182 F.3d 89 (2nd Cir. 1999), 98-7663, Wilkinson v Russell

Docket Nº:Docket No. 98-7663
Citation:182 F.3d 89
Party Name:THOMAS WILKINSON, BENJAMIN WILKINSON, by next friend Thomas Wilkinson and JONATHAN WIEGAND, Plaintiffs-Appellants, v. CAROLINE S. RUSSELL, JAMES ADAMS and GERALD JEFFORDS, Defendants-Appellees.
Case Date:June 17, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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182 F.3d 89 (2nd Cir. 1999)

THOMAS WILKINSON, BENJAMIN WILKINSON, by next friend Thomas Wilkinson and JONATHAN WIEGAND, Plaintiffs-Appellants,



Docket No. 98-7663

United States Court of Appeals, Second Circuit

June 17, 1999

Argued November 17, 1998

Plaintiffs appeal from two decisions of the United States District Court for the District of Vermont (William K. Sessions, Judge) dismissing their federal and state law claims, which arose out of an investigation by the defendant social workers into reported child abuse by plaintiff Thomas Wilkinson. As to plaintiffs' federal claims, we hold that plaintiffs have failed to present evidence sufficient to demonstrate a violation of their constitutional rights. As to plaintiffs' remaining claims, we hold that defendants are shielded from liability on the basis of qualified immunity.


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HAROLD B. STEVENS III, Stowe, Vermont, for Plaintiff-Appellants

MICHAEL O. DUANE, Assistant Attorney General, Waterbury, Vermont (William H. Sorrell, Attorney General for the State of Vermont), for Defendant-Appellees

Before: CALABRESI, SACK and SOTOMAYOR, Circuit Judges.

Judge Calabresi concurs by separate opinion.

SOTOMAYOR, Circuit Judge:

Plaintiffs appeal from two decisions rendered by Judge William K. Sessions in an action before the United States District Court for the District of Vermont. First, plaintiffs contend that the trial court erred in its July 31, 1997 grant of summary judgment, which dismissed plaintiffs' claims of libel and slander and negligence per se. Wilkinson v. Russell, 973 F.Supp. 437 (D. Vt. 1997). Second, plaintiffs appeal from the trial court's April 3, 1998 grant of defendants' Rule 50(a) motion for judgment as a matter of law, which dismissed plaintiffs' remaining federal and state law claims. Wilkinson v. Russell, No. 2:94-CV-175 (D. Vt. Apr. 3, 1998). For the reasons to be discussed, we affirm both decisions.


Thomas Wilkinson initiated this action, on behalf of himself and his son, Benjamin, asserting various federal and state law claims arising out of an allegedly inadequate child abuse investigation conducted by the defendant social workers. Wilkinson complained that defendants wrongfully substantiated allegations by his estranged wife, Linda Wiegand, that he had sexually abused Benjamin. Wilkinson further complained that defendants improperly disclosed the results of their faulty investigation, which also implicated Wilkinson in the sexual abuse of his stepson, Jonathan, to officials working on behalf of the family court in Connecticut then presiding over divorce and custody proceedings between Wilkinson and Wiegand.

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A. Factual History

Wilkinson initiated the Connecticut divorce proceedings against Wiegand in September 1992, seeking joint custody of their child Benjamin, who was born on January 8, 1989. Wiegand opposed joint custody and, almost immediately upon being served with the divorce complaint at her Connecticut home, moved to Stowe, Vermont with both Benjamin and Jonathan Wiegand, her son from a previous marriage.

In December 1992, Dr. Gordon Ahlers, a family physician, recommended to Wiegand that she take her sons to meet with Dr. Stephen Balsam, a licensed child psychiatrist. Dr. Ahlers had become concerned about the boys when members of his staff reported that the children were using inappropriate sexual language and behaving violently in the office waiting area. Later that month, Wiegand began visiting Dr. Balsam in Burlington, Vermont. At the end of her second session with Balsam, Wiegand voiced concerns that Wilkinson had been sexually abusing both Benjamin and Jonathan. Dr. Balsam met with the boys for the first time on January 6, 1993, and, on the basis of that single visit, concluded that Wilkinson was abusing both children. Dr. Balsam advised Wiegand to keep Jonathan and Benjamin away from Wilkinson, to have the boys examined by a physician, and to report the sexual abuse to the Vermont authorities.

At Dr. Balsam's suggestion, Wiegand returned with her children to see Dr. Ahlers on January 14, 1993. Dr. Ahlers examined each child, but found no physical signs of abuse. Nevertheless, on January 15, Wiegand placed an anonymous phone call to the Vermont Department of Social and Rehabilitation Services (the "SRS"). Wiegand reported that she was aware of a possible claim of abuse and inquired into the manner in which the SRS would respond to such allegations. The SRS caseworker who received the call, Jane Clark, explained that the SRS would investigate any formal complaints.

