Marshall et al v. Department of Children and Family Services
Filing
78
OPINION AND ORDER: 42 Motion for More Definite Statement and 43 Motion for More Definite Statement are denied as moot, all claims against Dr. Halikias and Ms. Clough are dismissed; 53 Motion to Dismiss for Failure to State a Cla im is denied as moot; 46 Motion to Dismiss for Failure to State a Claim is granted, all claims against Ms. Kainen pertaining to Mr. Marshall are dismissed; 51 Motion to Dismiss for Failure to State a Claim is granted, all claims agains Mr. Carlstrom, Ms. Foster, Ms. Hanson, Ms. Melke, Ms. Neil, Ms. Pellerine, Ms. Tucker are dismissed; 62 Motion to Strike 59 Reply to Response and 77 Emergency Motion to Appoint Counsel are denied; 48 Motion to Reopen Case, 64 Second Motion to Stay, 65 Motion for Leave to Appear Notification, 67 Motion for Emergency Preliminary Injunction, 68 Motion for Injunction, 73 Motion to Conduct Federal Investigation Violations of Federal, Criminal Civil Rights Statutes, 75 Motion for Civil Rights to be Restored Without DCR Interference, 76 Motion for Adoption Revocation/Dissolution/Reversal are denied; 69 Motion to Subpoena for Records is denied; 70 Motion to Waive Fees for Early Neutral Evaluation is denied as premature; 49 Motion for Leave to File a Continuance as to 32 Amended Complaint, 66 Motion to Amend Complaint, 72 Motion to Add Deprivation of Rights Violations to Case are granted in part, denied in part. The plaintiffs shall file a Second Amended Complaint within 30 days. Failure to file a Second Amended Complaint within 30 days may result in final dismissal with prejudice of the claims dismissed. Signed by Judge William K. Sessions III on 3/27/2015. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Robert Donald Marshall,
Jr. and Angel Maria
Marshall,
Plaintiffs,
V.
Brita Hanson, Michelle
Kainen, Brenda Pellerine,
Cindy Kurahara, Mariam
Newman, Dr. William
Halikias, Mary Ann Neill,
Jeffrey Carlstrom,
Jennifer Foster, Janet
Melke, Carla Tucker,
Ruth Clough, and Sue
Lohutko,
Defendants.
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Case No. 2:13-cv-224-wks
OPINION AND ORDER
(Docs. 42, 43, 46, 48, 49, 51, 53, 62, 64,
65, 66, 67, 68, 69, 70, 72, 73, 75, 76, 77)
Plaintiffs Robert Donald Marshall, Jr. and Angel Maria
Marshall (collectively, “the Marshalls”), proceeding pro se,
bring this civil rights action against Defendants Brita
Hanson, Michelle Kainen, Brenda Pellerine, Mariam Newman,
Dr. William Halikias, Mary Ann Neill, Jeffrey Carlstrom,
Jennifer Foster, Janet Melke, Carla Tucker, Ruth Clough, and
Sue Lohutko.
The Marshalls allege that Defendants conspired
1
with the Vermont Department for Children and Families
(“DCF”) to terminate Ms. Marshall’s parental rights, in
violation of Ms. Marshall’s constitutional rights.
Now
pending before the Court are numerous motions filed by the
parties, including Defendants’ motions to dismiss, the
Marshalls’ motion to appoint counsel, and the Marshalls’
motions for preliminary injunctive relief.
Factual and Procedural Background
As set forth in greater detail in this Court’s February
5, 2014 Opinion and Order (Doc. 31), the Marshalls allege
DCF1 and its employees conspired with others to pursue child
abuse and neglect substantiations against them and
improperly petitioned to remove Ms. Marshall’s three
children, B.S., R.M., and D.W.,2 from her care.
The
proceedings culminated in the termination of Ms. Marshall’s
parental rights.
The Marshalls initially brought suit only
against DCF (Doc. 6.)
The Court granted DCF’s Motion to
1
DCF is a department of the State of Vermont Agency of Human
Services authorized to investigate complaints of child abuse and
neglect and to supervise and control children committed to its
care. See 33 V.S.A. § 4903 (child welfare services authorizing
statute).
2
The Court will refer to the children using their initials
to protect their identities. The children’s full names are not
relevant to the pending motions.
2
Dismiss on Eleventh Amendment sovereign immunity and RookerFeldman grounds and also granted the Marshalls leave to file
an Amended Complaint (Doc. 31.)
The Marshalls’ Amended Complaint (Doc. 32) alludes to
many of the facts detailed in the original Complaint, but
does not provide a chronology of events.
A review of
Vermont cases indicates that on March 7, 2013, the Vermont
Superior Court entered an order terminating Ms. Marshall’s
parental rights.
In re B.S., Docket No. 4/5/6-1/10 Wrjv
(Vt. Super. Ct. Fam. Div. Mar. 7, 2013).
Ms. Marshall
appealed the decision to the Vermont Supreme Court, which
affirmed the Vermont Superior Court on July 11, 2013.
In re
B.S., No. 2013-136, 2013 WL 3491176 at *3 (Vt. July 11,
2013) (unpublished entry order).
The Vermont Supreme Court found that, “the children
were taken into the custody of [DCF] after they reported
being physically abused by [Mr. Marshall]. . . At the time,
the family was also struggling with homelessness and the
children were not regularly attending school.”
Id. at *1.
