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Bosisto v. Freeman

United States District Court, D. Oregon

May 18, 2017

CURTIS L. BOSISTO and JILL BOSISTO, individually and as guardians for J.L.B., and J.L.B., a minor child, Plaintiffs,
v.
MARCIE A. FREEMAN, in her individual capacity and as an official of the State of Oregon; OREGON DEPARTMENT OF HUMAN RESOURCES, Defendants.

          ORDER

          JOLIE A. RUSSO United States Magistrate Judge.

         Plaintiffs, Curtis Bosisto and Jill Bosisto, individually and as guardians ad litem for J.L.B., bring this action alleging violations of their Fourth and Fourteenth Amendment rights via interference with familial association against defendants Marcie Freeman and the Oregon Department of Human Services.[1] Defendants move for summary judgment and plaintiffs move to file a second amended complaint. The Court heard oral argument on May 9, 2017. The motion for summary judgment is granted in part and denied in part; and the motion to amend is denied.

         BACKGROUND

         Plaintiffs initiated this action on February 27, 2016 alleging J.L.B., the minor child of Jill and Curtis Bosisto, was interrogated and involuntarily removed from her middle school by Oregon Department of Human Services case worker Marcie Freeman. This removal was accomplished absent a warrant or court order and without indication of imminent danger or threat to the safety of J.L.B. Plaintiffs further allege defendant Freeman removed J.L.B. from her parents home and placed her with her grandmother, where she remained for about three weeks, without filing a petition for removal. Plaintiffs assert a substantive due process claim based on interference with familial association, a procedural due process claim based on the removal absent a post-deprivation hearing, and an unlawful seizure claim based on J.L.B.'s removal absent exigent circumstances.

         A. Defendants' Allegations

         Defendants' factual background comes primarily from defendant Freeman's Assessment Summary generated to document the investigation of alleged child abuse. See Ex. 2 attached to the Amended Declaration of Marcie A. Freeman (#48).

         On March 5, 2014, defendant Freeman, along with Springfield Police Officer Turner, responded to a report of potential child abuse at J.L.B.'s school and conducted an investigation. A reporting resource (RS), a school worker, reported that J.L.B. described her home life as unbearable. RS further reported that J.L.B. makes herself throw-up on a daily basis and cuts herself. RS stated that J.L.B. is depressed and her grades have dropped drastically. RS also reported that both of J.L.B.'s parents tell her she is fat. Id. at p. 2. See also Ex. 1 (Turner's Investigative Report) attached to Declaration of Sharia Mayfield (#47). Freeman's summary also indicated that J.L.B. was suspended for one week in February for bringing her father's marijuana pipe to school. Ex. 2 attached to the Amended Declaration of Marcie A. Freeman (#48) at p. 5.

         J.L.B. told Freeman that her father laughed at her when she asked for counseling, he tried to break her arms, and punched her. J.L.B. further reported her father kicked her mother requiring a trip to the hospital. J.L.B. also reported her father follows her around the house yelling at her, stating she is a worthless horrible person, and she should just kill herself. Finally, J.L.B. stated that her father told her he is done parenting her and he is going to cut her off from food and clothing. Id. at pp. 2-3, 7-8 . J.L.B. also made statements of suicidal ideation. Id. at pp. 5, 8.

         RS reported they believe the father is angry with J.L.B. because she discovered and exposed that he was having an affair. It was also reported the father drinks heavily and has a medical marijuana card. The mother is reported to possibly have mental health issues and "is on a lot of pills." Id. at p. 3.

