United States District Court, M.D. Tennessee, Nashville Division
ALISTAIR E. NEWBERN, UNITED STATES MAGISTRATE JUDGE.
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.
Factual History and State Court
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.
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).
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.
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.)
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
“[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.
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
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.)
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).
case was transferred to the Magistrate Judge's
jurisdiction by consent of the parties on January 11, 2018.
(Doc. No. 127.)
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
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
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
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).
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).
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”).
Disability Discrimination Under the ADA and Section
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
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.
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,  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)).
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.)
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.
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 ...