Finnegan et al v. Myers et al
Filing
315
OPINION AND ORDER: DENYING 200 MOTION for Summary Judgment by Defendants Reba James, Regina McAninch, Jennifer McDonald, Laurel Myers, James Payne, Tracy Salyers and DENYING 248 Motion to Strike Plaintiffs' Inadmissible Evidence by Reba James, Regina McAninch, Jennifer McDonald, Laurel Myers, James Payne, Tracy Salyers. Signed by Judge Rudy Lozano on 9/8/2015. (lhc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROMAN FINNEGAN, et al.,
Plaintiffs,
vs.
LAUREL MYERS, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
NO. 3:08-CV-503
OPINION AND ORDER
This matter is before the Court on the Motion for Summary
Judgment, filed by Defendants Laurel Myers, Regina McAninch, Tracy
Salyers,
Reba
James,
James
Payne,
and
Jennifer
McDonald
(collectively, the “State Defendants”) on October 6, 2014 (DE #200)
and the Motion to Strike Plaintiffs’ Inadmissible Evidence, filed
by the State Defendants on November 7, 2014 (DE #248).
For the
reasons set forth below, both motions are DENIED.
BACKGROUND
Plaintiffs, Roman Finnegan, Lynnette Finnegan, Jonathon Abair,
Tabitha Abair, and Katelynn Salyer (collectively, “Plaintiffs”),
have sued several defendants in this case, including the following
State Defendants: Laurel Myers, the Director of the Pulaski County
Department of Child Services (“DCS”) during the period in question
(“Defendant
Myers”),
Regina
McAninch,
an
investigator
and
caseworker for DCS (“Defendant McAninch”), Tracy Salyers, a family
case manager for DCS (“Defendant Salyers”), Reba James, a regional
manager for the Department of Child Services (“Defendant James”),
James Payne, former director of the Department of Child Services
(“Defendant Payne”), and Jennifer McDonald, an Indiana State Police
detective (“Defendant McDonald”).
The State Defendants have filed
the current motions, ultimately arguing that Plaintiffs have failed
to establish any of the claims against them. Plaintiffs respond by
stating that evidence exists, when viewed in the light most
favorable to them, that support their claims and preclude summary
judgment.
DISCUSSION
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every
dispute
between
the
parties
makes
summary
Not
judgment
inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
Id.
In determining whether
summary judgment is appropriate, the deciding court must construe
2
all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor
toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”
Fitzgerald
v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).
If the nonmoving party fails to
establish the existence of an essential element on which he or she
bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Preliminary Evidentiary Issues
The State Defendants have filed a motion to strike various
documents that Plaintiffs rely on to oppose the various Defendants’
motions for summary judgment.
Specifically, the State Defendants
take issue with: (1) the January 28, 2010, opinion and order of
Pulaski Circuit Court Special Judge Patrick Blankenship (“Judge
Blankenship”)
(DE
#130-2);
(2)
Plaintiffs’
Exhibit
26,
which
contains documents from the stipulated agency record (DE #224-26,
3
pp. 1-243); and (3) Plaintiffs’ Exhibit 30, which consists of
handwritten notes (DE #224-30, pp. 1-2).
On a motion for summary judgment, “[a] party may object that
the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.”
56(c)(2) (emphasis added).
Fed. R. Civ. P.
“In other words, the Court must
determine whether the material can be presented in a form that
would
be
admissible
at
trial,
admissible in its present form.”
not
whether
the
material
is
Stevens v. Interactive Fin.
Advisors, Inc., 2015 WL 791384, *2 (N.D. Ill. Feb. 24, 2015); see
also Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014) (“We note
that the Federal Rules of Civil Procedure allow parties to oppose
summary judgment with materials that would be inadmissible at trial
so long as facts therein could later be presented in an admissible
form.”) (emphasis in original).
It is the function of the Court, with or without a motion to
strike, to carefully review the evidence and to eliminate from
consideration any argument, conclusions, and assertions unsupported
by the documented evidence of record offered in support of the
statement.
See, e.g., S.E.C. v. KPMG LLP, 412 F.Supp.2d 349, 392
(S.D.N.Y. 2006); Sullivan v. Henry Smid Plumbing & Heating Co.,
Inc., No. 04 C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D.
Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., No. 03 C 2249,
2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v.
4
Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004).
strike
are
heavily
disfavored,
and
usually
only
Motions to
granted
in
circumstances where the contested evidence causes prejudice to the
moving party.
Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695 (N.D.
Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303, 2007 WL
2228594, at *1 (N.D. Ind. July 30, 2007).
Judge Blankenship’s Decision
The State Defendants assert that Judge Blankenship’s January
28, 2010, decision (DE #130-2) contains inadmissible hearsay and
should be stricken as substantive evidence.
Plaintiffs, on the
other hand, argue that the decision is a proper subject of judicial
notice and does not run afoul of the hearsay rules.
In this Court’s previous opinion, judicial notice was taken of
Judge Blankenship’s decision. (DE #152, pp. 7-8.) Citing to Opoka
v. I.N.S., 94 F.3d 392, 394 (7th Cir. 1996), this Court noted that
it is a well-settled principle under Seventh Circuit law that the
decision of another court or agency is a proper subject of judicial
notice.
(Id. at 8.)
Opoka makes it clear that:
[t]his court, however, has the power, in fact
the obligation, to take judicial notice of the
relevant
decisions
of
courts
and
administrative agencies, whether made before
or
after
the
decision
under
review.
Determinations to be judicially noticed
include proceedings in other courts, both
within and outside of the federal judicial
system, if the proceedings have a direct
relation to matters at issue.
5
Opoka, 94 F.3d at 349; see also Fed. R. Evid. 201(b)(2) (b) (“The
court
may
judicially
notice
a
fact
that
is
not
subject
to
reasonable dispute because it . . . can be accurately and readily
determined
from
sources
whose
accuracy
cannot
reasonably
be
questioned.”).
Here, it is clear that Judge Blankenship’s decision involved
proceedings that have a direct relation to the matters at issue, so
it
is
proper
to
judicially
notice
the
determination of the substantiation appeal.
ultimate
judicial
In this case, it is
also undisputed that Judge Blankenship relied on a stipulated
agency record of more than 8,000 pages as the basis of his findings
of fact to support his conclusions of law.
53.)
(See DE #130-2, pp. 10-
The stipulation itself (a document not challenged by the
State Defendants) states that the parties jointly prepared a list
of documents which formed the stipulated agency record and that
they “submitt[ed] all documents listed to the Court as joint
documents” to create the “exclusive evidence upon which the Court
may base its decision.”
(DE #224-25, p. 1.)
Judge Blankenship
notes the following in the initial paragraphs of his decision:
2. In addressing the December 5, 2005
substantiation, the Finnegans offer findings
by Jessica’s family doctor and cardiologist
that Jessica was doing well during the period
of alleged neglect and medical records
confirming approximately 15 appointments and
prescription refills during this period. In
addressing the March 2007 substantiations, the
Finnegans provide the Coroner’s Verdict and
medical reports finding that Jessica died from
6
prescription errors by her family doctor
combined with her congenital heart condition
and
seizure
disorder,
with
internal
hemorrhages caused by warafin and all skull
fractures created at the first autopsy.
3.
DCS states that it is not contesting this
medical evidence.
Respondents’ Brief in
Opposition to Petition for Judicial Review
(DCS Brief) at 28.
(DE
#130-2,
pp.
2-3)
(emphasis
added).
While
the
Court
acknowledges that the procedural posture of the state proceedings
is clearly distinct from this federal action, it is notable that
the
foregoing
is
unique
and
makes
it
less
likely
that
the
stipulated facts are subject to reasonable dispute because they can
readily determined from a source whose accuracy cannot reasonably
be questioned.
See Fed. R. Evid. 201(b)(2) (b).
In any event, at
least for purposes of summary judgment, it is clear that this Court
may consider Judge Blankenship’s decision in determining whether
there are disputed questions of fact requiring trial.
Furthermore, even assuming arguendo that Judge Blankenship’s
decision
may
not
be
used
as
substantive
evidence,
it
may
undoubtedly be used for other purposes at this stage; the State
Defendants’ request to strike the decision in its entirety is
overly broad.
For example, as Plaintiffs correctly point out, the
decision
be
may
used
to
show
the
procedural
history
of
the
underlying proceedings and to show what evidence was (or was not)
provided by the parties during those proceedings. As is its normal
practice, this Court has sifted through the voluminous evidence and
7
has considered it under the applicable federal rules, giving each
piece the credit to which it is due.
The Court has also kept in
mind that hearsay is defined as out-of-court statements “offer[ed]
in evidence to prove the truth of the matter asserted in the
statement.”
Fed. R. Evid. 801(c); United States v. Rettenberger,
344 F.3d 702, 707 (7th Cir. 2003). Evidence presented for purposes
other than to prove the truth of the matter asserted is not hearsay
and has not been treated as such.
Accordingly, the motion to
strike Judge Blankenship’s decision is DENIED.
Exhibit 26
The State Defendants also argue that Exhibit 26 (DE #224-26)
should be stricken in its entirety because it contains inadmissible
hearsay.
The Plaintiffs disagree and assert that the information
is being offered “to show the information that was available to,
and received by, the State Defendants during their investigation
regarding Jessica’s death, not for the truth of the underlying
statements.”
They contend that:
[t]he fact that the State Defendants possessed
these documents is directly relevant to the
issue of whether the State Defendants behaved
recklessly, a key issue in this case.
The
relevance does not depend on whether the
underlying statements in the documents are
true but on the fact that the Defendants were
provided this information when they engaged in
the alleged course of misconduct.
(DE #264, p. 9.)
For much of the same reasons listed above, the
8
Court agrees with Plaintiffs that Exhibit 26 need not be stricken.
Again, not only is the State Defendants’ request overly broad, it
is unnecessary; the Court is capable of considering the evidence
under the applicable federal rules and giving it the weight it
deems appropriate.
As far as authentication is concerned, the Federal Rules of
Evidence provide simply that, “the proponent must produce evidence
sufficient to support a finding that the item is what the proponent
claims it is.”
Fed. R. Evid. 901(a).
Rule 901 provides several
examples of proper authentication methods, including testimony of
a witness with knowledge, expert or trier of fact comparisons,
distinctive characteristics, and evidence about public records; the
Rules acknowledge that the list is not complete.
901(b).
“Rule
genuineness
901
and
requires
leaves
it
only
to
the
a
prima
jury
to
Fed. R. Evid.
facie
showing
decide
authenticity and probative value of the evidence.”
the
of
true
United States
v. Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997). Additionally, Rule
902 notes that certain evidence, including but not limited to
certified
newspapers
copies
and
of
public
periodicals,
records,
official
commercial
paper,
publications,
and
certified
domestic records of a regularly conducted activity, is selfauthenticating and requires no extrinsic evidence of authenticity
in order to be admitted.
Fed. R. Evid. 902.
The Seventh Circuit has noted that “[a]uthentication relates
9
only to whether the documents originated from [their purported
source]; it is not synonymous to vouching for the accuracy of the
information contained in those records,” and the “very act of
production [i]s implicit authentication.”
