Opinion
CV 23-08068 PCT CDB
07-24-2023
Trini Kathy Stoddard, Plaintiff, v. Glen Best, Damian Baum, Defendants.
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STALES MAGISTRATE JUDGE
Plaintiff proceeds pro se in this § 1983 matter, filed April 12, 2023, and has paid the filing fee. Plaintiff has consented to the exercise of magistrate judge jurisdiction over this matter, however no Defendant has been served.
The Complaint names as Defendants “Glen Best, DCS Investigator,” and “Damian Baum, DCS Case Manager,” who are sued in their individual capacities. (ECF No. 1 at 1, 3). Plaintiff, a resident of Kansas, asserts Defendants violated her First, Fifth, and Fourteenth Amendment rights. (ECF No. 1 at 2). Plaintiff cites a juvenile court case initially investigated March 21, 2019; Plaintiff is not the parent of the children involved in the investigation. Plaintiff alleges “DCS received over five reports to check children's welfare and failed to do so prior to the death of their mother,” and that “DCS failed to place children with family after tragedy.” (ECF No. 1 at 4). Plaintiff asserts, inter alia, that Best failed to place the children “with family;” that he and Baum “falsified information for their gain;” that Baum failed to provide a safe environment or counsel for the children; that Best “moved children out of town at a foster home with 9 other children;” and that Best told others that “Plaintiff and her family were bad people,” who intended to “flee the state with children.” (ECF No. 1 at 4-5). Plaintiff alleges Best violated Plaintiff's due process rights by including false statements in a written report and told Plaintiff to cease calling an ombudsman (apparently Plaintiff called the ombudsman to obtain visits with the children). (ECF No. 1 at 5). Plaintiff further alleges “Ombudsman failed to investigate Plaintiff's many complaints,” which violated her “rights,” and that she was “boisterous in complaining about these many civil rights complaints; Governor [] Ducey failed to investigate Plaintiff's complaints...” (Id.). Plaintiff asserts she has been injured by Defendants' conduct because she has “lost contact, association, and affections with minor children.” (ECF No. 1 at 6). She asserts she has “kinship parenting rights” “with her relative minor children.” (Id.). Plaintiff further asserts she has a “right to kinship custody of her own family” and a “federally guaranteed right [] of associating with her own kin.” (Id.). In support of her claim that the First Amendment guarantees a right to “familial association between kin relatives and children,” Plaintiff cites Doe v. Fayette County Children and Youth Services, 2010 WL 4854070, at *18-19 (W.D. Pa. Nov. 22, 2010), and Behm v. Luzerne County Children and Youth, 172 F.Supp.2d 575, 585 (M.D. Pa. 2001). (Id.). Plaintiff seeks damages in the amount of $5,600,000, punitive damages in the amount of $7,000,000, “compensatory and general damages,” pre- and post-judgment interest, costs, and attorney fees (although she proceeds pro se). (ECF No. 1 at 8).
Rule 4(m) of the Federal Rules of Civil Procedure requires service of a summons and the complaint must be accomplished on each named defendant within 90 days after filing the complaint. Accordingly, service in this matter was required by July 11, 2023. The CM/ECF docket in this matter does not reflect that Plaintiff has effected service of process on Defendants within the time specified by Rule 4(m). Accordingly, on July 13, 2023, the Court allowed Plaintiff until July 21, 2023, to show cause why Defendants and all of Plaintiff's claims should not be dismissed for Plaintiff's failure to comply with Rule 4 of the Federal Rules of Civil Procedure. Plaintiff responded to the order to show cause, averring solely:
A lawsuit has been filed against Glen Best and Damian Baum.
The Rule 4 has not been complied with due to the defendants not working at the State of AZ DCS/CPS.
The Plaintiff plead with the courts to not dismiss this has been a learning process and no attorney is willing to take this case as it was described as “going down a rabbit hole.”
I reached out to Attorney General's office on 6/1/2023 and spoke to [] Neidenbaumer and asked if he would accept the summons and he stated; “I will check with our HR and see if I can accept but you know how the government works”. Never getting back to me and in the meantime, I have been seeking the defendants' locations on my own.
This case and the treatment of the Defendants is unacceptable and has scared [sic] my families' lives. I used my energy and published a book which I have attached descripting the treatment.
I beg you please do not dismiss this case. I will work on getting an attorney and follow all court rules.
I don't have an attorney to complete this Order to find because I am just praying you will accept this order.
