Johnson ex rel. Cano v. Homes

• Decision Date: 30 September 2004
• Docket Number: No. CIV 02-1239 JB/KBM.,CIV 02-1239 JB/KBM.
• Citation: 377 F.Supp.2d 1039
• Parties: Scott JOHNSON, as personal representative of the estate of Graciela CANO a/k/a Grace Lee Bogey, deceased, and Lorena Torrez, Plaintiffs, v. Anne HOLMES, Bonnie Vehstedt, Karen Zarate, Lydia R. Saenz, Sonia Perez, Virginia Villareal, Vivian Encinias, Ginger Bowman, Denise H. Narvaez, Jane Doe, and John Doe in their individual capacities, the New Mexico Children, Youth and Families Department, Terry Bogey, a/k/a Teri Bogey, and Veronica Bogey, Defendants.
• Court: U.S. District Court — District of New Mexico

Page 1039

377 F.Supp.2d 1039

Scott JOHNSON, as personal representative of the estate of Graciela CANO a/k/a Grace Lee Bogey, deceased, and Lorena Torrez, Plaintiffs, v. Anne HOLMES, Bonnie Vehstedt, Karen Zarate, Lydia R. Saenz, Sonia Perez, Virginia Villareal, Vivian Encinias, Ginger Bowman, Denise H. Narvaez, Jane Doe, and John Doe in their individual capacities, the New Mexico Children, Youth and Families Department, Terry Bogey, a/k/a Teri Bogey, and Veronica Bogey, Defendants.

No. CIV 02-1239 JB/KBM.

United States District Court, D. New Mexico.

September 30, 2004.

Mary Y.C. Han, Adam S. Baker, Kennedy & Han, P.C., Albuquerque, NM, for Plaintiffs.

Tim Flynn-O'Brien, Bryan & Flynn-O'Brien, Albuquerque, NM, for Defendants Bonnie Vehstedt, Lydia R. Saenz, Karen Zarate, and Virginia Villareal.

Randolph B. Felker, Felker, Ish, Ritchie, & Geer, P.A., Santa Fe, NM, for Defendants Anne Holmes, Sonia (Sanchez) Perez, Ginger Bowman, Denise H. Narvaez, and Vivian Encinias.

Jerry A. Walz, Walz and Associates, Cedar Crest, NM, for Defendants Veronica Bogey and Terry Bogey.

Michael Dickman, Law Office of Michael Dickman, Santa Fe, NM, for Defendant Children, Youth, and Families Department.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant Ginger Bowman's Motion for Summary Judgment and Qualified Immunity Dismissing Count I and Memorandum in Support Therefore. The primary issue is whether the Defendant, Ginger Bowman, acted in exercise of her professional judgment. Because Bowman is entitled to qualified immunity, the Court will grant her motion for summary judgment, and dismiss Count I against her.¹

FACTUAL BACKGROUND

During her involvement in this case, Bowman was a senior social worker for the New Mexico Children Youth & Families Department ("CYFD") in CYFD's Roswell Investigative Unit. See Affidavit of Ginger Bowman ¶ 2, at 1 (executed March 19, 2003). Bowman received the assignment to investigate a referral of possible abuse of Grace by Veronica Bogey. See id. ¶ 3, at 1. Bowman received only the single referral. See id.

Bowman received credible information from health care worker Janie Mealand that Bogey was physically abusing Grace, who had suffered "cuts, bruises, [and] welts" which were "excessive/inappropriate." APS/CPS Intake Report (signed by Bowman)(March 24, 2000). The report was based on the first-hand observations of home health care nurse Kerstin Lagestam, who had begun to provide health care to Grace in January 2000. See Affidavit of Kerstin Lagestam ¶ 2, at 1 (executed May 28, 2003). During the first time that she went to Bogey's home to care for Grace, Lagestam "noticed some swelling and a large purple bruise on the left side of Grace's face. Veronica told [her] that she accidently struck Grace's face on the car door as she was lifting her out of the car." Id. ¶ 3, at 2. At the time, Lagestam remembers thinking that Bogey should have been more careful. See id.

On or about March 16, 2000, Lagestam noticed a series of injuries to Grace. See id. ¶ 5, at 2; APS/CPS Intake Report. Specifically, Grace had some scratches on her back and deep fingernail scratches on her neck and abdomen. See APS/CPS Intake Report. The latter scratches appeared to be so deep as to leave scars on Grace, and in fact, according to Grace's autopsy report, they did. See id.; Autopsy Report at 4-5 (September 3, 2000). Lagestam "became deeply concerned, because the scratch marks were entirely inappropriate and looked like they had been intentionally inflicted." See Lagestam Aff ¶ 5, at 2. Lagestam spoke with the employees at Grace's daycare to determine if Grace had been accidentally injured while playing at daycare. See id. ¶ 6, at 2. The employees told her that she had not been.² See id.

After Janie Mealand reported the allegations of abuse to State Centralized Intake, the investigation was designated as a "priority one," requiring CYFD's response within 24 hours. See § 8.10.2.7 NMAC (defining "priority one referral" as "any appropriate referral for which the information gathered requires a response within 24 hours from receipt of the referral").

