Snell v. Tunnell, CIV.-87-1812-P.

• Decision Date: 28 October 1988
• Docket Number: No. CIV.-87-1812-P.,CIV.-87-1812-P.
• Citation: 698 F. Supp. 1542
• Parties: Clark Davenport SNELL, et al., Plaintiffs, v. Conley TUNNELL, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

698 F. Supp. 1542

Clark Davenport SNELL, et al., Plaintiffs, v. Conley TUNNELL, et al., Defendants.

No. CIV.-87-1812-P.

United States District Court, W.D. Oklahoma.

October 28, 1988.

Allan Devore, Marjorie J. Ramana, Ted Sherwood, Oklahoma City, Okl., for plaintiffs.

Charles Lee Waters, David Brown, Roger Stuart, Richard Freeman, Oklahoma City, Okl., Louis W. Bullock, Tulsa, Okl., for defendants.

ORDER

PHILLIPS, District Judge.

I. INTRODUCTION

Clark Snell is a former alcoholic and convicted felon who, along with his wife Sharon, has provided a home in recent years for dozens of children from the Oklahoma City area. The Snell home, aside from serving as the Snells' personal residence, serves children as a family foster home, group home and emergency shelter. Estimates of the number of children staying at the residence at any one time have varied from one dozen to three dozen. Residing at the home at various times have been the natural children of Mrs. Snell, children adopted by the Snells, children under various forms of guardianships by the Snells, children in the process of being adopted by the Snells, and children abandoned by their natural parents and left with the Snells.

The home has unquestionably provided a valuable service to many of the children who have passed through the Snell home in recent years. The home has also been controversial. Prior to the initiation of this litigation, the Oklahoma Department of Human Services ("DHS") received numerous complaints concerning the Snell home, ranging from inadequate supervision, neglect, and improper licensing procedures to child abuse. It is also clear that certain DHS employees and certain Oklahoma City police officers have harbored suspicions, though without any evidentiary basis whatsoever, that the Snells were involved in child pornography and child prostitution. Needless to say, the tensions between the Snells and certain DHS employees who have monitored the Snell home have been strained for some time.

This is a Section 1983 civil rights action, arising out of the removal of seven children by DHS employees and Oklahoma City police officers from the Snell home on August 26, 1987. On that date, DHS filed an Application with the Honorable Sidney Brown, Presiding Judge of the Juvenile Division of the District Court of Oklahoma County, leveling a number of allegations against the Snells.¹ Paragraph one of that Application stated: "DHS has received allegations of neglect, lack of supervision, child prostitution and child pornography in the Snell's home in violation of 21 O.S. §§ 843-48." Defendants' Ex. "5", Ex Parte Order issued August 26, 1987. Paragraphs two through four of the Application alleged that DHS had information that the Snells were operating an unlicensed facility (paragraph 2); that DHS had been unable to complete the child abuse investigation due to lack of cooperation by the Snells (paragraph 3); that DHS was concerned for the welfare of the children in the Snell home and that the number and identity of the children in the Snell home were unknown (paragraph 4).

The Application requested Judge Brown to "provide whatever assistance and orders the Court deems appropriate in order to protect children and assist DHS in completing child abuse and licensing investigations of the Snells home." Defendants' Ex. "4", Application filed Aug. 26, 1987. Judge Brown promptly issued an order which, among other things, ordered "any police officer or law enforcement agency ... to take into custody all of the children at Clark and Sharon Snell's home at 8513 Tiffany, Oklahoma City, Oklahoma County, Oklahoma ... if Clark and Sharon Snell and/or their agents are unable to produce valid Court Orders signed by a Judge pertaining to each child in their home." Defendants' Ex. "5", Ex Parte Order issued Aug. 26, 1987.

Pursuant to this Order, Oklahoma City Police Sgt. George Johnson, accompanied by defendants Sieck and Levingston, went to the Snell home at approximately 6:00 p.m. on August 26, 1987 and identified seven children for whom the Snells had no such documentation. Officer Johnson, after consultation with the DHS employees, determined that the children for whom no documentation could be produced should be removed, and promptly supervised the removal of these children from the Snell home to the Oklahoma County Juvenile Shelter.

