United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
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.
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. 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.
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.
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
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. 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.
Summary Judgment Standard
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.
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
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.