                                                                       RECOMMENDED FOR FULL-TEXT PUBLICATION
16   Bartell v. Lohiser, et al.                 No. 98-1877                 Pursuant to Sixth Circuit Rule 206
                                                                    ELECTRONIC CITATION: 2000 FED App. 0194P (6th Cir.)
                                                                                File Name: 00a0194p.06
assessment of her intellectual disabilities, and appears to
contend that Defendants did not reasonably accommodate her
disability insofar as she was “deliberately denied [both] the
services of a full and fair psychological evaluation” and the    UNITED STATES COURT OF APPEALS
benefit of in-home services to assist her in raising William.                 FOR THE SIXTH CIRCUIT
Bartell’s Br. at 33-34.                                                         _________________
  Bartell, however, has not alleged a genuine issue of

                                                                                              ;
material fact that she was denied custody of William because

                                                                                               
of her disability, or denied any accommodations because of       ELLA BARTELL,
                                                                                               
her disability. See, e.g., Rodriguez v. City of New York, 197             Plaintiff-Appellant,
                                                                                               
F.3d 611, 618 (2d Cir. 1999) (holding that no ADA violation

                                                                                               
was shown because the disabled were not denied benefits that                                           No. 98-1877
were otherwise available). Both Defendants and the Probate                 v.
                                                                                               
Court relied on wide-ranging evidence pertaining to Bartell’s                                   >
conduct, behavior, and history of abuse in terminating her       LORETTA LOHISER; GERALD       
parental rights. Moreover, Bartell essentially concedes that,                                  
                                                                                               
                                                                 REIN; MICHAEL ROXBERRY;
prior to the termination decision, Defendants attempted to
                                                                                               
                                                                 LLOYD FETT; STATE OF
equip her with the skills necessary to care for William by
                                                                                               
providing parental aides, parental classes, and psychological    MICHIGAN; MICHIGAN
                                                                                               
therapy. Indeed, on appeal, Bartell does not even suggest that   FAMILY INDEPENDENCE
any services provided non-disabled persons were not provided     AGENCY, in the County of      
to her. We therefore conclude that the district court did not    Jackson; PATRICIA KEMPTER; 
err in granting Defendants qualified immunity on Bartell’s                                     
                                                                 LUTHERAN SOCIAL SERVICES, 
                                                                 PATRICK OKORONKWO;
ADA and Rehabilitation Act claims.
                                                                                               
                                                                                               
                             IV.                                 of Michigan; FRANK VAN
                                                                                               
                                                                 GOETHEM; WOODBRIDGE
                                                                                               
  For the foregoing reasons, we AFFIRM the district court’s      BEHAVIORAL MANAGEMENT
                                                                                               
grant of Defendants’ summary judgment motions. Because
                                                                                               
                                                                 CONSULTANTS; GERALD
we conclude that Defendants are entitled to qualified
                                                                        Defendants-Appellees, 
immunity on Bartell’s claims, we need not address Dr. Van        MILLER,
                                                                                               
Goethem’s and Woodbridge’s absolute immunity claims.
                                                                                               
Accordingly, we AFFIRM the judgment of the district court
                                                                                               
in all respects.                                                 SUSAN DEHNKE; COUNTY OF
                                                                                               
                                                                                               
                                                                 JACKSON; WOODBRIDGE

                                                                                  Defendants. 
                                                                 PSYCHOLOGICAL CENTER,

                                                                                              1


                                                                                            1
2      Bartell v. Lohiser, et al.                No. 98-1877   No. 98-1877                     Bartell v. Lohiser, et al.   15

