UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MYRA TANKSLEY, 

Plaintiff, Case No. 2:11-cv-38

JUDGE GREGORY L. FROST

v. Magistrate Judge E.A. Preston Deavers

FRANKLIN COUNTY, ET AL.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the following filings:

(1) a motion for summary judgment filed by Defendants (ECF No. 21), a memorandum in

opposition filed by Plaintiff (ECF No. 23), a reply memorandum filed by Defendants (ECF No.

30), and a sur-reply filed by Plaintiff (ECF No. 31);

(2) a motion for summary judgment filed by Plaintiff (ECF No. 22) and a memorandum

in opposition filed by Defendants (ECF No. 29);

(3) a motion to strike Plaintiff’s sur-reply filed by Defendants (ECF No. 32); and 

(4) a motion for leave to file a sur-reply filed by Plaintiff (ECF No. 33).

For the reasons that follow, the Court GRANTS Plaintiff’s motion for leave to file a surreply (ECF No. 33), DENIES AS MOOT Defendants’ motion to strike Plaintiff’s sur-reply

(ECF No. 32), GRANTS Defendants’ motion for summary judgment (ECF No. 21), and

DENIES Plaintiff’s motion for summary judgment (ECF No. 22).

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I. Background

Plaintiff, Myra Tanksley, is the mother of Marquis Tanksley. Pursuant to a 2003 court

order from the Franklin County Common Pleas Court, Marquis’s father paid child support

directly to Plaintiff. In December 2008, Franklin County Children’s Services (“FCCS”) filed a

complaint in Franklin County Common Pleas Court, alleging that Marquis was a neglected child. 

Several days later, the state court placed Marquis in the custody of FCCS, which filed a motion

to set support, but subsequently dismissed the action and then later refiled it under a new case

number. Upon refiling, FCCS filed a new motion for Plaintiff to pay her incoming child support

to FCCS. At that time, FCCS also filed a motion to change the payee from Plaintiff to FCCS,

which would effectively redirect the money paid by Marquis’ father from Plaintiff and to FCCS.1

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 Uncontradicted evidence indicates that when custody has been awarded to FCCS, a

division of FCCS conducts a IV-E eligibility determination. IV-E is a provision of the Social

Security Act that governs whether Franklin County Child Support Enforcement Agency

(“FCCSEA”) is entitled to prosecute the request for support on behalf of the State of Ohio, or

whether FCCS is entitled to pursue support on behalf of the agency. If the child is held to be IVE eligible, FCCSEA is charged with prosecuting the enforcement of child support for remittance

to the state. If the child is held to be ineligible, FCCS may pursue support for remittance to the

agency for the period during which the child is in custody. Referrals are made to FCCSEA on all

children in custody, regardless of IV-E eligibility. Once FCCS submits a referral to FCCSEA,

the eligibility determination is pending. Here, Defendants assert that FCCS made a

determination of ineligibility under IV-E due to the lack of cooperation of Plaintiff. Eligibility

determinations require income information provided by the parents, and according to

Defendants, Plaintiff failed to provide such information. Plaintiff disputes this contention and

asserts that she provided the court-appointed attorney who was involved in that process with

information, but insists that attorney failed to provide effective representation. The dispute as to

whether and when Plaintiff provided the information is immaterial to today’s dispositive

analysis; what is material is that the state actors proceeded as they did on a flawed premise. 

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The Franklin County Common Pleas Court granted the motion to change the payee and

dismissed the pending motion for direct support because the child support obligation was less

than the Social Security payments FCCS was receiving on behalf of Marquis. As a result of this

order, the Franklin County Child Support Enforcement Agency (“FCCSEA”), the statutory agent

for Title IV-D of the Social Security Act, opened a case in the State of Ohio Support

Enforcement Tracking System (“SETS”). The clerk entering the information into SETS

interpreted the state court’s order as a support order against Plaintiff as opposed to an order that

redirected funds to FCCS. An FCCSEA attorney was assigned to file legal actions in the case,

and an FCCSEA enforcement officer was assigned to monitor enforcement.

Plaintiff was subsequently informed of a wage withholding order sent to her former

employer. She contacted FCCSEA enforcement officer Jon Sherman, who asked her to send him

a copy of the magistrate’s order dismissing the motion for direct support. Plaintiff did not have

the order at the time and did not follow up with Sherman. SETS indicated a delinquency on

Plaintiff’s case because no payments had been made. Sherman set aside the default status so that

no notice of default would issue to Plaintiff. FCCSEA attorney Mark Rhea then filed another

motion to set support as against Plaintiff, which was later dismissed after Plaintiff regained

custody of her son. Prior to the dismissal, Plaintiff sent a document titled “Notice of Tort Claim”

to the Franklin County Commissioners and the Ohio Department of Job and Family Services by

certified mail. In that notice, Plaintiff attempted to present her arguments and her request for

relief and described the actions taken. Despite Plaintiff’s efforts, SETS automatically generated

a notice of default because no support payments had been received from Plaintiff. FCCSEA

requested a federal income tax offset from Plaintiff’s income tax refund pursuant to Ohio

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Revised Code § 3123.81, and Plaintiff’s income tax refund of $849.00 was intercepted and

applied to her accumulating arrearage. 

