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Wright v. Yacovone

United States District Court, D. Vermont

March 21, 2014

PAUL WRIGHT, Plaintiff,



Plaintiff Paul Wright brought this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Dave Yacovone, Steve Dale, Lisa Keller, Raymond Kellett, Kelli Zumbruski, [1] Gyla Dziobek and John Does. Plaintiff alleges Defendants violated his constitutional rights when they substantiated him for child abuse and released a letter informing his ex-wife of the substantiation with a recommendation that she file the letter in Vermont Family Court.

Presently before the court is Defendants' motion for summary judgment. (Doc. 39.) On February 4, 2014, the court held oral argument in this matter and subsequently granted Plaintiff's voluntary dismissal of his equal protection claim as to all Defendants and his procedural due process claim as to Defendants Yacovone, Dale, Keller, Dziobek, and Does. As a result, only Plaintiff's procedural due process claim against Defendants Kellett and Zumbruski remains.[2]

Plaintiff is represented by Brian R. Marsicovetere, Esq. Defendants are represented by Vermont Assistant Attorney General David R. Groff.

I. Factual Background.

A. Undisputed Facts.

Plaintiff is a resident of Brattleboro, Vermont. On February 11, 2005, Plaintiff and his former wife, Sandra Judd, divorced. They have two minor children, C.W. and F.W.

At all relevant times, Defendant Dale was Commissioner of the Vermont Department of Children and Families ("DCF"); Defendant Keller was Director of DCF's Brattleboro field office; Defendant Kellett was a DCF "Casework Supervisor" in the Brattleboro field office; Defendant Zumbruski was a DCF caseworker in the Brattleboro field office; and Defendant Dziobek was a Supervisor in DCF's Central Intake Office. Defendant Yacovone is the current Commissioner of DCF.

In the course of Plaintiff's divorce, he stipulated that Ms. Judd should be granted sole legal and physical parental rights and responsibilities of C.W. and F.W. Pursuant to this same stipulation, Plaintiff was granted full access to the children's medical, dental, law enforcement, and school records, and substantial visitation rights.

In 2008, Ms. Judd sought to move to Oregon with the children. In response, Plaintiff filed a motion seeking full physical and legal custody on the basis that the move would undermine his visitation rights. Ms. Judd opposed the motion. At the custody hearing, the children's classroom and extracurricular teachers and numerous other individuals testified that the children were "well adjusted, doing fine in school, and had a loving relationship with [Plaintiff]." (Doc. 46-2 ¶ 3.) At no point did anybody, including Ms. Judd, allege that the children were abused. The Family Court judge determined that Ms. Judd could not move with the children to Oregon.

In 2009, Plaintiff learned that C.W. was seeing a psychiatrist, Dr. Neil Senior, who had prescribed him "Vyvance." After consulting with C.W.'s primary care physician, Plaintiff became concerned about the drug's side effects, the quality of C.W.'s mental health treatment, his diagnoses, and whether medication was the best course of treatment. Thereafter, at the direction of Ms. Judd, the children's physicians and counselors ceased communicating with Plaintiff and denied him access to the children's medical records. In response, Plaintiff filed a verified motion to modify parental rights and responsibilities in the Windham County Superior Court's Family Court Division, requesting medical decision-making authority with regard to the children. In the motion, Plaintiff raised various concerns about the side effects of the medication that C.W. was experiencing.

In Ms. Judd's opposition to Plaintiff's motion, she alleged that Plaintiff mistreated the children during visits, noting that the children reported being "physically restrained at times by their father and in one instance... of being smothered and of having difficulty breathing." Id. ¶ 7 (internal quotation marks omitted). This was the first time Plaintiff had been accused of mistreating the children. Ms. Judd advised the Family Court that the allegations were not previously brought forth because she feared Plaintiff's retribution against the children.