                                                               America v. Scott, 463 U.S. 825, 829 (1983). In Browder v.
                                                               Tipton, 630 F.2d 1149 (6th Cir. 1980), we held that § 1985(3)
        Appeal from the United States District Court           only covers conspiracies against: 1) classes who receive
     for the Eastern District of Michigan at Ann Arbor.        heightened protection under the Equal Protection Clause; and
     No. 96-60416—Barbara K. Hackett, District Judge.          2) “those individuals who join together as a class for the
                                                               purpose of asserting certain fundamental rights.” Id. at 1150;
                   Argued: August 6, 1999                      see also Haverstick Enterprises, Inc. v. Financial Federal
                                                               Credit, Inc., 32 F.3d 989, 994 (6th Cir. 1994).
               Decided and Filed: June 7, 2000
                                                                  Bartell’s claim that Defendants discriminated against her on
    Before: JONES, SILER, and GILMAN, Circuit Judges.          account of her mental disabilities therefore is not actionable.
                                                               As noted earlier, the Supreme Court has not conferred suspect
                      _________________                        or quasi-suspect status on statutory classifications covering
                                                               the disabled, see Cleburne, 473 U.S. at 442; see also
                          COUNSEL                              Haverstick, 32 F.3d at 994 (holding that “[n]o existing legal
                                                               precedent supports the plaintiffs’ argument” that § 1985(3)
ARGUED:         David R. Parker, CHARFOOS &                    covers discriminatory conspiracies against the handicapped).
CHRISTENSEN, Detroit, Michigan, for Appellant. Margaret        Further, Bartell has not alleged that Defendants harbored any
A. Nelson, OFFICE OF THE ATTORNEY GENERAL,                     class-based animus toward those attempting to assert the
TORT DEFENSE DIVISION, Lansing, Michigan, Patrick D.           fundamental right to parent, or any other fundamental right.
Filbin, RUTLEDGE, MANION, RABAUT, TERRY &                      Accordingly, Bartell has failed to state a claim under
THOMAS, Detroit, Michigan, Patrick McLain, KERR,               § 1985(3). Moreover, because her § 1986 claim is derivative
RUSSELL & WEBER, Detroit, Michigan, Jeffrey C. Gerish,         and conditioned on establishing a § 1985 violation, Bartell’s
PLUNKETT & COONEY, Detroit, Michigan, for Appellees.           § 1986 claim must also be dismissed. See Browder, 630 F.2d
ON BRIEF:         David R. Parker, CHARFOOS &                  at 1155 (providing that there can be no violation of § 1986
CHRISTENSEN, Detroit, Michigan, for Appellant. Margaret        without a predicate violation of § 1985); Haverstick, 32 F.3d
A. Nelson, OFFICE OF THE ATTORNEY GENERAL,                     at 994 (same).
TORT DEFENSE DIVISION, Lansing, Michigan, Patrick D.
Filbin, Mary L. Dresbach, RUTLEDGE, MANION,                                                  C.
RABAUT, TERRY & THOMAS, Detroit, Michigan, Patrick
McLain, Joseph K. Grekin, KERR, RUSSELL & WEBER,                 Without specifying the particular nature of her claims,
Detroit, Michigan, Jeffrey C. Gerish, PLUNKETT &               Bartell additionally asserts that Defendants illegally
COONEY, Detroit, Michigan, for Appellees.                      discriminated against her in violation of the ADA and the
                                                               Rehabilitation Act. Because similar standards govern
                      _________________                        Bartell’s ADA and Rehabilitation Act claims, we will discuss
                                                               these contentions collectively. See Andrews v. State of Ohio,
                          OPINION                              104 F.3d 803, 807 (6th Cir. 1997); Ventura v. City of
                      _________________                        Independence, No. 95-3582, 1997 WL 94688, at *1 n.2 (6th
                                                               Cir. 1997) (unpublished opinion). Bartell alleges that
 NATHANIEL R. JONES, Circuit Judge. Plaintiff-                 Defendants terminated her parental rights on the basis of their
Appellant Ella Bartell brought the instant action against
14    Bartell v. Lohiser, et al.                    No. 98-1877       No. 98-1877                    Bartell v. Lohiser, et al.   3

