Robison v. Via, Civ. A. No. 83-17.

• Decision Date: 27 May 1986
• Docket Number: Civ. A. No. 83-17.
• Parties: Connie ROBISON v. Susan R. VIA and Harold Harrison.
• Court: U.S. District Court — District of Vermont

636 F. Supp. 268

Connie ROBISON v. Susan R. VIA and Harold Harrison.

Civ. A. No. 83-17.

United States District Court, D. Vermont.

May 27, 1986.

John L. Kellner, Langrock Sperry Parker & Wool, Middlebury, Vt., for plaintiff.

David A. Barra, Paul, Frank & Collins, Burlington, Vt., for defendant Via.

Mark Kolter, and John J. Zawistoski, Ryan, Smith & Carbine, Rutland, Vt., for defendant Harrison.

OPINION AND ORDER

HOLDEN, Senior District Judge.

This proceeding had its beginning as a civil rights action brought under the provisions of 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343. The plaintiff, Connie Robison, is the mother of two young children, Michael and Julia, who were in her custody on August 26, 1981. The complaint charges the children were unlawfully taken from her custody by the defendant Susan Via, who at the time held the office of Assistant State's Attorney for Chittenden County, and the defendant Harrison, who was then a Vermont state police officer.

Discovery was conducted under the direction of the United States Magistrate by referral, pursuant to 28 U.S.C. § 636(b)(1)(A) as implemented by Local Rule 14, Part II, then in effect. After the cause was returned to this court by the magistrate, the plaintiff was granted leave to amend her complaint to charge in Count II a battery upon her person by the defendant Harrison. A third count alleges intentional infliction of emotional distress on the part of both defendants. Both defendants filed amended answers which were followed by separate motions for summary judgment.

After hearing oral argument on April 11, 1986, the combined motions were denied without written opinion. On April 11, 1986 the defendant Via filed a timely well-founded motion to amend the ruling. The defendant Harrison joined by requesting reconsideration. The parties were granted leave to submit further written argument and supporting affidavits in an effort to settle the question of qualified immunity as a matter of law in the light of Mitchell v. Forsyth, ___ U.S. ___, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Facts Established by the Record

The defendants Via and Harrison have submitted separate affidavits which underlie their respective motions for summary judgment. This submission is substantially in accord with the defendant Harrison's statement of material facts filed earlier and prior to the April 11th hearing, as required by our Local Rules of Procedure 5C I. The plaintiff has not controverted her opponents' version of the underlying facts by affidavits. She relies mainly on her deposition of November 17, 1983 to oppose the facts asserted by the defendants. In any event, the facts which follow are not seriously disputed for the purpose of consideration of the pending motions within the teaching of Harlow v. Fitzgerald, 457 U.S. 800, 816-818, 102 S.Ct. 2727, 2737-2738, 73 L.Ed.2d 396 (1982), as explained in Mitchell, supra, to determine whether summary disposition is justified on the record or whether the case shall proceed to trial.

The defendant Susan R. Via, on August 26, 1981, received a call from Stephen Burke, then a detective in the South Burlington Police Department, concerning suspected child abuse. The information originated with Mrs. Sarah Orrill of Williston, Vermont. The defendant Via called Mrs. Orrill to arrange an interview. Mrs. Orrill informed Ms. Via that her young daughter, Jennifer, had told her that Julia Robison, then aged 9, had been incestuously victimized by her father Roy Robison. Mrs. Orrill requested that her interview and any questioning of her daughter be performed by a female state trooper. Since the only policewoman at the Colchester barracks was not working that day, the defendant Via decided to accompany the defendant Harrison to the interview. Mrs. Orrill accepted this arrangement.

The interview of Mrs. Orrill and her daughter confirmed that Julia Robison had told Jennifer and another schoolmate, Ellen Vass, of the abusive experiences. The defendants Via and Harrison then interviewed Mrs. Vass and her daughter. The Vass interviews were to the effect that Julia Robison had given a similar account to the Vass child and that the alleged abuse had commenced when Julia was six. Mrs. Vass went on to state to her interviewers that she had reported this history to a Dr. Alice Wright, whom she had consulted for treatment of her daughter Ellen. Dr. Wright told Mrs. Vass she would report the Robison situation to the State Social and Rehabilitation Services. Either the Vass child or Jennifer Orrill added that Michael Robison had been severely disciplined and on one occasion struck in the face with a belt buckle by his father.

