United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, District Judge.
This is a 42 U.S.C. § 1983 action brought by a Kentucky father, Kenneth Lalley, on behalf of himself and his minor children, G.L. and B.L., against employees of Kentucky's Cabinet for Health and Family Services ("Cabinet"). Plaintiffs allege violations of their Fourteenth Amendment procedural and substantive due process rights, as well as state-law claims for abuse of process and intentional infliction of emotional distress. The case is before the Court on the parties' cross-motions for summary judgment. (Docs. 42, 44.) The Court previously heard oral argument on these motions on October 6, 2014, after which it took them under advisement. The Court now issues the following Memorandum Opinion and Order.
At oral argument on October 6, 2014, the parties agreed that the following facts are undisputed, although the legal significance of the facts is disputed.
A. C.L.'s Allegations and the Cabinet Referral
On April 10, 2012, at 11:13 a.m., the Cabinet received a referral regarding the possible sexual abuse of a fifteen-year-old boy, C.L. C.L. is the minor son of Plaintiff Kenneth Lalley. The reporting source, a therapist then treating C.L. in a Louisville hospital, stated that C.L. had reported that Lalley had been physically and sexually abusing him since the age of twelve. The alleged sexual abuse as initially described by the reporting source consisted of Lalley forcing C.L. to masturbate Lalley and to perform oral sex on Lalley over 100 times. Lalley allegedly carried out the abuse while his oldest child, M.L., was out of the house and by drugging his two youngest children, B.L. and G.L., in order to ensure that they slept through the abuse. (Doc. 42-5, DNA Reporting Form, at 1-2.)
When a Cabinet official spoke to the reporting source a second time, C.L. had corrected her version of the events, alleging that Lalley did not make C.L. perform oral sex on Lalley but that Lalley would wake C.L. in the middle of the night, blindfold him, and take him to another house where he would participate in oral sex and sexual intercourse with other adults. C.L. specifically alleged that one of the other adults was Boone County Family Court Judge Linda Bramlage. Based on a perceived conflict of interest in Boone County related to the allegations against Judge Bramlage, the Cabinet transferred the case to a Scott County social worker, Defendant Geri Purvis. (Doc. 42-6, Lalley CQA, at 6-7.)
In response to C.L.'s allegations, also on April 10, 2012, Cabinet employee Bill Coghill, an experienced sexual abuse investigator, interviewed C.L. at a Louisville hospital, where C.L. was housed at that time due to mental-health issues. During that interview, C.L. consistently reiterated the allegations that he previously had made against Lalley. Specifically, C.L. alleged that Lalley had forced him to masturbate Lalley over 100 times and also that Lalley had forced him to participate in oral sex and sexual intercourse with Judge Bramlage and other adults over fifty times. C.L. gave a detailed description of the body of the woman he alleged was Judge Bramlage, including the position of her birth marks and her pubic hair color. In addition to the above allegations, C.L. alleged that he had once seen Lalley and Judge Bramlage naked together on the family sofa. He also alleged that M.L. witnessed the same incident. ( Id. at 8, 10.)
Other than the allegations against Judge Bramlage, Coghill found C.L.'s story to be consistent with other cases he had worked. C.L. did not indicate that any of his siblings were physically or sexually abused by Lalley. (Doc. 42-8, Coghill Depo., at 8-10.) Coghill reported to Purvis on April 11 that C.L.'s story was internally consistent and believable. (Doc 42-6, Lalley CQA, at 8.)
B. Purvis's April 10 Removal of Lalley's Children
At approximately 9:30 p.m. on April 10, 2012, Defendant Purvis arrived at Lalley's home, accompanied by an officer of the Kentucky State Police. After Purvis provided Lalley with a business card, he allowed her to enter the home. Purvis requested permission to speak with Lalley's oldest child, M.L., and Lalley acquiesced. (Doc. 42-9, Lalley Depo., at 10-12). Purvis interviewed M.L. in an upstairs bedroom. M.L. reported that she was scared of Lalley, that Lalley was sometimes verbally abusive to her, and that Lalley had an alcohol problem. M.L. also corroborated C.L.'s allegations about witnessing Lalley and Judge Bramlage naked together in their home. (Doc. 42-6, Lalley CQA, at 2-3.)
