Darian v. Cashe

• Decision Date: 14 July 2017
• Docket Number: CIVIL ACTION NO. 17-52-JJB-EWD
• Citation: Darian v. Cashe, CIVIL ACTION NO. 17-52-JJB-EWD (M.D. La. Jul 14, 2017)
• Parties: ANDREW DARIAN, ET AL. v. JEFF CASHE, ET AL.
• Court: U.S. District Court — Middle District of Louisiana

ANDREW DARIAN, ET AL. v. JEFF CASHE, ET AL.

CIVIL ACTION NO. 17-52-JJB-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

July 14, 2017

NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

Signed in Baton Rouge, Louisiana, on July 14, 2017.

/s/_________

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

On January 26, 2017, Plaintiff, Andrew Darian ("Darian"), a pro se litigant, filed a Complaint¹ and a Supplemental Complaint² to initiate these proceedings. It appears the crux of Darian's complaint arises out of an interim child custody order that was issued by Judge Jeff Cashe, a Judge for the Family Court in the 21^st Judicial District Court, Parish of Livingston, State of Louisiana ("21^st JDC").

On January 26, 2017, Darian also filed an Application to Proceed In District Court Without Prepaying Fees or Costs (Short Form).³ On February 23, 2017, Darian filed an Application to Proceed In District Court Without Prepaying Fees or Costs (Long Form).⁴ On February 27, 2017, the undersigned issued an Order⁵ granting both motions and setting a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to determine whether all or any part of this case should be dismissed as frivolous because (1) the complaint has no realistic chance of ultimate success; or (2) it has no arguable merit in terms of the arguable substance of the claims presented, both in lawand in fact; or (3) beyond doubt, the plaintiff can prove no set of facts which would entitle him to relief. See, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986).

On March 6, 2017, prior to the Spears hearing, Darian filed the following motions: a Petition for Emergency Ex Parte Custody,⁶ a Motion to Recuse Judge Jeff Cashe and Move Case to District Court Re: Andrew Darian vs. Rebecca Darian,⁷ and a Motion to Disqualify Opposing Counsel Wyman Bankston,⁸ which are currently pending before the Court. As a result of the Spears hearing held on March 29, 2017, Darian filed a Second Amended Complaint,⁹ which is also before the Court.

Following a review of the record in this matter, and after conducting the Spears hearing, it is RECOMMENDED that this matter be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction and failure to state a claim.

I. Background

Darian's original Complaint named as defendants Judge Jeff Cashe, Lindon Bennett Magee, Wyman Bankston, Keith Friley, Windy Vaccaro, and Terrilyn Bowe.¹⁰ According to the Complaint, Magee, Bankston, and Friley are attorneys and Vaccaro and Bowe are associated with the Louisiana Department of Child and Family Services ("DCFS"). The Complaint asserts subject matter jurisdiction based on 18 U.S.C. §§ 201, 241, 242, 245, 247; 42 U.S.C. §§ 1981, 1983, 1985, 1986; and Articles I, III, IV, V, VI, VII, and XIV of the United States Constitution and alleges that, "Judge, attorneys, and DCFS collaborated to pull off an 'A bomb' or 'silver bullet.' I have not seen my children in almost a year!!"¹¹ In the prayer for relief, Darian seeks, "Immediateinjunction with 100% custody, compensatory and punitive damages, atty fees. TRO or ex parte, pending psych eval & treatment immediate therapy for kids. Disciplinary actions."¹²

On the same day, Darian filed a Supplemental Complaint against Rebecca Darian, Paula Ann Philippe, Charlette Watson, and Barney Watson.¹³ The Supplemental Complaint alleges that, "These are all federal matters out of 21^st JDC Jurisdiction," and asserts subject matter jurisdiction based upon, "18 U.S. Codes—Ch. 47, 373, 1001, 1201, 1951, 1959, 2255, 2258, 2259, and 2422; 42 U.S. Codes - 5106 and 13031."¹⁴ More specifically, Darian alleges that, "Rebecca Darian has made frivolous false charges of abuse and molestation, filed April 12^th, 2016. I have not seen my children since then. Paula knows many of the women at DCFS."¹⁵ In the prayer for relief, Darian seeks, "Injunction with 100% custody restoration. Compensatory and punitive damages, atty fees. TRO or ex parte pending psych evals. Disciplinary [sic]."¹⁶

On March 6, 2017, Darian filed the pending Petition for Emergency Ex Parte Custody (the "Petition") against Rebecca Darian, asking this Court to issue an ex parte custody order temporarily granting him sole custody of his two minor children and terminating the visitation rights of their mother, Rebecca Darian, until she is "thoroughly psychologically evaluated."¹⁷ Darian asserts that he is entitled to an emergency ex parte custody order "to protect the safety and well being of two minor children currently in the interim custody of their mother the defendant Rebecca Darian" because the children "are in clear and certain imminent danger of irreparable harm."¹⁸ Darian alleges, among other things, that Rebecca Darian has been verbally abusive toward her two children for the past four years. In the prayer for relief, Darian asks this Court toorder Rebecca Darian to show cause why he should not be awarded exclusive, temporary custody of the minor children and why her visitation rights should not be terminated.

