintiffs claims against these Defendants in their individual capacities, including his claim for supervisory liability, are not barred by the Eleventh Amendment.
Under Virginia law, social workers are entitled to absolute immunity for the prosecutorial acts of preparing and filing removal petitions. Vosburg v. Dep't of Social Servs., 884 F.2d 133, 137 (4th Cir. 1989) ("[T]he filing of a removal petition is, in essence, the start of judicial proceedings against the parent or guardian of a minor child, and the duties of the social worker at that point are those of an advocate in the process."). Accordingly, the Vosburg court afforded absolute immunity to the social worker defendants that filed a removal petition, because at the time they were "acting in a prosecutorial, rather than an investigative or `policing' capacity." Id. at 135. Defendants are entitled to the same absolute immunity for filing the February 2005 petition in this case.
However, absolute immunity does not extend to social workers' investigative or administrative acts, for which they are entitled only to qualified immunity. Id. at 138 (citing Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (recognizing that a prosecutor cast "in the role of an administrative or investigative officer" should receive only qualified immunity.)).
Defendants contend that they were acting in a prosecutorial (rather than an investigative or administrative) capacity at all times leading up to the February 2005 petition, from which Plaintiffs § 1983 claims largely stem, as well as for their actions that followed. Defendants note that the child's evaluation was performed by another party (Vaughan-Eden), and the abuse disclosure was repeated, allegedly at the direction of Vaughan-Eden, in the presence of an Albemarle County Police Department detective. Accordingly, Defendants assert that they are entitled to absolute immunity for all actions pertaining to their decision to file, as well as the prosecution of, the February 2005 petition.
In response, Plaintiff cites each allegation contained in his Second Amended Complaint that he contends to be an investigative or a non-prosecutorial administrative action taken by the Defendants in this case, some of which allegedly occurred after the February 2005 petition had been filed. See Pl.'s Opp. to Defs.' Br. in Supp. 15-17. Plaintiff also notes in his opposition that Green testified in the state case that there was no open investigation against Plaintiff in late 2004 and early 2005, and contends that taking his child to Vaughan-Eden, and Green's actions during the February 2005 evaluation, should not be deemed "prosecutorial" acts in hindsight. In reply, Defendants acknowledge that Plaintiffs Second Amended
Plaintiff's allegations predating the February 2005 petition are primarily directed at Green's alleged misconduct, rather than specific actions taken by the other ACDSS Defendants. Still, Plaintiff alleges that the Defendants collectively violated Judge Berry's August 2004 order, ignored Vaughan-Eden's lack of qualifications and training, and allowed his daughter to be evaluated in a manner that was corrupt and set up to manipulate a disclosure of abuse. Accordingly, I will not award absolute immunity to any of the ACDSS Defendants for their investigative or non-prosecutorial administrative actions predating the February 2005 petition.
Plaintiff also alleges that Green's affidavit filed in support of the February 2005 petition misrepresented and omitted critical facts regarding the manner in which she and Vaughan-Eden obtained the disclosure from his child, and mischaracterized his daughter's statements during the evaluation.2d Am. Compl. ¶ 60. A prosecutor does not have absolute immunity if he or she fabricates evidence during a preliminary investigation, Buckley, 509 U.S. at 275, 113 S.Ct. 2606, or if he or she makes false statements in a sworn affidavit to support an application for an arrest warrant, Kalina v. Fletcher, 522 U.S. 118, 129-130, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). However, here in the Fourth Circuit, immunity from liability extends to social workers for the preparation and filing of a removal petition, even if false statements are submitted in support of removal. Gedrich v. Fairfax Cnty. Dep't. of Family Servs., 282 F.Supp.2d 439, 467 (E.D.Va.2003) (citing Vosburg, 884 F.2d at 135).
