Moreno v. Porter et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
JENNIFER YSUIZA MORENO,
Plaintiff,
v. CIVIL ACTION NO.
3:25-CV-00991-KDB-DCK
UNION COUNTY AND TIFFANY
PORTER,
Defendants.
JENNIFER YSUIZA MORENO,
Plaintiff,
v. CIVIL ACTION NO.
3:25-CV-01028-KDB-DCK
ASHLEY LANTZ, TIARA
OWENS, KEVIN ALEXANDER,
ROCIO AVILA RAMIREZ,
UNION COUNTY, AND MARY
LIANTONIO,
Defendants.
MEMORANDUM AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motions to Proceed In Forma Pauperis
(“IFP”) in these two actions (Doc. No. 2 in both).1 The Court has carefully considered these
motions and Plaintiff’s sworn Applications, which detail her financial circumstances. Based on
that examination, the Court finds that Plaintiff’s reasonable expected expenses exceed her expected
income, and she does not otherwise have sufficient assets with which to pay the filing fees.
1 Although filed separately, these actions arise from the same general circumstances, so it is
appropriate and most efficient to consider them together.
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Accordingly, the Court will GRANT the Motion for the limited purpose of conducting an initial
review but DISMISS Plaintiff’s Complaints without prejudice after conducting that review.
I. Plaintiff’s Motion to Proceed IFP
“The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C.
§ 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (quoting Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331, 342–43 (1948)). To achieve its goal, the IFP statute “allows a litigant to commence
a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit
stating … that he is unable to pay the costs of a lawsuit.” Id. In her IFP motion, Plaintiff states that
she has “chronic health issues” that prevent her from working a “typical 9-5 job.” Docs. No. 2 at
5. Plaintiff further explains that her husband has lost his source of income, on which Plaintiff
primarily lives and that she does not otherwise have assets that would allow her to pay for these
proceedings. See Docs. No. 2. Based on these representations, the Court will conditionally grant
the motion and permit Plaintiff to proceed IFP solely for the limited purposes of this initial review.
II. Initial Review
Because Plaintiff is proceeding IFP, the Court must review the Complaint to determine
whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or] fails to state
a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). In its frivolity review, this Court
must determine whether the Complaint raises an indisputably meritless legal theory or is founded
upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke, 490
U.S. at 327–28. Furthermore, a pro se complaint must be construed liberally. Haines v. Kerner,
404 U.S. 519, 520 (1972). However, the liberal construction requirement will not permit a district
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court to ignore a clear failure to allege facts in the Complaint which set forth a claim that is
cognizable under federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
In these actions, pro se Plaintiff Jennifer Ysuiza Moreno alleges that following the
discovery of an inappropriate photo or video (which led to her husband’s arrest), employees of the
Union County Department of Social Services (“DSS”) initiated and mishandled an investigation
into whether her eleven-year-old daughter (“minor child”) had been sexually abused by her
husband. See 3:25-cv-991 (“991”) and 3:25-cv-1028 (“1028”), Docs. No. 1. According to Moreno,
the alleged improper conduct included: a DSS attorney attending the husband’s bond hearing and
sitting in the restricted counsel section (991, Doc. No. 1 ¶¶ 17–20); the subsequent use of
information learned during that hearing at a later DSS proceeding involving her children (991,
Doc. No. 1 ¶¶ 29–33); DSS social workers investigating the alleged abuse without contacting her,
mischaracterizing her statements when seeking to place the minor child in DSS custody, and
ultimately removing the child from her care (1028, Doc. No. 1 ¶¶ 15–22, 33–45); and authorizing
an intrusive sexual assault examination of the minor child without her consent (1028, Doc. No. 1
¶¶ 23–32). Moreno contends that these actions violated her parental rights and her First, Fourth,
and Fourteenth Amendment rights. She also brings a Monell claim against Union County, and
supervisory liability claims against Defendants Liantonio and Alexander.
Section 1983 provides a cause of action to “a party who has been deprived of a federal right
under the color of state law.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 707 (1999). To state a § 1983 claim, a plaintiff must allege both a “violation of a right secured
by the Constitution and laws of the United States” and that the “deprivation was committed by a
person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted).
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§ 1983 Claims Against Defendant Porter
Moreno first alleges that Defendant Porter retaliated against her in violation of the First
Amendment by using information she learned at her husband’s bond hearing—including what
Moreno characterizes as “private” marital communications read aloud in open court—during a
later DSS hearing. A plaintiff asserting a First Amendment retaliation claim must plausibly allege:
(1) engagement in a protected First Amendment activity; (2) adverse action by the defendant that
would deter a person of ordinary firmness from exercising their First Amendment rights; and (3)
a causal connection between her protected activity and the defendants’ adverse action. Constantine
v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (citing Suarez
Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir.2000)).
