Frederick v. W. Va. Dep't of Health & Human Servs., Case No. 2:18-cv-01077

MICHAEL W. FREDERICK and DIANE H. FREDERICK, Plaintiffs, v. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

Case No. 2:18-cv-01077

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON

February 15, 2019

PROPOSED FINDINGS AND RECOMMENDATION

Following the transfer of this matter from the United States District Court for the Northern District of West Virginia, due to a perceived conflict of interest, this matter is assigned to the Honorable Thomas E. Johnston, Chief United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the court are the following motions: a Motion to Dismiss filed by Kathy Bradley, Lisa M. Driscoll, Anita B. Duncan, Rebecca Hall, Shelly Nicewarner, and the West Virginia Department of Health and Human Resources (hereinafter "the DHHR Defendants") (ECF No. 13); a Motion to Dismiss filed by Debora Barthlow, Children's Home Society of WV, Emily R. Hawver, Safe Haven Child Advocacy Center, and Victoria Slater-Madert (hereinafter "the CHS Defendants") (ECF No. 34); an Amended Motion to Dismiss filed by the DHHR Defendants (ECF No. 37); a Motion to Dismiss filed by Vicki L. Barnard, CASA of the Eastern Panhandle, Inc., and Rebekah Overstreet (hereinafter "the CASA Defendants") (ECF No. 68); a Motion to Dismiss filed by Jefferson County, Jefferson County Prosecuting Attorney's Office, and Jefferson County Sheriff's Department (ECF No. 71); a Motion to Dismiss filed by Lyndsey W. Matschat (ECF No. 73); a Motion to Dismiss filed by Brandon C.H. Sims (ECF No. 75); a Motion to Dismiss filed by Hassan S. Rasheed (ECF No. 77); a Motion to Dismiss filed by Scott Demory, Steven Holz, V.C. Lupus, Sharon Moskowitz, R. Rjasko, Defendant Thomas, and J.P. Windle (hereinafter "the Deputy Sheriff Defendants") (ECF No. 79); a Motion to Dismiss filed by Pete Dougherty and Ralph A. Lorenzetti (ECF No. 81); a Motion to Dismiss filed by Blue Ridge Elementary School, Mary Brittingham, Bandon Caton, Bondy S. Gibson, Jefferson County School District, and Susan T. Zigler (hereinafter "the School Defendants") (ECF No. 83); and a Motion to Dismiss filed by Rene Ellenberger, Abigayle Kohler¹, and National Youth Advocate Program (hereinafter "the NYAP Defendants") (ECF No. 86).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 21, 2018, the plaintiffs filed an excessively lengthy Complaint in the United States District Court for the Northern District of West Virginia. The Complaint, which is 247 pages in length, contains 1301 paragraphs asserting 76 counts/claims for relief against 39 defendants. All of the claims arise out of the defendants' roles in criminal prosecutions and abuse and neglect proceedings instituted against Michael W. Frederick in the Circuit and/or Magistrate Courts of Jefferson County, West Virginia, which were prosecuted between June 11, 2014 and June 28, 2017.

Due to a perceived conflict of interest, Chief Judge Gina M. Groh transferred the matter to this United States District Court. Following service of process, each defendant has filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Motions to Dismiss are fully briefed and ripe for adjudication. Before addressing the defenses raised in the Motions to Dismiss, the undersigned believes a comprehensive recitation of the facts contained in the Complaint will be helpful.

On June 11, 2014, S.F., the eight-year-old daughter of Michael Frederick ("Michael"), disclosed to Mary Brittingham ("Brittingham"), a counselor at Blue Ridge Elementary School ("BRES"), that "her father . . . touched her and [did] other things to her in her bedroom." (ECF No. 1 at 13, ¶ 68). During the same conversation, S.F. stated that her aunt, K.J., and her grandfather, who had allegedly been blamed for "touching" her, had not actually done so. (Id. at 12, ¶¶ 66, 67).

As a result of these disclosures, and as required by state law, Brittingham contacted the West Virginia Department of Health and Human Resources' ("DHHR") Child Protective Services ("CPS") and made a report about S.F.'s abuse allegations. (Id., ¶ 72). Brittingham assisted a DHHR social worker in the completion of a Danger Assessment Intake Report, finding that no present danger was indicated. (Id., ¶ 73). S.F. was held in the school office and questioned by Lisa Driscoll ("Driscoll"), a DHHR employee, without the knowledge or consent of her parents. (Id. at 13-14, ¶ 75). S.F. was subsequently permitted to ride the bus to her great grandmother's (Michael's grandmother) house, where Diane Frederick ("Diane") (S.F.'s grandmother) also lived.² (Id. at 16, ¶¶ 90-92). The Complaint suggests that this house is "where S.F. was already staying for the summer -- her home away from home." (Id. at 19, ¶ 103).