Based on C.L.'s allegations and her interview with M.L., Purvis believed that she could seek an emergency custody order ("ECO") for each of the children in Lalley's home. (Doc. 42-10, Purvis Aff., at ¶ 2.) When Purvis returned downstairs, she informed Lalley that he could consent to the children's removal or that she could get a court order and the children would go to foster care. Lalley contacted his ex-mother-in-law, Lillian Mays, and she agreed to care for M.L., G.L., and B.L. temporarily. Purvis and the state policeman eventually transported M.L., G.L., and B.L. to Lillian Mays's residence. (Doc. 42-9, Lalley Depo., at 15, 21, 25.)
Before she departed with the children, Purvis presented Lalley with a prevention plan ("Plan"), a document authorizing the children's temporary removal from the home. The Plan stated that its objective was to "Keep Children Safe, " and it imposed various obligations on Lalley. Lalley agreed that Lillian Mays would have "care, control, [and] supervision of [M.L., G.L., and B.L.], " that he would have "supervised visitation with the children, " that he would not have "any conversations with the children about the [abuse] allegations or the case, " that he would "cooperate with DCBS and law enforcement, " and that he would contact Purvis with any concerns or questions. The Plan bears both Lalley's and Purvis's signatures, dated April 10, 2012. (Doc. 42-11, Prevention Plan.)
On April 12, 2012, at 3:24 p.m., Lalley's attorney, John Berger, sent an e-mail to Purvis. In that e-mail, Berger unambiguously indicated that Lalley rescinded his consent to the Plan: "Based upon the apparent unauthorized removal of the Lalley children from his residence, Mr. Lalley rescinds his agreement' to allow his children to remain in the care of... Lillian Mays." (Doc. 44-14, E-mail from Pratt to Prewitt and Purvis, at 3.) The Cabinet thus decided to seek an ECO for each child removed from Lalley's home on April 10. (Doc. 44-10, Purvis Aff., at ¶¶ 3-5.)
C. Prewitt's April 12 Procurement of the ECOs
Due to the allegations C.L. had made against Judge Bramlage and on the advice of counsel, Defendant Lisa Prewitt contacted Judge Gregory Bartlett, the Chief Regional Circuit Judge for Northern Kentucky, several times on April 11 and April 12 to inform him of the situation and consult with him as to the best way for the Cabinet to proceed. Judge Bartlett instructed Prewitt to bring the draft ECO petitions to his chambers for review. Purvis prepared the draft petitions, which "stated that [they] were filed in Kenton Court due to a believed conflict of interest in Boone Family Court.'" (Doc. 42-12, Prewitt Aff., at ¶¶ 7-9.)
The Cabinet included the above statement "to explain why [they were] not asking [Judge] Bramlage to sign the ECOs, even though the children resided in her jurisdiction." Prewitt sent the draft petitions to Judge Bartlett, who later informed her that she needed to go through Judge Bramlage to obtain the ECOs. ( Id. at ¶¶ 10-12.)
Prewitt subsequently called Judge Bramlage on the judge's cell phone and informed the judge that she had ECOs for the Lalley children that required the judge's signature. Before she presented the ECO petitions to Judge Bramlage, Prewitt removed the reference to the conflict of interest in Boone County. ( Id. at ¶ 13.) Prewitt also signed the affidavits filed along with the ECO petitions even though Purvis had completed the affidavits, because Purvis was ninety minutes away from Boone County. (Doc. 42-3, Prewitt Depo., at 52.) When Judge Bramlage arrived, Prewitt presented her with the paperwork. Prewitt did not mention the allegations C.L. had made against the judge or that the Cabinet had referred the allegations against the judge to the Kentucky State Police. Judge Bramlage signed the petitions on April 12, 2012. (Doc. 42-16, Bramlage Depo., at 14-15.) The record does not reflect at what time on April 12 Judge Bramlage signed the ECOs.
D. Family Court Proceedings and Purvis's Substantiation
The parties then appeared at a Temporary Removal Hearing in Boone County Family Court on the following day, April 13, 2012. Judge Bramlage had left to take a vacation on the evening of April 12, so visiting Judge Foellger presided. Lalley's attorney, Berger, informed Judge Foellger of the nature of C.L.'s allegations against Judge Bramlage. With full knowledge of all the allegations, Judge Foellger found that there was probable cause to believe that all four children were dependent, neglected, or abused. (Doc. 42-20, Temporary Custody Orders, at 2, 4, 6, 10, 14.)
At a hearing on May 11, 2012, Judge Foellger ordered the children's Guardian ad Litem to interview M.L., G.L., and B.L. If the children did not report allegations of abuse or neglect, then Judge Foellger planned to restore Lalley's right to full custody. (DE 45, DVD.) Following the Guardian ad Litem's interviews, the state court restored Lalley's ...