NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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[.]” 

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. 

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[.]” 

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. 

1
    All facts taken as alleged in complaint.

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Case No. 18-3858, Arsan v. Keller, et al.


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[.]” 

to do so. Weber went outside again to call McDermott back “and asked what the

next step was because [Arsan] was not cooperating[.]” 

came back inside and

“stated that she would not leave until [Arsan] submitted to a drug test[.]” 

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[.]” 

“It was

late in the evening and [Arsan], under duress and to get Weber to leave, admitted to smoking

marijuana in the past[.]” 

Weber then “demanded a drug test” and “[u]nder duress,

[Arsan] complied and when asked by Weber, stated that she took Adderall for ADHD[.]” 

[Arsan’s] mouth and collected the swab but did not seal it, which is against

protocol for taking the test[.]” 

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[.]” 

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[.]” 

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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Case No. 18-3858, Arsan v. Keller, et al.


Facebook,” and that prior to meetings scheduled with Arsan, McDermott would meet privately

with the Green County Children’s Services staff. 

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. 

Weber “demanded that [Arsan] make [McDermott] supervisor of the plan or she would

remove [KK],” and Arsan, “in fear agreed[.]” 

“later stated she could no

longer supervise” KK and KO, the boys’ fathers, Klumb and Otto, became the children’s

supervisors. 

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[.]” 

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.

met with Weber and Keller and asked for a copy of the drug test. 

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[.]” 

that she had not understood [Arsan] due to her accent[.]” 

time period, Children’s Services supervisors held weekly “administrative

review” meetings in which they “reviewed and approved” Weber and Keller’s work. 

The supervisors involved in the meetings included Amy Amburn, Lana Penney, Joshua

Coomer, and Chad King, all named defendants.




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Case No. 18-3858, Arsan v. Keller, et al.


       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.” 

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[.]” 

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.” 

       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. 

custody hearings in October and November 2016, Fierst testified that

since Arsan was Middle Eastern, “she was probably a[] Muslim.” 

“what

difference that would make,” Fierst said to “turn on the TV to see what these people do[.]” 

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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Case No. 18-3858, Arsan v. Keller, et al.


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.” 

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Case No. 18-3858, Arsan v. Keller, et al.


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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Case No. 18-3858, Arsan v. Keller, et al.


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., 

, 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.’” 

(quoting Ashcroft v. Iqbal, 

, 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.” 

(citing Bell Atl. Corp. v.

Twombly, 

, 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. 

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., 

,

502 (6th Cir. 2001) (quoting Nieman v. NLO, Inc., 

, 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, 

, 199 (1985). The Supreme Court has extended



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Case No. 18-3858, Arsan v. Keller, et al.


this defense—sometimes called “quasi-judicial immunity”—to others “who perform functions

closely associated with the judicial process.” 

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, 

, 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.” 

“failure to grant immunity would hamper

the duties of a guardian ad litem in his role as advocate for the child in judicial proceedings.” 

applies to federal constitutional claims, see 

state law claims, see

Dickson v. Gorski, 

, 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.

. 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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Case No. 18-3858, Arsan v. Keller, et al.


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, 

, 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, 

, 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., 

, 336 (6th Cir.



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Case No. 18-3858, Arsan v. Keller, et al.


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. 

States v. Moriarty, 

, 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., 

, 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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Case No. 18-3858, Arsan v. Keller, et al.


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, 

, 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, 

, 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, 

, 557 (6th Cir. 2000); see Kottmyer v. Maas, 

, 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., 

, 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.” 

“the [plaintiff]

seek[s] to hold [county caseworkers] accountable for subsequent criminal or juvenile court actions,

that argument also fails.” 

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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Case No. 18-3858, Arsan v. Keller, et al.


“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, 

, 1349 (6th Cir. 1996) (quoting

Loudermill v. Cleveland Bd. of Educ., 

, 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. 

