Opinion
Case No. 16cv3038
07-23-2020
Beth GOKOR, Plaintiff, v. Randall SCHLIEVERT, Defendant.
Lorin J. Zaner, Law Office of Lorin J. Zaner, Toledo, OH, Shannon M. Smith, Smith Blythe, Bloomfield Hills, MI, for Plaintiff. Chad M. Thompson, Kayla L. Henderson, Robert Charles Tucker, James E. Brazeau, Robison, Curphey & O'Connell, Toledo, OH, for Defendant.
Lorin J. Zaner, Law Office of Lorin J. Zaner, Toledo, OH, Shannon M. Smith, Smith Blythe, Bloomfield Hills, MI, for Plaintiff.
Chad M. Thompson, Kayla L. Henderson, Robert Charles Tucker, James E. Brazeau, Robison, Curphey & O'Connell, Toledo, OH, for Defendant.
ORDER
James G. Carr, Sr. U.S. District Judge
This is a Fourth Amendment malicious prosecution case brought under 42 U.S.C. § 1983. Plaintiff Beth Gokor alleges that defendant Dr. Randall Schlievert made deliberately or recklessly false statements in a report later used to prosecute plaintiff for child endangering. Defendant claims entitlement to qualified immunity.
Pending are defendant's motion for summary judgment (Doc. 70), plaintiff's opposition and counter-motion for summary judgment (Doc. 73), defendant's reply in support and opposition to plaintiff's counter-motion (Doc. 75), and plaintiff's reply in support of her counter-motion (Doc. 77). For the reasons that follow, I deny both motions for summary judgment.
Background
1. J.J.’s Injury at Our First Love Daycare Center
Plaintiff Beth Gokor worked at Our First Love, a twenty-four hour daycare center in Toledo, Ohio. (Doc. 73-1, Plt. Exh. A, pgID 1124). Plaintiff was the only daycare employee at the center at 6 p.m., December 28, 2014 . (Id. , pgID 1149). At about that time, she walked with J.J., a three-year old, and another child to the bathroom to wash their hands. (Id. , pgID 1149-150). J.J., according to the plaintiff, took off running toward the bathroom where he slipped and fell on his leg. (Id. , pgID 1150).
Another employee, Tina King, had mopped the bathroom floors leaving at the end of her shift at 5:00 PM. (Doc. 73-2, Plt. Exh. B, pgID 1230).
Plaintiff, seeing that J.J. was crying and did not want to stand up, carried him to a lunch room table. (Id. , pgID 1150-151). She placed an ice pack on his leg when she noticed swelling, then she called First Love's owner, Mary Robinson. (Id. , pgID 1153-154; Doc. 73-2, Plt. Exh. B, pgID 1229).
Ms. Robinson and Rugena Modisett, Our First Love's Assistant Director, went to the center. (Doc. 73-2, pgID 1230). According to Ms. Modisett, Ms. Robinson called her, stating that plaintiff could not find J.J.’s parental contact information. (Id. ). So that plaintiff could attend to J.J. and the other child, they went to the daycare center to find the contact information and look at J.J.’s leg. (Id. ).
After reaching J.J.’s grandmother and telling her that J.J.’s leg was not broken because he was walking on it, Ms. Modisett spoke with Shanice Steele, J.J.’s mother. (Id. ). Ms. Modisett states that she described the incident and left it up to Ms. Steele whether to pick J.J. up early, but plaintiff and Ms. Steele recalled that Ms. Modisett said he was walking, that his injury was not serious, and there was no need to collect him before her scheduled time. (Id. , pgID 1230-231; Doc. 73-1, pgID 1156). According to plaintiff, J.J. did not put weight or walk on his injured leg after the fall. (Doc. 73-1, pgID 1158).
