Date: 10-22-2024

Case Style:

Kerry Ross v. Morgan Polky, et al.

Case Number: 2:24-CV-57

Judge: Lance E. Walker

Court: United States District Court for the District of Maine (Cumberland County)

Plaintiff's Attorney:

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Defendant's Attorney: Jason Anton

Description:

Portland, Maine civil rights lawyer represented the Plaintiff who claimed that his constitutional rights were violated as result of being sexually assaulted and harassed by Morgan Polky who was serving as his case works in a parental reunification context.

Plaintiff Kerry Ross is a parent. In December 2017, Ross's children were taken into protective custody. The children were assigned a guardian ad litem and Ross began the reunification process. Pl.'s Compl. ¶¶ 5-6. Defendant Morgan Polky was a DHHS social worker and the caseworker assigned to Ross's family. Id. ¶¶ 13-14. Defendant Tracy Clark was a DHHS employee and was Polky's supervisor.

Twice during Polky's oversight of Ross's case, the guardian ad litem emailed Polky and her supervisor requesting documentation on Ross's progress toward reunification. Id. ¶¶ 49, 125. In 2017, DHHS's policy required caseworkers to log their contact with their assigned families into the narrative log of the Maine Automated Child Welfare Information System (“MACWIS”). Id. ¶ 15. DHHS policy also required the caseworkers' supervisors to enter changes in the parents' visitation schedule into the narrative log. Id. ¶ 37.

As alleged, over the course of three months, Polky and Ross contacted each other via text, calls, and in-person meetings. Most of these contacts were not recorded in MACWIS. Certain changes to the visitation schedule were also not recorded in MACWIS. Id. ¶¶ 38, 59. Some interactions between Ross and Polky were benign, such as coordinating transportation for Ross. See, e.g., id. ¶¶ 50-53. Other instances included exchanging sexually explicit photos and, in one instance, having intercourse in Polky's government car. Id. ¶¶ 222-23, 299-301. Ross states that he participated in these acts only due to his fear of Polky's power over the reunification process. Id. ¶ 302.

In his Complaint, Ross asserts claims against Polky under the Maine Tort Claims Act (“MTCA”) and 42 U.S.C. § 1983 alleging battery, assault, and deprivation of constitutional rights. Id. ¶¶ 310-36. Ross also brings the 42 U.S.C. § 1983 claim but not the MTCA claim[1] against Clark and DHHS, asserting that Clark's failure to investigate the guardian ad litem's documentation concerns, update the MACWIS, and “adequately train, supervise or control” Polky, allowed Ross's harassment and assaults to occur.

D

Outcome: Defendants Clark and DHHS sought dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction on sovereign immunity and qualified immunity grounds and 12(b)(6) for failure to state a claim upon which relief can be granted.

Motion granted.

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