The Vermont Supreme Court recited the lower court’s
findings, made at the conclusion of the four-day termination
hearing, that Ms. Marshall “frequently provided
3
contradictory information to the DCF caseworker about [Mr.
Marshall]” and “provided sworn testimony in support of a
relief from abuse order that [Mr. Marshall] physically and
verbally abused the children.”
Id.
Ultimately, the Vermont
Supreme Court concluded that the lower court acted within
its discretion to terminate Ms. Marshall’s parental rights
where it found that she placed her children at “significant
risk” by exposing them “to men whom her children repeatedly
accused of physical and/or sexual abuse.”
Id. at *3.
DCF also brought a parallel action against Mr. Marshall
to terminate his parental rights with respect to R.M., Mr.
Marshall’s biological child with Ms. Marshall.
In re R.M.,
No. 5-1-10 Wrjv (Vt. Super. Ct. Fam. Div. May 14, 2013);
appeal dismissed, 72 A.3d 928, 194 Vt. 654 (Vt. Aug. 14,
2013) (unpublished entry order).
The State of Vermont appointed Defendant Michelle
Kainen to represent Ms. Marshall in the termination
proceedings, and the matter was heard by Judge Katharine
Hayes in a contested hearing (Doc. 32 at 3.)
Defendant Mary
Ann Neil served as the Assistant Attorney General
representing the State, and Defendant Attorney Ruth Clough
served as attorney for the children (Doc. 32 at 4.)
4
Defendant Brita Hanson served as a guardian ad litem for the
children.
Id.
Defendants Carla Tucker, Brenda Pellerine,
Sue Lohutko, Jennifer Foster, and Janet Melke were DCF
caseworkers involved in the case, some of whom testified
during the termination proceedings.
Id.
Defendant Jeffrey
Carlstrom, another caseworker, testified about alleged
sexual abuse involving the children.
Id. at 8.
Defendant
Dr. William Halikias met with the family once at the DCF
office in Springfield, Vermont, prepared a family forensic
report, and served as an expert witness.
Id. at 10, 20, 21.
The Marshalls allege violations of Ms. Marshall’s
Fourteenth Amendment rights to substantive and procedural
due process, conspiracy to deprive civil rights, obstruction
of justice, evidence tampering, and perjury.
Id. at 2-3.
The Marshalls also make several Sixth Amendment claims: (1)
Ms. Marshall did not receive effective assistance of
counsel; (2) she was not allowed to offer any evidence or
put on witnesses in her favor; (3) she was not permitted to
depose witnesses or to obtain other documents in discovery;
(4) the attorneys and caseworkers participating in the
proceedings were biased against Ms. Marshall as a result of
their involvement in related state court proceedings; (5)
5
Ms. Marshall was denied a change of venue; (6) Ms. Marshall
was not permitted to undergo an independent psychological
evaluation; and (7) Ms. Marshall was denied the opportunity
to confront witnesses at trial or to compel witness
testimony.
The Marshalls seek monetary damages in an amount of $1
million per defendant and have filed several motions seeking
injunctive relief (Docs. 48, 64, 65, 67, 68, 73, 75, 76.)
The Marshalls also have moved for the appointment of counsel
(Doc. 77.)
Defendants have filed the following motions: Dr.
Halikias’s Motion for More Definite Statement (Doc. 42); Ms.
Clough’s Motion for a More Definite Statement (Doc. 43) and
Motion to Dismiss for Failure to State a Claim (Doc. 53);
Ms. Kainen’s Motion to Dismiss for Failure to State a Claim
(Doc. 46); and Motion to Dismiss for Failure to State a
Claim filed by Mr. Carlstrom, Ms. Foster, Ms. Hanson, Ms.
Melke, Ms. Neill, Ms. Pellerine, and Ms. Tucker (“State
Defendendants”) (Doc. 51.)
Defendants Mariam Newman, Sue
Lohutko, and Cindy Kurahara have not been served.
6
Discussion
I.
Plaintiffs’ Motion to Appoint Counsel
First, the Court considers the Marshalls’ renewed
Motion to Appoint Counsel (Doc. 77.)
The Court denied the
Marshalls’ initial Motion to Appoint Counsel (Doc.7) on
February 5, 2014 due to nature of the Marshalls’ claims and
the lack of complexity that might otherwise warrant the
appointment of a pro bono attorney (Doc. 31.)
As the Court explained in greater detail in its
February 5, 2014 Opinion and Order, pro se parties do not
have a constitutional right to the assistance of counsel in
civil cases.
See Leftridge v. Conn. State Trooper Officer
#1283, 640 F.3d 62, 68 (2d Cir. 2011).
When evaluating
whether to appoint counsel for in forma pauperis litigants
in civil cases, the Court must consider whether the
indigent’s claim “is likely one of substance.”
Carmona v.
United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.
2001) (citing Hodge, 802 F.2d at 61).
“[E]ven though a
claim may not be characterized as frivolous, counsel should
not be appointed in a case where the merits of the...claim
are thin and [the plaintiff’s] chances of prevailing are
therefore poor.” Id. (denying request for counsel where
7
petitioner’s appeal not frivolous but nevertheless appeared
to have little merit).
The district court should then consider the indigent’s
ability to investigate the crucial facts, whether
conflicting evidence implicating the need for crossexamination will be the major proof presented to the factfinder, the indigent’s ability to present the case, the
complexity of the legal issues, and any special reason why
appointment of counsel would be more likely to lead to a
just determination.