Ms. Steele took J.J. to Toledo Children's Hospital after picking him up from the daycare center. (Doc. 73-2, pgID 1231). She stated that J.J. slipped and fell at daycare and a nurse practitioner noted that J.J. said "I slipped + fell." (Doc. 71, Dft. Exh. 4, pgID 1056). She also gave the hospital plaintiff's incident report, which stated: "When we were going to wash our hands for dinner I asked [J.J.] to stop running and he ran from me and slipped on the wet floor and fell on his left leg." (Doc. 70-3, Dft. Exh. 3, pgID 718).
The hospital admitted J.J. after his x-rays showed an acute left femoral diaphysis fracture. (Id. , pgID 1034). After getting the x-ray results, a doctor told Ms. Steele that the hospital would contact Lucas County Children Services (LCCS) based on a suspicion of child abuse against the daycare. (Id. , pgID 1034, 1049, 1057). He then ordered a complete skeletal scan but found no other acute or healing fractures or other indicia of abusive treatment. (Id. , pgID 1038).
LCCS Assessment Caseworker Kimberly Fraber spoke with J.J.’s family at the hospital. According to her interview report, neither Ms. Steele nor J.J.’s grandmother was able to identify the daycare representative who called them. (Doc. 70-7; pgID 756).
2. Dr. Randall Schlievert's Review and Report
As the Child Abuse Program's Director at Bon Secours Mercy Health ("Mercy"), Dr. Randall Schlievert, a board-certified pediatrician and child abuse pediatrician, is responsible for conducting suspected child abuse or neglect evaluations. (Doc. 73-3, Plt. Exh. C, pgID 1234). He receives requests for evaluation from other physicians, law enforcement agencies, and children's services agencies. (Id. ). In addition, Dr. Schlievert is the hospital's regional Vice President for academic affairs and clinical research and trains other physicians about the indicia of non-accidental child abuse. (Id. ).
Each year, LCCS contracts with Mercy for Dr. Schlievert's services. See Purchase of Service Agreement Contract (Doc. 73-4, Plt. Exh. D, pgID 1286). According to that agreement, Dr. Schlievert is responsible for, inter alia , "[p]roviding written documentation of physical examination for abuse and neglect to the appropriate caseworker identified by LCCS where such documentation can be used as court evidence" and "[participating] in court hearings, as requested by LCCS to provide testimony regarding abuse and neglect." (Id. ).
Dr. Schlievert performs these duties with no government oversight, explaining that:
My opinions are my opinions. In terms of work, it's not a relationship like I have at my office [at Mercy] for administrative reasons where I work in hand with them and we collaborate on everything, it's a different environment.
Doc. 73-3, Plt. Exh. C, pgID 1237.
Dr. Schlievert is a sole source provider under the contract, based on his completion of a Fellowship in Child Abuse. (Id. ). Therefore, he is the only physician to perform such evaluations unless the parties agree to a substitution. (Id. , 1286, 1288).
On January 5, 2015, Ms. Fraber requested Dr. Schlievert's consult on J.J.’s alleged physical abuse. (Doc. 70-6, Dft. Exh. 6, pgID 754). She provided Dr. Schlievert with the medical records from Toledo Hospital, the daycare incident report, and her interview with Ms. Steele. (Id. ).
On the basis of his paper review of the underlying documents, Dr. Schlievert issued his report on January 8, 2015, stating:
[JJ] is a three year old with a femur fracture. The history does not adequately account for the injury. In addition, improbable statements by the daycare were made. [JJ] would not have been able to stand. The daycare failed to alert family to the obvious severe injury, prolonging pain as well. This injury is non-accidental.
(Doc. 73-8, Plt. Exh. H, pgID 1298).
3. Subsequent Investigation
The day Dr. Schlievert issued his report is also the day Toledo Police Detective T. Rider began interviewing witnesses. (Doc. 73-2, pgID 1228). Det. Rider interviewed plaintiff, who explained that J.J. ran and slipped on the bathroom floor, falling on his left leg. (Id. ). Plaintiff stressed that J.J. would not put weight on his leg. (Id. ).
As such, Dr. Schlievert was not aware of any information from Det. Rider's interviews with the witnesses.