On the same day, Darian filed the pending Motion to Recuse Judge Jeff Cashe and Move Case to District Court re: Andrew Darian v. Rebecca Darian, in which Darian "moves and prays" that "judge Jeff Cashe remove and disqualify himself as judge, move to eliminate alternates in the 21^st JDC, and vacate all interim orders, and that an instant motion be heard by a District Court Judge assigned to hear and try all matters in the instant case."¹⁹ Darian alleges that Judge Cashe is "biased and prejudiced against petitioner, and biased and prejudiced against fathers seeking custody, and biased and prejudiced against children in contested custody cases,"²⁰ and that, "The instant motion must be heard by a judge other than Cashe or any other from the 21^st who likely share defunct common practices deemed unconstitutional, inequitable, and certainly not in the best interest of the children."²¹

Also on March 6, 2017, Darian filed the pending Motion to Disqualify Opposing Counsel Wyman Bankston Re: Andrew Darian vs Rebecca Darian.²² In this Motion, Darian seeks to disqualify Bankston from representing Rebecca Darian in the child custody proceeding currently pending in the 21^st JDC based upon Bankston's alleged conflict of interest as a named defendant in this case,²³ his alleged violation of several of the Louisiana Rules of Professional Conduct regarding candor toward the tribunal, and his appearance of impropriety due to his close relationship with Judge Cashe. Darian alleges that Bankston has presented false evidence to Judge Cashe throughout the child custody proceeding and that during a March 1, 2017 hearing, Bankstoncolluded with Judge Cashe to suppress Darian's voice.²⁴ In the Motion, Darian asks this Court to: (1) remove and disqualify Bankston from this case "awaiting disciplinary decision, and outcome of pending suit in higher court;" (2) order Bankston to relinquish all files, documents, communications, and any other pertinent materials to this case; and (3) order Bankston to provide Darian with "all interrogatories and discoveries requested and filed on February 14th 2017 in the 21st JDC."²⁵

During the Spears hearing held on March 29, 2017, Darian clarified that Judge Cashe had not yet made a final custody determination, so Darian's complaints with regard to custody relate to an interim custody ruling.²⁶ As set forth in greater detail in the Hearing Report and Order,²⁷ the undersigned asked Darian to clarify the basis for the allegations in his Complaint and Supplemental Complaint and advised Darian that federal district courts generally lack subject matter jurisdiction over domestic matters. Darian was further advised that to the extent he seeks any damages for the actions taken by Judge Cashe in the state court proceeding, Judge Cashe is likely entitled to judicial immunity for his actions.²⁸ At the Spears hearing, Darian was ordered to file an amended complaint that included all of Darian's allegations, which would become the operative complaint in this matter without reference to any other document previously filed into the record. Darian was advised that the amended complaint must specify each individual intended to be made a defendant in this action and the factual basis for the claims made against each defendant.

On April 7, 2017, Darian filed a Second Amended Complaint, naming himself and his two minor children as plaintiffs²⁹ and naming as defendants, "State of Louisiana, 21^st JDC, Sherriff[sic], Judge Jeff Cashe, Cashe Coudrain and Sandage, Linda Magee,³⁰ Keith Friley, Wyman Bankston, Rebecca Darian, DCFS, Loretta Hill LCSW, Windy Vaccaro CSW-1, Marcia Daniel Dir., Barbara Mayes CWM, Candy Smith Intake Manager, Eric Hornett Undersecretary, Terrilyn Bowe & Kelli Durbin Livingston Mangers all in their individual and official capacities."³¹ In the Second Amended Complaint, Darian asserts that this Court has jurisdiction under 28 U.S.C. § 1331 based on 42 U.S.C. § 1983 and 28 U.S.C. § 2201 because, "All members of this Court and DCFS, in their individual and official capacities, conspired to interfere with Plaintiff's [sic] First and Fourteenth Amendment Rights under 42 U.S.C. § 1985 and § 1986.³² Also under 18 U.S.C. 201, 241, 242,...