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Johnson v. Spivey

United States District Court, D. Oregon

July 18, 2018

JENNIFER SPIVEY, personal and official capacities; MOLLY STRONG, personal and official capacities, Defendants.



         Mario Johnson (“Plaintiff”), a self-represented litigant, brings this 42 U.S.C. § 1983 action against two child caseworkers employed by the Oregon Department of Human Services (“DHS”), Jennifer Spivey (“Spivey”) and Molly Strong (“Strong”) (together, “Defendants”).[1] Plaintiff asserts constitutional and state law claims against Defendants based on actions they took during the course of juvenile dependency proceedings involving Plaintiff's minor child. Defendants now move for summary judgment on Plaintiff's claims. See Fed. R. Civ. P. 56. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. All parties consent to U.S. Magistrate Judge jurisdiction pursuant to Fed.R.Civ.P. 73(b). (ECF No. 42.) For the reasons explained below, the Court grants Defendants' motion for summary judgment.


         In May 2012, DHS received a cross-report from law enforcement alleging that Plaintiff had locked his two-year-old son (“WM”) and WM's mother in a hotel room in Gresham, Oregon, for several days, during which time he sexually assaulted WM's mother. (Decl. Jennifer Spivey Supp. Defs.' Mot. Summ. J. 3, ECF No. 57 (hereinafter “Spivey Decl.”).) The report also alleged that, while in the presence of WM, Plaintiff strangled WM's mother and broke her cell phone when she attempted to leave. (Id.) Plaintiff later fled to Washington with WM. (Id.) In response, WM's mother obtained a restraining order against Plaintiff and coordinated with Washington law enforcement officials, who recovered WM. (Id.)

         DHS opened a Child Protective Services (“CPS”) investigation after receiving law enforcement's cross-report. (Id. ¶ 8.) During the course of the CPS investigation, DHS coordinated with law enforcement and learned that Plaintiff allegedly began a sexual relationship with WM's mother when she was fifteen years old, that Plaintiff trafficked WM's mother, and that Plaintiff was under criminal investigation for sex trafficking. (Id.) DHS also learned that WM's mother was “working as an exotic dancer with an unpredictable schedule and appeared to be abusing substances, ” and that WM's mother was “involved in a sexual relationship with an individual who had gang affiliations, a history of methamphetamine use, and . . . multiple children in DHS'[s] legal custody because he had been unable to parent them safely.” (Id. ¶ 9.) WM's mother, however, “refused to take steps to limit that individual's contact with WM.” (Id.)

         On August 28, 2012, after DHS identified an individual who was able to provide substitute care for WM, DHS filed a dependency petition in Multnomah County Juvenile Court. (Id. ¶ 10.) During a hearing held that same day, the juvenile court found that there was probable cause to believe that WM was within the court's jurisdiction (i.e., it was in WM's best interests to be in DHS's temporary legal custody because his circumstances endangered his welfare). (Id. ¶ 11.)

         On October 22, 2012, the juvenile court took jurisdiction of WM with respect to his mother because WM's mother “did not appear.” (Id. ¶ 12.) On or about October 26, 2012, Spivey was assigned to work on the juvenile dependency case involving WM. (Id. ¶ 3.) During the months that followed, Plaintiff did not visit WM, did not attend a November 2012 child safety meeting (i.e., a meeting between the parties to the juvenile dependency case and their attorneys), and frequently did not return calls from DHS employees, including Spivey.[3] (Id. ¶ 13.)

         On January 10, 2013, DHS filed an amended dependency petition in juvenile court. (Id. ¶ 14.) The amended petition added two new allegations regarding Plaintiff: (1) WM had “been in care” since August 2012 and Plaintiff “had failed to keep in contact with DHS since then, ” and (2) Plaintiff knew about “safety concerns” regarding WM's mother, “including her chaotic lifestyle and her involvement in criminal activities, but had done nothing to assert custody” of WM. (Id.)

         On January 24, 2013, the juvenile court held a hearing and took jurisdiction of WM with respect to Plaintiff based on Plaintiff's stipulation regarding the new allegations set forth in the amended petition. (Id. ¶ 15.) Plaintiff was represented by counsel at this time. (See Id. Ex. 8, at 1 (identifying “Attorney for Father”).) DHS was not able to establish jurisdiction based on WM's mother's allegations of sexual abuse and domestic violence because WM's mother was reportedly “afraid of the potential for [P]laintiff's reprisals” and thus was not willing to testify. (Id. ¶ 15.) As a result, the juvenile court dismissed the allegations regarding sexual abuse and domestic assault. (Id.) In a dependency judgment, the juvenile court ordered Plaintiff to “enroll in parenting classes, ‘hands on if possible,' maintain regular visitation with the child, maintain contact with DHS and keep the agency advised of current contact information at all times, and sign releases of information in favor of DHS regarding his services.” (Id.) The juvenile court also ordered DHS to provide Plaintiff with gas money to assist him in traveling from Washington to attend visits with WM. (Id.)

