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Paul W. Driggers, Djd, Cmd, and Mkd v. David Beck

August 28, 2012

PAUL W. DRIGGERS, DJD, CMD, AND MKD,
PLAINTIFFS,
v.
DAVID BECK, CHRISTINA MCNUTT, ROBIN JACOBSEN, AMANDA GRAFE, DENISE METZGER, KATHY CRAWFORD, PAT KENNER, , JOHN DOES I AND III, POST FALLS IDAHO POLICE DEPARTMENT, IDAHO DEPARTMENT OF HEALTH AND WELFARE, CHERYL BUCKNER, AND GLENDA FELTS, DEFENDANTS.



The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge

MEMORANDUM DECISION AND ORDER

In this case, Plaintiff Paul Driggers alleges that Idaho Department of Health and Welfare Child Protective Services employees and Post Falls City Police Department employees were involved in a conspiracy against him to take his children and property, violating various federal statutes, including the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962. Pending before the Court is a Motion to Dismiss Plaintiff's First Amendment Complaint, filed by the Idaho Department of Health and Welfare (IDHW) Defendants Christina McNutt, Robin Jacobson, Amanda Grafe, Denise Metzger, Kathy Crawford, Cherly Buckner*fn1 and Glenda Felts (collectively "IDHW Defendants") (Dkt. 31), and several motions filed by Plaintiff. (Dkt. 33, 36, 37.)

Having reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding delay, the Court shall decide the motion on the written briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d).

As to the Defendants who have not appeared, the Court also reviews the First Amended Complaint to determine whether Plaintiff can proceed on his claims against them, pursuant to the screening requirement for prisoner and in forma pauperis complaints found in 28 U.S.C. §§ 1915 and 1915A.

Accordingly, the Court enters the following Order granting the Motion to Dismiss and dismissing the entire First Amendment Complaint.

BACKGROUND

This is the fifth civil case Plaintiff has filed in federal court that is related to his child custody affairs; in addition, a sixth related criminal case was filed by the United States against Plaintiff. All related cases include the following: Plaintiff's federal criminal case (Case No. 2:06-cr-173-EJL, U.S. v. Driggers); a § 2255 motion challenging his sentence (Case No. 2:06-cr-00173-EJL, Driggers v. USA);*fn2 a first civil rights action that was dismissed by Chief United States Judge B. Lynn Winmill (Case No. 2:08-cv-00116-BLW, Driggers v. Idaho Health and Welfare, David Beck, et al.); a second civil rights action that was dismissed by this Court (Case No. 1:11-cv-00137-EJL, Driggers v. Simpson, et al.);*fn3 and a third civil rights action challenging the manner in which the filing fee for one of the civil rights actions was being deducted from his prison trust account (Case No. 1:11-cv-00547-EJL, Driggers v. United States Bureau of Prisons). Plaintiff has also filed various state court civil actions addressing his child custody affairs.

To determine whether a complaint states a claim upon which relief can be granted, the Court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997). However, the Court may consider attachments to the complaint and documents referred to in the complaint though not attached to it, where authenticity is not in question. Hal Roach Studios, 896 F.2d 1542, 1555 n.19 (9th Cir. 1990); Townsend v. Columbia Operations, 667 F.2d 844, 848-49 (9th Cir. 1982). In addition, when a court is considering a motion to dismiss, it may take judicial notice of matters of public record, such as state and federal court proceedings and doing so does not convert a motion for summary dismissal into a motion for summary judgment. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1281 (9th Cir. 1986); Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).*fn4

Consistent with the law governing motions to dismiss and the screening provisions for in forma pauperis complaints found in Title 28, the Court relies on the following factual allegations that are found in Plaintiff's filings, including his exhibits.

Plaintiff and Karen Vassallo have three minor daughters. Prior to moving to Idaho, the family lived in Arizona. After arriving in Idaho, Plaintiff and Vassallo divorced in September 2004, and Plaintiff was awarded full custody of the children. (First Amended Complaint, Dkt. 3, pp. 2-3.) Vassallo and Plaintiff lived together in Plaintiff's residence after their divorce. (Id.)

On or about November 18, 2005, it was discovered at school that the oldest daughter, D.D., then six or seven years old, had several large bruises on her body. (Dkt. 23-2, pp. 12-13.) At some point in time, D.D. reported that Plaintiff used a belt for discipline at home. Defendant Officer David Beck, the assigned officer for Child Protective Services (CPS) work, investigated D.D.'s statements, prepared a police report, and reported the incident to IDHW CPS case worker Defendant Amanda Grafe. (Id.; Dkt. 3, p. 4, in Case No. 2:08-cv-00116-BLW.)