Moreno’s theory is that DSS retaliated against her because she continued communicating
with her husband while he was suspected of child sexual abuse. But while the Constitution may
protect the contents of certain marital communications, the mere fact that the spouses
communicated is not itself a protected activity. And marital communications lawfully disclosed to
third parties—such as those read aloud during a public bond hearing—are not confidential and
therefore not privileged. DR Distributors, LLC v. 21 Century Smoking, Inc, 616 F. Supp. 3d 769,
786 (N.D. Ill. 2022) (citation omitted). Accordingly, Moreno has not alleged a viable First
Amendment claim for retaliation.
Moreno next alleges that Defendant Porter’s use of the same information violated her
substantive due process rights. To state such a claim, a plaintiff must show: (1) the existence of a
protected property interest; (2) a deprivation of that interest by the State; and (3) governmental
conduct that “falls so far beyond the outer limits of legitimate governmental action that no process
could cure the deficiency.” Baldwin v. Fletcher, No. 5:23-CV-00197-KDB-DCK, 2024 WL
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4942397, at *7 (W.D.N.C. Dec. 2, 2024), aff’d, No. 24-2210, 2025 WL 2437837 (4th Cir. Aug.
25, 2025), cert. denied, No. 25-6029, 2025 WL 3507092 (U.S. Dec. 8, 2025) (quoting MLC Auto.,
LLC v. Town of S. Pines, 532 F.3d 269, 281 (4th Cir. 2008)). In other words, Moreno must
demonstrate conduct that is “so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” Id. (quoting Dean ex rel. Harkness v. McKinney, 976 F.3d 407, 413
(4th Cir. 2020)). Conduct shocks the conscience only when it lacks “any reasonable justification
in the service of a legitimate governmental objective.” Id. (quoting Washington v. Hous. Auth. of
the City of Columbia, 58 F.4th 170, 177 (4th Cir. 2023)).
Moreno offers only conclusory assertions that this demanding standard is met. However,
her allegations really amount to a disagreement with DSS’s consideration of information disclosed
in open court and her continued communication with her husband. These allegations do not set
forth any specific facts that plausibly shock the conscience. Moreno’s due process claim against
Defendant Porter therefore fails initial review.
First Amendment Retaliation Claim against DSS Defendants
As with Defendant Porter, Moreno alleges that Defendants Lantz, Owens, Ramirez,
Liantonio, and Alexander (the “DSS Defendants”) retaliated against her by impeding a
reunification plan after she continued communicating with her husband, particularly following his
motion for a bond reduction. But, as already explained, the mere act of communicating with one’s
spouse does not constitute protected activity. Therefore, Moreno has not alleged a viable retaliation
claim against the DSS Defendants.
Fourth and Fourteenth Amendment and Parental Rights Claims Against DSS Defendants
Moreno next alleges that the DSS Defendants unlawfully seized her children by removing
them from her care without exigent circumstances or probable cause during an investigation into
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potential child sex abuse involving one of the minor children. She further alleges that the DSS
Defendants violated her due process rights by interviewing and removing the children without her
consent or an opportunity to be heard, and that her parental rights were violated when DSS
authorized a sexual assault examination of the minor child without her consent.
Although the integrity of the family unit is a “fundamental precept firmly ensconced in the
Constitution and shielded by Due Process,” it is “neither absolute nor unqualified.” Martin v. Saint
Mary’s Dep’t Soc. Servs., 346 F.3d 502, 506 (4th Cir. 2003) (quoting Hodge v. Jones, 31 F.3d 157,
163 (4th Cir. 1994)). Indeed, the State retains a “legitimate interest in protecting children from
abuse and neglect” and in investigating circumstances suggesting such harm. Id. (citing Renn v.
Garrison, 100 F.3d 344, 349–50 (4th Cir. 1996)).
Here, Moreno’s allegations do not plausibly show that the DSS Defendants acted
improperly. Moreno acknowledges that DSS petitioned the state court for authorization to remove
the children before doing so. See 1028, Doc. No. 1 ¶¶ 19–21. Even accepting her assertion that the
petition contained omissions or misstatements, those allegations do not negate the underlying facts
prompting DSS’s intervention; that is, the State’s interest in protecting a child while allegations of
sexual abuse by a parental figure are investigated.2 Moreno therefore fails to allege a viable
parental rights, Fourth, or Fourteenth Amendment claim against DSS Defendants. Because
Moreno’s § 1983 claims fail, her supervisor liability and Monell claims necessarily fail as well.
2 Such an investigation could reasonably include a sexual assault exam on the alleged minor
victim in its custody.
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III. ORDER
NOW THEREFORE IT IS ORDERED THAT:
1. Plaintiff’s IFP Motions (Docs. No. 2) are GRANTED;
2. Plaintiff’s Complaints (Docs. No. 1) are DISMISSED without prejudice; and
3. The Clerk is directed to close this matter in accordance with this Order.
SO ORDERED ADJUDGED AND DECREED.
Signed: January 9, 2026
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