. When

caseworkers give testimony or otherwise participate as legal advocates in custody hearings, quasi-

prosecutorial immunity shields them from liability. 

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, 

or when their conduct is

“unquestionably illegal or improper,” 

. 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. 

.

       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. 

. But her testimony

and actions in juvenile court nonetheless stem from her capacity as a legal advocate. 

. 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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Case No. 18-3858, Arsan v. Keller, et al.


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 

. “[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, 

, 241 (6th Cir. 2016). As such, “a mere failure to act

will not suffice to establish supervisory liability.” 

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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Case No. 18-3858, Arsan v. Keller, et al.


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, 

, 298 (6th Cir.

2006), overruled on other grounds by Engquist v. Or. Dep’t of Agric., 

(2008). Thus,

“[t]he threshold element of an equal protection claim is disparate treatment,” Scarbrough v.

Morgan Cty. Bd. of Educ., 

, 260 (6th Cir. 2006), and only intentional, purposeful

discrimination violates the equal protection clause, see Washington v. Davis, 

, 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,

, 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 

. 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 

. Likewise, to the extent Arsan argues she is not enforcing the rights of her mother, but



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Case No. 18-3858, Arsan v. Keller, et al.


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 

, 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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Case No. 18-3858, Arsan v. Keller, et al.


           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, 

, 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., 

, 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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Case No. 18-3858, Arsan v. Keller, et al.


conclusory allegations unsupported by material facts will not be sufficient to state such a claim.”

Gutierrez v. Lynch, 

, 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.     

  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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Case No. 18-3858, Arsan v. Keller, et al.


procedural and substantive. She, as pled, was deprived of both.”). Arsan “refer[s] to the facts

elicited above” to support this conspiracy, too. 

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, 

, 290 (6th Cir. 2007) (citing Am. Postal Workers Union, Local 96 v. City

of Memphis, 

, 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., 

, 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, 

, 854 (6th Cir. 2003) (quoting 

). This pleading

standard is “relatively strict.” Fieger v. Cox, 

, 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, 

, 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., 

, 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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Case No. 18-3858, Arsan v. Keller, et al.


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 

.

                       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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Case No. 18-3858, Arsan v. Keller, et al.


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., 

, 691–92 (1978). Although § 1983 does not abrogate state sovereign

immunity, the statute provides a vehicle to sue local governments for constitutional violations. 

A city can be a “person” for the sake of a § 1983 claim. 

municipality cannot be

held liable under § 1983 on a respondeat superior theory—or, in other words, because it employs

a tortfeasor. 

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, 

,

386 (6th Cir. 2014) (brackets omitted) (quoting 

). The “touchstone,” then,

is an “official policy” that causes the alleged constitutional violation. 

.

       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, 

, 994 (6th Cir. 2017)

(citing City of Canton v. Harris, 

, 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. 

(citing Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 

, 409

(1997)). Thus, in order to state a failure-to-train claim against the County and Board, Arsan must



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Case No. 18-3858, Arsan v. Keller, et al.


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, 

, 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 

. 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 

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 

–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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Case No. 18-3858, Arsan v. Keller, et al.


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, 

, 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, 

, 294 (6th Cir. 2018) (quoting Jones v.

Caruso, 

, 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, 

, 831 (6th Cir. 2006) (quoting Amernational Indus., Inc. v.

Action- Tungsram, Inc., 

, 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.” 

(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., 

,

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. 

argues that she later learned there was a police car outside of her home



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Case No. 18-3858, Arsan v. Keller, et al.


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, 

, 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, 

, 834

(6th Cir. 1999), and “cannot be merely impeaching or cumulative,” Good v. Ohio Edison Co., 

, 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, 

. 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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Case No. 18-3858, Arsan v. Keller, et al.


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, 

,

1428 (6th Cir. 1987) (citing Geders v. United States, 

, 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, 

, 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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Case No. 18-3858, Arsan v. Keller, et al.


             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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