Howard v. Lemmier

• Decision Date: 20 October 2011
• Docket Number: NO. 10-1814,10-1814
• Citation: Howard v. Lemmier, NO. 10-1814 (E.D. La. Oct 20, 2011)
• Parties: WAYNE HOWARD v. WENDY LEMMIER, KATHERINE M. DOWLING, ALBERT F. WIDNER, JR., ELIZABETH TOCA, JUDGE ANN KELLER, JUDGE C.B. EDWARD, INFANT TEAM OF JEFFERSON PARISH, JEFFERSON PARISH JUVENILE COURT, HARVEY, LA.
• Court: U.S. District Court — Eastern District of Louisiana

WAYNE HOWARD v.WENDY LEMMIER, KATHERINE M. DOWLING, ALBERT F. WIDNER, JR., ELIZABETH TOCA, JUDGE ANN KELLER JUDGE C.B. EDWARD, INFANT TEAM OF JEFFERSON PARISH, JEFFERSON PARISH JUVENILE COURT, HARVEY, LA.

NO. 10-1814

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION "I"(4)

Dated: October 20, 2011

CIVIL ACTION

REPORT AND RECOMMENDATION

On January 18, 2011, the undersigned Magistrate Judge issued a Report and Recommendation recommending dismissal as frivolous of the plaintiffWayne Howard's claims against each of the named defendants.¹After considering the plaintiff's objections, the District Judge adopted part of the Report and Recommendation dismissing all but the claims urged against the defendantWendy Lemmier.²The District Judge also remanded the matter to the undersigned for further development of the plaintiff's claims against Wendy Lemmier as a social worker and for clarification of his allegations of conspiracy.To accomplish this, on April 18, 2011, the Courtconducted a hearing pursuant to Spears v. McCotter,³and its progeny, with the plaintiff participating by conference telephone call.⁴

I.Factual Background

A.The Complaint

In his original complaint, the plaintiff, Wayne Howard("Howard"), filed this pro se and in forma pauperis complaint brought pursuant to 42 U.S.C. § 1983 against Wendy Lemmier identified as a Social Worker with the Office of Community Services in Jefferson Parish, Katherine M. Dowling, Albert F. Widmer Jr., Elizabeth Toca, Juvenile Court Judges Ann Keller and C.B. Edward, the "Infant Team of Jefferson Parish," and the Jefferson Parish Juvenile Court in Harvey, Louisiana.Howard is incarcerated in the Templeman Jail within the Orleans Parish prison system.

Howard alleged that each of the defendants dishonestly and secretly kept his son away from him and his family.He further alleged that the parish officials knew that he was trying to gain custody of his son on numerous occasions.He sought a determination by this Court that the parish officials violated his civil rights and further sought an order requiring them to return his son to him or to someone in his family.He further sought monetary damages in the amount of $3 million.

B.The Spears Hearing

Howard testified that the defendant, Wendy Lemmier, works for the Jefferson Parish "OCS."⁵She was the case worker assigned to his son W.T.'s case.He explained that he wasarrested in Assumption Parish for possession of cocaine in 2005.He was convicted on the charges in 2007 and received a two-year sentence.While he was in prison, people from Jefferson Parish did a paternity test on him and determined he was W.T.'s father.W.T. was born in 2007 and was almost three years old at the time of the Spears Hearing.He met Lemmier in October or November of 2007, when he was taken to a courthouse in Harvey, Louisiana to discuss his paternity.They told him that W.T.'s mother, Adelle Thomas, got into trouble with the law.They brought him to the OCS office to sign papers regarding W.T.'s custody.He said Lemmier and a court-appointed lawyer told him that the papers would help him get W.T. back after he got out of jail.He admitted that he never read the papers he signed, which apparently relinquished his parental rights to W.T.He also stated that the OCS lawyer assigned to him told him that signing the papers would help him.She otherwise gave him no assistance, even after his rights were later taken away.

Howard stated that, when he got out of jail in April of 2008 on the Assumption Parish charges, the Jefferson Parish OCS people would never release W.T. to him.He went to see Lemmier and she told him that they would put a case plan together to help him get his son.He stated that he went to other hearings over time, and the Jefferson Parish people just wanted to put W.T. up for adoption.He claimed that they repeatedly asked him to take drug tests, even though he told them he did not use drugs.He also complained that Lemmier even went to check on the suitability of his home, and still did not help him get custody of W.T.

At the time, however, he still had outstanding cocaine distribution charges pending in Orleans Parish.This became a problem when he met with the Jefferson Parish Infant Team.He did not answer the questions they asked, because the criminal case was opened.He asked the OCSlawyer to assist him, but she could not represent him in those meetings.He did not return for the follow-up meetings with the Infant Team.

