Lipman v. Budish

974 F.3d 726

Kevin LIPMAN, Administrator of the Estate of Ta'Naejah McCloud, Deceased; Shabrina McCloud, Plaintiffs-Appellants,

v.Armond D. BUDISH, in his official capacity as Cuyahoga County Executive; Cuyahoga County Children and Family Services; Kristina Quint; Ada Jackson ; Marquetese Betts, Defendants-Appellees.

No. 19-3914

United States Court of Appeals, Sixth Circuit.

Argued: April 30, 2020

Decided and Filed: September 4, 2020

Rehearing En Banc Denied October 7, 2020

CLAY, Circuit Judge.

Plaintiffs in this case are the legal custodian and estate representative of Ta'Naejah McCloud, who was born in 2011. Ta'Naejah was in the custody of her biological mother, Tequila Crump, who severely abused her, including through repeated burnings and beatings. Ta'Naejah was hospitalized and interviewed by Cuyahoga County caseworkers, but ultimately was returned to Crump's custody. Throughout the next year, the county received further reports of abuse and interviewed Ta'Naejah several more times, but never acted to remove her from the household. The abuse eventually resulted in Ta'Naejah’s death.

Plaintiffs filed suit under 42 U.S.C. § 1983, asserting claims based on Ta'Naejah’s due process rights as well as several state-law causes of action. In response, Defendants moved to dismiss, arguing that Plaintiffs’ federal claims could not succeed because the Constitution does not create a right to state protection from private harm. The district court agreed and also declined to exercise supplemental jurisdiction over Plaintiffs’ state-law claims, dismissing the case in its entirety.

On appeal, Plaintiffs challenge this ruling as well as the district court's decision to strike their motion to alter and amend the judgment, a decision based on Plaintiffs’ failure to comply with a protective order governing confidential information obtained through discovery. Defendants in turn moved to seal Plaintiffs’ brief, saying that they again violated the same protective order by including information in their brief that they learned through depositions. But Defendants do not explain why the information in question should be kept from the public, other than because it is covered by the protective order.

While several of Plaintiffs’ federal claims are foreclosed by the Supreme Court's and this Court's case law, Plaintiffs also allege that the state affirmatively increased Ta'Naejah’s risk of harm by repeatedly interviewing her about her abuse in the presence of her alleged abusers, in violation of state regulations. Because these allegations plausibly allege a claim under the state-created danger doctrine, the district court erred by dismissing Plaintiffs’ complaint. Accordingly, we affirm in part and reverse in part the district court's order dismissing Plaintiffs’ federal claims, vacate the dismissal of Plaintiffs’ state-law claims, vacate the order striking Plaintiffs’ post-judgment motion, and remand this case for further proceedings. We also deny Defendants’ motion to seal.

I. BACKGROUND

A. Plaintiffs’ Original Complaint

In December 2018, Plaintiffs Kevin Lipman and Shabrina McCloud filed their original complaint in the Northern District of Ohio. In that complaint, Plaintiffs describe a series of events that ended with the death of Ta'Naejah McCloud, a tragedy for which they say Defendants are responsible.

Ta'Naejah McCloud was born in Virginia in 2011. At the time, Ta'Naejah lived with Tequila Crump—her biological mother—and Shabrina McCloud, who also had legal custodial rights over Ta'Naejah. Ta'Naejah also suffered from a developmental disability.

In 2016, Crump and Shabrina McCloud separated. Following this separation, Crump took Ta'Naejah with her to Cleveland, Ohio, and moved in with her new girlfriend, Ursula Owens. This marked the start of a pattern of severe abuse by Crump and Owens against Ta'Naejah, a pattern that ultimately resulted in her death.

Starting in September 2016, social workers employed by the Cuyahoga County Division of Children and Family Services ("DCFS") and other Cuyahoga County employees were contacted by neighbors and medical providers, who reported the suspected abuse and neglect of Ta'Naejah.

For example, Plaintiffs allege that in September 2016, a Cuyahoga County employee knew that Crump and Owens were burning Ta'Naejah. Similarly, in October 2016, reports were made to DCFS that Crump and Owens were burning and beating Ta'Naejah. But the county employees did not report this abuse as required by law, and even when it was made aware, DCFS failed to adequately investigate or refused to investigate at all.

