UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SUZANNE KOLLEY, et al.,

Plaintiffs,

Case No. 09-CV-10919 

vs. HON. GEORGE CARAM STEEH

ADULT PROTECTION SERVICES,

an agency of the State of Michigan, et al.,

Defendants.

_____________________________/

ORDER DENYING DEFENDANT NEPH'S MOTION TO STRIKE (# 28),

GRANTING DEFENDANT NEPH'S MOTION TO DISMISS PURSUANT TO

THE YOUNGER DOCTRINE (# 5), DISMISSING WITHOUT PREJUDICE PLAINTIFFS'

FEDERAL CLAIMS AS ALLEGED AGAINST ALL DEFENDANTS PURSUANT

TO THE YOUNGER DOCTRINE,

DISMISSING PLAINTIFFS' STATE LAW CLAIMS ON DECLINING TO

EXERCISE SUPPLEMENTAL JURISDICTION, AND

DENYING AS MOOT DEFENDANT SALTZMAN'S MOTION TO DISMISS (# 18),

THE MORC DEFENDANTS' MOTION TO DISMISS (# 34), AND

DEFENDANTS DHS'S AND FINCHER'S MOTION TO DISMISS (# 35)

Defendant John Neph moves to dismiss the several plaintiffs' federal claims of

violation of a First Amendment right of family association and unity, denial of due process,

violations of the First and Fourteenth Amendments premised on the alleged vagueness and

overbreadth of M.C.L. §§ 400.11a through 400.11c, discrimination based on Arabic

ethnicity, and state law claims of gross negligence, negligence, battery, defamation, false

imprisonment, abuse of process, intentional infliction of emotional distress, and medical

malpractice. Oral argument would not significantly aid the decisional process. Pursuant

to E.D. Mich. Local R. 7.1(e)(2), it is ORDERED that the motion be resolved without oral

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argument.

I. Background

Plaintiffs filed a complaint on March 11, 2009 alleging that plaintiffs Suzanne Kolley

and Joseph Kolley are the biological parents of plaintiff Jena Kolley, a mentally impaired

individual, that plaintiff George Brown is Suzanne's current husband and Jena's step-father,

and that plaintiffs William Kolley and Joseph Kolley, Jr. are Jena's siblings. The complaint

refers to the six plaintiffs as the "Kolley Family." The named defendants include: the

Michigan Department of Human Services ("DHS"), Michigan Adult Protective Services

("APS") and APS agent Marcie Fincher; the Macomb Oakland County Regional Center for

the Handicapped ("MORC"), MORC agents Edward Keefer, Lori Mathes, Susan Thomas,

and Lea Antella; Oakland County Sheriff's Detective John Neph; Hazel House, a group

home; Hazel House Manager Pricilla Murell and Hazel House employee Pat Holmes;

Jena's guardian ad litem ("GAL") Shirley Saltzman; and forensic evaluator Tirica Schuster.

Plaintiffs allege that Jena is a severely mentally disabled nineteen-year-old woman

that suffers from Oral Facial Digital Syndrome, characterized by physical defects of the

mouth, tongue, teeth, and jaw. Jena also has developmentally physical defects of the face,

head, eyes, nose, fingers, and toes. Jena's social and communication skills are likewise

significantly impaired. Jena's communication skills are allegedly that of a 5 to 7 year-old

child, and her social skills are that of a 4 to 8 year-old child. Plaintiffs allege:

. . . . For example, when given a verbal prompt, Jena will use a 2 word

utterance 80% of the time. Reports on Jena's condition also include that she

does not communicate well with people she is uncomfortable with, or when

in uncomfortable situations. Furthermore, Jena is often misunderstood and

lacks the ability to correct the listener when the intent of her message is

incorrectly interpreted. That is, when faced with a question Jena often simply

answers "yes."

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1 Plaintiffs allege that "defendant Jeri Wyson" was part of the group that confronted

Suzanne Kolley. Wyson is not listed in the caption nor that part of the Complaint identifying

"The Parties." See Complaint, at 2-3; ¶ 25, at 5.

3

Complaint, ¶ 20, at 4-5. Jena attended Rochester Public Schools in her early years. In

October 2008, as a late-teen, Jena began attending "Wings," a school for mentally impaired

children.