To illustrate, in Gedrich, the court found that plaintiffs had stated a procedural due process claim against a social worker, insofar as they alleged she submitted knowingly false statements in her affidavit in support of emergency removal to the J & DR Court. Id. However, because that submission "pertain[ed] to [defendant's] filing of the petition in the J & DR Court," the court held that the social worker defendant "was absolutely immune from suit in this regard." Id. (citation omitted). Accordingly, Green and the rest of the Defendants are absolutely immune for any misstatements contained in their affidavits, along with their subsequent testimony in state court. See Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.2000) ("[S]ocial
Defendants also claim that they are entitled to immunity as to Plaintiffs tort claims under Virginia's reporter immunity statute, Va.Code Ann. § 63.2-1512 ("Immunity of person making report, etc., from liability"), given that, according to Defendants, they were acting at all times to protect the child. More fully, Virginia's reporter immunity statute provides that social workers who have a reason to suspect that a child is abused, and who report that abuse pursuant to § 63.2-1509, "shall be immune from any civil or criminal liability in connection therewith, unless it is proven that such person acted in bad faith or with malicious intent." Va.Code Ann. § 63.2-1512.
The Fourth Circuit discussed the purpose of the statute in Wolf v. Fauquier County Bd. of Supervisors, 555 F.3d 311 (4th Cir.2009), which held that the defendants in that case were entitled to its protections: "Virginia's reporting statute and its social services apparatus are both based on the assumption that false positives — mistaken reports of child abuse followed by DSS investigations — are less harmful than false negatives — serious harm to a child that could have been prevented but was not." Id. at 323 (finding that the "life-coach" defendant's report that her client was suicidal and planning to harm her children was not made in bad faith). However, Plaintiff specifically alleges that the Defendants in this case acted in bad faith, see 2d Am. Compl. ¶ 102(a-y), which must be proven to overcome "the strong presumption that immunity applies" to reporters of suspected child abuse. 555 F.3d at 318.
Plaintiff alleges that the Defendants violated his right to a familial relationship
Defendants contend that the terms of the February 2005 order were not sufficient to deprive Plaintiff of his right to familial privacy. Defendants note that Plaintiff did not have physical custody at the time of the February 2005 petition, and that he could still visit his daughter after the protective order was in effect.
However, noncustodial parents still may have a recognized liberty interest in their relationship with their children. See Brittain v. Hansen, 451 F.3d 982, 999-1000 (9th Cir.2006) ("[Plaintiff] has a protected liberty interest in the `companionship, care, custody, and management' of her child by virtue of her visitation rights[.]").
The Ninth Circuit has also held that "deliberately fabricating evidence in civil child abuse proceedings violates the Due Process clause of the Fourteenth Amendment when a liberty or property interest is at stake." Costanich v. Dep't of Soc. & Health Servs., 627 F.3d 1101, 1108 (9th Cir.2010). While the court in Costanich affirmed qualified immunity for a social worker defendant where that constitutional right had not been clearly established, the court put government officials in the Ninth Circuit on notice that deliberately falsifying evidence in a child abuse investigation, where it resulted in the deprivation of a liberty interest, violated constitutional rights. Id. at 1115. To sustain a deliberate fabrication of evidence claim under substantive due process, the court stated that a plaintiff must, at a minimum, show that "Defendants [either] continued their investigation of plaintiff despite the fact that they knew or should have known that [plaintiff] was innocent" or "used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information." Id. at 1111 (quoting Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001)).
At the time of this opinion Costanich had not been cited in the Fourth Circuit, or by any other Court of Appeals outside of the Ninth Circuit, and I do not intend to establish its constitutional holding here. Still, I find that Plaintiff has sufficiently alleged a § 1983 violation against Green, the lead CPS case worker for the investigation in this case. While Plaintiff alleges that Defendants collectively violated Judge Berry's August 2004 order by allowing his daughter to travel unaccompanied to Newport News for an evaluation by Vaughan-Eden, Plaintiff specifically alleges that it was Green who directed Vaughan-Eden to ignore all collateral information and case history, provided Vaughan-Eden with false and prejudicial information about him, and allowed the mother time to "coach" his child in order to obtain a disclosure of abuse during the evaluation.2d Am. Compl. ¶ 38, 102(g).
