Nestor v. Antolini, Civil Action 1:20-CV-217

Decision Date19 May 2021
Docket NumberCivil Action 1:20-CV-217
CourtU.S. District Court — Northern District of West Virginia
PartiesSCOTT RICHARD NESTOR, and CELINA DAWN SANSONE, Plaintiffs, v. KRISTEN D. ANTOLINI, ANNE M. ARMSTRONG, CARRIE POIER, and STEVEN L. SHAFFER, Defendants.

KLEEH JUDGE

OMNIBUS REPORT AND RECOMMENDATION

MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

On September 3, 2020, pro se Plaintiffs Scott R. Nestor and Celina D. Sansone filed a Complaint against Defendants Kristen D. Antolini, Anne M. Armstrong, Carrie Poier, and Steven L. Shaffer. ECF No. 1. Each of the Defendants subsequently filed a Motion to Dismiss for Failure to State a Claim in response. ECF Nos. 24, 25, 26, and 27. The undersigned is also in receipt of Plaintiffs' Response ECF No. 36, Defendants Antolini, Poier and Shaffer's respective Replies, ECF Nos. 38, 39, and 40, the Plaintiffs' Second Response, ECF No. 41, and Defendant Antolini's Motion to Strike, ECF No. 42.

For the reasons stated herein, the undersigned respectfully RECOMMENDS that Defendant Antolini's procedural Motion to Strike, ECF No. 42, be DENIED.

Upon consideration, the undersigned FINDS this Court lacks subject matter jurisdiction to reverse the state court decision as requested by the Plaintiffs. The undersigned further FINDS that the Plaintiffs remaining claims against Defendants for monetary and injunctive relief are barred by various immunity doctrines. Additionally, any claims of misconduct prior to September 2018 are barred by West Virginia applicable two-year statute of limitations. Accordingly, the undersigned RECOMMENDS that the each of the Motions to Dismiss for Failure to State a Claim, ECF Nos. 24, 25, 26 and 27, be GRANTED, and the Plaintiffs' Complaint, ECF No. 1, be DISMISSED with prejudice.

I. FACTUAL BACKGROUND

On July 22, 2019, Judge Steven Shaffer[1] entered an Order in the Circuit Court of Preston County directing the filing of an abuse and neglect petition submitted by the West Virginia Department of Health and Human Resources (“WV DHHR”), by statutory counsel, Anne Armstrong, Assistant Prosecuting Attorney of Preston County.[2] The Petition alleged the schoolage minor children were suffering from educational neglect, lack of supervision, and exposure to criminal behavior by their parents Celina D. Sansone and Scott R. Nestor.[3] The Order filing the Petition also appointed Kristen D. Antolini as the guardian ad litem for the six minor children named in the petition and appointed court-appointed counsel for the adult respondents.

Celina D. Sansone and Scott R. Nestor claim their home was subsequently “seized” and “no paperwork about the home was given, only a summons to court for a CPS case alleging educational neglect, stating that their homeschool had been ‘terminated.'[4]

On August 16, 2019, a preliminary hearing was scheduled to occur regarding the July 22, 2019 petition. At the hearing, an Order was entered directing the filing an Amended Abuse and Neglect Petition that had been presented to the circuit court by WV DHHR, by statutory counsel Anne M. Armstrong.[5] The court adjourned the proceedings and scheduled an adjudicatory hearing on the original petition and the amended petition for August 20, 2019.

At the August 20, 2019 hearing, guardian ad litem Kristen D. Antolini submitted to the Court a Second Amended Abuse and Neglect Petition.[6] Respondent-parents Scott R. Nestor and Celina D. Sansone allege they were served with the Amended Petition and the Second Amended Petition only after walking into the courtroom for the hearing that day.[7] The Second Amended Petition adopted the allegations from prior petitions and further alleged that the respondent-parents Scott R. Nestor and Celina D. Sansone had exposed their minor children to unsanitary living conditions. The Second Amended Petition also alleged that the parents received their buprenorphine prescriptions out-of-pocket from a provider in Pennsylvania and asserted [i]t is neglectful that these Adult Respondents likely pay hundreds of dollars per month for buprenorphine out-of-state, rather than utilizing their financial resources for their minor children. Further, the Adult Respondents long term us[e] of Buprenorphine has impaired their judgment and proper parenting skills, and same is neglectful.”[8] The Second Amended Petition requested that the court immediately remove the children from the custody of the respondent-parents and be placed into the legal and physical custody of the West Virginia Department of Health and Human Resources. (“WV DHHR”).