On November 12, 2008, Detective Neph allegedly informed Suzanne Kolley that

Jena's teacher was reporting that Jena told her on October 29, 2008 and November 6,

2008 that "mama hit me." When Suzanne Kolley arrived at school with Jena on November

14, 2008, Wings Police Liaison Stephanie Nelson, Detective Neph, APS's Fincher and an

unknown APS employee1

 told Suzanne that Jena was going to be questioned for a few

hours, after which Jena could return home. Jena allegedly began to cry and cling to her

mother. Suzanne allegedly showed Nelson that Jena did not have any bruises on her back,

but the group allegedly "persisted in taking the hysterically upset girl away from her mother

to be questioned." Complaint, ¶ 25, at 5-6.

APS's Fincher, Oakland County Assistant Prosecutor Derek Meinecke, MORC's

Keefer, Mathes and Thomas, Detective Neph, and forensic evaluator Schuster were each

allegedly present when Jena was interviewed outside the presence of Suzanne Kolley.

Plaintiffs allege these defendants asked Jena invasive and leading questions, took

advantage of her incompetency, and convinced Jena to make allegations against her

mother Suzanne. After the interview, Jena was permitted to return home with her mother.

Plaintiffs allege that, based solely on the statements made by Jena at the interview,

an ex parte petition was filed to terminate Suzanne's guardianship over Jena. Joseph

Kolley was allegedly not notified of the petition. Plaintiffs allege that:

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 Giperich is listed in the caption as a defendant, but is not set forth in that part of

the Complaint identifying "The Parties." See Complaint, at 2-3; ¶ 25, at 5.

4

Normally during the probate process a random Guardian is assigned to the

ward's case. In the present case, MORC and APS "nominated" Thomas

Brennan Fraser.

Complaint, ¶ 33, at 6. Detective Neph allegedly informed the Kolley Family on November

14, 2008 that Jena was going to be removed from the home. Allegedly, within hours,

MORC's agent defendant Susan Giperich2

 appeared at Jena's home with two Oakland

County officers. Suzanne and her husband Brown allegedly informed Giperich of Jena's

strict need for dental and oral hygiene care.

The Kolley Family was allegedly left unaware of Jena's whereabouts for several

days, until notified on November 18, 2008 that the Oakland County Probate Court had

appointed a temporary guardian in place of Suzanne. Jena was allegedly transported to

St. John Providence Hospital in Southfield, Michigan, by Detective Neph and Hazel House's

Holmes on November 18, 2008, where rape examinations were performed on Jena

notwithstanding the absence of any rape allegations. Jena was not competent to sign the

consent form, and Jena's temporary guardian allegedly did not sign the form. A November

18, 2008 Providence Hospital Report allegedly indicated no evidence of rape, abuse, or

bruising. Plaintiffs allege that, as a form of harassment, APS's Fincher, accompanied by

two Oakland County Officers, arrived at Suzanne's home on December 4, 2008 to

interrogate her thirty-five year-old mentally handicapped son, Joe Kolley, Jr..

Jena's biological father Joseph Kolley was allegedly appointed by the Probate Court

as a co-guardian on December 23, 2008, with rights of visitation. Plaintiffs allege that

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Joseph had the right to be appointed full guardian as Jena's biological father.

The Kelly Family was allegedly not permitted to visit Jena at Hazel House from

November 18, 2008 to December 26, 2008. Phone calls were allegedly cut off by Hazel

House employees because Jena would cry for hours after the calls to see her family and

go home. Joseph Kolley was allegedly the first to visit Jena at Hazel House on December

26, 2008, and observed that Jena "had lost weight and appeared disheveled and dirty."

Complaint, ¶ 42, at 8. Joseph Kolley also allegedly observed that hair was growing out of

Jena's face and legs, and that her dental requirements were not being met. Joseph

allegedly complained about Jena's condition, and made her dental health requirements

clear before leaving Hazel House. Joseph allegedly repeated his complaints to Jena's coGAL on December 27, 2008.

On January 23, 2009, Michigan APS defendant Fincher petitioned the Probate Court

to be appointed Joe Kolley, Jr.'s GAL, allegedly knowing that Joseph Kolley had been

appointed as Joe's guardian on January 14, 2009. Plaintiffs allege that, at a January 28,

2009 Probate Court hearing, Hazel House Manager Murell, Michigan APS agent Fincher,

GAL Saltzman, and the MORC defendants conspired and offered false testimony that

Jena's father Joseph and brother William "made sexual connotations towards [Jena] and

requested that Hazel House give [Jena] a 'bikini wax' or otherwise shave her pubic hair."