Plaintiff eventually mailed a letter to President Obama about her situation. That

communication was apparently forwarded to the Federal Office of Child Support Enforcement,

which informed Plaintiff that the error would be corrected. FCCSEA subsequently refunded the

intercepted tax refund, and FCCS sent Plaintiff a letter admitting that her case had been created

in error and explaining why the preceding actions were taken.

Plaintiff filed a Complaint on January 14, 2011, naming as defendants Franklin County;

the three sitting Franklin County Commissioners–Paula Brooks, Marilyn Brown, and John

O’Grady; FCCSEA Director Susan Brown; FCCSEA caseworker Jon Sherman; FCCS Director

Eric Fenner; FCCS attorney Tiffany Hostetler; and FCCSEA attorney Mark Rhea. (ECF No. 5.) 

The Complaint alleges that the erroneous creation of several motions for child support against

Plaintiff was the result of an official policy and practice whereby employees are instructed to

create a child support case even though a child support order may not exist. Although Plaintiff’s

pro se pleading is not as clear as it could ideally be, it is apparent that she is alleging deprivation

of her constitutional rights in violation of 42 U.S.C. § 1983. Plaintiff has sued the individual

defendants in their individual as well as official capacities. 

Each side has filed a motion for summary judgment. (ECF Nos. 21, 22.) Defendants

have also field a motion to strike (ECF No. 32) a sur-reply that Plaintiff filed in connection with

their summary judgment motion, and Plaintiff has filed a motion for leave to file the sur-reply

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(ECF No. 33). The briefing on all of the motions has closed, and the motions are now ripe for

disposition. 

II. Sur-reply Motions

Because Defendants’ motion to strike and Plaintiff’s motion for leave to file a sur-reply

can affect the record, this Court is obligated to address those filings before ruling on the motions

for summary judgment. Brainard v. Am. Skandia Life Assurance Corp., 432 F.3d 655, 667 (6th

Cir. 2005) (“a district court should dispose of motions that affect the record on summary

judgment before ruling on the parties’ summary judgment motions”). Citing her pro se status as

explaining her purportedly unintentional violation of the Local Civil Rule’s prohibition on

engaging in sur-reply briefing without leave of court, Plaintiff asserts that the sur-reply targets

issues or material that Defendants raised for the first time in their summary judgment reply

memorandum. See S. D. Ohio Civ. R. 7.2(a)(2). Defendants have not filed a memorandum in

opposition disputing this contention and simply state in conclusory fashion in their earlier-filed

motion to strike “that Plaintiff has not shown good cause for filing a Surreply or that she is

addressing matters raised in Defendants’ Reply.” (ECF No. 32, at 2.) The Court GRANTS

Plaintiff’s motion for leave to file a sur-reply (ECF No. 33) and DENIES AS MOOT

Defendants’ motion to strike (ECF No. 32). 

III. Summary Judgment Motions

A. Standard Involved

Summary judgment is appropriate “if 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.

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56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party

who has the burden of proof at trial fails to make a showing sufficient to establish the existence

of an element that is essential to that party’s case. See Muncie Power Prods., Inc. v. United

Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986)). 

In viewing the evidence, the Court must draw all reasonable inferences in favor of the

nonmoving party, which must set forth specific facts showing that there is a genuine issue of

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided 

that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson,

477 U.S. at 251-52).

B. Analysis

Defendants move for summary judgment on Plaintiff’s claim under 42 U.S.C. § 1983. 

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

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42 U.S.C. § 1983. Thus, in order to prevail on her § 1983 claim, Plaintiff must show that, while

acting under color of state law, Defendants deprived her of a right secured by the Federal

Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir.

2003). In her motion for summary judgment, Plaintiff clarifies her § 1983 claim by explaining

that Defendants allegedly violated her 14th Amendment rights to property, due process, and

equal protection. 

Defendants concede they made a mistake. They argue that they are nonetheless entitled

to summary judgment because Plaintiff cannot meet the evidentiary burden necessary to

establish § 1983 municipal liability under Monell v. Department of Social Services of the City of

New York, 436 U.S. 658 (1978), because the claims against Commissioners Brooks, O’Grady,

and Brown and FCCSEA Director Brown are frivolous given their lack of individual

involvement, and because Defendants are entitled to qualified immunity. In her memorandum in

opposition (ECF No. 23), Plaintiff identifies five allegedly genuine disputes of material fact: (1)

the date the child support case was opened; (2) the date of the state magistrate judge’s child

support order; (3) whether Plaintiff has been made whole; (4) whether Defendants violated any

laws; and (5) the date upon which custody of Marquis was granted to Plaintiff. For three

reasons, none of these non-material issues preclude summary judgment in favor of Defendants. 