                                B.                                    Defendants-Appellees Michigan Family Independence
                                                                      Agency (“FIA”), Lutheran Social Services of Michigan
   In addition to her substantive due process claim, Bartell          (“LSS”), and others, asserting that they violated various
asserts a number of other federal claims. Although not pled           federal and state laws in terminating her parental rights to
very well, she appears to assert a claim that the State’s             raise her son. The district court ultimately granted
consideration of her intellectual disability violated the Equal       Defendants’ motions for summary judgment, holding that
Protection Clause of the Fourteenth Amendment. Because                they were shielded from liability by the doctrine of qualified
disability-based classifications do not involve either a suspect      immunity. Bartell now appeals these rulings, and for the
or semi-suspect class, see City of Cleburne v. Cleburne Living        reasons that follow, we AFFIRM the district court’s
Ctr., 473 U.S. 432, 442-43 (1985), the State’s consideration          judgment.
of Bartell’s disability is constitutional to the extent it is
rationally related to the State’s legitimate interest in the health                                 I.
and welfare of William. See id. at 440; Cutshall v. Sundquist,
193 F.3d 466, 482 (6th Cir. 1999). Because LSS and FIA                   Bartell is the biological mother of William John Stanley,
considered Bartell’s intellectual incapacities along with a           who was born on August 20, 1987, and suffers from a number
variety of other factors pertaining to her parental fitness, we       of physical and psychological challenges. Sometime in 1988
conclude that this measured consideration of the relationship         or 1989, Bartell contacted Michigan’s Family Independence
between Bartell’s disability and William’s welfare falls within       Agency (“FIA”) for assistance in dealing with William’s
the broad bounds of rational basis review. See Borman’s Inc.          aggressive and hyperactive behavior, and FIA responded by
v. Michigan Property & Casualty Guaranty Assoc., 925 F.2d             providing Bartell with parental aides. In the early 1990s,
160, 162 (6th Cir. 1991) (noting the substantial deference            local authorities began investigating Bartell after receiving
afforded to state action under rational-basis review).                complaints that she and her husband were engaging in violent
                                                                      fights, and that Bartell was abusing her children. While
  We also reject Bartell’s claim that the district court erred in     acknowledging marital problems, Bartell denied that she
granting Defendants qualified immunity on Bartell’s statutory         physically or verbally abused her children. See Bartell v.
claims. Bartell has no actionable claim under § 1985(3)               Lohiser, 12 F.Supp.2d 640, 642 (E.D. Mich. 1998).
because it does not cover claims based on disability-based
discrimination or animus. To assert an actionable claim under            In 1992 and 1993, Bartell suffered through bouts of
§ 1985(3), a claimant must show that: 1) the defendants               depression and was hospitalized after a suicide attempt. After
conspired “for the purpose of depriving, either directly or           being released from the hospital, Bartell continued to receive
indirectly, any person or class of persons of the equal               treatment for her physical and mental ailments.
protection of the laws, or of equal privileges and immunities         Simultaneously, William’s behavior became increasingly
under the laws; and 2) the defendants committed acts that             uncontrollable, and in August 1993, Bartell voluntarily placed
deprived the claimant “of having and exercising any right or          him in the Chelsea Home for Boys. William stayed at the
privilege of a citizen of the United States.” 42 U.S.C.               Chelsea Home for approximately one year, when his behavior
§ 1985(3); see Griffin v. Breckenridge, 403 U.S. 88, 102-03           proved more than the Home could handle. Toward the end of
(1971). The Supreme Court has emphasized that § 1985(3)               his stay at Chelsea, William was hospitalized at the
requires inter alia that a claimant establish “some racial, or        University of Michigan’s Children’s Psychiatric Unit to
perhaps otherwise class-based, invidiously discriminatory             receive more specialized care. Thereafter, the Chelsea Home
animus.” United Brotherhood of Carpenters and Joiners of
4    Bartell v. Lohiser, et al.                  No. 98-1877      No. 98-1877                      Bartell v. Lohiser, et al.    13