Complaint, ¶ 45, at 9. Plaintiffs allege that, after the hearing, William Kolley asked "how

do you people sleep at night," causing Murell to tell Jena "something to the effect of, 'if you

don't stop crying you will never see your family again.'" Id., ¶ 46, at 9. Plaintiffs allege that

Joseph and William Kolley were denied access to Hazel House on January 28, 2009, which

caused Jena to begin crying for them.

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 Plaintiffs refer alternatively in their complaint to M.C.L. § 400.111a, b, and c,

M.C.L. § 400.111(a), (b), and (c), and M.C.L. § 400.11(a), (b), and (c). In the context of this

lawsuit, as set forth infra, the court presumes the plaintiffs are referring to M.C.L. §

400.111a, M.C.L. § 400.111b, and M.C.L. § 400.111c. See Complaint, at 22, seeking a

declaration that "MCL 400.11(a), (b), and (c) are unconstitutional." M.C.L. § 400.11 is a

definitional section, with M.C.L. § 400.11(a) defining "Abuse," M.C.L. § 400.11(b) defining

"Adult in need of protective services" or "adult," and M.C.L. § 400.11(c) defining

"Exploitation."

6

On January 29, 2009, the Probate Court granted an emergency motion to terminate

the Kolley Family's visitation rights. Plaintiffs allege that the motion was "based on the

outlandish allegation that on January 28, 2008 [sic, 2009] William Kolley and Joseph Kolley

threatened MORC and Hazel House employees at Oakland County Circuit Court and again

at Hazel House." Complaint, ¶ 48, at 9-10. Plaintiffs allege that, with the termination of

Joseph Kolley's rights, no one from the Kolley Family is able to visit or call Jena.

A. Federal Claims

Count I alleges that each of the defendants violated the plaintiffs' fundamental First

Amendment right to associate as a family by removing Jena from her home on November

14, 2008. Count II alleges that the Michigan DHS, Michigan APS, APS's Fincher, the

MORC defendants, and Detective Neph violated Suzanne Kolley's, Joseph Kolley's, and

George Brown's rights not to be deprived of their parental liberty interests without

procedural and substantive due process of law. Count III alleges that the Michigan DHS

and Michigan APS violated the plaintiffs' First and Fourteenth Amendment rights by acting

pursuant to the Social Welfare Act of Michigan, M.C.L. §§ 400.11a through 400.11c3

,

because the statute is constitutionally overbroad and void for vagueness, and thus

impinges upon the fundamental rights of familial unity and association. Count IV alleges

that all of the defendants are liable under 42 U.S.C. § 1983 for discrimination because the

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defendants were motivated by the plaintiffs' Arabic ethnicity.

B. State Law Claims

Count V alleges gross negligence against APS and Fincher for violations of a DHS

Adult Service Manual and M.C.L. § 400.11b. Count VI alleges negligence against the

MORC and MORC defendants. Count VII alleges battery against Detective Neph and

Hazel House employee Holmes for escorting Jena to Providence Hospital on November

18, 2008 to undergo a rape examination. Count VIII alleges defamation against Hazel

House Manager Murell, GAL Saltzman, and a yet to be identified Hazel House employee

for publishing false statements to the Probate Court on January 28, 2009 indicating that

Joseph Kolley had engaged in illegal sexual conduct with his daughter Jena. Count IX

alleges false imprisonment against all defendants for the November 14, 2009 involuntary

removal of Jena from her home. Count X alleges abuse of process against the Michigan

DHS, APS, Fincher, MORC, the MORC defendants, Detective Neph, the Hazel House

defendants, and GAL Saltzman. Count XI alleges intentional infliction of emotional distress

against all defendants. Count XII alleges medical malpractice against Hazel House.

C. Relief Requested

Plaintiffs seek a court order declaring that M.C.L. §§ 400.11a through 400.11c is

unconstitutional. Plaintiffs also seek an award of $15.0 million in compensatory and

exemplary damages.

II. Neph's Motion to Strike

Neph moves to strike plaintiffs' response to Neph's reply brief arguing a response

to a reply brief is not authorized under the Federal Rules of Civil Procedure nor the Local

Rules for the Eastern District of Michigan. Local Rule 7.1(c)(1)(A) requires the filing of

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 Younger v. Harris, 401 U.S. 37 (1971).

8

motion and response briefs, and permits the filing of a reply brief. Local Rule 7.1(e)

authorizes the court to enter an ex parte order permitting a party to file additional briefs.