Hodge, 802 F.2d at 61-62.
Here, the Marshalls argue that the appointment of
counsel is necessary due an entirely different state court
matter involving a different biological child of Mr.
Marshall, who was placed in custody in the State of
Massachusetts (Doc. 77 at 1.)
The Marshalls have not raised
any argument relevant to the matter presently before this
Court, and therefore there is no basis for altering the
Court’s initial conclusion with respect to the appointment
of counsel.
As set forth in greater detail below, the Court
does not find that the Marshalls claims are likely to be of
substance at present, nor have the Marshalls argued any
special circumstances relevant to this case to suggest the
appointment of counsel would be more likely to lead to a
8
just determination.
Therefore, the Marshalls’ Motion to
Appoint Counsel (Doc. 77) is DENIED WITHOUT PREJUDICE.
II. Motion to Dismiss Standard of Review
Defendants bring their motions to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6).
Filings by self-represented
parties are "to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers."
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotations marks and citations omitted).
Federal Rule of Civil Procedure 8(a) requires the
plaintiff to provide "a short plain statement of the claim
showing that the pleader is entitled to relief."
Civ. P. 8(a)(2).
Fed. R.
On a motion to dismiss pursuant to Rule
12(b)(6), the court reviews the face of the plaintiff's
complaint and accepts all factual allegations as true and
draws all reasonable inferences in favor of the plaintiff.
Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.
1993).
"[A] complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that
is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
"The plausibility standard is not
9
akin to a 'probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully."
Iqbal, 556 U.S. at 678.
Even a facially-sufficient complaint may be properly
dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) "when the district court lacks the statutory or
constitutional power to adjudicate it."
Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000).
The party
asserting subject matter jurisdiction has the burden of
proving, by a preponderance of the evidence, that the court
has jurisdiction.
Id.
Finally, a district court may dismiss a case filed in
forma pauperis if the court determines that the complaint
“is frivolous or malicious; fails to state a claim on which
relief may be granted; or seeks monetary relief against a
defendant who is immune from such relief.”
28 U.S.C. §
1915(e)(2)(B).
A.
Dr. Halikias and Ms. Clough
Dr. Halikias and Ms. Clough each move for a more
definite statement pursuant to Fed. R. Civ. P. 12(e),3
3
Under Rule 12(e), a party may move for a more definite statement
where the complaint “is so vague or ambiguous that a party cannot
10
arguing that the allegations respectively naming each of
them in the Amended Complaint are vague and unintelligible
(Docs. 42, 43.)
Because both argue that the Amended
Complaint does not provide sufficient notice of the acts or
omissions constituting the wrongdoing alleged against them,
the Court addresses both Motions together.
However, the Court also has inherent authority pursuant
to 28 U.S.C. § 1915(e)(2)(B) to dismiss an in forma pauperis
action sua sponte where the Court determines, in relevant
part, that the plaintiff “fails to state a claim on which
relief may be granted” or “seeks monetary relief against a
defendant who is immune from such relief.”
28 U.S.C. §
1915(e)(2)(B)(ii) and (iii); see also Fitzgerald v. First E.
Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir.
2000) (district court may dismiss frivolous complaint sua
sponte even where plaintiff paid filing fee); Pillay v.
Immigration & Naturalization Serv., 45 F.3d 14, 17 (2d Cir.
1995) (court has “inherent authority” to dismiss petition
that presents “no arguably meritorious issue”).
Here,
because the issues raised by Dr. Halikias and Ms. Clough
reasonably be required to frame a responsive pleading[.]”
Civ. P. 12(e).
11
Fed. R.
suggest an absence of viable legal claims under the facts
alleged, the Court invokes its § 1915(e)(2)(B) authority.
Dr. Halikias
The Amended Complaint alleges that Dr. Halikias
prepared two “Family Forensic” evaluations on November 8,
2010 and February 25, 2012, respectively (Doc. 32 at 11.)
The Court infers from allegations that Dr. Halikias also
testified as an expert witness during the termination
proceedings and provided his professional opinion based upon
the reports he prepared.
The Amended Complaint alleges that
Dr. Halikias “testified to not knowing anything about Robert
Donald Marshall Jr. other than assertions and allegations”
and other portions of his testimony are summarized without
reference to specific wrongdoing.
Id. at 10, 20.
The Amended Complaint further alleges that Dr. Halikias
only met with the family on one occasion prior to preparing
his reports, that one of the children did not participate,
and that Dr. Halikias was “bias[ed . . . due to a lack of
culturally competent insight[.]”
Id. at 20.
The Amended
Complaint alleges that “Dr.[]Halikias conducted Family
Forensics against APA rules[.]”
Id. at 10.
Other
references to Dr. Halikias in the Amended Complaint are in
12
the context of other defendants’ conduct, such as DCF’s
failure to follow Dr. Halikias’s recommendations.
See Id.
at 20.
Witnesses who testify in judicial proceedings, such as
Dr. Halikias, are entitled to absolute immunity for
constitutional claims arising from their testimony.
See
Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 97 (2d
Cir. 1999) (citing Briscoe v. LaHue, 460 U.S. 325, 335
(1983)).
Therefore, to the extent the Marshalls allege
claims arising from Dr. Halikias’s testimony, Dr. Halikias
is absolutely immune and those claims are barred.
