Arledge v. Sherrill

• Decision Date: 18 August 1999
• Docket Number: No. 32,189-CA.,32,189-CA.
• Citation: 738 So.2d 1215
• Parties: Joseph Miles ARLEDGE, Plaintiff-appellant, v. Deborah SHERRILL, et al., Defendants-appellees.
• Court: Court of Appeal of Louisiana — District of US

738 So.2d 1215

Joseph Miles ARLEDGE, Plaintiff-appellant, v. Deborah SHERRILL, et al., Defendants-appellees.

No. 32,189-CA.

Court of Appeal of Louisiana, Second Circuit.

August 18, 1999.

COPYRIGHT MATERIAL OMITTED

Albert W. Block, Jr., Monroe, Counsel for Joseph Miles Arledge.

Victoria R. Murry, Baton Rouge, Counsel for State of LA, Dept. of Justice

F. Drake Lee, Jr., Shreveport, Counsel for E. Rudolph McIntyre, Jr.

Fred Schroeder, Counsel for Lucille Lynn and Ouachita Sheriff Department.

Michael E. Kramer, Winnsboro, Counsel for Janet Mize Hendricks and Ronald Hendricks.

Before STEWART, CARAWAY and PEATROSS, JJ.

CARAWAY, J.

This action stems from the repeated sexual abuse of a five-year-old by an unknown assailant. The child's father, who was first charged with the crime and then cleared, brings this action individually and on behalf of the minor child against several defendants, including officials in the state office of social services and the attorney for his former wife, the child's mother. Because of the continued sexual abuse of the child which occurred during the time of the mother's custody and the continued criminal prosecution of the father, the plaintiffs assert various claims for constitutional rights violations, intentional infliction of emotional distress and malicious prosecution. Following summary judgment proceedings and a ruling on an exception of no cause of action, these claims were dismissed by the trial court, and we now affirm the trial court's rulings.

Facts and Procedural History

Joseph Miles Arledge ("Arledge") brings this action individually and on behalf of his minor child, J.A., (together, the "Plaintiffs"). Underlying this action are three other proceedings involving Arledge and the sexual abuse and custody of J.A. The first action stemmed from the divorce of Arledge and his wife, Janet Mize ("Mize"), and concerned their custody battle over J.A. (hereinafter the "Custody Proceeding"). In early May 1994 in the course of the Custody Proceeding, Arledge voiced suspicions of possible sexual abuse of J.A. Mize took J.A. to Dr. Meade O'Boyle for a sexual abuse evaluation on May 16, 1994. On the same day, J.A. was interviewed by Deborah Sherrill ("Sherrill"), a defendant in this action who is an employee of the Office of Community Services ("OCS") in Ouachita Parish, an office of the Louisiana Department of Social Services. Though the record is somewhat sketchy, this involvement of Sherrill marked the beginning of a secondary proceeding by which the OCS began exercising its powers pursuant to the Louisiana Children's Code (hereinafter the "OCS Proceeding"). A third proceeding arose with the arrest of Arledge on May 24, 1994 for aggravated rape of J.A. after Dr. O'Boyle's examination confirmed that J.A. had been sexually abused (hereinafter the "Criminal Proceeding").

The foregoing proceedings continued in varying phases of litigation or investigation into 1995. In January, E. Rudolph McIntyre, Jr. ("McIntyre"), a defendant and appellee herein, enrolled as Mize's attorney in the Custody Proceeding. Though J.A. remained in Mize's custody following Arledge's arrest and release on bail, the Custody Proceeding (which suit record is not in evidence before us) apparently remained pending.

On March 6, 1995, Mize took J.A. to Dr. O'Boyle for a second examination. Dr. O'Boyle prepared the following report of the examination:

[J.A.] is a 5 year old white female child who is in kindergarten. She comes in for re-evaluation of sexual abuse. Essentially, [J.A.] has been living with her mother, Janet Hendricks, for about the last 7-8 months. [J.A.] indicates that when she was visiting her father, Miles (Arledge), he would take her in his bedroom, and he would put his wiener in her front and her back part, and she points to her vagina and her anus.

Physical exam continues to show that her hymenal ring is not intact and that her anus gapes open. The hymenal ring opening is not that large, but her anus opening is about 2 cm., and one can easily see 4-5" in to the anus, this is a very significant opening. I'll have to compare the photographs to my previous photographs, but I don't see any improvement in her anal area.