The court construes plaintiffs' three-page response to Neph's reply brief as an additional

brief authorized under Local Rule 7.1(e), noting that the brief essentially reiterates plaintiffs'

position as set forth in plaintiffs' response brief. Neph's motion to strike will be denied.

III. Motion to Dismiss

Neph moves to dismiss arguing this court should abstain from exercising federal

jurisdiction under the Younger4

 abstention doctrine because proceedings involving Jena

remain pending in the state Oakland County Probate Court, and criminal proceedings

remain pending against Suzanne Kolley in Oakland County Circuit Court. Neph also moves

to dismiss arguing this court lacks federal subject matter jurisdiction under the RookerFeldman doctrine. Neph relies on matters outside the pleadings to support his position.

Neph's motion is a factual attack on the court's jurisdiction. In analyzing the motion

[t]here is no presumption that the factual allegations set forth in the complaint

are true and the court is "free to weigh the evidence and satisfy itself as to

the existence of its power to hear the case." [United States v. Ritchie, 15 F.3d

592, 598 (6th Cir. Cir.), cert. denied, 513 U.S. 868 (1994)]. The court has

wide discretion to consider materials outside the pleadings in assessing the

validity of its jurisdiction. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d

320, 325 (6th Cir. 1990). The plaintiff bears the burden of demonstrating

subject matter jurisdiction. RMI Titanium Co. v. Westinghouse Elec. Corp.,

78 F.3d 1125, 1134 (6th Cir. 1996).

Ashley v. United States, 37 F.Supp.2d 1027, 1029 (W.D. Mich. 1997). "Lack of jurisdiction

cannot be waived and jurisdiction cannot be conferred upon a federal court by consent,

inaction or stipulation. . . . A court lacking jurisdiction cannot render judgment but must

dismiss the cause at any stage of the proceedings in which it becomes apparent that

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jurisdiction is lacking." Sweeton v. Brown, 27 F.3d 1162, 1169 (6th Cir. 1994) (quoting

United States v. Siviglia, 686 F.2d 832, 835 (10th Cir. 1981), cert. denied, 461 U.S. 918

(1983)). "[A] defect in a federal court's original jurisdiction need not be asserted by any

party, cannot be waived by any party, and must be raised by a Court sua sponte when

noticed." Ku v. State of Tennessee, 322 F.3d 431, 433 (6th Cir. 2003) (citing Wisconsin

Dept. of Corrections v. Schacht, 524 U.S. 381 (1998)).

A. State Court Proceedings

Consistent with the plaintiffs' allegations, it is undisputed that guardian proceedings,

In re Jena Kolley, Case No. 2008-320,120 DD, were pending in Oakland County Probate

Court at the time plaintiffs filed their complaint on March 11, 2009. Defendant Neph's

Exhibits B-L. Likewise, it is undisputed that state criminal charges of vulnerable adult

abuse, M.C.L. § 750.145(n)(3), were pending against plaintiff Suzanne Kolley at the time

of the filing of the complaint. Defendant Neph's Exhibit M. For abstention purposes, the

initial frame of reference is at the time of the filing of the complaint. Zalman v. Armstrong,

802 F.2d 199, 203 (6th Cir. 1986).

APS's Fincher filed a petition for appointment as Jena's guardian on November 14,

2008. Defendant Neph's Exhibit B. Following a hearing, Probate Judge Arthur Moore

entered a November 14, 2008 Order removing Jena from the family home for placement

in a foster home, requiring participation in defendant MORC, and naming Thomas Fraser

Jena's temporary guardian. Defendant Neph's Exhibit C. Following a second hearing,

Judge Moore entered a December 18, 2008 Order appointing defendant Saltzman Jena's

GAL. Defendant Neph's Exhibit D. Saltzman filed a "First Report of Guardian Ad Litem"

with the Probate Court on or about December 13, 2008. Defendant Neph's Exhibit E. On

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December 23, 2008, Judge Moore entered an Order that: (1) appointed Joseph Kolley as

Jena's temporary co-guardian; (2) required "Jean shall not be removed from group home

without consent of G.A.L."; and (3) an evaluation would be completed before a January 28,

2009 hearing to "determine whether [Jena] is in need of a guardian, who the guardian

should be, and if current placement should be continued." Defendant Neph's Exhibit F.

