United States District Court, M.D. Tennessee, Nashville Division
KEISHA TURNER and ROY CHRISTOPHER TURNER, individually and as next friends of RBT and CT, Plaintiffs,
DEBORAH LOWEN, M.D., VANDERBILT UNIVERSITY MEDICAL CENTER, CHRISTY DUNCAN, and TONYA SCOTT, Defendants.
RICHARDSON, UNITED STATES DISTRICT JUDGE
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.
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.).
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).
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).
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.).
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).
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).
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).
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
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.
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.
Plaintiffs' Cause of Action
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
(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
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).
Duncan and Scott are Absolutely Immune from Suit
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).
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)).
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.
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.