688
F.2d
1112,
1116
(7th
Cir.
1982);
United States v. Brown,
see
also
Kasten
v.
Saint–Gobain Performance Plastics Corp., 556 F.Supp.2d 941, 948
(W.D. Wis. 2008) (rejecting authenticity challenge at summary
judgment
as
disingenuous
where
the
challenged
e-mails
“were
documents produced by defendant during discovery”); Fenje v. Feld,
301 F.Supp.2d 781, 809 (N.D. Ill. 2003) (“[d]ocuments produced by
an opponent during discovery may be treated as authentic.”); In re
Greenwood Air Crash, 924 F.Supp. 1511, 1514 (S.D. Ind. 1995)
(“Production of a document by a party constitutes an implicit
authentication of that document.”). As to emails specifically, the
Seventh Circuit has acknowledged that they may be authenticated via
circumstantial evidence such as viewing the content of the email in
light of the factual background of the rest of the case and
identifying the sender and/or recipient by unique email address.
United States v. Fluker, 698 F.3d 988, 999-1000 (7th Cir. 2012);
see also Fenje, 301 F.Supp.2d at 809 (“E-mail communications may be
authenticated as being from the purported author based on an
affidavit of the recipient; the e-mail address from which it
originated; comparison of the content to other evidence; and/or
statements
or
other
communications
10
from
the
purported
author
acknowledging
the
e-mail
communication
that
is
being
authenticated.”).
The State Defendants do not argue that any of the documents
are not what they purport to be or that they cannot be presented in
a form that would be admissible at evidence.
Based on the rules
outlined above and the fact that the evidence was stipulated to by
the parties for purposes of state court review (see also DE #264-1;
DE #264-3), a prima facie showing of genuineness has been made; the
Court will leave it to the trier of fact to determine the true
probative value of the evidence during trial.
See Olson, 750 F.3d
at 714 (“We note that the Federal Rules of Civil Procedure allow
parties to oppose summary judgment with materials that would be
inadmissible at trial so long as facts therein could later be
presented
in
an
admissible
form.”)
(emphasis
in
original).
Accordingly, the motion to strike Exhibit 26 is DENIED.
Exhibit 30
Finally, the State Defendants argue that Exhibit 30 (DE #22430) is a copy of handwritten notes that contains inadmissible
hearsay and should be stricken.
Plaintiffs respond by asserting
that the notes (handwritten by John E. Cavanaugh, M.D. during a
conference call prior to the second autopsy – see DE #169-2, p. 40)
are not being offered to prove their truth (that an exhumation was
not
necessary)
but
instead
are
11
being
used
to
show
that
the
statement was made to Defendant McDonald, who subsequently informed
the court that there was indeed a need for an exhumation.
The
Court agrees with Plaintiffs that, pursuant to this use, the notes
are not inadmissible hearsay.
Accordingly, the motion to strike
Exhibit 30 is DENIED.
Facts
The basic background facts of this case are largely undisputed
and have been set forth in numerous previous Court orders.
The
Court will set forth the background facts briefly in this section
for contextual purposes but will focus on any relevant factual
disputes below.
Before her death at age fourteen, Jessica Salyer (“Jessica”)
lived with her mother and step-father, Roman and Lynnette Finnegan
(the “Finnegans” and/or “Roman and Lynnette”), in Pulaski County,
Indiana.
Jessica was born with a congenital heart condition that
required multiple surgeries, concluding in a 1996 surgery (the
Fontan procedure), which left her with a two-chambered, rather than
a four-chambered heart.
Even with good care, the mortality rate
for Fontan patients is high.
Jessica also had a fourth generation
seizure disorder, for which she took 3 medications: warfarin,
digoxin
and
phenytoin
(brand
name
Dilantin).
Warfarin
in
particular is a high risk drug as it can result in bleeding,
bruising, and is linked to a risk of brain hemorrhage.
12
In September of 2005, shortly after Jessica started the eighth
grade, the school nurse at West Central Middle School filed a
complaint with DCS concerning Jessica’s medical care.
that
complaint,
Defendant
McAninch
called
the
Based on
Finnegans
on
September 6, 2005, to discuss the need to schedule a follow up
appointment with Jessica’s pediatric cardiologist, Dr. Hurwitz, and
to provide additional information about Jessica’s medical care;
during that call, Defendant McAninch directed the Finnegans to
attend a hearing on September 9, 2005, at DCS. Roman Finnegan sent
a letter of complaint to his state legislator concerning Defendant
McAninch’s conduct and sensitivity during the phone call.
The
state legislator forwarded the letter to the Governor’s Office,
which in turn sent the letter to Defendant Payne for a response.
The letter was then referred to Defendant Myers for review and
resolution.
The Finnegans attended the DCS meting, provided proof of
insurance, and reached an agreement about Jessica’s care.
At a
September 15, 2005, doctor’s appointment, Dr. Hurwitz examined
Jessica and assured the Finnegans that she was doing well.
On October 11, 2005, a second complaint was submitted to DCS
regarding a claim that the Finnegan household did not have enough
food for the children.
DCS investigated and found the report of
neglect to be unsubstantiated.
Later that same month, the Finnegans took Jessica to the
13
family doctor, and at this appointment, Jessica’s doctor, Dr.
Bartush, accidentally increased her dosage of warfarin from 3 mg to
7 mg and eliminated her Dilantin, placing her at risk of death from
internal bleeding and/or seizure.
Jessica had vaccinations on December 5, 2005.
That same day,
DCS substantiated medical neglect, stating that the Finnegans would
not have obtained appropriate medical care for Jessica without DCS
intervention.
DCS provided a copy of the substantiated medical
neglect to the school, but the Finnegans claim that they did not
receive a copy of the December 2005 substantiation of medical
neglect until April of 2007.
From December 7-18, 2005, Jessica had symptoms including a
stomachache, headache, congestion, and tongue pain, and she was
taken to Dr. Bartush who diagnosed the flu and thrush. On December
20, 2005, Lynnette found Jessica lying face down by the side of her
bed.
Roman began performing CPR while Lynnette called 911;
however, the attempts at CPR were unsuccessful, and Jessica died.
Immediately
personnel,
law
following
enforcement
her
death,
personnel,
the
and
emergency
initial
medical
hospital
investigators found Jessica’s death was related to a fall, her
heart condition, and warfarin, with no signs of abuse or neglect
reported.
At the hospital, R. Gordon Klockow, D.D.S., the Jasper
County Coroner (the “Coroner” or “Dr. Klockow”), and Dr. Ahler (the
emergency room doctor and former Jasper County Coroner), also did
14
not report any signs of abuse or neglect.
Defendant McAninch and Mike Bardsley of the prosecutor’s
office subsequently interviewed Jessica’s siblings (Johnathon Abair
(“Jonathon”), age 17, Tabitha Abair (“Tabitha”), age 16, and
Katelynn Salyer (“Katelynn”), age 9) and questioned them for
approximately six hours.
DCS also questioned the Finnegans.
After being retained by the Coroner, John E. Cavanaugh, M.D.,
a forensic pathologist working in Lake County, Indiana (“Dr.
Cavanaugh”), conducted an autopsy on December 21, 2005. During the
autopsy, it was Dr. Cavanaugh’s own impression that he caused a
skull fracture when he opened the skull because he heard a classic
“pop.”
In
his
handwritten
Preliminary
Report
of
Postmortem
Examination, Dr. Cavanaugh attributed Jessica’s death to a subdural
hemorrhage due to blunt force trauma of the head consistent with a
fall
complicated
undetermined.
by
warfarin,
with
the
manner
of
death
Dr. Cavanaugh did not mention the basal skull
fracture as a listed finding on the front page of his preliminary
report. However, the right anterior basal skull fracture was noted
(without explanation of his previous impression that it was an
artifact of the autopsy) in his Report of Autopsy dated May 24,
2006.
The
injuries.
May
report
states
that
there
were
no
postmortem
It indicates that Dr. Cavanaugh had recovered tissue
samples for histology and microscopic examination; however the
samples were not prepared for examination at that time. DCS
15
received a copy of the May report in June of 2006.
Following the release of the May 24, 2006, autopsy report,
Defendant McAninch and Defendant Myers continued investigating the
Finnegans because they believed her death may have been the result
of homicide.
In October of 2006, DCS retained Antoinette Laskey,
a pediatrician who was employed at Riley Hospital for Children and
also served on the State Child Fatality Review Team (“Dr. Laskey”),
in order to obtain her opinion on the matter.
Email records
indicate that Dr. Laskey communicated with Defendant McAninch
regarding the case prior to issuing a final report on the matter.
On October 23-24, 2006, Dr. Laskey emailed Defendant McAninch to
let her know that it was her belief that Jessica’s injuries were
“NOT consistent with a simple fall from a short surface” and that
her report would conclude that Jessica’s medical condition “did NOT
contribute to her death and that the death is consistent with a
homicide.”
Defendant McAninch responded with, “[t]hank heaven
someone other than the local Director and FCM agree that this child
died from physical abuse.”
To which Dr. Laskey replied:
EVEN IF this child fell our of bed and IF she
in fact had easier bleeding due to her meds,
there IS NO WAY she would have sustained these
injuries from a fall.
In fact, I am
contacting Dr. Cavanaugh to find our why he
isn’t calling it a homicide. This is NOT an
ambiguous case.
On October 28, 2006, Dr. Laskey authored a report stating that
Jessica died from a fatal beating on the day of her death, which
16
caused lethal trauma.
Dr. Laskey noted that Jessica’s injuries
were severe, out of proportion to “falling out of bed” or other
routine household events or accidents, and that the manner of death
was consistent with a homicide. Dr. Laskey concluded her report by
stating that, “it is my expert medical opinion that this child
sustained a fatal beating on the day that she died and that this
beating was the direct cause of her death.”
received by DCS on October 31, 2006.
The report was
DCS seized Tabitha and
Katelynn on November 1, 2006, and they were subsequently placed
into foster care.
ongoing
case
Defendant Salyers was assigned to be the girls’
manager
to
supervise
their
care
and
treatment.
Defendant McDonald was assigned to investigate the circumstances
surrounding Jessica’s death.
On November 2, 2006, Dr. Cavanaugh faxed a letter to DCS that
summarized his May 2006 autopsy report and stated that the “primary
cause of death was blunt force injury of the head, with a basal
skull fracture, intracranial hemorrhage, and cerebral edema.”
The
letter went on to explain that the extent of Jessica’s injuries was
“inconsistent with a simple fall of approximately 2 feet from a
bed, especially since the apparent primary impact is on the top or
crown of the head causing a basal skill fracture . . . .”
Dr.
Cavanaugh acknowledged that while warfarin would have “exacerbated
the extent of the hemorrhage, it would not have been causative nor
would it account for the skull fracture.”
17
The letter makes no
mention that the basal skull fracture was a suspected autopsy
artifact. Dr. Cavanaugh concluded by stating, “due to the apparent
lack of competent explanation for these injuries, the manner of
death is undetermined.”