Regarding the evaluation, Plaintiff alleges that Green and Vaughan-Eden pressured his daughter over the course of an hour and a half, in a way that experts have testified was traumatizing and emotionally and psychologically abusive to the child. Id. at ¶ 48. Plaintiff alleges that Defendants knew or should have known that the disclosure was extracted through a process so coercive and abusive that it would have yielded false information. Id. at ¶ 49. According to Plaintiff, Green deliberately failed to record the evaluation, and then destroyed all of her original notes from the sessions with his child in a deliberate attempt to prevent him and the state court
Later, while Plaintiff alleges that the Defendants collectively ignored evidence of his innocence, he alleges that it was Green who specifically aided the mother's efforts to disrupt the child's therapeutic relationship with a court-appointed therapist in early 2006.
Still, for Plaintiff to sufficiently state a § 1983 claim against Green, she must have been the proximate cause of the infringement on his liberty interest. In Evans v. Chalmers, 703 F.3d 636 (4th Cir.2012), the Fourth Circuit held that the district court should have granted defendants' motion to dismiss, since the plaintiffs' § 1983 complaint did not allege that the police officers misled or unduly pressured the prosecutor, and therefore the prosecutor's actions in seeking an indictment broke the causal chain for a constitutional tort. Id. at 649 ("[A] prosecutor's independent decision to seek an indictment breaks the causal chain unless the officer has misled or unduly pressured the prosecutor."). Defendants argue that even if there was some type of infringement on Plaintiff's liberty interest, that infringement was not proximately caused by Green (or any other defendant), but instead by independent decision makers — the assistant county attorney (Herrick) that prosecuted the case, and the state courts that entered protective orders restricting Plaintiffs visitation rights.
Plaintiff attempts to distinguish Evans v. Chalmers on two fronts: (1) Evans involved a prosecutor with independent discretion whether to initiate a prosecution,
The Fourth Circuit stated in Evans that "even when ... a prosecutor retains all discretion to seek an indictment," police
Whether those court orders, rather than Green's alleged misconduct, were in fact the cause of Plaintiffs liberty interest violation remains the issue here. The Fourth Circuit stated in Washington v. Wilmore, 407 F.3d 274 (4th Cir.2005), that the proper inquiry regarding causation for the alleged § 1983 violation in that case was "whether [Plaintiffs] conviction was a reasonably foreseeable result of [the officer's] initial act of fabrication...." Id. at 283 (citation omitted). In Washington, the plaintiff had been convicted in a criminal matter due largely to a leading question presented to him regarding a critical detail from the crime scene, and an officer's subsequent misrepresentation to the prosecutor that the plaintiff had volunteered that detail. Id. at 276-77. After his exoneration, the plaintiff brought a § 1983 claim against the city and the police officer. The court held that the question of causation was a factual issue, whose basis would have to be developed during discovery. Id. at 283.
As Defendants point out, the Washington court relied on a causation standard similar to the one used by the Second Circuit in Zahrey v. Coffey, 221 F.3d 342 (2d Cir.2000), which the Washington court cited in support of its finding that Washington's factual allegations amounted the violation of a constitutional right. See 407 F.3d at 282. Later, the Evans court declined to use the "reasonable foreseeability" standard from Zahrey to "preserve the causal chain between a police officer's actions and an unlawful seizure by way of indictment." Evans, 703 F.3d at 649 n. 5 (citing Zahrey, 221 F.3d at 351-52). The court noted that "no other court has pursued this suggestion and more recently the Second Circuit itself has stepped back from that broad dicta." Id. (citing Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.2007)).
That discussion in Evans appears to be specific to the law enforcement context described above.
Green contends that any of her actions deemed to be administrative or investigative in this case, arising to the level of a constitutional claim, are nonetheless protected by qualified immunity. Social services officials engaged in child abuse investigations "may properly assert qualified immunity in appropriate situations." Hodge, 31 F.3d at 162 (citations omitted). When a government official asserts qualified immunity, the court must determine: (1) whether the facts alleged show that his or her actions violated a constitutional right, and (2) whether the right asserted was clearly established at the time of the challenged actions. Henry v. Purnell, 501 F.3d 374, 377 (4th Cir.2007) (citing Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
Both questions must be answered in the affirmative to defeat a claim of qualified immunity.