As discussed in more detail below, the circumstances surrounding the Application precipitating Judge Brown's order of August 26, 1987 were extraordinary to say the least. This was the first time DHS had ever filed an application of this character. State law and long established policies envision such matters being presented by DHS to the court through the District Attorney's Office. The District Attorney's Office, however, was openly hostile to DHS' requests to pursue the Snell matter because of the lack of evidence. Likewise, another judge was contacted by DHS officials prior to presenting the Application to Judge Brown. The other judge also declined to take action. Finally, the Application was unusual in that it was totally baseless with respect to the child pornography and prostitution allegations.

At a hearing held in the Juvenile Division of the Oklahoma County District Court within one week of the events of August 26, DHS was unable to come forward with any evidence to support the child prostitution and pornography allegations. It now appears that the DHS official who prepared the Application, Pam Padley, got her information from an Oklahoma City Police Detective, J.M. Einhorn, who in turn claimed that he had been provided his information concerning the pornography and prostitution allegations from defendants Asbury, Swepston, Sieck and Levingston, and an FBI agent, Leslie Treece. At any rate, no evidence has ever been produced to substantiate the pornography and prostitution allegations against the Snells.

This highly emotional and much publicized litigation has been long and tortuous, and has resulted in the filing of a summary judgment motion on behalf of all defendants. The briefs and exhibits associated with this motion are voluminous. The motion presents close and disturbing questions on the issues of absolute and qualified immunity of state officials involved in child protection and child welfare matters. This Order resolves the pending summary judgment motion as to all remaining defendants.

II. SUMMARY OF PROCEEDINGS

The Court held pretrial hearings on October 11, 13, and 24, 1988 relating to the pending motion for summary judgment and other pretrial matters.

At the hearing held on October 11, 1988, the Court granted summary judgment on behalf of defendant Conley Tunnell, Assistant Director for the Division of Children and Youth Services, and further dismissed plaintiffs' claim for injunctive relief against DHS. See Order of October 11, 1988. Plaintiffs had previously dismissed defendant Lissa Vernon. As a result, the only remaining defendants are five DHS employees: (1) Mary Asbury, District Supervisor for the Division of Children and Youth Services; (2) Michael Swepston, County/District Program Supervisor for the Division of Children and Youth Services' Child Welfare Unit in Oklahoma County; (3) Pam Padley, DHS Assistant General Counsel; (4) Barbara Sieck, a Social Services Supervisor for the Division of Children and Youth Services' Child Welfare Unit, and (5) Benita Levingston, a Social Worker in the Division of Children and Youth Services' Child Welfare Unit.

On October 11, 1988, Ted Sherwood, guardian ad litem for the fifteen children plaintiffs who are not the natural or adopted children of the Snells, announced settlement on behalf of thirteen of those plaintiffs. As a result, the only remaining plaintiffs in this case are Clark and Sharon Snell, their five adopted children, and the two children formerly represented by Mr. Sherwood.² None of the children removed from the Snell home on August 26, 1987 remain as plaintiffs.

The plaintiffs allege that defendants individually deprived them of constitutional rights guaranteed by the fourth, fifth and fourteenth amendments, and conspired to do so. Defendants deny the allegations of the plaintiffs, asserting that their conduct was in good faith, and raise the affirmative defenses of absolute and qualified immunity. Although findings and conclusions were announced by the Court at the October 11, October 13, and October 24, 1988 hearings on a number of pretrial matters, some further history of the proceedings will help place the matter in context for purposes of this Order.

In reviewing the motion for summary judgment, the Court was mindful that caution is advised in pretrial dispositions of conspiracy allegations in civil rights actions. See Hammond v. Bales, 843 F.2d 1320, 1323 (10th Cir.1988) (citing Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir. 1980)). However, to survive a motion for summary judgment on a conspiracy claim, plaintiffs must show the existence of a conspiratorial agreement. Hammond v. Bales, 843 F.2d at 1324. In sifting through the briefs and exhibits, the Court experienced great difficulty discerning plaintiffs' conspiracy theory.

Accordingly, the Court issued an order on October 11, 1988, which cautioned plaintiffs that it would not be sufficient to merely identify several possible suspects in the alleged deprivation of plaintiffs' civil rights, informed plaintiffs that it expected and required evidence proving the existence of the alleged agreement to violate plaintiffs' civil rights, and required plaintiffs to file a Supplemental Response Clarifying Plaintiffs' Conspiracy Theory, which was to provide the following:

1. Identify each member of the alleged conspiracy, including both parties and non-parties.

2. Specify the duration of the alleged conspiracy, giving the date it began and the date it ended.

3. As to each defendant who is a member of the alleged conspiracy, state when the defendant joined the alleged conspiracy

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