After these interviews, the defendants proceeded to question the plaintiff at the Robison home. The plaintiff's first concern at the sight of the police cruiser and its occupants was that her children had been in an accident. The defendants informed the plaintiff that the purpose of the visit was to question her about her husband's alleged sexual conduct with Julia. The plaintiff declined to discuss the matter, other than to say she had no knowledge of the subject except that Michael had reported on one occasion seeing his sister in bed with her father. When the defendants stated they wanted to question her children, the plaintiff made it clear she wanted the children to be questioned at home and in her presence. She stated they were expected home within a matter of minutes.

The defendants, believing Mrs. Robison would seek to suppress the truth if she were present when the children were questioned, departed to interview the children away from the Robison home. The plaintiff pursued the police cruiser in haste to the Orrill home, where she knew the children were playing. When the plaintiff arrived at the scene, her son Michael was seated in the cruiser talking to Ms. Via. Trooper Harrison was talking with Michael's sister, Julia, outside the vehicle. Both children were excited; both were crying.

When the plaintiff halted her vehicle, she was loud, angry and abusive. She directed the children to get into her car and they obeyed her command. Harrison told the plaintiff that the children were being taken to the police barracks. The plaintiff responded that she would not allow the children to accompany him anywhere. A scuffle ensued between the plaintiff and Harrison, when, according to the defendant Via, the plaintiff "rather hysterically attempted to remove the children from the scene." Via obtained the keys from the ignition in the Robison vehicle. Michael broke away, but was returned to the police cruiser. The plaintiff wrapped her arms around Julia. The defendant Harrison forcibly removed Julia to the police cruiser. Harrison threw the plaintiff's car keys some distance from the vehicle. When the plaintiff hastened to retrieve them the defendants sped away from the scene at approximately 3:40 p.m.

Upon their arrival at the state police barracks, according to the defendant Via's trial brief, Julia was questioned for approximately forty-five minutes. It further appears:

That afternoon the court was called from the police barracks. Since a trial was going on, there was no judge available until Judge Bryan¹ was reached at home that evening prior to six o'clock.

Judge Bryan authorized, by telephone, a temporary detention until a further detention hearing was held on August 27, 1981. At the hearing the temporary detention of the Robison children was continued. During the course of this proceeding, petitions alleging the Robison children were in need of care or supervision, as provided in 33 V.S.A. § 645, were filed with the court.² The petitions were not heard on the merits, but were left pending to await further proceedings.

On September 2, 1981, at a hearing concerning the parents' visitation rights, the plaintiff and her husband appeared with counsel. The mandatory 15 day requirement for children in detention was waived.³ The waiver was confirmed on September 9, 1981. At a later hearing on October 7, 1981, the waiver was withdrawn. On the following day, the court, Honorable John T. Connarn presiding, ordered the children to be released to the custody of the plaintiff. The paternal parent was ordered out of the Robison home and ordered not to visit or communicate with the subject juveniles.

On October 8 representatives of the State dismissed the pending juvenile petitions. New petitions were filed to begin the proceedings anew on the same day. Hearings on the renewed petition were convened on October 21, 1981 and from time to time in November and December.

On January 19, 1982 the juvenile court adjudged the children in need of care and supervision. The children were placed in the custody of the State Department of Social and Rehabilitation Service on February 10, 1982. An appeal to the supreme court of Vermont, which followed, resulted in the reversal of the adjudication of the juvenile court on evidentiary grounds. In re M.W.R. and J.L.R., 143 Vt. 6, 458 A.2d 1132 (1982). For the purpose of the pending motion, it is not essential to recount the subsequent history of these protracted juvenile proceedings.

Discussion

Although the facts stated above are scant and do not attempt to constitute the entire controversy, the essential ingredients are sufficient to present questions of law advanced by the pending motions. It is clear that the defendant Via, in her official capacity as assistant state's attorney for Chittenden County, on August 26, 1981 accompanied Trooper Harrison to investigate a report of the child abuse of Julie Robison by her father. The official report submitted with Harrison's affidavit labels the subject of the investigation "sexual assault." No juvenile proceedings were pending at the time the defendants took the Robison children into their custody.⁴

The Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976) held —

that in

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