Following Ms. Judd's allegations of abuse, on April 22, 2010, a mental health care provider, Ms. Ingrid Longo, reported to DCF that Plaintiff was "very controlling and abusive to the kids, " was "opposed to the kids taking medicine, " and that on several occasions laid on top of F.W. "to restrain [him], to the point that [he] becomes terrified that he can't breathe and screams." (Doc. 39-1 ¶ 5) (internal quotation marks omitted). According to Ms. Longo, F.W. became aggressive at school and had nightmares following these incidents. Ms. Longo also reported a number of other claims regarding Plaintiff's alleged abuse, including accusations that Plaintiff neglected the children and that the children were afraid of him.[3] Ms. Longo also stated that Plaintiff is an "Arab." Plaintiff was born and raised in the United States and has no Arab ancestry.

In response to Ms. Longo's report, DCF conducted an intake used to determine what level of field response, if any, was necessary. Consistent with DCF's rules and practices, the intake worker recorded the information reported and did not determine whether it constituted a report of abuse or neglect, as defined in rules or statutes. The intake report includes Ms. Longo's assertion that Plaintiff is an Arab and also lists "cultural factors" as a "contributing factor" to the alleged abuse. (Doc. 39-2 at 2, 3.) DCF's intake worker recommended that Ms. Longo's allegations not be accepted for assessment or investigation.

Pursuant to DCF's customary procedures, the central intake supervisor, Defendant Dziobek, reviewed the intake report. Defendant Dziobek concluded that an assessment was warranted because "the parent's behavior overall may pose risk to [the] children" even though there was no specific incident that placed the children at "significant risk." (Doc. 39-2 at 4.) In reaching this decision, Defendant Dziobek gave no consideration to the assertion of the reporter that Plaintiff was an Arab. The intake report was assigned to Defendant Zumbruski for assessment.

During the ensuing weeks, Defendant Zumbruski contacted and interviewed numerous witnesses, including Ms. Judd, one of the children's therapists, school personnel, Dr. Senior, F.W.'s teacher, C.W.'s school counselor, and both of the boys. When interviewed, Ms. Judd reported many of the allegations of abuse documented in the Longo report.[4] Ms. Judd also stated that she could not afford an attorney to alter the custody order. Ms. Judd had been represented by counsel in prior contested hearings in Family Court. C.W.'s school counselor advised DCF that C.W. said he hated Plaintiff and did not want to go to his house. The counselor stated that she told C.W. to discuss these issues with his mental health provider, and sought a release to speak with the provider herself. The counselor thought that the problems could adversely impact C.W.'s ability to perform in school. A staff person at F.W.'s school reported that she was glad DCF was involved with the boys, that she had concerns about one of the boys emotionally, and that the boys and their mother had complained about Plaintiff's caretaking. A therapist for one of the boys stated that Plaintiff refused to provide medical treatment for one boy, mocked the boys, and was abusive. Dr. Senior stated that Plaintiff "is a boy. He is unbelievable." (Doc. 39-1 ¶ 24) (internal quotation marks omitted). Defendant Zumbruski attempted to contact the children's pediatrician but did not speak with him. Finally, Defendant Zumbruski interviewed both boys separately, who each repeated some of the allegations included in the intake report, including that Plaintiff neglected them and was physically abusive.

Defendant Zumbruski contacted Plaintiff to notify him of the assessment into the allegations of abuse. Plaintiff denied the report and claimed it was motivated by Ms. Judd's attempt to influence the Family Court proceedings. Plaintiff referred Defendant Zumbruski to those proceedings for additional background information and stated that he would need to obtain legal advice. Defendant Zumbruski also advised Plaintiff's family law attorney that an assessment was being conducted. Plaintiff was never contacted again by Defendant Zumbruski, and she did not request to visit Plaintiff's home for an inspection. Aside from obtaining the custody order and docket entry of Plaintiff's Family Court case, Defendant Zumbruski did not examine any of the family court history as part of her assessment.

Meanwhile, Ms. Judd contacted Defendant Kellett to inquire into the status of Plaintiff's visitation rights given the concerns raised in Ms. Longo's report. Defendant Kellett stated that Ms. Judd ...

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