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Marshall v. Hanson

United States District Court, D. Vermont

March 27, 2015

Robert Donald Marshall, Jr. and Angel Maria Marshall, Plaintiffs,
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.

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 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 DCF[1] 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 Dismiss on Eleventh Amendment sovereign immunity and Rooker-Feldman 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 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.) 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) 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.


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 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 cross-examination will be the major proof presented to the fact-finder, 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 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." Fed.R.Civ.P. 8(a)(2). 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 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 ...

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