Court: District Court, E.D. North Carolina; February 17, 2015; Federal District Court
Pamlico County temporarily removed Sonya Perry’s three minor children from her custody due to allegations of child abuse, leading her to file a lawsuit on March 1, 2013, against the county and two DSS officials: Robert S. Johnson and Betsy Strag. Perry's claims include: negligence, violation of parental rights, malicious prosecution against Strag, a violation of civil rights under 42 U.S.C. § 1983, and respondeat superior. The defendants removed the case on April 26, 2013, and subsequently moved for summary judgment on July 30 and October 17, 2014. The court ultimately granted the defendants' motions.
The incident prompting the removal occurred on September 27, 2009, when Perry, her children, and her boyfriend, Frank LaBoy, were at home. After LaBoy attempted to manage C.K.’s tantrum by taking her to her room, Perry found C.K. unconscious following a thump. LaBoy claimed C.K. wiggled out of his arms. Emergency Medical Technicians (EMTs) responded, with EMT Michelle L. Wilkins Allen noting that C.K. was slightly lethargic but responsive, and had a prior arm injury from roller skating while under LaBoy's supervision. C.K. indicated that "Daddy broke [her] arm." Further conversations revealed prior instances of alleged abuse by LaBoy, prompting EMT Allen to suspect child abuse and report her concerns to Pamlico County DSS. After arriving at the hospital, Perry remained with C.K., while LaBoy and others waited in the waiting room.
LaBoy disciplined A.L. in a hospital waiting room by striking her on the bottom, which was witnessed by nurse Stacey Barnes. Barnes reported the incident to C.K.’s physician, Dr. Gordon H. Bobbett, II, who noted her concerns about LaBoy's behavior and the potential abuse of C.K., referencing previous injuries in C.K.’s medical history. Dr. Bobbett documented that C.K. claimed her mother's boyfriend had broken her arm and expressed doubt regarding her mother’s ability to care for her safely. Following the report, social workers Annie Donaldson and Lauren Weatherly from Pamlico County DSS arrived to investigate, interviewing various individuals including LaBoy, C.K., and medical staff. Perry, C.K.'s guardian, expressed fear of LaBoy but felt his presence was necessary for A.L.'s safety. C.K. reported to the social workers that LaBoy had previously hurt her. When LaBoy was interviewed, he initially denied spanking but later described the act as a minor 'tap.' In light of the investigation, DSS arranged for a kinship placement for the children with Perry's mother, and after assessing Vuinovich's home, approved her as a temporary guardian.
On September 28, 2009, Betsy Strag and Robert Johnson from the Pamlico County DSS joined an investigation concerning Perry's children, finding that Vuinovich had misrepresented her criminal history and involvement with Child Protective Services. Four neglect reports had been filed against Perry. Based on this information, DSS filed Petitions for Orders for Nonsecure Custody, which were signed by District Court Judge Mack that same day. The orders placed each child in nonsecure custody with DSS, and continued orders were issued by Judges Alexander, Spencer, and Waddell until January 6, 2010. The children were placed in foster care while relatives were evaluated for placement.
DSS was instructed to serve the fathers of the children and to provide services to eliminate the need for juvenile placement. The children were placed with Dale LaBoy on October 7, 2009, with restrictions on contact with Perry and Frank LaBoy. At a hearing on October 14, Perry's counsel objected to the nonsecure custody on constitutional grounds, but the court ruled that the matter would be addressed in the adjudication hearing and upheld the custody orders. C.K. was subsequently placed with his father, Kyle Chute, in Maine.
After several continuations due to witness unavailability, the adjudication hearing began on January 6, 2010, where DSS presented evidence of neglect and dependency but did not prove abuse involving C.K., leading to the dismissal of that allegation. The hearing was continued until March 2, 2010, when the court dismissed the petitions with prejudice and ordered the return of the children to Perry. Following the hearing, arrangements for the children's return, particularly C.K., were to be made through the DSS office.
Perry picked up A.L. from Dale LaBoy before arriving at the Department of Social Services (DSS), where she saw Bobby Stancil, L.K.’s father, in conversation with social workers but could not hear them. Twenty minutes later, social workers informed Perry she could collect L.K. from daycare, but upon arrival, she found that Bobby had already picked up L.K. Stancil had previously retrieved L.K. for visitation without issues, and the social workers testified they did not instruct him to do so that night, nor were they aware of his actions. On March 3, 2010, Perry filed ex parte orders with Judge Spencer for the return of her children, and when DSS learned L.K. was not in Perry’s custody, they attempted to facilitate her return, which occurred shortly after. By the week of March 8, 2010, C.K. also returned to Perry’s custody, and she regained full legal custody of both children.
