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Wesley v. Rigney

United States District Court, Sixth Circuit

June 18, 2013

RICHARD WESLEY, Plaintiff,
v.
JOANNE RIGNEY, Defendant.

PLAINTIFF MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

I. INTRODUCTION

This ยง 1983 action is again before the Court on Defendant Joanne Rigney's Motion for Summary Judgment (Doc. # 79) on Plaintiff Richard Wesley's retaliatory arrest claim, which has been fully briefed (Docs. # 86, 88). Rigney argues, inter alia, that she is entitled to qualified immunity pursuant to Reichle v. Howards, 132 S.Ct. 2008 (2012), because it was not clearly established at the time of Wesley's arrest that she could be liable for a retaliatory arrest that was otherwise supported by probable cause. Wesley concedes that Reichle controls the Court's determination, and that Rigney is entitled to qualified immunity if she had probable cause to believe that he committed sexual abuse in the first degree. Because the Court finds that Rigney did have probable cause, the Court will grant her motion for summary judgment, finding that she is entitled to qualified immunity.

II. FACTUAL BACKGROUND

A. J.S. is called to Richard Wesley's office

On February 5, 2009, Plaintiff Richard Wesley was standing beside his office door at Sixth District Elementary School in Covington, Kentucky when he heard a commotion in the hallway. (Doc. # 82 at 119). Wesley walked toward the noise and found J.S., a seven-year old student, crying and attempting to put cloth wristbands over his nose and mouth in an apparent attempt to commit suicide. ( Id. at 120). Wesley, the school's counselor, stopped J.S.'s attempt and took the child back to his office.

What happened once Wesley and J.S. arrived at Wesley's office is disputed. According to Wesley, he said to J.S., "what's going on, talk to me..." ( Id. at 121). J.S. initially responded that he did not wish to talk, but later said, "I want to hurt myself" and "I want to kill myself." ( Id. ). After these concerning comments, Wesley put J.S. in his office with three other children and called J.S.'s mother, M.D. ( Id. ). Wesley advised M.D. that J.S. had attempted to hurt himself and that the child needed to be seen at NorthKey, a mental health facility. ( Id. at 122).

M.D. and J.S.'s stepfather arrived at Sixth District Elementary School ("Sixth District") soon thereafter. ( Id. at 123-24). Wesley again explained that J.S. needed to be immediately examined at NorthKey, but M.D. initially resisted. ( Id. at 124). In an apparent attempt to convey the gravity of the situation, Wesley threatened to call Child Protective Services if M.D. continued to refuse. M.D responded, "No, I don't want you calling them, I'll take him to NorthKey." ( Id. ). M.D. then called NorthKey and made arrangements to have J.S. examined immediately.

After the arrangements with NorthKey were made, Wesley walked J.S. back to his classroom to gather his belongings while M.D. and the stepfather remained in Wesley's office. ( Id. at 125). On the way back to his office, Wesley told J.S., "whatever you do, make sure you tell them everything that is bothering you at the hospital, whether it's anything that's bothering you at school, whether anything is bothering you at home, make sure you let them know." ( Id ). A taxi arrived soon thereafter and transported J.S., M.D. and the stepfather to NorthKey. ( Id. at 126). Wesley followed the taxi in his own vehicle. ( Id. ).

B. J.S. discloses that Richard Wesley had sexually abused him

During the ride to NorthKey, J.S. disclosed to his mother and stepfather that Wesley had sexually abused him.[1] ( Id. at 157; Doc. # 80-1 at 3). The taxi arrived at NorthKey, and Wesley parked his vehicle nearby. (Doc. # 82 at 132). As J.S., M.D. and the stepfather neared the front door of the building, they were approached by Wesley. M.D. looked at Wesley and screamed, "I know what you said to him. I know what you told him... You're going to lose your job." ( Id. ). Wesley acted as if he did not know what she was talking about. M.D. then said, "You're going to lose your job... I don't want you here, leave, you need to leave." ( Id. at 133). Wesley complied and returned to Sixth District. ( Id. at 134).