Bowman visited Bogey's house on March 24, 2000, but Bogey was not there. See Bowman Aff. ¶ 4, at 1; Deposition of Sonia Perez Sanchez at 45:6 to 46:2 (taken June 6, 2003). Defendant Sonia Sanchez accompanied Bowman on her visit to Bogey's residence. See Bowman Aff. ¶ 5, at 1; Sanchez Depo. 45:6 to 46:2. Bowman and Sanchez worked at the same office. See Deposition of Ginger Bowman at 6:20 to 8:7 (taken June 6, 2003).

The Plaintiffs contend that the assignment of Bowman to investigate Bogey posed a conflict of interest and failed to meet standards for professional judgment. If Bowman substantiated the allegations of abuse, Sanchez' work and placement of Grace with Bogey would be in jeopardy. See Affidavit of Alvin L. Sallee ¶ 4(i), at 7 (executed August 2003).

Previously, Bogey had told Sanchez that she would be taking Grace on vacation on March 25, 2000. See Sanchez Depo. at 40:13 to 41:3. Sanchez was not acting as an investigator, but went to the interview because she had been assigned to Bogey's case to provide pre-adoptive/post placement support services to Bogey. See id. Bowman left her CYFD business card at Bogey's home and requested Bogey to telephone her when she returned. See Bowman Aff. ¶ 4, at 1. Bowman and Sanchez made no efforts to contact Bogey later in the day.

Bowman did not do anything to investigate the allegations of child abuse against Bogey between March 25, 2000 and April 3, 2000. When Bogey returned to New Mexico with Grace ten days later on April 3, 2000, she telephoned Sanchez, not Bowman. See"Running Narrative" entry (April 3, 2000)(Bates Stamp Nos. 295-96); Bowman Depo. at 12:16 to 13:7. Sanchez told her over the telephone about the nature of the allegations against her, adding that "not all [such allegations] are substantiated" or words to that effect. "Running Narrative" entry (April 3, 2000)(Bates Stamp 295-96). The Plaintiffs contend that this conversation compromised the investigation's integrity. See Sallee Aff. ¶ 4(i), at 7. After Sanchez informed her of the allegations, Bogey told Sanchez over the telephone that, if she examined Grace, she would see scratches and bruises on her legs from her father's ferret, that it took months for Grace's bruises to heal, that Grace had bruises for over four months, and that Bogey usually put ointment on Grace's bruises to help them heal. See"Running Narrative" entry (April 3, 2000)(Bates Stamp Nos. 295-96).

Approximately the next week, Bowman received a telephone call from Bogey and made arrangements to visit Bogey and Grace at Bogey's home. See Bowman Aff. ¶ 4, at 1. The parties dispute what occurred at the home visit. Bowman contends that she thoroughly interviewed Bogey. See Bowman Aff. ¶ 6, at 1. The Plaintiffs contend that Bowman merely asked Bogey about the bruising on Grace's hand that Mealand had reported. See Defendant Veronica Bogey's Responses to Plaintiffs' First Set of Interrogatories, Interrogatory No. 24 (served June 23, 2003). Bowman contends that Bogey removed Grace's clothing and that she thoroughly examined Grace's body. See Bowman Aff. ¶ 6, at 1. She says that she observed no evidence of bruising or scratches and saw no evidence of scaring, scabs, or previous abuse. See id. She observed some "real light bruising on her shins" during the investigation. See Bowman Depo. 13:14-16. Bowman thought Grace seemed very attached to Bogey and appeared to relate well with her. See id. She did not appear to be afraid of Bogey. See id. In contrast, the Plaintiffs contend that substantial disputed evidence shows that Bowman did not physically examine Grace as part of her investigation.

Bogey admitted that Grace may have suffered minor scratching or bruising, but, in Bowman's opinion, Bogey made satisfactory explanations of the possible causes. See Bowman Aff. ¶ 7, at 1-2. The Plaintiffs dispute this allegation. The Plaintiffs contend that the investigation that Bowman and Sanchez conducted was a sham, biased and worse than useless. See Sallee Aff. ¶ 4(i), at 7. The Plaintiffs maintain that the only reasonable inference is that Bowman failed to conduct any physical examination of Grace.

STANDARD FOR SUMMARY JUDGMENT WHEN A DEFENDANT HAS RAISED THE QUALIFIED IMMUNITY DEFENSE

Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Once a defendant raises the qualified immunity defense, the plaintiff must "come forward with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law and that [the] law was clearly established when the alleged violation occurred." Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988). If the plaintiff meets this two-part burden, the defendant "assumes the normal summary judgment burden of establishing that no material facts that would defeat his claim for qualified immunity remain in dispute." Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir.1992).

In ruling on a summary judgment motion, the court examines the factual record and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Allen v. Muskogee, Oklahoma, 119 F.3d 837, 839-40 (10th Cir.1997). The court's role on a motion for summary judgment is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "`Where the record taken as a whole could not lead a...