Wilmot v. Tracey

938 F.Supp.2d 116

Mark Anthony WILMOT, Plaintiff,

v.Tara TRACEY, et al., Defendants.

Civil Action No. 12–40057–TSH.

United States District Court, D. Massachusetts.

March 28, 2013.

Mark A. Wilmot, Millbury, MA, pro se.

Nicholas A. Ogden, Attorney General's Office, Boston, MA, Gerard T. Donnelly, Courtney E. Mayo, Hassett & Donnelly, P.C., Worcester, MA, for Defendants.

ORDER

TIMOTHY S. HILLMAN, District Judge.

Granting [34] Motion to Dismiss for Failure to State a Claim; Granting [36] Motion to Dismiss for Failure to State a Claim; Granting [47] Motion to Dismiss for Lack of Jurisdiction; and Granting [51] Motion to Dismiss for Lack of Jurisdiction.

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The plaintiff Mark Anthony Wilmot (“Wilmot”) has brought this civil rights action against the Massachusetts Department of Children and Families (“DCF”) and various of its employees, the Oxford Massachusetts Police Department and various of its members, and the Town of Oxford, following their investigation of allegations of child abuse made by the plaintiff's two adopted daughters against him on May 10, 2009. The crux of the Complaint is that the charges allegedly were obviously unfounded, but the defendants nevertheless continued with their investigation. In addition, the Oxford Police brought criminal charges against Wilmot, which they pursued through trial. Wilmot represented himself at that trial and was acquitted. Wilmot alleges that these actions caused him significant emotional and financial harm and resulted in the disintegration of his family.

Wilmot has brought an 18 count pro se Complaint,¹ raising claims of violations of his constitutional rights, state law claims, and a claim for a declaratory judgment. This matter is presently before the court on four motions to dismiss brought by all the defendants. The DCF defendants have brought two motions to dismiss on behalf of the individual DCF employees (Docket Nos. 36 and 47) ² and one on behalfof DCF itself (Docket No. 51). The Oxford Police Department, its employees and the Town of Oxford have brought a combined motion to dismiss (Docket No. 34). ³ By their motions, the defendants are seeking dismissal of all counts of the Complaint.

It is undeniable that the plaintiff is anguished over the events which transpired, and that he is extremely angry that his denials of wrongdoing were ignored, especially given his status as an approved foster and adoptive parent, and as a military veteran. Nevertheless, as the allegations of the Complaint make clear, the defendants were following their statutory and governmental obligations in pursuing the claims of abuse. For all the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the motions to dismiss be ALLOWED.

II. STATEMENT OF FACTS

When ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir.1999). “Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001). “There is, however, a narrow exception ‘for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.’ ” Id. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993)). Applying this standard to the instant case, the facts relevant to the motions to dismiss are as follows.⁴

Wilmot's Family

Plaintiff, Mark Wilmot, is a disabled military veteran who earned the title Master Sergeant, United States Marine Corps (retired). Compl. ¶ 41. At the time of the incident in question, Wilmot was married and had two adult biological sons, Donald and Preston. Id. ¶¶ 57, 66–69. He had also served as a certified foster parent in North Carolina, caring for as many as ten foster children without complaint. Id. ¶¶ 50–52. In 1999, Wilmot and his wife chose to adopt two girls for whom they had formerly been foster parents. Id. ¶¶ 53, 56. These two girls, referred to herein as KLW and DRW, are the ones who made the abuse charges discussed below. According to Wilmot, his family unit was fully intact, without controversy, until the allegations of abuse were made against him. Id. ¶¶ 61–62. In addition, he was a productive member of the community, without a prior criminal record. Id. ¶¶ 44, 65.

The Allegations of Abuse

As of May 10, 2009, Wilmot and his wife lived with their sons Preston and Donald, Donald's wife Michelle, and the minor adopted daughters KLW and DRW. Id. ¶¶ 69, 73–75. According to Wilmot, Michelle, a former mental health counselor for the United States Army, was a mentally disturbed woman who reported that she suffered from PTSD as well as other mental health problems. Id. ¶¶ 71, 78–86. Nevertheless, “Michelle was capable of presenting herself as a credible person as an outcome of her speech, bearing, and education, and experience as an Army medic.” Id. ¶ 104.

