Sosnowski v. Xeureb

THOMAS ALBERT SOSNOWSKI, Plaintiff, v. SHANNON XEUREB, et al., Defendants.

Case No. 3:20cv5780-MCR-HTC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

December 15, 2020

ORDER and REPORT AND RECOMMENDATION

This matter is before the Court on (1) Plaintiff Thomas Albert Sosnowski's pro se second amended complaint (ECF Doc. 14) seeking to assert claims pursuant to 42 U.S.C. § 1983, and (2) the undersigned's prior Report and Recommendation (ECF Doc. 12) on Plaintiff's first amended complaint (ECF Doc. 8). Plaintiff paid the full filing fee and, subsequent to the payment, filed a motion to proceed in forma pauperis. ECF Doc. 11. The matter was referred to the undersigned Magistrate Judge for preliminary screening and report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(C).

On November 13, 2020, after screening Plaintiff's first amended complaint (ECF Doc. 8), the undersigned issued a Report and Recommendation (ECF Doc. 12), recommending this action be dismissed because Plaintiff's claims are barred by the statute of limitations and the Rooker-Feldman doctrine.

After the Report and Recommendation was issued, Plaintiff filed a second amended complaint (ECF Doc. 14). It appears Plaintiff may not have yet received the Report and Recommendation when he submitted the second amended complaint to prison officials. Although the second amended complaint is not substantively different from the first amended complaint, and is thus subject to dismissal on the same grounds, for the sake of judicial efficiency and because Plaintiff is proceeding pro se, the undersigned went ahead and screened the second amended complaint under 28 U.S.C. § 1915A. Thus, the undersigned will vacate the prior Report and Recommendation (ECF Doc. 12) in favor of this Report and Recommendation, which specifically addresses the second amended complaint.

Additionally, the undersigned orders Plaintiff's motion to proceed in forma pauperis be DENIED. As stated above, after Plaintiff had already paid the full filing fee, he filed a motion to proceed in formal pauperis. The motion is based on Plaintiff's inability to pay for copying costs. In forma pauperis status, however, does not entitle a plaintiff to the payment for copies. See, e.g., F.T.C. v. Lalonde, 545 F. App'x 825, 833 (11th Cir. 2013) (noting that section 1915 does not cover costs of copies of documents, postage, or legal supplies).

I. THE SECOND AMENDED COMPLAINT

Plaintiff, an inmate of the Florida Department of Corrections, currently incarcerated at Jefferson Correctional Institution, brings this action on behalf of himself, his son Roman Sosnowski, and the estate of his deceased mother Katarina Sosnowski.¹ Plaintiff names the following twelve (12) defendants, some of whom are not state actors but are private citizens and relatives of the Plaintiff's son: (1) Shannon Xeureb (Department of Children and Families ("DCF") Child Protective Investigator); (2) Sarah Peacock (same); (3) Jacquilyn Henry (same); (4) Stacy Amaro (same); (5) Megan Williams (Lakeview Families First Network Child Protective Caseworker); (6) Tom Sefton (Lakeview Center Child Psychological Trauma Therapist); (7) Rebecca Scott (Lakeview of Baptist Hospital Adult Psychiatric Evaluator); (8) Katrina Crane (same); (9) Estate of Gina Garza (deceased biological mother of Plaintiff's son); (10) Brittany Hightower (maternal half-sister and permanent legal guardian of Plaintiff's son); (11) Hilda Tyler (maternal grandmother of Plaintiff's son); and (12) Ray Garza (maternal grandfather of Plaintiff's son). ECF Doc. 14 at 3-6.

Plaintiff's second amended complaint consists of thirty-three (33) pages and eighty-one (81) pages of exhibits.² The second amended complaint contains a recitation of disjointed facts and nonsensical allegations, which are difficult to follow and even more difficult to comprehend. Additionally, in some instances, the second amended complaint contains gratuitous and caustic personal attacks against Defendants.³

From what the undersigned can discern, Plaintiff's allegations center on adverse custody decisions rendered in the Santa Rosa County Circuit Court after several DCF shelter hearings. Plaintiff disagrees with the "no contact" and custody decisions made by the judges in those hearings, and Plaintiff alleges the investigators who were involved conspired with the child's relatives to fabricate evidence against Plaintiff, conceal evidence from the judges, and ignore evidence favorable to Plaintiff. He contends the DCF hearings and Defendants' conduct violated his constitutional rights as well as those of his "biological and brainwashed son." Plaintiff seeks monetary damages and for this Court to grant him custody of his child.

The following facts are taken from Plaintiff's second amended complaint and assumed to be true for purposes of this report and recommendation. Because the recitation of alleged facts contained in the second amended complaint is repetitive and not in any sensible order, the undersigned has attempted to reorganize the allegations here in reverse chronological order, when possible.