The excerpt outlines the legal standards for summary judgment, indicating that it is appropriate if there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to demonstrate the absence of genuine issues of material fact, while the nonmoving party must produce specific evidence to show otherwise. Additionally, mere speculation or inferences cannot create genuine disputes of material fact.
Perry’s claims were deemed untimely, as the applicable statute of limitations for actions under 42 U.S.C. § 1983 is borrowed from state law, specifically North Carolina's three-year statute for personal injury actions. Perry’s claims arose following the removal of her children on September 28, 2009, and since she did not file suit until March 1, 2013, her claims were barred by the statute of limitations. Perry contended that she was unaware of her potential claims until a favorable ruling on March 2, 2010, but her earlier admissions indicated that she knew or should have known of her claims by November 18, 2009.
Perry's claims are time-barred even if November 18, 2009, is considered the accrual date. She attempts to invoke the 'continuing wrong' doctrine based on a precedent case, Williams v. Blue Cross Blue Shield of North Carolina, which distinguishes between continual unlawful acts and continual ill effects from an original violation. The court must evaluate the nature of the wrongful conduct and harm in relation to the statute of limitations. Unlike Williams, which dealt with a constitutional challenge and varying legal proceedings, Perry's case presents a single, measurable harm occurring at the time of the original violation. The ongoing nonsecure custody was a continued effect of the initial removal, not a new violation, and Perry was aware of her specific loss from the onset. Consequently, her claims accrued no later than November 18, 2009, making them subject to a three-year statute of limitations.
Even if the claims were considered timely, the defendants could still obtain summary judgment. Perry alleges negligence against all defendants, including Johnson and Strag in both official and individual capacities. The official-capacity claims merge with claims against Pamlico County, which is shielded by governmental immunity for performing governmental functions. Any waiver of immunity by the county through insurance is limited to the policy's coverage, and if the insurance does not cover the alleged negligent acts, immunity remains intact. Perry's individual negligence claims against Johnson and Strag are barred by public official immunity unless she can prove malice or corruption, which she has not done. Johnson's actions were not shown to be malicious or corrupt, and similarly, Perry has not established any genuine issues regarding Strag's conduct. Therefore, public official immunity protects both Johnson and Strag from individual liability in this context.
Perry's complaint alleges that Strag drafted an affidavit with malice after a disagreement, but her own testimony contradicts this claim. Strag relied on credible information from multiple sources indicating child abuse in Perry's household, which justified her actions in investigating and petitioning for nonsecure custody of Perry's children. As a result, public official immunity protects Strag from Perry's negligence claims. Perry also claims Strag maliciously initiated and continued state-court proceedings, but Strag is entitled to absolute prosecutorial immunity and public official immunity, as no reasonable jury could find malice given Perry's acknowledgment of probable cause for the proceedings.
In count two, Perry asserts violations of her constitutional rights due to a misleading affidavit that led to the wrongful removal of her children and claimed that statutory requirements for nonsecure custody were not met, violating her due process rights. For damages under the Fourteenth Amendment, Perry must use 42 U.S.C. § 1983 rather than pursue direct claims against state officials. Regarding her North Carolina constitutional claim, Perry must show a lack of adequate state remedy, which the court finds she has not demonstrated. Consequently, the court grants summary judgment for the defendants on all counts. Perry argues that governmental immunity prevents her from obtaining adequate remedies, and North Carolina law suggests that when governmental immunity is a barrier, common law claims do not suffice for redressing constitutional violations.
The Craig court determined that the plaintiff's negligence claim against the New Hanover County Board of Education was inadequate due to sovereign immunity, allowing the plaintiff to pursue a claim under the North Carolina Constitution instead. In Wilcox v. City of Asheville, the North Carolina Court of Appeals assessed whether denying public official immunity to defendant-officers at summary judgment provided an adequate state remedy, concluding that it did. The Wilcox court interpreted Craig as emphasizing the "possibility" of an alternative state remedy, asserting that a mere chance of success at trial suffices for adequacy. The court affirmed that the plaintiff's potential to overcome public official immunity warranted the finding of an adequate remedy, distinguishing between mere success and the chance of success. It also considered cases where state law tort claims provided adequate remedies, ultimately ruling that the argument against adequacy based on the need to prove malice was insufficient, as a jury could still find in favor of the plaintiff. The current case differs from Craig and Wilcox, as defendants Strag and Johnson do not have absolute governmental immunity in their individual capacities and can only claim public official immunity, which the plaintiff could potentially overcome by establishing malice.
