DAREN GREEN and MICHELLE GREEN, husband and wife, individually and on behalf of their minor child, and E.G., a minor, Plaintiffs,
MONTANA DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES, a Montana State agency, CHRISTY ELLERBEE, individually and as a DPHHS employee, HEIDILUTZ, individually and as a DPHHS employee, DOROTHY FILSON, individually and as a DPHHS employee, and JANE DOES I-X, Defendants.
DANA L. CHRISTENSEN, Chief District Judge.
The Defendants have filed two motions for summary judgment in this case, both of which Plaintiffs oppose. This order resolves both motions, and attempts to bring some clarity to the future resolution of this case. The challenge in issuing this order is to provide a clear road map to the parties specifically describing the Plaintiffs' claims which remain to be tried to a jury. This challenge is compounded by the fact that Defendants' motions, for the most part, are directed to specific and discrete actions of certain defendants with only a cursory reference to the legal nature of the claim, e.g. "state law claim, " "§ 1983 claim, " etc., without ever tying these arguments to the six claims alleged in the Plaintiffs' Amended Complaint. This leaves the Court with the task of trying to discern whether Defendants are seeking summary judgment on the Amended Complaint in its entirety, on only some of the six claims in the Amended Complaint, or on only portions of those claims.
Thus, in order to make some sense of all of this, the Court begins its analysis by focusing on the six claims in the Plaintiffs' Amended Complaint, which can be summarized as follows:
FIRST CLAIM - Negligence. In this claim, the Plaintiffs allege that the Department was negligent in removing E.G. from her parents on May 26, 2005, and in failing to later reunite her with her parents, or more specifically, that the Department failed to conduct a thorough investigation and to develop a treatment plan designed to reunite E.G. with her family. These alleged acts of negligence appear to be based on violations of state law.
SECOND CLAIM - Civil Rights Violation - Fourth Amendment. In this claim, the Plaintiffs allege that Defendant Christy Ellerbee ("Ellerbee"), individually, violated their procedural due process rights under the Fourth Amendment of the U.S. Constitution by seizing and removing E.G. from them without a court order, without probable cause, and in deliberate indifference to their constitutional rights.
THIRD CLAIM - Civil Rights Violation - Fourteenth Amendment. In this claim, Plaintiffs allege that Defendants Ellerbee, Heidi Lutz ("Lutz") and Dorothy Filson ("Filson"), in their individual capacities, intentionally engaged in certain specified actions designed to terminate Plaintiffs' parental rights to E.G., in violation of the Fourteenth Amendment of the U.S. Constitution. The complained of actions by the individual Defendants include, without limitation, the unlawful removal of E.G. by Defendant Ellerbee from her parents on May 26, 2005, the failure by Defendant Ellerbee to conduct a thorough investigation, the wrongful contention by Defendants Lutz and Filson that Plaintiff Michelle Green suffered from Munchausen's Syndrome by Proxy ("MSBP"), the wrongful insistence by Defendants Lutz and Filson that Plaintiffs admit they perpetrated a criminal act upon E.G. as part of the treatment plans, and the failure of Defendants Lutz and Filson to timely complete the treatment plans, all in deliberate indifference to the Plaintiffs' constitutional rights.
FOURTH CLAIM - Civil Rights Violations - Fourteenth Amendment (by Conspiracy). In this claim, Plaintiffs allege that Defendants Lutz and Filson, in their individual capacities, together conspired in the guise of the Gallatin County judicial proceeding to wrongfully terminate Plaintiffs' parental rights to E.G. by committing the same acts alleged in the Third Claim.
FIFTH CLAIM - Intentional Infliction of Emotional Distress. In this claim, Plaintiffs allege they suffered serious or severe emotional distress as a result of the Department's negligence, and the civil rights violations committed by the individual Defendants.
SIXTH CLAIM - Exemplary Damages. In this claim, Plaintiffs seek exemplary damages from individual Defendants Ellerbee, Lutz, and Filson.