In the meantime, with the assistance of other doctors, the
Finnegans had discovered the warfarin prescription error, which had
accidentally increased Jessica’s warfarin dose from 3 mg to 7 (5 +
2) mg daily and eliminated her seizure medication. On December 13,
2006,
David
Geisler,
the
Finnegans’
counsel,
provided
those
pharmacy records to DCS. The pharmacy records called into question
Dr. Laskey’s conclusions, which were based on her belief that
although Jessica “did not have a recent INR in order to determine
the extent of her anticoagulation, it is medically reasonable to
assume that she was well within a safe range and was likely near or
below her target INR of 2.0” since her dose of Coumadin was only
incrementally increased.
Instead, the prescription errors offered
an alternate explanation for the hemorrhages and death.
As
additional information that was helpful to the Finnegans’ position
was received, they provided it to DCS on an ongoing basis.
On January 25, 2007, Jessica’s body was exhumed under the
observation of Dr. Michael Baden, a board certified forensic
pathologist and director of the medicolegal investigations unit of
the New York State Police (“Dr. Baden”).
Dr. Cavanaugh also
attended and participated in the second autopsy.
18
Dr. Cavanaugh
arranged to have the tissue specimens from the first and second
autopsy processed for microscopic viewing.
The chain of evidence
and request for histology services sent to St. Catherine Hospital
Laboratory
indicated
that
he
needed
the
slides
processed
by
February 22, 2007.
In March of 2007, the Finnegans provided DCS with additional
medical
literature,
including
medical
and
pharmacological
affidavits describing the prescription errors and other aspects of
Jessica’s medical conditions and death. Later that same month, DCS
substantiated physical abuse (bruises, cuts and/or welts, internal
injury,
skull
fracture/brain
damage)
and
medical
neglect
in
connection with Jessica’s death against the Finnegans; DCS also
substantiated life/health endangering conditions for Jonathon,
Tabitha, and Katelynn.
The court set the CHINS matter for a
hearing date of July 18-20, 2007.
At her April 16, 2007, deposition, Dr. Laskey agreed that
Jessica had no external signs of a beating, that warfarin can cause
fatal or major bleeding in any body part or tissue, and that
Jessica had a higher risk of bleeding because was on warfarin. Dr.
Laskey testified that, apart from the skull fracture, Jessica’s
autopsy findings consisted entirely of internal bleeding consistent
with
warfarin.
She
also
testified
she
determine the cause and manner of death.
is
not
qualified
to
After receiving Dr.
Laskey’s input, DCS made the decision that she would not testify at
19
the CHINS hearings.
In
April
of
2007,
after
investigating
the
case
for
approximately six months, Defendant McDonald wrote a probable cause
affidavit
Finnegans.
which
was
used
to
obtain
arrest
warrants
for
the
The Finnegans were charged with medical neglect on
April 23, 2007, and they were arrested on April 24, 2007.
On May 23, 2007, Defendant McDonald submitted a bill of
$4,677.40 from St. Catherine Hospital for the cutting, staining,
and processing of the microscopic slides of Jessica’s postmortem
body tissue and bones; the memo attached to the bill noted that the
purpose of the slides was for the pathologist to review them to
determine the ages of Jessica’s injuries, among other medical
findings,
and
it
acknowledged
that
the
“timing
of
Jessica’s
injury/injuries is a critical element of this case.”
On May 25, 2007, DCS withdrew its allegations of physical
abuse in the CHINS proceedings and filed amended petitions alleging
medical neglect and contending the other children were still in
serious danger of physical harm.
The Finnegans allege that, although the findings of the
microscopic tissue slides were available to the Defendants much
sooner, they only received this information in mid-June to mid-July
from third parties, including the prosecutor, through subpoenas and
Brady
requests;
the
slides
show
the
death
was
caused
by
prescription error, the hemorrhages were from warfarin, and the
20
skull fracture was post-mortem.
On July 8, 2007, Dr. Cavanaugh issued his Final Report of
Autopsy.
slides,
The report indicates that Dr. Cavanaugh reviewed the
but
significance.
it
does
not
go
into
any
detail
regarding
their
The report describes the basal skull fracture as
evidence of blunt force trauma to the head without making clear
that it was an autopsy artifact.
On July 11, 2007, Dr. Cavanaugh sent an email to Sheryl
Pherson, counsel for DCS, which stated, in part:
Thought I’d give you a heads-up on the final
report. Although I didn’t go into detail in
the report, there has been some significant
new information that changes certain opinion
details: . . . 2. There is both new and old
bleeding in the skull - certain portions of
the clot examined microscopically after the 2nd
autopsy (more specimens submitted) look to be
in the 5-10 day range or older. This means
more than one bleeding episode, with possibly
2 weeks of noticeable neurologic symptoms
and/or pathologic bleeding.
The scalp
contusions also appear to be of two different
ages. 3. Portions of the skull fracture are
indeed autopsy artifact. . . .
On
July
12,
2007,
DCS
moved
for
a
continuance
of
the
factfinding hearing, and the hearing was changed to a detention
hearing on the amended CHINS petitions.
On July 17, 2007, the Coroner ruled that Jessica died an
accidental death from the prescription errors and that the skull
fractures were artifacts of the first autopsy.
The Verdict states
that there was no trauma noted to the back or the legs and that
21
there were no significant findings.
It concludes, “[i]n a highly
unusual nature, I have included forensic pathologist consultations
as part of the autopsy report and of this Coroner’s from Dr. John
Pless, M.D. and Dr. Jan Leestma, M.D.”
At the July 18-19, 2007, hearing, DCS did not offer any
witnesses or evidence to support its claims; Tabitha testified she
had never seen or been subject to abuse or neglect.
At the
conclusion of the hearing, upon the parties’ agreement, the court
ordered the return of Tabitha and Katelynn to Lynnette.
stated
that
the
girls
were
to
be
transitioned
The order
back
to
the
Finnegans’ home according to the following schedule: seven days of
supervised visits to allow the prosecutor an opportunity to depose
the girls, followed by seven days of unsupervised visits, and “[a]t
the conclusion of [the seven] day period of unsupervised visits,
the child[ren] shall be placed in the home of [their] mother.”1
Upon being deposed by the prosecutor, the girls both testified
there was no abuse.
By August 6, 2007, DCS had still not returned
the girls, so the Finnegans filed a contempt motion, and DCS filed
a motion to clarify the return order.
On August 9, 2007, pursuant
to a hearing on both motions, the court ordered DCS to return the
girls that same evening. Tabitha and Katelynn were returned to the
Finnegans on August 9, 2007.
1
The order related to Tabitha also addresses the issue of termination
of jurisdiction with a handwritten note directly following it that says, “if
dispute is resolved regarding best interests and reasonable efforts.” It is
not clear who wrote the additional phrase.
22
On August 27, 2007, the prosecutor agreed she did not have
probable cause to pursue the criminal charges.
2007,
the
CHINS
judge
recused
himself
due
On September 7,
to
ex
parte
communications with DCS and the prosecutor, and the cases were
reassigned.
On September 10, 2007, the prosecutor filed amended
charges that Roman and Lynnette knowingly endangered Jessica’s
health by failing to provide emergency care for her.
McDonald was the only named witness.
Detective
From August through November
of 2007, DCS provided reunification services, but the Finnegans
claim that the services were more disruptive than helpful.
On October 24, 2007, the prosecutor moved to dismiss Roman’s
criminal charges, and on November 2, the prosecutor moved to
dismiss Lynnette’s charges. DCS had previously withdrawn the CHINS
petitions, including death from physical abuse; and, on November
27, 2007, the CHINS court dismissed the CHINS petitions.
Following dismissal of the CHINS petitions, the cases were
returned to DCS for administrative review.
The Finnegans provided
the reviewer, Defendant James, with three volumes of information.
On December 13, 2007, Defendant James re-substantiated the March
2007 substantiations, including the substantiation of death from
physical
abuse;
two
additional
substantiations
(inappropriate
discipline and death from medical neglect for Jessica) were also
added.
The decision did not explain the reason for the re-
substantiation nor did it address the Finnegans’ materials or the
23
Coroner’s
Verdict.
The
Finnegans
appealed
Defendant
James’
decision to DCS Administrative Law Judge Dawn Wilson, who was also
handling the Finnegans’ appeal of the December 2005 substantiation
for medical neglect.
DCS’s claims against the Finnegans continued for over two more
years until May of 2010, when DCS withdrew its appeal of Pulaski
Circuit Court Special Judge Patrick Blankenship’s January 28, 2010,
ruling that found DCS’ December 2005 and March 2007 substantiations
to
be
arbitrary
and
capricious,
ordered
DCS
to
immediately
unsubstantiate those substantiations, and directed DCS to remove
the Finnegans from the child protection index.
ANALYSIS
Applicability of the Rooker-Feldman Doctrine
The
State
Defendants
first
argue
that
the
Court
lacks
jurisdiction over Plaintiffs’ claims pursuant to the Rooker-Feldman
doctrine.
The Rooker-Feldman doctrine precludes federal subject
matter jurisdiction when: (1) a losing party in state court files
suit in federal court complaining of an injury caused by the state
court judgment, and seeks review and rejection of that judgment;
and (2) the losing party files a federal claim after the state
court proceedings have ended.
See Holt v. Lake Cnty. Bd. Of
Comm’rs, 408 F.3d 335, 336 (7th Cir. 2005); TruServ Corp. v.
24
Flegles, Inc., 419 F.3d 584, 590 (7th Cir. 2005).
also
precludes
federal
jurisdiction
over
“[T]he doctrine
claims
intertwined with a state court determination.”
inextricably
Brokaw v. Weaver,
305 F.3d 660, 664 (7th Cir. 2002) (citation omitted).
As noted by
this Court in its previous opinion (DE #152, p. 42), the doctrine
is inapplicable where, as here, Plaintiffs ultimately prevailed in
the underlying proceedings and are not seeking to challenge or
change those decisions.
See also Parker v. Lyons, 757 F.3d 701,
705-06 (7th Cir. 2014) (discussing timing of the federal suit).
The
State
Defendants’
argument
that
distinguishable from Brokaw is unavailing.
the
present
case
is
As noted correctly by
the State Defendants, the pivotal inquiry in applying the doctrine
is whether the federal plaintiff seeks to set aside a state court
judgment or whether he is, in fact, presenting an independent
claim.
See Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 996
(7th Cir. 2000).
Here, as in Brokaw, the Court finds that the
Rooker-Feldman doctrine does not apply because Plaintiffs have
alleged claims that are separate and distinct from any state court
judgment, namely that the parties involved in the CHINS proceedings
independently violated their constitutional rights. Brokaw, 305 F.
3d at 665.
25
First Amendment Right To Petition The Government
The State Defendants argue that there is no evidence that the
Finnegans were retaliated against after Roman sent the September 7,
2005, letter to his state legislator complaining about Defendant
McAninch’s treatment of he and Lynnette.
