Settlemeyer v. Ditsch

• Decision Date: 04 May 2021
• Docket Number: No. CV-20-00221-TUC-CKJ,CV-20-00221-TUC-CKJ
• Parties: Jarett Settlemeyer, et al., Plaintiffs, v. Meghann Ditsch, Jody Rubin, and Diana Ouillette, Defendants.
• Court: U.S. District Court — District of Arizona

Jarett Settlemeyer, et al., Plaintiffs, v. Meghann Ditsch, Jody Rubin, and Diana Ouillette, Defendants.

No. CV-20-00221-TUC-CKJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 4, 2021

ORDER

Pending before the Court is Defendants' Motion to Dismiss First Amended Complaint(Doc. 11) and Plaintiffs' Motion for Leave to File Supplemental Memorandum in Opposition to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint(Doc. 21).For the reasons that follow, Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART, and Plaintiffs' Motion for Leave to File Supplemental Memorandum is DENIED.

BACKGROUND¹

Plaintiffs Jarett and Eldon "Kitt" Settlemeyer are the parents of minors JS, CS, and SS. (Doc. 10at 2) In April and May of 2018, two hotline reports were made to the Arizona Department of Child Safety("Department"), alleging possible abuse or neglect of the Settlemeyer children.Id. at 3-4.DefendantMeghann Ditsch("Ditsch"), an investigatorwith the Department, was assigned to investigate both reports.Id. at 3.On at least two occasions, Ditsch interviewed the children at their respective schools.Id. at 3-4.

After investigating the April hotline report, which included interviewing the Settlemeyers, Ditsch told the Settlemeyers that the Department would be issuing a letter finding the report to be unsubstantiated.Id. at 4.During the investigation of the May hotline report, however, CS told a Marana police officer that his mother beat him "regularly" with a "black leather belt and a paddle."Id. at 5.Ditsch informed the Settlemeyers that CS had also expressed fear of his mother.Id. at 6.Ditsch said the allegation of fearfulness led to the Department's decision that Kitt should not be alone with any of the children until a Team Decision Meeting ("TDM") was held.Id.A TDM consisted of a discussion between Department representatives and the parents.On May 16, 2018, a TDM with the Settlemeyers was held.Id. at 7.

Defendant Ditsch, her supervisor DefendantJody Rubin("Rubin"), and the TDM facilitator DefendantDiana Ouillette("Ouillette) attended the TDM.Id. at 7-8.During the meeting, Ouillette stated, "it sounds like there's a lot of minimization, a lot of not working, a lot of shaming and blaming towards the Department."Id. at 9.Both Ouillette and Ditsch also accused the Settlemeyers of a lack of cooperation, with Ditsch adding, "[t]he way that you guys are reacting to us, especially you Kitt, is not helping the situation.Because it's more likely for us to believe that things are happening in the home when you behave that way[.]"Id. at 10.Rubin suggested that the Settlemeyers refrain from using physical discipline on their children due to two open reports of abuse and neglect and because at least one of the children had special needs.Id.Ditsch also stated:

What I am going to decide to do, because it will also give you guys an opportunity to contest this, because that's clearly what you want to do, I am wanting to file what's called an in-home dependency petition with the Yuma [sic] County Juvenile Court, which will state that the children will remain in your physical custody.However, DCS, the state of Arizona, will have legal custody[.]

Id.When the Settlemeyers attempted to understand what Ditsch was saying, Ouillette cut them off, stating, "You've heard the decision.We need to talk about moving forward then."

Id. at 11.

Six days after the TDM, the Arizona Attorney General filed an in-home dependency petition in juvenile court.Id. at 11-12.The petition indicated that the Settlemeyers abused and neglected their children.Id.Plaintiffs allege that in the absence of material misrepresentations and omissions in the Department's report to the Attorney General, there would have been no probable cause to find that Plaintiffs had abused or neglected their children.Id. at 12.Between May 22, 2018, when the dependency petition was filed, and June 1, 2018, Defendants formalized their findings against the Settlemeyers in a report to be submitted to the juvenile court.Id. at 11.