On June 9, 2016, at a DCF shelter hearing before Judge Marci Goodman, Plaintiff alleges Defendant Williams deceived Judge Goodman into imposing a permanent no contact order by "commit[ing] straight up perjury by testifying that [Plaintiff] was non-compliant with a DCF safety case plan . . . ." Id. at 17-18. Plaintiff alleges his "Confrontation Clause rights were violated" because he could not cross-examine Defendant Williams, and that Plaintiff was "blatantly denied procedural due process rights to attend the hearing." Id. at 18. Plaintiff also alleges Judge Marci Goodman "abused the Court's discretion" by imposing the permanent no-contact order. Id. at 18.

According to Plaintiff, the events leading up to the June 9, 2016 hearing included three "bogus welfare checks at [Plaintiff's] family's home," which occurred between May 25, 2015, and July 17, 2015, and were led by Defendants Peacock and Amaro. Id. at 10. Plaintiff alleges Defendant Tyler made four "separate allegations of abuse or neglect . . . with malicious intention," and a July 20, 2015 DCF report indicated that there was no evidence of child abuse, neglect, or domestic violence. Id. Plaintiff asserts despite a "Florida DCF statute" mandating the initiation of "felony prosecution" for false reports of abuse or neglect, Defendants Peacock and Amaro "violated [Plaintiff's] [Fourteenth] Amendment rights to [e]qual protection [u]nder the [l]aw for refusing to initiate felony prosecution of [Defendant] Tyler for making [four] consecutive allegations of abuse and neglect [that] DCF determined to be false . . . ." Id. at 10-11.

By refusing to initiate such a prosecution, Plaintiff asserts Defendants Peacock and Amaro "refuse to protect . . . [Plaintiff's] son and [him] from future human rights atrocities . . . inflicted by . . . Defendants . . . ." Id. at 11. Plaintiff alleges that Defendants Peacock and Amaro "actively and deliberately" encouraged Gina Garza and Defendants Hightower and Tyler to make false reports of domestic violence to DCF "WITHOUT ANY FEAR OF CONSEQUENCE, with full custody of [Plaintiff's] son and exclusive use of the home that is only in [Plaintiff's] name AS THE REWARD FOR THE NUMEROUS FELONIES COMMITTED . . . ." Id. Plaintiff contends that the Santa Rosa County DCF is "an extremely sexist, man hating organization" because the CPIs in 2015 were "nearly ALL female." Id.

Plaintiff also complains about a "warrantless forced seizure" that took place on September 8, 2015, which, as set forth above, initiated the no-contact order. Plaintiff claims the events on that day violated his Fourteenth Amendment rights to family association and Fourth Amendment protection from "unlawful searches and seizures."⁴ Id. Specifically, Plaintiff alleges Defendant Xeureb "initiated a government created exigency complete with a beyond ridiculous show of extreme police force when she brought TEN!!! DCF assist police officers." Id. at 12. Plaintiff asserts Defendant Xeureb accepted and encouraged false domestic violence reports from Defendant Tyler and ignored many "exculpatory facts," such as information in a July 20, 2015 DCF report relating to testimony from Defendant Hightower and Gina Garza, id. at 24-25, and the fact that there were "absolutely no reports of child abuse, child neglect, or reckless child endangerment . . . ." Id. at 12. Plaintiff alleges Defendants violated his son's Eighth Amendment protections against cruel and unusual punishment by exposing him to extreme psychological trauma, as Plaintiff's son was "only [three] feet away and watch[ed] the SWAT [t]eam brutally bludgeon his beloved father to the point [Plaintiff's] beloved son thought his beloved father was dead with a pool of blood next to his beloved father's head." Id. at 23.

Plaintiff alleges Defendant Xeureb "had the full knowledge that [Plaintiff] always took very good care of [his] son" as well as "the full knowledge that [Plaintiff never] threatened to dismember DCF CPIs" during any of the welfare checks. Id. at13. Yet, Defendant Xeureb concealed this knowledge from the DCF officers and the "SWAT Team, while fabricating false allegations of abuse," to deceive the officers into "conducting an unlawful and extremely brutal warrantless forced seizure of [Plaintiff's] son with absolutely no exigent circumstances . . . ." Id. at 14. Plaintiff contends Defendant Xeureb cannot prove she had "reasonable cause to believe that [Plaintiff's] son was actually in serious danger . . . ." Id.

Plaintiff further alleges Defendant Xeureb continued to violate his Fourteenth Amendment rights the following day, on September 9, 2015, at a DCF shelter hearing by "'sheltering' [Plaintiff's] son from [him] and imposing a [n]o [c]ontact [o]rder[,] . . . which turned into a permanent [n]o [c]ontact [o]rder in a June 9, 2016 EX PARTE...