Defendant GAL Saltzman filed a "Report and Recommendations of Guardian Ad Litem" in

Probate Court on January 26, 2009. Defendant Neph's Exhibit G. After a January 28,

2009 hearing, Judge Moore entered an Order: (1) adjourning the contested hearing to

March 19, 2009; (2) continuing Jena's placement at defendant MORC; (3) permitting Jena's

father to visit Jena at defendant Hazel House; (4) requiring MORC representative Sharon

O'Bryan to testify regarding a psychological evaluation; (5) requiring an independent

evaluation to be conducted "by Court Clinic of both Jena and Joseph Kolley; and (6)

requiring the Court Clinic evaluator to testify at the March 19, 2009 hearing." Defendant

Neph's Exhibit H. GAL Fraser filed a petition in the Probate Court on January 29, 2009 for

a January 30, 2009 hearing for an order suspending or terminating Joseph Kolley's

visitation rights, alleging:

The co-guardian [Joseph Kolley] and other family members confronted [GAL

Fraser], the MORC worker, the Home Manager, and this co-guardian with

name calling and assaultive behavior following the hearing on 1-28-09. The

co-guardian [Joseph Kolley] and his adult son verbally assaulted all nonfamily members following the hearing 0n 1-28-09. That evening the coguardian [Joseph Kolley] and son continued this verbal assault at the Group

Home and insisted on videotaping the Home and their [illegible].

Defendant Neph's Exhibit I. GAL Saltzman filed a "Supplemental Report and

Recommendation" on January 30, 2009. Defendant Neph's Exhibit J. Probate Judge

Moore entered an Order on January 30, 2009, ordering that: (1) "Family may not visit or

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phone Jena Kolley until at March 19, 2009 hearing at 8:30 am"; and (2) "An independent

evaluation of Joseph Kolley and Jena Kolley to be completed by the March 19, 2009 [sic]

[hearing]." Defendant Neph's Exhibit K. GAL Saltzman filed an "Interim Report of

Guardian Ad Litem" on February 9, 2009 recommending that Joseph and William Kolleys'

visitation and telephone contacts with Jena be suspended. Defendant Neph's Exhibit L.

Plaintiff filed this federal lawsuit on March 11, 2009, eight days before the scheduled March

13, 2009 Probate Court hearing. 

B. Federal Question Jurisdiction

Federal subject matter jurisdiction is premised on federal question jurisdiction

pursuant to 28 U.S.C. § 1331 over plaintiffs' federal claims that: each of the defendants

violated the plaintiffs' First Amendment rights by removing Jena from the family home; that

the Michigan DHS, APS, Fincher, the MORC defendants, and Detective Neph violated

Jena's parents Suzanne Kolley's, Joseph Kolley's, and George Brown's constitutional rights

by removing Jena from their homes and precluding telephone calls or visitation without due

process of law; that the Michigan DHS and APS violated the Kolley Family's First and

Fourteenth Amendment rights by acting pursuant to the allegedly unconstitutional statute

M.C.L. §§ 400.11a through 400.11c; and that each of the defendants are liable under 42

U.S.C. § 1983 for unlawful ethnic discrimination. Plaintiffs invoke this court's supplemental

jurisdiction over their remaining state law claims. 28 U.S.C. § 1337.

C. Rooker-Feldman Doctrine

The Rooker-Feldman doctrine is premised "on the negative inference that, if

appellate court review of . . . state court judgments is vested in the Supreme Court, then

it follows that such review may not be had in the lower federal courts." Lawrence v. Welch,

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531 F.3d 364, 368 (6th Cir. 2008) (citing Exxon Mobile Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 283-84 (2005)). "In the wake of Exxon, this circuit has 'distinguished

between plaintiffs who bring an impermissible attack on a state court judgment–situations

in which Rooker-Feldman applies–and plaintiffs who assert independent claims before the

district court–situations in which Rooker-Feldman does not apply.'" Lawrence, 531 F.3d

at 368 (quoting Pittman v. Cuyahoga County Dept. of Children and Family Serv., 241 Fed.

App'x 285, 287 (6th Cir. 2007) (citing McCormick v. Braverman, 451 F.3d 382, 389 (6th Cir.

2006))). After Exxon, the pertinent inquiry is "'whether the source of the injury' upon which

plaintiff bases his federal claim is the state court judgment[.]" Lawrence, 531 F.3d at 368

(citing McCormick, 451 F.3d at 394-95).

. . . . In Exxon, the Supreme Court implicitly repudiated the circuit's postFeldman use of the phrase "inextricably intertwined" to extent RookerFeldman to situations [where] the source of the injury was not the state court

judgment. In short, the phrase "inextricably intertwined" only describes the

conclusion that a claim asserts an injury whose source is the state court

judgment, a claim that is thus barred by Rooker-Feldman.

