957 F.2d 920 (1st Cir. 1992), 91-1477, Frazier v. Bailey

Docket Nº:91-1477.
Citation:957 F.2d 920
Party Name:Kevin FRAZIER, Plaintiff, Appellant, v. Edward N. BAILEY, et al., Defendants, Appellees.
Case Date:February 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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957 F.2d 920 (1st Cir. 1992)

Kevin FRAZIER, Plaintiff, Appellant,


Edward N. BAILEY, et al., Defendants, Appellees.

No. 91-1477.

United States Court of Appeals, First Circuit

February 24, 1992

Heard Dec. 5, 1991.

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[Copyrighted Material Omitted]

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Barbara A.H. Smith with whom Quinlan & Smith, Boston, Mass., was on brief, for appellant.

Kevin C. Giordano with whom Dennis R. Anti and Keyes and Donnellan, P.C., Springfield, Mass., were on brief, for Children's Aid and Family Service of Hampshire County, Inc. and Janice E. Stevens.

H. Gregory Williams with whom Brooks, Mulcahy, Sanborn & Williams, Springfield, Mass., was on brief, for Massachusetts Soc. for Prevention of Cruelty to Children and Stephanie Flinker.

William T. Walsh, Jr. with whom Pellegrini & Seeley, P.C., Springfield, Mass., was on brief, for Denise Gelinas.

Felicity Hardee with whom Francis D. Dibble, Jr., Christopher E. Grant and Bulkley, Richardson and Gelinas, Springfield, Mass., were on brief, for Edward N. Bailey.

Before TORRUELLA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

This is an appeal from a grant of summary judgment on immunity grounds for defendants in a civil rights suit. Plaintiff-appellant Kevin Frazier alleges that defendant-appellees Edward Bailey, Denise Gelinas, Stephanie Flinker, Janice Stevens, the Children's Aid and Family Service of Hampshire County, Inc., and the Massachusetts Society for the Prevention of Cruelty to Children interfered with his constitutionally protected parental rights in violation of 42 U.S.C. § 1983. He also alleges that the defendants-appellees acted in violation of the Massachusetts Civil Rights Act ("MCRA") and other state law claims. We affirm the district court's grant of summary judgment.

Standard of Review

Our review of a grant of summary judgment is plenary. Calvary Holdings, Inc. v. Chandler, 948 F.2d 59, 61 (1st Cir.1991); Amsden v. Moran, 904 F.2d 748, 752 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). We, like the district court, must view the record in the light most favorable to the non-moving party and indulge all reasonable inferences in that party's favor. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990); Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). A summary judgment motion will only be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

We are not bound by the district court's reasoning. "Rather '[w]e are free, on appeal, to affirm a judgment on any independently

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sufficient ground.' " Garside, 895 F.2d at 49 (quoting Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir.1987)).


A. Family Background

On February 20, 1982, Frazier married Jamie Fenelon Young. They had two children, Teresa, born January 8, 1982, and Dylan, born July 31, 1983. Frazier and Young separated in April of 1984. The probate court awarded Frazier temporary visitation rights during the summer which permitted him to visit the children on Sundays.

B. Alleged Abuse of Teresa/Alleged Neglect of Dylan

Because of the bitter nature of the ongoing custody battle, Frazier arranged to visit the children only in the presence of others. After his visit on September 2, 1984, Young took Teresa to see Dr. Peter Kenny, the family pediatrician. Young informed Dr. Kenny that Frazier had abused Teresa during the September 2 visit. After Dr. Kenny examined Teresa he filed, on September 6, 1984, a report pursuant to Mass.Gen.Laws Ann. ch. 119, § 51A ("51A") with the Commonwealth of Massachusetts Department of Social Services ("DSS"). 1

As required under Massachusetts law, DSS referred the case to Sheila Ryan, an employee investigator, to investigate and evaluate the charges. Mass.Gen.Laws Ann. ch. 119, § 51B. 2 After her investigation, Ryan concluded that there was reasonable cause to believe that Teresa had been sexually abused.

Meanwhile, on September 9, 1984, the children visited Frazier. During that visit, Frazier noticed that Dylan had a serious case of diaper rash and took him to the emergency room at Baystate Medical Center. There, both Dylan and Teresa were given a physical examination by Dr. Peter Plasse. Dr. Plasse concluded that neither child demonstrated any signs of physical or emotional abuse. Dr. Plasse determined, however, that Dylan's diaper rash indicated a serious case of child neglect. Dr. Plasse reported the child's condition to DSS, but this report was never the subject of an investigation.