Apparently while at NorthKey, J.S. disclosed that "his school counselor, Rich Wesley [was] touching his private parts." (Doc. # 80-1 at 1). J.S. explained that he was initially afraid to tell his mother, but finally decided to tell his mother about the abuse. ( Id. ). Allison Campbell, an employee of the Commonwealth of Kentucky's Cabinet for Families and Children, was then contacted about J.S.'s disclosure.

Campbell arrived at NorthKey a short time later to interview J.S. Campbell later recounted her conversation with J.S. as follows:

[J.S.] informed me he attends 6th District and is in the 1st grade. He also informed me he resides with his mom, sister and step-dad. [J.S.] reported he believed I was there due to his counselor, Mr. Wesley. [J.S.] further reported that earlier that day he was in Mr. Wesley's office due to being in trouble at school. When [J.S.] first arrived there were two other children in the room but a little while later they all left and he was alone with Mr. Wesley. Mr. Wesley closed the door (he indicated it was not shut all the way but was open a small crack) and stood next to [J.S.] by the round table in his office. Mr. Wesley then touched [J.S.]'s "private part" with his left hand. [J.S.] reported the touch was on top of the clothes. He further reported that he and Mr. Wesley both had their clothes on. He denied Mr. Wesley said anything at that time but before [J.S.] left Mr. Wesley grabbed [J.S.] on the shoulder and told him not to tell anyone.

( Id. at 2).

In light of J.S.'s disclosure, Campbell contacted JoAnne Rigney, one of two detectives with the Covington Police Department who investigated child sexual abuse cases, to report potential criminal conduct. (Doc. # 80 at 98; Doc. # 79-3). The Covington Police Department did not have a written or established procedure for assigning sexual abuse cases between the two detectives. (Doc. # 79-3). Instead, Rigney and the other detective, Bryan Frodge, informally determined between themselves who would handle a particular case. ( Id. ). As part of this informal process, it was common for social workers to contact either Rigney or Frodge directly about a case. ( Id. ). Campbell complied with this informal, yet accepted, practice by contacting Rigney directly. ( Id. ).

During Campbell's phone call to Rigney, she explained only that J.S. had disclosed that he was sexually abused. (Doc. # 81 at 47). According to Rigney at her deposition, Campbell did not share specifics of the disclosure, however. ( Id. ). In fact, Rigney testified that she never heard the specifics of J.S.'s disclosure to Campbell until Campbell's report was read to her at her deposition. ( Id. ). Nonetheless, based on the general report of J.S.'s disclosure, Rigney scheduled a forensic interview of J.S. with the Children's Advocacy Center ("CAC") on February 11, 2009.[2]

C. J.S. is interviewed at the Children's Advocacy Center

On February 11, 2009, J.S. and his mother reported to the CAC for J.S.'s forensic interview. Campbell and Rigney watched through a double-sided mirror as CAC employee Lydia Noll interviewed J.S. (Doc. # 80-1 at 2). When Noll asked J.S. why he thought he was being interviewed, J.S. responded, "because my counselor did something bad." (DVD of February 11, 2009 interview at CAC at 14:25). J.S. then clarified that he was talking about his "counselor at school, " "Mr. Wesley." ( Id. at 14:33; 14:38). J.S. explained that he was in Wesley's office at Sixth District Elementary because "[Wesley] told me to get in there." ( Id. at 17:43). No one else was in the office. ( Id. at 17:49). J.S. remembered that Wesley's office door was cracked open just a few inches.[3] ( Id. at 17:19). J.S. recounted that Wesley had "put his private part in my butt" as the two were standing next to a blue round table in Wesley's office. ( Id. at 14:40; 16:54). He stated that Wesley's pants were off at the time, and that Wesley pulled down the back of his "soft pants" in order to sodomize him. ( Id. at 16:21). J.S. also explained that Wesley "squeezed" his penis outside of his pants. ( Id. at 21:07; 24:50). During this time, J.S. did not see Wesley's "private part, " but remembered looking out the office window and seeing his mom, dad and sister. ( Id. at 29:55). J.S. remembered feeling "sad" when this happened, and explained that "it don't feel good." ( Id. at 15:55; 16:02).

