Elswick v. Tazewell County Dept. of Social Services et al, No. 7:2018cv00529 - Document 9 (W.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 1/11/2019. (slt)
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CLERKS OFFICE U.S.DIST.COUR' AT ROANOG ,VA FILED JAh 11 2018 IN TIIE U NITED STATES DISTRICT CO URT FOR TIIE W ESTER N DISTRICT O F W R GINIA R OA NO K E D IW SIO N ELIZA BETH J.ELSW ICK , JULI A .DUD BY: W ERK R CASE N O .7:18CV 00529 Plaintiff, V. M EM O R AN DU M O PINION TAZEB E LL CO UN TY DEPL O F H on.G len E.C onrad SeniorU nited States DistrictJudge SOCM SERW CES,C AL, D efendants. Elizabeth J.Elsw ick,a Virginia inm ate proceeding pro K ,filed this civilrights action' . pursuantto42U.S.C.j1983,allegingthatshedidnotreceivenoticeofcertainChildProtective Services(G$CPS'')mattersin2015,inviolationofherrights.Afterreview oftherecord,thecourt concludesthatthiscivilactionmustbesummarilydismissedwithoutprejudiceasfrivolous. Authorities Gled a crim inal complaint against Elsw ick in Tazewell County General D istrictCourton July 7,2015,charging herw ith m anufacturing,and conspiracy to m anufacture m ethamphetam ine; possessing precursors to m anufacturè that substance, and child endangerm ent. These charges arose after an investigation and execution of a search w arrant concluded thatElsw ick had m anufactured m etham phetam ine w ith another person at a residence Elswick v. Tazewell County Dept. of Social Services et al Doc. 9 whileajuvenilewasalsopresentintheresidence.A grandjurylaterreturnedanindictmentthat w as sealed and first served on Elsw ick in A pril 2016. She pleaded guilty later that year to m ultiple charges,and in February 2017,she was sentenced to prison tim e. Elsw ick is currently confined atDeerfield W om en'sW ork Center in Capron,Virginia. Dockets.Justia.com Elswick has learned from officialsatCPS in Tazew ellCounty thatthis agency conducted several investigations of allegations concerning Elsw ick in 2014 and 2015. M ost of these matters concluded w ith investigators ruling the allegations to be unfounded. ln a letter in early M arch of2017,a CPS offcialinformed Elswick: The only allegation regarding you in oursystem w hich was investigated in July 2015 involved your granddaughter w ho w as in your hom e during the m anufacture of a controlled substance. Y ou w ere considered a caretaker. That investigation w as founded and w illrem ain in our information system 18 years from the date ofthe referral. The record show syou did notfile an appealon this findinggtotheVirginiaDepartmentofSocialServices(çEDSS'')j. Compl.Attach.11,ECF N o.1-1. A letterto Elsw ick from the DSS in D ecem ber2017 indicated thatSiaccording to the state database (Elswick)did notsubmitan appealrequestto the local agepcy within 30 daysafter(shewas)notified ofthefounded disposition dated September7, 2015.'' ld. at l2. Since that appeal tim e has long since expired, the D SS $$no longer has authority to exercisejurisdiction overthe localagency'sdisposition in EElswick'sjcase.'' 1d. Elswick states that CPS offk ials never notified her of any of their investigations or their Gndings. Specifcally,she assertsthatCPS did notprovide hernotice ofthe Septem ber7,2015, founded disposition,which prevented herfrom pursuing an appealto D SS. Elsw ick insiststhat the èhild presentatthe crim e scene on July 7,2015,wasSJ,hercodefendant's daughter,w ho is notElsw ick's granddaughter. Elsw ick filed thisSscivilRights Com plaint''in October2018 againsttheTazewellCounty Departm ent of Social Services; Edw ina Craw ford, CPS Supervisor; and CPS Social W orkers Jam iN unley and M isty V ance. 1d.at2. She accusesthe defendants ofbeing EGcrim inally liable'' for allow ing a child to be endangered,and of being GEnegligentin theirperform ance and duties, even to the pointofbeing reckless and escape responsibility when being sued.'' Id.at6,9. She com plains thatttm isrepresentation''by CPS prevented hertGfrom properly constructing orraising 2 the claim in a tim ely manner.'' 1d.at10. Elsw ick statesthatshe did notbring thisaction to alter her crim inal conviction or to obtain m onetary damages stem m ing from her conviction or incarceration.l Rather, she asserts,her EEreasons for w riting the courtwere nothing m ore than justice.''1d.at4. 