In contrast to the Wilcox case, where plaintiffs were allowed to proceed with common-law tort claims due to a genuine issue regarding public official immunity, the court has granted summary judgment to defendants Strag and Johnson, preventing Perry from pursuing her common-law tort claims against them. Additionally, the court's ruling on governmental immunity bars Perry's negligence claim against Pamlico County. The central issue is the interpretation of what constitutes an opportunity to present a claim under Craig, specifically whether a common-law claim that fails due to public official immunity is still considered "adequate" under Corum and related cases. The court suggests that it does not need to predict how the North Carolina Supreme Court would resolve this issue, as it assumes, without deciding, that Perry lacks an adequate state remedy under Corum. However, Perry has not demonstrated a genuine issue of material fact regarding a violation of the law of the land clause in the North Carolina Constitution, as her inability to prove a federal due process violation also undermines her state constitutional claim. Consequently, the court grants summary judgment to the defendants on Perry's claims in count two.
In count four, Perry alleges violations of her parental rights under 42 U.S.C. § 1983 and the Fourteenth Amendment, asserting that her due process rights were infringed. To succeed under § 1983, a plaintiff must demonstrate a violation of constitutional rights by someone acting under state law.
A plaintiff pursuing a Section 1983 claim must demonstrate a defendant's personal involvement in the alleged constitutional violations. In Perry's case against Johnson, the court found insufficient evidence of Johnson's direct participation in the due process violations or any failure to supervise. Perry's claims were deemed speculative, relying on Johnson's position as director of DSS without substantiating involvement. Consequently, the court granted summary judgment in favor of Johnson.
Regarding Strag, who served as a social worker for Pamlico County DSS, she is protected by absolute prosecutorial immunity for her actions in filing petitions, as established in precedent. Additionally, Strag is entitled to qualified immunity, shielding government officials from liability unless they violate clearly established rights. This immunity applies to social workers in child custody and abuse cases, ensuring they are only held accountable for clear legal transgressions, not ambiguous decision-making.
An official protected by qualified immunity may be held personally liable for unlawful actions based on the objective legal reasonableness of their conduct, as determined by clearly established legal rules at the time of the action. An official can assert qualified immunity if a reasonable person in their position could have believed their conduct was lawful. To evaluate qualified immunity, courts must identify the specific right allegedly infringed by the official's actions and then address two key questions: (1) whether the alleged facts constitute a violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. A defendant is entitled to qualified immunity if the answer to either question is "no." A right is considered clearly established if it is sufficiently clear that a reasonable official would understand that their actions violate that right, though a plaintiff does not need to cite a directly analogous case. The standard for clearly established rights ensures a balance between protecting constitutional rights and allowing officials to effectively perform their duties, as established by authoritative decisions from the Supreme Court, relevant Courts of Appeals, or the highest state courts.
Binding circuit precedent, a state agency regulation, and a Justice Department report collectively establish clear law regarding due process rights. Perry did not present a genuine issue of material fact to support her claim that Strag violated her due process rights. While the Fourteenth Amendment acknowledges parents' fundamental rights regarding their children's care, these rights are not absolute and must be weighed against the state’s interests as parens patriae. Judicial precedents emphasize that social workers may remove children in emergencies if their actions do not "shock the conscience."
In this case, despite the trial court dismissing petitions, there was substantial evidence of child abuse which justified Strag's decision for prehearing removal of Perry's children. Strag relied on credible information from multiple sources, including Perry’s children and medical professionals, which provided reasonable suspicion of abuse. Specific incidents cited include statements from children about being harmed and medical reports indicating a history of injuries.
Strag was also aware of previous neglect complaints against Perry. Given the circumstances, her actions were deemed reasonable and necessary for the safety of the children, and did not violate Perry’s substantive due process rights. A failure to hold agencies liable for such actions could lead to inaction, thus endangering children in abusive situations. Additionally, Perry did not demonstrate a genuine issue regarding the violation of her procedural due process rights.
