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Turner v. Lowen

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

October 1, 2019

KEISHA TURNER and ROY CHRISTOPHER TURNER, individually and as next friends of RBT and CT, Plaintiffs,
v.
DEBORAH LOWEN, M.D., VANDERBILT UNIVERSITY MEDICAL CENTER, CHRISTY DUNCAN, and TONYA SCOTT, Defendants.

          MEMORANDUM OPINION

          ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendants Deborah Lowen, M.D. and Vanderbilt University Medical Center's Motion to Dismiss (Doc. No. 58), supported by an accompanying brief (Doc. No. 59). Also pending before the Court is Defendants Tonya Scott and Christy Duncan's Motion to Dismiss (Doc. No. 53), supported by an accompanying brief (Doc. No. 54). Plaintiffs Keisha Turner and Roy Christopher Turner, individually and as next friends of RBT and CT (collectively “Plaintiffs”) filed responses to the motions to dismiss (Doc. Nos. 65, 66), and Defendants have in turn replied (Doc. Nos. 68, 71). For the below-stated reasons, the motions will be GRANTED.

         ALLEGED FACTS[1]

         In 2014, Plaintiffs Keisha and Roy Christopher Turner's son, RBT, was born. (Doc. No. 52 at ¶ 6). On December 11, 2014, Ms. Turner noticed swelling in RBT's left leg and transported him to Cumberland Hospital's Emergency Department for evaluation. (Id. at ¶ 8). At Cumberland, medical staff examined RBT and obtained x-rays of his legs and torso. (Id.). Cumberland discharged RBT and instructed Ms. Turner to follow up with RBT's pediatrician the following day. (Id.). On December 12, 2014, Ms. Turner took RBT to his pediatrician's office and Nurse Practitioner Kristin Hassler examined him. (Id.). Ms. Hassler informed Ms. Turner that RBT had multiple rib fractures. (Id.). Ms. Hassler instructed Ms. Turner to go to the sheriff's office and provided Ms. Turner a note to give to the Tennessee Department of Children's Services (“DCS”) which requested that RBT be taken to East Tennessee Children's Hospital. (Id.).

         That same day, Mr. and Ms. Turner went to the Cumberland Sheriff's Office where Investigator Chad Norris, Investigator David Moore, and DCS worker Ivan Hawn interviewed them regarding RBT's injuries. (Id. at ¶¶ 8-9). During the interview, Mr. Hawn instructed Mr. and Ms. Turner to take RBT to Defendant Vanderbilt University Medical Center (“VUMC”), which was a 2.5 hour drive away, despite Ms. Turner's request that RBT return to East Tennessee Children's Hospital. (Id. at ¶ 10). That evening, Mr. and Ms. Turner traveled to Nashville, Tennessee, and VUMC admitted RBT. (Id. at ¶ 11).

         On December 13, 2014, Defendant Deborah Lowen, M.D. (“Dr. Lowen”) met with Mr. and Ms. Turner separately to discuss the cause of RBT's injuries. (Id. at ¶ 12). Dr. Lowen did not inform Mr. and Ms. Turner that they did not have to speak to her, that they should seek counsel, or that the potential outcome of this event would be the emergency removal of RBT from his parents' care and control. (Id.). Dr. Lowen charted in her consultation note that she met with both parents separately at the hospital to discern the potential cause of RBT's injuries “in order to obtain a detailed history on the course of events[.]” (Id. at ¶ 14). She also charted that her “team” was contacted directly by DCS worker Hawn due to an identification of a left leg fracture and multiple rib fractures. (Id. at ¶ 13).

         Dr. Lowen also remarked in her consultation note that she had reviewed East Tennessee Children's Hospital's discharge summary that indicated RBT had a vitamin D deficiency, but that that deficiency did not explain RBT's multiple fractures of multiple different sites. (Id. at ¶ 15). She further opined in her consultation note that “it is apparent that [RBT] has been a victim of child physical abuse (non-accidental trauma) occurring on more than 1 occasion and affecting multiple different bones. . . . He needs to be protected from further harm.” (Id. at ¶ 16). Dr. Lowen informed DCS worker Hawn that RBT had multiple rib fractures, fractures in both legs, and a fracture in his shoulder blade that could not be explained by RBT's medical and family history. (Id. at ¶ 18). She also informed Hawn that Mr. and Mrs. Turner did not provide a history of trauma to explain any of the fractures and that the injuries were caused by repeated episodes of trauma. (Id.).

