Perry v. Pamlico Cnty.

• Citation: 88 F.Supp.3d 518
• Decision Date: 16 February 2015
• Docket Number: No. 4:13–CV–107–D.,4:13–CV–107–D.
• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Parties: Sonya PERRY, Plaintiff, v. PAMLICO COUNTY, Robert S. Johnson, and Betsy Strag, Defendants.

88 F.Supp.3d 518

Sonya PERRY, Plaintiff

v.PAMLICO COUNTY, Robert S. Johnson, and Betsy Strag, Defendants.

No. 4:13–CV–107–D.

United States District Court, E.D. North Carolina, Eastern Division.

Signed Feb. 16, 2015.

Filed Feb. 18, 2015.

Walter M. Pence, III, Merritt, NC, for Plaintiff.

Owen Boyd Asplundh, Kristen Yarbrough Riggs, Womble Carlyle Sandridge & Rice, PLLC, Raleigh, NC, James R. Morgan, Jr., Womble Carlyle Sandridge & Rice, PLLC, Winston–Salem, NC, for Defendants.

ORDER

JAMES C. DEVER III, Chief Judge.

This case concerns Pamlico County's decision to remove temporarily Sonya Perry's (“Perry” or “plaintiff”) three minor children from her custody due to alleged child abuse. On March 1, 2013, Perry sued Pamlico County, Robert S. Johnson, and Betsy Strag. See Compl. [D.E. 1–1]. Johnson is the Director of the Pamlico County Division of Social Services (“DSS”),¹ and Strag is a social worker with the Pamlico County DSS. See id. Perry asserts five claims: (1) negligence and negligence per se under North Carolina law against all defendants; (2) violation of her parental rights under the United States and North Carolina Constitutions against all defendants; (3) malicious prosecution against Strag; (4) violation of 42 U.S.C. § 1983 and the Fourteenth Amendment against all defendants; and (5) respondeat superior against all defendants.See id. On April 26, 2013, defendants timely removed the action. See [D.E. 1].

On July 30 and October 17, 2014, defendants moved for summary judgment [D.E. 40, 70]. Perry responded in opposition [D.E. 54, 73], and defendants replied [D.E. 66]. As explained below, the court grants defendants' motions for summary judgment.

I.

On September 27, 2009, Perry and her three children, L.K., C.K., and A.L., were at home with Perry's then live-in boyfriend, Frank LaBoy (“LaBoy”). Perry Dep. [D.E. 44–2] 3–4 (deposition pages 12, 16); Compl. ¶¶ 12–16.² At the time, L.K. was six years old, C.K. was four years old, and A.L. was two years old. See Compl. ¶¶ 12–14. Perry and LaBoy were in their bedroom cleaning when C.K. began screaming and kicking because she did not want to clean her room. See Perry Dep. 16, 202. In response to C.K.'s tantrum, LaBoy “picked her up and put her in her room.” Id. 16. Then, Perry “heard a thump [and C.K.] stopped crying.” Id. Perry walked into C.K.'s bedroom and found C.K. “unconscious on the floor.” Id. 202. Perry asked LaBoy what happened, and he stated that C.K. “had wiggled out of his arms,” id. 17, which Perry partly believed and partly did not believe. See id. 17–18. Perry picked up C.K., placed her on the bed, and “tried to get her to come back around[.]” Id. 16, 202. Perry then called the paramedics. Id. 16.

By the time the paramedics arrived, C.K. had regained consciousness. Id. 17. Emergency Medical Technician Michelle L. Wilkins Allen (now Michelle Smith, hereinafter “EMT Allen–Smith”) responded to the call and prepared an incident report. See Smith Aff. [D.E. 47–2] 1, 7. EMT Allen–Smith reported that, upon arrival, she heard Perry's mother, Kathleen Vuinovich (“Vuinovich”), state that “if he hurt her again he is gone she has had enough.” Id. 7; but see Perry Dep. 51; Vuinovich Dep. [D.E. 46–1] 6, 10 (deposition pages 19–20, 35). EMT Allen–Smith assessed C.K. and noted that she “was slightly lethargic but responsive” and had been crying. Smith Aff. 7. EMT Allen–Smith also noted that C.K. had “[n]o obvious bruises to back or head” but that she had “a cast on her right arm.” Id. Perry told EMT Allen–Smith that C.K. had hurt her arm two weeks earlier while roller skating under LaBoy's care. Id.; cf. Perry Dep. 31, 65 (noting that C.K. broke her arm roller-skating but that Perry was present). C.K. told EMT Allen–Smith that “Daddy broke [her] arm.” Smith Aff. 7. EMT Allen–Smith interviewed LaBoy regarding the bedroom incident. Id. LaBoy stated that when he went to put C.K. on the bed, “she kept kicking and waving her arms and he dropped her.” Id. LaBoy could not identify for EMT Allen–Smith how or where C.K. landed. Id.

While another paramedic took C.K.'s vital signs, EMT Allen–Smith spoke with Vuinovich, who stated that LaBoy “has hurt [C.K.] before” but that “[h]e wont [sic] touch the older child because she will tell on him and the youngest is his child so he don't [sic] touch her.” Id. C.K. and Perry then boarded the ambulance. See id.; Perry Dep. 19. During the 20–minute drive to the hospital, EMT Allen–Smith spoke with Perry. See Smith Aff. 7; Perry Dep. 20–21. During that conversation, Perry informed EMT Allen–Smith that Perry had previously “come home to find the patient with a bloody mouth and that [LaBoy] had hit [C.K.].” Smith Aff. 7. Perry also informed EMT Allen–Smith that she “was trying to make [LaBoy] stop on her own as she did not want social services involved.” Id. At the hospital, EMT Allen–Smith advised C.K.'s nurse and the emergency room doctor that she suspected child abuse.Id. EMT Allen–Smith also called the Pamlico County DSS and spoke with Annie Donaldson, a DSS social worker, about her concerns. See id.; Perry Dep. Ex. 3 [D.E. 44–2] 116.

