Wright v. Yacovone

PAUL WRIGHT, Plaintiff, v. DAVE YACOVONE, STEVE DALE, LISA KELLER, RAYMOND KELLETT KELLI ZUMBRUSKI, GYLA DZIOBEK, and JOHN DOES, Defendants.

Case No. 5:12-cv-27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Dated: November 2, 2012

OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS' MOTION TO DISMISS

(Doc. 3)

Plaintiff Paul Wright brings this civil rights action pursuant to 42 U.S.C. §§ 1983 & 1988 against Defendants Dave Yacovone, Steve Dale, Lisa Keller, Raymond Kellett, Kelli Zumbruski, Gyla Dziobek and John Does (collectively, "Defendants").¹ Plaintiff alleges that Defendants violated his constitutional rights to procedural due process and equal protection when they substantiated him for child abuse and released a letter informing his ex-wife of the substantiation with the alleged recommendation that she file the letter in Vermont Family Court.

Presently before the court is Defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted. (Doc. 3.) The parties waived oral argument.

Plaintiff is represented by Brian R. Marsicovetere, Esq. Defendants are represented by Assistant Vermont Attorney General David R. Groff.

I. Factual and Procedural Background.

A. Plaintiff's Factual Allegations.

Plaintiff is a resident of Brattleboro, Vermont. On February 11, 2005, Plaintiff and Sandra Judd divorced. They have two children, C.W., who is fourteen years old and F.W., who is twelve years old.

At all relevant times, Defendant Steve Dale was Commissioner of the Vermont Department of Children and Families ("DCF"); Defendant Lisa Keller was Director of DCF's Brattleboro field office; Defendant Raymond Kellett was a DCF "Casework Supervisor" (Doc. 1 at ¶ 7) in the Brattleboro field office; Defendant Kelli Zumbruski was a DCF caseworker in the Brattleboro field office; and Defendant Gyla Dziobek was a Supervisor in DCF's Central Intake Office. John Does are currently unknown state officials who engaged in any acts or omissions that gave rise to Plaintiff's claims, and/or who continue to perpetuate the alleged constitutional violations against Plaintiff. Defendant Dave Yacovone is the current Commissioner of DCF.

When Plaintiff and Ms. Judd divorced, Ms. Judd was granted sole legal and physical parental rights and responsibilities with regard to C.W. and F.W. pursuant to the parties' stipulation. Also pursuant to that stipulation, Plaintiff was granted full access to the children's medical, dental, law enforcement and school records and substantial visitation rights with visitation occurring thereafter on a consistent basis.

In 2008, Ms. Judd sought to move to Oregon with their children. In response, Plaintiff filed a motion seeking full physical and legal custody because the move would undermine his visitation rights. Ms. Judd opposed the motion. Plaintiff alleges that, at the custody hearing, the children's classroom and extracurricular teachers and numerous other individuals testified that Plaintiff had a loving relationship with his children. He also alleges that at no point did anybody, including Ms. Judd, allege that the children were abused. The Family Court judge allegedly determined that Ms. Judd could notmove with the children to Oregon, and if she did, Plaintiff would receive full custody of the children. Ms. Judd did not appeal this decision.

In 2009, Plaintiff discovered that C.W. was seeing a psychiatrist. Dr. Neil Senior, who had prescribed him "Vyvance." Plaintiff, after consulting with the children's primary care physician, was concerned about the drug's side effects, the quality of C.W.'s mental health treatment, his diagnoses, and whether medication was the best course of treatment. Plaintiff alleges that he became alarmed at changes in C.W.'s behavior and demeanor that were allegedly consistent with the known side effects of the medication. Thereafter, at the direction of Ms. Judd, the children's physicians and counselors allegedly ceased communicating with Plaintiff and denied him access to the children's medical records. In response, Plaintiff filed a verified motion to modify parental rights and responsibilities in the Windham County Superior Court's Family Court Division, requesting medical decision-making authority with regard to the children.

In Ms. Judd's opposition to Plaintiff's motion, she expressed concerns regarding Plaintiff's alleged mistreatment of the children during visits, alleging that the children reported being "'physically restrained at times by their father'" and "'in one instance ... of being smothered and having difficulty breathing.'" Id. at ¶ 23. Plaintiff alleges that this was the first time he had been accused of any mistreatment of the children "[d]espite bitterly contested litigation since 2004f.]" Id. Ms. Judd allegedly told the Family Court that the allegations were not previously brought forth because she feared Plaintiff's retribution against the children.