Per the self-published book docketed with the Court, Plaintiff is the sister of a man who was convicted of murdering his wife, and the children to whom Plaintiff refers in this case are the children of her brother and the deceased wife. At the time that the children were taken into custody by the State of Arizona immediately following the murder, the children resided in Arizona and Plaintiff resided in Colorado. Plaintiff mentions in the book, published in 2022, that she was eventually granted custody/guardianship of the children, and that she eventually adopted the children, and that at the time the book was published at least one of the children resided with her. (ECF No. 11, attach., at 110, 141, 160-63). She alleges issues with Best (who she refers to as “Gregg” Best) and Baum's actions occurring in the six months after the murder in March of 2019.
(ECF No. 12).
Dismissal of defendants and claims against defendants in a civil action for failure to serve is a matter within the Court's discretion. See, e.g., Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990). Rule 4(m) of the Federal Rules of Civil Procedure provides:
If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
The Ninth Circuit Court of Appeals has recognized that “good cause” for the failure to timely serve a defendant means, “[a]t a minimum,” excusable neglect. See, e.g. Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). To establish good cause for the failure to timely serve a defendant the plaintiff may be required to show: (1) the unserved defendant received actual notice of the lawsuit; (2) the defendant would suffer no prejudice if the plaintiff were allowed additional time for service; and (3) the plaintiff would be “severely prejudiced if [her] complaint were dismissed.” Id.
Plaintiff has failed to show any excusable neglect or any good cause for the failure to serve Defendants. See Efaw v. Williams, 473 F.3d 1038 (9th Cir. 2007). Plaintiff did not seek an extension of the time allowed to serve Defendants until after the Order to Show Cause issued, and three months after filing the Complaint Plaintiff allows she has not made any substantive attempt to serve Defendants, only making a single phone call to ask if Defendants' prior employer would accept service on their behalf. The Court notes that an an Arizona Attorney General would not likely be authorized to accept personal service on behalf of Defendants, who are sued in their individual capacities and are purportedly no longer employees of the State. Nor does Plaintiff detail any effort to locate Defendants by means of public records, nor has Plaintiff sought to effect some form of alternative service. Plaintiff asserts she will acquire counsel, but she does not detail what efforts she previously took to obtain counsel or the basis on which an attorney informed her that pursuing this matter would equate to “going down a rabbit hole.” Because Plaintiff has contacted a lawyer about her claims and was presumably advised not to pursue relief, it is likely that she will receive the same evaluation from other counsel. Furthermore, Plaintiff is currently a resident of Kansas, and she does not detail what efforts she has or might undertake to find an attorney who is admitted to practice in the District of Arizona.
Additionally, there is no indication that the unserved Defendants have had any actual notice of this lawsuit.
With regard to prejudice arising from Best and Baum's actions throughout the custody proceedings, the federal courts have generally found that an aunt has no liberty interest in familial integrity or association with nieces or nephews “by virtue of genetic link alone,” and that only those close relatives with a “long standing custodial relationship” with related children, such that together they constitute an “existing family unit” at the time of the custody proceedings, possess such an interest. See Osborne, 385 F.Supp.2d at 105355 (emphasis added), citing Mullins v. Oregon, 57 F.3d 789, 794, 797 (9th Cir. 1995) (holding “[a] negative right to be free of governmental interference in an already existing familial relationship does not translate into an affirmative right to create an entirely new family unit out of whole cloth.”); Rees v. Office of Children & Youth, 744 F.Supp.2d 434, 452 (W.D. Pa. 2010); Santos v. County of Los Angeles Dep't of Children & Fam. Serv., 299 F.Supp.2d 1070, 1080 (C.D. Cal. 2004). Plaintiff's Complaint does not assert that she had a “long-standing custodial” relationship with the subject children prior to any custody proceedings. See Osborne, 385 F.Supp.2d at 1055 (“The court finds that to state a claim for deprivation of their liberty interest under the Due Process Clause, Plaintiff's [including the subject child's aunt] must allege facts establishing that they had “a long-standing custodial relationship” with [the child] such that together they constituted an “existing family unit.”). Although Plaintiff was ultimately granted custody of the children, she did not have a right to immediate custody of the children prior to the completion of the custody proceedings.
The Court also notes that the subject custody proceedings began on or shortly after to March 21, 2019 (ECF No. 1 at 4), and concluded at some point prior to March of 2021. Plaintiff's Complaint was filed April 23, 2023. Because the statute of limitations on a § 1983 action in Arizona is two years, any claim based on actions taken by Defendants Best or Baum occurring prior to April 23, 2021, by which time Plaintiff had obtained custody of the children, would be barred by operation of the relevant statute of limitations.
Accordingly, IT IS RECOMMENDED that Defendants Best and Baum, and Plaintiff's Complaint, be dismissed without prejudice for Plaintiff's failure to timely effect service on Defendants and because the Complaint fails to adequately state a claim that Plaintiff's federal constitutional rights were violated by Defendants. Additionally, the Complaint may be dismissed solely because claims arising from the acts specified in the Complaint are barred by the statute of limitations.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b)(2), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.