         Both defendant Freeman and Officer Turner viewed cut marks on J.L.B.'s arm. Id. at p. 5; Ex. 1 (Turner's Investigative Report) attached to Declaration of Sharia Mayfield (#47). Based on J.L.B.'s statement and the cuts on her arms, law enforcement transported J.L.B. to Sacred Heart Medical Center's Emergency Department for mental health evaluation. Id.[2]

         Defendant Freeman next interviewed J.L.B.'s parents at their home accompanied by Springfield Police detective Jeff Martin. Ex. 2 attached to the Amended Declaration of Marcie A. Freeman (#48) at p. 8. The parents denied making statements that J.L.B. is fat, the mother denied domestic abuse, but did express a desire to leave the relationship due to the father's drinking. The parents agreed to allow J.L.B. to stay at her grandmother's home while Freeman gathered more information. Id. Freeman observed the father's "aggressive demeanor" and he told her he drank "four to six beers a day." Amended Declaration of Marcie A. Freeman (#48) at ¶ 11. Freeman told the mother it would be fine for her to have contact with J.L.B., but requested that the father have no contact. Id. at ¶ 14.

         Defendant Freeman next interviewed J.L.B.'s grandmother who confirmed concerns about domestic violence by the father and was "more than happy to have J.L.B. stay with her." Id. at ¶ 16. Freeman went to the hospital to inform J.L.B. who was reportedly excited to be staying with her grandmother. Id. at ¶ 17.

         Defendant Freeman continued the investigation, but on March 25, 2014, she received letters from J.L.B.'s parents' counsel asking her to refrain from any contact with them and informed her they would collect J.L.B. from grandmother's house and return her home immediately. Id. at ¶¶ 19-20. In April 2014, Freeman concluded she did not have sufficient information to determine whether J.L.B. was in danger. Id. at ¶ 22.

         B. Plaintiffs' Allegations

         1. J.L.B.'s Statement

         J.L.B. states between February and March, 2014, she was experiencing depression and could not control it. Her teachers were concerned and asked about her home life and she responded that her parents and especially her dad were upset with her for being suspended. She stated that for a short time she cut herself. The teachers did not inform J.L.B.'s parents of their concerns. Declaration of J.L.B. (#42) at ¶ 2.

         On March 5, 2014, J.L.B.'s teacher escorted her to an office where a police officer and Freeman waited for her. Freeman stared at J.L.B. and intimidated her. When Freeman finally asked J.L.B. to tell her what was going on, J.L.B. started to cry and stated she did not know--thinking she was in some kind of trouble. Freeman repeatedly asked whether J.L.B.'s parents abused her. J.L.B. responded "no, the most [my father] ever touched me is that maybe he grabbed my arm once but it wasn't out of anger." Id. at ¶ 3. J.L.B. felt that Freeman was trying to put words in her mouth and then "Ms. Freeman decided that I needed to be 'evaluated' at the hospital." Id.

         The police officer agreed to drive her to the Johnson Unit. Id. at ¶ 4. Freeman arrived at the hospital with J.L.B.'s grandmother late that day and insisted that she remain at the hospital another one to three days. The doctor said there were no concerns and that J.L.B. would be released. Id. at ¶ 4.

         Defendant Freeman told J.L.B. her parents thought she was a disappointment, she would not be allowed to see them, and she was probably going to live with her grandmother who was moving to Mexico soon. Id. at ¶ 5.

         J.L.B. stayed with her grandmother for one month. Id. at ¶ 6. During that time, Freeman told her if she talked to her father or even set foot near her home, her father would go to jail and she would be put up for adoption. Freeman also told her how much her parents did not like her, she was a brat, a hoodlum, manipulative, and ignorant, but she could be someone else if she wasn't around her father. She was only allowed to talk to her mother by phone for a few minutes at a time. Id. at ¶6.

         J.L.B. states she is not bulimic and never had an eating disorder nor had she ever imagined committing suicide. She also states her parents never physically harmed her or each other. Id. at ¶¶ 8-9.

         2. Jill Bosisto's Statement

         J.L.B.'s mother, Jill Bosisto, states that in February 2014, J.L.B. got in some trouble at school with another girl who possessed a marijuana pipe. She grounded her and had her drug tested (with ...


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