The Settlemeyers contend that the Department's report included the following misrepresentations: (i)Plaintiffs' discipline was "harsh," which neither parent was able to recognize; (ii) Jarett's ability to recognize threats to his children was "diminished" because Jarett failed to recognize CS' fear of his mother; (iii) Kitt's tolerance as a caregiver was "diminished" because the children reported that Kitt could become "out of control and angry"; (iv) Marana police officers stated concerns to Ditsch, which included the concern that "Mrs. Settlemeyer's hostilness [sic] to them left concerned [sic] about how she reacts to her children"; (v) the officers also had concerns for Jarett's truthfulness; (vi) the Settlemeyers did not show for the TDM; (vii) one of the children's school had reported that the Settlemeyers were "hard to reach" and "difficult to get ahold of"; (viii) during the TDM, "Mrs. Settlemeyer stated she would participate [in DCS-facilitated] services but only because she was forced to"; (ix) both of the Settlemeyers stated their unwillingness to work with the Department's in-home team; (x) there was a documented history/pattern of physical abuse by Kitt; (xi) and that "[d]ue to the previous child abuse history by Mrs. Settlemeyer, the current fearfulness of the child, the pattern of inappropriate discipline, the parents' aggressive stance towards [the Department] and police; and their unwillingness to work cooperatively with [the Department], the Department fe[lt]court oversight [was] needed[.]"Id. at 14-15.

On June 4, 2018, at a preliminary protective hearing, the Arizona Attorney Generalsubmitted the Department's report to the juvenile court.Id. at 12;Doc. 11-2at 17.On January 14, 2019, after six days of a contested dependency hearing spanning over two months, the juvenile court granted the Settlemeyer's motion for a directed verdict, dismissed the dependency, and entered judgment in the Settlemeyer's favor.Doc. 11-2at 20-40.

PROCEDURAL HISTORY

On September 10, 2020, Plaintiffs filed their First Amended Complaint ("FAC").(Doc. 10)On September 24, 2020, Defendants responded with a Motion to Dismiss Plaintiff's First Amended Complaint.(Doc. 11)On October 20, 2020, Plaintiffs filed a Memorandum in Opposition to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint.(Doc. 17)On October 30, 2020, Defendants filed a Reply in Support of Motion to Dismiss Plaintiffs' First Amended Complaint.(Doc. 20)On January 21, 2021, Plaintiffs filed a Motion for Leave to File Supplemental Memorandum in Opposition to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint.(Doc. 21)On February 4, 2021, Defendants filed a Response to Plaintiffs' Motion for Leave to File Supplemental Memorandum in Opposition to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint.(Doc. 23)This Order follows.

LEGAL STANDARD

Dismissal of a complaint is appropriate when the facts alleged fail to "state a claim upon which relief can be granted."Fed. R. Civ. P. 12(b)(6).This is true if there is a (1)"lack of a cognizable legal theory" or (2)"the absence of sufficient facts alleged under a cognizable legal theory."Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699(9th Cir.1988).The Supreme Court has ruled that a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007).While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level."Id. at 555;Starr v. Baca, 652 F.3d 1202, 1216(9th Cir.2011)("If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff,both of which are plausible, plaintiff's complaint survives a motion to dismiss[.]").If a court dismisses a complaint it should grant leave to amend unless the "pleading could not possibly be cured by the allegation of other facts."Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247(9th Cir.1990).

I.Exhibits Attached to Motion to Dismiss

As a preliminary matter, the Court notes Defendants have attached ten exhibits to their motion to dismiss, seeDoc. 11-2at 1-45, and that Plaintiffs have included Defendants' report with their FAC, seeDoc. 10-1at 1-34.This raises the question of which documents should be considered by the Court in resolving the motion at hand.

Plaintiffs object to the exhibits attached to Defendants' motion arguing that the exhibits contain hearsay and that a court may not take judicial notice of findings of facts from another case or take judicial notice of factual matters that are in dispute.(Doc. 17at 4-5)Plaintiffs suggest that the Court convert Defendants' motion into one for summary judgment if the Court considers the exhibits for the facts which they contain.Id. at 5.Defendants respond by arguing that it is permissible to attach court documents and records to a motion to dismiss and that such inclusion does not automatically convert the motion into one for summary judgment.(Doc. 19at 1-2)Defendants also assert that the facts outlined in the exhibits demonstrate that Plaintiffs cannot prevail on their judicial deception claim, as said claim can only survive if a court order results in a deprivation of a liberty interest.Id. at 3.

In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint.Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980(9th Cir.2002).A court must normally convert a Rule 12(b)(6) motion into a motion for summary judgment if it "considers evidence outside the pleadings[.]"United States v. Ritchie, 342 F.3d 903, 907(9th Cir.2003)."A court may, however, consider certain materials—documents attached to the complaint, documents...