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Kerby v. Sheridan

United States District Court, D. Oregon, Portland Division

March 5, 2015

RANDELL KERBY and CHERYL KERBY, in her individual capacity and on behalf of her minor children, J.R.K. (1) and J.R.K. (2), Plaintiffs,
RHIANA SHERIDAN, in her individual and official Capacity; JOHN TRUMBO, in his individual and Official capacity; UMATILLA COUNTY, and Oregon Municipality; JANELLE HINES, in her individual and official capacity; GAY DAVIS, in her individual and official capacity; HEALTHER SUING-HORNING, in her individual and official capacity; and KATHRYN HANSEN, in her individual and official capacity, Defendants.


MICHAEL W. MOSMAN, District Judge.

Plaintiffs Randell Kerby and Cheryl Kerby, both in her individual capacity and on behalf of her minor children J.R.K. (1) and J.R.K. (2), bring this action against Defendant Gay Davis under 42 U.S.C. ยง 1983. Plaintiffs allege that Ms. Davis, an Oregon Department of Human Services ("DHS") employee, violated their constitutional right to familial integrity. Plaintiffs move for partial summary judgment against Defendant Davis [168]. I deny Plaintiff's motion. There are still genuine issues of material fact concerning whether or not Ms. Davis's actions were warranted and whether she is entitled to qualified immunity.


In January of 2011, one of Plaintiffs' adoptive daughters, J.S.K., alleged that Mr. Kerby had sexually abused her. This disclosure was reported to DHS and was investigated by both DHS and the Umatilla County Sheriff's Office. As part of this process, a Protective Action, also referred to as a "safety plan, " was put into place. As part of this plan, Mr. Kerby "agreed to remain out of the home until further interviews can be conducted." (Holm Dec. [170] Ex. 1.)

On March 16, 2011, a hearing was held in Umatilla County Circuit Court concerning the safety of J.S.K. During this hearing, J.S.K. was made a ward of the court and committed to the legal custody of DHS. In the court's "Jurisdiction & Disposition Judgment, " Judge Pahl checked a box approving the "case plan and the date of achievement, " to return J.S.K. to her parents by March 16, 2012. (Holm Dec. [170] Ex. 5 at 4.)

Also on March 16, 2011, a Child Safety Meeting was held at DHS, which Plaintiffs and their attorneys attended. As a result of this meeting an "Ongoing Safety Plan" was created. The Ongoing Safety Plan, which was signed by Ms. Kerby and Ms. Davis, contained a requirement that the living environment be free of dangerous persons and activities. It also included a reference to the (then) pending criminal accusations against Mr. Kerby, indicating DHS likely considered him a "dangerous person." (Van Meter Dec. [131] Ex. C at 25-27.)

On March 17, 2011, DHS issued Mr. Kerby a Notice of Child Protective Services Disposition and Right of Review, commonly referred to as a "Founded Disposition." In the Disposition, Mr. Kerby was notified that DHS had considered the evidence and determined he was responsible for the sexual abuse and exploitation of J.S.K. Mr. Kerby was also advised that "he cannot have contact with minor children until he mitigates the safety concern, regardless of the criminal outcome." Because the Founded Disposition was essentially an administrative adjudication against him, the notice letter also informed Mr. Kerby of his right to review. (Holm Dec. [170] Ex. 6.)

On August 22, 2011, DHS created a "Child Welfare Case Plan, " which also stated that Mr. Kerby "cannot have contact with minor children" and that he must "successfully complete sex offender treatment." (Van Meter Dec. [131] Ex. C, pp. 28-46, 35.)

Throughout this time, Mr. Kerby's criminal case was also progressing. Mr. Kerby maintained his innocence. On September 29, 2011, a jury acquitted Mr. Kerby of the sexual abuse charges concerning J.S.K. Just a few minutes later, in the courthouse parking lot, Ms. Davis confronted Mr. Kerby. The parties dispute the exact terms of the conversation, but it is generally alleged that Defendant Davis told Mr. Kerby that despite the acquittal, he could not return home to his two adopted children until he completed a psycho-sexual evaluation.

The Kerbys allege that Ms. Davis's conduct violated their fundamental right to family integrity which is protected by the Due Process Clause of the Fourteenth Amendment. Now, on summary judgment, they argue that no reasonable jury could find otherwise. They argue that Ms. Davis has no defense to her liability, because no reasonable social worker could have believed a court order was in place that prevented Mr. Kerby from returning home to his family. Additionally, the Kerbys argue that no reasonable social worker could have believed that such action was necessary to avert imminent danger of serious injury.

Ms. Davis disputes these arguments, first claiming that the proper standard to review a claim for violation of substantive due process is whether the conduct "shocks the conscience" of the Court. She argues that even if the court does find that a right protected by substantive due process exists in this case, these protections do not extend to those parents who are not deemed "fit." Additionally, Ms. Davis argues her actions were rationally related to the compelling state interest in protecting the children and therefore not conscience shocking. Finally, Ms. Davis asserts that summary judgment is not proper since she is entitled to qualified immunity. Ms. Davis contends that she reasonably believed she was acting pursuant to a "court ordered safety plan, " which she understood to prohibit Mr. Kerby from having contact with his minor children.


The court shall grant summary judgment 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). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

"The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial.'" Id. at 256. The moving party may carry its initial burden on summary judgment by "showing" that the opposing party lacks sufficient evidence to carry its ultimate burden of persuasion at trial. FRCP 56(c)(1)(B); Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986). "The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Id.

In evaluating a motion for summary judgment, a court "must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence." Reeves v. ...

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