The Court cannot discern from the face of the Amended
Complaint any other claims related to Dr. Halikias’s alleged
acts or omissions.
The Supreme Court has explained that a
complaint must do more than create the inference of "the
mere possibility of misconduct."
Iqbal, 556 U.S. at 679;
see also Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.
1977) (“[C]omplaints containing only conclusory, vague, or
general allegations of conspiracy to deprive a person of
constitutional rights will be dismissed.”).
The conclusory
allegations against Dr. Halikias, such as allegations of
“bias” or failure to comply with APA guidelines in preparing
13
his report, lack sufficient factual detail to allow the
Court to infer the existence of any plausible legal claims.
Therefore, all claims against Dr. Halikias are DISMISSED,
and his Motion for a More Definite Statement (Doc. 42) is
DENIED as moot.
Ms. Clough
As a preliminary matter, the Marshalls have filed a
pleading entitled, “In re: Strike Motion to Dismiss Ruth
Clough Document #53" (Doc. 62), which the Court construes as
memorandum in opposition to the pending Motion and not as a
request to have Ms. Clough’s memorandum of law stricken from
the record.
The Marshalls’ memorandum does not allege any
grounds for striking the memorandum, nor does Ms. Clough’s
memorandum contain “redundant, immaterial, impertinent, or
scandalous matter” as required by Fed. R. Civ. P. 12(f).
To
the extent the Marshalls intended their memorandum to serve
as a motion to strike the document from the record, the
Motion to Strike (Doc. 62) is DENIED.
As to the allegations against Ms. Clough, the Amended
Complaint generally names Ms. Clough the attorney appointed
to represent the three children in the termination
proceedings and alleged she was a member of the “prosecution
14
team” who conspired to violate Ms. Marshall’s Fourteenth
Amendment rights (Doc. 32 at 3, 5.)
The Amended Complaint
alleges that Ms. Clough had a current conflict of interest
while representing the children, because she was involved in
a case related to Mr. Marshall’s daughter, C.M.
13.
Id. at 4,
Further, Ms. Clough did not attend any of Ms.
Marshall’s visits with the children and refused to allow the
children to be called as witnesses.
Id. at 4, 16.
With respect to the § 1983 conspiracy allegations, “a
plaintiff must show: (1) an agreement between two or more
state actors or between a state actor and a private entity;
(2) to act in concert to inflict an unconstitutional injury;
and (3) an overt act done in furtherance of that goal
causing damages.”
(2d Cir. 1999).
Pangburn v. Culbertson, 200 F.3d 65, 72
Aside from the vague allegation that Ms.
Clough was a member of the “prosecution team,” the Amended
Complaint does not allege any facts that would give rise to
the inference that an agreement existed between Ms. Clough
and a state actor to violate Ms. Marshall’s constitutional
rights.
See also Ostrer, 567 F.2d at 553 (2d Cir. 1977)
(“[C]omplaints containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of
15
constitutional rights will be dismissed.”).
The Amended
Complaint does not allege sufficient facts to state a § 1983
conspiracy claim against Ms. Clough.
As to the remaining allegations against Ms. Clough, all
of these matters pertain to Ms. Clough’s conduct while
serving as the attorney for the children.
As this Court
previously explained in its February 5, 2014 Opinion and
Order, “[o]nce parental rights are terminated, a parent
lacks standing to bring claims on behalf of his or her
children.” Kaminski v. Comm'r of Oneida Cnty. Dep't of Soc.
Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011) (citing
Lomnicki v. Cardinal McCloskey Servs., No. 04-CV-4548, 2007
WL 2176059, at *6 (S.D.N.Y. July 26, 2007)).
A parent also
lacks standing to bring a § 1983 claim “based solely upon a
deprivation of a child’s constitutional rights.”
Kaminski,
804 F. Supp. 2d at 104-05.
Therefore, because the Amended Complaint does not
allege sufficient facts against Ms. Clough to state a § 1983
claim and the Marshalls lack standing to bring claims
arising from Ms. Clough’s conduct as the children’s
attorney, all claims against Ms. Clough are DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
16
Ms. Clough also
has filed a Motion to Dismiss (Doc. 53), which is DENIED
WITHOUT PREJUDICE as moot.
B.
Ms. Kainen
The Amended Complaint alleges that Ms. Kainen is liable
to Ms. Marshall for legal malpractice.
Ms. Kainen allegedly
violated her duty of care by failing to withdraw from the
matter despite a conflict of interest, ineffective
assistance of counsel, failing to object to the admission of
evidence or raise conflicts of interest, failing to
investigate, and failing to proffer certain testimony or
other evidence.
Ms. Kainen has filed a partial Motion to
Dismiss, moving to dismiss all claims that might pertain to
Mr. Marshall (Doc. 46.)
She does not move to dismiss the
claims pertaining to Ms. Marshall.
She argues that the
Amended Complaint does not allege that she represented Mr.
Marshall in the termination proceedings or otherwise engaged
in other conduct giving rise to a claim specific to him
(Doc. 46-1 at 1.)
Under Vermont law, the elements of a cause of action
for attorney negligence are: “(1) the existence of an
attorney-client relationship which establishes the duty of
case; (2) the negligence of that attorney measured by . . .
17
her failure to perform in accordance with established
standards of skill and care; and (3) that the negligence was
the proximate cause of harm to plaintiff.”
