United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges United States Magistrate Judge
Louise Niblock (“Plaintiff”), proceeding pro se
and in forma pauperis, filed this civil rights action
pursuant to 42 U.S.C. § 1983, alleging violations of his
constitutional rights. She sues Richland County Deputy Perry
(“Perry”) and former employees of the South
Carolina Department of Social Services Angela Nazzery-Scott
(“Nazzery-Scott”),  Shanett Smith
(“Smith”), and Barbretta Cook
(“Cook”) (collectively “SCDSS
Defendants”). This matter is before the court on SCDSS
Defendants' motion for summary judgment. [ECF No. 59].
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), the court advised Plaintiff of the summary
judgment procedures and the possible consequences if she
failed to respond adequately to SCDSS Defendants' motion.
[ECF No. 60]. The motion having been fully briefed [ECF Nos.
62, 63], it is ripe for disposition.
pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.).
Because the motion is dispositive, this report and
recommendation is entered for review by the district judge.
For the following reasons, the undersigned recommends Perry
be dismissed and SCDSS Defendants' motion for summary
judgment [ECF No. 59] be granted.
February 25, 2015, Plaintiff visited Richland County Office
of SCDSS with her younger two sons (1 and 2 years old). [ECF
No. 59-3 at 24]. According to Defendants, but disputed by
Plaintiff, she announced to Smith in earshot of several other
SCDSS case workers that she did not want her younger sons
anymore did not care about criminal charges. Id.
Although Plaintiff later told Smith and Officer Perry that
she wanted to think about her decision, Perry made the
decision after talking to Plaintiff to take the children into
emergency protective custody (“EPC”).
Id. at 24-25. At the time, Plaintiff had a pending
SCDSS case related to her older son (“2014 Family Court
Case”). SCDSS opened a second file on Plaintiff and
commenced a new case in family court (“2015 Family
Family Court held a probable cause hearing on the EPC on
February 25, 2015. [ECF No. 59-4]. The court found that there
was probable cause for law enforcement to take the children
into protective custody because Plaintiff “brought the
children to the Department of Social Services stating she no
longer wanted the children.” Id. The court
added the biological father and paternal grandparents as
parties to the action for custody purposes, and awarded
temporary custody to the paternal grandparents. Id.
replaced Smith as caseworker for Plaintiff's files and
met with Plaintiff at her home on June 5, 2015. [ECF No. 59-3
at 47]. They discussed Plaintiff's concerns and
dissatisfaction with DSS and her attorney. Id.
Plaintiff indicated she wanted to speak with the judge,
intended to make a formal complaint against the judge who had
granted custody of her oldest son to that child's father,
and indicated she refused to follow any DSS recommendations
unless they were court-ordered. Id. On July 22, 2015
Plaintiff cancelled a psychological evaluation appointment
Cook had earlier arranged. Id. at 56.
Deon O'Neil was appointed to represent Plaintiff in the
2015 Family Court Case on March 5, 2015, shortly after the
case was filed. [ECF No. 59-6]. O'Neil was appointed in
the 2014 Family Court Case on August 3, 2015, replacing
Plaintiff's prior court-appointed attorney, with whom she
was dissatisfied. [ECF No. 59-7].
August 13, 2015, a hearing was held in the 2014 Family Court
Case involving Plaintiff's oldest son. [ECF No. 59-8].
Plaintiff expressed dissatisfaction with O'Neil at the
hearing and asked that he be excused from the case and the
hearing proceed. Id. O'Neil was not present at
the hearing because he was in a trial in another county.
Id. The judge directed Plaintiff to file a motion to
relieve O'Neil and scheduled a hearing on the motion for
August 27, 2015. Id. On August 27, 2015, O'Neil
was relieved as Plaintiff's attorney in the 2014 Family
Court Case, and the court advised Plaintiff that no
replacement counsel would be appointed. [ECF No. 59-9].
2015 Family Court Case, Plaintiff did not file a motion to
relieve and no order was entered relieving O'Neil as
counsel. On September 10, 2015, O'Neil appeared for the
merits hearing in the 2015 Family Court Case and Plaintiff
did not. [ECF No. 59-11]. According to Cook's notes,
Plaintiff was called and reported that she was not made aware
of the hearing. [ECF No. 59-3 at 65]. Plaintiff also claimed
that O'Neil was not her attorney and “refused to
hear an clarification of the Mr. Oniel only being relieved on
her 2014 case involving her oldest son.” Id.
(errors in original). In her complaint, Plaintiff also
alleges she was not served with notice of the hearing. [ECF
No. 17 at 6 (“The Plaintiff and maternal mother of the
infants was not present at the September 10, 2015 because she
was not served. Instead Deion O'Neal esquire was served
on her behalf.”)].
Family Court moved forward with the case in Plaintiff's
absence and granted all relief requested to the father of the
children, including custody and that new birth certificates
be issued for the children indicating paternity and changing
their last names to his. [ECF Nos. 59-11, 59-12]. The order
directed SCDSS to close its case and investigation into the
matter and relieved O'Neil as Plaintiff's attorney.
Id. Cook informed Plainti of the results of the
hearing and reported that Plaintiff felt that her rights had
been violated. [ECF No. 59-3 at 65]. Plaintiff did not file a
motion to reconsider, and she did not appeal the order.
construing her amended complaint, Plaintiff alleges her
constitutional rights were violated when (1) Officer Perry
took her younger sons into EPC, (2) Smith and Nazzery-Scott
advised her that she had to follow the recommendations of
SCDSS, although it had not been ordered by a court; and (3)
the court granted custody to the children's father when
she had not been personally served with notice of the
heraing, though O'Neil had been served on her behalf.
[ECF No. 17 at 5-6].
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