Plaintiff alleges that this case represents Green's deliberate and systematic campaign to deprive him of a parental relationship with his child. According to Plaintiff, Green intentionally violated a state court order, and assisted in coercing a false allegation of abuse from his then-four year old daughter to support the visitation restrictions in this case. Later, from July 2006 until September 2009, Plaintiff alleges that Green's campaign continued, and admittedly so, without any legal authority or basis. Throughout, Plaintiff alleges that Green ignored mounting evidence pertaining to his innocence (dating back to 2003-04), and actively opposed his attempts to bring it to light. Cf. Prescott v. Wade, 2013 WL 1352168, at *10 (E.D.Va. April 12, 2013) ("Plaintiffs do not set forth facts supporting their accusations that [the CPS investigator] either possessed or withheld exculpatory information.") (holding defendants entitled to qualified immunity).
As discussed, I find that this case represents one of "those instances where [a] state official's actions were directly aimed at the parent-child relationship," Hodge, 31 F.3d at 163 (citation omitted), and Plaintiffs allegations against Green rise to the level of an actionable violation of the familial right to privacy. That leaves me with the question of whether this right was clearly established at the time of the alleged violation.
A right is clearly established when it has been authoritatively decided by the Supreme Court, the appropriate United States Court of Appeals, or the highest court of the state in which the action arose. See Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999). The Fourth Circuit has taken a narrow view of when a right is clearly established. While the relevant, dispositive inquiry is whether it would be clear to a reasonable person that his or her conduct was unlawful in that situation, see Saucier, 533 U.S. at 195, 121 S.Ct. 2151, "the protection of qualified immunity is extended to acts that could not possibly have been done in good faith." John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 Virginia Law Review 207, 258 (2013) (citing Fields v. Prater, 566 F.3d 381 (4th Cir.2009) (as alleged) and Robles v. Prince George's County, 302 F.3d 262 (4th Cir.2002) (as proved) as illustrations).
Regarding Plaintiffs claim in this case, the Fourth Circuit has noted that the boundaries between the right to familial privacy and legitimate government interests remain "amorphous." Hodge, 31 F.3d at 163-64; see also Martin, 346 F.3d at 507 ("[T]he contours of the right to familial integrity may not be sufficiently clear in certain situations, to be deemed clearly established as required.") (citations and internal quotations omitted). Granted,
While I have found that Green's alleged conduct in this case rose to a substantive due process violation of Plaintiff's parental rights, I do not find that this liberty interest was clearly established at the time of her alleged actions here in the Fourth Circuit. Accordingly, I will grant Green (along with the rest of the ACDSS Defendants) qualified immunity as to Plaintiffs constitutional claims (Counts I, II, and III) in this case.
At this point, only Plaintiffs state law claims remain. The doctrine of supplemental jurisdiction indicates that federal courts generally have discretion to retain or dismiss state law claims when the
This case has been in federal court since December 2006. Proceedings in state court date back to 2005, and after a thirteen day trial in August 2009 did not fully culminate until earlier this year. The conclusion of those state court proceedings led this court to lift the stay that had been in place since August 2007. Since then, Plaintiff filed a Second Amended Complaint, and the parties have extensively briefed the facts and legal issues covering Plaintiff's federal and state law claims in this case. The June 2013 hearing on the pending motions similarly featured arguments on both the federal and state law claims in this case. There is no open case in state court at this time, and I will exercise my discretion to retain jurisdiction over the following pendent state law claims.
Plaintiff contends that his Second Amended Complaint states a valid claim for malicious prosecution due to his allegation that Defendants instituted and continued a case against him based on charges of sexual abuse that were not supported by probable cause. See 2d Am. Compl. ¶ 126. In order to establish a case for malicious prosecution, a plaintiff must show that "the prosecution was (1) malicious, (2) instituted by or with the cooperation of the [defendant], (3) without probable cause, and (4) terminated in a manner not unfavorable to [plaintiff]." O'Connor v. Tice, 281 Va. 1, 7, 704 S.E.2d 572, 575 (2011). Given that this claim stems from civil proceedings, Plaintiff must also allege some sort of "special loss or unusual hardship resulting from the malicious prosecution of the original action[.]" Ayyildiz v. Kidd, 220 Va. 1080, 1084, 266 S.E.2d 108, 111 (1980).