Officer Beck reported that he went to D.D.'s school and took photographs of the marks the belt had left on D.D.'s face, upper chest and neck area, and lower left side. The officer interviewed the child on audiotape and decided to remove her temporarily from the home and place her in a shelter at that time. (Dkt. 23-2, p. 12-13.) Officer Beck issued Plaintiff a citation for I.C. § 18-1501, injury to child, and gave him a "Notice of State Action and Shelter Care Hearing." (Id., p. 13.) On November 18, 2005, Post Falls City Police Officer David Beck took Plaintiff's three children, as well as Vassallo's minor son, from the parents' custody and placed them in temporary shelter housing. (Dkt. 23, p. 5.)

The police report notes that D.D. said her father called the belt "the devil belt." (Dkt. 23, p. 12.) A CPS Report notes: "D.D. confronted her father at her first visit [after being removed from the parents' home]. Telling him he cannot hit her with a belt anymore, it is not safe. She cried and he held her." (Dkt. 23-3, p. 25.) However, Plaintiff alleges that it was Vassallo who injured D.D. and sent her to school with bruises so that Plaintiff would be blamed, and that Vassallo and Defendants prompted the child to make up the story about Plaintiff hitting her with a belt. (Dkt. 3, p. 11, Case No. 2:08-cv-00116-BLW.)

On December 11, 2005, Defendant Christina McNutt, an IDHW CPS employee, prepared a "Risk Assessment: Intake Summary and Comprehensive Risk Assessment" (Risk Assessment Report) regarding D.D. As part of the investigation, McNutt spoke to Mary Martinez, an Arizona CPS worker, who reported that, while in Arizona, the Driggers family had had eight referrals to CPS. Martinez reported to McNutt that, in 1999, the issues were neglect-based, due to home conditions and mental conditions of the mother. CPS services ended in 2004 after the family's house burned down, and CPS could no longer locate the family. (Dkt. 23-3, p. 24.) CPS reports from 2003-2004 show allegations of neglect and abuse of the children by the mother and allegations of domestic violence between the parents. (Dkt. 23-3, pp. 19-23.)

The Idaho Risk Assessment Report prepared by McNutt indicated that, in Arizona, in 2004, there were allegations that Plaintiff had physically abused Vassallo's son by grabbing him by the hair and banging his head on an object. McNutt reported in the Risk Assessment Report that Plaintiff "has a history of mental illness and [is] known to be violent and [has] given threats to previous CPS workers." (Dkt. 23-3, p. 24.)

Plaintiff alleges that, on January 6, 2006, Vassallo planted a stolen handgun in the bottom of a laundry basket in Plaintiff's house, met with police officers and falsely claimed Plaintiff had threatened her with a gun, and consented to a search of the house. Plaintiff was arrested after officers found the gun, but the charges were dismissed for lack of probable cause. (Dkt. 3, p. 12, Case No. 2:08-cv-00116-BLW.)

In or about February 2006, Plaintiff and Vassallo ceased living together. On February or March 6, 2006, Vassallo took personal property items from Plaintiff's home. (Dkt. 23, p. 5.) Defendant Pat Kenner of the Post Falls Police Department filed a police report regarding the loss of property. (Id.) Plaintiff takes issue with the fact that officers designated the matter a civil matter and refused to file criminal charges against Vassallo; he alleges that officers did this to deflect litigation away from themselves, because Plaintiff believes the officers were responsible for protecting his house and possessions. (Id., pp. 5-6.)

Plaintiff alleges that, on or about March 6, 2006, Vassallo contacted the FBI, made accusations about Plaintiff being involved in various illegal activities, and gave the FBI all of his paperwork and computer. (Dkt. 135 in Case No. 2:06-cr-00173-EJL.)

Plaintiff alleges that, on March 26, 2006, Officer Kenner spoke to Plaintiff's insurance company, telling the company it was impossible to establish that Plaintiff was the owner of the personal property Vassallo had taken; thus, the insurance company denied Plaintiff's claim. (Dkt. 23, p. 5.) In April of 2006, Plaintiff filed a lawsuit in state court and obtained a judgment against Vassallo for property she had taken from him. (Id., p. 5.)

While in foster care, the oldest child, D.D. reported that Plaintiff had inappropriate bodily contact with her.*fn5 (Dkt. 23-2, p. 17, 32.) D.D.'s two sisters also reported similar bodily contact. While in CPS custody, all three children reported to their separate therapists that they were afraid of their parents. (Dkt. 23-2, p. 30.) Officer Beck further investigated the bodily contact allegations. (Id., p. 17.)