Durrance, 834 A.2d 1, 3 (Vt. 2003).
Hedges v.
With regard to the
first element, “an attorney owes a duty of care only to the
client, not to third parties [who] have been damaged by the
attorney’s negligent representation.”
Bovee v. Gravel, 811
A.2d 137, 139 (Vt. 2002) (citing Savings Bank v. Ward, 100
U.S. 195, 200 (1879)).
As the Vermont Supreme Court
explained in Bovee, this rule allows attorneys to zealously
represent their clients “without the threat of suit from
third parties compromising that representation.”
Id. at
140.
Here, the Amended Complaint affirmatively alleges that
the state court appointed Ms. Kainen to represent Ms.
Marshall in the termination proceedings (Doc. 32 at 4.)
See
also In re B.S., Docket No. 4/5/6-1/10 Wrjv (Vt. Super. Ct.
Fam. Div. Mar. 7, 2013) and (Docs. 46-2, 46-3, and 46-4).
Nowhere does the Amended Complaint allege that Ms. Kainen
represented Mr. Marshall.
The only allegations regarding
Mr. Kainen that involve Mr. Marshall include Ms. Kainen’s
previous appointment as guardian ad litem for Mr. Marshall’s
18
daughter, C.M., and that Ms. Kainen did not call Mr.
Marshall as a witness or investigate his prior convictions
for purposes of discrediting the allegations against Ms.
Marshall in the termination proceeding.
13, 16.
See Doc. 32 at 4,
Because the Amended Complaint does not allege any
facts to suggest that Ms. Kainen represented Mr. Marshall or
otherwise owed him a duty of care, and no duty of care is
owed to a third party under Vermont law, Mr. Marshall’s
attorney malpractice claim against Ms. Kainen is DISMISSED.
To the extent the Amended Complaint might raise a §
1983 claim against Ms. Kainen, “it is well-established that
court-appointed attorneys performing a lawyer’s traditional
functions as counsel to defendant do not act ‘under color of
state law’ and therefore are not subject to suit under 42
U.S.C. § 1983.”
Cir. 1997).
Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d
Therefore, Ms. Kainen’s partial Motion to
Dismiss (Doc. 46) with respect to all of Mr. Marshall’s
claims against her is GRANTED, and all claims against Ms.
Kainen raised by Mr. Marshall are DISMISSED.
The only
viable legal claims against Ms. Kainen that now remain are
Ms. Marshall’s state law claims for legal malpractice.
C.
State Defendants
19
State Defendants move to dismiss for failure to state a
claim, arguing that each is entitled to some form of
immunity that bars the Marshalls’ claims against them.
Alternately, State Defendants argue that the Marshalls
claims are barred by the Rooker-Feldman doctrine and are
vague and conclusory.
Absolute Witness Immunity
Witnesses who testify in judicial proceedings are
entitled to absolute immunity for constitutional claims
arising from their testimony.
See Wilkinson ex rel.
Wilkinson v. Russell, 182 F.3d 89, 97 (2d Cir. 1999) (citing
Briscoe v. LaHue, 460 U.S. 325, 335 (1983)).
Absolute
immunity applies to § 1993 actions, “even if such testimony
was perjured.”
Coggins v. Nassau, 988 F. Supp. 2d 231, 244
(E.D.N.Y. 2013) (citing Briscoe, 460 U.S. at 335-36); see
also Buchanan v. Ford, 638 F. Supp. 168, 171 (N.D.N.Y. 1986)
(holding that child caseworker entitled to absolute immunity
for claims related to testimony in family court).
Accordingly, all claims against Mr. Carlstrom and Ms. Foster
(Doc. 32 at 8, 19, 23) pertaining to testimony they
allegedly gave during the termination proceedings detailed
in the Amended Complaint are DISMISSED.
20
Absolute Prosecutorial Immunity
Absolute prosecutorial immunity bars official- and
individual-capacity suits under § 1983 against “prosecutors
performing prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process’[.]” Robison
v. Via, 821 F.2d 913, 918 (2d Cir. 1987) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)); see also Shmueli v.
City of New York, 441 F.3d 231, 236 (2d Cir. 2005) (where
functions performed by defendant official are clear on the
face of the complaint, “the absolute immunity defense may be
resolved as a matter of law on a motion to dismiss the
complaint pursuant to Rule 12(b)(6).”).
Absolute immunity
also extends beyond criminal proceedings, “to other
litigating activities of government attorneys, such as
initiating and prosecuting child protection litigation.”
Robison, 821 F.2d at 918 (citing Walden v. Wishengrad, 745
F.2d 149, 152-53 (2d Cir. 1984)), accord Cornejo v. Bell,
592 F.3d 121 (2d Cir. 2010).
Absolute immunity only applies to “[a]ctions taken as
an advocate[,]” such as initiating prosecution or presenting
the case.
2000).
Zahrey v. Coffrey, 221 F.3d 342, 343 (2d Cir.
“[W]hen a prosecutor performs an investigative or
21
administrative function rather than a prosecutorial one,
absolute immunity is not available[,]” nor is absolute
immunity available where the attorney “undertakes conduct
that is beyond the scope of his litigation-related duties.”
Barbera v. Smith, 836 F.2d 96, 99-100 (2d Cir. 1987).