She then contacted Ms. Robinson who came to the daycare with Ms. Modisett, who called J.J.’s mother and told her that J.J.’s leg was not broken and to not pick him up early. (Id. ). J.J.’s mother, Ms. Steele, told Det. Rider the same: the daycare worker she spoke with told her that J.J. was walking and not to leave work. (Id. pgID 1231).
Plaintiff told Det. Rider that she disagreed with Ms. Modisett and felt that Ms. Steele should have picked him up immediately. (Id. , pgID 1230). Det. Rider spoke with Ms. Modisett and verified that it was she who spoke with Ms. Steele that evening. (Id. ).
When interviewing Ms. Steele, Det. Rider also learned that J.J. "told Steele that he was running and fell, and mentioned an ice pack." (Id. ).
4. Prosecution
On March 20, 2015, the Lucas County grand jury issued an indictment against plaintiff for felony-level Child Endangering. (Doc. 70-9, Dft. Exh. 9, pgID 760). She retained radiologist Dr. Gregory Shoukimas to review the case. He determined that J.J.’s broken leg was accidental, not the result of abuse. (Doc. 70-15, Dft. Exh. 15, pgID 778). In the face of this impartial expert evidence, the prosecutor moved to dismiss the indictment on November 25, 2015, eight months after its return. The Lucas County Court of Common Pleas granted the States’ motion. (Doc. 70-16, Dft. Exh. 16, 782).
5. The Parties Contentions
Plaintiff Beth Gokor claims that the defendant's "investigation" did more than misdiagnose the cause of J.J.’s injury; he was the moving force behind a maliciously wrongful prosecution.
Defendant Dr. Schlievert denies that he is liable and, he also contends that he, in any event, is entitled to the benefits of qualified immunity. This is so, he asserts, because: 1) "his good-faith and reasonable medical conclusion was not false or fabricated evidence against [plaintiff]"; and 2) plaintiff cannot show that probable cause did not support her prosecution. (Doc. 70).
Plaintiff responds to that contention by arguing that a person in Dr. Schlievert's position, though acting under color of law, but simply doing so on behalf of a State agency, is not, as a matter of law, entitled to qualified immunity. Plaintiff claims that Dr. Schlievert is not entitled to qualified immunity because there was not a firmly rooted history of immunity at common law for persons in his situation, and moreover, there are no special reasons that support extending qualified immunity to defendant. See Filarsky v. Delia, 566 U.S. 377, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012).
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is proper if the moving party demonstrates that there is no genuine dispute of material fact and that judgment must follow as a matter of law. Further, I must view all evidence in the light most favorable to the nonmoving party and draw any justifiable inferences in that party's favor, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), however, I am not required to draw "strained and unreasonable inferences" in favor of the nonmoving party. Fox v. Amazon.com, Inc. , 930 F.3d 415, 425 (6th Cir. 2019).
Discussion and Analysis
1. Qualified Immunity for Private Parties
Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights "under color" of state law. 42 U.S.C. § 1983. A private party is subject to suit as a state actor under § 1983 if his conduct is "fairly attributable to the state." See Lugar v. Edmondson Oil Co. , 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).
A party is not, however, entitled to assert qualified immunity simply because he is amenable to suit under § 1983. Harrison v. Ash , 539 F.3d 510, 521 (6th Cir. 2008). When a private party asserts entitlement to qualified immunity, the Supreme Court instructs that courts: 1) look for a firmly rooted history of immunity for similarly situated parties at common law; and 2) determine whether granting immunity would be consistent with the purposes of affording such immunity. Filarsky at 384, 132 S.Ct. 1657. In Filarsky, the Court held that, to determine whether a defendant may assert qualified immunity, "we look to the ‘general principles of tort immunities and defenses’ applicable at common law, and the reasons we have afforded protection from suit under § 1983." (internal citations omitted).
Applying the test the Court created in Filarsky , the Sixth Circuit has already determined that there is not a firmly rooted history of immunity for private physicians working part-time for a state institution. McCullum v. Tepe , 693 F.3d 696, 703 (6th Cir. 2012). In McCullum , the Sixth Circuit explained that "[t]here is little directly applicable case law. But the precedents that do exist point in one direction: there is no special immunity for a doctor working for the state."