On May 11, 2006, Defendant Amanda Grafe, a CPS case manager, drew up a plan for Plaintiff and Vassallo to work toward regaining custody of their children. The plan required Plaintiff to learn more appropriate disciplining techniques. (Dkt. 23-3, p. 32.) Plaintiff reported to Grafe that he thought Vassallo had planted the physical abuse allegations in the children's minds, but Grafe reported "substantiated investigations have shown that he did abuse D.D. by hitting her multiple times over her body with a belt." (Dkt. 23-3, at p. 31.)

On May 23, 2006, the following report on D.D.'s progress was recorded in a "Social Work for Sexual Abuse Medical Evaluation." (Dkt. 23-2, p. 15.)

History is provided today by child's foster mother. . . . Foster mother reports that this child and her younger sisters, 5 and 4, were placed into care in approximately November of 2005. The children were placed at Children's Village, then subsequently in another foster home. The second placement only lasted several weeks due to the children's extreme behavior and the foster family being able to provide care further. Foster mother was aware that there had likely been sexual abuse of this child prior to her being placed within the home. Foster mother has noted some inappropriate sexualized statements from the child but no sexualized acting out. When this child and her siblings arrived they did not seem to know how to bathe or feed themselves, in fact, they ate off the floor. They had very poor socialization skills and were excessively violent with each other. Also of note this child had a history of being beaten on both the front and back parts of her body with a belt. That also factored into her removal by CPS. Foster mother's opinion is that these children have all been physically abused due to the fact that whenever the foster parents inadvertently make a quick movement or drop something like a glass in the house, the children will cringe and scatter across the floor. This is particularly notable for this 7-year-old child. (Dkt. 23-2, p. 15.)

On June 23, 2006, Officer Beck sent a copy of the report of the sexual misconduct alleged by D.D. to the Kootenai County Prosecutor's Office requesting a complaint and a warrant for Plaintiff for one count of lewd conduct with a minor child under the age of 16 years. (Dkt. 23-2, p. 18.) The prosecutor declined to charge Plaintiff with lewd conduct. On or about July 3, 2006, Plaintiff entered a guilty plea to disturbing the peace, arising from the belt incident with D.D. This was a reduction from the initial charge of injury to child. (Dkt. 24-2, p. 20, in Case No. 2:09-cv-00468-EJL.)

On August 8, 2006, in United States v. Driggers, a grand jury indicted Plaintiff for Use of Interstate Commerce Facilities in the Commission of Murder-for-Hire, regarding Plaintiff's involvement in a conspiracy to murder Vassallo, an alleged violation of 18 U.S.C. § 1958. (Indictment in U.S. v. Driggers, CV06-173-N-EJL, Dkt. 1).

On February 23, 2007, a jury convicted Plaintiff of the criminal charge. (Id., Jury Verdict, Dkt. 113). Plaintiff was sentenced to ten years of imprisonment, and is currently incarcerated in an out-of-state federal detention center.

In 2007, IDHW lawyers filed a first petition for termination of Plaintiff's parental rights, based on the federal criminal conviction, although they termed it "solicitation to commit murder" instead of "use of interstate facilities in commission of murder-for-hire." That petition was dismissed by a Kootenai County Magistrate Judge. (Dkt. 3, p. 20, Case No. 2:08-cv-00116-BLW.)

In May 2008, IDHW lawyers filed a second petition for termination of Plaintiff's parental rights. It is unclear what happened in that case, but Plaintiff's parental rights have not been terminated to date.

On July 8, 2008, Kootenai County Magistrate Judge Simpson held a hearing in Plaintiff's state child custody matter, on a pending motion for modification of custody filed by Vassallo. At the hearing, Magistrate Simpson informed Plaintiff of the following:

1. If the children remained out of the custody of either parent for 15 of the next 22 months, the State would be required to pursue permanency proceedings, which would include termination of parental rights of both parents.

2. Because the Department of Health and Welfare has a duty to undertake all reasonable efforts to reunify families, it would pursue reunification of Ms. Vassallo and her children (and it would not pursue reunification with Plaintiff because of his incarceration), and, if Ms. Vassallo complied with that plan, then she would be awarded custody of the children.

(Dkt. 3-1, pp. 8-9, in Case No. 1:11-cv-00137-EJL.)

Based on these factors, Judge Simpson asked Plaintiff to choose between two options: (1) "You can agree that [Ms. Vassallo] can have custody until such time as you get out of federal custody. . . and then you may reopen, based on the fact that you've been released from prison"; or (2) the court could set the custody case for trial. (Id., pp. 9-10.)