Ms. Neil argues that she is entitled to absolute
prosecutorial immunity for her conduct as an Assistant
Attorney General representing the State of Vermont in the
termination proceedings.
The Court agrees.
The Amended
Complaint alleges that Ms. Neil was a member of the
“prosecution team” (Doc. 32 at 3) in the termination
proceeding and that she observed a jury draw and depositions
of DCF workers as part of criminal proceedings against Mr.
Marshall.
Id. at 4.
The Amended Complaint alleges that Ms.
Neil had a conflict of interest (id. at 13) and nonetheless
“moved forward” with the termination proceedings.
Id at 13.
All of these allegations describe actions taken within the
scope of initiating, preparing for, and prosecuting the
child custody termination proceedings involving the three
children.
Therefore, because Ms. Neil is entitled to
absolute prosecutorial immunity, all claims against her are
22
DISMISSED.4
Ms. Foster, Ms. Melke, Ms. Tucker, and Ms. Pellerine,
(hereinafter “DCF Caseworkers”) argue that they also
entitled to absolute immunity for their actions taken as
child welfare caseworkers.
They cite Torres v. Howell, No.
3:03 CV 2227 (MRK)(WIG), 2006 WL 1525942, at *13 (D. Ct.
May, 30, 2006), for the general proposition that “DCF social
workers have absolute immunity for their involvement in
initiating and participating in judicial child custody
proceedings.”
However, Torres does not address the Second Circuit’s
more recent holding in Cornejo, which reversed the lower
court’s conclusion that child welfare caseworkers are
entitled to the same absolute immunity that protects
attorneys in state child protection matters.
4
See Cornejo,
To the extent the Amended Complaint might be construed as
raising an action for malicious prosecution against Ms. Neil, and
assuming such a cause of action exists in child protection
matters, the Marshalls cannot show that the underlying action
terminated in their favor. See Anello v. Vinci, 458 A.2d 1117,
1119-20 (Vt. 1983) (requiring that proceeding terminate in
plaintiff’s favor where plaintiff alleges criminal malicious
prosecution); see also Sundbye v. Ogunleye, 3 F. Supp. 2d 254,
260 (E.D.N.Y. 1998) (dismissing claim for malicious prosecution
under New York law where plaintiff alleged “unfounded” child
abuse proceedings were initiated against here).
23
592 F.3d at 128.
Instead, where caseworkers perform what
amounts to a “police function” they are instead entitled to
qualified immunity.
Id.
Therefore, the Court concludes
that the DCF caseworkers are not entitled to absolute
immunity.
Qualified Immunity
Alternately, the DCF Caseworkers argue that they are
entitled to qualified immunity.
Under the doctrine of
qualified immunity, government employees are shielded from
civil liability under § 1983 if either “(1) their conduct
‘did not violate clearly established rights of which a
reasonable person would have known,’ or (2) ‘it was
objectively reasonable to believe that [their] acts did not
violate these clearly established rights.’” Id. (citing
Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998);
see also Wilkinson, 182 F.3d at 97 (observing that qualified
immunity standard under Vermont law is “nearly identical” to
standard for federal law claims).
Generally, caseworkers
are afforded “substantial protection” due to circumstances
that often force them to “choose between difficult
alternatives[.]” Id. (citing Tenenbaum v. Williams, 193 F.3d
24
581, 596 (2d Cir. 1999).
Nonetheless, typically “the defense of qualified
immunity cannot support a grant of a Rule 12(b)(6) motion
for failure to state a claim upon which relief can be
granted.”
McKenna v. Wright, 386 F.3d 432, 435 (2d Cir.
2004) (quoting Green v. Maraio, 722 F.2d 1012, 1018 (2d Cir.
1983)).
To prevail on a qualified immunity defense on a
motion to dismiss, the defense must be “based on facts
appearing on the face of the complaint.”
at 436.
McKenna, 386 F.3d
Here, the DCF Caseworkers have not cited any facts
that would suggest a reasonable basis for their conduct.
Instead, their argument relies upon inferences unfavorable
to the Marshalls, which is contrary to the standard on a
motion to dismiss.
Therefore, the Court declines to dismiss
the claims against the DCF Caseworkers on qualified immunity
grounds.
Rooker-Feldman Doctrine
The DCF Caseworkers also argue that the Rooker-Feldman
doctrine bars the Marshalls’ claims, because any finding of
wrongdoing in this matter would undermine the state court’s
order concluding that the children were abused by Mr.
25
Marshall and neglected by Ms. Marshall (Doc. 51 at 10.)
Under the Rooker-Feldman doctrine, “federal district
courts lack jurisdiction over suits that are, in substance,
appeals from state-court judgments.” Hoblock v. Albany Cnty.
Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005) (citing
District of Columbia Ct. Of Appeals v. Feldman, 460 U.S. 462
(1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 41415 (1923)).
Rooker-Feldman applies where: (1) the federal
court plaintiff lost in state court; (2) the plaintiff
complains of injuries caused by a state court judgment; (3)
the plaintiff invites district court review and rejection of
that judgment; and (4) the state court judgment was rendered
before the district court proceedings were commenced.
Hoblock, 422 F.3d at 85 (quoting Exxon Mobil v. Saudi Basic
Indus. Corp., 544 U.S. 280, 285 (2005) (quotation marks and
alterations omitted).
As this Court explained in its previous order, the
Marshalls filed this lawsuit after the Vermont Supreme Court
affirmed the unfavorable result against Ms. Marshall in an
attempt to reopen the state court termination proceeding.
