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Underhill v. Royer

United States District Court, Eastern District of Michigan, Northern Division

May 19, 2015

JOHN H. UNDERHILL, Plaintiff,
v.
SHERI ROYER, JANE DOE, and SCOTT L. PAVLICH, Defendants.

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS, DISMISSING PLAINTIFF’S COMPLAINT, DENYING MOTION FOR LEAVE TO AMEND, AND CANCELLING HEARING

THOMAS L. LUDINGTON United States District Judge

On December 17, 2014, Plaintiff John Underhill filed suit against Defendant Scott Pavlich, a Michigan judge, and Defendant Sherri Royer, a case worker with Michigan’s Department of Human Services, alleging procedural and substantive due process violations. Underhill claims that Defendants violated his constitutional rights when they altered the custody arrangements of his minor child.

Both Defendants filed motions to dismiss the amended complaint; they each asserted that they were entitled to immunity. Because Defendant Pavlich is entitled to absolute judicial immunity, his motion to dismiss will be granted.[1] And because Defendant Royer is entitled to qualified immunity, her motion to dismiss will also be granted.

After the parties filed motions to dismiss, Underhill filed a motion for leave to file a second amended complaint, which would allege an official capacity claim against Judge Pavlich.

Because such a claim would be frivolous, the motion for leave to file a second amended complaint will be denied.

I.

In August 2009, Underhill was granted primary custody of his daughter. Am. Compl. 2. Underhill and his daughter (“Daughter”) lived together in Sault Ste Marie, Michigan.

A.

In September 2013, Underhill suffered what he believed to be a heart attack. Am. Compl. 2. Daughter dialed 911 and Underhill was taken to the local hospital. Id. At the hospital, it was determined that Underhill had not suffered a heart attack, but rather had suffered a severe side effect from his newly-prescribed sleep medication. Id. Underhill remained in the hospital until the medication and its side-effects resolved, and Daughter’s principal picked her up and took her to school. Id.

According to Underhill, because Daughter had dialed 911, “certain caseworkers from the local Department of Human Services got involved.” Am. Compl. 2. These caseworkers “encouraged” Karen Underhill (Daughter’s mother) “to abscond with [Daughter] in violation of a Michigan Circuit Court Order.” Id. at 3. Daughter’s school released her to Karen Underhill’s custody, thus beginning “a two week odyssey of [Daughter] being driven around the State of Michigan by her mother ‘hiding’ [Daughter] from her father and the long arm of the law.” Id. Karen Underhill and Daughter were found in Manistique, Michigan about two weeks later, and Daughter was then returned to Underhill’s custody.

Following those events, Karen Underhill filed a motion to modify Daughter’s custody arrangements in the 50th Circuit Court. The original judge recused himself, leading to the special assignment of Defendant Judge Scott Pavlich to preside over the proceeding.

The Department of Health Services caseworkers, according to Underhill, continued to improperly involve themselves. After an investigation, the Department of Health Services caseworkers closed the file, concluding that any alleged neglect or abuse on Underhill’s part was “un-substantiated”. Am. Compl. 5. However, Defendant Sherri Royer expressed her personal opinion in a letter to Underhill that he was “ ‘guilty’ none-the-less of ‘abuse’ and/or ‘neglect’” and threatened future prosecution. Id. Underhill further alleges that the Department of Health Service released and widely disseminated its investigative documents, even filing them in the 50th Circuit Court in an attempt to “completely prevent further contact between Plaintiff father and his daughter . . . .” Am. Compl. 5-6.

Underhill alleges that Defendant Judge Pavlich relied on these documents in accelerating the hearing date on Karen Underhill’s motion to modify custody from October 3, 2014 to August 28, 2014. Then, Underhill continues, at the motion hearing, Judge Pavlich only permitted Karen Underhill to present proofs before he “simply made an oral pronouncement from the bench that he was expanding mother’s parenting time to allow her to immediately move 350 miles away and take [Daughter] with her.” Am. Compl. 6. Underhill claims that he “has not seen [Daughter] since, except through a car window.”[2] Id.

B.

On December 17, 2014, Underhill filed a complaint alleging that Judge Pavlich, Caseworker Sherri Royer, and unnamed caseworkers had violated his Fourteenth Amendment substantive and procedural due process rights. He also sought a declaratory judgment that the Michigan Child Custody Act was unconstitutional. On February 23, 2015, Underhill filed an amended complaint. It is unclear how the famended complaint differs from his original complaint; of relevance here, he continues to assert that Judge Pavlich and Sherri Royer violated his due process rights.

II.

This Court may dismiss a pleading for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant’s favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not have provided “detailed factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

Both Judge Pavlich and Royer filed motions to dismiss Underhill’s Amended Complaint. Underhill did not, ...


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