Plaintiff considered the options and stipulated to the first option. (Id.) Plaintiff asked if he could have contact with his children under this option. (Id., p. 11.) Judge Simpson said that Plaintiff could forward letters to the Department of Health and Welfare case worker, who could review the letters for suitable contents, and then the letters could be forwarded to Ms. Vassallo for distribution to the children. (Id., p. 11-13.)

On July 8, 2008, Judge Simpson issued an order based on the oral stipulation. (Id., pp. 16-18.) The "Order Based on Stipulation" was drafted by Vassallo's attorney. The Order was submitted on July 8, 2008, the date of the hearing at which the stipulation was reached, and it was signed by Judge Simpson on the same day. The pertinent parts of that order are as follows:

The Respondent agreed, and the parties stipulated that the Petitioner, Karen Vassallo, would have sole legal and physical custody of their minor children until such time that he is released from federal custody. Thereafter, Respondent may petition the Court for such other and additional relief as may be warranted by the circumstances. * *

The Respondent, Paul Driggers, may have contact with the minor children through written correspondence, addressed to them in care of the Idaho Department of Health and Welfare, Sandpoint Office, 207 Larkspur, Ponderay, Idaho, 83852, to the attention of the caseworker, currently, Cheryl Buckner, Ms. Buckner or the assigned caseworker, will review the correspondence for appropriate content, then forward it to Karen Vassallo for distribution to the children. The children may contact Paul Driggers, by writing to him, with proper postage affixed, in care of the caseworker, who will forward the correspondence to the facility where Respondent is in custody. (Dkt. 3-1, pp. 16-17.)

On November 18, 2008, Judge Simpson held a telephonic hearing in Plaintiff's child custody case on Plaintiff's "motion to clarify, correct or order mediation." (Dkt. 23-3, p. 11-12.) Judge Simpson agreed with Plaintiff's position that the stipulated order permitted him the right to maintain a relationship with his children through written correspondence. (Id., p. 14.) Plaintiff informed the court that it had been four and a half months, and he had not been allowed to have contact with his children. Plaintiff asked for the court to clarify the court's intention on this point. (Id.) Vassallo said that she did not want Plaintiff corresponding with the children. (Id.) Judge Simpson clarified:

There is a court order in place that says that you're to be able to correspond through your children -- with your children by forwarding correspondence to Health and Welfare. And that Health and Welfare will review that documentation. And if it seems appropriate, they will deliver it to Ms. Vassallo.

Ms. Vassallo is subject to the jurisdiction of the Court and there has been an order entered that she transmit those communications. (Id., pp. 16-17.)

Notwithstanding the order permitting correspondence, on February 9, 2009, after Petitioner had sent letters and pictures to the Department of Health and Welfare to be delivered to his children, Glenda Felts, a DHW CPS supervisor, wrote to Mr. Driggers: "Please consult your attorney re: IDHW being the recipient of such articles--they are not US mail. The case is closed and therefore, any court orders pertaining to said case are/have been satisfied." (Dkt. 23-3, p. 9.) The record does not reflect whether Ms. Felts personally knew about the order in Plaintiff's case, as the court order addressed caseworker Defendant Cherly Buckner, or "the assigned caseworker."

In 2010, even though Plaintiff was still incarcerated, Plaintiff's extended family hired a lawyer for him, Monica Brennan, to pursue "a petition for modification of the custody and visitation, and for discovery, with a motion for contact with the children." (Dkt. 3, p. 8, in Case No. 1:11-cv-00137-EJL.) Plaintiff alleged that the new magistrate judge assigned to his case, Judge Clark Peterson, refused to permit Plaintiff to appear telephonically, called Plaintiff "a type of terrorist for filing papers in Court," and threatened to impose additional sanctions if more papers were filed. (Id. p. 9.) It is unknown whether Plaintiff filed anything further or filed an appeal.

Plaintiff filed this action on April 5, 2010, alleging that Post Falls police officers and IDHW CPS workers violated the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962, and committed other unlawful acts.

MOTION TO DISMISS

Defendants Christina McNutt, Robin Jacobson, Amanda Grafe, Denise Metzger, Kathy Crawford, Cherly Buckner and Glenda Felts (collectively "IDHW Defendants") seek dismissal of Plaintiff's entire complaint.

To state a claim upon which a plaintiff can proceed, Federal Rule of Civil Procedure 8(a)(2) requires " a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint challenged by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his entitle[ment] to relief" requires more than labels and conclusions. Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation")). In other words, Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. Dismissal may be based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable ...


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