Plaintiffs respond by
stating that there is a genuine dispute as to whether the Finnegans
were
retaliated
against
for
exercising
their
First
Amendment
rights.
In order to make out a prima facie case of First Amendment
retaliation,
a
plaintiff
must
show:
(1)
that
he
engaged
in
protected activity; (2) that he suffered an adverse action that
would likely deter free speech; and (3) that the protected activity
was a motivating factor in the decision to take adverse action
against him.
See Peele v. Burch, 722 F.3d 956, 959 (7th Cir.
2013); Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013); Redd
v. Nolan, 663 F.3d 287, 294-95 (7th Cir. 2011); Greene v. Doruff,
660 F.3d 975, 977–78 (7th Cir. 2011).
If the plaintiff is able to
furnish evidence to support the prima facie showing, the burden
then shifts to the defendant to show that the retaliatory motive
was not a “but for” cause and that the harm would have occurred
anyway.
Greene, 660 F.3d at 980.
As summarized by the Seventh
Circuit:
[i]n the end, the plaintiff must demonstrate
that, but for his protected speech, the
employer would not have taken the adverse
action. . . . But preliminarily at summary
26
judgment, the burden of proof is split between
the parties. Initially, to establish a prima
facie case of retaliation, the plaintiff must
produce evidence that his speech was at least
a motivating factor — or, in philosophical
terms, a sufficient condition — of the . . .
decision to take retaliatory action against
him.
Then, the burden shifts to the [defendant] to rebut the
causal inference raised by the plaintiff’s evidence.
If the
employer fails to counter the plaintiff’s evidence, then the
employer’s retaliatory actions are considered a necessary condition
of the plaintiff's harm, and the plaintiff has established the
but-for causation needed to succeed on his claim.
Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012) (internal
citations and quotation marks omitted).
In their reply brief,2 the State Defendants argue that Roman’s
letter was not protected speech.
They assert that because Roman’s
letter describes Defendant McAninch’s “rudeness,” it was simply an
“airing of a private grievance” that was inadequate to qualify as
a matter of public concern.
However, as stated in this Court’s
previous opinion, the Seventh Circuit has made it clear that:
[t]he public criticism of governmental policy
and
those
responsible
for
government
operations is at the very core of the
constitutionally protected free speech.
We
think it plain that presenting complaints to
responsible government officials about the
conduct of their subordinates with whom the
complainer has had official dealings is
analogously central to the protections of the
right to petition. It matters not that the
subject of the grievance may not be political,
in the sense of raising public policy issues.
2
In the motion itself, the State Defendants seemed to waive this
factor when they stated, “[f]or purposes of argument, Defendants will treat
the Finnegans’ complaint to a legislator as constituting protected activity.”
27
. . . Indeed, the fact that a grievance may
not arouse sufficient public concern to
generate
political
support
makes
the
individualized exercise of the right to
petition all the more important. Unless the
grievance embodies a violation of established
and judicially enforceable state or federal
right, individual petitioning may be the only
available means of seeking redress.
Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1342-43 (7th Cir. 1977)
(internal
citations
omitted).
Roman’s
letter
to
his
state
legislator, Mary Kay Budak, set forth detailed criticisms of
Defendant
McAninch’s
unprofessional
conversation.
behavior,
allegedly
and
inappropriate
rudeness
during
(See DE #224-26, pp. 79-80.)
conduct,
their
phone
In closing, Roman
asked Ms. Budak for “help or intervention” and asked that the
letter be forwarded to Mitch Robb.
(Id.)
This is exactly the type
of protected speech that the Seventh Circuit addressed in Stern,
and the State Defendants’ arguments to the contrary fail.
The State Defendants do not attempt to dispute, nor should
they, that the allegedly retaliatory adverse action (that DCS
continued to investigate the Finnegan family and then arbitrarily
and capriciously substantiated medical neglect as to Jessica on
December 5, 2005) would be likely deter free speech.
Instead, the
State Defendants assert that the Finnegans cannot show that the
protected activity was a motivating factor in the decision to take
that adverse action against them because they fall short of
establishing the necessary causation.
28
Relying again on cases like
Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009) and Gross v. Town
of Cicero, 619 F.3d 697 (7th Cir. 2010), the State Defendants argue
that “but for” causation must be established at this stage.
However, as in Mays, the State Defendants ignore the Seventh
Circuit’s opinion in Greene, which, in distinguishing both Gross
and Fairley, held:
that the rule of Gross and Fairley is
inapplicable to First Amendment cases. They
remain controlled by Mt. Healthy Board of
Education v. Doyle, 429 U.S. 274, 97 S.Ct.
568, 50 L.Ed.2d 471 (1977), under which ‘the
burden of proof relating to causation is
divided between the parties in First Amendment
tort cases. To make a prima facie showing of
causation the plaintiff must show only that
the defendant’s conduct was a sufficient
condition of the plaintiff’s injury [that is,
sufficient to cause it].
The defendant can
rebut, but only by showing that his conduct
was not a necessary condition of the harm —
the harm would have occurred anyway.’ Greene
v. Doruff, supra, 660 F.3d at 980; see also
Spiegla v. Hull, 371 F.3d 928, 941–43 (7th
Cir. 2004).
Mays, 719 F.3d at 634.
As such, Plaintiffs only need to present
evidence that Roman’s letter was at least a motivating factor (or
a sufficient condition) of DCS’ decision to pursue a substantiation
of medical neglect against them.
This may be done in the form of
either direct or circumstantial evidence.
679 F.3d 957, 965-66 (7th Cir. 2012).
Kidwell v. Eisenhauer,
Circumstantial evidence “is
evidence from which a trier of fact may infer that retaliation
occurred” and “may include suspicious timing, ambiguous oral or
written statements, or behavior towards or comments directed at
29
other employees in the protected group.”
Id. (citing Long v.
Teachers' Retirement Sys. of Ill., 585 F.3d 344, 350 (7th Cir.
2009)).
In their response brief, Plaintiffs point out that, subsequent
to the receipt of the letter by DCS, it is undisputed that DCS and
the Finnegans met and reached an agreement regarding Jessica’s
care.
As requested, Jessica was seen by Dr. Hurwitz; he adjusted
her warfarin dosage and recommended blood testing be done by Dr.
Bartush.
The State Defendants do not dispute that Jessica saw Dr.
Bartush on two occasions in October of 2005 or that the Finnegans
provided the requested information regarding Jessica’s health and
medical care to the school.
Plaintiffs contend that despite all
indications that DCS was aware the Finnegans were complying with
their requests/concerns and had been informed that Jessica was
doing well (see e.g. DE #130-2, pp. 17-18 (confirmation of and
findings pursuant to Jessica’s September 15, 2005, appointment with
Dr. Hurwitz had been sent to the family doctor and DCS); see also
DE #224-27, p. 2 (Roman’s declaration that, subsequent to the
appointment with Dr. Hurwitz, he provided DCS with Dr. Hurwitz’
conclusions that Jessica had been examined and was doing well)),
DCS continued to pursue the Finnegans in retaliation for Roman’s
letter and ultimately substantiated Jessica’s medical neglect on
December 5, 2005, without justification or due cause, purposefully
omitting reference to the aforementioned appointment/findings and
30
relevant medical records.
Indeed, it is undisputed that Judge
Blankenship ruled that the December 5, 2005, substantiation was
arbitrary and capricious, finding that the substantiation ignored
Dr. Hurwitz’ letter along with the voluminous stipulated medical
records.
(DE #130-2, pp. 19-21, 58.)
Plaintiffs argue that the
timing of the substantiation (within three months of Roman’s
letter) was suspicious, especially in light of their continued
compliance. Furthermore, while the State Defendants assert that it
is unlikely one complaint letter would raise the consternation of
those at DCS, Plaintiffs have provided evidence that Defendant
Myers advised Ron Featherstone, who handled constituent services
for DCS and had forwarded Roman’s letter to Defendant Myers for a
response, via email that she was “surprised” by Roman’s complaint.
(DE #224-26, p. 81.)
meeting
with
the
Also, on September 8, 2005 (prior to ever
Finnegans),
Defendant
Myers
emailed
Mr.
Featherstone and indicated that “there likely is more going on in
this family than we know.”
(Id.)
In a separate email to a
coworker that same day, Defendant Myers stated:
I cc’d you on my response to Ron Featherstone
but wanted to add additional insight to you.
I didn’t think when I volunteered to be on the
“complaint” team that my county would be the
first!! At any rate, I witnessed the phone
calls that Regina had with these people and
she was in no way rude.
Frustrated I will
give you. . . . Evidently, [Roman] has gone
out into the community lamenting his woes
because I had a person call this morning and
wonder ‘what was going on’ . . . of course I
stated confidentiality and they understood
31
that but that this family was so upset and
didn’t sleep all night because they were
calling everyone they could think of!! . . . I
am assuming there is much more going on with
this family than first glance.
(DE #228.)3
Based on these emails, it is reasonable to infer that
Defendant Myers was sufficiently perturbed by the grievances Roman
aired to her superiors and others in the community. Finally, while
the State Defendants assert that the intervening event of the
October 11, 2005, claim regarding a lack of food in the Finnegan
household (which was found to be unsubstantiated) destroys the
requisite causation, the Court agrees with Plaintiffs that it is
equally likely that the event was simply a continuation of DCS’
quest to investigate the Finnegans for wrongdoing.
In fact, it
could be reasonably inferred that the intervening investigation,
which resulted in no showing of neglect in the Finnegan household,
actually supports the Finnegans position that the December 5, 2005,
substantiation was wholly without merit.
The Court finds that the
foregoing circumstantial evidence, when viewed in the light most
favorable to Plaintiffs, is sufficient to show that Roman’s letter
was at least a motivating factor of DCS’ decision to pursue the
3
This document was originally filed under seal because of potential
“clawback issues.” However, Plaintiffs have certified that the “clawback
issues” were resolved via agreement following the Court’s November 4, 2014,
status conference. (See DE #257-2, p. 1.) This is supported by Judge
Nuechterlein’s April 21, 2015, order, wherein he noted that “ [o]nly Documents
2–12, as withheld by DCS and described on the DCS Privilege Log, remain at
issue following DCS’ production of Document 1 in April 2015.” (DE #279, p.
16.) Therefore, the documents found at DE #226 through DE #230 are ORDERED
UNSEALED.
32
December
5,
2005,
substantiation
of
medical
neglect.
Thus,
Plaintiffs have sufficiently set forth a prima facie case of First
Amendment retaliation.
As such, the burden shifts to the State Defendants to show, by
a preponderance of the evidence, that the retaliatory motive was
not a “but for” cause and that the harm would have occurred anyway.
The State Defendants assert that both Defendant Myers and Defendant
McAninch
testified
that
independent
grounds
existed
December 5, 2005, substantiation of medical neglect.
deposition,
when
asked
what
facts
weighed
for
the
During her
in
favor
of
substantiation, Defendant Myers stated:
Okay.
The school needed information the
family had not provided.
And, therefore,
without our department’s involvement . . . it
was felt without our department’s involvement
getting the appointment made at Riley, getting
the information back to the school, the
Finnegans would not have complied with the
school’s request.
