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Marble v. State

United States District Court, M.D. Tennessee, Nashville Division

June 7, 2018

MATTHEW MARBLE, Plaintiff,
v.
STATE OF TENNESSEE, et al., Defendants.

          MEMORANDUM OPINION

          ALISTAIR E. NEWBERN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Mathew Marble is the biological father of a minor child, H.S. The Tennessee courts terminated Marble's parental rights in 2015 on grounds that he had failed to pay child support and meet the requirements of a plan established by DCS for him to assume custody. (Doc. No. 99-1, PageID# 1031, ¶ 23; Doc. No. 101, PageID# 1159.) Marble challenged the termination of his parental rights in the Tennessee state courts unsuccessfully. He now brings this federal action to challenge the termination of his parental rights as having been in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. (Doc. No. 88, PageID# 793.) The State of Tennessee and its Department of Children's Services (DCS), who are the remaining defendants to Marble's claims, have moved for summary judgment (Doc. No. 97). For the reasons that follow, Defendants' motion is GRANTED.

         I. Background

         A. Factual History and State Court Proceedings[1]

         Plaintiff Matthew Marble alleges that Defendants State of Tennessee and Tennessee Department of Children Services (DCS) discriminated against him on the basis of his disabilities in the proceedings leading up to the termination of his parental rights to his daughter H.S. Marble suffers from Osgood-Schlatter disease, which causes knee pain; a seizure disorder that causes memory issues; blindness in his left eye; and a history of depression and trauma. (Doc. No. 98, PageID# 840; Doc. No. 99, PageID# 1011.) After H.S. was born in Tennessee in 2012, Marble, who was 18 years old at the time, returned to his home in Michigan. In re H.S., No. M2015-00842-COA-R3-PT, 2016 WL 3209444, at *1 (Tenn. Ct. App. May 31, 2016) (H.S. I); (Doc. No. 101). H.S. lived with her minor mother and her maternal grandmother, who was H.S.'s legal custodian. H.S. I., 2016 WL 3209444, at *1.

         Marble came into contact with DCS after H.S. was seriously injured while in her mother's care. Id.; (Doc. No. 99, PageID# 1005). On June 23, 2013, H.S. was treated for head trauma and “a series of bruises on her face and torso, ” injuries that contributed to H.S.'s development of cerebral palsy. (Doc. No. 88, PageID# 755, ¶ 22; 774, ¶ 69). DCS became involved in H.S.'s care after “receiving a referral indicating drug exposure and lack of supervision.” H.S. I, 2016 WL 3209444, at *1. Because H.S.'s mother “admitted to extensive drug use, ” H.S. was taken into DCS custody and immediately placed with foster parents. Id.; (Doc. No. 88, PageID# 755, ¶ 22; Doc. No. 99, PageID# 1005.) Because H.S.'s mother listed H.S.'s father as “unknown” in documents that she provided to DCS, it was not until Marble learned of H.S.'s injuries from a relative that he became involved in the determination of H.S.'s placement. H.S. I, 2016 WL 3209444, at *1; (Doc. No. 88, PageID# 755, ¶ 23).

         Consistent with Tennessee law, DCS developed a permanency plan for H.S. after placing her in foster care. Tenn. Code Ann. § 37-2-403(a)(1)(A); (Doc. No. 88, PageID# 758, ¶ 30). A permanency plan must establish a placement goal for a child in state custody and include “a statement of responsibilities between the parents, the agency and the caseworker of such agency.” Tenn. Code Ann. § 37-2-403(a)(1)(A)-(2)(A). The plan relevant to this action was created on September 5, 2013, after a meeting at which Marble was present. (Doc. No. 88, PageID# 761-62, ¶¶ 41-43.) The plan's stated “permanency goals” for H.S. were to return to a parent's custody or, in the alternative, to be placed with a relative. (Doc. No. 98-3, PageID# 952.) To gain custody of H.S., the plan required Marble to:

pay child support, to refrain from the use of illegal drugs, non-prescribed medications and/or alcohol, to use prescription drugs and over the counter drugs per the label instructions, to sign a release of information, to develop a relapse prevention plan to assist him in remaining sober, if prescribed narcotics[, ] to obtain and deliver to the case manager an affidavit from the medical provider listing all medications and dosages, to obtain an alcohol and drug assessment and complete all treatment recommendations, to stop the use of illegal drugs, alcohol, and non-prescribed medications, to submit to and test clean on periodic, random drug tests to verify sobriety, to demonstrate correct use of random pill counts, to demonstrate sobriety for a minimum of 6 months in a non-controlled environment, to obtain and maintain housing for no less than 6 months, to contact community resources for help in obtaining housing and/or household items and provide documentation to case manager, to pay bills for food and housing utilities on time, to provide proof of housing to the case manager in the form of rent receipts, to have a legal income to provide for [H.S.'s] needs, to notify [DCS] within 5 days of any change in employment, to establish a means of legal financial support through employment or public benefits, to provide proof of income to the case manager on a monthly basis, to develop and maintain a relationship with [H.S.] through visitation and demonstrate appropriate parenting and responsibility for the child, to take a parenting class to ensure that he has the tools to effectively parent [H.S.], to develop and maintain a positive relationship by visiting the child regularly, . . . to keep the case manager informed of his current living arrangements and circumstances, to have a clinical intake to assess mental health, to be honest during that intake, to follow all recommendations from that intake assessment, and to ensure that the Department receives a copy of that intake.