Lawrence, 531 F.3d at 369 (emphasis in original) (quoting McCormick, 451 F.3d at 395).

Plaintiffs allege that detective Neph and others questioned Jena on November 14,

2008, asked invasive and leading questions, took advantage of her mental incompetency,

and convinced Jena to make false allegations of abuse against her mother Suzanne Kolley,

causing Jena to be removed from her home. Plaintiffs also allege that the false allegations

obtained by Detective Neph and other defendants lead to an unnecessary and

unauthorized rape examination of Jena at Providence Hospital on November 18, 2008.

Assuming without deciding that Detective Neph's alleged acts could support the plaintiffs'

federal claims that their First Amendment and due process rights to associate as a family

were violated when Jena was removed from the home, and that Defendant Neph was

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motivated in his alleged actions by an ethnic animus, the source of injury upon which the

plaintiffs base their injuries in not the Probate Court's Orders or the Circuit Court's Orders,

but the independent actions of Detective Neph himself. Lawrence, 531 F.3d at 368-369.

As such, the federal claims as alleged against Detective Neph are not subject to dismissal

under the Rooker-Feldman doctrine.

Detective Neph's argument that the federal claims against him are "inextricably

intertwined" with the state court decisions is misplaced following Exxon. Lawrence, 531

F.3d at 369 (quoting McCormick, 451 F.3d at 395); Coles v. Granville, 448 F.3d 853, 859

n.1 (6th Cir. 2006) (finding Exxon makes clear that Peterson Novelties, Inc. v. City of

Berkley, 305 F.3d 386 (6th Cir. 2002) was incorrectly decided)). Under analogous

circumstances, a panel of the Sixth Circuit held that a biological father's § 1983 claims, that

the Cuyahoga County Department of Children and Family Services violated his Fourteenth

Amendment due process rights and liberty interest in family relations by acting wantonly

and recklessly during state custody proceedings, were not barred by the Rooker-Feldman

doctrine. Pittman, 241 Fed. App'x at 287-290. As there, plaintiffs challenge Detective

Neph's alleged improper conduct, not a state court judgment or order. Id. at 289. Plaintiffs

have met their burden of demonstrating that this court is not deprived of federal question

jurisdiction over their federal claims as alleged against Detective Neph under the RookerFeldman doctrine. Ashley, 37 F.Supp.2d at 1029.

D. Younger Abstention

The prerequisites for applying the Younger abstention doctrine were succinctly set

forth in Carroll v. City of Mount Clemens, 139 F.3d 1072 (6th Cir. 1998):

 Younger abstention applies when [a] state proceeding (1) is currently

pending, (2) involves an important state interest, and (3) affords the plaintiff

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an adequate opportunity to raise constitutional claims. Middlesex County

Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515,

2521, 73 L.Ed.2d 116 (1982); Kelm v. Hyatt, 44 F.3d 415, 419 (6th

Cir.1995); Nilsson v. Ruppert, Bronson & Chicarelli Co., 888 F.2d 452, 454

(6th Cir.1989). Although Younger arose in the context of a state criminal

proceeding, the Supreme Court has extended its principles to civil

enforcement actions . . . . Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct.

1911, 1918, 52 L.Ed.2d 486 (1977) (state civil fraud proceeding to recover

improper benefits by state welfare department); Huffman v. Pursue, Ltd., 420

U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975) (state civil

nuisance action against adult theater by local sheriff and prosecutor).

Moreover, the federal plaintiff does not have to seek injunctive relief against

an ongoing state proceeding for a federal court to abstain. Younger

abstention also applies in federal declaratory judgment actions because they

involve "precisely the same interference with and disruption of state

proceedings" as an injunction. Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct.

764, 767, 27 L.Ed.2d 688 (1971).

Carroll, 139 F.3d at 1074. Younger abstention may also be applied where the plaintiff

seeks declaratory relief and damages. Id. at 1075 (finding the plaintiff's "federal actions for

damages under 42 U.S.C. § 1983 and the Fair Housing Act is a textbook case for Younger

abstention.").

Probate and criminal proceedings were pending in state court at the time plaintiffs

filed their complaint, and remain pending in Oakland County Probate Court and Oakland

County Circuit Court. Zalman, 802 F.2d at 203. State proceedings involving the temporary

removal of a child in a child-abuse context are quasi-criminal in nature, and involve an

important state interest. Moore v. Sims, 442 U.S. 415, 423 (1979) (citing Huffman v.

