Wesley v. Rigney

• Decision Date: 18 December 2012
• Docket Number: Civil Action No. 10–51–DLB–JGW.
• Citation: 913 F.Supp.2d 313
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: Richard WESLEY, Plaintiff v. Joanne RIGNEY, Individually and in her capacity as a police officer for the City of Covington, Defendant.

913 F.Supp.2d 313

Richard WESLEY, Plaintiff

v.Joanne RIGNEY, Individually and in her capacity as a police officer for the City of Covington, Defendant.

Civil Action No. 10–51–DLB–JGW.

United States District Court,

E.D. Kentucky,

Northern Division,

at Covington.

Dec. 18, 2012.

Paul J. Hill, Covington, KY, for Plaintiff.

Frank E. Warnock, Covington, KY, for Defendant.

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

I. INTRODUCTION

This action arises out of a seven-year-old's allegation that he was sexually abused by his school counselor, Plaintiff Richard Wesley. After investigating the allegation, Defendant Joanne Rigney, a detective with the Covington Police Department, submitted a Complaint and Affidavit to a Kentucky district court judge setting forth facts to establish probable cause that Plaintiff committed sexual abuse in the first degree. Based solely on Defendant Rigney's affidavit, the judge issued a warrant for Plaintiff's arrest, and Plaintiff was subsequently arrested. A grand jury, however, refused to indict Plaintiff on the charge of sexual abuse in the first degree.

Plaintiff Richard Wesley subsequently commenced this § 1983 action against Defendant Joanne Rigney alleging retaliatory and wrongful arrest in violation of his First and Fourth Amendment rights. Plaintiff also advances two state-law tort claims: the tort of outrage and negligent investigation. These claims generally rely on three assertions: (1) Defendant negligently investigated the sexual abuse allegations; (2) Defendant intentionally omitted exculpatory facts from her affidavit causing the district court judge to make an erroneous probable cause determination; and (3) Defendant's purpose in submitting the affidavit was to stifle Plaintiff's right to free speech.

This matter is before the Court on Defendant's Motion to Dismiss (Doc. # 63), which has been fully briefed ( See Docs. # 66, 67) and is ripe for review.

II. FACTUAL AND PROCEDURAL BACKGROUND

The following facts, which have been gleaned solely from Plaintiff's Amended Complaint, are accepted as true for purposes of addressing Defendant's motion to dismiss. Evans–Marshall v. Bd. of Educ., 428 F.3d 223, 228 (6th Cir.2005). Plaintiff Richard Wesley was employed as a school counselor at 6th District Elementary School in Covington, Kentucky. In that capacity, he worked closely with elementary-age students counseling them on various problems.

In August of 2008, Plaintiff began working with one particular student, J.S., a seven-year-old who suffered from severe emotional problems. On one occasion, Plaintiff asked J.S. to draw a picture depicting his emotions. J.S. responded by drawing a picture of himself holding knives in both hands with his bloodied family members laying on the ground around him. This picture, as well as Plaintiff's other interactions with J.S., led Plaintiff to believe J.S. was being abused. Plaintiff, therefore, scheduled multiple appointments for J.S. at a community mental health facility; however, J.S.'s mother failed to take J.S. to each of the appointments.

On February 5, 2009, Plaintiff found J.S. in the school hallway with a wristband stuck in his nose as he was attempting to shove another wristband in his mouth. After some questioning, J.S. told Plaintiff he wanted to kill himself. Plaintiff then contacted J.S.'s mother and urged her to immediately take the child to the community mental health facility. Despite initial hesitation, the mother complied.

Sometime after J.S. and the mother arrived at the mental health facility, J.S. disclosed to either his mother or Alison Campbell, a Social Services Worker,¹ that Plaintiff had fondled his penis. Campbell then “bypassed normal procedure” of the Covington Police Department and “personally selected” Defendant to be assigned as the detective on the criminal case. On February 9, 2009, Campbell and Defendant attended a forensic interview of J.S. conducted at the Children's Advocacy Center. During the interview, Defendant heard J.S. allege that Plaintiff had also anally sodomized him on multiple occasions over the course of a year while the two were alone in Plaintiff's office. J.S. was later physically examined but presented no injuries consistent with sexual abuse.

By this time, Plaintiff was aware that J.S. had made allegations against him, although he did not know the specifics. In anticipation of forthcoming criminal charges, Plaintiff retained Ms. Alexandria Lubans–Otto, a former Assistant Commonwealth's Attorney, to defend him. Otto contacted Defendant on at least one occasion and expressed her desire to permit Defendant to interview Plaintiff. Defendant responded that she needed to conduct further investigation before interviewing Plaintiff, including interviewing other students at 6th District. In the end, Defendant never interviewed Plaintiff.

