Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Laurienti v. Bicha

United States District Court, D. Colorado

February 9, 2016

WILLIAM J. LAURIENTI, Plaintiff,
v.
REGGIE BICHA, KATHY NESBITT, PAULETTE ST. JAMES, and SANDRA ANDERSON, each in their individual capacities, Defendants.

MEMORANDUM OPINION AND ORDER

NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE

This civil action comes before the court on Defendants Reggie Bicha, Kathy Nesbitt, and Paulette St. James’ (collectively, “State Defendants”) Motion to Dismiss Second Amended Complaint (“State Defendants’ Motion to Dismiss”). [#56, filed May 1, 2015]. Also before the court is Defendant Sandra Anderson’s (“Defendant Anderson” or “Ms. Anderson”) “Motion for Dismissal of the Second Amended Complaint Pursuant to F.R.Civ.P. 12(b)(1) and F.R.Civ.P. 12(b)(6)” (“Defendant Anderson’s Motion to Dismiss”). [#57, filed May 8, 2015].

These Motions are before this court pursuant to the Order of Reference dated January 28, 2015 [#41], the Order of Reassignment dated February 10, 2015 [#44], 28 U.S.C. § 636(c), and D.C.COLO.LCivR 72.2. The court has reviewed the matter, the entire case file, and the applicable law and is sufficiently advised as to the issues presented. For the following reasons, the Motions to Dismiss are GRANTED.

BACKGROUND

I. Procedural Background

Plaintiff William J. Laurienti (“Plaintiff” or “Mr. Laurenti”) and his wife, Patricia A. Laurienti (“Ms. Laurienti”) (collectively, “the Laurientis”), commenced this action on April 7, 2014 by filing a civil complaint in the Northern District of Georgia seeking damages pursuant to 42 U.S.C. § 1983. On September 8, 2014, the Northern District of Georgia transferred the matter to the District of Colorado pursuant to 28 U.S.C. § 1406(a). [#1]. Following the transfer to this District, the Laurentis filed an unopposed Motion to Amend their Complaint and the First Amended Complaint was entered on the docket on January 6, 2015.[1] [#28, #34]. The Laurientis asserted four claims for the violation of their constitutional rights under the Fourth and Fourteenth Amendments and one claim for respondeat superior liability, arising from the allegedly unlawful garnishment of Mr. Laurienti’s Social Security Income and the expropriation of tax refunds belonging to Ms. Laurienti. [#34]. The Laurientis sought declaratory and injunctive relief along with compensatory and punitive damages.

At a status conference held on January 7, 2015, the Parties consented to the jurisdiction of a United States magistrate judge and orally moved for a stay of discovery pending resolution of the motions to dismiss that Defendants then intended to file. [#37, see also “Consent to Jurisdiction of Magistrate Judge, ” #38]. The State Defendants filed a motion to dismiss on January 7, 2015 [#25], and Defendant Anderson filed a motion to dismiss on January 23, 2015. [#40]. This action was reassigned to the undersigned Magistrate Judge on February 10, 2015. [#44].

The Laurientis thereafter, and following two extensions of time to respond to the motions to dismiss, filed a Motion to Amend. [#47]. The State Defendants and Defendant Anderson each filed Responses opposing the Motion to Amend on the basis of futility. [#49, #48]. On April 10, 2015, this court granted the Motion to Amend and denied the then-pending motions to dismiss as moot, finding that it was more appropriate to consider whether Plaintiff stated viable claims through a motion to dismiss, rather than futility, analysis. [#50].

The Second Amended Complaint omits Patricia Laurienti as a plaintiff, adds Mesa County as a defendant, [2] and asserts the following claims arising under 42 U.S.C. § 1983: (1) unlawful search and seizure of Plaintiff’s social security income as to Defendant Anderson; (2) unlawful garnishment in violation of Plaintiff’s due process rights as to Defendant Anderson; (3) failure to train and supervise as to the State Defendants; and (4) failure to train and supervise as to Mesa County. [#51]. Plaintiff seeks compensatory and punitive damages, as well as declaratory relief to the effect that Plaintiff has paid his child support obligation in full.

II. Factual Background

The following facts are taken from the Second Amended Complaint and exhibits attached thereto and are considered true for the purposes of this Recommendation and of the court’s review of the Motions to Dismiss.[3] Before moving to Georgia, Plaintiff received a divorce from his former wife, Mary R. Laurienti, in the District Court for the City and County of Denver, Colorado in August 1982. [#51 at ¶ 13; #47-3 at 1]. Pursuant to a court order arising from that proceeding, Plaintiff was required to pay $450.00 a month in child support for his two, then-minor children (“Colorado Order”). [#51 at ¶ 14; #47-3 at 2].

Sometime thereafter, Mary Laurienti obtained public benefit payments and assigned the right to collect the child support payments to the State of Colorado. See 42 U.S.C. § 608(a)(3). In late 1996 or early 1997, the Colorado Child Support Enforcement Division (“Colorado CSED”) of Mesa County sought, through the Uniform Interstate Family Support Act (“UIFSA”), a Complaint for Enforcement of Foreign Order with the Georgia Department of Human Resources against Mr. Laurienti in the Superior Court of Paulding County, Georgia. [#51 at ¶ 15; #47-3 at 4]. On January 13, 1997, Plaintiff agreed to a Consent Order with regard to the Colorado Order, in which he acknowledged that he owed $77, 280.95 in unpaid child support and agreed to pay $500.00 a month until the sum was paid in full. [#51 at ¶ 15; #47-3 at 6].