discharged William because of his hospitalization and its         skills are undoubtedly relevant, at some level, to the ability of
inability to contain his behavior. See id.                        a parent to raise her child, the State must make a specific and
                                                                  tangible showing, not a presumptive one, on the precise
  After William’s discharge from the Chelsea Home, Bartell        nature of the links between these capacities and a particular
agreed to FIA’s suggestion that she voluntarily place him in      child’s needs. See, e.g., Dunn v. Blumstein, 405 U.S. 330,
foster care. Bartell believed that William’s placement in         343 (1972) (holding that narrow-tailoring requires a state to
foster care would be temporary, and that she would re-assume      act with “precision” and to use the least restrictive means of
his care when she was better able to do so. See id. Given         achieving its compelling interest).
William’s unique behavioral and psychological challenges,
FIA placed William in the care of LSS, which contracted with         In this case, Dr. Van Goethem’s report is filled with vague
FIA for the provision of foster care services. During this        and subjective appraisals of Bartell’s faculties that are not
period, Defendants Patricia Kempter and Patrick Okoronkwo,        empirically linked to her ability to attend adequately to
both LSS caseworkers, worked closely on William’s case.           William’s needs. While Bartell’s eloquence may not rival
                                                                  Winston Churchill, and the breadth of her vocabulary may not
  During William’s voluntary placement in foster care, FIA        challenge Oliver Wendell Holmes, her constitutional right to
asserts that Bartell visited William erratically and that his     parent her child may not be abrogated on these tenuous
behavior became agitated and uncontrollable during her visits.    grounds. To the extent that a parent’s intelligence level may
Claiming that she had sufficiently resolved her psychological     legitimately inform a State’s assessment of whether parental
maladies to re-assume her son’s care, Bartell asked to resume     rights may be terminated, the Constitution at least requires the
custody of her son in December 1994. See id. at 642-43.           State to establish empirically that the kinds of intelligence
Shortly thereafter, Lohiser and FIA initiated custody             most necessary to caring for a particular child are deficient in
proceedings in Jackson County Probate Court, asserting that       that parent. See id. Bartell’s low verbal IQ test score, which
William’s behavioral and emotional disorders, coupled with        drives many of Dr. Van Goethem’s findings, fails this test.
Bartell’s mental and emotional problems, prevented her from       Neither Dr. Van Goethem nor Defendants have made a
providing the care William needed. The Probate Court denied       specific and empirical showing that the verbal IQ test
FIA’s request, and Bartell was re-united with William on          measures the kinds of intelligence that are indispensable to
March 1, 1995. The next day, however, FIA filed a second          the ability of Bartell to care for her child. Without such a
petition to place William in temporary custody. On March 9,       showing, the State cannot demonstrate that terminating
1995, the Probate Court granted the petition and thereby          Bartell’s parental rights on the basis of her mental disabilities
continued William’s temporary out-of-home placement. In           was necessary to protect William’s well-being.
granting the petition, the court concluded that the out-of-home
placement was necessary to protect William from a                   Accordingly, we underscore that our holding does not rest
substantial risk that he would be mentally or physically          on the State’s characterizations of Bartell’s intellectual
harmed while in Bartell’s care.                                   disabilities, but on its specific findings pertaining to Bartell’s
                                                                  history of both receiving and delivering abuse, depression,
  The Probate Court conducted four hearings between               suicide attempts, pathological conduct, and her ultimate
September 1995 and April 1996 to review William’s case and        inability to control a child who presents unique behavioral
to assess whether William should be re-united with his            and psychological challenges. Based on these findings, we
mother. While Bartell claims that she complied with LSS’          hold that Bartell has not demonstrated that her parental rights
requirements that she attend parenting classes, receive           were terminated in contravention of the Due Process Clause.
12   Bartell v. Lohiser, et al.                  No. 98-1877      No. 98-1877                     Bartell v. Lohiser, et al.   5

