Gokor v. Schlievert
| Citation | 474 F.Supp.3d 929 |
| Decision Date | 23 July 2020 |
| Docket Number | Case No. 16cv3038 |
| Parties | Beth GOKOR, Plaintiff, v. Randall SCHLIEVERT, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Lorin J. Zaner, Law Office of Lorin J. Zaner, Toledo, OH, Shannon M. Smith, Smith Blythe, Bloomfield Hills, MI, for Plaintiff.
Chad M. Thompson, Kayla L. Henderson, Robert Charles Tucker, James E. Brazeau, Robison, Curphey & O'Connell, Toledo, OH, for Defendant.
This is a Fourth Amendment malicious prosecution case brought under 42 U.S.C. § 1983. Plaintiff Beth Gokor alleges that defendant Dr. Randall Schlievert made deliberately or recklessly false statements in a report later used to prosecute plaintiff for child endangering. Defendant claims entitlement to qualified immunity.
Pending are defendant's motion for summary judgment (Doc. 70), plaintiff's opposition and counter-motion for summary judgment (Doc. 73), defendant's reply in support and opposition to plaintiff's counter-motion (Doc. 75), and plaintiff's reply in support of her counter-motion (Doc. 77).
For the reasons that follow, I deny both motions for summary judgment.
Plaintiff Beth Gokor worked at Our First Love, a twenty-four hour daycare center in Toledo, Ohio. . Plaintiff was the only daycare employee at the center at 6 p.m., December 28, 20141 . (Id. , pgID 1149). At about that time, she walked with J.J., a three-year old, and another child to the bathroom to wash their hands. (Id. , pgID 1149-150). J.J., according to the plaintiff, took off running toward the bathroom where he slipped and fell on his leg. (Id. , pgID 1150).
Plaintiff, seeing that J.J. was crying and did not want to stand up, carried him to a lunch room table. (Id. , pgID 1150-151). She placed an ice pack on his leg when she noticed swelling, then she called First Love's owner, Mary Robinson. .
Ms. Robinson and Rugena Modisett, Our First Love's Assistant Director, went to the center. (Doc. 73-2, pgID 1230). According to Ms. Modisett, Ms. Robinson called her, stating that plaintiff could not find J.J.’s parental contact information. (Id. ). So that plaintiff could attend to J.J. and the other child, they went to the daycare center to find the contact information and look at J.J.’s leg. (Id. ).
After reaching J.J.’s grandmother and telling her that J.J.’s leg was not broken because he was walking on it, Ms. Modisett spoke with Shanice Steele, J.J.’s mother. (Id. ). Ms. Modisett states that she described the incident and left it up to Ms. Steele whether to pick J.J. up early, but plaintiff and Ms. Steele recalled that Ms. Modisett said he was walking, that his injury was not serious, and there was no need to collect him before her scheduled time. (Id. , pgID 1230-231; Doc. 73-1, pgID 1156). According to plaintiff, J.J. did not put weight or walk on his injured leg after the fall. (Doc. 73-1, pgID 1158).
Ms. Steele took J.J. to Toledo Children's Hospital after picking him up from the daycare center. (Doc. 73-2, pgID 1231). She stated that J.J. slipped and fell at daycare and a nurse practitioner noted that J.J. said "I slipped + fell." (. She also gave the hospital plaintiff's incident report, which stated: "When we were going to wash our hands for dinner I asked [J.J.] to stop running and he ran from me and slipped on the wet floor and fell on his left leg." (.
The hospital admitted J.J. after his x-rays showed an acute left femoral diaphysis fracture. (Id. , pgID 1034). After getting the x-ray results, a doctor told Ms. Steele that the hospital would contact Lucas County Children Services (LCCS) based on a suspicion of child abuse against the daycare. (Id. , pgID 1034, 1049, 1057). He then ordered a complete skeletal scan but found no other acute or healing fractures or other indicia of abusive treatment. (Id. , pgID 1038).
LCCS Assessment Caseworker Kimberly Fraber spoke with J.J.’s family at the hospital. According to her interview report, neither Ms. Steele nor J.J.’s grandmother was able to identify the daycare representative who called them. (Doc. 70-7; pgID 756).
As the Child Abuse Program's Director at Bon Secours Mercy Health ("Mercy"), Dr. Randall Schlievert, a board-certified pediatrician and child abuse pediatrician, is responsible for conducting suspected child abuse or neglect evaluations. . He receives requests for evaluation from other physicians, law enforcement agencies, and children's services agencies. (Id. ). In addition, Dr. Schlievert is the hospital's regional Vice President for academic affairs and clinical research and trains other physicians about the indicia of non-accidental child abuse. (Id. ).
