Hawley v. Nelson, 4:96 CV 441 DDN.

• Decision Date: 04 April 1997
• Docket Number: No. 4:96 CV 441 DDN.,4:96 CV 441 DDN.
• Citation: 968 F.Supp. 1372
• Parties: Kenneth E. HAWLEY and Margaret Hawley, Plaintiffs, v. Donald NELSON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

968 F.Supp. 1372

Kenneth E. HAWLEY and Margaret Hawley, Plaintiffs, v. Donald NELSON, et al., Defendants.

No. 4:96 CV 441 DDN.

United States District Court, E.D. Missouri, Eastern Division.

April 4, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenneth E. Hawley, Rolla, MO, pro se.

Margaret R. Hawley, Rolla, MO, pro se.

Paul M. Rauschenbach, Associate, Denise L. Thomas, Atty. Gen. of Mo., Asst. Atty. Gen., St. Louis, MO, for Donald Nelson.

Paul M. Rauschenbach, Associate, St. Louis, MO, for Teresa Winemiller, Wayne Langston, Lynn Slawson.

Ian P. Cooper, Michael R. Annis, Peper and Martin, St. Louis, MO, for Kaye Harmes, Roger Berkbuegler, Kent King.

Michael Ray Dunbar, Smith and Hutcheson, Waynesville, MO, for Carl James.

Charlene Wheeler, Rolla, MO, pro se.

Andrew J. Lay, Atty. Gen. of Mo., Asst. Atty. Gen, St. Louis, MO, for John W. Wiggins, Mary W. Sheffield, Ralph Haslag, Douglas E. Long, Circuit Court of Phelps County.

Denise L. Thomas, Atty. Gen. of Mo., Asst. Atty. Gen., St. Louis, MO, for Russell Sheldon.

Anthony R. Behr, Behr and Mantovani, St. Louis, MO, for Russell Carnahan, Melvin E. Carnahan, Roger A. Carnahan, William E. Hickle.

MEMORANDUM

NOCE, United States Magistrate Judge.

This action is before the court upon the motions of (1) defendant Charlene Wheeler to dismiss (Doc. No. 6); (2) defendants John W. Wiggins, Mary W. Sheffield, Ralph Haslag, and Douglas E. Long to dismiss (Doc. No. 42); (3) the defendant Circuit Court of Phelps County to dismiss (Doc. No. 43); (4) defendant Carl James to dismiss (Doc. No. 46); (5) defendants Teresa Winemiller, Caroline Bradford, Wayne Langston, and Lynn Slawson to dismiss (Doc. No. 47); (6) defendants Donald Nelson and Russell Sheldon to dismiss (Doc. No. 48); (7) defendants Russell Carnahan, Melvin E. Carnahan, Roger A. Carnahan, and William E. Hickle to dismiss (Doc. No. 51); (8) defendant Kaye Harmes to dismiss (Doc. No. 53); defendant Roger Berkbuegler to dismiss (Doc. No. 54); (9) defendant Kent King to dismiss (Doc. No. 55); (10) plaintiffs for sanctions (Doc. No. 66); and (11) plaintiffs for a trial setting track assignment (Doc. No. 75). The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge under 28 U.S.C. § 636(c)(3).

Plaintiffs commenced this action by filing a lengthy complaint seeking relief against the defendants under 42 U.S.C. § 1983, and under Missouri state law, relating to the removal of their two minor sons from their home. Defendants are employees of the Phelps County, Missouri, Division of Family Services; the Rolla, Missouri, Public High School; judges of the Circuit Court of Phelps County, Missouri; Phelps County juvenile court officials; and two private individuals. Plaintiffs seek declaratory relief, monetary damages, and injunctive relief.

Plaintiffs' complaint allegations.

In their 11 count, 66 page complaint, plaintiffs allege that on December 20, 1990, the Juvenile Court of Newton County, Missouri, terminated a previously issued order of protection and ordered the return to plaintiffs of their son, Joshua, then 16 years of age. Exhibit A, attached to plaintiffs' complaint,¹ indicates that plaintiffs' son had been placed in the protection of the boy's uncle and aunt and the Missouri Division of Family Services (MDFS).²

Plaintiffs allege that on December 30, 1990, Joshua's behavior became destructive and violent and, at 10:45 a.m., he walked away from their residence against their directions. While away from their home, Joshua contacted the Phelps County Division of Family Services (PCDFS).³ In the afternoon of the same day, Teresa Winemiller, a PCDFS employee, brought the boy in her vehicle back to the plaintiffs' residence and interviewed Joshua and the plaintiffs. Plaintiffs allege that Winemiller told them that the boy would not be placed in another foster home; that, if the child abused his parents or if they abused him, a counseling case would be opened; and that, if Joshua could not manage to stay with his parents, he would be placed in the state hospital at Fulton, Missouri, for custodial care because there is no foster home capable of managing Joshua.