A CPS referral was also made to law enforcement. (Id. at 14, ¶ 77). Sharon Moskowitz ("Moskowitz"), a Deputy Sheriff with the Jefferson County Sheriff's Department, responded to BRES, where she met with Driscoll and Brittingham and was provided with Brittingham's statement concerning S.F.'s disclosures and S.F.'s school enrollment forms. (Id., ¶¶ 78, 79). Driscoll and Moskowitz left the school and drove to Michael's residence in Harper's Ferry, West Virginia, to investigate and attempt to meet with the residents of the home, but no one was there. (Id. at 15-16, ¶¶ 87, 88). Moskowitz contacted Scott Demory ("Demory"), a Detective with the Jefferson County Sheriff's Department, who commenced an investigation of S.F.'s claims. (Id. at 16-17, ¶¶ 94, 95).

Later that evening, Driscoll and Deputy Sheriff R. Rjasko ("Rjasko") arrived at Michael's residence to serve him and his wife with CPS paperwork, including a Temporary Protection Plan. (Id. at 17, ¶ 97). Michael and his wife denied S.F.'s allegations and stated that, while they were watching a movie in their bedroom, S.F. had woken up in her bedroom and yelled "They were just in here!" Michael's wife assured S.F. that she was just having a "bad dream" and allowed her to come into their bedroom to sleep for the night. (Id., ¶ 98). The plaintiffs allege that Driscoll and Rjasko did not take any steps to confirm any other information concerning S.F.'s statements to the school and DHHR staff. (Id. at 18, ¶ 99).

Driscoll advised Michael and his wife that S.F. would need to stay at her great grandmother's house as part of a Temporary Protection Plan that was being put into effect, and then presented them with some forms, which the plaintiffs allege were signed under duress. (Id. at 18-19, ¶¶ 100, 101). The Temporary Protection Plan, which was in effect until June 18, 2014, was also presented to S.F.'s great grandmother. It indicated that S.F. was to have no contact with Michael, his wife, her aunt K.J., or her grandfather. (Id. at 19-20, ¶ 104).

On June 12, 2014, Demory, working with DHHR staff, scheduled a forensic interview of S.F. by Children's Home Society ("CHS") staff, which took place on June 13, 2014 at Safe Haven Child Advocacy Center ("CAC"). (Id. at 20-21, ¶¶ 109-111). S.F. was interviewed for about three hours by Victoria Slater-Madert ("Slater-Madert"), Child and Family Services Supervisor for CHS. (Id. at 22, ¶ 116). Demory was also present at the interview. (Id., ¶ 117). The plaintiffs take issue with the protocol and methods used by Slater-Madert during the interview and the fact that the interview was done without a court order.

The plaintiffs allege that S.F. made inconsistent and implausible statements during the interview, and that, upon returning home, she told her great grandmother and another aunt, Y.A., that she had lied about her father touching her, that "he didn't do it," and "it wasn't true." (Id. at 22-24, ¶¶ 120, 122, 124). S.F.'s aunt, Y.A., subsequently recorded conversations with S.F. in which she continued to recant her allegations that her father had sexually abused or assaulted her and admitted that she had lied about it. (Id. at 24, ¶¶ 125, 126). The plaintiffs contend that Demory failed to interview any of the other family members, who allegedly would have provided information or evidence demonstrating Michael's innocence. (Id. at 24-25, ¶ 127).

Rather, in an alleged rush to judgment, on June 14, 2014, Demory swore out a criminal complaint, and secured a warrant for Michael's arrest on charges of sexual assault and sexual abuse by a parent or guardian. (Id. at 25, ¶ 129). Later that night, Jefferson County Deputy Sheriffs Rjasko, Thomas, and Windle arrived at Michael's house to arrest him. (Id. at 25-26, ¶¶ 130-136). Windle and Rjasko allegedly slammed Michael onto the back deck and Thomas threatened to Taser him if he didn't comply with being handcuffed. (Id. at 26, ¶ 137). One of these defendants allegedly stated, "This is what happens when you molest children." (Id.) They allegedly continued to verbally harass him as they took him to the Eastern Regional Jail. (Id., ¶ 138).

On June 15, 2014, defendant Windle filed another criminal complaint charging Michael with Obstructing an Officer and Fleeing an Officer. (Id. at 27, ¶ 141). Michael appeared before a magistrate and was released on bond (which he claims was excessive). (Id., ¶ 142). At that time, Michael was also serving a period of probation for a prior conviction in the United States District Court for the Eastern District of Virginia on charges of interstate transportation of a stolen vehicle and discharge of pollutants into waters of the United States. The probation period was set to expire on July 21, 2014. (Id. at 28, ¶ 151).

On June 16, 2014, V.C. Lupus, a Sergeant with the Jefferson County Sheriff's Department, contacted the Probation Office in the Eastern District of Virginia and advised Carolyn Nulf of Michael's arrest in West Virginia and provided her with a copy of the arrest warrant. (Id. at 29, ¶ 152). Nulf thereafter...