Based on all of the
information [Defendant McAninch] gathered,
that’s how she determined that without our
intervention
or
our
involvement,
that
appointment and subsequent information to the
school would not have been obtained.
(DE #201-2, pp. 12-13.)
When pressed as to what information
existed that Jessica’s physical condition was seriously endangered
by
the
Finnegans’
alleged
medical
neglect,
Defendant
Myers
reiterated that the “school was requiring medical information that
they did not provide.”
(Id. at 14-15.)
Defendant McAninch
similarly testified that the substantiation of medical neglect was
33
justified because the school had asked for a “plan” and that the
Finnegans had failed to comply with the school’s request without
DCS intervention. (DE #201-22, pp. 5-6.) This testimony, that DCS
“felt” the Finnegans would not have complied with the school’s
requests without DCS intervention, is countered by the fact that
DCS identifies no other evidence of medical neglect for the period
in question. It is further countered by Lynnette’s declaration, in
which she disputes the State Defendants’ claims that she had failed
to give the school the requested information on several previous
occasions and asserts that she “provided everything the school
requested and also gave permission for the school to speak with
Jessica’s doctor and cardiologist.”
(DE #224-11, p. 2.)
Lynnette
also declares that there was not interruption in Jessica’s care, as
she
scheduled
appointments
with
Jessica’s
doctors
requested by the doctors or for “any other reason.”
whenever
(Id.)
In any event, it is undisputed that DCS knew Jessica was
examined by Dr. Hurwitz only a little over a week after DCS’
initial involvement, that the Finnegans provided the requested
information to the school following that visit,4 and that Jessica
saw her local doctor, Dr. Bartush, on two occasions in October
pursuant to follow-up direction from Dr. Hurwitz.
just
these
facts
(and
ignoring
4
the
Even looking at
references
As noted, Lynnette asserts that she provided the requested
information to the school previously as well. (DE #224-11, p. 2.)
34
in
Judge
Blankenship’s decision to the existence of voluminous medical
records showing years of consistent care and to Lynnette’s own
declaration describing that care), it appears that the Finnegans
were conscientious and compliant when it came to Jessica’s health.
It is unclear why DCS felt the need to substantiate medical neglect
roughly
three
months
after
their
first
involvement,
evidence of neglect was found during that time.
when
no
Because DCS has
not established that the harm would have occurred absent any
retaliatory motive, summary judgment is inappropriate, and the
Finnegans’ First Amendment retaliation claims may proceed.
Fourth Amendment Rights
The State Defendants argue that all of the Finnegans’ Fourth
Amendment claims for unconstitutional searches or seizures fail
because all actions by the State Defendants were reasonable.
Plaintiffs disagree.
The Fourth Amendment provides that it is “the right of the
people to be secure in their person, houses, papers, and effects
against unreasonable searches and seizures[.]” U.S. Const. Am. IV.
As the Seventh Circuit has explained:
[b]ecause the basic purpose of the Fourth
Amendment is to safeguard the privacy and
security of individuals against arbitrary
invasions by governmental officials, the
amendment’s prohibition against unreasonable
searches
and
seizures
protects
against
warrantless intrusions during civil as well as
criminal investigations by the government.
35
Thus, the strictures of the Fourth Amendment
apply to child welfare workers, as well as all
other governmental employees.
Doe v. Heck, 327 F.3d 492, 509 (7th Cir. 2003) (internal citations
and quotations marks omitted). A court must look to the conduct in
question to determine whether it constituted a search or a seizure.
Id.
A search means to “look over or through for the purpose of
finding something; to explore; to examine by inspection.”
509-10.
Id. at
A person has been “seized” for purposes of the Fourth
Amendment “if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not
free to leave.”
(1980).
United States v. Mendenhall, 446 U.S. 544, 554
As noted in Doe, a court must:
evaluate
the
search
or
seizure
under
traditional standards of reasonableness by
assessing, on the one hand, the degree to
which it intrudes upon an individual’s privacy
and, on the other, the degree to which it is
needed for the promotion of legitimate
governmental interests. In doing so, . . .
the underlying command of the Fourth Amendment
is always that searches and seizures be
reasonable, what is reasonable depends on the
context within which a search takes place.
Doe, 327 F.3d at 510. “The test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application, and its proper application requires careful attention
to the facts and circumstances of each particular case.”
Brokaw,
235 F.3d at 1010 (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)).
36
In Brokaw, the Seventh Circuit found that a caseworker who was
not present for the actual seizure, but “directed those who removed
the children to do so,” could be liable under section 1983 for the
Fourth Amendment violation.
Id. at 1014.
See also Morris v.
Dearborne, 181 F.3d 657, 672 (5th Cir. 1999) (holding defendant,
child’s teacher, who was moving force behind the removal of
children was responsible for causing allegedly unconstitutional
removal).
Brokaw
teaches
that
a
defendant
is
personally
responsible if she “acts or fails to act with a deliberate or
reckless disregard of plaintiff’s constitutional rights, or if the
conduct
causing
the
constitutional
deprivation
direction or with her knowledge or consent.”
occurs
at
her
Id. at 1012 (quoting
Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985)).
The Brokaw
Court noted that “to the extent the defendants knew the allegations
of child neglect were false, or withheld material information, and
nonetheless caused, or conspired to cause [the child’s] removal
from his home, they violated the Fourth Amendment.”
Brokaw, 235
F.3d at 1012 (citation omitted).
December 20, 2005
Plaintiffs have alleged that the December 20, 2005, emergency
detention and seizure of Jonathon, Tabitha, and Katelynn violated
the Fourth Amendment.
The State Defendants do not dispute the
basic premise of these claims (i.e. that Defendant Myers and
37
Defendant
McAninch
seized
the
children
from
private
property
without a court order and detained them for five or six hours for
questioning without parental consent). In her declaration, Tabitha
describes the seizures on December 20, 2005, as follows:
On the day Jessica died, [Defendant] McAninch
picked us up at our neighbor’s house where we
were having snacks. She took us to the DCS
offices in Winamac where they questioned us
about our home and family. We were there for
at least four or five hours, though it felt
much longer. No one would tell us why we were
there or what was happening.
Regina took
Katelynn, who was nine years old at the time,
out of the room and talked to her on her own.
I saw a tape recorder in the room before we
were interviewed. They didn’t tell us we were
being recorded and seemed to be trying to hide
this . . . . [N]one of us knew why we were
being kept at the DCS office or why we were
not allowed to call our parents or anyone
else.
(DE #224-19, p. 1; see also DE #224-17, p. 1.)
The State
Defendants argue that these actions were reasonable because a
Fourth Amendment violation related to the interview of a child
without the parents’ permission only occurs where “the government’s
interest was nonexistent.”
U.S. v. Hollingsworth, 495 F.3d 795,
802 (7th Cir. 2007). Here, they claim, the government interest was
particularly strong because DCS has a duty to protect children and
was therefore required to investigate Jessica’s death as, only a
few months before, school officials had reported to DCS that
Lynnette was failing to attend to Jessica’s medical condition and
because it was reported that the Finnegan household did not have
38
sufficient food.
What the State Defendants fail to acknowledge, however, is
that, as described in the preceding section, there is a genuine
dispute as to whether DCS’ actions and ultimate substantiation of
medical neglect on December 5, 2005, were arbitrary, capricious,
and performed only in retaliation for Roman’s grievance letter.
The Finnegans have presented evidence that they were consistent
with Jessica’s medical care, compliant with the school and DCS’
requests, and that this information had been submitted to DCS yet
had been ignored. (See e.g. DE #224-11, pp. 1-2; 224-27, pp. 1-2.)
The State Defendants make reference to concerns over a much earlier
(fifteen to twenty years prior) involvement with Lynnette, but
Plaintiffs have countered this allegation (DE #224-11, p. 1), and
it is undisputed that the children were returned to Lynnette with
no findings of abuse against her.
DCS also references the October
11, 2005, investigation into the allegation that the Finnegan
household did not have sufficient food for the children, but it is
undisputed that the report was unsubstantiated.
It was therefore
not a reasonable assumption that Jessica’s death on December 20,
2005, placed her siblings in immediate jeopardy such that they
needed to be seized and interviewed for five to six hours in order
to “protect” them as the State Defendants claim.
Against these
facts, at the very least, there is a genuine dispute as to whether
the State Defendants’ actions were unreasonable. See Doe, 327 F.3d
39
at 514 (“[T]he seizure of a child by a government official on
private property . . . is only reasonable if it is: (1) done
pursuant to a court order; (2) supported by probable cause; or (3)
justified by exigent circumstances, meaning that state officers had
reason to believe that life or limb was in immediate jeopardy.”)
Even if not presumptively unreasonable, the State Defendants have
not established that their actions were reasonable pursuant to a
compelling interest in this case.
See Id. at 515 (the state’s
general interest in protecting children from abuse is not enough to
tip the balance in their favor; the government officials must show
“some definite and articulable evidence giving rise to a reasonable
suspicion that a child has been abused or is in imminent danger of
abuse.”)
Here, the State Defendants have not presented sufficient
evidence that, on the day of the seizures, a reasonable caseworker
would have believed that Jessica’s death was related to any abuse
or
neglect;
thus,
when
viewed
objectively,
a
caseworker
of
reasonable caution could not have believed that Jonathon, Tabitha,
and Katelynn faced an immediate threat of abuse at the time of
their seizure based on the facts presented.
Summary judgment is
inappropriate.
Because the Court has determined that trial is necessary on at
least one of Plaintiffs’ Fourth Amendment search and seizure
claims,
it
is
unnecessary
to
analyze
the
Amendment claims in detail in this opinion.
40
additional
Fourth
Suffice it to say,
after reviewing the parties’ briefs and the evidence as a whole,
the Court is convinced that genuine disputes remain as to whether
the State Defendants acted reasonably during the rest of those
alleged seizures.
Fourteenth Amendment Rights to Due Process
Plaintiffs have alleged that the State Defendants deprived
them of their due process rights by refusing to comply with laws
that
protect
“the
constitutional
rights
to
family
relations,
including the parents’ right to raise their children and the
children’s right to be with their parents.”
The State Defendants
now argue that it is undisputed that they did not violate any of
Plaintiffs’
substantive
due
process
rights
because
they
had
“definite and articulable evidence giving rise to a reasonable
suspicion that a child has been abused or is in imminent danger of
abuse.”
They also assert that their interest in ensuring that the
children were not victims of abuse overrides any procedural due
process claims.
Plaintiffs argue that their due process claims
withstand summary judgment.
Substantive Due Process
As this Court has found in its previous order on Defendant
Antoinette Laskey’s motion for judgment on the pleadings (DE #61)
and as conceded by the State Defendants (DE #126, p. 22), due
41
process does encompass a parent’s liberty interest in familial
relations.
See Troxel v. Granville, 530 U.S. 57, 65 (2000)
(collecting cases); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996);
Brokaw, 235 F.3d at 1018 (reiterating “[t]he Supreme Court has long
recognized as a component of substantive due process the right to
family relations.”).