         Hawn determined that the legal threshold for abuse was satisfied by Dr. Lowen's medical diagnosis. (Id.). Shortly thereafter, a court found probable cause of abuse and entered an ex parte protective custody order granting DCS custody of RBT. (Id. at ¶ 19). The court faxed its order to VUMC, which prevented the Turners from leaving VUMC with RBT. (Id.). DCS placed RBT in the care of his paternal grandfather, Roy Turner. (Id. at ¶ 21). DCS granted Mr. and Ms. Turner limited visitation of RBT. (Id.). Defendant Christy Duncan, a DCS employee, became the case manager in control of the care and placement of RBT. (Id. at ¶ 22). On January 21, 2015, the Turners asked Duncan whether DCS would test RBT for brittle bones and Duncan informed them that DCS would not perform further testing. (Id. at ¶ 23). On February 25, 2015, Duncan administratively substantiated that RBT was physically abused and that Ms. Turner was the perpetrator. (Id. at ¶ 24).

         The Turners fought the juvenile court's custody determination and as part of that litigation, Dr. Lowen stated in her deposition that she had “no doubt” that RBT had suffered from child abuse, which resulted in the multiple fractures that he presented with at VUMC in December 2014. (Id. at ¶ 19). She also testified that VUMC's “child abuse team” was not funded by the state in any way but admitted that she had a contract with the state to review near fatalities, and label them as near fatalities or not for the state's child death review process. (Id. at ¶ 28).

         Ms. Turner gave birth to another son, Plaintiff CT, on September 4, 2015. (Id. at ¶ 29). On September 8, 2015, DCS investigator Tonya Scott filed a petition asking for a determination of abuse and neglect of CT based on Dr. Lowen's deposition testimony in May 2015 concerning injuries of CT's brother, RBT. (Id.). DCS obtained custody of CT and placed him in the care of his paternal grandfather, Roy Turner. (Id.). Mr. and Ms. Turner continued to fight the determination of DCS for over two years and on August 4, 2017, a court returned full custody of RBT and CT to the Turners. (Id. at ¶¶ 39-40). At the final hearing, the judge explained that there are very serious medical conditions that can mimic child abuse and exonerated the Turners of all allegations of abuse. (Id. at ¶ 40).

         On August 3, 2018, Mr. and Ms. Turner, individually and on behalf of RBT and CT, brought this action against VUMC, Dr. Lowen, and DCS employees Scott and Duncan (collectively “Defendants”). (Doc. No. 1). Plaintiffs filed a First Amended Complaint on December 6, 2018. (Doc. No. 52). Dr. Lowen and VUMC, as well as Scott and Duncan, have filed motions to dismiss. (Doc. Nos. 53, 58). Plaintiffs have responded, (Doc. Nos. 65, 66), and Defendants have replied (Doc. Nos. 68, 71). Therefore, this matter is ripe for adjudication.

         LEGAL STANDARD

         For purposes of a motion to dismiss, the Court must take all of the factual allegations in the complaint as true as the Court has done above. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. A legal conclusion, including one couched as a factual allegation, need not be accepted as true on a motion to dismiss, nor are mere recitations of the elements of a cause of action sufficient. Id. at 678; Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010); Abriq v. Hall, 295 F.Supp.3d 874, 877 (M.D. Tenn. 2018). Moreover, factual allegations that are merely consistent with the defendant's liability do not satisfy the claimant's burden, as mere consistency does not establish plausibility of entitlement to relief even if it supports the possibility of relief. Iqbal, 556 U.S. at 678.

         In determining whether a complaint is sufficient under the standards of Iqbal and its predecessor and complementary case, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), it may be appropriate to “begin [the] analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. Identifying and setting aside such allegations is crucial, because they simply do not count toward the plaintiff's goal of showing plausibility of entitlement to relief. As suggested above, such allegations include “bare assertions, ” formulaic recitation of the elements, and “conclusory” or “bald” allegations. Id. at 681. The question is whether the remaining allegations - factual allegations, i.e., allegations of factual matter-plausibly suggest an entitlement to relief. Id. If not, the pleading fails to meet the standard of Fed.R.Civ.P. 8 and thus must be dismissed pursuant to Rule 12(b)(6). Id. at 683.