On January 18, 1993, Wiegand again called Clark, this time identifying herself and requesting a meeting. Clark met with Wiegand shortly thereafter, listened to Wiegand's allegations that Wilkinson had abused both Benjamin and Jonathan, and reviewed a number of sexually explicit drawings by both children. Clark also consulted with Dr. Balsam, who phoned to explain that he had met with the children two or three times during the previous month and that he was convinced that Wilkinson had in fact abused his son and step-son. On January 20, defendant Gerald Jeffords, an SRS supervisor, reviewed Clark's intake forms and assigned defendant James Adams, an SRS caseworker with more than twenty years' experience, to investigate the reported abuse.

On January 21, 1993, Adams separately interviewed each child, Benjamin and Jonathan, at the Stowe Police Department in the presence of Detective Bruce Merriam. Wiegand consented to the interviews, but Wilkinson was never contacted. A transcript of the taped interview with Benjamin (but not of the taped interview with Jonathan) was entered into evidence at trial. That transcript revealed that during his interview with Adams and Merriam, Benjamin implicated Wilkinson in assorted episodes of sexual abuse. Benjamin's comments, moreover, were exceedingly graphic. In describing the alleged sexual abuse, Benjamin volunteered numerous details that suggested sexual knowledge highly unusual for a four year old child.

Although Benjamin provided detailed accounts of several incidents of apparent sexual abuse, the transcript reveals considerable problems with the boy's version of events. For instance, Benjamin offered many of his comments in response to leading questions. (See, e.g., Transcript from 1/21/1993 child interview (Tr.) at 5 (Q: "Does this mean that Daddy's doing some things you don't like?").) Also, some of the child's accusations were implausible.

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Benjamin described an incident in which his father "cut [his] eye out," leaving Benjamin with only "one eye." (Tr. at 17-18.) Although Adams conceded at trial that this claim was "a bit fantastic," he had no explanation for failing to follow up on the child's bizarre comments beyond the fact that "it was clear that he had both eyes." (4/1/98 Trial Tr. at 141, testimony by James Adams.) Finally, although Benjamin at times insisted that his comments were true, at other times he expressly indicated that his mother had prompted him to make up his claims against Wilkinson. (See, e.g., Tr. at 11 (A: "She makes me say it. I did it for mom.").) Despite these assorted problems, defendant Adams recommended that the SRS substantiate1 Wiegand's report that Wilkinson was guilty of abusing Benjamin.

Detective Merriam, for his part, followed up on the two interviews by contacting Dr. Balsam, who once again expressed his view that Wilkinson was guilty of sexual abuse. Merriam also spoke with Dr. Ahlers, who reported finding no physical evidence of abuse, and with Wiegand, who reiterated her concerns regarding the alleged sexual molestation. Finally, Merriam spoke with Wiegand's landlord and visited her home in Vermont to confirm that the lay-out was consistent with the boys' comments.2 Based on his interviews with the children along with the results of his separate investigation, Merriam swore out an affidavit of probable cause against Wilkinson. On January 25, 1993, following Merriam's submission of his affidavit to a Vermont state court, Wilkinson was arrested and charged with sexually abusing Benjamin. Wilkinson pled not guilty and was released on $20,000 bail on the condition that he have no contact with Benjamin or with Jonathan. Wilkinson did not see either boy again for over nine months.

Shortly after Wilkinson's arrest, on January 27, 1993, the Vermont State Attorney's Office notified Adams that Wiegand's nephew (her sister's son) had complained to his father, Craig Martin, that Wiegand had sexually abused him. Adams responded by calling Martin on February 2. Martin, however, refused to permit Adams to speak with his son and insisted that no abuse had taken place. According to Adams's undisputed trial testimony, he subsequently called Dr. Balsam to discuss this episode and to raise the possibility that Wiegand was coaching her own children to make false allegations against their father. Balsam rejected this possibility, however, and reiterated his view that Wiegand was trustworthy. Adams took no further steps to investigate either Wiegand's possible abuse of her nephew or the possibility that Wiegand was coaching her own children to claim abuse.

In a letter dated February 9, 1993, Adams and his supervisor, Jeffords, notified Wilkinson that the SRS had substantiated the report of child abuse involving Benjamin. Wilkinson thereafter initiated an appeal process to the state Human Services Board, claiming that Wiegand had coached the children to make their allegations in retaliation for his seeking joint custody of Benjamin in the Connecticut divorce action. He further maintained...

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