Brown v. Montana, CV 05-73-GF-SEH.

• Citation: 442 F.Supp.2d 982
• Decision Date: 12 June 2006
• Docket Number: No. CV 05-73-GF-SEH.,CV 05-73-GF-SEH.
• Parties: Alice BROWN, Plaintiff, v. State of MONTANA; Department of Public Health and Human Services Child and Family Services Division; Shawn Wills, Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Montana)

442 F.Supp.2d 982

Alice BROWN, Plaintiff, v. State of MONTANA; Department of Public Health and Human Services Child and Family Services Division; Shawn Wills, Defendants.

No. CV 05-73-GF-SEH.

United States District Court, D. Montana, Great Falls Division.

June 12, 2006.

COPYRIGHT MATERIAL OMITTED

Alice Brown, Talent, OR, pro se.

Thomas G. Bowe, Montana Department of Justice, Helena, MT, Defendant.

ORDER

HADDON, District Judge.

BACKGROUND

On October 31, 2006, Defendants filed a Motion for Summary Judgement. United States Magistrate Judge Carolyn S. Ostby entered her Findings and Recommendation¹ on April 14, 2006. Plaintiff filed objections on May 1, 2006. On that same day, Plaintiff filed a Motion to Vacate Findings and Recommendation of U.S. Magistrate Judge and a Motion to Vacate Order. The Court reviews de novo findings and recommendation to which objection is made. 28 U.S.C. § 636(b)(1).

DISCUSSION

Judge Ostby found that the Eleventh Amendment bars Plaintiff from proceeding in federal court with claims for money damages against Defendants State of Montana, the Department of Public Health and Human Services, the Child and Family Services Division, and Shawn Wills in her official capacity. Judge Ostby also found that Defendant Shawn Wills is not entitled to qualified immunity. Judge Ostby recommended that Defendants' Motion for Summary Judgment be granted as to Plaintiff's claims for money damages against Defendants State of Montana, the Department of Public Health and Human Services, the Child and family Services Division, and Shawn Wills in her official capacity, but denied as to Shawn Wills in her individual capacity.

Plaintiff objects to Judge Ostby's Findings and Recommendation because "[she] did not and [does] not consent to the Magistrate Judge's exercise of jurisdiction over this case." Plaintiff's Objection at 1 (May 1, 2006). Plaintiff attached a copy of her Consent to the Exercise of Jurisdiction by a United States Magistrate Judge form to her motion, which indicates that Plaintiff did not consent to full jurisdiction by Judge Ostby. Plaintiff also moves the Court to "vacate" Judge Osby's Findings and Recommendation based upon the same argument set forth in her objections.

Section 636(b)(1)(B) of Title 28 of the United States Code provides, in relevant part:

[A] judge may designate a magistrate judge to hear and determine any pre-trial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.

However, Section 636(b)(1)(C) of Title 28 of the United States Code provides, in relevant part:

[A] judge may . . . designate a magistrate judge to ... submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A).

Here, the Court, on April 26, 2006, in the absence of written consent by Plaintiff to full jurisdiction by the United States Magistrate Judge, reassigned the case to this Court and subsequently referred it to Judge Ostby as authorized by 28 U.S.C. § 636. The Court finds that Plaintiff's objection is without merit and her motion to vacate should be DENIED. See also L.R. 73.1(b) ("Any active Article III judge may designate a United States Magistrate Judge to exercise jurisdiction over any other civil case in accordance with 28 U.S.C. § 636 and Chapter IV of these Rules."). Accordingly, after de novo review of the record, I adopt in full the Findings and Recommendation of Judge Ostby.

Plaintiff also moves the Court to vacate the scheduling order entered by Judge Ostby on April 11, 2006, based upon her objection to full jurisdiction by Judge Ostby. However, for the reasons set forth above, Plaintiff's Motion to Vacate should also be denied.

ORDERED:

Plaintiffs Motion for Summary Judgement² is GRANTED in part and DENIED in part as follows:

1. Defendants State of Montana, the Department of Public Health and Human Services, and the Child and family Services Division are DISMISSED with prejudice.