Pursue, 420 U.S. 592, 604 (1975), and applying Younger abstention in deference to

pending state proceedings in which three minor children were removed from their parents'

home by the Texas Department of Human Services). State criminal proceedings

traditionally implicate an important state interest. Leveye v. Metropolitan Public Defender's

Office, 73 Fed. App'x 792, 794 (6th Cir. 2003) (citing Younger, 401 U.S. at 43-45). The

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probate and criminal proceedings pending in Oakland County Probate Court and Oakland

County Circuit Court both involve important state interests. Id.; Moore, 442 U.S. at 423.

"Where vital state interests are involved, a federal court should abstain 'unless state law

clearly bars the interposition of the constitutional claims.'" Watts v. Burkhart, 854 F.2d 839,

845 (6th Cir. 1988) (quoting Middlesex, 457 U.S. at 432 (internal quotation omitted)). The

question is whether the plaintiffs' constitutional "challenge[s] may be raised in the pending

state proceedings subject to conventional limits on justiciability." Moore, 442 U.S. at 423.

Plaintiffs' claims that each of the defendants violated their First Amendment familial

rights by removing Jena from her home on November 14, 2008, plaintiffs Suzanne Kolley's,

Joseph Kolley's, and George Brown's claims that the Michigan DHS, Michigan APS, APS's

Fincher, the MORC defendants, and Detective Neph violated their parental liberty interests

by removing Jena from their homes without due process of law, plaintiffs' claims that the

Michigan DHS and Michigan APS violated their First and Fourteenth Amendment rights by

acting pursuant to the allegedly unconstitutional M.C.L. §§ 400.11a through 400.11c, and

plaintiffs' claims that the defendants were each motivated by unlawful discriminatory

animus in violation of 42 U.S.C. § 1983, constitute federal constitutional and statutory

challenges that may be raised in the guardianship proceedings pending in the Oakland

County Probate Court, and in the criminal proceedings pending against plaintiff Suzanne

Kolley in the Oakland County Circuit Court. Watts, 854 F.2d at 845; Moore, 442 U.S. at

423.

Plaintiff Suzanne Kolley's argument that she cannot challenge the constitutionality

of M.C.L. §§ 400.11a through 400.11c in her criminal proceeding is conclusionary, and

ignores the availability of the constitutional and statutory challenges in the guardianship

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proceedings pending before the Oakland County Probate Court. M.C.L. § 400.11a involves

the state-mandated reporting of adult abuse by a person "employed, licensed, registered,

or certified to provide health care, educational, social welfare, mental health, or other

human services; an employee of an agency licensed to provide health care, educational,

social welfare, mental health, or other human services; a law enforcement officer; or an

employee of the office of the county medical examiner who suspects or has reasonable

cause to believe that an adult has been abused, neglected, or exploited[.]" M.C.L. §

400.11a(1). M.C.L. § 400.11b requires the county DHS agency to commence an

investigation within 24 hours of receiving a report that an adult has been abused,

neglected, or exploited. M.C.L. § 400.11b(1). A person found to have acted in good faith

is "immune from civil liability which might otherwise be incurred by making the report or by

assisting in making the report." M.C.L. § 400.11c(1). As plaintiffs concede: "The present

civil case focuses on the process and procedure that lead up to the taking of Jena Kolley."

Plaintiffs' Response Brief, at 17. Plaintiffs' argument that it would be "illogical and

irrelevant" to raise their constitutional claims in the Probate Court is not well taken in that

plaintiffs have not shown that the Probate Court or the Circuit Court lack the judicial

authority to restore the status quo on constitutional grounds. Watts, 854 F.2d at 845;

Moore, 442 U.S. at 423.

This case is analogous to Lake v. Granholm, No. 1:07cv572, 2008 WL 724162 (W.D.

Mich. March 17, 2008), in which the federal district court abstained under the Younger

doctrine from exercising federal jurisdiction over a parent's claims that the Michigan DHS,

social workers, police, and court employees unlawfully removed her daughters from her

home in violation of the First, Fourth, and Fourteenth Amendments, that the defendants

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5

 M.C.L. § 722.628 requires that "a school or other institution shall cooperate with

the [Michigan DHS] during an investigation of a report of child abuse or neglect.

Cooperation includes allowing access to the child without parental consent if access is

determined by the department to be necessary to complete the investigation or to prevent

abuse or neglect of the child. . . . ." 