(Id. at PageID# 987-88.) Also in early September 2013, DCS filed a petition alleging that H.S. was “dependent and neglected as to [Marble] because he had failed to file a petition to legitimate [her] and had failed to protect her from [her mother's] drug use.” In re H.S., No. M2016-00387-COA-R3-JV, 2016 WL 7048840, at *2 (Tenn. Ct. App. Dec. 5, 2016) (H.S. II).

         In October 2013, recognizing the limitations of his ability to be H.S.'s sole parent and consistent with the permanency plan's goal for H.S. to be in a relative's custody, Marble “approached his aunt and uncle, Will and Bobbi DuBoise, about being a possible placement for [H.S.]” H.S. II, 2016 WL 7048840, at *2; (Doc. No. 99-4, PageID# 1060, ¶ 3). Because the DuBoises also lived in Michigan, H.S. II, 2016 WL 7048840, at *2, they could not obtain custody of H.S. before the appropriate authorities in Michigan had a full opportunity to ascertain the circumstances of the proposed placement, consistent with the requirements of the Interstate Compact on the Placement of Children (ICPC). Tenn. Code Ann. § 37-4-201(b). In early 2014, DCS submitted an ICPC request to Michigan on behalf of the DuBoises and also on behalf of Marble, who was independently seeking custody. H.S. II, 2016 WL 7048840, at *2. The “Michigan investigator denied [Marble's] ICPC request because he could not support himself or [H.S.] and was reliant upon his grandmother for housing.” Id. The DuBoises' ICPC request was approved in July 2014. (Doc. No. 99-2, PageID# 1035, ¶ 7; Doc. No. 99-4, PageID# 1061, ¶ 8; Doc. No. 100-1, PageID# 1144, ¶ 7.)

         Shortly thereafter, DCS moved to place H.S. with the DuBoises for a trial home placement. H.S. II, 2016 WL 7048840, at *3. H.S.'s guardian ad litem objected, citing H.S.'s medical condition, the recent placement of other foster children into the DuBoises' home, and the fact that H.S.'s mother was still entitled to visitation in Tennessee twice a month. Id. H.S.'s mother also objected to the placement. Id. After an evidentiary hearing, the juvenile court of Macon County, Tennessee, found that it was “not in the best interest of [H.S.] to be placed in Michigan.” (Doc. No. 130-1, PageID# 1399.) On the same day, the juvenile court “adjudicated [H.S.] dependent and neglected” as to Marble. H.S. II, 2016 WL 7048840, at *3. Marble and the DuBoises appealed the placement decision. Id. After a trial, the circuit court affirmed the juvenile court's finding that a placement with the DuBoises was not in H.S.'s best interest, stating:

“[T]he problem in this case” was that Father lived in Michigan; Mother had moved to Tennessee before H.S. was born; H.S. was severely abused, and DCS needed to remove her from Mother's custody; Mother did not know where Father was at the time; DCS did not know about the DuBoises at the time; and thus H.S. was placed in a foster home, which was “an excellent foster home.” After that, while DCS worked toward reunification, “time passed”: Approximately 2 and 1/2 years have passed and H.S. has bonded with Foster Parents and their children. We know that if she stays in her current placement she will continue to progress.

Id. at *6.

         On September 18, 2014, DCS moved to terminate Marble's parental rights, citing “the statutory grounds of substantial non-compliance with the permanency plan, abandonment by failure to support, and persistence of the conditions that led to the Child's removal.” (Doc. No. 99-1, PageID# 1029, ¶ 19). The juvenile court terminated Marble's parental rights on the grounds of “(1) abandonment for failure to remit child support, (2) substantial noncompliance with the permanency plans, and (3) the persistence of conditions which led to removal.” H.S. I, 2016 WL 3209444, at *7; (Doc. No. 99-1, PageID# 1031, ¶ 23). The Tennessee Court of Appeals affirmed the termination on grounds of nonpayment of child support and noncompliance with the permanency plans, but reversed the juvenile court's finding of the persistence of conditions that led to H.S.'s removal from her mother's custody. H.S. I, 2016 WL 3209444, at *1; (Doc. No. 99-1, PageID# 1031, ¶ 23). The Tennessee Court of Appeals also affirmed the dependency and neglect determination. H.S. II, 2016 WL 7048840, at *1.

