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Cooley v. Anthony

United States District Court, D. Montana, Billings Division

March 6, 2018

JORDON COOLEY, Plaintiff,
v.
MOYRA ANTHONY, DOUG FRIDEL, JESSICA MOORHEAD, JEN WEBER, MICHAEL ANDERSON, PETER DELMOE, and DAMON GANNETT, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan United States Magistrate Judge.

         Plaintiff 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.)

         The 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.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         Mr. 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).

         II. MOTION TO AMEND

         Fed. R. 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.

         III. STATEMENT OF THE CASE

         A. Parties

         Mr. 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.)

         In his 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.

         B. Factual Allegations

         On 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.

         On 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.

         Mr. 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.

         He was 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. Mr. ...


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