Based on its historical analysis, the Sixth Circuit determined in McCullum :
These cases, as well as the American and English cases involving private physicians in private practice, and the absence of any indicia that a paid physician (whether remunerated from the public or private fisc) would have been immune from suit at common law, convince us that there was no common-law tradition of immunity fora private doctor working for a public institution at the time Congress passed § 1983.
Id. at 704.
I also find that the purposes of immunity do not justify extending that protection to a physician who, on an as-needed basis, assesses possible child abuse cases and makes referrals to LCCS for possible further state action.
According to the Suprema Court, the qualified immunity doctrine "strikes a balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions." Wyatt v. Cole , 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992).
Policy rationales for extending such immunity include protecting the public from "unwarranted timidity" in performance of public duties, ensuring that the threat of personal liability does not deter talented candidates from public service, and preventing distractions that impeded carrying out the government's work. See Filarsky, supra, 389-90, 132 S.Ct. 1657 ; citing Richardson v. McKnight , 521 U.S. 399, 409-411, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997). Simply preventing distraction is not, on its own, sufficient grounds to extend qualified immunity. Richardson, supra, at 411, 117 S.Ct. 2100.
In Richardson , the Supreme Court found that prison guards employed by a private, for-profit corporation, which had a contract with the State to manage a prison, did not have qualified immunity. The context of that case was that the private entity had a long-term contract with the state to handle a typically governmental task, but the state provided little direct supervision over the guards. Id. at 413, 117 S.Ct. 2100.
The Court determined that the private prison management firm was subject to competitive market pressures. A "firm whose guards are too aggressive will face damages that raise costs," the Court observed, "thereby threatening its replacement, ..." Id. , 409, 117 S.Ct. 2100. On the other hand, the Court continued, "a firm whose guards are too timid will face threats of replacement by other firms with records that demonstrate their ability to do both a safer and more effective job." Id.
Similarly, Mercy and LCCS review their contract annually. If LCCS became dissatisfied with Dr. Schlievert's performance (e.g., in light of civil suits against him), it could decline to renew its contract with Mercy and look elsewhere for a different board-certified child abuse pediatrician. Moreover, Mercy, as a private free-standing employer, has, like the private prison corporation, but unlike a government department, the ability to "offset the increased employee liability risk with higher pay or extra benefits." Id. at 411, 117 S.Ct. 2100.
These marketplace pressures are "strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or "nonarduous" employee job performance." Id. at 410, 117 S.Ct. 2100.
These considerations, in the Supreme Court's view, also weaken the need to grant immunity on the basis that to fail to do so would deter talented candidates from public service. Id.
Dr. Schlievert argues that I should follow the holding in Perniciaro v. Lea , 901 F.3d 241 (5th Cir. 2018) , a Fifth Circuit case extending qualified immunity to psychiatrists who were private university employees providing services to a state mental health facility. The Fifth Circuit distinguished the facts in Perniciaro from those in Richardson:
Dr. Schlievert also argues that he is entitled to qualified immunity under Ferris v. City of Cadillac, Mich. , 726 Fed.Appx. 473 (6th Cir. 2018). In Ferris, the court assumed, without argument, that a forensic pathologist, employed by a private health system who perfromed an autopsy on a child to determine the presence of child abuse, was entitled to qualified immunity. The opinion did not address whether a private actor is entitled to assert qualified immunity and is, thus, not instructive here in light of the clearly stated holding in McCullum withholding immunity from physicians. That decision, as I've discussed, is directly on point and binding.
Whereas the Supreme Court in Richardson concluded that the private prison guards there at issue "resemble those of other private firms and differ from government employees," 521 U.S. at 410, 117 S.Ct. 2100, here we conclude just the opposite. When Drs. Thompson and Nicholl go to work at ELMHS [the state mental health facility] they act within a government system, not a private one. The market pressures at play within a purely private firm simply do not reach them there.