         B. Procedural History

         Marble filed this lawsuit on May 4, 2014, alleging violations of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). (Doc. No. 1, PageID# 32.) Marble named as defendants the State of Tennessee, DCS, former DCS Commissioner James Henry, Governor Bill Haslam, Lindsey Kenyon (the DCS case worker for H.S.), Lois Gregory (Kenyon's supervisor), Stacy Choate (DCS legal counsel), Virginia Thompkins (H.S.'s guardian ad litem from July 2013 to November 2014), Lisa Cothron (H.S.'s guardian ad litem beginning in November 2014), Camelot Care (a foster care organization that contracts with DCS), Dana Davis (H.S.'s foster mother), and Brandon Givens (H.S.'s foster father). (Id. at PageID# 4-10.) All defendants except the State of Tennessee and DCS have been dismissed from the action. (Doc. Nos. 51, 65, 84.)

         The State and DCS filed a motion for summary judgment, supported by a memorandum of law (Doc. No. 98), a statement of undisputed facts (Doc. No. 98-1), and the deposition testimony of Marble and Lindsey Kenyon. Marble responded in opposition, filing a memorandum of law (Doc. No. 99), a response to Defendants' statement of undisputed facts (Doc. No. 99-1), a statement of additional undisputed facts (Doc. No. 99-2), and supporting evidence including affidavit testimony from proposed expert Janie L. Berryman (Doc. No. 99-3), Marble's aunt Bobbi DuBoise (Doc. No. 99-4), and Marble's attorney in these proceedings (Doc. No. 99-5), and a letter issued by the United States Departments of Justice and Health and Human Services in the matter of Sara Gordon (the Gordon Letter), which Marble cites as persuasive authority (Doc. No. 99-6). Defendants filed a reply (Doc. No. 100) and responded to Marble's statement of additional undisputed facts (Doc. No. 100-1).

         This case was transferred to the Magistrate Judge's jurisdiction by consent of the parties on January 11, 2018. (Doc. No. 127.)

         II. Legal Standard

         Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). To prevail, the moving party must prove the absence of a genuine issue of material fact as to any essential element of the opposing party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Stiles ex rel. D.S. v. Grainger Cty., 819 F.3d 834, 847 (6th Cir. 2016). In determining whether the moving party has met its burden, a court must view the factual evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Stiles, 819 F.3d at 848. A court must not weigh the evidence and determine the truth of the matters asserted but instead must “determine whether there is a genuine issue for trial.” Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 775 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

         If the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which she has the burden, however, the moving party is entitled to judgment as a matter of law. Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (citation omitted). To preclude summary judgment, the nonmoving party must go beyond the pleadings and present specific facts demonstrating the existence of a genuine issue for trial. Shreve v. Franklin Cty., 743 F.3d 126, 132 (6th Cir. 2014) (citations omitted). “A mere scintilla of evidence by the nonmoving party is insufficient to defeat summary judgment; ‘there must be evidence on which the jury could reasonably find for the [nonmoving party].'” St. Clair Marine Salvage, Inc. v. Bulgarelli, 796 F.3d 569, 574 n.2 (6th Cir. 2015) (alteration in original) (quoting Anderson, 477 U.S. at 252). If the evidence offered by the nonmoving party is “merely colorable, ” “not significantly probative, ” or not enough to lead a fair-minded jury to find for the nonmoving party, the motion for summary judgment may be granted. Anderson, 477 U.S. at 249-52.

         III. Analysis

         Defendants argue that they are entitled to summary judgment for two reasons. First, they assert immunity from Marble's claims under the Eleventh Amendment. (Doc. No. 98, PageID# 837.) Second, they argue that, even if they are subject to liability, Marble cannot support the claims of disability discrimination that he alleges. (Id. at PageID# 839-44.) Because the Court finds that no genuine issue of material fact exists in the record that Marble experienced discrimination on the basis of his disability, the Court addresses Defendants' sovereign immunity argument only briefly.

         The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . .” U.S. Const. amend. XI. “The desire to protect the solvency and dignity of the states motivates the doctrine of Eleventh Amendment sovereign immunity.” Lowe v. Hamilton Cty. Dep't of Job & Family Servs., 610 F.3d 321, 324 (6th Cir. 2010) (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 52 (1994)). An entity that is considered an “arm of the state, ” like DCS, may also invoke a sovereign immunity defense. See Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005) (citing S.J. v. Hamilton Cty., 374 F.3d 416, 420 (6th Cir. 2004)); Harness v. Tenn. Dep't of Children's Servs., No. 3:09-CV-15, 2009 WL 2601840, at *2-3 (E.D. Tenn. Aug. 24, 2009).

