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Hargis v. Werner

United States District Court, N.D. New York

March 22, 2017

DELBERT W. HARGIS, JR., Plaintiff,
v.
MICHAEL WERNER, Defendant.

         APPEARANCES:

          DELBERT W. HARGIS, JR. Plaintiff pro se

          OFFICE OF THE JEFFERSON COUNTY ATTORNEY Attorneys for Defendant

         OF COUNSEL:

          DAVID J. PAULSEN, ESQ.

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge

         I. INTRODUCTION

         On 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.

         Currently 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.

         II. BACKGROUND

         According 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).

         On July 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.

         Plaintiff contends that Defendant, an attorney with CPS, filed[1] 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.[2] 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 ¶ 6(p)(x).

         Plaintiff 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 ΒΆΒΆ 26-28. On September 28, 2015, the family court ...


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