Michelle, who had been living with the Wilmot family since March 2009, had become a sort of “big sister” to the two adopted girls. Id. ¶¶ 73–75. According to Wilmot, “[w]ithout full-knowledge and understanding of early-childhood contributive factors, or all that the adopted girls KLW and DRW had experienced in their life, Michelle developed a hypothesis, that because the two adopted girls did not ‘appear normal’, and because the girls were unhappy with the level and scope of [Wilmot's] parental guidance, that child abuse was occurring.” Id. ¶ 87. Wilmot further claims that Michelle manipulated the girls and convinced them to bring abuse allegations against their adopted father so that she could get custody of them. Id. ¶¶ 85–108. There is no contention that any such alleged manipulation was known to the authorities when the initial complaints were made.

On May 10, 2009, Michelle brought the two girls to the Oxford Police Department. There Michelle, who “possessed good report writing skills,” provided “a seemingly air-tight ‘voluntary statement’ ” claiming that both girls had disclosed to her that Wilmot “had sexually, physically, and emotionally abused them for a period exceeding ten years.” Id. ¶ 106. Moreover, Michelle reported that Wilmot had told the girls not to tell the police or school officials. Id. ¶ 108. The girls confirmed the abuse. See, e.g., id. ¶¶ 102, 128. The Oxford Police then contacted DCF in conformity with “the mandatory reporting requirements as set forth by Massachusetts state law.” Id. ¶ 139. Since an understanding of the statutory framework for investigating child abuse allegations is necessary to put the allegations of the Complaint in context, a brief overview follows.

Procedures for Investigating Allegations of Child Abuse

DCF's procedures for investigating charges of child abuse are defined by statute and regulations. Specifically, but without limitation, Mass. Gen. Laws ch. 119, § 51A requires specified persons, including the police, to report allegations of child abuse to the DCF (a “51A report”) if they have “reasonable cause to believe that a child is suffering physical or emotional injury” as a result of abuse. Mass. Gen. Laws ch. 119, § 51A(a). This “reasonable cause” standard “serve[s] a threshold function, thereby implying a relatively low degree of accuracy.” Care & Protection of Robert, 408 Mass. 52, 63, 556 N.E.2d 993, 998–99 (1990). “Therefore a presentation of facts which create a suspicion of child abuse is sufficient to trigger the requirementsof § 51A.” Id. at 63, 556 N.E.2d at 999.

Pursuant to Mass. Gen. Laws ch. 119, § 51B, DCF must promptly investigate any 51A report. If there is “reasonable cause” to suspect that the reported condition poses an immediate danger to the life, health, or safety of a child, an investigation must commence within two hours of the report, and an interim report with an initial determination must be completed within twenty-four hours. Mass. Gen. Laws ch. 119, § 51B(c); 110 C.M.R. § 4.31(1). During this “51 B investigation,” DCF may take a child into temporary custody when it “has reasonable cause to believe that removal is necessary to protect a child from abuse or neglect[.]” Mass. Gen. Laws ch. 119, § 51B(e).

Once the 51B investigation is completed, DCF must determine whether the 51A report is “supported” or “unsupported.” 110 C.M.R. § 4.32(1). There is a right to an administrative appeal of this decision, followed by an appeal to the Massachusetts Superior Court. See id. §§ 10.06, 10.08, 10.10; Mass. Gen. Laws ch. 30A, § 14. DCF will conclude that the 51A report is “supported” if there is “reasonable cause” to believe that a child was abused or neglected. 110 C.M.R. § 4.32(2). “To support a report does not mean that the Department has made any finding with regard to the perpetrator(s) of the reported incident of abuse or neglect. It simply means that there is reasonable cause to believe that some caretaker did inflict abuse or neglect upon the child in question.” Id. Depending on the circumstances, DCF is required to, or may exercise its discretion and, report the matter to the district attorney's office. SeeMass. Gen. Laws ch. 119, § 51B(k); 110 C.M.R. §§ 4.50–4.53.

Once a 51A report is found to be “supported,” DCF opens a new case for services, and the Department undertakes a full assessment of a family's needs, along with “evaluations of risk to children,” which is to be completed within 45 working days after the initial contact. 110 C.M.R. §§ 5.02–5.04. A “Service Plan” describing the changes needed, tasks to be undertaken and services provided is drafted if necessary. Id. §...