Regarding the first and third elements, which appear to be in dispute in this case, "legal malice may be inferred by the jury for want of probable cause." Lee v. Southland Corp., 219 Va. 23, 27, 244 S.E.2d 756, 759 (1978). I find that Plaintiff's allegations leading up to and during Vaughan-Eden's "tainted" evaluation, together with Defendants' alleged actions that followed — notably, initiating a legal process based upon allegations that they knew to be false or unreliable, maintaining a petition in state court after the State DSS determined the finding of abuse to be unfounded, and actively opposing Plaintiffs proffers of evidence to rebut those allegations — are sufficient to establish that Defendants lacked probable cause in this case. As a result, I find that Plaintiff has sufficiently alleged malice as well. See, e.g., Johnson v. Moore, 2010 WL 4860348, at *3 (E.D.Va. Nov. 22, 2010) ("Plaintiff pled sufficient facts to plausibly allege malice because Plaintiff alleged an absence of probable cause, from which malice may be inferred.").
Regarding the special injury requirement under Ayyildiz, Plaintiff alleges that Defendants nearly ruined his professional career, and caused him to incur over a million dollars in attorney fees and litigation
Plaintiff alleges that Defendants' conduct, as set forth in his complaint, caused him severe emotional distress that continues to this day. The IIED tort requires a plaintiff to prove four elements: (1) the wrongdoer's conduct was intentional or reckless; (2) the conduct was outrageous and intolerable; (3) there was a causal connection between the wrongdoer's conduct and the emotional distress; and (4) the emotional distress was severe. Harris v. Kreutzer, 271 Va. 188, 204, 624 S.E.2d 24, 33 (Va.2006) (citation omitted).
Defendants argue that Plaintiff has failed to set forth with sufficient specificity what form of distress he has suffered, or what treatment he has undergone, and for that reason his IIED claim must fail. Plaintiff generally alleges "severe and prolonged" emotional distress and "severe emotional pain" on account of the Defendants' actions in this case. Plaintiff also describes the variety of hardships and losses he has experienced due to his inability to parent his daughter, the stigmatization of false abuse allegations, and the impact this process has had on his professional career. See 2d Am. Compl. ¶¶ 106, 107.
Plaintiffs IIED claim must meet the pleading standard found in the Federal Rules, rather than the heightened standard required by Virginia state courts. See Guerrero v. Deane, 2010 WL 670089, at *15 (E.D.Va. Feb. 19, 2010) ("[A] plaintiff before the federal court in this Circuit does not have to plead the IIED claim with the particularity required by Virginia state courts.") (citing Hatfill v. New York Times, Co., 416 F.3d 320, 337 (4th Cir. 2005), cert. denied, 547 U.S. 1040, 126 S.Ct. 1619, 164 L.Ed.2d 333 (2006)). In Hatfill, the Fourth Circuit discussed the difference between Rule 8 pleading standards and those required in Virginia state courts in the IIED context. Contrasting Hatfill's claims with those made by the unsuccessful state court plaintiff in Russo v. White, the court noted that "Hatfill did not allege his emotional distress in such specific terms, but Rule 8 ... did not require him to do so." 416 F.3d at 337. Instead, Hatfill's complaint alleged "severe and ongoing loss of reputation and professional standing, loss of employment, past and ongoing financial injury, severe emotional distress and other injury." Id. The Fourth Circuit found that those general allegations were "sufficient under Rule 8 to give [the defendant] fair notice of what [Hatfill's] claim is and the grounds upon which it rests, and they are adequate to state the final and necessary element of a claim for intentional infliction of emotional distress." Id. (internal citation and quotation marks omitted).
Plaintiff noted in his opposition and during the June 2013 hearing that he was diagnosed with post-traumatic stress disorder due to the accusations of abuse and the visitation restrictions from this case, and that he underwent treatment for nearly four years. It appears that these details figure into his arguments regarding the severity of his emotional distress, but Plaintiff did not include them in his Second Amended Complaint. Matters outside of the pleadings are generally not considered when ruling on a Rule 12 motion. See Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.2004). Accordingly, I will grant Plaintiff leave to amend this count of his Second Amended Complaint to include these additional details.