On October 17, 2016, Ta'Naejah was taken to the hospital with third-degree burns on her hands, arms, and fingers. Crump and Owens claimed the burns were self-inflicted, but the hospital social worker reported to DCFS that the wounds were actually the result of abuse. Ta'Naejah was then transferred to another hospital's burn intensive care unit. The social worker there similarly reported to DCFS that the wounds could not have been self-inflicted and instead were caused by abuse. The burns required skin graft surgery, and the surgeon who performed the procedure also reported that the burns were not self-inflicted. This information was in turn provided to DCFS social worker Kristina Quint.¹

During this stay in the hospital, Quint came to interview Ta'Naejah about her injuries. According to Plaintiffs, DCFS policy required Quint to interview Ta'Naejah alone, but instead, she conducted the interview in the presence of Crump and Owens—the two individuals suspected of committing the abuse. When asked about her injuries, Ta'Naejah said that she had gone to the bathroom with her mother and said she was scared of the hot water there. According to Plaintiffs, this contradicted some of Crump's statements, and for that and other reasons, substantially increased Ta'Naejah’s risk of further abuse.

According to Plaintiffs, because the hospital had reported potential abuse, it could not discharge Ta'Naejah until directed to do so by DCFS. Plaintiffs thus allege that Ta'Naejah was not free to leave the hospital until DCFS acted, and so was effectively in its custody. But on October 21, 2016, Quint directed the hospital to discharge Ta'Naejah to Crump and Owens. Plaintiffs also say that Quint refused to further investigate these reports of abuse and failed to complete a proper investigation as required by Ohio statutes and regulations.

After Ta'Naejah was discharged from the hospital, DCFS received multiple other reports of abuse. According to Plaintiffs, none of these were investigated. In February 2017, though, a county social worker reported to DCFS that Ta'Naejah was being physically abused. Another case was opened, and Ada Jackson from DCFS was tasked with investigating the report.

While somewhat unclear, the complaint alleges both that DCFS refused to conduct this investigation, and also that DCFS took "co-custody" of Ta'Naejah during this time, meaning a DCFS caseworker would take her to medical examinations, including those to assess potential abuse. In any event, at one of these examinations, the physician concluded that Ta'Naejah was malnourished. A supervisor at DCFS—Marquetese Betts—"determined that the risk level for Ta'Naejah was high, took co-custody of Ta'Naejah and kept her case open." (Compl., R. 1 at PageID #8.)

On February 7, 2017, DCFS again took Ta'Naejah to a doctor. At this examination, for which Jackson was present, the doctor found multiple scars on Ta'Naejah’s body and further signs that she was malnourished. Nevertheless, DCFS returned Ta'Naejah to Crump and Owens.

From February through March 2017, DCFS continued to receive reports that Ta'Naejah was being abused. On five different occasions, DCFS social workers went to Ta'Naejah’s home and interviewed her in front of Crump and Owens, which Plaintiffs again say violated Ohio regulations and DCFS policy and placed Ta'Naejah at a heightened risk of harm.

During this period, Ta'Naejah suffered from serious abuse. Neighbors, family members, and others in the home witnessed Owens repeatedly beating Ta'Naejah and reported these events to DCFS. Ta'Naejah suffered a broken clavicle and multiple rib fractures during this time. And on March 16, 2017, Crump and Owens forced Ta'Naejah to scrub the floor with chemicals, the fumes from which caused her to lose consciousness for several hours. Plaintiffs say that DCFS either knew or should have known of these instances of abuse but refused to investigate them further and continued to place Ta'Naejah with Crump and Owens.

On the morning of March 17, 2017, Crump repeatedly struck Ta'Naejah, and then stood by while Owens hit her, threw her against the wall and dresser, threw her to the ground, and then stepped on and repeatedly beat her. Ta'Naejah became unresponsive, but Crump and Owens refused to call for help. When they finally did, approximately ten hours later, Ta'Naejah was taken to the emergency room, where she was diagnosed with a brain hemorrhage. Ta'Naejah died two days later. An autopsy determined that the cause of death was multiple blunt force injuries and that the manner of death was homicide.

Crump and Owens were arrested for Ta'Naejah’s death. After a jury trial, Crump was convicted of reckless homicide and child endangerment and Owens was convicted of murder, along with other charges.

After the criminal case, Kevin Lipman—who was appointed administrator of Ta'Naejah’s estate—and Shabrina McCloud filed this lawsuit. In their complaint, Plaintiffs named the following defendants: Armond Budish, in his official capacity as Cuyahoga County Executive; DCFS; Quint, Jackson, and Betts (the DCFS caseworkers); and Crump and Owens.² While Plaintiffs alleged state-law claims against all of these defendants, the case was filed in federal court because they claimed that the governmental defendants (meaning everyone except Crump and Owens) violated Ta'Naejah’s substantive and procedural due process rights under the Fourteenth...