Copies of Dr. O'Boyle's report were sent at that time to the OCS and to McIntyre, and Plaintiffs allege that the report was then "concealed and withheld" from Arledge by the OCS and McIntyre. Plaintiffs also allege that the expense of the March 6 examination was billed to the district attorney as a cost in the Criminal Proceeding.

On December 28, 1995, Sherrill submitted to a deposition in the Custody Proceeding and was ordered to produce the complete records of the OCS relative to its investigation. During the deposition, it was revealed to Arledge that Dr. O'Boyle had examined J.A. a second time on March 6, 1995. Dr. O'Boyle's second report was given to Arledge's counsel on December 29, 1995 and the report, together with Dr. O'Boyle's testimony after she compared photographs taken during the two examinations, revealed that J.A. had continued to be sexually abused between May 16, 1994 and March 6, 1995. During this period of time, J.A. was in Mize's exclusive custody and Arledge had no unsupervised contact with J.A.

On January 2, 1996, on the basis of Dr. O'Boyle's second report and her testimony, the charges against Arledge were nolle prossed prior to trial and J.A. was removed from Mize's custody and placed into protective custody with the OCS. At that time, the OCS Proceeding was transferred from the Ouachita Parish office to Franklin Parish, the parish in which J.A. was then domiciled. In the Franklin Parish OCS office, the defendants, Terri Spence, Karen Hendry, and Charles Williamson (together, the "Franklin Parish Defendants") became involved in the OCS management of the case. Although the continued sexual abuse of J.A. was ordered to be investigated, the Franklin Parish OCS allowed J.A. to be returned to the home of Mize and her husband, Ronald Hendricks, on February 14, 1996 without ascertaining the identity of the perpetrator.

A further hearing in the Custody Proceeding was held in March 1996. The court issued a temporary order granting Arledge custody and specifying that J.A. have no contact with Mize. Following the return of custody of J.A. to Arledge, Arledge allegedly discovered that J.A. had been sexually abused again between February 14, 1996 and March 1996 when Arledge obtained custody. This last period of abuse serves as the basis for Plaintiffs' claims against the Franklin Parish Defendants.

In response to the actions of the defendants, the trial court granted a motion for partial summary judgment on behalf of the Franklin Parish Defendants and also maintained a partial exception of no cause of action and granted a motion for partial summary judgment on behalf of McIntyre. The Plaintiffs filed devolutive appeals from these rulings which were consolidated by this court.

Discussion

Franklin Parish Defendants—§1983 Claim

The motion for partial summary judgment granted by the trial court dismissed the Plaintiffs' claims against the Franklin Parish Defendants for deprivation of constitutional civil rights under 42 U.S.C.1983, 1985, 1986 and 1988.¹ A motion for summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2).

Title 42, § 1983 of the United States Code provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....

Recovery under § 1983 requires a plaintiff to allege and prove two essential elements: (1) that the defendant's conduct occurred under color of state law, and (2) that the defendant's conduct deprived plaintiff of a right, privilege or immunity secured by the Constitution or a law of the United States. Moresi v. State, Department of Wildlife and Fisheries, 567 So.2d 1081 (La.1990). In other words, 42 U.S.C. § 1983 imposes liability for violation of rights protected by the United States Constitution, not for violations of duties of care arising out of state tort law. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Ross v. Sheriff of Lafourche Parish, 479 So.2d 506, 512 (La. App. 1st Cir.1985).

However, when an official performs a function integral to the judicial process or a traditional legislative function, the official is absolutely immune from § 1983 liability for acts performed in those capacities. Moresi, supra. at 1084. Additionally, a qualified immunity generally applies to most acts of government officials.² Id. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the United States Supreme Court articulated a new objective standard with regard to the qualified immunity defense stating that government officials performing discretionary functions generally are shielded from liability for civil damages under § 1983, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. See Christian v. Fontenot, 28,175 (La.App.2d Cir.4/8/96), 672 So.2d 436, writ denied, 96-1385 (La.9/13/96), 679 So.2d 105.

In Anderson v. Creighton, 483 U.S. 635, 638-640, 107 S.Ct. 3034,...