Plaintiffs further allege that at approximately 2:00 p.m. and again at approximately 4:00 p.m. on December 30, plaintiff Kenneth Hawley telephoned Winemiller at the PCDFS Office about Joshua acting out of control. Winemiller, after consulting with defendant Caroline Bradford, also employed by the PCDFS, advised Kenneth to manage the boy as well as he could. At approximately 4:30 p.m. Kenneth called the Rolla, Missouri, Police Department and consulted with Officer Allison about how to deal with Joshua's violent and threatening behavior. Allison said that the police would respond to the residence, if they receive a call for assistance.

Plaintiffs also allege that, at approximately 5:15 p.m. on December 30, Kenneth called the stress center at the Phelps County Regional Medical Center concerning how to manage Joshua's violent behavior. Kenneth also asked about the availability and use of restraints for his son. The stress center worker advised him to call the police as they can bring the boy to the stress center if needed. At approximately 7:00 p.m. that evening, Kenneth Hawley called the Rolla Police Department and reported that his son was acting violently, in a threatening manner, and out of control.

Plaintiffs allege that on January 3, 1991, they registered Joshua at the Rolla, Missouri, Public High School. Plaintiffs explained to the school counselor, defendant Kaye Harmes, their son's history of getting the authorities that are involved in his life to work against each other. Plaintiffs emphasized to Harmes the importance of and the necessity for the school and the parents to communicate and work together concerning the boy. Plaintiffs requested that Harmes contact them if she hears strange allegations about what is happening at their home.

Plaintiffs allege that on January 7, 1991, their other son, Caleb, then age 13, telephoned Emergency 911 while plaintiffs were attempting to control Joshua. Three Rolla police officers responded and were at the plaintiffs' residence from approximately 10:00 to 11:00 p.m.

Plaintiffs allege that on January 8, 1991, they kept Joshua home from school until he would allow his father to check his chore list. Joshua chose to stay home from school all day. Joshua also telephoned and complained to the PCDFS.

Plaintiffs allege that on January 18, 1991, Kenneth Hawley spoke with Rolla High School assistant principal Mike Fisher regarding Joshua's behavior at home, and Kenneth took Joshua back home to finish his chores before returning him again to the school. On January 23, plaintiffs spoke with Fisher and Harmes about their method of discipline and how Joshua must finish his assigned home duties before going to school. Plaintiffs also emphasized the importance that Fisher and Harmes tell them if they hear strange allegations of what is happening at Joshua's home. They explained that this was because Joshua gets the authorities involved in his life to work against each other.

Plaintiffs allege that on January 27, Joshua ran away from home and they reported this to the Rolla Police Department. On February 6, 1991, while Caleb and Joshua were home together after school, they got into a fight. Joshua threatened to kill Caleb. That evening, Joshua hit his father and left home without his parents' permission. Plaintiffs called the police and reported Joshua's running away.

Plaintiffs allege that on February 11, 1991, Joshua was late for school because he would not do his home chores. Plaintiffs told the Rolla High School Principal, defendant Roger Berkbuegler, about their decision to keep him from school until he finished his chores. Plaintiffs also asked Berkbuegler to tell them if he hears unusual allegations about Joshua because the boy gets authorities to work against each other. The next day, February 12, 1991, Joshua was again late to school because he would not do his home chores.

Plaintiffs allege that on February 13 a Rolla police officer went to their home about a report that Joshua had run away from home. Plaintiffs allege the officer told plaintiffs, "Why don't you get handcuffs and a leash, it's not illegal you know." The next day, February 14, 1991, plaintiff Kenneth Hawley ordered handcuffs.

Plaintiffs allege that on February 15, 1991, Joshua was again late for school because he did not do his home chores. Defendant Carl James⁴ came to the plaintiffs' residence and asked Joshua's mother, plaintiff Margaret Hawley, to give custody of Joshua to him. James tried to convince Margaret that she did not want to keep Joshua. Plaintiffs allege that Margaret refused to give custody of Joshua to James. She explained to James that they (the plaintiffs) had been three years without Joshua and they were enjoying the last few months they had with him before he turned seventeen and could go anywhere he wanted.

Plaintiffs allege that on February 26, 1991, Joshua did not complete his home chores and stayed out of school the entire day. Because plaintiffs feared the school officials would complain to the PCDFS about their discipline technique of not allowing Joshua to attend school when he did not complete his chores, they spoke with school counselor Bradford at the PCDFS office. They told her about Joshua's choices to not complete his home chores and as a result he was not allowed to attend school until his chores were completed. Plaintiffs allege that Bradford told them that keeping Joshua out of school under those circumstances was not educational neglect.

Plaintiffs allege that on March 3, 1991, Joshua struggled with, hit, and wounded his father. After restraining Joshua with handcuffs, plaintiffs took him to the Rolla Police Department and requested that the police, the juvenile officer, or the PCDFS take custody of Joshua. An officer explained...