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Sanchez v. Rash

United States District Court, D. Montana, Billings Division

May 7, 2019

KRISSY SANCHEZ, Plaintiff,
v.
CIERRA RASH, et al., Defendants. KRISSY SANCHEZ, Plaintiff,
v.
STEVE BULLOCK, et al., Defendants. KRISSY SANCHEZ, Plaintiff,
v.
FRIDEL LLC, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          Timothy J. Cavan United States Magistrate Judge

         Plaintiff Krissy Sanchez filed these actions in November 2017 and May and June 2018. All three challenge defendants' actions in connection with the care and custody of her children. Generally, Plaintiff alleges the defendants seized her child without authority to do so, did so in an unreasonable manner, and compelled her to submit to unauthorized and unreasonable drug testing during the time she was attempting to regain custody of her child.

         This Order addresses all three complaints. But generally, the parties must keep the three complaints distinct. They are three separate cases.

         Because Plaintiff is proceeding in forma pauperis, the Court has reviewed the complaints to determine whether they are frivolous or malicious, fail to state claim on which relief may be granted, or seek monetary relief against defendants who are immune. See 28 U.S.C. § 1915(e)(2). Some defendants must be dismissed, but most of Plaintiff's allegations require a response.

         As shown above, the Court has amended its own captions for each case to substitute an individual defendant for a state entity immune from suit in federal court under the Eleventh Amendment.

         A. No. CV 17-156-BLG

         The complaint in Cause No. CV 17-156-BLG deals with the time period from September 1, 2017, through November 2017. In her recent amendment, Plaintiff states she is not sure of any officer's identity and aims her allegations at Officers 1, 2, 3, and 4. The unidentified Yellowstone County officers will be added to the caption of the case as defendants. Defendants Deputy Lauwers, Sergeant Taylor, and Deputy Cunningham, as well as CFS Supervisor Jen Weber, will be recommended for dismissal because, following notice and an opportunity to amend, Plaintiff does not make any allegations against them.

         Plaintiff's complaint attributed specific acts to Deputy McCave (or Mcave). However, her amendment expresses uncertainty about the identity of all the officers whose actions she describes. Deputy McCave will also be recommended for dismissal. But the four now-unidentified officers, if known, must answer. Defendant CFS Department of Health and Human Services State of Montana will be recommended for dismissal with prejudice. It is not a “person” under 42 U.S.C. § 1983, and it is also a state agency with Eleventh Amendment immunity from suit in federal court. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1999); Quern v. Jordan, 440 U.S. 332, 350 (1979). Because the Court is required to construe Plaintiff's complaint liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), her allegations against the entity will be construed as aimed at the named individual state officials and employees.

         The remaining defendants-Rash, Friedel, Ellerbee, Larson, Anthony, Johnson, Hogan, McCullough, Harrington, Kirby, and, if known, Yellowstone County Officers 1, 2, 3, and 4-must file an answer to the complaint as amended.

         B. No. CV 18-90-BLG

         The complaint in Cause No. CV 18-90-BLG deals with the time period from April 16, 2018, to May 22, 2018. After notice and an opportunity to amend, Plaintiff does not make any allegations against the Laurel Police Department. It will be recommended for dismissal.

         Defendant DPHHS CPS must be dismissed with prejudice. It is not a “person” under 42 U.S.C. § 1983, and it is a state agency with Eleventh Amendment immunity from suit in federal court. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1999); Quern v. Jordan, 440 U.S. 332, 350 (1979). Again, Plaintiff's allegations against the entity will be construed as aimed at the named individual state officials and employees.

         The remaining defendants-Governor Bullock, Smith, Larson, Webber, Harvey, and Moorehead, and, if known, Laurel Police Officers 1, 2, and ...


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