The more challenging issues here are whether the Marshalls
26
complain of injuries caused by the state court judgment and
whether the remedies they seek would require this Court to
review and reject the state court judgment.
To the extent the Marshalls seek injunctive relief or
argue that the DCF Caseworkers violated their procedural or
substantive due process rights, Rooker-Feldman bars those
claims.
See id. at 87 (“if the state has taken custody of a
child pursuant to a state judgment, the parent cannot escape
Rooker-Feldman simply by alleging in federal court that he
was injured by state employees who took his child rather
than by the judgment authorizing them to take the child.”);
see also Phifer v. City of New York, 289 F.3d 49, 57 (2d
Cir. 2002) (claims seeking order directing children’s
services to return child to plaintiff’s custody barred by
Rooker-Feldman doctrine).5
Instead, the Marshalls allege that Ms. Foster, Ms.
Melke, Ms. Tucker, and Ms. Pellerine were “bias[ed] . . .
due to their involvement in cases involving [Mr. Marshall],
5
The Marshalls do not allege that any of the DCF Caseworkers
removed the children from the home without a court order, which might
require a different result. See, e.g., Schwietzer v. Crofton, 935
F.Supp.2d 527, 541-42 (E.D.N.Y. 2013) (Rooker-Feldman doctrine does
not apply to child custody claims where parents challenge emergency
removal without a court order).
27
Karen Kopycinski, and CM in 2009[.]” (Doc. 32 at 4.)
The
Amended Complaint also alleges Ms. Foster and Ms. Melke are
liable for “[t]ampering with evidence” because their
signatures appear on the child abuse substantiation intake
forms (Doc. 32 at 11.)
The injuries alleged are matters
implicitly addressed by the state court when it ordered the
temporary removal of the children from the home and
ultimately terminated both parents’ rights. See Kaminski v.
Comm’r of Oneida County Dept. of Soc. Servs., 804 F.Supp.2d
100, 106 (N.D.N.Y. 2011) (granting motion to dismiss on
Rooker-Feldman grounds); Johnson v. Myers, No. 10-cv-1964,
2014 WL 2744624, at *8 (E.D.N.Y. June 16, 2014) (holding
that determining whether caseworkers had reasonable basis to
investigate allegations of child neglect would require
review of state court decision contrary to Rooker-Feldman).
Therefore, the Court concludes that all claims against the
DCF Caseworkers are barred by the Rooker-Feldman doctrine.
All claims against Ms. Tucker, Ms. Melke, Ms. Foster, and
Ms. Pellerine are DISMISSED.
Absolute Quasi-Judicial Immunity
Ms. Hanson argues that she is entitled to absolute
28
quasi-judicial immunity for the functions she performed as
the children’s court-appointed Guardian Ad Litem (“GAL”)
(Doc. 51 at 13.)
The Amended Complaint alleges that she
opposed postponing the parental rights termination hearing
(Doc. 32 at 5) and belonged to the “prosecution team” which
violated Ms. Marshall’s constitutional rights (id. at 4.)
Under the doctrine of absolute quasi-judicial immunity,
“non-judicial officers . . . must be assured complete
protection to the extent that they are fulfilling functions
‘closely related to the judicial process.”
Wilkinson, 182
F.3d at 97 (citing Burns v. Reed, 500 U.S. 478, 494 (1991)).
Ms. Hanson argues that as a GAL appointed by the Family
Division, she was authorized to act in the best interests of
the children assigned to her by the Family Division.
See
Vt. Stat. An. tit. 33 § 5112(b) (2012) (Family Division
“shall appoint a guardian ad litem for a child who is party
to a proceeding brought under the juvenile judicial
proceedings chapters.”; V.R.F.P. 6 (providing that GAL
intended “to safeguard the ward’s best interests and
rights.”)
The Court agrees.
In the child protection context, “it
29
is well-established that guardians ad litem and ‘law
guardians’ are protected by quasi-judicial immunity.”
Wilson v. Wilson-Polson, No. 09 Civ. 9810, 2010 WL 3733935,
at *7 (S.D.N.Y. Sept. 23, 2010), aff’d, 446 Fed. App’x 330
(2d Cir. 2011) (holding that GAL may not be sued for actions
in her capacity as GAL); see also Yapi v. Kondratyeva, 340
Fed. App’x 683, 685 (2d Cir. 2009); Lewittes v. Lobis, 164
Fed. App’x 97, 98 (2d Cir. 2006).
Therefore, because Ms.
Hanson is entitled to absolute quasi-judicial immunity for
her conduct as GAL for the children, all claims against Ms.
Hanson are DISMISSED.
D.
Motions to Amend Complaint
The Marshalls have filed several motions requesting
leave to file a Second Amended Complaint (Docs. 49, 66, 72.)
The Second Circuit has held that district courts should not
dismiss pro se complaints without granting leave to amend at
least once “when a liberal reading of the complaint gives
any indication that a valid claim might be stated.” Thompson
v. Carter, 284 F.3d 411, 419 (2d Cir. 2002) (citing Branum
v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)); see also Fed.
R. Civ. P. 15(a)(2)(“the court should freely give leave when
30
justice so requires”). However, leave to amend is not
required where it would be futile.
See Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (“The problem with
[plaintiff’s] causes of action is substantive; better
pleading will not cure it.
