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Leslie Moore v. County of Butte

July 21, 2011

LESLIE MOORE,
PLAINTIFF,
v.
COUNTY OF BUTTE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, who is proceeding pro se, brings this civil rights complaint. Pending before the court is plaintiff's first amended complaint (Doc. 6).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court is also required to screen complaints brought by litigants who have been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and 1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h), this court must dismiss an action "[w]henever it appears . . . that the court lacks jurisdiction of the subject matter . . . ." Because plaintiff, who is not a prisoner, has been granted leave to proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h), the court will also consider as a threshold matter whether it has subject-matter jurisdiction.

I. PLAINTIFF'S ALLEGATIONS*fn1

Plaintiff names the following as defendants: Government Entities County of Butte, City of Chico, State of California, Butte County District Attorney's Office, Butte County Superior Court, Butte County Children's Services Division of the Department of Health and Human Services, Chico Police Department, Butte County Sheriff's Office.

Individuals Terry Moore, Robert Merrifield, Loretta MacPhail, Bruce Hagerty, John Rucker, Michael O'Brien, Michael Maloney, Michael Webber, Daniel Fonseca, Linda Dye, John Carillo, Jose Lara, Alicia Rock, Lori Barker, Roger Wilson, Rick West, Kory Honea, Michael Ramsey, Pamela Chambers, Pamela Richards, Patricia Parra, Jorje Lozano, Erin Sweet, Eric O'Berg, David Kennedy, Peter Meadowsong, Kimberly Merrifield, Bruce Alpert, Amy King, Tamara Solano, Steven McNelis, William Patrick, Tamara Mosbarger, James Reilley, David Gunn, William Lamb, Anne Osborn, Elisabeth Woodward, Martin McHugh, Alfred Driscoll, Gary Wilson, Richard Thomas, Larry Levine, Windsor, Deputy Lang, and Mike Morgan.

She also names North State Public Safety Employee Retiree Medical Trust. Plaintiff asserts that the facts alleged in the amended complaint give rise to a claim for violation of her civil rights. She also alleged various state law statutory and/or tort claims (i.e., negligence, breach of contract, defamation, etc.).

According to plaintiff, this case involves a minor child, "K.T." Plaintiff states:

The child in this case is K.T. His mother ('Dawn') was pregnant with him when she met my son and they decided to become a family, so when K.T. was born, in August '03, it was as my non-related grandson. The new family split up after a couple of years and dawn left K.T. with me frequently after that. He began living with me in December '06 and I became his de facto parent. In September 2007 Children's Services initiated a WIC 300 proceeding to terminate Dawn's parental rights and K.T. was listed as my foster child. With his mother's blessing, I was adopting him. Though we call each other 'Grandma/Grandson,' our relationship was that of parent/child, so I refer to K.T. as my child.

According to plaintiff, in the summer of 2007, it came to the attention of welfare officials that, although K.T. was living with her, Dawn was collecting welfare as if the child were living with her. In September 2007 Dawn appeared at K.T.'s daycare intending to take him. The daycare providers believed that Dawn was inebriated at the time and called the police. Defendant Moore, a police officer and plaintiff's ex-husband, instructed the daycare providers to release K.T. to Dawn's custody. Plaintiff states that, when she learned of this, she reported child endangerment to the police. She further states that officer Lara "falsified this report as though it were a missing person report though he knew K.T. was not 'missing' but was with his mother and in danger."

On September 13, 2007, the police detained a child in a danger situation. This child turned out to be K.T. It was at this time that K.T. was placed with plaintiff as a foster child. This placement was accomplished by Patricia Parra who did so without any kind of home investigation "as a professional courtesy to Moore." While a home investigation was completed in October 2007, plaintiff states that Parra did not make any of the mandatory monthly visits.

More specifically regarding Moore, plaintiff states that he abused her and told her he would "take my children, take my house, have me thrown in the loony bin, leave me penniless" if she reported the abuse. According to plaintiff, Moore stated repeatedly that he could get away with anything he wanted because he was a police officer. Plaintiff claims that "[o]n or about 1/2/08 Moore battered me and re-affirmed the above threats to dissuade me from reporting it." When plaintiff finally sought assistance from the police, she was told by officers Merrifield and McPhail that her "domestic problems are none of our business." The officers refused to make a report and told plaintiff to "deal with it." Plaintiff states that this caused Moore's abuse to intensify.

In an effort to escape Moore, plaintiff states that she either began having others stay with her at her house or she and K.T. would stay with others. She states that she eventually left the house until she was able to obtain a restraining order. Plaintiff retained attorney Elisabeth Woodward for this purpose. According to plaintiff, Moore became aware that she was attempting to obtain a restraining order and that Moore "arranged for a confidential informant to burglarize and vandalize his truck to create suspicion on me that I was a violent and angry person."

Plaintiff states that a hearing on her application for a restraining order was heard on February 27, 2008, by Butte County Superior Court Commissioner David Gunn. She states that a stipulation was reached whereby a "non-DV" order would issue so that Moore would keep his gun and job. Plaintiff states that she only agreed to this stipulation under duress. According to plaintiff, after the restraining order was issued, she was contacted by officer Rucker who indicated that the department was going to conduct an internal affairs investigation. He refused plaintiff's request that the investigation be referred to an outside agency.

Plaintiff next states that, in March 2008, Moore arranged to remove his belonging from plaintiff's house. Plaintiff claims:

Based on information and belief, on the date I had to allow Moore to go to my house without a stand-by, Moore and an accomplice fabricated a scene to create suspicion on me that I was a violent and angry person. . . .

Next, plaintiff claims that she appeared at a family law hearing on March 25, 2008, with Butte County Superior Court Judge William Patrick presiding. Plaintiff states that her attorney committed various acts of malpractice during this hearing. Plaintiff told her attorney that she didn't want any spousal support from Moore as part of a divorce settlement because she feared that taking any money from Moore "would have increased my already extreme danger." Plaintiff then left the courtroom. Immediately thereafter the judge addressed the allegations of domestic violence. Plaintiff states that an "inappropriate ...


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