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Niblock v. Perry

United States District Court, D. South Carolina

March 5, 2018

Sharne Louise Niblock, Plaintiff,
v.
Officer Deputy Perry; Angela Nazzery-Scott; Shanett Smith; and Barbretta Cook, Defendants.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges United States Magistrate Judge

         Sharne 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”), [1] 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.

         All 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.

         I. Factual Background

         On 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 Court Case”).

         The 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.

         Cook 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.

         Attorney 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].

         On 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].

         In the 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.”)].

         The 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.

         Liberally 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].

         II. Discussion

         A. Standard on ...


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