Plaintiff contends that the Supreme Court of Virginia has held that a single father can have a cognizable claim for tortious interference with his relationship with his child. See Wyatt v. McDermott, 283 Va. 685, 725 S.E.2d 555 (2012).
283 Va. at 699, 725 S.E.2d at 562.
While Defendants acknowledge that Wyatt discussed the possibility of stating a claim for tortious interference with parental relationships, Defendants contend that the Virginia Supreme Court's holding in that case still does not support the specific duty that Plaintiff alleges in his Second Amended Complaint. See 2d Am. Compl. ¶¶ 144 (alleging that Defendants breached their duty to "discharge their child protection responsibilities in a competent, objective, and fair manner[,]" resulting in Plaintiffs separation from his child.). Instead, Defendants characterize Plaintiffs claims as "essentially a malpractice claim against the Defendants for their actions and inactions in conducting their jobs."
The Wyatt suit was brought by an unwed father against an adoption agency, two attorneys, and others who had facilitated the adoption of his newborn child without his knowledge. The plaintiff sought compensatory and punitive damages against those defendants for the tortious interference with his parental rights in federal district court in Virginia. The district court denied his claim, and certified questions of law to the Virginia Supreme Court regarding whether Virginia recognizes tortious interference with parental rights as a cause of action and, if so, what elements constitute that tort. 283 Va. at 689-90, 725 S.E.2d at 556-57.
In holding that the Commonwealth recognized such a right, the Virginia Supreme Court noted that "a parent's right to raise his or her child [is] `perhaps the oldest of the fundamental liberty interests recognized by [the U.S. Supreme] Court.'" 283 Va. at 692, 725 S.E.2d at 558 (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). The court continued: "It follows, then, that a parent has a cause of action against third parties who seek to interfere with this right." Id. Instead of creating a new tort, the court concluded that it was "rather recognizing that the common law right to establish and maintain a relationship with one's child necessarily implies a cause of action for interference with that right." 283 Va. at 693, 725 S.E.2d at 558-59. The types of harms contemplated by the court "[w]hen a parent has been unduly separated from a child by a third party for a substantial period of time without due process of law, ... includ[e] loss of companionship, mental anguish, loss of services, and expenses incurred to recover the child." 283 Va. at 693, 725 S.E.2d at 559 (emphasis added).
As stated, Virginia's reporter immunity statute provides that social workers who have a reason to suspect that a child is abused, and who report that abuse pursuant to § 63.2-1509, "shall be immune from any civil or criminal liability in connection therewith, unless it is proven that such person acted in bad faith or with malicious intent." Va.Code Ann. § 63.2-1512. Here in this case, Plaintiff alleges that Vaughan-Eden did the following: (1) ignored collateral information (2d Am. Compl. ¶¶ 39-42); (2) became a partisan with one parent and her attorney (¶ 46); (3) traumatized his child in a grueling interrogation (¶¶ 48-50); (4) coerced his child into making a disclosure against her will (¶¶ 48-50); (5) refused to tape any of the sessions with his child to avoid assessment of her interviews (¶ 42); (6) destroyed her notes of the sessions after receiving a subpoena for them in the state case (¶ 42); and (7) lied to state tribunals (¶ 60). Given these allegations and others, including the allegation that Vaughan-Eden told a news reporter that Plaintiff was guilty of abuse after he had been found innocent in state court, see id. at ¶ 134, I find that Plaintiff has sufficiently alleged bad faith on the part of Vaughan-Eden, so as to overcome her defense under Virginia's reporter's immunity statute regarding Plaintiffs tort claims in this case.
For the reasons discussed regarding Defendants' motion to dismiss, I will grant Plaintiff leave to amend his Second Amended Complaint as to this count.
For the reasons discussed regarding Defendants' motion to dismiss, Plaintiff has failed to state a claim for the tortious interference of his parental rights against Vaughan-Eden.