C. Counselling of Teresa by Janice Stevens

On September 12, 1984, Ryan referred Teresa's case to the Children's Aid and Family Service of Hampshire County (CAFS), a private agency with which DSS has an ongoing contractual relationship to provide counselling, pursuant to Mass.Gen.Laws Ann. ch. 119, § 51B. 3 CAFS assigned

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Teresa's case to Janice Stevens, a licensed social worker and then Director of Counselling for CAFS. Stevens's sole function, in her own words, "was to counsel Teresa Frazier and Jamie Young. It was not my function to investigate the allegation of child abuse." Stevens counselled Teresa till July 1987, during which time over 100 play therapy sessions were conducted.

Frazier alleges that during the counselling sessions Stevens coached and programed Teresa to make false accusations of sexual abuse through the use of anatomically correct dolls. Further, Frazier alleges that Stevens improperly incorporated information given by Young in her session notes as "data" despite her awareness that Frazier and Young were in the midst of a bitter custody battle. Frazier claims that Stevens refused to meet with Dr. Plasse or other experts who had concluded that there had been no sexual abuse. Finally, Frazier asserts that Stevens refused to interview witnesses who were present during the September 2 visit during which the alleged abuse of Teresa took place.

D. Referral to Denise Gelinas

In January of 1985 Stevens referred Teresa and Young to Dr. Denise Gelinas, a psychologist in private practice who specializes in the evaluation and treatment of sexual abuse and incest. Around this time Dr. Gelinas was also contacted by Susan Mossman, a state trooper assigned to the Hampden County District Attorney's Office, regarding the matter. On January 14, 1985, Young gave Dr. Gelinas permission to discuss "my contact and my daughter Teresa's situation and contact" with Trooper Mossman, Stevens, DSS, Ryan, and Young's attorney. In the course of her evaluation of Teresa, Dr. Gelinas engaged in telephone conversations with Trooper Mossman, Ryan, and Stevens.

In testimony Dr. Gelinas later gave the Hampden County grand jury, she stated that she had met with Teresa six times over a period of approximately three months, four of which were videotaped. Prior to the first interview, Dr. Gelinas met with Young to discuss relevant family background. During the sessions, Dr. Gelinas provided Teresa with anatomically correct dolls that Teresa used to demonstrate acts of masturbation and oral sex which Teresa attributed to her father.

In March of 1985, according to Dr. Gelinas, she met with Frazier at the behest of Trooper Mossman. At that meeting, according to Dr. Gelinas' later grand jury testimony, Frazier was unwilling to answer questions regarding the alleged abuse. According to Frazier, he paid sixty-five dollars to Dr. Gelinas for the visit.

On March 13, 1985, after the meeting with Frazier, Dr. Gelinas sent a five-page letter to a probation officer of the Hampshire County Probate Court where the Frazier divorce and custody case was pending. In that letter Dr. Gelinas stated that the "very strong conclusion is that Theresa [sic] has been sexually abused and that the person who is responsible is her father, Kevin Frazier." Also in that letter Dr. Gelinas spoke favorably of Young. On the other hand, Dr. Gelinas did note that Teresa had a strong loyalty and attachment to her father and that supervised visitations should be allowed to continue. Young, on March 19, gave written permission to Dr. Gelinas to send the report and cover letter to Trooper Mossman. In April of 1986 Dr. Gelinas testified under subpoena in front of a Hampden County grand jury regarding the abuse charges.

Frazier maintains that like Stevens, Dr. Gelinas ignored exculpatory evidence. Further, he asserts that Dr. Gelinas coached and programed Teresa so that the child would falsely accuse him of sexual abuse.

E. Alleged Abuse of Dylan

Young, on February 13, 1986, brought the children for an examination with Dr. Christine Bartlett, an associate of Dr. Kenny, the family pediatrician. Young told Dr. Bartlett that Dylan had been molested by Frazier during a visit on February 9, 1986. Additionally, she said that Dylan had complained to his day care providers that Frazier had "hurt [Dylan's] wee-wee." Bartlett

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examined Dylan and found no physical signs of abuse. She, nonetheless, reported the claimed sexual abuse of Dylan to the DSS pursuant to section 51A.

On February 14, 1986, Massachusetts State Police Trooper Denise Fisher videotaped Teresa's and Dylan's testimony at the Hampden County District Attorney's Office. At the videotaping the children gave information regarding alleged sexual abuse by Frazier.

That same day DSS assigned the Massachusetts Society for the Prevention of Cruelty to Children ("MSPCC") to investigate the alleged sexual abuse of Dylan, pursuant to section 51B. MSPCC, on...

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