the health and safety of William and whether the particular       therapy, and visit with her son, LSS reported that Bartell had
means employed were narrowly tailored to achieve that end.        difficulty controlling her son on her visits and was unable to
See Glucksberg, 521 U.S. at 721.                                  attend to him without the assistance of relatives. See id. Due
                                                                  to these findings, Bartell’s visitation privileges were reduced
   Bartell asserts, and the record provides, that LSS’ decision   from unsupervised to supervised.
to pursue termination proceedings was partially motivated by
its concern that William needed a caretaker with “special            In early 1996, LSS petitioned to have Bartell’s parental
skills to meet his special needs.” J.A. at 942. In particular,    rights terminated, and on May 15, 1996, the Probate Court
LSS, FIA and the Probate Court relied heavily on Dr. Van          held a hearing on this issue. Among other evidence, LSS
Goethem’s evaluation of Bartell, in which he found that she       proffered an examination of Bartell performed by Dr. Frank
was “intellectually limited” because she “was not very            Van Goethem. Dr. Van Goethem’s report provided that
articulate,” had “a limited vocabulary,” and scored 74 on the     Bartell was “intellectually limited” because she “was not very
verbal IQ test. J.A. at 113-115. Based on these findings, Dr.     articulate,” had “a limited vocabulary,” and scored 74 on the
Van Goethem “seriously question[ed] if Ms. Bartell ha[d] the      verbal IQ test. J.A. at 113-115. Van Goethem also found that
intellectual and necessary emotional resources to provide         Bartell suffered from dependent personality disorder, serious
optimal parenting for the children.” J.A. at 119. Bartell         depression, low self-esteem, and self-abusive, pathological
contended that her emotional problems and abusive                 behavior. See Bartell, 12 F.Supp.2d at 643-44. Based on
relationships were in her past, and that she was prepared to      these findings, Van Goethem concluded that it was “unwise
care for William at the time her parental rights were             to reunite Ms. Bartell with her children” and that he
terminated.                                                       “seriously question[ed] if Ms. Bartell ha[d] the intellectual
                                                                  and necessary emotional resources to provide optimal
   Given the entire record concerning Bartell’s capacity to       parenting for the children.” J.A. at 119. A second evaluator,
provide for her son, we hold that the State did not violate her   psychologist Gary Rutledge, also opined that Bartell was
fundamental right to raise William in terminating her parental    unable to care properly for William.
rights, and therefore the district court properly granted
Defendants qualified immunity on this claim. We reach this          Bartell countered Van Goethem’s and Rutledge’s reports
holding based upon the district court’s findings pertaining to    with affidavits from clinical psychologists Carolyn Moore-
Bartell’s suicide attempts, emotional instability, depression,    Newberger and Paul Jacobs. Both criticized Van Goethem’s
inability to control William’s behavior, involvement in           evaluation, stating that “his entire evaluation reflects his
abusive relationships, pathological behavior, and allegations     discrimination and bias” against Bartell, and that it “was
of child abuse. In concluding that FIA’s and LSS’ actions         grossly inadequate, completely inaccurate and was not based
were constitutionally justified on balance, we emphasize that     on any data which was gathered, verified and analyzed by Mr.
their appraisal of Bartell’s mental disabilities was an           Van Goethem.” J.A. at 307, 312.
insufficient predicate for abrogating her parental rights.
                                                                    Notwithstanding the reports of Moore-Newberger and
  Specifically, both the district court and Defendants place      Jacobs, the Probate Court granted LSS’ petition, concluding
significant credence on Dr. Van Goethem’s evaluation of           that Bartell “fail[ed] to provide proper care and custody for
Bartell’s “limited” intelligence level, see Bartell, 12           William and there is no reasonable likelihood that she will be
F.Supp.2d at 648, which is purportedly manifested by her low      able to provide proper care and custody within a reasonable
verbal IQ test score. While critical thinking and reasoning       time.” J.A. at 216. The court further concluded that there
6     Bartell v. Lohiser, et al.                    No. 98-1877      No. 98-1877                     Bartell v. Lohiser, et al.   11