Although the Government has an interest in
protecting children from abuse, the State does not have an interest
in protecting children from their parents “unless it has some
definite and articulable evidence giving rise to a reasonable
suspicion that a child has been abused or is in imminent danger of
abuse.”
Brokaw, 235 F.3d at 1019 (citation omitted).
The State Defendants begin by arguing that Brokaw dictates
that an initial removal of a child should be considered under the
rubric of the Fourth Amendment, not under the rubric of substantive
due process.
Brokaw, 235 F.3d at 1017-18.
While true, the State
Defendants ignore that here, as in Brokaw, Plaintiffs have also
alleged separate and distinct violations based upon the nearly nine
month detention of the girls following their seizure in November of
2006.
“This forced separation implicates substantive due process,
or more specifically [the girls’] constitutional right to familial
relations.”
Id. at 1018.
While the State Defendants assert that Plaintiffs’ substantive
due process rights were not violated because it is undisputed that
they had “definite and articulable evidence giving rise to a
42
reasonable suspicion that a child has been abused or is in imminent
danger of abuse,” the Court disagrees.
As described in the
preceding sections, Plaintiffs have proffered evidence that, prior
to Jessica’s death, the Finnegans were consistent with Jessica’s
medical care, compliant with the school and DCS’ requests, and that
all requested information had been submitted to DCS yet had been
ignored. DCS’ investigation into the allegations that the Finnegan
household
lacked
unsubstantiated.
food
for
the
children
was
found
to
be
It is undisputed that, on the day Jessica died,
DCS interviewed the children about issues relating to Jessica’s
condition prior to her death, her illness, and other matters, and
yet determined that it was not necessary to remove them from the
Finnegans’
Defendants’
home
at
claims
that
that
time.
Jessica’s
Indeed,
death
despite
the
immediately
State
aroused
suspicions, DCS’ own case notes indicate that the Coroner spoke
with Defendant McAninch and informed her that the post-mortem
examination of Jessica’s body showed no signs of trauma except for
“normal medical things” and that he fully expected the death to be
related to natural causes. (DE #201-29, p. 4.) Importantly, there
is no evidence in the record to suggest that Tabitha and Katelynn
were abused or were doing anything other than well in the year
following Jessica’s death.
While it is true that Dr. Cavanaugh’s May 2006 Report of
Autopsy lists the cause of death as blunt force injury of the head
43
and references a right anterior basal skull fracture, Dr. Cavanaugh
did not ever classify the death as a homicide or state that
Jessica’s injuries were likely due to an assault.
17-18, 21, 28.)
(DE #243-10, p.
Even in his November 2, 2006, letter to DCS which
states that the extent of Jessica’s injuries was “inconsistent with
a simple fall,” Dr. Cavanaugh noted that the manner of death was
“undetermined.”
(DE #224-32.)
And, as described more fully in
this Court’s opinion and order on Dr. Laskey’s Motion for Summary
Judgment at pages 30-36, there are serious disputes related to the
accuracy of Dr. Laskey’s findings detailed in her October 28, 2006,
report (e.g. that the manner of Jessica’s death was consistent with
homicide and that Jessica sustained a fatal beating on the day she
died
which
was
the
direct
cause
of
her
death)
and
the
appropriateness of DCS’ reliance on those findings to trigger the
girls’ removal from the Finnegan home based on the communications
between Dr. Laskey and DCS during the period in question (e.g.
that, with the exception of Dr. Laskey, DCS was aware that no one
“other than the local Director and FCM” believed that Jessica had
died from physical abuse).
(See DE #201-4; DE #224-8, p. 1; DE
#224-31, p. 1; DE #224-1, p. 1.)
Furthermore, in the months following the girls’ removal from
the Finnegans’ home, Plaintiffs have presented evidence that the
State Defendants were advised of the prescription error (DE #224-2)
and knew that additional information had surfaced challenging Dr.
44
Laskey’s report (e.g. DE #224-4; DE #224-14), yet continued to hold
the girls.
Even after receipt of both Dr. Cavanaugh’s July 11,
2007, email – reporting “significant new information” that affected
the claims that Jessica was beaten to death (DE #224-40) and the
Coroner’s Verdict ruling that Jessica had died an accidental death
from the prescription errors and that the skull fractures were
artifacts of the first autopsy (DE #224-26, pp. 183-84), DCS
continued to detain Tabitha and Katelynn and press its claims
against the Finnegans.
Based on the foregoing, the State Defendants’ assertion that
it is undisputed that they had “definite and articulable evidence
giving rise to a reasonable suspicion that a child has been abused
or is in imminent danger of abuse” sufficient to remove Tabitha and
Katelynn from the Finnegans’ home for a period of nine months is
unavailing. Plaintiffs’ claims of Fourteenth Amendment substantive
due process violations withstand summary judgment.
Procedural Due Process
The State Defendants also argue that Plaintiffs have failed to
establish that any of their procedural due process rights were
violated.
Plaintiffs disagree.
The Seventh Circuit has made it clear that:
[i]n contrast to substantive due process
claims, in procedural due process claims, the
deprivation
by
state
action
of
a
constitutionally protected interest in life,
45
liberty, or property is not in itself
unconstitutional; what is unconstitutional is
the deprivation of such an interest without
due process of law. Thus, a procedural due
process claim involves a two-part analysis:
First, we determine whether the defendants
deprived the plaintiff of a protected liberty
or property interest, and if so, then we
assess what process was due.
Brokaw,
235
F.3d
at
1020
quotation marks omitted).
(internal
citations,
brackets,
and
In cases where parental rights and/or a
child’s right to be nurtured by his parents is at issue, due
process
requires
an
“opportunity
for
them
meaningful time and in a meaningful manner.”
v. Eldridge, 424 U.S. 319, 333 (1976).
to
be
heard
at
a
Id. (citing Mathews
“[N]o matter how much
process is required, at a minimum, it requires the government
officials not misrepresent the facts in order to obtain the removal
of a child from his parents.”
Id. (citing Malik v. Arapahoe Cnty.
Dep’t of Soc. Servs., 191 F.3d 1306, 1315 (10th Cir. 1999)).
Here, Plaintiffs have presented evidence that, when viewed in
the light most favorable to them, shows that the State Defendants
misrepresented the facts in order to obtain the removal of Tabitha
and Katelynn.
Namely, email communications between Dr. Laskey and
Defendant McAninch in late October establish that DCS was aware Dr.
Laskey was alone in her opinion that Jessica’s death was consistent
with a homicide, yet proceeded to use it as the basis for the
removal anyway.
(See DE #224-31, p. 1; DE #224-1, p. 1.)
While
the State Defendants argue that DCS was justified in relying on Dr.
46
Laskey’s expert opinion, that is subject to dispute.
Given the
lack of evidence of any abuse or neglect described in the preceding
sections (along with DCS’ acknowledgment that Dr. Laskey’s opinion
was not shared by anyone but DCS employees) it may certainly be
inferred that the State Defendants intentionally misrepresented
and/or withheld facts to obtain the result they desired.
Furthermore,
evidence
exists
that,
once
the
girls
were
removed, Tabitha was denied meaningful access to the CHINS court
and the Coroner’s Inquest.
In her declaration, Tabitha contends
that, after being removed from her home, she “knew that [Roman and
Lynnette] hadn’t hurt Jessica and I asked quite a few times to talk
to the judge.
yet.”
I was told repeatedly that it wasn’t time for that
(DE #224-19, p. 3.)
Judge Blankenship’s decision describes
the underlying proceedings such that “Tabitha was not allowed to
attend or testify in the CHINS proceedings or the Coroner’s Inquest
despite her desire to do so” and despite the Coroner’s subpoena.
(DE #130-2, p. 33.)
In his declaration, the Coroner describes how
he wished to speak with the girls regarding Jessica’s condition in
the days and weeks before her death, but agreed to withdraw his
subpoena when he was informed via a motion to quash that the girls
had “no useful information” and that “talking about their sister’s
death would adversely affect their mental health.” (DE #224-20, p.
4.)
He continues by stating, “I did not know at the time that DCS
and ISP were already having the older girl relive her sister’s
47
death in therapy and police interrogations, nor did I know that DCS
had given a tape of an interview of the siblings on the day of
Jessica’s death to ISP.”
(Id.; see also Tabitha’s declaration
describing the interviews and interrogations at DE #224-19, pp. 15.)
The Coroner also declares that:
[i]f Tabitha and Katelynn had been allowed to
testify at the February 21 Inquest, however,
it is likely that I would have learned that
they saw only flu-like symptoms in the days
before death and that they were being provided
with false information.
This would have
allowed me to conclude my investigation and
produce a Verdict much earlier, likely
averting the continued detention of the girls
and the arrests of the mother and stepfather.
(DE #224-20, p. 4.)
A reasonable jury may conclude that the State
Defendants denied Tabitha an opportunity to be heard at precisely
when it would have made a meaningful difference in the girls’
continued detention.
Additionally, Plaintiffs have presented evidence that, if
believed,
shows
the
State
Defendants
consistently
ignored
exculpatory evidence and went so far as to deliberately withhold it
from the Finnegans, the Coroner, and the courts during the postdeprivation process.
(See e.g. DE #224-20, p. 4; DE #224-2; DE
#224-4; DE #224-14; DE #224-40.) While the State Defendants try to
pigeonhole these claims into a Brady5 analysis in order to argue
that the they should be absolved of liability due to the functional
5
See Brady v. Maryland, 373 U.S. 83 (1963).
48
differences between caseworkers/detectives and prosecutors, the
Court finds that these actions and/or inactions of the State
Defendants
fit
squarely
within
the
type
of
constitutionally
inadequate post-deprivation processes described in Brokaw.
See
Brokaw, 235 F.3d at 1021.
For the aforementioned reasons, the Court finds that summary
judgment is inappropriate on Plaintiffs’ procedural due process
claims.6
42 U.S.C. Section 1983 Conspiracy
The State Defendants argue that Plaintiffs offer no evidence
that a conspiracy to create a case against the Finnegans existed.
6
While not determinative on this Court’s decision to deny summary
judgment, the Court notes that Judge Blankenship’s decision describes the
process in the underlying proceedings as follows:
In addition to this obvious substantive problem, the record
contains reports of numerous procedural irregularities . . .
beginning with the six hour detention of the children for
questioning on the day of Jessica’s death, and culminating
in nine months of detention in 2006-2007 that appeared to be
largely if not entirely designed to obtain information from
the children, rather than to protect them. The Finnegans
also state (and DCS largely does not contest) that DCS did
not provide case plans in a timely manner, did not allow
Tabitha to participate in the CHINS proceedings, denied
relative placement for what appear to be spurious reasons,
failed to provide evidence to support the amended Petitions
or continued detention in May 2007, had at least one ex
parte contact with the Court in an effort to prevent
reunification, offered Tabitha college funding if she would
agree to remain in foster care rather than return home, and
generally made reunification as difficult as possible . . .
this pattern of conduct not only constituted bad faith but
deprived the Finnegans of the due process of law guaranteed
by the U.S. and Indiana constitutions.