Following Ms. Judd's allegations of abuse. Plaintiff alleges that, upon information and belief, on April 22, 2010, C.W.'s therapist, Susan Wagner, called DCF and reported that Plaintiff was "controlling and abusive to the kids," was "upset by mom having full custody" and "was currently [suing] for medical decisions regarding the [children] because [he] is opposed to the kids taking medication." Id. at ¶ 25. Ms. Wagner also reported that C.W. reported to Ms. Judd who reported to Ms. Wagner that Plaintiff "'lies on [F.W.] to restrain [him] to the point that he becomes terrified that he can't breathe and screams.*" Id. at ¶ 26. According to Ms. Wagner. F.W. became aggressive at school andhad nightmares following this alleged incident.² Ms. Wagner allegedly reported a number of other claims regarding Plaintiff's alleged abuse, including accusations that Plaintiff neglected the children and that the children were afraid of him.³

In response to the Wagner report, DCF conducted an intake used to determine what level of field response, if any, was necessary and allegedly documented "no report of injur[y]" to the children. Id. at ¶ 28. DCF's intake worker allegedly recommended that Ms. Wagner's allegations not be accepted for assessment or investigation. Plaintiff is allegedly referred to as an "Arab" in the intake report and only his race or ethnicity is mentioned. The intake report also lists "cultural factors" as a "contributing factor" to the alleged abuse. Id. at 32.

Plaintiff was born and raised in the United States and has no Arab ancestry. He alleges that "Defendants Dziobek, Keller, Kellett and Zumbruski all believed [Plaintiff]was an 'Arab,' and that Arabs are more prone to abuse children due to their race, ethnicity and culture." Id. at ¶ 33.

Despite the DCF intake worker's alleged recommendation, Defendants Dziobek and Keller accepted the allegations for an assessment,⁴ which Defendant Zumbruski performed. Plaintiff alleges that they were motivated to do so by their false belief that he was an ""Arab" and their further belief that Arabs have a propensity to abuse their children.

On April 29, 2010, Plaintiff alleges that Defendant Zumbruski interviewed Ms. Judd who falsely claimed that she could not afford an attorney to alter the custody order. Plaintiff contends that Defendant Zumbruski failed to verify this claim and that, had she done so. would have discovered that Ms. Judd had been consistently represented by counsel since she filed for divorce in 2004.

On May 6, 2010, Defendant Zumbruski contacted Plaintiff to advise him of an assessment into recent allegations that he abused the children but allegedly refused to provide him with details regarding the allegations. Plaintiff advised Defendant Zumbruski "that there had been extensive family court proceedings, and that he successfully prevented Ms. Judd from moving to Oregon with the children. He informed her that there were ample court records, replete with sworn witness testimony ... available for inspection, and that the allegations of abuse were made in retaliation to his motion for medical decision making authority and were not true." Id. at ¶ 40. Plaintiff advised Defendant Zumbruski that he would need to obtain legal advice, and declined to speak further without notice of the allegations.

On May 14, 2010, Defendant Zumbruski separately interviewed C.W. and F.W., and the principal from F.W.'s school. On that same date, Plaintiff's family law attorney allegedly contacted Defendant Zumbruski who advised that an "assessment" was being conducted but again refused to provide specifics about the allegations.

Plaintiff alleges that Defendant Zumbruski falsely attributed statements to some of the parties she interviewed, including Dr. Senior, F.W.'s teacher, and C.W.'s school counselor. In particular, Plaintiff alleges that Defendant Zumbruski falsely attributed to Dr. Senior a statement about Plaintiff: "This guy is a boy. He is unbelievable," Id. at ¶ 42, which in deposition Dr. Senior denied under oath ever making. Plaintiff characterizes the statement falsely attributed to Dr. Senior as "a racist statement that equates the sociological status of adult ethnic men of color with that of male children." Id. at ¶ 43.⁵

Plaintiff alleges, upon information and belief, that Defendant Zumbruski falsely claimed that F.W.'s teacher expressed concern that "'something' involving 'the father's home environment' was negatively affecting the children." Id. at ¶ 44. He alleges that, upon information and belief, Defendant Zumbruski falsely claimed that C.W.'s school counselor "stated that 'the school' did not believe [C.W.] should be having contact with Mr. Wright." Id. at ¶ 45.

On June 4, 2010, Defendant Zumbruski recommended Ms. Wagner's report be substantiated for emotional maltreatment of C.W. and F.W. That same day. Defendant Kellett substantiated Plaintiff for child abuse and then Defendants Kellett and Zumbruski decided to close the case without further action.⁶ Under...