Perry's claims under section 1983 were dismissed as he failed to demonstrate a violation of his constitutional rights, specifically his Fourteenth Amendment due process rights. The court clarified that alleged violations of state law do not support federal claims under section 1983, as these require constitutional violations. Consequently, summary judgment was granted to Strag, as there was no underlying constitutional infringement.
Regarding Perry's claims against Pamlico County, he needed to establish (1) that a constitutional injury occurred due to an employee's actions, (2) that the county had a policy or custom indicating deliberate indifference to Perry's due process rights, and (3) that this policy or custom caused the constitutional injury. Perry could not prove an underlying constitutional violation or identify a policy or custom of deliberate indifference by the county. The court emphasized that municipal liability requires proof that a municipal decision reflected deliberate indifference to the risk of constitutional violations, which is a stringent standard. Mere negligence does not satisfy this requirement; instead, it necessitates evidence that a municipal actor disregarded known consequences of their actions or inactions.
A plaintiff under Section 1983 must demonstrate both the requisite culpability and a direct causal link between municipal action or inaction and the deprivation of federal rights. Deliberate indifference and causation are distinct requirements. In the case presented, Perry has not established a genuine issue of material fact regarding a policy or custom of deliberate indifference. Perry's argument relies solely on her attorney's unsubstantiated assertions, which do not constitute competent evidence. Consequently, her Section 1983 claim against Pamlico County is unsuccessful.
Furthermore, Perry has failed to demonstrate a direct causal connection between any alleged policy or custom, or specific training deficiencies, and the violation claimed. A mere assertion that better training could have prevented an injury is insufficient; a plaintiff must show specific training deficiencies tied to a pattern of unconstitutional conduct or that a violation is a highly predictable result of inadequate training. The need for improved training must be evident, and the inadequacy must be likely to result in constitutional rights violations, indicating deliberate indifference by policymakers. To substantiate a claim against Pamlico County for failure to train, Perry must prove that the officers were inadequately trained for their specific tasks and that this inadequacy is closely linked to the injury suffered. A pattern of similar constitutional violations by untrained employees is typically necessary to demonstrate deliberate indifference, as policymakers cannot be deemed deliberately indifferent without awareness of training deficiencies. Only in exceptional cases may a county be held liable under Section 1983 without evidence of a prior pattern of violations.
Perry failed to demonstrate any specific training deficiencies or a pattern of unconstitutional conduct, which is necessary to establish municipal liability under Section 1983. The court highlighted that merely showing a single incident is insufficient; substantial proof is needed to connect a policy to a constitutional violation. The ongoing state-court litigation regarding the welfare of Perry’s children does not support a claim that Pamlico County's policies foreseeably lead to a violation of Perry’s Fourteenth Amendment rights. Consequently, the court granted summary judgment to Pamlico County. In count five, Perry's respondeat superior claim was dismissed due to the lack of evidence of underlying wrongful conduct. Furthermore, the court noted procedural deficiencies in Perry's opposition memorandum, including failure to cite the record properly and noncompliance with local rules and federal procedures. The court indicated that Perry's factual claims were largely hypothetical and unsupported, leading to the conclusion that the defendants' motions for summary judgment were granted, and the case was closed.
Perry’s memorandum is criticized for containing numerous typographical, spelling, and grammatical errors, diminishing its effectiveness as legal advocacy. It is noted that defendants failed to adequately support their briefs with record citations. Perry asserts that even if the statute of limitations bars recovery for actions preceding three years before the complaint was filed, it should not prevent claims related to recent actions, such as a refusal to return children following a court ruling. However, the court finds that these claims are a continuation of prior injuries and do not reset the limitations period.
Perry also contends that defendants waived governmental immunity by participating in a risk pool, but the contract explicitly states that no coverage exists for claims protected by sovereign or governmental immunity under North Carolina law. Thus, Perry cannot overcome this express exclusion.
The court addresses count three before count two due to the implications of governmental and public official immunity in both counts. It references the Wilcox case, which indicates that a preliminary dismissal on grounds of public official immunity does not determine the adequacy of a claim. While defendants argue that the Rooker-Feldman doctrine bars Perry’s claims in count two, Perry counters that it does not apply since she was not a state-court loser and the defendants removed the case to federal court. Despite this, the court concludes that it need not address the applicability of Rooker-Feldman because Perry’s claims are already time-barred and lack merit, referencing relevant case law to support this conclusion.