was a “reasonable likelihood” that William would be harmed           objectively unreasonably in light of the clearly established
by the mental and emotional incapacities of his mother, and          right. See Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).
that irrespective of Bartell’s benign intentions, this
potentiality legally required that her parental rights be                                          A.
terminated. See J.A. at 216.
                                                                        It is clearly established that the Constitution recognizes
  While Bartell did not appeal the Probate Court’s ruling, she       both a protectible procedural due process interest in parenting
did file the instant seven-count federal Complaint against           a child and a substantive fundamental right to raise one’s
FIA, LSS, Jackson County, Van Goethem, and various LSS               child. See Michael H. v. Gerald D., 491 U.S. 110, 119-123
and FIA personnel. Bartell alleged federal claims under 42           (1989); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Vinson v.
U.S.C. §§ 1983, 1985 and 1986 (Counts I-III); the Americans          Campbell County Fiscal Court, 820 F.2d 194, 200 (6th Cir.
with Disabilities Act, 42 U.S.C. § 12132 (“ADA”), and the            1987). Although the parties fail to fully appreciate this
Rehabilitation Act, 29 U.S.C. § 794 (Count IV). She                  distinction, the differences between the procedural interest in
additionally asserted state claims for negligence and                raising one’s child and the substantive right, and the
intentional infliction of emotional distress (Count V, VII), and     corresponding scope of the duties imposed on government,
breach of the Michigan Handicappers’ Civil Rights Act,               are significant. While procedural due process principles
M.C.L.A. § 37.1101 (Count VI). Bartell thereafter stipulated         protect persons from deficient procedures that lead to the
to the dismissal of Defendants Susan Dehnke, Jackson                 deprivation of cognizable liberty interests, see Mathews v.
County, and Woodbridge Psychological Center. The                     Eldridge, 424 U.S. 319, 333-34 (1976), substantive due
remaining Defendants subsequently filed motions for                  process provides that, irrespective of the constitutional
summary judgment.                                                    sufficiency of the processes afforded, government may not
                                                                     deprive individuals of fundamental rights unless the action is
  The district court granted these motions, concluding that          necessary and animated by a compelling purpose. See
the doctrine of qualified immunity shielded the remaining            Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Here,
Defendants from suit for their actions. The district court ruled     Bartell has not alleged that the process she was afforded failed
that although Bartell undoubtedly has a constitutional interest      to comply with constitutional standards, and we will therefore
in caring for her child, that right is not absolute given the        confine our analysis to her substantive due process claim.
State’s concurrent interest in the health and welfare of
children in its jurisdiction. See Bartell, 12 F.Supp.2d at 647.         This is a path we do not lightly tread. Although Bartell has
Apparently responding to a procedural Due Process Claim,             a fundamental right to raise her son, the State has a
the district court noted that Bartell had not alleged a              concomitant interest in the welfare and health of children in
deficiency either in the administrative process or the               its jurisdiction, and in certain narrowly-defined
processes before the Probate Court. Without specifically             circumstances, the State’s interest in a child’s well-being may
resolving the clash of the substantive liberty interests at stake,   supersede that of a parent. See Santosky v. Kramer, 455 U.S.
the district court granted Defendants qualified immunity on          745, 766-67 (1982); see also Stanley v. Illinois, 405 U.S. 645,
Bartell’s due process claim. The district court also rejected        652 (1972) (recognizing that because the State has cognizable
Bartell’s equal protection claim, holding that the Probate           interests in the safety of children in its jurisdiction,
Court did not violate constitutional norms by incorporating          “neglectful parents may be separated from their children”). In
Bartell’s intelligence level into its custody determination. See     determining the constitutional legitimacy of FIA’s and LSS’
id. at 648. After concluding that the State did not err in           actions, we must assess whether they were acting to ensure
10    Bartell v. Lohiser, et al.                   No. 98-1877      No. 98-1877                         Bartell v. Lohiser, et al.        7

