Marr v. Maine Dept. of Human Services, No. CIV. 01-224-B-C.

215 F.Supp.2d 261

Logan MARR, et al., Plaintiffs v. State of MAINE DEPARTMENT OF HUMAN SERVICES, et al., Defendants

No. CIV. 01-224-B-C.

United States District Court, D. Maine.

July 9, 2002.

COPYRIGHT MATERIAL OMITTED

Charles Clifton Fuller, III, Attorneys Office, P.A., Belfast, ME, for plaintiffs.

Andrew S. Hagler, Assistant Attorney General, Augusta, ME, Charles A. Harvey, Jr., Robert S. Frank, Harvey & Frank, Edward R. Benjamin, Jr., Thompson & Bowie, Jonathan W. Brogan, Norman, Hanson & Detroy, Portland, ME, E. James Burke, Lewiston, ME, Thad B. Zmistowski, Eaton, Peabody, Bradford & Veague, Bangor, ME, Barri L. Bloom, Richardson, Whitman, Large & Badger, Portland, ME, for defendants.

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

GENE CARTER, District Judge.

The United States Magistrate Judge having filed with the Court on May 9, 2002, with copies to counsel, her Recommended Decision on Defendant Irwin's Motion to Dismiss (Docket No. 21); and Plaintiff having filed her objection thereto on May 21, 2002, (Docket No. 22), to which objection Defendant Irwin filed his response on June 5, 2002 (Docket No. 23); and this Court having reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; and this Court having made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision, and concurring with the recommendations of the United States Magistrate Judge for the reasons set forth in her Recommended Decision, it is ORDERED as follows:

(1) Plaintiff's objection is hereby DENIED;

(2) The Recommended Decision of the Magistrate Judge is hereby AFFIRMED;

(3) The motion to dismiss Counts I through XI, XIII, XVI, XVII, XVIII, and XX to the extent they relate to Defendant Irwin is hereby GRANTED.

RECOMMENDED DECISION ON DEFENDANT IRWIN'S MOTION TO DISMISS

KRAVCHUK, United States Magistrate Judge.

On behalf of her child and herself, Plaintiff Christy Marr ("Marr") brought an action against Lawrence Irwin, the State of Maine, Department of Human Services, and other defendants stemming from the death of her daughter, Logan Marr ("Logan") while in state custody. (Docket No. 1.) Numerous claims relate to defendant Irwin and allege claims for civil rights violations under 42 U.S.C. § 1983 and claims for malpractice, negligence, wrongful death, intentional infliction of emotional distress, slander/libel, and civil conspiracy. Presently before the Court is Irwin's Motion to Dismiss all counts against him on the grounds that plaintiff has failed to state a claim upon which relief can be granted and that as a guardian ad litem he has quasi-judicial immunity. (Docket No. 14.) I recommend that the Court GRANT Irwin's motion to dismiss Counts I-X, XI, XIII, XVI, XVII, XVIII, and XX to the extent these counts pertain to him.¹

Factual Allegations

Defendant Lawrence Irwin is a member of the Maine State Bar and for a number of years he has performed as a court-appointed guardian ad litem ("GAL"). (Compl.¶¶ 70-71.) He is well aware of his duties and legal obligations as a GAL. (Id. ¶ 71.) On or around March 8, 2000, Irwin was appointed as a GAL to Marr's biological daughter, Logan, by the Maine District Court near the same time the court issued a Preliminary Protection Order requested by the Maine Department of Human Services ("DHS"). (Id. ¶¶ 2, 9.) The complaint alleges that because the state paid Irwin for his services as a guardian ad litem, Irwin at all relevant times acted under color of law and the state is responsible for him. (Id. ¶¶ 69, 100, 290.)

During the course of Irwin's appointment as a GAL, Logan was an adjudicated dependent of DHS and was involuntarily placed in the state's care and custody. (Id. ¶¶ 89, 291.) DHS first placed the child in a foster home in March 2000, but by August she was removed due to abuse. (Id. ¶¶ 5, 6.) In September 2000, DHS placed the child in defendant Sally Schofield's home where the child was subsequently neglected and physically abused. (Id. ¶ 86.) The abuse began to occur within days of the child's placement in the Schofield home, and continued over a period of months culminating in her death in January, 2001. (Id. ¶ 88.) During the period of her abuse, the child reported the assaults to several people. (Id. ¶ 89.)