Howard stated that he went to the scheduled visitations through Lemmier, but when he would arrive, W.T. was not there.They told him that W.T. was sent to a foster family out of town.He also stated that he tried to pay money for W.T. to Lemmier, and she sent his checks back.In spite of his efforts, he claimed that Lemmier told the judge at hearings in 2008 that he did not go to visitation and did not pay support money.

He went back to an OCS hearing in September 2008, and the OCS people made him take another drug test, which he passed.In October of 2008, his criminal proceedings in Orleans Parish took precedent.He was actually arrested by his parole officer after she mistook his reinstated distribution of cocaine charge for a new charge.After he was released, he was arrested again anyway because he was living in his girlfriend's home and she had a weapon.Howard indicated that he eventually entered a plea of guilty to the Orleans Parish distribution charge, and the attempted felon in possession charge.He was sentenced to five years, of which he expected to only serve 27 months.At the time of the Spears Hearing, he believed he would be released in less than 70 days.

He told the Court that he sued Lemmier because she lied to the Court about his efforts to get custody of W.T.He claims that she also lied to his daughter, who was attempting to set up W.T.'s adoption for him in 2008 and 2009.His daughter set up appointments with OCS for the adoption, and later found out that OCS had already begun adoption proceedings to another family.He stated that they never told her or him about the other adoption proceeding.He indicated that W.T.'s mother was still in jail and must have lost her parental rights.

He also sued Lemmier, because they did not help him get custody of W.T.He complained that nothing he did was sufficient for them to find him suitable to have custody of W.T., especially when she led the Court to believe that he did not really want W.T.After a custody hearing before a judge, his parental rights were terminated.He claims that the judge did not ask him any questions and instead heard only from Lemmier and the OCS people.W.T. was adopted by another family in October or December of 2009.He contacted the OCS lawyer he had seen, but she told him that an appeal would be frivolous.

As further relief, he asks to be sent back to court so that he can present witnesses to help get custody of W.T.

II.Standards of Review

Title 28 U.S.C. §§ 1915AandTitle 42 U.S.C. §§ 1997e(c) require the Court to sua sponte dismiss cases filed by prisoners proceeding in forma pauperis upon a determination that they are frivolous.The Court has broad discretion in determining the frivolous nature of the complaint.SeeCay v. Estelle, 789 F.2d 318(5th Cir.1986), modified on other grounds, Booker v. Koonce, 2 F.3d 114(5th Cir.1993).However, the Court may not sua sponte dismiss an action merely because of questionable legal theories or unlikely factual allegations in the complaint.

Under this statute, a claim is frivolous only when it lacks an arguable basis either in law or in fact.Neitzke v. Williams, 490 U.S. 319(1989);Talib v. Gilley, 138 F.3d 211, 213(5th Cir.1998).A claim lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.Harper v. Showers, 174 F.3d 716, 718(5th Cir.1999).It lacks an arguable factual basis only if the facts alleged are "clearly baseless," a category encompassing fanciful, fantastic, and delusionalallegations.Denton v. Hernandez, 504 U.S. 25, 32-33(1992);Neitzke, 490 U.S. at 327-28.Therefore, the Court must determine whether the plaintiff's claims are based on an indisputably meritless legal theory or clearly baseless factual allegations.Reeves v. Collins, 27 F.3d 174, 176(5th Cir.1994);seeJackson v. Vannoy, 49 F.3d 175, 176-77(5th Cir.1995);Moore v. Mabus, 976 F.2d 268, 269(5th Cir.1992).

III.Analysis

A.Claims against Wendy Lemmier

Howard alleges that Lemmier was a social worker for Jefferson Parish assigned as the case worker on his son W.T.'s custody proceedings.He alleges that Lemmier misled the court with information that he did not want to take custody of his son, born while he was incarcerated in Assumption Parish.He claims that this information, along with the representation that he continued to engage in criminal activities, contributed to the judge's decision to terminate his rights.He further alleges that Lemmier did not tell him or his daughter that adoption proceedings were underway to have W.T. adopted by another family.

As noted in the Court's prior Report and Recommendation, § 1983 provides a federal cause of action against any person, who, acting under color of state law, deprives another of his constitutional rights.42 U.S.C. § 1983(2006).A plaintiff must prove both the constitutional violation and that the action was taken under color of state law.Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156(1978);Polk Country v. Dodson, 454 U.S. 312(1981).The Court will address each factor below.

1.Lemmier is a State Actor

In order to prove the deprivation of a right protected by the Constitution, a plaintiff must prove state action.Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1406(5th Cir.1995).Under the "color of law" requirement, a defendant in a § 1983 action must have committed the...