   Here, the LSS defendants direct a non-profit operation that      considering Bartell’s limited intellectual capacity in assessing
is closely supervised by FIA. Bartell does not dispute the          Bartell’s parental fitness, the district court additionally denied
district court’s findings on the extent of involvement by FIA       Bartell’s ADA and Rehabilitation Act claims. With these
in the activity of LSS. The court found that FIA only               rulings, the district court granted Defendants qualified
purchases private foster care services when it cannot meet the      immunity on all of Bartell’s federal claims, and after
needs of a particular child. See Bartell, 12 F.Supp.2d at 646.      declining to exercise pendent jurisdiction, dismissed Bartell’s
Additionally, FIA appoints a caseworker to monitor the              state law claims. Bartell now appeals the district court’s grant
appropriateness and sufficiency of LSS’ foster care plans, and      of Defendants’ summary judgment motions.
in this case, a FIA caseworker specifically approved of LSS’
plans for William. Id. Moreover, the purposes of qualified                                            II.
immunity apply with particular force to the foster care
services provided by LSS. Decisions pertaining to the welfare         We review the district court’s grant of Defendants’
of a child, which may, as in this case, result in the termination   summary judgment motions de novo. See Terry Barr Sales
of the natural bond between parent and child, require the           Agency, Inc. v. All-Lock Co., Inc., 96 F.3d 174, 178 (6th Cir.
deliberate and careful exercise of official discretion in ways      1996); see also Spurlock v. Satterfield, 167 F.3d 995, 1000
that few public positions can match. The necessity that this        (6th Cir. 1999). Summary judgment is appropriate “if the
delicate process not be over-burdened with encumbering              pleadings, depositions, answers to interrogatories, and
litigation comports entirely with the Harlow Court’s                admissions on file, together with the affidavits, if any, show
formulation of the purposes of qualified immunity protection.       that there is no genuine issue as to any material fact and that
Accordingly, because of the closely monitored, non-profit           the moving party is entitled to a judgment as a matter of law.”
interrelationship between FIA and LSS, we hold that the LSS         Fed. R. Civ. P. 56(c); see also Terry Barr, 96 F.3d at 178. No
defendants may assert qualified immunity.                           genuine issue for trial exists when “the record taken as a
                                                                    whole could not lead a rational trier of fact to find for the non-
                              III.                                  moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
                                                                    Corp., 475 U.S. 574, 587 (1986). Moreover, we must review
  Bartell further contends that even to the extent the LSS          the record, and any inferences derived therefrom, in the light
defendants may assert qualified immunity, the district court        most favorable to the party opposing the motion. See id.
erred in granting summary judgment because both the LSS
and FIA defendants violated her clearly established                                                   A.
constitutional and statutory rights. Bartell alleges that
Defendants terminated her custody of William on the basis of          Bartell first asserts that qualified immunity is unavailable
her mental disabilities, and to that extent, violated her clearly   to LSS and the LSS individual defendants [hereinafter “LSS1
established constitutional rights to due process and equal          defendants”] because they are “non-governmental actors.”
protection, in addition to her statutory rights under the ADA,
the Rehabilitation Act, and §§ 1983, 1985, and 1986.
                                                                        1
  We apply a two-step analysis to determine whether                       Bartell also contends that under the ADA and the Rehabilitation
qualified immunity is proper: first, we determine whether a         Act, Congress specifically abrogated qualified immunity protections for
                                                                    states and state agencies. However, this Circuit, as well as a number of
“clearly established” constitutional or statutory right has been    our sister Circuits, have granted state employees qualified immunity
violated; and second, we ascertain whether the official acted       against ADA and Rehabilitation Act claims. See Stigall v. Lewis, No. 97-
                                                                    5301, 1999 WL 183392, at *2 (6th Cir. Mar. 16, 1999) (unpublished
8     Bartell v. Lohiser, et al.                         No. 98-1877        No. 98-1877                     Bartell v. Lohiser, et al.    9