1l. The court is required to dism iss any action or claim filed by a prisoner against a governm ental entity or officer if the court determ ines that the action or claim is frivolous, malicious,orfailsto stateaclaim on which reliefmay begranted. 28 U.S.C.j 1915A(b)(1). Because Elsw ick does not clearly identify her intended cause of action and appears to be claim' ing violations ofher constitutionalrights,the courthasconstrued hercom plaintasarising underj1983,seekingdeclaratoryrelief. Section 1983permitsanaggrievedpartytot5leacivil action againsta person foractionstaken under color ofstate law thatviolated herconstitm ional rights. Cooperv.Sheehan,735F.3d 153,158(4th Cir.2013). A (Efrivolous''claim isonethat GGlacks an arguable basis either in 1aw or in fact''because it is çGbased on an indisputably m eritless legaltheory''orits(Tactualcontentions are clearly baseless.'' N eitzke v.W illiam s,490 U.S.319,325,327(1989)(interpretingççfrivolous''informerversionof28U.S.C.j1915(d)). A s an initial m atter, Elswick cannot bring a court action to have the defendants invçstigated orprosecuted forpossible crim es. Private individuals,likeElsw ick,sim ply have no constitmionalrightto,oranyjudiciallycognizableinterestin,theprosecutionofanotherperson. Diamondv.Charles,476 U.S.54s64-65(1986). Elswick alsohasno viablefederalclaim that 1 Elswick submitsacopy ofan orderfrom the TazewellCounty CircuitCourt,denyingElswick'soro.i#. motion forreconsideration ofsentencefiled March 26,2017. Theorder,dated Ajril12,2017,states,çtupon consideration oftheD efendant'smotion,theCourthasdeterm inedthattherewereno clrcumstancesin mitigation of theoffensesthatwerenotpreviously considered,andthatitwould notbeintheinterestofjusticetograntsaid motion.''Com pl.Ex.2,ECF No.1-1. the defendants, as govem m ental ofticials,failed to act w ithin the 1aw in any way. Allen v. W right,468 U.S.737,754 (1984) ($$(A1n asserted right to have the Government act in accordancewith 1aw isnotsufficient,standingalone,toconferjurisdictiononafederalcoulfl. Accordingly,any j1983 claim in which Elswick may be attempting to have the defendants criminally prosecuted orreprimanded forunlawfulactsislegally frivolous. Liberally construed,Elsw ick'spleading also alleges thatthe defendants som ehow failed to actw ith due care during the Septem ber 2015 investigation- thatthey negligently concluded Elsw ick was a caregiver to the child at issue, and then failed to notify Elsw ick that the investigation determ ined the allegations against her to be founded. Because of their alleged negligence,Elswick Iostheropportunity to appealthatdisposition to D SS to rem ove itfrom their rec/rds. Shealso appearsto allegethatCPS negligently failed toprotectthechildpresentin the residence during Elsw ick's offense conduct. N egligentacts by governm entalofficials are not suftk ient to implicate Elsw ick's constitutionalrights and are, therefore,not actionable under j1983. See, e.g., County of Sacramento v.Lewis, 523 U.S. 833, 849 (1998) (1(Tjhe Constitution does not guarantee due care on the part of state officials;liability for negligently inflictedharm iscategoricallybeneaththethreshold''ofconstimtionalprotections). 4 111. Forthesttedxasons,thecourtconcludestbatElswick'sallegafonsln herc 'omplaintdo J . notprovidealegi orfictllnlbasisforOy Kionablej1983clnlm.Accordingly,thecourt* 11 snmmadly dismiss the acfon wlthout prejudice under j1915A(b)(1) as G volous.2 % appropriateorderwillenterthlsday. The Clerk is directed to send copfes ofthis mem orandum opinlim and accompanying ordertoElsv ck INTER + :n lsll dayofJanuav,2019. SeniorUited SvtesDistrid Judge z Elswick pre ously flled alawsuitraishlg similarallegationsin 'theUnited SttesDistrid Courtf0rthe Eastern Distrld ofVirginiw Elswick v.Crawfori Acti on N0.2:18* 8IE.D.Va.0d.26,2010,andsubmitsa copyofthedl Y iKsalcrde. 'I' heF-- ern Die ctgaveElswick tbreeoppf- nltiesto amendhercompe t After the second att- pted complaintwas stillunclear atd she failed to submitany response thereaqer,the court - digminsed theadionwiloutprejudce,noe g::*131a111* hasnotprovide theCourtwith suoce tl 'nfnnnadon regaàlingherclm-mstojus't' tfyfmnqfem thisactionFlmm ntto28U.S.C.91406(ar tothiscourt. SeeCompl. EG 7,ECFNo.1-1. 5
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