Each year, LCCS contracts with Mercy for Dr. Schlievert's services. See Purchase of Service Agreement Contract . According to that agreement, Dr. Schlievert is responsible for, inter alia , "[p]roviding written documentation of physical examination for abuse and neglect to the appropriate caseworker identified by LCCS where such documentation can be used as court evidence" and "[participating] in court hearings, as requested by LCCS to provide testimony regarding abuse and neglect." (Id. ).
Dr. Schlievert performs these duties with no government oversight, explaining that:
My opinions are my opinions. In terms of work, it's not a relationship like I have at my office [at Mercy] for administrative reasons where I work in hand with them and we collaborate on everything, it's a different environment.
Doc. 73-3, Plt. Exh. C, pgID 1237.
Dr. Schlievert is a sole source provider under the contract, based on his completion of a Fellowship in Child Abuse. (Id. ). Therefore, he is the only physician to perform such evaluations unless the parties agree to a substitution. (Id. , 1286, 1288).
On January 5, 2015, Ms. Fraber requested Dr. Schlievert's consult on J.J.’s alleged physical abuse. (. She provided Dr. Schlievert with the medical records from Toledo Hospital, the daycare incident report, and her interview with Ms. Steele. (Id. ).
On the basis of his paper review of the underlying documents, Dr. Schlievert issued his report on January 8, 2015, stating:
[JJ] is a three year old with a femur fracture. The history does not adequately account for the injury. In addition, improbable statements by the daycare were made. [JJ] would not have been able to stand. The daycare failed to alert family to the obvious severe injury, prolonging pain as well. This injury is non-accidental.
.
The day Dr. Schlievert issued his report is also the day Toledo Police Detective T. Rider began interviewing witnesses.2 (Doc. 73-2, pgID 1228). Det. Rider interviewed plaintiff, who explained that J.J. ran and slipped on the bathroom floor, falling on his left leg. (Id. ). Plaintiff stressed that J.J. would not put weight on his leg. (Id. ).
She then contacted Ms. Robinson who came to the daycare with Ms. Modisett, who called J.J.’s mother and told her that J.J.’s leg was not broken and to not pick him up early. (Id. ). J.J.’s mother, Ms. Steele, told Det. Rider the same: the daycare worker she spoke with told her that J.J. was walking and not to leave work. (Id. pgID 1231).
Plaintiff told Det. Rider that she disagreed with Ms. Modisett and felt that Ms. Steele should have picked him up immediately. (Id. , pgID 1230). Det. Rider spoke with Ms. Modisett and verified that it was she who spoke with Ms. Steele that evening. (Id. ).
When interviewing Ms. Steele, Det. Rider also learned that J.J. "told Steele that he was running and fell, and mentioned an ice pack." (Id. ).
On March 20, 2015, the Lucas County grand jury issued an indictment against plaintiff for felony-level Child Endangering. (. She retained radiologist Dr. Gregory Shoukimas to review the case. He determined that J.J.’s broken leg
was accidental, not the result of abuse. (. In the face of this impartial expert evidence, the prosecutor moved to dismiss the indictment on November 25, 2015, eight months after its return. The Lucas County Court of Common Pleas granted the States’ motion. (Doc. 70-16, Dft. Exh. 16, 782).
Plaintiff Beth Gokor claims that the defendant's "investigation" did more than misdiagnose the cause of J.J.’s injury; he was the moving force behind a maliciously wrongful prosecution.
Defendant Dr. Schlievert denies that he is liable and, he also contends that he, in any event, is entitled to the benefits of qualified immunity. This is so, he asserts, because: 1) "his good-faith and reasonable medical conclusion was not false or fabricated evidence against [plaintiff]"; and 2) plaintiff cannot show that probable cause did not support her prosecution. (Doc. 70).
Plaintiff responds to that contention by arguing that a person in Dr. Schlievert's position, though acting under color of law, but simply doing so on behalf of a State agency, is not, as a matter of law, entitled to qualified immunity. Plaintiff claims that Dr. Schlievert is not entitled to qualified immunity because there was not a firmly rooted history of immunity at common law for persons in his situation, and moreover, there are no special reasons that support extending qualified immunity to defendant. See Filarsky v. Delia, 566 U.S. 377, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012).
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is proper if the moving party demonstrates that there is no genuine dispute of material fact and that judgment must follow as a matter of law. Further, I must view all...
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