Plaintiff alleges that Vaughan-Eden owed him "a specific duty to investigate him and to question his child," and "a specific duty to draw conclusions and render professional opinions regarding him with a high degree of professional care." 2d Am. Compl. ¶¶ 150-51. Plaintiff contends that Vaughan-Eden owed him these duties of care "because of the special relationship between Vaughan-Eden and the child she was subjecting to questioning and evaluation." Id. at ¶ 152. Plaintiff alleges that Vaughan-Eden negligently and in bad faith breached these duties by "intentionally, deliberately and with malice psychologically assaulted [his] child for the purpose of coercing her to accuse [Plaintiff]" of sexual abuse. Id. at ¶ 153. As a result of that breach, Plaintiff alleges that he has suffered "significant expense" and "severe emotional pain and suffering." Id. at ¶ 154.
Plaintiff's negligence claim against Vaughan-Eden fails because, as a matter of law, Vaughan-Eden did not owe Plaintiff a legal duty in this case.
Plaintiff cites Kellermann v. McDonough, 278 Va. 478, 684 S.E.2d 786 (2009),
In so finding, the court declined to expand its "jurisprudence regarding special relationships to include an adult who agrees to supervise and provide care to a minor[,]" but instead found that the "duties that do exist in this case are a general duty of ordinary care and an assumed duty." 278 Va. at 492, 684 S.E.2d at 793.
Nor was there was there a special relationship between Vaughan-Eden and Plaintiffs daughter in this case. Vaughan-Eden, through her evaluation, never took custody of Plaintiffs daughter, or exercised sufficient control in order to establish a special relationship with her. See DeShaney v. Winnebago Cnty. Dep't. of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (Finding no special relationship between social workers and child, even though "the State once took temporary custody of [the child.]"); see also Waybright v. Frederick Cnty., 528 F.3d 199, 207 (4th Cir.2008) (A "special relationship is all but synonymous with a custodial relationship."). While the DeShaney court was clear that social workers could have a duty to protect a child from private violence when they take an active role in his or her life, see 489 U.S. at 201, 109 S.Ct. 998, in this case it is Plaintiff who seeks to establish a legal duty of care for his alleged injuries.
In perhaps a closer analogy, the Virginia Supreme Court is clear that a doctor-patient or hospital-patient relationship, standing alone, does not constitute a special relationship nor create liability on the part of the medical care provider for the patient's actions. See Nasser v. Parker, 249 Va. 172, 180, 455 S.E.2d 502, 506 (Va. 1995). "In so ruling, the [Virginia Supreme Court] set a high hurdle and suggested some sort of custodial relationship, as would exist in a confinement setting, is required before section 319 liability can attach." Sage v. U.S., 974 F.Supp. 851, 860 (E.D.Va.1997) (discussing Nasser). Because Plaintiff has failed to establish a legal duty between him and Vaughan-Eden
For the foregoing reasons, I grant Defendants' motion to dismiss Counts I-IV and VI of Plaintiffs Second Amended Complaint. I also grant Vaughan-Eden's motion to dismiss Counts I, II, VI and VII of Plaintiff's Second Amended Complaint. I grant Plaintiff leave to amend Count V of his Second Amended Complaint as to all defendants. An appropriate order accompanies this memorandum opinion.
This matter is before the court on two motions to dismiss Plaintiffs Second Amended Complaint: a motion to dismiss filed by defendants Cindy Casey, John Freeman, Lori Green, and Kathy Ralston ("Defendants") (docket no. 122), and a motion to dismiss filed by defendant Viola Vaughan-Eden ("Vaughan-Eden") (docket no. 125). For the reasons stated in the accompanying memorandum opinion, I grant Defendants' motion to dismiss Counts I-IV and VI of Plaintiffs Second Amended Complaint. I also grant Vaughan-E den's motion to dismiss Counts I, II, VI and VII of Plaintiffs Second Amended Complaint. I grant Plaintiff leave to amend Count V of his Second Amended Complaint as to all defendants. Plaintiff has fourteen (14) days from the date of this order to submit any amendments to Count V.
It is so ORDERED.
The Clerk of the Court is hereby directed to send a certified copy of this order and the accompanying memorandum opinion to all counsel of record.