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Paul Leslie Emerson, On Behalf of G.E. and K.E v. Constance Cleveland

March 22, 2011


The opinion of the court was delivered by: Ralph R. Erickson, Chief Judge United States District Court



Before the Court is Defendant Cynthia Kesler's motion to dismiss (Doc. #69) and Defendants Constance Cleveland and Marlene Sorum's motion for summary judgment (Doc. #87). Plaintiff Paul Emerson has also filed a motion for an extension of time to file motions to amend the pleadings (Doc. #74); a motion to amend the pleadings to add/clarify claims (Doc. #75); and a motion to amend the pleadings to rejoin previously dismissed defendants (Doc. #76). The Court, having carefully considered the briefs filed by the parties, now issues this memorandum opinion and order.


The State of North Dakota has not waived Eleventh Amendment immunity from official-capacity damages claims in federal court for alleged violations based on civil rights statutes. Emerson's official capacity claims against Constance Cleveland, assistant state's attorney for Cass County, Marlene Sorum, licensed social worker for Cass County, and Cynthia Kesler, lay guardian ad litem appointed in state court, are to be construed as claims against the state entities for which they are an agent, and are thus barred by the Eleventh Amendment. In addition, the claims fail because Emerson has failed to state a plausible claim for relief.

At all times referenced in the complaint, Cynthia Kesler was acting in the scope of employment as a lay guardian ad litem. State officials are entitled to absolute immunity for the performance of duties that are integral parts of the judicial process. Serving as a guardian ad litem is an integral part of the judicial process and thus all claims against Kesler in her individual capacity are barred by the doctrine of absolute immunity. Dornheim v. Sholes, 430 F.3d 919, 925 (8th Cir. 2005).

The claims against Constance Cleveland in her individual capacity occurred while she was carrying out her duties as prosecutor and are thus barred by the doctrine of absolute prosecutorial immunity. Myers v. Morris, 810 F.2d 1437, 1446 (8th Cir. 1987), abrogated on other grounds, Burns v. Reed, 500 U.S. 478 (1991). Any individual capacity claims against Marlene Sorum arising out of her testimony as a witness in the underlying child protection proceedings are barred by absolute witness immunity. Dornheim, 430 F.3d at 925. To the extent Emerson's claims pertain to other conduct by Sorum, Sorum is entitled to qualified immunity because Emerson has failed to present any evidence that his limited constitutional right to parent his children was outweighed by the significant and compelling governmental interest in protecting the children. Lux by Lux v. Hansen, 886 F.2d 1064, 1066-67 (8th Cir. 1989).

Emerson's motions to rejoin previously dismissed defendants, to add or clarify claims, and for an extension of time to file motions to amend pleadings are DENIED. After reviewing the additional proposed claims, allowing the requested amendments would be futile.


Plaintiff Paul Emerson is the biological father of two minor children, G.E. and K.E. He alleges that from August 1, 2006 until December 14, 2008, the defendants violated his and the children's constitutional right of equal protection. During this time period, the children were in the custody of Cass County Social Services. Also, during this time, the state court terminated Emerson's parental rights and then later restored them. Following restoration of his parental rights, Emerson was awarded custody of G.E. and K.E.

Applying a liberal reading to all of the pleadings filed by Emerson, Emerson alleges Constance Cleveland, an assistant Cass County state's attorney, and Marlene Sorum, a licensed social worker for Cass County, acted contrary to state law when they advocated placing the children in shelter care, improperly sought to have Emerson's parental rights terminated, and otherwise interfered with Emerson's parental rights and right to family reunification. He further alleges that Cynthia Kesler, lay guardian ad litem, failed to act in the best interests of the children, prepared a factually inaccurate report, and acted with complicity in interfering with his parental rights during the proceedings to place the children in shelter care and to terminate his parental rights. Defendants seek dismissal of the claims against them on grounds of immunity and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.


Emerson filed this lawsuit alleging claims under 42 U.S.C. §§ 1983, 1985, and 1986. He contends the defendants violated his and the minor children's constitutional right to equal protection when they failed to comply with state law and/or state agency rules and procedures during the child protection proceedings. Emerson does not allege he or his children are a member of a protected class or that they were treated differently than other similarly situated persons. Rather, after reading all of his pleadings, Emerson's equal protection claim is in the form of an alleged deprivation of his right to parent his children. In light of the inartful pleading and Emerson's possible confusion of legal terms, the Court will analyze Emerson's equal protection claim under the Fourteenth Amendment and in the context of a due process right to parent his children.

I. Defendant Cynthia Kesler's Motion to Dismiss (Doc. #69)

A. Applicable Standard

Rule 8(a)(2), Fed. R. Civ. P., requires only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." This short and plain statement must provide the defendant with fair notice of the plaintiff's claim and the grounds upon which it rests. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). When determining whether a complaint states a claim, the court should construe the complaint liberally, in the light most favorable to the plaintiff. Eckert, 514 F.3d at 806. A court must accept all factual allegations in the complaint as true, and every reasonable inference is granted in favor of the plaintiff. McAuley v. Fed. Ins. Co., 500 F.3d 784, 787 (8th Cir. 2007); Knieriem v. Group Health Plan, Inc., 434 F.3d 1058, 1060 (8th Cir. 2006).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff's complaint need not contain detailed factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, assuming the factual allegations in the complaint are true, those factual allegations "must be enough to raise a right to relief above the speculative level." Id.; see also Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusion, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555 (citation omitted); see also Eckert, 514 F.3d at 806. A complaint must contain enough facts to "state a claim to relief that is plausible on its face." Aschroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Twombly, 550 U.S. at 570.

"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S. Ct. at 1949.

Dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity. Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir. 2006). Determining whether a complaint states a plausible claim for relief and therefore survives a motion to dismiss is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. 1937');">129 S. Ct. 1937, 1950.

B. Emerson's Claims against Cynthia Kesler

Defendant Cynthia Kesler moves to dismiss the claims against her on the grounds the complaint fails to state a claim for relief and even if there was a cognizable claim, she is entitled to absolute immunity. Emerson's first complaint does not specify whether he is suing Kesler in her individual or official capacity. On May 11, 2010, the Court ordered that all pleadings containing the full names of the minor children be sealed (Doc. #53). The Court directed the parties to submit redacted documents, identifying the minor children by initials only. Id.

On May 27, 2010, Emerson submitted for filing another complaint entitled "Initial Complaint." (Doc. #61). The Clerk filed the complaint as a redacted complaint. However, Emerson redacted the children's full name and also amended the complaint to add a sentence in Section III asserting his claims against the defendants are "in both their official and individual capacities." Id. at p. 1. Emerson, by submitting for filing an amended complaint under the guise of a redacted complaint, clearly violated the rules governing amendment of pleadings. However, Kesler did not object to the amendment and in light of ...

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