J.S. also told Noll that the abuse was not limited to one occasion. J.S. explained that the abuse started a year earlier when he was in kindergarten. ( Id. at 23:00). J.S. remembered that the abuse began when he and his family were living on Greenup Street, and continued while he lived at a local homeless shelter, and then as he lived at a third location. ( Id. at 18:22).

Noll also asked J.S. if Wesley ever told him anything after the abuse. J.S. explained that Wesley threatened to kick him out of school if he ever told. ( Id. at 22:58). As J.S. explained it, "[Wesley] was trying to scare me." Id. Later in the interview, J.S. said that he did not tell anyone about the abuse sooner because he was scared. J.S. reiterated that "[Wesley] said if you talk to somebody, I will... he gonna kick me out of that school." ( Id. at 26:20). J.S. recalled that he first disclosed the abuse to his mother and stepfather as they were riding in the taxi to NorthKey on February 5, 2009.

J.S. also told Noll that Wesley was abusing at least two other boys in the third grade. ( Id. at 21:52). J.S. did not remember the boys' names, and only remembered that they each told him they were treated similarly. J.S. confirmed, though, that he never saw any other children being abused by Wesley.

D. Campbell and Rigney's subsequent investigation

At the conclusion of J.S.'s forensic interview, Campbell and Rigney met with J.S.'s mother, M.D.[4] M.D. reported that J.S. had recently been exposing his buttocks and penis to his siblings, and that he had begun wetting the bed, something he had not previously done. (Doc. # 80-1 at 3). M.D. also recalled the events that transpired on February 5, 2009. ( Id. ). She explained that Wesley continuously honked his car horn and waived as he followed them in their taxi to NorthKey. ( Id. ). When they arrived at NorthKey and M.D. told Wesley to stay away, Wesley continuously apologized and said that if he touched J.S.'s leg, it was not meant the way it might have appeared. ( Id. ). M.D. also reported that Wesley appeared at her apartment after she returned with J.S. from NorthKey, and again showed up at her apartment the night before J.S.'s interview at the CAC.

Later in the day on February 11, 2009, Campbell and Rigney went to Sixth District to speak with the principal, Dr. Anthony Ross. (Doc. # 81 at 56-57; Doc. # 80-1 at 3). Rigney questioned Dr. Ross on whether it was normal for school personnel to go to students' homes after hours. (Doc. # 81 at 131-32). Dr. Ross explained that this would be unusual, and that any visits were only done with his permission. ( Id. ). Additionally, Dr. Ross said that school personnel were not allowed to make a home visit without being accompanied by a colleague. ( Id. ).

Dr. Ross also provided Campbell and Rigney with access to Wesley's office, as well as a list of all students that had been seen by Wesley. ( Id. ). Campbell and Rigney took pictures of Wesley's office at some point thereafter. (Doc. # 81 at 59). Rigney observed the layout of Wesley's office and noticed that it would have been possible for J.S. to stand at the table and look out the window while being sodomized, as he had described in his interview at the CAC. ( Id. at 101). Rigney also obtained Wesley's personnel file from the school. ( Id. at 149). Notes in the file indicated that Wesley had multiple individual encounters with J.S., which corroborated J.S.'s disclosure that he was alone in Wesley's office on many occasions. ( Id. ).

On February 12, 2009, Campbell and others from the Cabinet for Families and Children returned to Sixth District to interview children that had contact with Wesley. Rigney and another detective with the Covington Police Department also returned to Sixth District to oversee the information collected by the interviewers. At least thirty (30) ...


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