(DE #130-2, pp. 69-70.)
49
Plaintiffs dispute this argument and outline the basis for their
detailed conspiracy theory in their response brief.
(DE #234-3,
pp. 29-34.)
A civil conspiracy under section 1983 involves an agreement or
understanding among more than one person that the individuals will
violate another person’s constitutional rights.
Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
state
officials
involved
in
the
See Reynolds v.
Put another way, the
conspiracy
must
reach
an
understanding as to the conspiracy and willfully participate in its
activity.
2012).
See e.g. Lewis v. Mills, 677 F.3d 324, 333 (7th Cir.
Although a conspiracy can be established by circumstantial
evidence, it cannot be based purely on speculation.
See Williams
v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003).
Here, although the State Defendants argue that there is no
evidence to support the existence of a conspiracy, Plaintiffs have
presented circumstantial evidence that, if believed, could lead a
reasonable jury to conclude that the State Defendants, Dr. Laskey,
and
Dr.
Cavanaugh
Plaintiffs
of
had
their
reached
an
understanding
constitutional
rights
and
participated willingly in furtherance of that goal.
to
deprive
that
they
For example,
emails between Dr. Laskey and DCS in October of 2005 show that,
Defendant McAninch had expressed gratitude to Dr. Laskey that
“someone other than the local Director and FCM” agreed that Jessica
died from abuse.
(DE #224-31, p. 1.)
50
Dr. Laskey implicitly
acknowledged the lack of additional evidence to support that theory
when she doubled down and replied:
EVEN IF this child fell out of bed and IF she
in fact had easier bleeding due to her meds,
there IS NO WAY she would have sustained these
injuries from a fall.
In fact, I am
contacting Dr. Cavanaugh to find out why he
isn’t calling it a homicide. This is NOT an
ambiguous case.
(Id.)
It is reasonable to infer that Dr. Laskey was intent on
strong-arming Dr. Cavanaugh into the agreement between herself and
DCS when, on October 24, 2006, she emailed Defendant McAninch to
let her know that she was going to “contact[] Dr. Cavanaugh to find
out why he isn’t calling it a homicide.
This is NOT an ambiguous
case.” (DE #224-1, p. 1.) Although Dr. Laskey rendered her report
without having yet spoken with Dr. Cavanaugh (DE #169-7, p. 24),
the timing of Dr. Cavanaugh’s November 2, 2006, fax to Defendant
McAninch (within days of Dr. Laskey’s above email) suggesting for
the
first
time
that
the
“extent
of
[Jessica’s]
injuries
is
inconsistent with a simple fall of approximately two feet from a
bed” could be viewed as suspicious.
In addition, Plaintiffs have presented evidence that, by
December 18, 2006, both DCS and Dr. Laskey knew of the prescription
error and its potential significance (DE #224-13) and, by that late
spring
to
early
summer
of
2007,
were
aware
that
even
more
information had surfaced calling Dr. Laskey’s findings into serious
question (see e.g. DE #224-14; DE #224-4; DE #224-24). In April of
51
2007, Dr. Laskey communicated with Sheryl Pherson, DCS’s retained
local counsel in the CHINS and subsequent proceedings (“Pherson”),
regarding her deposition, stating:
So what is the deal, do I stick only to what I
knew based on the info previously reviewed and
my existing report or do I need “new” info?
Additionally, you should know that 7mg of
Coumadin would not kill a horse, or a person.
There are people who take that dose. Whether
Jessica was or not is questionable.
(DE #224-4, p 2. .)
Pherson responded to Dr. Laskey, noting that
“[o]bviously, your opinion could change based upon additional
information, including the second autopsy, but you don’t have that
information
at
this
time.
You
are
not
required
to
review
[Plaintiffs’ counsel’s] 3 volumes of crap prior to your deposition,
and so I decided not to provide it to you.”
#226.)
(Id.)
(See also DE
In her August 18, 2011, deposition, Dr. Laskey testified
that she was aware that numerous people disagreed with her findings
yet she did not ever correct or update her report (see e.g. DE
#224-44, pp. 5-8), and DCS did not move to withdraw it.
Furthermore, as described more fully (with citations to the
record) in this Court’s opinion and order on Dr. Cavanaugh’s motion
for summary judgment, evidence has been presented to show that Dr.
Cavanaugh was also aware from early on that a prescription error
existed calling into question both Dr. Laskey and his own later
findings, that all parties were aware that CHINS proceedings had
been instituted and that Tabitha and Katelynn were being detained
52
by DCS, that material exculpatory evidence relevant to Jessica’s
death and the girls’ detention was reviewed and/or received by Dr.
Cavanaugh, that he withheld such evidence from everyone except for
DCS, and that DCS condoned and willfully participated in the
withholding of this evidence.
Importantly, on July 11, 2007, Dr.
Cavanaugh sent an email only to Pherson which stated, in part:
Thought I’d give you a heads-up on the final
report. Although I didn’t go into detail in
the report, there has been some significant
new information that changes certain opinion
details: . . . 2. There is both new and old
bleeding in the skull - certain portions of
the clot examined microscopically after the 2nd
autopsy (more specimens submitted) look to be
in the 5-10 day range or older. This means
more than one bleeding episode, with possibly
2 weeks of noticeable neurologic symptoms
and/or pathologic bleeding.
The scalp
contusions also appear to be of two different
ages. 3. Portions of the skull fracture are
indeed autopsy artifact. . . .
(DE #40.)
This information was not submitted to the Coroner or
Plaintiffs; the next day, instead of acknowledging or addressing
these “significant new findings,” DCS moved for a continuance of
the factfinding hearing, and the hearing was changed to a detention
hearing on the amended CHINS petitions.
Finally, Plaintiffs point to emails concerning the Coroner’s
Inquest to show that DCS and Defendant McDonald were working
together to prevent the girls from being interviewed by the
Coroner. (DE #230.) Defendant Myers voiced her concerns regarding
the Coroner’s subpoena to Stephanie Beasley, who forwarded the
53
email to others including Defendant Payne.
(Id. at 1.)
On
February 22, 2007, Myers sent an email stating:
Yesterday I spent nearly 2 hours with ISP
regarding the investigation and ramifications
if in fact the Coroner’s inquest went forward.
It was their position that if the inquest
occurred and family members were allowed to
testify etc. the criminal investigation would
be compromised beyond repair. . . . ISP was
prepared to end their investigation if in fact
today’s inquest was held.
Following our
meeting, the PA and ISP met with the Coroner
in an effort to convince him to cancel or even
postpone the inquest until the medical results
were in, the investigation was completed
and/or fact finding was held. After multiple
phone calls to me and 5 hours later, he did
agree to halt the inquest. . . .
So, the
roller coaster is going uphill again!!
I
spoke with ISP late last night and they are
back on track and will continue their
investigation.
(Id. at 2.)
By that time, as Plaintiffs point out, there is
evidence in the record to show that DCS and Defendant McDonald knew
of the prescription error and its significance and had access to
medical records that called into question any findings of abuse.
As noted preceding section, the fact that Tabitha was prevented
from testifying in the CHINS proceedings or Coroner’s Inquest was
significant,
especially
in
light
of
the
fact
that
Defendant
McDonald, Defendant McAninch, and others had been interviewing the
girls regarding Jessica’s death for some time. (See DE #224-19, p.
3; DE #224-20, p. 4; DE #224-19, pp. 1-5.)
declaration
calls
into
question
the
veracity
And, Tabitha’s
of
Defendant
McDonald’s reporting of those interviews and her April probable
54
cause testimony, which makes the State Defendants’ “concern” over
the Coroner’s subpoena and the meeting between Defendant Myers and
ISP all the more questionable.
(DE #224-19, pp. 3-4; see also DE
#224-17, p. 2; DE #224-26.)
Therefore,
because
the
Court
has
found
genuine
disputes
precluding summary judgment on Plaintiffs’ constitutional claims,
and, considering Plaintiffs’ allegations in the First Amended
Complaint of a continuous and growing conspiracy existing from
September of 2005 through May of 2010 (see also DE #234-3, pp. 3134) along with the circumstantial evidence presented above, the
Court finds that a reasonable juror could conclude that the State
Defendants,
Dr.
Laskey,
and
Dr.
Cavanaugh
entered
into
a
conspiracy, reached an understanding to deprive Plaintiffs of their
constitutional
rights,
conspiracy’s activity.
and
willfully
participated
in
the
There are genuine disputes that preclude
summary judgment as to Plaintiffs’ section 1983 conspiracy claims.
Statute of Limitations as to Jonathon’s Claims
The State Defendants argue again, as they have done twice
before
this
Court,
that
Jonathon’s
claims
are
time-barred.
Plaintiffs contend that, at a minimum, there is a factual question
for the jury as to when Jonathon knew or should have known that his
constitutional rights had been violated.
As aptly set forth in Judge Nuechterlein’s June 5, 2012, order
55
(DE #90), the statute of limitations for section 1983 claims is
determined by the statute of limitations for personal injury
actions in the state where the incident forming the basis of the
action occurred.
King v. One Unknown Fed. Corr. Officer, 201 F.3d
910, 913 (7th Cir. 2000).
Indiana has a two year statute of
limitations for personal injury actions.
Ind. Code § 34-11-2-4.
Although state law governs the length of the statute of limitations
period, federal law governs when section 1983 claims accrue.
Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006).
court must identify the injury.
“First, a
Next, it must determine the date
on which the plaintiff could have sued for that injury.”
v. Maze, 367 F.3d 694, 696 (7th Cir. 2004).
Hileman
That is the date the
plaintiff knew or should have known that his constitutional rights
had been violated. Id.
In response to the State Defendants earlier argument regarding
this same issue, Judge Nuechterlein ruled as follows:
Finnegan
argues
that
at
the
earliest,
Johnathon Abair knew or should have known that
his constitutional rights had been violated
when the underlying DCS case reached a final
disposition on May 14, 2010. Finnegan argues
that Johnathon Abair was not aware that his
rights had been violated because he was not a
party to the underlying action, did not retain
counsel, never attended any hearings, never
received therapy, and did not have access to
the information related to the case.
As a
result, Abair was not aware that the claims
against his parents were invalidated and that
statements made to him that resulted in his
estrangement were false. Thus, although Abair
suffered the injury in 2007 when speaking to
56
police about his sister’s death, he could not
have sued for that injury until he knew the
statements were false, which occurred at the
earliest on May 14, 2010. See Hileman, 367
F.3d at 696. Finnegan filed this motion to
amend on May 13, 2012, within the two-year
statute of limitations. The Court finds that
Finnegan has made the requisite showing that
leave to amend the complaint would not be
futile as it relates to adding Johnathon Abair
as a plaintiff.
(DE #90, pp. 3-4.)
This Court agreed with Judge Nuechterlein’s
ruling and overruled the State Defendants’ objection.
(DE #105,
pp. 5-6.)