Once admitted to the hospital, Perry stayed with C.K. in her exam room while LaBoy, Vuinovich, and the other two children stayed in the waiting room. Perry Dep. 22. While in the hospital's waiting room, LaBoy disciplined A.L. by striking her on her bottom. See Pl.'s Resp. [D.E. 54] 2. A triage nurse, Stacey Barnes, witnessed the disciplinary action and reported it to C.K.'s physician, Doctor Gordon H. Bobbett, II, and later to the DSS social workers. See Perry Dep. Ex. 2 [D.E. 44–2] 109; Perry Dep. Ex. 3 [D.E. 44–2] 114. Nurse Barnes told the social workers that LaBoy had yelled at the child and had “popped” the skin on A.L.'s bottom. Perry Dep. Ex. 3 [D.E. 44–2] 114. Nurse Barnes claimed that the incident was so upsetting to her that she “went into another little private room and cried.” Id. In his report, Dr. Bobbett noted Nurse Barnes's concerns regarding LaBoy's active “abus[e] [of] this patient's sibling out in the waiting room.” Perry Dep. Ex. 2 [D.E. 44–2] 109.

As for C.K., Doctor Bobbett noted his “obvious concern[s] ... for abuse” given the current incident as well as a review of C.K.'s medical records, which showed that C.K. had “several [past] orthopedic type concerns and injuries,” including “a facial injury in January of 2008, in July 2008 a hand injury, and a hand injury in September 2009.” Perry Dep. Ex. 2 [D.E. 44–2] 110. Dr. Bobbett spoke with Vuinovich, and he reported that she told him that “she has noticed things that have been concerning over the past 6 months or more.” Id. 107; cf. Vuinovich Dep. 25–28. Doctor Bobbett noted that C.K. “stated that her mother's boyfriend broke her arm” and logged a specific concern that “the patient's mother lacked ability to care for the child safely or her siblings.” Perry Dep. Ex. 2 [D.E. 44–2] 110. Dr. Bobbett also contacted DSS. Id. 109–110.

Annie Donaldson and Lauren Weatherly of the Pamlico County DSS arrived at the hospital to investigate. See Weatherly Aff. [D.E. 48–1] 1; Donaldson Dep. [D.E. 45–2] 4; Perry Dep. Ex. 3 [D.E. 44–2] 111. The social workers interviewed Perry, LaBoy, Vuinovich, C.K., L.K., Detective Billy Jewell of the Pamlico County Sheriff's Department, and several members of the medical staff, including Doctor Bobbett. See Perry Dep. Ex. 3 [D.E. 44–2] 111–16; Weatherly Aff. ¶ 5. The social workers noted that Perry “fears [LaBoy].” Perry Dep. Ex. 3 [D.E. 44–2] 112; but see Perry Dep. 41–42. They also noted that, when asked why LaBoy was allowed in her home, Perry told the social workers that she wanted him “in the home to ensure A.L.'s safety.” Perry Dep. Ex. 3 [D.E. 44–2] 112; but see Perry Dep. 39–43 (claiming the social workers lied in their narrative). Perry explained that she and LaBoy shared custody of A.L. and that she thought it was better to have LaBoy “in the home with the child than be out of the home and [for A.L. to] be abused.” Perry Dep. Ex. 3 [D.E. 44–2] 112. The social workers also spoke with Dr. Bobbett about his concerns and possible options. Id. Dr. Bobbett told the social workers that “DSS needed to take custody of these children.” Id.

Donaldson and Weatherly then spoke separately with C.K., who could not remember what happened that day but explained to them that she hurt her arm while she was “skating at [A.L.'s] grandma's house & fell.” Id. 113. When asked if LaBoy had ever hurt her, C.K. said “yes” and explained that “[LaBoy] threw her on one of her toys and it made her lip bleed.” Id. 113–14. The social workers then compared notes with Detective Jewell, who had also interviewed C.K. Detective Jewell told the social workers that C.K. told him that LaBoy had broken her arm and had thrown her on the floor. Id. 115. Donaldson and Weatherly also separately interviewed L.K., who told them that one of Perry's past boyfriends had “twisted on her arm and it hurt really bad.” Id. 114. Donaldson, Weatherly, and Detective Jewell then jointly interviewed LaBoy, who initially denied spanking any of the children that day but then stated “he can't remember but it must have been ‘kinda like a tap, not enough to make them cry.’ ” Id. 115.

After receiving permission from their manager, the social workers asked Perry to make a kinship placement for the night in light of “the nature of the allegations and the investigation.” Donaldson Dep. 71; see Perry Dep. Ex. 3 [D.E. 44–2] 114. Perry agreed to send the children to her mother's house. See Donaldson Dep. 71–73. Donaldson and Weatherly then spoke with Vuinovich about a possible “kinship placement” with her. Perry Dep. Ex. 3 [D.E. 44–2] 113. They asked Vuinovich if she had a history of criminal behavior or a history with Child Protective Services and she told them “[n]o, not within the last 10 years.” Id.; but see Vuinovich Dep. 33–35. The social workers then went to Vuinovich's home to conduct a home study. See Perry Dep. Ex. 3 [D.E. 44–2] 114, 116. After conducting a kinship assessment...