Reale et al v. Wake County Human Services et al

Filing 173

ORDER: The court DENIES IN PART and DENIES WITHOUT PREJUDICE IN PART plaintiffs' motion for a temporary restraining order 19 , and DIRECTS plaintiffs to obtain counsel to represent their children on or before January 11, 2013, or face dismissa l without prejudice of their children's claims. The court DENIES AS MOOT defendant Joyce Williams' motion to strike and dismiss plaintiffs' motion for a temporary restraining order 128 . Signed by Chief Judge James C. Dever III on 12/12/2012. A copy of the order was mailed to the pro se plaintiffs. (Sawyer, D.)

IN THE UNlTED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DMSION

No.5:11-CV-682-D

RONALD REALE, and DEBRA REALE, )
individually, and olb/o their minor children, )
)
Plaintiffs
)
)

v.

)

WAKE COUNTY HUMAN SERVICES,
et al.,

Defendants.

ORDER

)
)
)
)
)

On November 28,2011, plaintiffs Ronald Reale ("Ronald") and Debra Reale ("Debra''),
appearing pro se on behalfofthemselves and their minor children, filed a joint application to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915 [D.E. 1]. Plaintiffs attached their complaint [D.E.
1], Att. 1, and also filed a motion for a preliminary injunction and permanent injunction [D.E. 3].
Plaintiffs allege that they are involved in litigation with Wake County Human Services (and others)
concerning child custody and the placement oftheir minor children in foster care and that they seek
damages and injunctive reliefpursuant to 42 U.S.C. § 1983 on behalfofthemselves and their minor
children. See [D.E. 1], Att. 1 ("Compl."); Mot. for Inj. [D.E. 3]. On December 8, 2011, the court
denied plaintiffs' joint application to proceed in forma pauperis, dismissed plaintiffs' complaint, and
denied as moot plaintiffs' motion for a preliminary injunction and a permanent injunction [D.E. 4].
On May 4,2012, the United States Court of Appeals for the Fourth Circuit issued an unpublished
opinion in which it vacated this court's dismissal of plaintiffs' complaint and remanded the case.
Reale v. Wake CnD'. Human Servs., 480 F. App'x 195, 197 (4th Cir. 2012) (per curiam)
(unpublished).
On September 17, 2012, plaintiffs renewed their motion for a temporary restraining order

[D.E. 19] and filed an amended complaint [D.E. 21]. Plaintiffs also seek appointment ofa guardian
ad litem for their minor children, or time to retain counsel to represent their children in this action.
Mot. TRO 3. On November 19, 2012, defendant Joyce Williams filed a motion to strike and dismiss
plaintiffs' motion for a temporary restraining order [D.E. 128]. Several defendants also filed
responses in opposition to the motion for temporary restraining order [D.E. 140, 146, 149, 153, 164,
167]. All of the responses object to any entry of a temporary restraining order, but do not address
plaintiffs' request for appointment ofa guardian ad litem. As explained below, the court denies the
motion for temporary restraining order and orders plaintiffs to obtain counsel for their children or
face dismissal without prejudice of their children's claims.

I.
Plaintiffs' amended complaint is seventy-eight pages long and not a model of clarity. The
North Carolina Court of Appeals has recounted some of the pertinent background of this case as
follows:
The evidence of record tends to show the following: [Ronald] and Debra Reale
... are citizens and residents ofWake County, North Carolina. [Ronald] and [Debra]
were married and had seven children together. On 8 March 2010, the parties
separated. [Debra] then left North Carolina and traveled to California with the
children.
On 29 March 2010, the trial court entered an ex-parte emergency custody order
granting emergency sole temporary physical and legal custody ofthe minor children
to [Ronald]. On 5 April 2010, the trial court entered an amended order stating that
the minor children were at "substantial risk ofbeing removed from the State ofNorth
Carolina for the purpose ofevading the jurisdiction ofNorth Carolina courts and are
in substantial risk to serious physical harm." The 5 April 2010 order granted
[Ronald] temporary physical and legal custody of the minor children and directed
[Debra] to immediately surrender the minor children to [Ronald]. The next hearing
was scheduled for 5 April 2010; however, it was continued to 3 May 2010.
On 12 Apri12010, the trial court learned that [Debra] had filed a motion for an
ex-parte domestic violence order in the State ofCalifornia, the hearing for which was
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on 15 April 20 10, at 8:30 a.m. PST. A California Commissioner issued a temporary
restraining order after that hearing; however, there is no dispute that the California
court lacked personal jurisdiction over [Ronald]. Subsequent to the hearing, on 15
April 2010, a telephone conference transpired between the California and North
Carolina judges. All parties were then directed to return to the State of North
Carolina to appear before the trial court on 3 May 20 10 for a temporary custody hearing.
. . . [O]n 3 May 2010, the trial court conducted a hearing with both parties present,
and [Ronald] signed a voluntary support agreement, which was filed that day. The
same day, the trial court entered a domestic violence protective order, on its own
motion, against [Ronald] and on behalfof [Debra]. [Debra] had never filed amotion
for a domestic violence protective order.
On 8 June 2010, the trial court also entered a temporary custody order, granting
physical and legal custody to [Debra], and prohibiting visitation between [Ronald]
and the minor children.
On 28 June 2010, the trial court entered an order admini stratively closing the case
pursuant to N.C. Gen. Stat. § 7B-200(c)(I).
[Ronald] subsequently filed a ... motion to set aside and declare void ab initio
the three aforementioned orders. On 29 March 2011, the trial court entered an order
granting [Ronald]'s motion to set aside the domestic violence protective order,
because [Debra] never filed a motion for a domestic violence protective order, or
issued and served summons, as required by N.C. Gen. Stat. § 50B-2(a). The trial
court concluded it lacked subject matter and personal jurisdiction over [Debra] to
enter a domestic violence protective order.
On 3 October 20 11, [Ronald] filed a second ... motion to set aside the temporary
custody order and voluntary support agreement, alleging that the two orders were
founded on the void domestic violence protective order, and that, resultantly, they
were necessarily also void. The trial court found as fact that the temporary custody
order was not a product ofthe domestic violence protective orderD and that [Ronald]
abandoned his argument with regard to the voluntary support agreement.
Reale v. Reale, No. COAI2-374, 2012 WL 5395055, at *1-2 (N.C. Ct. App. Nov. 6, 2012)
(unpublished table disposition) (footnotes omitted); see. ~ Am. Compi. ~~ 93-98, 101-02.
Plaintiffs' interactions with defendant Wake County Human Services ("WCHS") began in
October 2009, when WCHS made "a surprise visit on October 15,2009," in response to "a so-called
'anonymous' compl[ai]nt of abuse from estranged, disgruntled family members[.]" Am. Compi. ~