         On February 14, 2013, Spivey requested (through the Interstate Compact on the Placement of Children) that the Washington Department of Social and Human Services (“WDSHS”) perform a home study to assess whether WM's visits could be set up at Plaintiff's home in Washington. (Id. ¶ 17.) On March 14, 2013, WDSHS declined Spivey's request, noting, inter alia, that Plaintiff “had not engaged in parenting classes or visitation with WM, ” that Plaintiff needed to be “in full compliance with parenting classes and visitation, ” and that Plaintiff needed to undergo “a psychological evaluation, a domestic violence assessment, and sexual deviance evaluation.” (Id.)

         Plaintiff attended seven out of the twelve visits arranged by DHS in 2013. (Id. ¶ 18.) In addition, he “was between 10 and 25 minutes late to three of them.”[4] (Id.) Plaintiff also enrolled in parenting classes in 2013, but his attendance failed to rise to the level necessary to “‘officially complete the class, '”[5] and DHS was never able to verify whether the class was “appropriate or ‘hands on'” because Plaintiff failed to comply with the juvenile court's order to sign a release of information (“ROI”) in favor of DHS. (Id. ¶ 19.)

         During regularly scheduled review hearings held on May 9 and October 7, 2013, the juvenile court determined that Plaintiff “was not safe enough to care for WM, ” that the visits that had taken place were not in “WM's best interests, ” and that “DHS had made reasonable efforts to reunify [P]laintiff and WM.” (Id. ¶ 20.) The juvenile court also set a hearing for November 22, 2013, to address a motion filed by Plaintiff's newly retained counsel, which contested the juvenile court's jurisdiction and argued that Plaintiff had made sufficient efforts to reunite with WM. (Id. ¶ 21.) WM, through his attorney, filed a memorandum opposing Plaintiff's motion, noting Plaintiff's “poor progress in reconnecting with WM through visits, ” insufficient completion of parenting classes, and failure to complete the evaluations requested by WDSHS. (Id. ¶ 22.)

         On November 18, 2013, Spivey informed law enforcement that Plaintiff was expected to attend a juvenile court hearing that week, and she “asked for information relevant to that hearing.” (Id. ¶ 24.) Spivey was later informed that WM's mother was now willing to testify against Plaintiff. (Id.) On November 22, 2013, Plaintiff was arrested before the scheduled hearing. (Id.)

         On January 4, 2014, DHS filed a second amended dependency petition in juvenile court based on WM's mother's willingness to testify. (Id. ¶ 25.) The second amended petition included allegations that Plaintiff was “incarcerated and unable to be a custodial resource, ” that Plaintiff's “criminal lifestyle interferes with his ability to safely parent” WM, and that Plaintiff had “engaged in a pattern of domestic violence towards the mother, including physical abuse and forcing her to engage in prostitution as a minor, some of which occurred in front of” WM. (Id. Ex. 16, at 1.)

         DHS's second amended dependency petition “continued to pend without adjudication through the winter, spring, and summer of 2014.” (Id. ¶ 26.) That was due in part to the fact that, during several regularly scheduled review hearings, the juvenile court elected to postpone trial on the petition in order to accommodate Plaintiff's criminal proceedings. (Id.) During one of those review hearings, Plaintiff accused Spivey of “providing false information to cause him to be arrested, ” and he asserted that DHS's case involving WM “was premised on false information.” (Id.)

         Plaintiff's criminal trial took place in June and July 2014.[6] (Decl. Jesse B. Davis Supp. Defs.' Mot. for Summ. J. Ex. 1, at 2 (hereinafter “Davis Decl.”).) A jury convicted Plaintiff of attempting to promote prostitution, strangulation constituting domestic violence, assault constituting domestic violence, interference with making a report, and perjury. (Id. Ex. 6, at 1-2.) The jury acquitted Plaintiff on charges of rape in the first degree and sexual abuse in the first degree and could not reach a verdict on two counts of kidnapping, one count of attempting to compel prostitution, one count of attempting to promote prostitution, and one count of coercion constituting domestic violence. (Id. Ex. 4, at 1-3, Ex. 6, at 4.) Spivey asserts that she did not testify or play any part in Plaintiff's trial, nor did she “participate in the initiation or continuation of criminal proceedings” against Plaintiff. (Spivey Decl. ¶ 27.) On September 29, 2014, Plaintiff appeared for his sentencing hearing. (Davis Decl. Ex. 1, at 2.) On January 16, 2015, the court entered judgment sentencing Plaintiff to 30 months' incarceration in the custody of the Oregon Department of Corrections (“ODOC”). (Davis Decl. Ex. 6, at 1.)