2. Shawn Wills, in her official capacity, is DISMISSED with prejudice.

FURTHER ORDERED:

1. Plaintiff's Motion to Vacate Findings and Recommendations of U.S. Magistrate Judge³ is DENIED.

2. Plaintiff's Motion to Vacate Order⁴ is DENIED.

FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

OSTBY, United States Magistrate Judge.

On July 28, 2005, Plaintiff Alice Brown filed this action alleging that her constitutional rights were violated when her newborn son was removed from her care for a period of twelve days immediately following his birth.¹ Brown is proceeding pro se.

On October 31, 2005, Defendants filed an Answer and a motion for summary judgment. Brown responded on November 17, 2005, at which time she also filed a motion to set a jury trial. Defendants responded to Brown's motion and filed their reply on November 28, 2005.

I. Allegations of Brown's Complaint

Brown contends that, on July 28, 2003, Defendant Wills, a social worker for the Child and Family Services Division of " Montana's Department of Public Health and Human Services, entered Brown's hospital room in Great Falls with two armed police officers. Wills told Brown that Brown's newborn son was being taken into custody and Brown would not be permitted to hold him, touch him, or see him. Wills gave Brown a document titled "Notification to Parent." The Notification listed "Open Case in Alaska—Case seeking termination findings" and "Physical Limitations that may lead to physical Neglect" as reasons for the child's removal. See "Notification," attached to Compl. When Brown inquired as to the meaning of the second reason, Wills told her that a nurse had reported that Brown was unable to hold her newborn baby boy for longer than ten minutes because she was obese. Brown demanded "an opportunity to disprove the allegation by holding my baby in my arms for as many hours as it takes to prove that I can hold my baby for longer than ten minutes." Compl. (Court's doc. 1) at 4. Wills did not investigate the allegation or ask Brown any questions. Brown says she was also informed that the "open case in Alaska" did not pertain to her newborn son. Id. at 3-4.

On August 8, 2003, the Honorable Julie Macek of Montana's Eighth Judicial District Court ordered the immediate return of Brown's child. Judge Macek found that there was not sufficient evidence to substantiate Brown's abuse or neglect of the infant or a risk of future abuse or neglect. Id. at 6-7.

Brown alleges that Wills violated the Fourth Amendment by taking the child "without a court order, search warrant, probable cause, emergency need, or my consent." She also alleges violations of the Due Process Clause of the Fifth and Fourteenth Amendments, Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., various provisions of Title 18 of the United States Code, and 2 U.S.C. § 1311. Id. at 5-6.

For her relief, Brown requests $400.00 in compensatory damages and $4,000,000.00 in punitive damages.²

II. Summary Judgment Standards

A party is entitled to summary judgment if that party can demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56©. A party is entitled to summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party seeking summary judgment bears the initial burden of informing the Court of the basis of its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party has met its initial burden, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The non-moving party may do this by use of affidavits (including her own), depositions, answers to interrogatories, and admissions. Only disputes over facts that might affect the outcome of the suit under the governing law are "material" and will properly preclude entry of summary judgment. Id.

At the summary judgment stage, the judge's function is not to weigh the evidence or determine the truth of the matter, but to determine whether there is a genuine issue for trial. However, if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. 2505.

In civil rights cases and in the context of a motion for summary judgment where a litigant is proceeding pro se, the Court must construe the pleadings liberally and afford the pro se litigant the benefit of any doubt. Baker v. McNeil Island Corrections Ctr., 859 F.2d 124, 127 (9th Cir.1988).

III. Analysis

The Defendants argue that they are entitled to immunity from suit on various grounds.

A. Eleventh Amendment Immunity

Defendants argue that the State of Montana, the Department of Public Health and Human Services, and the Child and Family Services Division are all immune from suit for damages under the Eleventh Amendment of the Constitution. They also argue that Wills, in her official capacity, has the same immunity.³

The United States Supreme Court holds that Congress did not intend § 1983 to apply to States or to arms of the State, so such entities are not "person...