Id. , at 253.
Aside from the non-binding status of this decision, the state agency in that case, unlike as the entity in Richardson and LCCS here, oversaw the facility's operations and the services. Here, Dr. Schlievert was, in effect, a free-lancer, operating without LCCS oversight or interaction. Even if Perniciaro were a Sixth Circuit case, it would be distinguishable on its face. This case fits squarely within our Circuit precedent. Moreover, under Filarsky , there is no firmly rooted history of immunity at common law for someone in his situation. Granting immunity to Dr. Schlievert would be inconsistent with the purposes of affording immunity,
I find, accordingly, that Dr. Schlievert is not entitled to assert qualified immunity.
2. Malicious Prosecution
A malicious prosecution claim "encompasses wrongful investigation, prosecution, conviction, and incarceration." Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010).
To establish her § 1983 malicious prosecution claim premised on a violation of the Fourth Amendment, plaintiff must prove: 1) the State brought a criminal prosecution against her, the institution of which the defendant influenced or in which he participated; 2) there was no probable cause to prosecute her; 3) the prosecution resulted in a deprivation of liberty apart from an initial seizure (arrest); and 4) the criminal proceeding was resolved in her favor. Id. at 308-09. A finding of malice is not required to succeed, Id. at 309-10, but the plaintiff must show that the defendant made "deliberate and reckless falsehoods," resulting in arrest and prosecution without probable cause. Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir. 2015).
The parties do not dispute that plaintiff's deprivation of liberty extended beyond her arrest and that the criminal case – ultimately – came out in her favor. Thus, I address only the first two elements of the claim: whether the defendant influenced or participated in plaintiff's prosecution and whether probable cause existed to bring the charges against her.
For the reasons that follow, a rational jury could find, respectively, that he did and there was none. In reaching this conclusion, which requires denial of defendant's motion for summary judgment, I view disputed facts in plaintiff's favor.
A. Influence and Participation
In conducting his paper-only review and submitting his two-page report and finding that J.J.’s injury was non-accidental, Dr. Schlievert was acting in an "investigatory fashion." Gregory v. City of Louisville , 444 F.3d 725, 740 (6th Cir. 2006). Where materially false statements underlie an expert's opinion, and that opinion results in a wrongful prosecution, the expert's actions have the same legal effect as a police officer's false statements in a police report. See Moldowan v. City of Warren , 578 F.3d 351, 397 (6th Cir. 2009) (rejecting officer's claim of absolute immunity and expert's claim of qualified immunity in interlocutory appeal) (an "intentional fabrication of a forensic report is subject to the same considerations applied to the intentional fabrication of evidence by a police officer or prosecutor."). Accord, Pierce v. Gilchrist , 359 F.3d 1279, 1300 (10th Cir. 2004) ; Keko v. Hingle , 318 F.3d 639, 644 (5th Cir. 2003) ; Paine v. City of Lompoc , 265 F.3d 975, 981 (9th Cir. 2001).
Although these cases involve interlocutory appeals of district court decisions rejecting experts’ claims of qualified immunity, they apply equally to the proposition that false statements can lead to liability in a § 1983 malicious prosecution suit. After all, if there is no liability, immunity issues are moot.
As I pointed out in overruling defendant's motion to dismiss in this case, "[i]nvestigators are deemed to have participated in a prosecution where misstatements and falsehoods in [their] investigatory materials ... ultimately influenced [the plaintiff's] continued detention." Gokor v. Schlievert , 335 F.Supp.3d 972 (N.D. Ohio 2018) (Carr, J.) (quoting Mills v. Barnard , 869 F.3d 473, 482 (6th Cir. 2017) ).
Dr. Schlievert expresses a self-serving disclaimer about his role in the sequence of events leading to criminal charges against the plaintiff:
Q: So you're not the person who maybe makes a decision about authorizing a warrant or charges or even a child protective petition, but you understand that your opinion is provided to them and they may rely on it in making those decisions?
A: All I can say is I provide them my opinion. I don't know what they choose to do with it in any given case unless there's some reason for me to find out.