Repleading would thus be futile.
Such a futile request to replead should be denied.”).
Here, the Court concludes that granting leave to amend
would be futile with respect to the claims against State
Defendants (Ms. Neil, Ms. Carlstrom, Ms. Foster, Ms. Tucker,
Ms. Melke, Ms. Pellerine, and Ms. Hanson)because all claims
against them are barred either on immunity grounds or under
the Rooker-Feldman doctrine.
those deficiencies.
Better pleading will not cure
Further, Dr. Halikias and Ms. Clough
are also entitled to absolute immunity with respect to any
claims arising from their testimony in the termination
proceedings, and therefore granting leave to amend as to
those claims is futile as well.
Nonetheless, with the exceptions described here, the
Marshalls’ motions for leave to file a Second Amended
Complaint (Docs. 49, 66, 72) are GRANTED IN PART, DENIED IN
PART.
Although the Court has already granted the Marshalls
31
leave to file an amended complaint, the Court has not
granted leave to amend with respect to the new parties
named, and the Court does not conclude that granting leave
to amend would be futile in all instances.
E.
Remaining Motions
The Marshalls have filed additional motions to obtain
injunctive relief related to the three children (Docs. 48,
64, 65, 67, 68, 73, 75, 76), to subpoena records (Doc. 69),
and to request an order waiving fees for Early Neutral
Evaluation (Doc. 70.)
With respect to the Motions for injunctive relief, DCF
and all State Defendants are dismissed from the case.
Accordingly, the Court cannot order relief on these motions,
nor would an order granting such relief be permitted under
the Rooker-Feldman doctrine.
See Phifer, 289 F.3d at 57
(claims seeking order directing children’s services to
return child to plaintiff’s custody barred by Rooker-Feldman
doctrine).
Therefore, the Marshalls’ motions for injunctive
relief (Docs. 48, 64, 65, 67, 68, 73, 75, 76) are DENIED.
The Marshalls’ Motion for Subpoena of Records (Doc. 69)
seeks records “relating to the termination of parental
32
rights trial as well as adoption proceedings” from DCF,
Casey Family Services, Windsor County Family Court, Windham
County Probate Court, Ms. Clough, Ms. Kainen, Ms. Neil,
Attorney Mauren Martin, and the State’s Attorney’s Office
(Doc. 69 at 1.)
To the extent that Ms. Kainen and Ms.
Clough remain parties in this case, a subpoena is not
necessary, as the information sought may be requested
through a document request under Fed. R. Civ. P. 34.
Furthermore, a party generally need not file a motion in
order to obtain a subpoena.
See Fed. R. Civ. P. 45(a)(2).
The Motion for Subpoena of Records (Doc. 69) is therefore
DENIED.
The Motion to Waive ENE Fees (Doc. 70) is DENIED as
premature, because not all of the parties have been served
and made appearances.
CONCLUSION
For the reasons set forth above, Dr. Halikias’s Motion
for More Definite Statement (Doc. 42) and Ms. Clough’s
Motion for More Definite Statement (Doc. 43) are DENIED as
moot, and all claims against Dr. Halikias and Ms. Clough are
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).
33
Ms.
Clough’s Motion to Dismiss (Doc. 53) is DENIED as moot.
Ms.
Kainen’s partial Motion to Dismiss for Failure to State a
Claim (Doc. 46) is GRANTED, and all claims against Ms.
Kainen pertaining to Mr. Marshall are DISMISSED.
State
Defendants’ Motion to Dismiss for Failure to State a Claim
(Doc. 51) is GRANTED, and all claims against Mr. Carlstrom,
Ms. Foster, Ms. Hanson, Ms. Melke, Ms. Neil, Ms. Pellerine,
and Ms. Tucker are DISMISSED.
The Marshalls’ Motion to Strike Doc. 59 (Doc. 62) and
Emergency Motion to Appoint Counsel (Doc. 77) are DENIED.
The Marshalls’ Motion to Reopen Case (Doc. 48), Second
Motion to Stay Case (Doc. 64), Motion for Leave to Appear
(Doc. 65), Motion to Emergency Preliminary Injunction (Doc.
67), Motion for Injunction (Doc. 68), Motion to Conduct
Federal Investigation (Doc. 73), Motion for Civil Rights to
Be Restored without DCF Interference (Doc. 75), and Motion
for Adoption Revocation/Dissolution/Reversal (Doc. 76) are
DENIED.
The Marshalls’ Motion for Subpoena of Records (Doc.
69) is DENIED, and the Motion Motion to Waive ENE Fees (Doc.
70) is DENIED as premature.
The Marshalls’ motions for leave to file a Second
34
Amended Complaint (Docs. 49, 66, 72) are GRANTED IN PART,
DENIED IN PART.
The Marshalls shall file a Second Amended
Complaint within thirty (30) days of the date of this Order.
Any amended filing shall be entitled “Second Amended
Complaint,” and it must allege all claims and name all
Defendants the Marshalls intend to include, as the Second
Amended Complaint will supersede all other complaints in all
respects.
The Second Amended Complaint shall state its
claims or defenses in numbered paragraphs, as provided in
Fed. R. Civ. P. 10(b).
Failure to file a Second Amended
Complaint within thirty (30) days may result in final
dismissal with prejudice of the claims dismissed herein.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this
27th of March, 2015.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court
35
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