6

 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

17

acted under the allegedly unconstitutional statute M.C.L. § 722.628(8)5

, that the defendants

acted under unconstitutional statutes and protocols, and that the defendants were liable

under various state law claims of invasion of privacy, intentional infliction of emotional

distress, negligence, and violations of the Michigan Constitution. Id. at *1-3, *7-8. The

Lake plaintiff sought money damages, declaratory relief that M.C.L. § 722.628(8) and other

statutes and protocols were unconstitutional, and injunctive relief prohibiting enforcement

of the first two sentences of M.C.L. § 722.628(8). Id. at *2. The district court found that the

Lake plaintiff's pending criminal proceeding and a proceeding seeking to terminate her

parental rights afforded her the opportunity to raise her constitutional claims in state court.

Id. at *7-8. The instant plaintiffs have the same opportunity available to them in the

Oakland County Probate Court, and with respect to Suzanne Kolley, this opportunity also

extends to the criminal proceedings pending against her in the Oakland County Circuit

Court. See also Moore, 442 U.S. at 425-26, 433 (recognizing that "abstention is

appropriate unless state law clearly bars the interposition of the constitutional claims," and

reasoning that "[w]e are unwilling to conclude that state processes are unequal to the task

of accommodating the various interests and deciding the constitutional questions that may

arise in child-welfare litigation.").

Plaintiffs' reliance on this court's limitations under the Colorado River 6

abstention

doctrine is misplaced. The Colorado River doctrine applies on finding that "concurrent state

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and federal actions are actually parallel." Romine v. Compuserve Corp., 160 F.3d 337, 339

(6th Cir. 1998). Defendant Neph does not invoke the Colorado River doctrine, and this

court does not apply the Colorado River doctrine. The Supreme Court has recognized that,

although "federal courts have a 'virtually unflagging obligation to exercise the jurisdiction

given them," Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (quoting Colorado

River, 424 U.S. at 821), "this duty is not absolute." Quackenbush, 517 U.S. at 716 (citing

Younger and Huffman, supra). When applying the Younger doctrine, a district court should

abstain from exercising federal jurisdiction only if "extraordinary circumstances" render the

state court unable to "fairly and fully" address the federal constitutional issues. Moore, 442

U.S. at 432, 433 (quoting Kugler v. Helfant, 421 U.S. 117, 124-25 (1975)). Plaintiffs have

not asserted extraordinary circumstances which render the Oakland County Probate Court

and Oakland County Circuit Court unable to address the federal constitutional challenges

raised here.

It is apparent to this court that Younger abstention applies to the plaintiffs' federal

claims as alleged against each defendant. Ashley, 37 F.Supp.2d at 1029; Sweeton, 27

F.3d at 1169; Ku, 322 F.3rd at 433. A district court deciding to abstain under Younger has

the option of either dismissing the case without prejudice or holding the case in abeyance."

Eidson v. State of Tennessee Dept. of Children's Services, 510 F.3d 631, 638 (6th Cir.

2007) (quoting Coles, 448 F.3d at 866). Given the plaintiffs' opportunities to raise their

constitutional challenges in the ongoing state court proceedings, the court finds it is more

appropriate to dismiss the plaintiffs' federal claims without prejudice, and to dismiss

plaintiffs' state law claims under 28 U.S.C. § 1367(c)(3) on declining to exercise

supplemental jurisdiction. With the dismissal of the plaintiffs' federal and state law claims

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without prejudice, defendant Saltzman's pending motion to dismiss on the merits (# 18), the

MORC defendants' motion to dismiss on the merits (# 34), and defendants Michigan DHS's

and Fincher's motion to dismiss on the merits and under the Younger doctrine (# 35) will

be denied as moot.

IV. Conclusion

For the reasons set forth above, defendant Neph's motion to dismiss is hereby

GRANTED pursuant to the Younger doctrine. Plaintiffs's federal claims as alleged in

Counts I through IV are hereby DISMISSED, without prejudice, as alleged against all

defendants, in their entirety. Plaintiffs' state law claims are hereby DISMISSED, without

prejudice, pursuant to 28 U.S.C. § 1367(c)(3). Defendant Saltzman's motion to dismiss,

the MORC defendants' motion to dismiss, and DHS's and Fincher's motion to dismiss are

hereby DENIED as MOOT. 

SO ORDERED.

Dated: October 16, 2009

s/George Caram Steeh

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

October 16, 2009, by electronic and/or ordinary mail.

s/Josephine Chaffee

Deputy Clerk

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