         ANALYSIS

         I. Plaintiffs' Cause of Action

         Under a single heading labeled “Cause of Action”, Plaintiffs contend that they have alleged “sufficient facts to show that the[ir] Fourth and Fourteenth Amendment rights were violated by the Defendants and they are entitled to damages under 42 U.S.C. § 1983.” (Doc. No. 52 at ¶ 56). Specifically, Plaintiffs allege that

[t]he minor children, RBT and CT were wrongfully seized and removed from their parents in violation of their Fourth and Fourteenth Amendment rights due to the negligent investigation and withholding of exculpatory evidence by Dr. Lowen and Tonya Scott which would negate probable cause of child abuse. Christy Duncan willfully violated the rights of the children by foreclosing other medical examinations of the children and by withholding from the [juvenile court] exculpatory medical information which would negate probable cause, thus causing the children to be removed for over two years.

(Id. at ¶ 57). With respect to Mr. and Ms. Turner's claims, Plaintiffs allege that

[t]he parents were wrongfully arrested (loss of their liberty interest to parent their children) and maliciously prosecuted due to the negligent investigation of Dr. Lowen and Tonya Scott in the concealment of medical information which would negate probable cause of child abuse. Christy Duncan willfully violated the rights of the parents by foreclosing other medical examination of the children and by failing to inform the [juvenile court] of medical information which would negate probable cause, thus causing the parents to suffer under wrongful prosecution for two years.

(Id. at ¶ 58). Plaintiffs describe the actions of each Defendant as follows:

60. As to Dr. Deborah Lowen: The plaintiffs would show that Dr. Lowen placed herself in an investigatory role and conducted a negligent investigation directly causing the wrongful seizure of the children (Fourth Amendment) and the loss of the constitutional right of family integrity (Fourteenth Amendment) for the parents, RBT, and CT; and the malicious prosecution of the parents. Dr. Lowen postured herself to present her “medical diagnosis” as a legal conclusion in proffering it to DCS as reason for removal of RBT and CT from the care and control of their parents. Lowen intentionally withheld information related to possible medical conditions that could mimic child abuse by manifesting with the same or similar injuries to the child. Either Lowen acted independently and concealed this information from DCS, or Lowen acted in concert with DCS employees to conceal this exculpatory information from the [juvenile court] in the petition prior to the [juvenile court] making a probable cause determination which lead to the removal of RBT and CT. Lowen is a state actor.
61. As to Vanderbilt University Medical Center: Vanderbilt has placed itself in such a symbiotic role with DCS that they have become an extension of DCS for the purposes of investigation of child abuse using Dr. Deborah Lowen. The financial relationship between DCS and Vanderbilt shows that Vanderbilt stands to profit from its relationship with DCS in its multiple roles and engaging in conduct which mimics a “child abuse investigation” eases the burden of DCS. Vanderbilt is a state actor and is liable for the actions of Lowen. The practices and policies of Vanderbilt are the moving force behind the role taken by Lowen to act as investigator and impugn parents for child abuse without disclosing other mimics of child abuse before the [juvenile court] makes a probable cause determination to remove the child.
62. As to DCS investigator Tonya Scott: Scott relied solely on the medical opinion of Lowen regarding RBT to remove CT from the care and control of his parents without providing the [juvenile court] with the exculpatory evidence that RBT's bone abnormalities could have been cause by metabolic bone disorder. Scott withheld from the [juvenile court] information that medical opinions differ on the etiology of this type of fractures.
63. As to DCS worker Christy Duncan: Duncan relied solely on the medical opinion of Lowen regarding RBT to substantiate abuse against the Mother and to retain the child in the care and custody of DCS (removed from their parents) even after she had received credible information that RBT's bone abnormalities could have been caused by metabolic bone disease and not abuse. Duncan received credible information through the course of the case and failed to include those findings in her investigation or inform the [juvenile court] that DCS had limited its opinion to the one medical provider with whom DCS had a financial partnership.

(Id. at ¶¶ 60-63). Plaintiffs aver that “[d]ue to the [above-described] actions of Lowen, Duncan, and Scott individually and collectively the [sic] acted to violate the constitutional rights of the plaintiffs.” (Id. at ¶ 64).

