               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 10a0652n.06

                                    No. 09-4018 & 09-4199

                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                              Oct 15, 2010
                                                                            LEONARD GREEN, Clerk

HADIYA ABDULSALAAM, Individually,               )
and as Mother and Natural Guardian of           )
Makeba Kristos, a minor, et al.,                )
                                                )
       Plaintiffs-Appellees/Cross-Appellants,   )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
FRANKLIN COUNTY BOARD OF                        )    SOUTHERN DISTRICT OF OHIO
COMMISSIONERS, FRANKLIN COUNTY                  )
CHILDREN SERVICES’S BOARD OF                    )
T RU S T E E S , J O H N S A R O S , a nd       )
COURTNEY ALLENSWORTH,                           )
                                                )
       Defendants-Appellees,                    )
                                                )
and                                             )
                                                )
AMBER SPIRES,                                   )
                                                )
       Defendant-Appellant/Cross-Appellee.      )



       Before: GIBBONS and COOK, Circuit Judges; and VAN TATENHOVE, District Judge.*


       PER CURIAM. Hadiya AbdulSalaam and her three daughters brought this § 1983 action

against the Franklin County Board of Commissioners, the Franklin County Children’s Services

(FCCS) Board of Trustees, and several FCCS employees—caseworker Amber Spires, supervisor



       *
        The Honorable Gregory Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 09-4018 & 09-4199
AbdulSalaam v. Franklin Cnty. Bd. Of Comm’rs, et al.


Courtney Allensworth, and Executive Director John Saros—for constitutional and common law

violations related to the Defendants’ alleged fabrication of abuse and neglect evidence. The district

court granted summary judgment to all defendants except Spires.


       Spires interlocutorily appeals, claiming that absolute and qualified immunity protect her from

liability for allegedly breaching Plaintiffs’ substantive due process and First Amendment rights.

Plaintiffs cross-appeal the district court’s determinations that neither Saros nor Allensworth knew

the information they conveyed to the media or other organizations was false or acted with retaliatory

intent, and that Allensworth failed to take sufficient affirmative action to render her liable for

Spires’s misconduct.


                                           I. Background


       Hadiya AbdulSalaam, an African-American mother of four daughters (Mandisa, Makeba,

Meserete, and Masika) and one son (Mandela), converted her family to Islam when she married

Naim AbdulSalaam in 1996. The parents initiated contact with FCCS seeking help controlling their

teenage son’s behavior. Spires contends that Mandela intimated that he suffered physical abuse at

home. These allegations prompted Spires to conduct two family visits and shortly thereafter

recommend removal of the AbdulSalaam’s three minor daughters because, according to the custody

complaint, Hadiya neglected their educational needs. The district court adequately set forth the facts

underlying Plaintiffs’ claims, appropriately noting the many genuine factual disputes, and we need

not repeat them in detail here. Ultimately, more than a year after FCCS removed the children and

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No. 09-4018 & 09-4199
AbdulSalaam v. Franklin Cnty. Bd. Of Comm’rs, et al.


after extensive judicial proceedings, the Juvenile Court dismissed the complaint against the

AbdulSalaams and exonerated Hadiya.


       Plaintiffs brought suit under 42 U.S.C. § 1983, complaining that the Defendants denied them

the equal protection of the law by administering FCCS services to the African-American family in

a racially discriminatory manner; violated their substantive due process by (a) infringing the

children’s free exercise of religion, (b) depriving the family of their First Amendment right to

familial association, and (c) breaching Hadiya’s Fourteenth Amendment right to direct the education

and upbringing of her daughters; and retaliated against Hadiya for her public criticism of FCCS in

violation of the First Amendment. Plaintiffs also accused Defendants of the Ohio tort, intentional

infliction of emotional distress.


       Defendants moved for summary judgment on all counts. The district court found no

evidentiary support for Plaintiffs’ racial discrimination claim (noting instead that only religious

discrimination appeared to underlie FCCS’s actions), granted all defendants except Spires summary

judgment, and awarded Spires qualified immunity on Plaintiffs’ claim that FCCS’s actions infringed

the girls’ freedom of religion. The court found that qualified immunity did not, however, shield

Spires from liability for violating Plaintiffs’ right to familial association, Hadiya’s liberty interest

in directing her children’s upbringing, or Hadiya’s First Amendment rights; nor did state statutory

immunity prevent a jury from finding that Spires’s actions intentionally inflicted emotional distress.