In 2000, Colorado CSED again, through UIFSA, pursued enforcement of the Colorado Order in Paulding County Superior Court, which issued an “Order Recognizing the Out of State Child Support Order that is Controlling for Enforcement and Order of Enforcement” (“Georgia Order”). [#51 at ¶ 16; #47-3 at 8]. Paulding County Superior Court determined that Plaintiff had satisfied his obligation under the Colorado Order because one child had reached the age of majority and the other child had emancipated herself; but determined that under the Colorado Order, Plaintiff owed $76, 049.77 in arrears as of September 30, 2000. [#51 at ¶¶ 17, 18; #47-3 at 8]. Paulding County Superior Court ordered Plaintiff to make payments towards the arrearage through the Georgia Division of Child Support Services (“Georgia DCSS”) at a rate of $500.00 a month beginning November 1, 2000. [#47-3 at 9].

In a notice dated October 14, 2001, the Mesa County Child Support Enforcement Unit advised Plaintiff that he owed $173, 157.09 in past due child support. [#51 at ¶ 52; #47-3 at 52]. Mr. Laurienti responded to the Mesa County Child Support Enforcement Unit, contesting their calculation of his arrearage and asking for “an administrative review of all payments made to determine if I have been given credit for all payments made to date.” [#47-3 at 53]. Plaintiff received word from the Mesa County Department of Human Services via letter dated May 29, 2002, that the Department had conducted an administrative review and determined that he owed $63, 883.29 in past due child support. [#47-3 at 56-59].

On October 31, 2002, the Mesa County Child Support Enforcement Unit advised Plaintiff that he owed $167, 469.34 in past due child support. [#51 at ¶ 57; #47-3 at 60]. Thereafter, from 2004 through 2012, Mesa County Child Support Enforcement Unit advised Plaintiff in a notice mailed once each year that he “owed substantially more money in child support arrears than he had been ordered to pay in the [Georgia Order].” [#51 at ¶ 57; #47-3 at 60-72].

On August 17, 2012, Mr. Laurienti accessed his Georgia DCSS account, which indicated that he owed $180.05, which he remitted. [Id.] When he attempted to log into his Georgia DCSS account the following month he learned that the account had been closed; and he was told during a subsequent trip to the Georgia DCSS office that his obligation had been satisfied. [Id. at ¶ 21].

Six months later, in March 2013, Mr. Laurienti learned from the Social Security Administration that his Social Security Income would be garnished at a rate of $500.00 a month, “to pay your obligation for child support.” [#51 at ¶ 23]. Plaintiff hired legal representation, who sent a cease and desist letter to the Social Security Administration, along with a copy of the Georgia Order. [Id. at ¶ 25]. In May 2013, Plaintiff received a copy of an order dated March 13, 2013, mailed to the Social Security Administration by Defendant Anderson on behalf of Mesa County Child Support Enforcement Unit, which had triggered the garnishment of his Social Security Income. [Id. at ¶ 26; #47-3 at 12]. Plaintiff’s counsel thereafter mailed an ante litem notice to certain Defendants and other parties located in Colorado, pursuant to the Georgia Tort Claims Act. [#51 at ¶ 27; #47-3 at 22].

On June 19, 2013, Denise Kampf, program manager for the Mesa County Department of Human Resources, wrote Plaintiff a letter, “in response to a Notice of Claim received by the Colorado State Department of Human Services stating you are overpaid in your child support obligation.” [#51 at ¶ 63; #47-3 at 75]. Ms. Kampf advised Plaintiff that, after reviewing the 2002 Administrative Review, she had determined that he still owed $357.74 in child support arrears, but explained that the balance would be waived, the income assignment affecting his social security benefits had been terminated, and all judgments with respect to the Colorado Order were satisfied. [Id.] The Social Security Administration notified Plaintiff by letter dated June 26, 2013, that the garnishment would cease. [#51 at ¶ 28; #47-3 at 25].

Plaintiff claims his social security income was unlawfully garnished for three months, resulting in a loss of $1, 500.00, which has not been refunded to date. [#51 at ¶ 29]. He further claims that he is entitled to $350, 000 in pain and suffering. [Id. at 32]. He also seeks punitive damages “based on the reprehensibility of the conduct of Defendants.” [Id.] Mr. Laurienti also seeks declaratory relief through issue of a final order showing that he has paid his child support obligation in full and owes nothing further to the State of Colorado or any other person or entity for child support. [Id. at 31]. Defendant Reggie Bicha is sued in his individual capacity as the Executive Director of the Colorado Department of Human Services. [#51 at 4]. Defendant Kathy Nesbitt is sued in her individual capacity as the Executive Director of the Colorado Department of Personnel and Administration. [Id. at 5]. Defendant Paulette St. James is sued in her individual capacity as the Director of the Department of Human Services’ Child Support Enforcement Division. [Id.] Defendant Anderson is sued in her individual capacity as a paralegal with the Mesa County Child Support Enforcement Unit. [Id. at 6].

The State Defendants filed their Motion to Dismiss on May 1, 2015. [#56]. Defendant Anderson filed her Motion to Dismiss on May 8, 2015. [#57]. Plaintiff filed a Response to the State Defendants’ Motion to Dismiss on May 22, 2015 [#58], and filed a Response to Defendant Anderson’s Motion to Dismiss on May 28, 2015. [#59]. On June 15, 2015, the State Defendants filed a Reply in support of their Motion to Dismiss [#65], and on June 17, 2015, Defendant Anderson filed a Reply in support her Motion to Dismiss [#66]. On June 8, 2015, Plaintiff filed a Notice of Voluntary Dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(a)(i) as to Mesa County. [#62]. Plaintiff’s Fourth Claim for Relief is directed solely at Mesa County [#51 at ¶¶ 67-72], and thus that claim is now moot.

STANDARD OF REVIEW

I. Fed.R.Civ.P. 12(b)(6)


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.