The first reason is that Defendants are entitled to qualified immunity, which protects

officials from individual liability in connection with the performance of discretionary functions. 

Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir. 1994). The Sixth Circuit has explained that

qualified immunity “shields government officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a

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reasonable person would have known.’ ” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). 

In addressing the potential applicability of qualified immunity, a court asks two

questions: (1) “whether, on the plaintiff’s facts, there has there been a violation.” and (2)

“whether that violation involved ‘clearly established constitutional rights of which a reasonable

person would have known.’ ” Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir. 2002) (quoting

Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996)). A court “may exercise its ‘sound

discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.’ ” Mingus v. Butler,

591 F.3d 474, 479 (6th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)). 

Qualified immunity thus provides that an official can be found to have violated the

Constitution, but be granted immunity for reasonable mistakes as to the legality of his or her

action. Saucier v. Katz, 533 U.S. 194, 206 (2001), overruled on other grounds by Pearson v.

Callahan, 555 U.S. 223 (2009). The reasonableness of such mistakes is inherently dependant

upon the clarity of the legal constraints governing the particular conduct involved. The contours

of the right must be sufficiently clear that a reasonable official would understand that what he or

she is doing violates that right. Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). See also Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991) (“A public

official is entitled to qualified immunity for conduct in performing discretionary functions so

long as that conduct does not violate clearly established statutory or constitutional rights of

which a reasonable [official] would have known”). 

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In determining whether a defendant is entitled to qualified immunity, “[t]he ultimate

burden of proof is on [the plaintiff] to show that [the defendants] are not entitled to qualified

immunity.” Wegener, 933 F.2d at 392. See also Russo v. City of Cincinnati, 953 F.2d 1036,

1043 (6th Cir. 1992). Further, “[w]hen ruling on qualified immunity, the district court should

indicate the clearly established right at issue and the factual basis for its conclusion that a

genuine issue exists as to the commission of acts violating that right.” Wegener, 933 F.2d at 392

(citing Poe v. Haydon, 853 F.2d 418, 423-24, 426 (6th Cir. 1988)).

Plaintiff has not met her burden. There can be little debate over whether what transpired

here presents embarrassing bureaucratic errors if not outright incompetence. The question is not

whether Defendants should be disturbed by the sloppiness that happened–they certainly

should–but whether the governmental actions present technically reasonable mistakes so as to

shield Defendants from liability. Given the underlying confusion resulting from the

misinterpretation of what the state court ordered, there is no basis to conclude here that the state

actors acted unreasonably even if erroneously. The governmental actors were doing their jobs,

even if they were doing them poorly or based on a flawed premise. Qualified immunity applies

to the individual capacity aspect of this case. 

The second reason select defendants are entitled to summary judgment is because

Plaintiff has failed to produce evidence of individual involvement in impermissible conduct on

the part of Defendants. There is no evidence presented that Commissioners Brooks, O’Grady,

and Brown, FCCSEA Director Brown, or FCCS Director Fenner did anything here other than

hold their respective positions. There is also no evidence that Defendants Sherman, Rhea, or

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Hostetler did anything to violate Plaintiff’s rights. The causative error was on the part of a nondefendant FCCSEA employee.

The third reason entitling Defendants to summary judgment is that Plaintiff has failed to

point this Court toward the requisite custom, policy, or practice for § 1983 liability under

Monell. The official capacity claims are ultimately claims against Defendant Franklin County.

Such an entity is not liable under § 1983 for an injury inflicted solely by its employees or agents. 

Monell, 436 U.S. at 694. Rather, as the United States Supreme Court has explained, “it is when

execution of a government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Id. There is no evidence that Plaintiff’s

constitutional rights were violated pursuant to any official policy, custom, or practice. Without

such a predicate foundation, there is no basis for liability here. 

Although Plaintiff presents conclusory allegations and argues that the institutional policy

of opening new child support cases for children in FCCS custody was “a moving force” that

resulted in the violation of her constitutional rights, Plaintiff fails to present evidence that any

component of that essentially generic, across-the-board policy targeted, approved, or encouraged

erroneous collection activities such as what occurred here. (ECF No. 22, at 3.) In other words,

there may indeed be a policy of opening support cases, but there is no evidence that any part of

that policy led to the allegedly unconstitutional conduct here. An error in the implementation of

a neutral policy led to Plaintiff’s troubles, not any part of the policy itself. Thus, regardless of

any ultimately immaterial errors in the dates cited by the parties as to the creation of or events in

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the support case, the dispositive analysis remains the same: there is no basis for Monell liability

here. 

IV. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiff’s motion for leave to file a surreply (ECF No. 33), DENIES AS MOOT Defendants’ motion to strike Plaintiff’s sur-reply

(ECF No. 32), GRANTS Defendants’ motion for summary judgment (ECF No. 21), and

DENIES Plaintiff’s motion for summary judgment (ECF No. 22). The Clerk shall enter

judgment accordingly and terminate this action on the docket records of the United States

District Court for the Southern District of Ohio, Eastern Division.

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

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