As to Jonathon, Plaintiffs’ First Amended Complaint alleges
that he had a good relationship with his mother and stepfather
until January 29, 2007, when “Det. McDonald told him, falsely, that
Jessica had been murdered and that his mother and stepfather were
blaming him. These false claims destroyed Johnathon’s relationship
with his parents.”
(DE #91, p. 92.)
The First Amended Complaint
alleges that “Jonathon did not learn that Det. McDonald had
provided him with false information and had falsely reported on the
information that he had provided until the night before his August
2011 deposition.”
(Id. at 93.)
Jonathon’s declaration supports
these assertions. (DE #224-17.) Defendant McDonald testified that
she did indeed tell Jonathon that his mother was blaming him for
Jessica’s death.
(DE #224-45.)
Jonathon maintains that, as a
result of Defendant McDonald’s interrogation and false statements,
he “did not speak to his parents for several months and we remained
57
quite distant for years.”
(DE #224-17, p. 2.)
In their reply
brief, the State Defendants attempt to create a dispute as to these
statements,
testimony
but
does
the
not
Court
finds
conflict
with
that
his
Jonathon’s
declaration.7
deposition
Jonathon
declares that he did not know who to trust until he began preparing
for his August 2011 deposition and was confronted with Defendant
McDonald’s reports that “took liberties with the truth.” (Id.; see
also DE #224-19, pp. 3-6.)
Finally, Jonathon points out that he
was not represented in the prior CHINS proceedings, never attended
any hearings, never received any therapy, and did not have access
to even the limited information provided to his sisters. (DE #22417, p. 1.)
evidence.
The State Defendants do not counter any of this
Thus, the Court need not revise its previous rulings
that Jonathon’s claims were timely filed. (See DE #90, pp. 3-4; DE
#102, pp. 5-6; DE #152, pp. 42-43.)
Whether The State Defendants are Entitled to Immunity
The State Defendants assert that Defendant McAninch, Defendant
Salyers, Defendant Myers, and Defendant McDonald are entitled to
7
The State Defendants assert Jonathon testified that his relationship
with Lynnette “had improved” after high school graduation, so he should have
been aware that Defendant McDonald’s statements were false by 2007. (DE #250,
pp. 12-13.) However, the cited testimony actually establishes that Jonathon
left for college and recalled having a “pretty good standstill with my mom, so
– ” (DE #250-1, pp. 2-3.) He agreed it had gotten better after he moved out
because not being in the same household helped. (Id.) This testimony is not
inconsistent with Jonathon’s assertion that his relationship with his family
suffered for years following the interrogation.
58
absolute, quasi-judicial immunity and/or qualified immunity for
their actions.
Plaintiffs disagree.
Absolute Immunity
Because it is a complete defense to liability, “[a]bsolute
immunity
from
civil
liability
for
damages
is
of
a
rare
and
exceptional character,” Auriemma v. Montgomery, 860 F.2d 273, 275
(7th Cir. 1988) (quotation omitted), and there is a presumption
against granting it to government officials.
978 F.2d 362, 365 (7th Cir. 1992).
Houston v. Partee,
The burden of establishing
absolute immunity rests on its proponent, who must show that
overriding
considerations
of
public
policy
require
that
the
defendant be exempt from personal liability for unlawful conduct.
Auriemma, 860 F.2d at 275; Walrath v. United States, 35 F.3d 277,
281 (7th Cir. 1994).
Here, the State Defendants argue that they are entitled to
absolute
immunity
for
actions
taken
in
submitting
petitions,
requests for orders, and formulating and making recommendations to
the Court. Plaintiffs previously conceded that “the DCS defendants
are entitled to immunity for in-court testimony and some aspects of
court preparation,” yet those actions constitute a small part of
the actions Plaintiffs allege violated their Constitutional rights.
(DE #130, p. 35.)
As noted in this Court’s previous opinion and order (DE #152,
59
p. 38), it is undisputed that Defendant McAninch was the only DCS
defendant who testified in the CHINS proceedings, and she had a
limited role.
Rather, when looking at the nature of the function
performed by the State Defendants, Plaintiffs point out their
numerous allegations of reckless investigatory and out of court
actions, which involve factual disputes and have been described in
detail by the Court above.8
These are out of court acts to which
the State Defendants are not entitled immunity. See, e.g., Brokaw,
235 F.3d at 1012 (if defendants knew allegations of child neglect
were false or withheld material information but nonetheless caused
the child’s removal from the home, they violated the Fourth
Amendment and absolute immunity does not protect a social worker
for her role in gathering evidence or initiating the child’s
removal); Millspaugh v. Cnty. Dep’t Of Pub. Welfare of Wabash
Cnty., 937 F.2d 1172, 1176 (7th Cir. 1991) (holding “absolute
immunity does not protect the gathering of evidence [by a social
8
These actions include: the December 5, 2005, substantiation of
medical neglect; the detention of the family on December 20, 2005; the
retention of an allegedly unqualified pediatrician in October 2006 to subvert
the Coroner’s investigation; the seizure of the girls on November 1, 2006, for
investigative purposes; the placement of the girls in a secret out-of-county
location and refusal to consider relative placement; the refusal to comply
with the Coroner’s subpoenas; the direction of nine months of investigatory
therapy designed to interrogate the girls as to Jessica’s death; the failure
to consider exculpatory information; the March 23, 2007, substantiation of
death from physical abuse for Jessica and life/health endangering conditions
for her siblings which was based on false information and omitted exculpatory
information (including prescription errors and expert affidavits); the May 25
amendment of the CHINS petition and continued detention of the girls; the
concealment of exculpatory information including information from Dr.
Cavanaugh on July 11; the refusal to return the girls on August 3, as ordered
by the court; and the confirmation of the substantiations and addition of new
substantiations on December 13, 2007.
60
worker]”); Pelham v. Albright, No. 3:11-cv-99, 2012 WL 1600455, at
*7
(N.D.
Ind.
May
4,
investigatory actions).
2012)
(denying
absolute
immunity
for
As such, the State Defendants have failed
to satisfy the heavy burden that they are entitled to absolute
immunity.
Qualified Immunity
The State Defendants also contend that they are entitled to
qualified immunity.
Under the doctrine of qualified immunity,
“government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their
conduct
does
not
violate
clearly
established
statutory
or
constitutional rights of which a reasonable person would have
known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“The
contours of a clearly established right must be sufficiently clear
that a reasonable official would understand that what he is doing
violates that right.”
Sivard v. Pulaski Cnty., 17 F.3d 185, 189
(7th Cir. 1994) (quotation omitted).
“[A] plaintiff need not
always identify a closely analogous case; rather, he can establish
a clearly established constitutional right by showing that the
violation was so obvious that a reasonable person would have known
of the unconstitutionality of the conduct at issue.”
61
Brokaw v.
Mercer County, 235 F.3d at 1022.9
Thus, this standard provides
ample protection “to all but the plainly incompetent or those who
knowingly violate the law.”
Millspaugh, 937 F.2d at 1176 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
As they did in their motion to dismiss, the State Defendants
claim they did not knowingly violate the law and that their actions
were reasonable; thus, they assert, as state actors, they are
entitled to qualified immunity.
The State Defendants argue that,
although Plaintiffs allege that DCS presented false information to
the prosecutor and the court, “Plaintiffs’ characterization of the
information
as
perspective.”
false
is
solidly
and
exclusively
from
their
This is belied by the material factual disputes in
9
“Specifically, a reasonable person would have known that it was
unconstitutional to use the government’s power to cause, or conspire to cause,
the unjustified removal of a six-year-old child from his parents in order to
destroy the family, based simply on the family’s religious beliefs. Cf. Morris
v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) (“It is beyond purview that
any rational teacher could believe that governmental destruction of a family
based on fabricated evidence is constitutionally allowed.”); id. at 672
(making knowingly false statements of child neglect violates clearly
established constitutional right to familial relations); Malik, 191 F.3d at
1316 (“[I]t is clearly established law that government official’s procurement
through distortion, misrepresentation and omission of a court order to seize a
child is a violation of the Fourth Amendment.”) (internal quotation omitted).
Moreover, even if the individual defendants did not know the allegations of
neglect were false, qualified immunity may still not protect them because,
depending on the nature of the claims of neglect, it may well be that a
reasonable law enforcement official would recognize that [plaintiff’s]
pre-hearing, pre-investigation seizure violated the Fourth Amendment. See,
e.g., Good, 891 F.2d at 1094–95 (denying defendants’ claim of qualified
immunity because a reasonable person should have known that warrantless search
was unconstitutional given that allegations of neglect would not cause a
reasonable person to believe the child was in imminent danger of serious
bodily injury); Franz v. Lytle, 997 F.2d 784, 791–92 (10th Cir. 1993) (no
reasonable officer would believe that he could visually and physically inspect
two-year old child’s vagina based on one complaint that the child had a severe
diaper rash).” Brokaw, 235 F.3d at 1022-23.
62
the record as described above.
Evidence has been presented that
could lead to a finding that DCS arbitrarily and capriciously
substantiated medical neglect against the Finnegans as to Jessica
in retaliation for Roman’s grievance letter and in doing so,
ignored and withheld medical evidence to the contrary.
And, as
noted repeatedly throughout this opinion, genuine disputes exist as
to whether it was reasonable rather than intentionally misleading
to rely on Dr. Laskey’s report as a basis for seizing the girls,
considering both DCS and Dr. Laskey acknowledged that no one else
(including the Coroner, Dr. Cavanaugh, and initial law enforcement
investigators) agreed with it.
There are also disputes as to
whether the State Defendants consistently ignored exculpatory
information and/or refused to disseminate it to the relevant fact
finders, even when it became clear that the medical evidence
confirmed it was not possible for Jessica to have suffered a fatal
beating on the day of her death.
When state actors use the
government’s power to cause, or conspire to cause, the unjustified
removal of children based on retaliatory or other nefarious motives
in order to destroy a family, those actors are not entitled to
qualified immunity; neither are those who distort, misrepresent,
and omit material information in order to seize a child.
See
Brokaw, 235 F.3d 1022-23.
Finally, as to Defendant McDonald specifically, the State
Defendants argue that she is entitled to qualified immunity because
63
she did not knowingly or recklessly submit an affidavit with false
statements. However, as Plaintiffs point out, it is disputed as to
whether Defendant McDonald had an objectively reasonable basis for
believing the facts in her affidavit were true.
Both Tabitha and
Jonathon have declared that she misrepresented their statements,
and evidence exists to show that Defendant McDonald conspired with
DCS to withhold relevant information (including access to the
girls’
interviews)
from
the
Coroner.
As
such,
the
State
Defendants’ motion for summary judgment with respect to immunity is
denied.
In closing, the Court notes that this case is particularly
appropriate for resolution by trial.
There is a voluminous amount
of disputed material evidence that is inappropriate for summary
adjudication.
CONCLUSION
For the reasons set forth above, the Motion for Summary
Judgment
(DE
#200)
and
the
Motion
to
Strike
Plaintiffs’
Inadmissible Evidence (DE #248) are DENIED.
DATED: September 8, 2015
/s/ RUDY LOZANO, Judge
United States District Court
64
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