The August 20, 2019 adjudicatory hearing was converted from an adjudicatory hearing to a status conference.[9] During the proceeding, Judge Shaffer considered evidence presented by Assistant Prosecuting Attorney Anne M. Armstrong. This evidence was allegedly not disclosed to the respondent-parents prior to the hearing.[10] Judge Shaffer also considered evidence from guardian ad litem Kristen D. Antolini who presented testimony and photographic evidence regarding the children's living conditions. The adult-respondents, and Plaintiffs here, contend the facts put forth by Kristen D. Antolini at the hearing were “lies.”[11] They also maintain that Judge Shaffer did not permit a Child Protective Services (“CPS”) worker to testify or submit a report from her visit to their home, despite Nestor and Sansone's request that such evidence be considered.[12] At the hearing, Judge Shaffer allegedly questioned the parents harshly about their use of the prescription drug, buprenorphine, to treat their drug addictions.[13]

At the conclusion of the hearing, Judge Shaffer ordered that the Second Amended Abuse and Neglect Petition be filed and that the minor children be removed from the care, custody, and control of their parents and temporarily placed in the legal and physical custody of WV DHHR.[14]Nestor and Antolini claim their children were “split up 2 by 2 and placed hours away in foster care.”[15]

A Third Amended Abuse and Neglect Petition was filed by WV DHHR and Assistant Prosecuting Attorney Anne Armstrong. The Third Abuse and Neglect Petition alleged that the Plaintiffs had concealed their children in violation of August 20, 2019 Order.[16]

Scott R. Nestor and Celina D. Sansone were arrested in October 2019 after being charged with six counts of felony child concealment due to noncompliance with the Order issued by Judge Shaffer on August 20, 2019. Plaintiffs allege Judge Shaffer initially refused to place Celina D. Sansone “on probation” and set her bail at an excessively large cost of $120, 000, whereas Scott R. Nestor's bail was set at $30, 000 then reduced to $10, 000 upon the condition that he agree to weekly check-ins and drug testing.[17] Plaintiffs assert that later, after Sansone had paid bail and been out without any bail conditions, Judge Shaffer “placed her on probation” conditions as a “punishment.”[18]

Plaintiffs Scott R. Nestor and Celina D. Sansone initiated this civil action on September 3, 2020, against Defendants Kristen D. Antolini, Anne M. Armstrong, Carrie Poier, and Steven L. Shaffer. Reading the pro se Complaint liberally, Plaintiffs assert claims for intentional infliction of emotional distress, civil rights violations under 42 U.S.C. § 1983, and civil conspiracy under West Virginia Law.

II. PARTIES' CONTENTIONS
A. Plaintiffs' Complaint

In the Complaint, the pro se Plaintiffs allege violations of their First, Fourth, Fifth, Sixth, Eighth, and Ninth Amendment Rights. ECF No. 1 at 3 and 5. Plaintiffs allege a conspiracy between the state actors to “present the Court with lies, ” and deprive Plaintiffs of their constitutional rights. ECF No. 1 at 20. Plaintiffs claim they were unconstitutionally discriminated against for their religiously-motivated[19] choice to homeschool their six children and their choice not to inoculate their children or use allopathic medicine. Plaintiffs further claim that, despite their sobriety, they were discriminated against based upon their substance abuse disorder and their continued compliance with a prescribed buprenorphine substance abuse treatment plan. ECF No. 1 at 11-12, 32.

Plaintiffs allege their due process rights were violated when they were not given proper notice of abuse and neglect petitions being filed prior to hearings on the same, when evidence was improperly introduced to the court by the prosecuting attorney and guardian ad litem without proper notice to all parties, and when they were not permitted to present their own evidence to the circuit court. ECF No. 1 at 8-11.

Plaintiffs further allege their due process rights were violated by a deviation from the deadlines and procedures for child abuse and neglect proceedings which have lengthened and stalled the adjudicatory process. ECF No. 1 at 15. Specifically, Plaintiffs allege that Judge Shaffer violated his obligation to ensure that the abuse and neglect case against them did not “drag on” and that timely multidisciplinary team meetings and hearings be held. ECF No. 1 at 15. Plaintiffs also allege that Defendant Judge Steven Shaffer should have recused himself from the proceedings based upon a supposed conflict due to his prior representation of Plaintiff Sansone's former landlord. ECF No. 1 at 16.

Plaintiffs also argue their due process rights were violated by Assistant Prosecuting Attorney when [i]n July their home [was] seized, without proper procedure. As the cop stated, he had no choice because of the prosecutor is pushing for us to seize the home.” ECF No. 1 at 20. Furthermore, Plaintiffs allege Defendant Armstrong unlawfully infringed upon their “right against unlawful searches and seizures, the right to a fair trial, and their rights to the care, custody and control of their six kids, and their parental...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT