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Sims v. Ross

United States District Court, W.D. Louisiana, Lake Charles Division

April 25, 2019

GARY SIMS
v.
MELINDA ROSS, ET AL.

          REPORT AND RECOMMENDATION

          KAY, MAGISTRATE JUDGE

         Before the court is a Motion for Summary Judgment [doc. 44] filed by defendants Ann Ellender, Nick Pizzolatto, Melissa Ross, and Dawn Sahula. The motion, which relates to the pro se civil rights complaint filed by plaintiff Gary Sims, is unopposed. It has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636.

         I.

         Background

         This action arises from a complaint and amendment thereto [docs. 1, 12] filed in this court by Sims and relating to the defendants' handling of a child welfare matter involving his minor daughter, S.S.[1] Sims alleges that various defendants, in their capacity as employees of the Louisiana Department of Children and Family Services (“DCFS”), violated his constitutional rights by effecting a biased investigation against him regarding allegations that he had sexually abused his daughter and by interfering in state court proceedings filed by Sims against S.S.'s mother to prevent Sims from being awarded custody of S.S. Doc. 12.

         The state court judgments at issue are a child in need of care (“CINC”) and custody proceedings relating to S.S. The record shows that CINC proceedings relating to S.S. were opened through a petition filed on February 26, 2014, after DCFS received and investigated a report that Sims had sexually abused S.S. Doc. 45, pp. 2-3. S.S. was removed to DCFS foster care in February 2014. Id. at 3, 15-16. She remained there until October 1, 2014, when the state district court judge decreed that custody of S.S. be awarded to the child's mother, J.P.W., subject to supervised visitation for Sims. Doc. 45, att. 1, p. 95.

         Sims filed a petition for custody in the state court on or about January 5, 2015. See doc. 45, att. 3, pp. 132-33. From April 2015 to February 2016, Sims also continued to file post-judgment motions in his CINC proceeding. Id. at 3-4. After Sims failed to appear at a hearing in the CINC case on April 28, 2016, the state court dismissed the pending motions. Id. at 130-31. Following a trial in the custody proceeding, the state district court awarded sole custody of S.S. to J.P.W., with conditional visitation to Sims, by judgment dated November 9, 2016. Id. at 132-37.

         Sims filed suit in this court on October 1, 2015. Doc. 1. He seeks monetary damages and other relief under 42 U.S.C. § 1983. The remaining defendants now move for summary judgment, arguing that (1) various claims have prescribed; (2) all defendants are entitled to immunity; (3) the court should abstain from hearing Sims's claims under the Rooker-Feldman doctrine, the domestic relations exception, and the Younger abstention doctrine; and (4) Sims's claims fail on the merits because he cannot show a constitutional violation on the part of the defendants. Doc. 44, att. 2. Sims has not filed a response to the defendants' motion and his time for doing so has passed.[2] See docs. 46, 47. Accordingly, the motion is regarded as unopposed. The defendants' statement of uncontested material facts [doc. 44, att. 3] is deemed admitted under Local Rule 56.2.

         II.

         LAW & APPLICATION

         A. Summary Judgment Standard

         A court should grant a motion for summary judgment when 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. The party moving for summary judgment is initially responsible for identifying portions of pleadings and discovery that show the lack of a genuine issue of material fact. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny the motion for summary judgment if the movant fails to meet this burden. Id.

         If the movant makes this showing, however, the burden then shifts to the non-moving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986) (quotations omitted). This requires more than mere allegations or denials of the adverse party's pleadings. Instead, the nonmovant must submit “significant probative evidence” in support of his claim. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 106 S.Ct. at 2511 (citations omitted).

         A court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc.,120 S.Ct. 2097, 2110 (2000). The court is also required to view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material fact exists if a reasonable trier of fact could render a verdict for the nonmoving party. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Finally, “[a] motion for summary judgment cannot be granted simply because there is no opposition, even if failure to oppose violated a local rule, ” and the movant still has the burden of establishing the absence of a genuine issue of material fact. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 (5th Cir. 1995). ...


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