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No. 09-4018 & 09-4199
AbdulSalaam v. Franklin Cnty. Bd. Of Comm’rs, et al.


       Spires appeals all four adverse determinations. Plaintiffs cross-appeal, but notably abandon

their race-related claims and municipal-liability claims against Franklin County. Instead, Plaintiffs

seek to reverse the district court’s holdings that neither Allensworth nor Saros participated

sufficiently in the unconstitutional activity for a jury to find Allensworth liable on the familial

association claim or either defendant liable for First Amendment retaliation.


                                            II. Analysis


A. Jurisdiction


       We lack jurisdiction to consider whether the district court correctly determined that genuine

factual disputes precluded awarding Spires qualified immunity on Plaintiffs’ substantive due process

and First Amendment retaliation claims. Johnson v. Jones, 515 U.S. 304, 319–20 (1995). We

accordingly dismiss Spires’s qualified immunity appeals, as she urges us to consider only factual

aspects of the lower court’s decision.


       We retain jurisdiction over Spires’s appeal of the district court’s absolute immunity and state

statutory immunity denials, Ohio Rev. Code § 2744.02(C) (“An order that denies . . . the benefit of

an alleged immunity from liability as provided in this chapter or any other provision of the law is a

final order.”); Will v. Hallock, 546 U.S. 345, 350 (2006) (absolute immunity denials qualify as final

and appealable); and properly review the questions of law Plaintiffs raise on cross-appeal, Boyd v.

Baeppler, 215 F.3d 594, 596 (6th Cir. 2000).


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No. 09-4018 & 09-4199
AbdulSalaam v. Franklin Cnty. Bd. Of Comm’rs, et al.


B. Absolute and State-Statutory Immunity


       We find that no jurisprudential purpose would be served by issuing a panel opinion regarding

Spires’s claims to absolute and state-statutory immunity in view of the well-reasoned,

comprehensive opinion of the district court, which the panel hereby adopts as its opinion to affirm

the district court judgment.


C. Plaintiffs’ Cross-Appeal


       1. Supervisory Liability


       The district court granted Saros and Allensworth summary judgment due to Plaintiffs’ failure

to clearly respond to Allensworth’s and Saros’s arguments that neither of them actively participated

in or encouraged Spires’s illegal conduct. “[T]hat failure alone,” the court held, “warrants summary

judgment in Defendants favor on that issue.” Abdulsalaam v. Franklin Cnty. Bd. of Comm’rs, 637

F. Supp. 2d 561, 578 (S.D. Ohio 2009). In the alternative, the court addressed the merits of

Plaintiffs’ claims against the two supervisors and found that Plaintiffs failed to demonstrate that

either “encouraged or condoned the actions of their inferiors.” Id. (citing Gregory v. City of

Louisville, 444 F.3d 725, 751–52 (6th Cir. 2006)).


       Plaintiffs’ failure to counter the court’s primary holding moots this prong of their cross-

appeal which attacks only the court’s alternate reasoning. See United States v. Thornton, 609 F.3d



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No. 09-4018 & 09-4199
AbdulSalaam v. Franklin Cnty. Bd. Of Comm’rs, et al.


373, 380 (6th Cir. 2010) (when district court articulated two dispositive holdings, appellant’s failure

to address both prompted court of appeals to decline review of either).


        2. First Amendment Retaliation


        Here too, the district court rightly faulted the Plaintiffs’ failure to point to evidence in support

of the necessary “intent” element in their response to the Defendants’ summary judgment motion.

Plaintiffs’ Third Claim charged that “a motivating factor in the actions taken by Defendants after

Plaintiff and others began complaining of discrimination based on religion and race was to intimidate

and silence Plaintiff . . . .” Plaintiffs did not argue before the district court that temporal proximity

alone sufficed to establish intent. Thus, in the absence of any evidence that Saros’s motive in

responding to the newspaper was to “intimidate and silence” Plaintiffs, we discern no legal error.


                                             III. Conclusion


        We dismiss Spires’s qualified immunity appeal for lack of jurisdiction, adopt and affirm the

district court’s absolute immunity and state statutory immunity judgments, deny the cross-appeal as

moot due to Plaintiffs’ failure to challenge the district court’s supervisory-liability holding and affirm

the district court’s granting of summary judgment on Plaintiffs’ First Amendment claims.




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