                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 13-2256


LINDA A. EVANS,

                  Plaintiff – Appellee,

          v.

GEORGE L. PERRY, Director of Pitt County Social Services in
his official capacity; CYNTHIA M. ROSS, in her individual
capacity; LINDA MILLION, in her individual capacity,

                  Defendants – Appellants,

          and

PITT COUNTY DEPARTMENT OF SOCIAL SERVICES; APRIL HANNING,
in her individual capacity; LINDA MARTIN CURTIS, in her
individual capacity,

                  Defendants.



                                No. 13-2294


LINDA A. EVANS,

                  Plaintiff – Appellant,

          v.

PITT COUNTY DEPARTMENT OF SOCIAL SERVICES; GEORGE L. PERRY,
Director of Pitt County Social Services in his official
capacity;    APRIL HANNING, in her individual capacity;
CYNTHIA M. ROSS, in her individual capacity; LINDA MILLION,
in her individual capacity,

                  Defendants – Appellees,
          and

LINDA MARTIN CURTIS, in her individual capacity,

                Defendant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:12-cv-00226-FL)


Submitted:   June 30, 2014                   Decided:    July 11, 2014


Before WILKINSON and     DUNCAN,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Vacated in part; dismissed in part by unpublished per curiam
opinion.


Scott C. Hart, SUMRELL, SUGG, CARMICHAEL, HICKS & HART, P.A.,
New Bern, North Carolina, for Appellants/Cross-Appellees George
L. Perry, Cynthia M. Ross, Linda Million, Pitt County Department
of Social Services and April Hanning. David C. Sutton,
Greenville, North Carolina, for Appellee/Cross-Appellant Linda
A. Evans.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Linda    A.    Evans    filed       a    42   U.S.C.    § 1983       (2012)

complaint against the Pitt County Department of Social Services

(“DSS”),    George       Perry,    Linda       Million,   Cynthia        Ross,    April

Hanning, and Linda Curtis.            The complaint alleged a series of

events in which employees of DSS petitioned for and ultimately

obtained guardianship of Evans’ elderly and infirm mother, also

obtaining a court order freezing many of Evans’ assets.                          While

Curtis     filed    an    answer     to    the      complaint,     the      remaining

Defendants filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss

the complaint.

            The magistrate judge recommended dismissing the claims

against the DSS, dismissing Evans’ claims of violations of her

First, Seventh, Ninth, and Fourteenth Amendment rights based on

Medicaid    planning       and    familial       association,      and     dismissing

Evans’ state law claims for abuse of process and intentional

infliction of emotional distress.                   The magistrate judge also,

however, recommended denying the motion to dismiss with respect

to Evans’ claim against Ross and Million of a procedural due

process violation based on the deprivation of her property when

her assets were frozen, and the derivative claim against Perry

of failure to train and supervise.

            In their objections to the magistrate judge’s report

and recommendation, Ross, Million, and Perry asserted that they

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were entitled to absolute immunity as to Evans’ procedural due

process       claim.       The      district       court     adopted         the     magistrate

judge’s report and recommendation in all respects, and rejected

the assertion of absolute immunity.                        Ross, Million, and Perry

filed    an    interlocutory         appeal    of     the    district         court’s       order

denying their claim of absolute immunity.                        Evans cross-appealed,

and    seeks    to     challenge     in     this    appeal       the    dismissal       of    the

remaining claims.

               This court may exercise jurisdiction only over final

orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and

collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.

54(b); Cohen         v.   Beneficial        Indus.    Loan       Corp.,       337    U.S.    541,

545-46    (1949).         A   “final      decision”         is   “one        which    ends    the

litigation on the merits and leaves nothing for the court to do

but execute the judgment.”                   Catlin v. United States, 324 U.S.

229,    233    (1945).        An    order    is     not    final       if    it    disposes    of

“‘fewer than all the claims or the rights and liabilities of

fewer than all the parties.’”                      Robinson v. Parke-Davis & Co.,

685 F.2d 912, 913 (4th Cir. 1982) (quoting Fed. R. Civ. P.

54(b)).

               A district court’s grant or denial of immunity is an

immediately appealable order.                 See Mitchell v. Forsyth, 472 U.S.

511,    530    (1985).        The    court’s       dismissal       of       Evans’    remaining

claims, however, is not an immediately appealable interlocutory

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or collateral order.            It is also not a final order, as it did

not dispose of all the claims, and there is still a Defendant,

Curtis,     against      whom    Evans’      claims      remain       pending         in    the

district court.

            We     may   exercise       pendent      appellate        jurisdiction           to

review    issues    “that       are   not   otherwise         subject       to    immediate

appeal when such issues are so interconnected with immediately

appealable issues that they warrant concurrent review.”                                Rux v.

Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006) (citation

omitted).        Such    “jurisdiction       is     available        only    (1) when         an

issue is inextricably intertwined with a question that is the

proper subject of an immediate appeal; or (2) when review of a

jurisdictionally         insufficient       issue       is    necessary          to    ensure

meaningful    review      of    an    immediately       appealable      issue.”             Id.