The complaint alleges that Irwin failed to meet many of his duties as a GAL. For example, Marr alleges that Irwin performed no independent investigation of the allegations made against her by the other defendants. (Id. ¶¶ 74, 305.) Further, he conducted no independent investigation of the placements of the child in either the first foster home or in Schofield's home. (Id. ¶ 75.) From August 2000, until January 31, 2001, Irwin met with the child only once in the presence of defendants Schofield and Peters, the social worker/caseworker. (Id. ¶ 83.) During the same time frame, Irwin only once went to the Schofield residence and at that visit he saw the child only briefly. (Id. ¶¶ 85, 305.) At no time did defendant Irwin meet with the child in a private or in a neutral setting so that he might obtain the child's report of her progress in foster care, nor did he meet with her prior to court hearings. (Id. ¶¶ 79, 81, 84.) Irwin was in regular contact with Schofield by telephone. (Id. ¶ 124.) The complaint alleges that Irwin was aware of the risk of harm attendant to the failure to monitor and control a child's progress while in state care, but Irwin failed to take easily available measures to address that risk. (Id. ¶¶ 95, 96.) Prior to the child's death, Irwin did not ascertain that she was being abused in Schofield's home or, if he did so ascertain, he did not investigate nor report any allegations of abuse. (Id. ¶ 90.) Additionally, Irwin failed to discover or he ignored the fact that Schofield was not a licensed foster parent at the time the child was placed with her. (Id. ¶ 77.) Marr alleges that Irwin knew or should have known and failed to report that the child was abused in the first foster home placement. (Id. ¶¶ 76, 293, 305.) The complaint alleges that by electing not to carry out the mandatory duties of a guardian ad litem, Irwin operated outside of the scope of his duties and not only violated Logan Marr's fundamental rights, but was the direct and proximate cause of her death. (Id. ¶¶ 295-296.)

In addition to Irwin's omissions, the complaint alleges that Irwin acted outside the scope of his authority by becoming involved with the placement of Marr's child. According to the complaint, prior to Irwin's involvement in the Marr proceedings Irwin knew and befriended Schofield, who was actively performing as a DHS caseworker. (Id. ¶¶ 101, 102, 118.) Marr alleges Irwin took actions to assist Schofield in adopting Marr's child. At the time the child was placed in her home, Schofield was the adoption caseworker for Logan Marr. (Id. ¶ 120.) Schofield announced she intended to adopt the child and subsequently retired from her position on November 30, 2000, due to her desire to foster and adopt the child. (Id. ¶¶ 119-121.) Irwin and Peters (the social worker/caseworker) were allegedly aware of Schofield's intentions to adopt the child and conspired to help in the termination of Marr's parental rights through negative reports, statements, and testimony to the court. (Id. ¶¶ 122, 125.)

The complaint further alleges that shortly after the child was placed in Schofield's home, Karen Westburg, the Director of the Bureau of Child and Family Services discovered that the placement violated the Department regulations, state law, and the Maine Title IV-E State Plan because Schofield, at that time, was a DHS case-worker. (Id. ¶¶ 7, 103.) Consequently, Westburg intended to place the child in a "suitably licensed" foster home. (Id. ¶ 103.) When Irwin was informed of Westburg's intention to move the child, he informed Peters and/or Schofield that he would contact the court in an attempt to prevent a new placement. (Id. ¶¶ 104-106.) Irwin contacted Richard Golden, Esq., counsel for Marr at the time in the child protective action, regarding the scheduled meeting with then presiding District Court Judge John B. Beliveau. (Id. ¶ 108.) Golden was unable to attend the meeting due to previous commitments and informed Irwin that he fully expected Irwin to reschedule the meeting. (Id. ¶ 108.) Despite Golden's request, Irwin attended the scheduled meeting with Judge Beliveau. (Id. ¶¶ 107, 311.) Irwin informed Judge Beliveau that he wished the child would not be moved despite the fact that the current placement was with a DHS caseworker. (Id. ¶¶ 107, 109.) During the meeting, Irwin contacted Westburg informing her that he would bring an action for a restraining order should she attempt to place the children in a different foster home. (Id. ¶ 110.) He further informed her that Judge Beliveau would grant his request. (Id. ¶¶ 110, 311.) As a result of this communication, Westburg refrained from moving the child and allowed her to continue residing with Schofield. (Id. ¶ 112.) The complaint alleges Irwin, in violation of a GAL rule, did not promptly report to the parties in the child protective action the outcome and the substance of the ex parte communication with the judge. (Id. ¶¶ 114, 115, 310.) Judge Beliveau does not recall ever stating or suggesting he would be involved with ordering DHS to make or keep an illegal or improper placement of children in an unlicensed foster home. (Id. ¶ 111.) The judge stated, "I can't demand any placement like that anyway. I have no authority. All I can say is they are sent to the Department of Human Services." (Id.)

Marr alleges that Irwin's acts and omissions were done intentionally and/or with malice and in bad faith. (Id. ¶¶ 126, 300.) Her complaint further states that Irwin did not possess the requisite constitutional, statutory, or lawful authority to decide to act outside of the scope of his duties as a GAL and commit such a breach of Marr's rights...