         A. Sovereign Immunity

         Congress can abrogate state sovereign immunity “pursuant to the enforcement provisions of § 5 of the Fourteenth Amendment when Congress both ‘unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority.'” Babcock v. Michigan, 812 F.3d 531, 534 (6th Cir. 2016) (alteration in original) (quoting Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)). Although Congress has expressed an unequivocal desire to abrogate the Eleventh Amendment for violations of the ADA via its Fourteenth Amendment authority, see 42 U.S.C. §§ 12101(b)(4), 12202, whether sovereign immunity is abrogated in a particular action is determined by looking to “the nature of the ADA claim” alleged. Babcock, 812 F.3d at 534 (collecting cases).

         If a plaintiff alleges “conduct that actually violates the Fourteenth amendment, Title II validly abrogates state sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in original). In assessing whether a given claim under Title II of the ADA can overcome sovereign immunity, courts must determine: “(1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” Id. Because the Court finds that no genuine issue of material fact exists as to Marble's claim that Defendants violated Title II, the Court does not engage in the constitutional analysis. See Babcock, 812 F.3d at 539 (explaining that, without having “identif[ied] ADA-violating conduct, [the Sixth Circuit could not] hold that Congress abrogated the states' sovereign immunity by a valid exercise of its power under § 5 of the Fourteenth Amendment”).

         B. Disability Discrimination Under the ADA and Section 504

         Invoking its power “to enforce the fourteenth amendment and to regulate commerce, ” Congress passed the ADA with the aim of protecting people with disabilities from discrimination in three “major areas:” employment (Title I); public services, programs, and activities (Title II); and public accommodations (Title III). 42 U.S.C. §§ 12101(b)(4), 12111-17, 12131-34, 12181- 89. Title II provides that:

no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C.A. § 12132. A “qualified individual with a disability” is one who, “with or without reasonable modifications to rules, policies, or practices, . . . or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. § 12131(2). The term “public entity” extends to “any state or local government” and also “any department, agency, . . . or other instrumentality of a State or . . . local government.” Id. § 12131(1)(A)-(B).

         Title II represents an expansion of Section 504, which reaches only discrimination in programs or activities that receive federal financial aid. Section 504 provides that:

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a). “Apart from [Section 504's] limitation to denials of benefits ‘solely' by reason of disability and its reach of only federally funded-as opposed to ‘public'-entities, the reach and requirements of both statutes are precisely the same.” S.S. v. E. Ky. Univ., 532 F.3d 445, 452- 53 (6th Cir. 2008) (quoting Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 n.6 (2d Cir. 2002)). That parity extends to enforcement as well-Title II incorporates “[t]he remedies, procedures, and rights set forth in section 794a [of the Rehabilitation Act] . . . .” 42 U.S.C. § 12133. Title II and Section 504 generally recognize three types of discrimination claims: “(1) the defendant intentionally discriminated on the basis of the disability, (2) the defendant refused to provide a reasonable modification, [2] or (3) the defendant's rule disproportionally impacts disabled people.” Washington v. Ind. High Sch. Athletic Ass'n, Inc., 181 F.3d 840, 847 (7th Cir. 1999) (citing McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453 (6th Cir. 1997)).

         In his response in opposition to Defendants' motion for summary judgment, Marble distills his claims as follows:

(1) DCS failed to do an individualized assessment of Marble's needs and limitations as a parent in violation of [the] ADA; (2) DCS refused to consider Marble's extended family and their willingness to do whatever was necessary to help; (3) DCS refused to transfer H.S. to Marble's aunt and uncle which would have maintained the integrity of the family; and (4) DCS intentionally imposed requirements on Marble that were beyond his capabilities allowing them to pursue termination.

(Doc. No. 99, PageID# 1013.)[3]

         Marble does not directly identify his claims as charging intentional discrimination on the basis of disability or a failure to reasonably accommodate his disabilities, and his arguments and those made by Defendants weave between both theories of liability. The Court will therefore address Marble's claims under both theories as well.

         1. Intentional Discrimination

         To establish “intentional discrimination under Title II of the ADA, [Marble] must show that: (1) [he] has a disability; (2) [he] is otherwise qualified; and (3) [he] was being excluded from participation in, denied the benefits of, or subjected to discrimination under the program because of [his] disability.” Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015). Discrimination occurs “because of” a plaintiff's disability when there is “sufficiently ‘significant' evidence” that “animus toward the disabled” motivated the protested behavior. Gohl v. Livonia Pub. Sch. Sch. Dist., 836 F.3d 672, 682 (6th Cir. 2016) (quoting Anderson, 798 F.3d at 357). “The Rehabilitation Act sets the higher bar, requiring plaintiffs to show that the defendant's acts were done ‘solely by reason ...


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