(Doc. 73-3, pgID 1237).
Contrary to this subjective view, which is immaterial, a rational jury could readily find that his opinion that J.J.’s injury was non-accidental had a "but-for" effect on the decision to prosecute. That being so, a rational jury could find that Dr. Schlievert's report and non-accidental injury finding were the foundation on which the indictment rested.
That is, after all, why LCCS contracts with Mercy for Dr. Schlievert's opinion in cases of suspected child abuse. Moreover, once LCCS then notifies the prosecutor that it believed child abuse occurred, it is likely a rational jury could find that either Juvenile Court or, as in this instance, Criminal Court proceedings would follow. That sequence, the jury could find, was not just likely – it was inevitable.
A rational jury could find that that foundation was not firm, but rather, flawed by false statements. In which case, the jury could find that probable cause founded on deliberate or reckless falsity was no cause at all.
All this would be so if the jury found that Dr. Schlievert's core and most crucial contention - "[t]he history does not adequately account for the injury" was deliberately or recklessly false.
I conclude that a rational jury could find that the history, fairly read in favor of the plaintiff, supports the account the daycare personnel provided – namely, that J.J. let loose of plaintiff's hand, started to run, and slipped and fell; in a word, the injury was accidental.
If the jury reached that conclusion, it would necessarily mean that Dr. Schlievert's statement that the injury was non-accidental was false.
Such finding need not rest on a finding that plaintiff's courtroom testimony, and that of her witnesses, was credible. It is what J.J. himself told the nurse practitioner. He did so in the company of his mother, who had spoken with daycare personnel. The record gives no indication that she refuted, contradicted, or questioned J.J.’s (or their) account.
The nurse practitioner spoke with J.J. Dr. Schlievert did not. Indeed, he did not even mention J.J.’s statement in his two-page report. In addition, he did not interview the nurse practitioner, J.J.’s mother, plaintiff, or the daycare personnel. Instead, based on his paper review, he dismissed the daycare accounts as "improbable." He did not interview J.J. because, though the medical records clearly show that J.J. made this statement to a medical professional, Dr. Schlievert "questioned whether he even said that" and that it is only "proof that someone passed along a secondhand comment." (Doc. 73-3, pgID 1263, 1256).
Contrast this with Dr. Schlievert's deposition testimony that, among other things, the reported causative mechanisms and "other statements that may support or contradict the situation" are important to his medical evaluations. (Id. at pgID 1238).
A rational jury could find that Dr. Schlievert's failure to mention and give any apparent weight to what J.J. told the nurse practitioner alone put the lie to his assertion of an inadequately supported "history" and his finding that the injury was non-accidental – the finding on which plaintiff's indictment rested.
If the jury found that Dr. Schlievert deliberately ignored a "statement that may support the situation," i.e., a notation in the medical record that J.J. told a nurse practitioner that he slipped and fell, it could also find his distorted description of the record, barren as it was even of J.J.’s statement and based, as it was, merely on a paper review, to have been deliberately or recklessly false. To be sure, the jury might not find plaintiff and her witnesses credible and return a verdict for defendant. But there is more than enough evidence for a plaintiff's verdict on her Fourth Amendment malicious prosecution claim.
I note that the plaintiff has made a request for punitive damages in her amended complaint [Doc. 30]. I leave it to judicial determination at the conclusion of all the evidence for a decision whether to charge the jury that it may award punitive damages against the defendant if it finds that plaintiff established by clear and convincing evidence that defendant's actions demonstrated actual malice, 1 OJI-CV 315.37, defined as 1) a state of mind characterized by hatred, ill will, or a spirit of revenge; or 2) a conscious disregard for the rights and safety of another person that has a great probability of causing substantial harm. Id.
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Conclusion
For the foregoing reasons, it is hereby
ORDERED THAT defendant's motion (Doc. 70) and the plaintiff's motion (Doc. 73) for summary judgment be, and the same hereby are denied.
The Clerk shall forthwith schedule a status/scheduling conference.
So ordered.