Smith et al v. Hutchinson et al
ORDER granting 106 , 113 motions; and granting 79 , 80 , 93 motions for summary judgment. Signed by Chief Judge D. P. Marshall Jr. on 7/16/2021. (jbh)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MARY LOUISE SMITH and
TIFFANY E. SMITH
ASHLEY HODGES, Individually as
school nurse at Carroll Smith
Elementary School, et al.
This civil rights case arises from Mary and Tiffany Smith's core
allegation that various school officials and police officers from Osceola,
Arkansas conspired to discriminate against them and remove their
foster children because the Smiths are black. The Smiths have sued
these state actors for violating their rights under the U.S. Constitution
and several federal statutes. They also bring several tort claims under
state law. The Court dismissed part of the Smiths' case last year,
Doc. 59. The defendants seek summary judgment on the remaining
claims. The deep issue is whether the various state actors are entitled
to qualified immunity for reporting, investigating, and arresting the
Smiths for suspected child abuse.
Some background facts are undisputed. Where there is some
dispute, the Court takes the record in the Smiths' favor. Oglesby v.
Lesan, 929 F.3d 526,532 (8th Cir. 2019). The Smiths' unopposed motion
for more time to respond on the merits, Doc. 106, and their unopposed
motion to amend their responding statement of facts, Doc. 113, are
In early 2016, the Smiths cared for six foster children. Two of
them, D.W. and J.M., attended Carroll Smith Elementary in Osceola.
The Smiths' difficulties began when assistant principal Dee Wallace
became concerned that D.W. and J.M. were not receiving their
Mary says she started administering the
medications herself, but didn't notify the school about her decision.
Assistant principal Wallace eventually reported Mary for neglect to the
Arkansas Child Abuse Hotline in March 2016. DHS found the March
2016 neglect report to be unsubstantiated.
A few weeks later, in early April 2016, school officials noticed
marks on D.W.' s legs. D.W. told school nurse Ashley Hodges that Mary
left the marks. Nurse Hodges photographed D.W.' s legs and filed a
report of suspected child abuse with the DHS hotline. Nurse Hodges
says DHS didn't respond. Later that week, D. W. was sent home from
school for disruptive behavior. When Tiffany arrived at the school for
D.W., several school officials heard her say that D.W. was going to get
it" when they got home.
Tiffany testified on deposition that she
punished D.W. with "three licks."
By the start of the next school week, school officials became
increasingly concerned when they noticed fresh marks on D.W.'s legs.
After taking more photographs, nurse Hodges filed a second report of
suspected child abuse. Nurse Hodges became concerned for D.W.'s
safety when DHS failed to respond to her second report.
contacted her husband, Terry Hodges, a lieutenant with the Osceola
Police Department. Detective Hodges reviewed the photographs and
opened an investigation.
Detective Hodges interviewed D.W at school. D.W. said that
Mary and Tiffany punished him with extension cords, and that Tiffany
used a cord to punish him when he was sent home early from school.
Detective Hodges also spoke with school resource officer Steve Weaver,
who had heard Tiffany's comment to D.W. Mary and Tiffany were later
arrested for second-degree battery.
Detective Hodges conducted separate custodial interviews with
Mary and Tiffany. Each signed a Miranda waiver and agreed to answer
questions. Mary said that she used a cord to discipline D.W., and
Tiffany acknowledged whipping D.W. with a cord when he was sent
home for disruptive behavior.
Mary· and Tiffany appeared before
Judge Betterton of the Mississippi County District Court. He found
probable cause to charge both Mary and Tiffany with second-degree
battery and ordered them to avoid contact with any child under the age
of eighteen. Mary and Tiffany were each charged with one count of
After Mary and Tiffany's court appearance, detective Hodges
received a call from Arkansas State Police child abuse investigator
Catherine Chlapecka. She said that J.M. appeared to have injuries
consistent with D.W.'s.
Investigator Chlapecka filed a report that
substantiated the abuse allegations against the Smiths.
A month later, based on investigator Chlapecka' s findings about
J.M., detective Hodges prepared two affidavits in support of Mary and
Tiffany being charged with an additional count of second-degree
battery. Based on the affidavits, Judge Betterton issued arrest warrants
and Mary and Tiffany were charged with that crime. He again ordered
Mary and Tiffany to avoid contact with any child under the age of
Mary was eventually added to the Arkansas Child
Maltreatment Registry. School officials received notice about the nocontact order and Mary's placement on the Registry.
More than a year later, Pamela Smith and Sandra Landry (school
officials at a different elementary school in Osceola) notified police after
they observed Mary enter the school and visit with her granddaughter
at lunch. Smith and Landry believed Mary was violating the no-contact
order. A warrant for Mary's arrest was issued a few days later.
