United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.
Jordon Cooley filed a motion to proceed in forma pauperis
(Doc. 1), a proposed Complaint (Doc. 2), and a motion to
amend the Complaint (Doc. 4). He alleges Defendants violated
his Fourth, Fifth, Ninth, and Fourteenth Amendment rights
under the United States Constitution by removing his son from
his custody without sufficient cause. (Doc. 2 at 6.)
motion to proceed in forma pauperis and motion to amend will
be granted. But the Court must abstain from hearing Mr.
Cooley's claims for injunctive relief at this time, and
those claims should be dismissed. To the extent Mr. Cooley is
seeking monetary relief, those claims should also be stayed
pending the resolution of the state court proceedings
regarding the custody of his son.
MOTION TO PROCEED IN FORMA PAUPERIS
Cooley's motion to proceed in forma pauperis is
sufficient to make the showing required by 28 U.S.C.
§1915(a). (Doc. 1.) The request to proceed in forma
pauperis will be granted. 28 U.S.C. § 1915(a).
MOTION TO AMEND
Civ. P. 15(a)(1) provides that a party may amend its pleading
once as a matter of course within 21 days after serving it.
Mr. Cooley filed his motion to amend within the 21-day
period. The motion to amend will be granted and the Clerk of
Court will be directed to file the Amended Complaint.
STATEMENT OF THE CASE
Cooley is proceeding without counsel. He names the following
Defendants: Moyra Anthony, Doug Fridel, Jessica Moorhead, Jen
Weber, Michael Anderson, Peter Delmoe, and Damon Gannett.
(Complaint, Doc. 2.)
Amended Complaint, Mr. Cooley names the following Defendants:
Moyra Anthony, Doug Fridel, Jessica Moorhead, and Jen Weber.
(Doc. 4-1 at 4-5.) Because the Amended Complaint supercedes
the original complaint, Lacey v. Maricopa County,
693 F.3d 896, 907 n. 1 (9th Cir. 2012)(en banc),
Defendants Michael Anderson, Peter Delmoe, and Damon Gannett
will be recommended for dismissal.
October 18, 2017, Judge Moses from Montana's Thirteenth
Judicial District Court dismissed a youth in need of care
case involving Mr. Cooley's three-year-old son. According
to Mr. Cooley, that case had been pending for 18 months.
November 7, 2017, however, Mr. Cooley received a call at work
from his mother who told him that CPS workers Moyra Anthony
and Jessica Moorehead and a Friedel employee were at their
home. They had informed Mr. Cooley's mother that there
had been a concerning report made against him and they needed
to drug test him. After walking through the house and looking
in Mr. Cooley's bedroom and closet, they told Mr.
Cooley's mother that he needed to be at Friedel's
office by 4:00 p.m., or they would remove his son and place
him in foster care.
Cooley was not directly notified by CPS until after 3:30 p.m.
He was told by Moyra that he needed to be at Friedel's
office by 4:00 p.m. to provide a swab of his mouth, and he
would then be put on a drug testing patch for a week. When he
took the mouth swab test, he was told he failed and tested
positive for methamphetamine and amphetamine.
later contacted by Moyra and told he needed to be at his
house within the hour. When Moyra arrived, she told Mr.
Cooley and his mother that there had been many concerning
reports made about him. She then asked about the failed test.