(citing    Swint    v.    Chamber      Cnty.      Comm’n,      514    U.S.       35,       50-51

(1995))     (internal      quotation        marks     omitted).             We    conclude,

however, that the issues Evans seeks to raise on appeal are not

inextricably       intertwined          with      the        immunity        issue,          and

determination of the issues she seeks to raise is not necessary

to meaningfully review the immunity issue, properly before this

court.    We therefore decline to exercise jurisdiction over the

issues raised in Evans’ cross-appeal.

            With respect to the narrow issue on appeal, we review

de novo a district court’s ruling on a Rule 12(b)(6) motion,

                                            5
accepting     factual          allegations     in     the    complaint    as      true    and

drawing   all      reasonable          inferences     in    favor    of   the     nonmoving

party.    Kensington Volunteer Fire Dep’t v. Montgomery Cnty., 684

F.3d 462, 467 (4th Cir. 2012).                        To survive a Rule 12(b)(6)

motion to dismiss, a complaint must contain sufficient “facts to

state a claim to relief that is plausible on its face.”                                  Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

              Social workers are entitled to absolute immunity for

actions taken in a prosecutorial rather than investigative or

policing capacity.               Vosburg v. Dep’t of Soc. Serv., 884 F.2d

133,    135   (4th        Cir.    1989).       That     immunity      extends      only    to

prosecutorial actions, however, including preparing and filing a

removal petition and prosecuting that action.                       Id. at 135-38.

              To state a valid procedural due process claim, Evans

was    required      to    demonstrate        “(1)    that    [she]    had    a   property

interest;      (2)        of     which     [the      Appellants]      deprived      [her];

(3) without due process of law.”                      Tri County Paving, Inc. v.

Ashe    County,      281       F.3d    430,   436     (4th    Cir.    2002)       (citation

omitted).       In determining whether there has been a procedural

due process violation, a court must first determine whether the

plaintiff has a property or liberty interest and whether such an

“interest     is     within      the     Fourteenth     Amendment’s       protection       of

liberty and property.”                 Smith v. Org. of Foster Families for

Equal. & Reform, 431 U.S. 816, 841 (1977).                          Due process of law

                                              6
generally requires notice and an opportunity to be heard.                                Tri

County Paving, 281 F.3d at 436.

                Here, the district court determined that Evans had a

property        interest    in     her   assets    that    were     frozen     during    the

removal hearings.           See, e.g., Sansotta v. Town of Nags Head, 724

F.3d 533, 540 (4th Cir. 2013) (money and right to enjoy real

property are clearly cognizable property interests).                            The court

rejected        immunity,     however,        finding     that      Evans    had    pleaded

actions taken by Ross and Million that were not prosecutorial in

nature.         Having carefully reviewed the record and the relevant

legal authorities, we conclude that the actions allegedly taken

by Ross and Million cited by the district court did not relate

to   the    specific       claim    of   a    procedural      due    process       violation

based      on    the   deprivation       of    Evans’     property.          The    actions

relevant to Evans’ claim of a procedural due process violation

based on the deprivation of her property * were prosecutorial in

nature under Vosburg.                See 884 F.2d at 135-38 (prosecutorial

actions     include     preparing        and    filing    a   removal       petition     and

prosecuting that action).

      *
       To the extent that Evans sought to plead a procedural due
process violation based on the deprivation of any other liberty
interest, that issue is not before this court as the district
court concluded that Evans had not properly pleaded a protected
liberty interest, and that conclusion is not subject to
interlocutory review, as we have declined to exercise pendant
jurisdiction.


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            We   therefore    conclude       that     Ross    and   Million    were

entitled    to   absolute     immunity       from    Evans’     claim   that   they

violated her procedural due process rights in depriving her of

her property when her assets were frozen.                    Moreover, the claim

against Perry for failure to train or supervise was a derivative

claim     that   survived    because     the       underlying    procedural     due

process     claim   survived     against        Ross    and      Million.       See

Vathekan v. Prince George’s County, 154 F.3d 173, 180-81 (4th

Cir. 1998) (municipal liability is derivative of liability of

individual officers, and plaintiff must demonstrate custom or

policy that resulted in constitutional violation).                      As we find

that Ross and Million were entitled to absolute immunity on the

underlying claim, the derivative claim against Perry must fail.

            Accordingly, we vacate the district court’s order with

respect to the court’s finding that Ross, Million, and Perry

were not entitled to absolute immunity from Evans’ claim of a

procedural due process violation based on the deprivation of her

property and from the derivative claim of failure to train and

supervise, with directions that the district court dismiss those

claims.     We dismiss Evans’ cross-appeal.             We dispense with oral

argument     because    the     facts        and     legal      contentions     are




                                         8
adequately   presented   in   the   materials   before    this   court   and

argument would not aid in the decisional process.

                                                          VACATED IN PART;
                                                         DISMISSED IN PART




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