Osceola patrol officer Sam Pollock went to the Smiths' home to
arrest Mary for violating the no-contact order. Mary opened the front
door and officer Pollock explained why she was under arrest. Officer
Pollock eventually contacted his supervisor, defendant Mikal
Gonzalez, for assistance. Sergeant Gonzalez and defendant Dakota
Dunkin (another Osceola patrol officer) promptly responded to the
Mary invited the officers inside but resisted their attempts to
arrest her. She was arrested, though, and booked for violating the nocontact order and resisting arrest.
Almost two years after nurse Hodges first reported Mary for
suspected abuse, D.W. recanted his allegations and all charges against
the Smiths were nolle prossed. In late 2019, Mary's name was removed
from the Registry.
The defendants are entitled to qualified immunity unless the
Smiths can show some violation of their clearly established
constitutional rights. Kuessner v. Wooten, 987 F.3d 752, 755 (8th Cir.
2021). Did the Osceola school officials and police officers have at least
arguable probable cause - an objectively reasonable belief that their
actions were necessary- to report, investigate, and arrest the Smiths for
child abuse? Bell v. Neukirch, 979 F.3d 594,607 (8th Cir. 2020).
The Court will consider the school defendants first. The Smiths
don't allege any personal involvement in the asserted constitutional
violations by Michael Cox, Alfred Hogan, or the John Does.
Smiths' allegations against these individuals therefore fail to state a
claim. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The Smiths' only
allegation about Tiffany Smithey is that she disciplined D. W. on some
unspecified date. Doc. 3 at 127. The Smiths' various allegations against
her also fail to state a claim. Iqbal, 556 U.S. at 676.
Defendant Wallace is entitled to qualified immunity for reporting
Mary about the issues with the children's medication. Mary admitted
that she stopped sending the medications to the school and didn't
notify the school that she was administering the medications herself. A
reasonable school official in assistant principal Wallace's position could
have believed that the children weren't receiving their prescribed
medication. Bell, 979 F.3d at 607.
Nurse Hodges is entitled to qualified immunity for reporting
Mary to the abuse hotline. She observed fresh lacerations on D.W.'s
legs on two different occasions. D.W. told her that Mary left the marks.
In the circumstances, it was reasonable to report the incident to the
abuse hotline. And after DHS failed to respond, it was reasonable to
contact the police. Bell, 979 F.3d at 607.
Finally, Landry and Smith are entitled to qualified immunity for
reporting Mary for allegedly violating the no-contact orders. There's
no evidence to support the Smiths' argument that these school officials
knew, when Mary entered the school, that the no-contact orders had
been lifted. Landry and Smith acted reasonably when they notified
police. Bell, 979 F.3d at 607.
Next, the Osceola police officers. Detective Hodges had at least
arguable probable cause to think D.W. and J.M. were being abused. He
reviewed the photographs of D.W.'s injuries taken by his wife; Mary
and Tiffany each admitted that they used extension cords to discipline
D.W.; and investigator Chlapecka concluded that J.M.'s injuries were
consistent with D.W.'s.
Based on these facts, detective Hodges
prepared affidavits in support of Mary and Tiffany being charged with
two counts of second-degree battery. There's no evidence that his
affidavits included false information or omitted anything that would
be critical to the finding of probable cause. United States v. Gladney, 48
F .3d 309, 314 (8th Cir. 1995). Detective Hodges is therefore entitled to
qualified immunity. Garcia v. City of New Hope, 984 F.3d 655, 670 (8th
Sergeant Gonzalez and officer Dunkin are entitled to qualified
immunity for arresting Mary at her home. There's no evidence that
these officers had any role in the previous child abuse investigation.
School official Sandra Landry signed an affidavit stating that she
observed Mary at North Elementary. There's no evidence that these
officers knew the no.:.contact orders were not in effect. They had at least
arguable probable cause to arrest Mary for violating the orders. And
the undisputed facts show that Mary resisted the officers' numerous
attempts to arrest her.
They are therefore entitled to qualified
immunity. Garcia, 984 F.3d at 670.
There are some remaining claims. The Osceola school officials
and police officers had at least arguable probable cause to suspect that
the Smiths were abusing two of their foster children. That foundation
eliminates the other federal civil rights claims as a matter of law. Riddle
v. Riepe, 866 F.3d 943, 948-49 (8th Cir. 2017). That leaves the many state
law claims, over which the Court declines to exercise supplemental
jurisdiction. 28 U.S.C. § 1367(c)(3); Streambend Properties II, LLC v. Ivy
Tower Minneapolis, LLC, 781 F.3d 1003, 1016-17 (8th Cir. 2015).
* * *
The Smiths' motions, Doc. 106 & 113, are granted. Defendants'
motions for summary judgment, Doc. 79, 80 & 93, are granted.
D.P. Marshall Jr.
United States District Judge
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