         On July 24, 2014, Spivey transferred WM's case to a different caseworker. (Id. ¶ 3.) Spivey “had no involvement of any kind on the matter” after that point. (Id.) On October 14, 2014, Strong was assigned to work on the juvenile dependency case involving WM. (Decl. Molly Strong Supp. Defs.' Mot. Summ. J. 3, ECF No. 58 (hereinafter “Strong Decl.”).)

         On January 12 and January 13, 2015, Plaintiff appeared for the trial on the juvenile court dependency petition. (Id. ¶ 11.) WM's mother and an expert witness testified at the trial. (Id.) On January 26, 2015, the juvenile court took jurisdiction with respect to Plaintiff and found that the following “allegations and/or facts” were true: (1) WM's “conditions and circumstances . . . are such as to endanger his own welfare or the welfare of others, ” which is supported by the fact that Plaintiff “is incarcerated and unable to be a custodial resource, ” Plaintiff's “criminal lifestyle interferes with his ability to safely parent the child, ” WM “was exposed to domestic violence perpetrated by” Plaintiff, and Plaintiff “poses a significant risk of future domestic violence which places the child at risk of harm, ” and (2) WM has not been provided “with the care, guidance, and protection necessary for [his] physical, mental, or emotional well-being, ” which is supported by the fact that Plaintiff “is incarcerated and unavailable as a custodial resource.” (Strong Decl. ¶ 11, Ex. 1, at 2, 7.)

         On February 12, 2015, Plaintiff appeared for a permanency hearing before the juvenile court. (Id. ¶ 12.) The juvenile court entered a Permanency Order that same day, which required Plaintiff to “participate in a psychological evaluation, batterer's intervention, and sign releases of information in favor of DHS.” (Id. ¶ 12, Ex. 2, at 2.) The juvenile court's Permanency Order also stated that DHS had made “reasonable efforts” to reunite WM with his family, but that Plaintiff had “not made sufficient progress” toward meeting the requirements imposed on him. (Id. Ex. 2, at 3.)

         On March 23, 2015, Strong contacted Tanyia Beal (“Beal”), Plaintiffs institutional counselor at Oregon State Correctional Institution (“OSCI”). (Id. ¶ 13; Decl. Tanyia Beal Supp. Defs.' Mot. Summ. J. 1, ECF No. 59 (hereinafter “Beal Decl.”).) Strong faxed a cover letter to Plaintiff “explaining the two enclosures which were ROIs and informing him that the judge had ordered him to complete a psychological evaluation prior to the next court hearing.” (Strong Decl. ¶ 13.) One ROI pertained to the evaluation, which Strong had scheduled. (Id.) The other ROI “allow[ed] for the exchange of information between DHS and OSCI[, ]” enabling Strong to work with Beal to provide Plaintiff “access to any parenting information or other resources and services.” (Id. ¶ 13, Ex. 3, at 3-5.)

         Plaintiff met Beal for the first time on March 25, 2015. (Beal Decl. ¶ 6.) Beal gave Strong's letter to Plaintiff, as well as the two ROIs, and told Plaintiff that signing the ROIs was his choice and “would have no impact on his incarceration.” (Id.) Plaintiff, whom Beal describes as “adamant and volatile[, ]” refused to sign and requested that Beal send Strong the following message: “[p]er judge's orders and my attorney's request, I was supposed to have a say in what doctor was used. I won't sign the releases of information because there is nothing for her to know that is her business.”[7] (Id. ¶ 7.) Beal emailed Strong advising her of Plaintiff's refusal to sign and relaying Plaintiff's message as an exact quotation. (Strong Decl. Ex. 4.)

         Strong responded the same day and attached a letter of expectation for Plaintiff to “further clarify court ordered services and expectations.” (Strong Decl. Ex. 5, at 1.) Beal then emailed to ask whether she needed to review the letter with Plaintiff, and Strong responded that Beal “could instead refer plaintiff to his attorney.” (Strong Decl. ¶ 16, Ex. 6, at 1.) On April 1, 2015, Strong sent Beal an ROI for Plaintiff's psychological evaluation, this time to be conducted by an African American psychologist, per Plaintiff's request. (Id. ¶ 17, Ex. 7, at 1-3.) Later that day, Strong emailed Beal “inquiring about services available to plaintiff for parenting classes or anger management or any other relative courses or supports within OSCI.” (Id. ¶ 18, Ex. 8.)

         On April 1, 2015, Beal participated in an OSCI Multi-Disciplinary Team (“MDT”) meeting. (Beal Decl. ¶ 13.) The MDT decided Plaintiff's security classification should be increased, which change made Plaintiff ineligible for short-term transitional leave. (Id.) Beal asserts that the MDT based its decision on “information relating to an incident that occurred in January 2015, before [Plaintiff] was transferred to OSCI[]” and not on Plaintiff's “refusal to sign the ...

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