United States District Court, N.D. New York
DELBERT W. HARGIS, JR., Plaintiff,
MICHAEL WERNER, Defendant.
DELBERT W. HARGIS, JR. Plaintiff pro se
OF THE JEFFERSON COUNTY ATTORNEY Attorneys for Defendant
J. PAULSEN, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
March 25, 2016, Plaintiff commenced this action pursuant to
42 U.S.C. § 1983 alleging that Defendant violated his
First Amendment rights in connection with a Jefferson County
Family Court child protective proceeding against Plaintiff
and his wife. Plaintiff also alleges that Defendant's
conduct in the underlying Jefferson County action constitutes
a violation of the Model Rules of Professional Conduct and/or
New York Judiciary Law.
before the Court are Defendant's motion to dismiss the
complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure, see Dkt. No. 15-3,
and Plaintiff's letter-motion to strike Defendant's
motion to dismiss, see Dkt. No. 18. Plaintiff filed
an affidavit in opposition to Defendant's motion to
dismiss on June 2, 2016, see Dkt. No. 17, and a
memorandum of law in opposition to Defendant's motion to
dismiss on June 24, 2016, see Dkt. No. 19.
to the complaint, on February 12, 2012 the Child Protective
Services Unit of the Jefferson County Department of Social
Services ("CPS") began to investigate
Plaintiff's household for child abuse, including sexual
abuse. See Dkt. No. 1 at ¶ 4. Plaintiff
contends that the investigation was closed on July 30, 2012
and that CPS concluded in a report that allegations of sexual
abuse were unfounded (the "CPS Report"), in part
because Plaintiff's two children denied abuse. See
Id. at ¶ 6(a)-(b), (h).
17, 2012, Nicole E. Hargis, Plaintiff's wife and
step-mother of Plaintiff's two children, filed a petition
with the Jefferson County Family Court in which she asserted
that her step-children had been harassing her for years and
that she was entitled to an order of protection. See
Id. at ¶ 6(c). On July 19, 2012, Plaintiff's
children disclosed to CPS that their step-mother had been
sexually abusing them for years. See Id. at ¶
6(d). At some point between July 19, 2012 and September 28,
2015, Plaintiff called his children "liars" and
called their disclosures of sexual abuse
"retaliation." See Id. at ¶ 6.
contends that Defendant, an attorney with CPS,
filed a child protective petition against
Plaintiff and Ms. Hargis on August 10, 2012 in Jefferson
County Family Court based on the children's July 19, 2012
claims. See Dkt. No. 1 at ¶ 6(e).
That petition alleges that Ms. Hargis sexually abused her
step-children and that Plaintiff neglected to protect his
children from the abuse. See Dkt. No. 15-2 at 9. Ms.
Hargis was subsequently criminally convicted of sexually
abusing the children. See Dkt. No. 1 at ¶
contends that while the family court proceeding was ongoing
he attempted to offer the CPS Report into evidence. See
Id. at ¶ 24. According to Plaintiff, Defendant
asserted-and the family court judge initially agreed-that the
CPS Report was inadmissible. See Id. at ¶¶
26-28. On September 28, 2015, the family court ...