According to Plaintiff, Defendant's investigation was limited and uncovered no additional inculpatory information. Plaintiff acknowledges that Defendant did, in fact, interview students at 6th District. However, Plaintiff contends that none of the students disclosed any inculpatory information, but instead explained that Plaintiff always acted professionally and appropriately. Plaintiff also contends that Defendant never interviewed anyone that worked in close proximity to his office—where the abuse allegedly occurred.

While Defendant's investigation continued, Allison Campbell—the social services worker—filed a “Substantiated Investigation Notification Letter” with the Education Professional Standards Board against Plaintiff. In the letter, Campbell stated that she had “substantiated” allegations that Plaintiff had fondled J.S.' penis and anally sodomized the child multiple times over the course of a one-year period. The letter also explained that the perpetrator, Plaintiff, had the right to appeal the substantial abuse finding. On March 31, 2009, Plaintiff requested a hearing to appeal the finding. Defendant learned of Plaintiff's appeal soon thereafter.

On April 30, 2009, and after learning of Plaintiff's appeal, Defendant submitted a “Complaint and Affidavit” to a Kenton County District Judge setting forth facts to establish probable cause that Plaintiff committed sexual abuse in the first degree. The affidavit detailed J.S.'s initial disclosure on February 5, 2009 that Plaintiff had fondled his penis, as well as J.S.'s February 9, 2009 disclosure that Plaintiff anally sodomized him multiple times. Specifically, the affidavit stated:

Affiant states that on February 06, 2009, she was assigned to investigate a Sexual Abuse in the First Degree report. Affiant states that she was contacted by the Cabinet for Health and Family Services in regard to a disclosure that was made by the minor victim J.S., age 7, on February 05, 2009. At that time, J.S. stated that the defendant had fondled his penis while in the defendants (sic) office at 6th District School. The defendant is employed as a school counselor at 6th District School. The minor, J.S., was then scheduled for a forensic interview at the Childrens (sic) Advocacy Center, at that time the child stated that the defendant had put his private part in his butt. J.S. stated that this took place in Mr. Wesley's office. J.S. described that the defendant pulled down the back of his pants while he was near a blue round table. J.S. also advised that the defendant was squeezing J.S.'s private parts. J.S. stated that he was told by the defendant that he would kick him out of school if he told anyone. J.S. stated that this happened more than once.

(Doc. # 1–2).²

After reviewing the affidavit, the Kenton County District Judge found probable cause that Plaintiff had committed sexual abuse in the first degree and issued a warrant for his arrest. Plaintiff was subsequently arrested by an unknown officer, and released from jail that same day after posting a $5,000.00 cash bond. Later that summer, the Kenton County Grand Jury considered the evidence against Plaintiff and returned a No True Bill, refusing to indict him on a sexual abuse charge.

In light of the foregoing events, Plaintiff filed this § 1983 action against Defendant Rigney and others on March 12, 2010.³ In the original complaint, Plaintiff alleged that Defendant violated his Fourth Amendment to be free from unlawful arrest by intentionally excluding material exculpatory information from her Complaint and Affidavit, causing the Kenton County District Judge to erroneously find probable cause to issue an arrest warrant. Specifically, Plaintiff asserted that Defendant intentionally omitted the following information: (1) J.S. suffered from psychological and emotional problems, causing him to hospitalized for two weeks at Mercy Hospital; (2) a physical examination of J.S. revealed no injuries consistent with sexual abuse, particularly anal sodomy; and (3) “it would have been literally impossible for the act of sodomy to have taken place over a one year period in Plaintiff's office due to the close proximity of other school employees including the Principal and Secretary as well as the proximity to the faculty mail room.” (Doc. # 1 at ¶ 59).

The original Complaint also asserted state-law claims of outrage and negligent investigation. Plaintiff contends that Defendant breached her duty to conduct a reasonably competent investigation into whether Plaintiff committed the alleged crime before filing her affidavit. Additionally, Plaintiff argues that Defendant's conductwas intentional and reckless and caused him to suffer extreme emotional distress, and the conduct was so outrageous and intolerable that it offends the generally accepted standards of decency and morality.

Defendant answered the Complaint on April 9, 2010 (Doc. # 9), and generally denied the material allegations against her. Defendant also raised eighteen (18) affirmative defenses, including immunity under federal and state law and failure to state a claim for which relief can be...