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88. On June 23,2010, WCHS filed a juvenile petition for removal of the minor children, which
defendant Chasse, a Wake County District Court judge, granted. Id. ~~ 92, 108. The children have
been in foster care or otherwise out of their parents' custody since that time. Id.
Plaintiffs
request an immediate Temporary Restraining Order in accordance with the Federal
Rules of Civil Procedure, Rule 65, to immediately restrain and enjoin Wake County
Human Services ("WCHS"), the Guardian ad Litem ("GAL"), and any person acting
in concert or participation with them, from questioning, coaching, programming, or
otherwise coercing any of the minor children, and to prohibit access and/or any
contact, by phone or in person, between and among the seven Plaintiffminor children
... and any person associated with or acting on behalf ofWCHS, GAL, and/or any
other person named as a party to this action without the expressed permission ofboth
Plaintiff Parents absent an order ofthis court, made on notice to all parties, until such
time as the allegations ofthe verified motion and affidavits filed in this matter shall
be finally adjudicated.
Mot. TRO 3. The substantive standard for granting a temporary restraining order is the same as that
for entering a preliminary injunction. See, e.g., U.S. Dep't ofLabor v. Wolf Run Mining Co., 452
F.3d 275,281 n.1 (4th Cir. 2006). A court may grant a temporary restraining order if the moving
party demonstrates ''that he is likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest." Winterv. Natural Res. Def. Council. Inc., 555 U.S. 7,20 (2008).
A temporary restraining order "may only be awarded upon a clear showing that the plaintiff is
entitled to such relief." Id. at 22. Plaintiffs have not established that they are likely to succeed on
the merits, that they are likely to suffer irreparable harm absent injunctive relief, that the balance of
equities tips in their favor, or that an injunction is in the public interest. Thus, plaintiffs have not met
their burden of proof. Accordingly, the court denies plaintiffs' motion for a temporary restraining
order [D.E. 19]. To the extent plaintiffs seek a permanent injunction, the court denies the motion

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without prejudice, subject to being renewed at an appropriate point in the litigation.
As for plaintiffs' request for either appointment of a guardian ad litem to represent their
minor children in this action or time to secure counsel for their children, the motion is governed by
Federal Rule ofCivil Procedure 17(c)(2), which provides that "[t]he court must appoint a guardian
ad litem-or issue another appropriate order-to protect a minor or incompetent person who is
unrepresented in an action." Fed. R. Civ. P. 17(c)(2). Ronald and Debra cannot continue to press
their children's claims pro se. See Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395,400 (4th Cir.
2005); see also Reale, 480 F. App'x at 197.
"State law generally governs an individual's capacity to represent a minor or incompetent in
federal court." SamM. ex reI. Elliottv. Carcieri, 608 F.3d 77, 86 (lstCir. 2010) (citing Fed. R. Civ.
P. 17(b)(3)). In light of Ronald and Debra's court-ordered loss of custody of their children, North
Carolina would not allow them to advance any claims on their children's behalf. See, e.g., Gorsuch
v. Dees, 173 N.C. App. 223, 226, 618 S.E.2d 747, 749 (2005) (collecting cases). Moreover, in light
ofthe numerous dispositive motions pending, it is not clear what claims will remain for litigation.
See Reale, 480 F. App'x at 197; see,~, Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 135 (2d Cir.
2009). Thus, the court will permit Ronald and Debra until January 11,2013, to secure counsel for
their children. Ifplaintiffs are unable to do so, the court will dismiss the children's claims without
prejudice. See, e.g., Berrios, 564F.3dat 135; PeterL. v. Rollins, No. 00-129-M, 2001 WL 1669253,
at *4-5 (D.N.H. Dec. 19,2001) (unpublished) ("the better solution is to dismiss the case without
prejudice to refiling, if appropriate and warranted, in the judgment of a responsible adulf').
II.
In sum, the court DENIES IN PART and DENIES WITHOUT PREJUDICE IN PART

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plaintiffs' motion for a temporary restraining order [D.E. 19], and DIRECTS plaintiffs to obtain
counsel to represent their children on or before January 11,2013, or face dismissal without prejudice
of their children's claims. The court DENIES AS MOOT defendant Joyce Williams's motion to
strike and dismiss plaintiffs' motion for a temporary restraining order [D.E. 128].
SO ORDERED. This..l.!:.. day of December 2012.

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