Bartell’s Br. at 24. Specifically, relying on the Supreme                   public official’s personal liability to objectively unreasonable
Court’s holding in Richardson v. McKnight, 521 U.S. 399                     violations of clearly established law, the Harlow Court was
(1997), Bartell contends that the purposes of affording state-              expressly concerned that numerous lawsuits would distract
affiliated actors qualified immunity are inconsistent with                  government officials from performing their functions, would
granting the LSS defendants qualified immunity, and that the                inhibit discretionary action, and would deter desirable
district court therefore erred in dismissing her claims.                    candidates from performing public service. See Harlow, 457
                                                                            U.S. at 816.
  It is well settled that private parties that perform
fundamentally public functions, or who jointly participate                    In Wyatt and Richardson, the Supreme Court refined
with a state to engage in concerted activity, are regarded as               Harlow, holding that a private party may not assert qualified
acting “under the color of state law” for the purposes of                   immunity when the incentives for a particular government
§ 1983. See Wyatt v. Cole, 504 U.S. 158, 162 (1992); Lugar                  function are fundamentally inconsistent with the foregoing
v. Edmonson Oil Co., 457 U.S. 922, 929, 938-39 (1982);                      purposes of qualified immunity protection. See Wyatt, 504
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157 (1978). In                   U.S. at 167 (providing that “the special policy concerns” that
assessing whether the qualified immunity afforded state                     underlie qualified immunity protections are critical to
officials extends to private actors who are considered state                determining whether its protections are available);
actors under § 1983, we must consider both the purposes of                  Richardson, 521 U.S. at 404 (same). Specifically, in
qualified immunity protection and the nature of the                         Richardson, the Court ruled that employees of a privately run,
relationship between the state and the putative private party.              for-profit prison that had contracted with the State for the
See Richardson, 521 U.S. at 404.                                            provision of penological services could not assert qualified
                                                                            immunity. The Richardson Court concluded that the
   Qualified immunity protects government officials                         prevailing economic incentives in the market for privately
performing discretionary functions from liability for civil                 provided penological services were sufficiently strong to
damages “insofar as their conduct does not violate clearly                  essentially render qualified immunity protection superfluous.
established statutory or constitutional rights of which a                   See Richardson, 521 U.S. at 409-410.
reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Within the context of allowing                       In this context, the Court found that “marketplace pressures
private parties to vindicate their right to be free from § 1983             provide the private firm with strong incentives to avoid overly
infractions, the animating purpose of the Supreme Court’s                   timid, insufficiently vigorous, unduly fearful, or ‘nonarduous’
articulation of qualified immunity standards in Harlow is to                employee job performance,” and that to this extent, the prison
allow public officials to perform important government                      employees were more akin to private workers than public
functions free from the debilitating effects of excessive                   officials. Richardson, 521 U.S. at 410. However, in denying
litigation. See id.; Wyatt, 504 U.S. at 166. In limiting a                  the prison employees’ attempt to assert immunity, the Court
                                                                            emphasized that the prison was operated for-profit and with
                                                                            “limited direct supervision by the government.” Id. at 413.
                                                                            In this regard, the Court distinguished the situation it faced
opinion); Allison v. Department of Corrections, 94 F.3d 494, 497-98 (8th    from a private individual “serving as an adjunct to
Cir. 1996); Torcasio v. Murray, 57 F.3d 1340, 1343 (4th Cir. 1995);
McGregor v. Louisiana State Univ. Bd. of Spvrs., 3 F.3d 850, 862 (5th       government in an essential governmental activity, or acting
Cir. 1993); P.C. v. McLaughlin, 913 F.2d 1033, 1038-41 (2d Cir. 1990).      under close official supervision.” Id.
Accordingly, Bartell’s claim that qualified immunity is not available for
ADA and Rehabilitation Act claims is without merit.