         II. Duncan and Scott are Absolutely Immune from Suit

         Duncan and Scott assert that they are shielded from Plaintiffs' claims by absolute immunity because Duncan and Scott's alleged actions were taken in their prosecutorial capacity. Case workers and social workers are entitled to absolute immunity from § 1983 claims, “‘akin to the scope of absolute prosecutorial immunity,' for conduct ‘intimately associated with the judicial phase of the criminal process.'” Brent v. Wayne Cnty. Dep't of Human Servs., 901 F.3d 656, 683-84 (6th Cir. 2018) (quoting Pittman v. Cuyahoga Cnty. Dep't of Children & Family Servs., 640 F.3d 716, 724 (6th Cir. 2011)). In other words, “social workers are absolutely immune only when they are acting in their capacity as legal advocates-initiating court actions or testifying under oath-not when they are performing administrative, investigative, or other functions.” Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000) (en banc). “The doctrine of absolute immunity applies even if social workers make knowingly false statements in the petition for a removal order and while advocating before the court.” Brent, 901 F.3d at 684 (citing Pittman, 640 F.3d at 725-26). The party seeking absolute immunity has the burden of demonstrating that the immunity is justified for the function being challenged. Bauch v. Richland Cnty. Children Servs., 773 Fed.Appx. 292, 295 (6th Cir. 2018).

         The Sixth Circuit has held on multiple occasions “that the submission of an affidavit that triggers judicial child-removal proceedings is in fact an act of legal advocacy by social workers.” Bauch, 773 Fed.Appx. at 296 (citing Barber v. Miller, 809 F.3d 840, 843 (6th Cir. 2015)). In Barber, a father alleged that a social worker included falsehoods and misrepresentations in a petition for protective custody in order to obtain an ex parte order for immediate removal of his child. 809 F.3d at 843. The Sixth Circuit held that the social worker was entitled to absolute immunity against those allegations because the social worker “offered his factual assessment in his capacity as a legal advocate initiating a child-custody proceeding in family court.” Id. at 843-44. The court explained that that “[a] social worker acts as a legal advocate when initiating court proceedings, filing child-abuse complaints, and testifying under oath, ” and that “this absolute immunity holds, even under allegations that the social worker intentionally misrepresented facts to the family court.” Id. at 844; see also Schattilly v. Daugharty, 656 Fed.Appx. 123, 135 (6th Cir. 2016) (“[Absolute] immunity includes social workers' statements in complaints or affidavits that they submit to courts-even if the statements are false or misleading.” (citing Pittman, 640 F.3d at 724- 25)).

         All of the allegations present in the First Amended Complaint pertaining to Scott's conduct involve representations (or rather, the alleged lack of representations of “exculpatory” medical information) made to the juvenile court in initiating the ex parte removal of CT. (See Doc. No. 52 at ¶¶ 29, 62). Like the social worker in Barber, Scott acted as a legal advocate when initiating the removal proceedings of CT. Thus, absolute immunity protects Scott's actions taken in her effort to initiate child-removal proceedings of CT.

         Plaintiffs argue that Scott is not entitled to enjoy absolute immunity because “Scott withheld exculpatory evidence as the complaining witness when she sought to remove [] CT from his parents[.]” (Doc. No. 65 at 17). Plaintiffs cite Young v. Vega, 574 Fed.Appx. 684 (6th Cir. 2014) for the proposition that social works are not entitled to absolute immunity for their role as a complaining witness. (Id.). Although Young does stand for this proposition, the Sixth Circuit recently explained that Young is no longer good law.

True, we once held that a social worker could not receive absolute immunity for “the act of personally vouching for the truth of the facts that provide the evidentiary support for [the family court's] finding of probable cause.” Young v. Vega, 574 Fed.Appx. 684, 689 (6th Cir. 2014). Young, however, is unpublished and non-binding, and our later published precedent overrides Young's holding. . . . Because a petition for a removal order triggers a subsequent hearing in court, [] a social worker's actions as a complaining witness are “more analogous to a prosecutor's decision to prosecute than a police officer's testifying by affidavit in support of probable cause.” Bauch v. Richland Cty. Children Servs., 733 Fed.Appx. 292, 297 (6th Cir. ...

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