Plaintiffs seek damages in this case for lost wages, medical and counseling costs, emotional distress, pain and suffering, punitive damages, attorneys' fees, costs, pre and post-judgment interest and for loss of parent-child consortium.
The Court now turns to the Defendants' motions for summary judgment. In the first motion, the Defendant Montana Department of Health and Human Services ("Department") seeks summary judgment based on four arguments:
1. Plaintiffs' state law claims against the department relating to Ellerbee's placement of E.G. in emergency protective services on May 26, 2005 are barred by quasi-judicial immunity.
2. Plaintiffs' state law claims against the Department must be dismissed because Judge Brown's June 1, 2005 Order, and all successive orders, broke the chain of causation between the Department's alleged negligence and Plaintiffs' damages.
3. The Department has absolute quasi-judicial immunity for all actions taken by its agents and employees following the first order issued by District Court Judge Holly Brown of the Eighteenth Judicial District on June 1, 2005.
4. Plaintiffs' state law claims against the Department are barred by collateral estoppel.
This motion appears to be directed to the First Claim of the Amended Complaint, and ostensibly seeks dismissal of that Claim in its entirety.
In the second motion, Defendants Ellerbee, Filson, and Lutz ("Individual Defendants") seek partial summary judgment based on eleven separate arguments:
1. Plaintiffs' § 1983 claims against Ellerbee should be dismissed based on qualified immunity.
2. In the alternative, Ellerbee is entitled to partial summary judgment on Plaintiffs' damage claims allegedly suffered after June 1, 2005.
3. Defendant and supervisor Filson is not subject to § 1983 liability for the actions of Ellerbee, Gayle Frandsen ("Frandsen"), and Lutz because she did not individually violate any of the Plaintiffs' constitutional rights.
4. Lutz is not individually liable under § 1983 for the decision to place E.G. in emergency protective custody on May 26, 2005, or for the preparation or contents of the affidavit in support of the Petition for Emergency Protective Services, because she did not participate in either of those actions.
5. Filson and Lutz are entitled to quasi-judicial immunity and therefore are not individually liable under § 1983 for actions taken to maintain E.G. in protective and legal custody following District Court Judge Holly Brown's Order for Immediate Protection on June 1, 2005.
6. Filson and Lutz are entitled to absolute witness immunity for any testimony they provided during E.G.'s abuse and neglect proceedings.
7. Lutz is entitled to qualified immunity for any allegedly false allegations she made in affidavits or reports that E.G. had been abused or neglected by her parents because she was simply stating what the district court had already found.
8. Filson and Lutz did not violate Plaintiffs' Fifth Amendment rights.
9. Any claim against Lutz based on the filing of the termination petition should be dismissed because Lutz did not file the petition.
10. The negligent infliction of emotional distress claim against Ellerbee, Lutz, and Filson is barred by the statutory immunity found in Mont. Code Ann. § 2-9-305.
11. Plaintiffs' Claims against Defendants Ellerbee, Lutz, and Filson are barred by collateral estoppel.
The Court views arguments 1 and 2 above as seeking dismissal of the Second Claim of the Amended Complaint in its entirety. Argument 3 appears to seek a partial dismissal of the Third and Fourth Claims as to only Filson in her role as a supervisor of Ellerbee, Frandsen, or Lutz. Argument 4 appears to seek a narrow, partial dismissal of the Third Claim as to only Defendant Lutz relating to her lack of involvement in the decision to place E.G. in emergency protective custody on May 26, 2005 and in the preparation of the affidavit in support of the Petition for Emergency Protective Services. Filson and Lutz appear to be seeking dismissal of the Third Claim against them in its entirety in argument 5; argument 5 may also be directed to dismissal of the Fourth Claim of the Amended Complaint. Argument 6 is seemingly directed to a partial dismissal of the Third and Fourth Claims as to Defendants Filson and Lutz relating to their limited testimony during the abuse and neglect proceedings. Argument 7 seeks a narrow partial dismissal of the Third Claim as to only Defendant Lutz relating to false allegations made by her in affidavits or reports filed with the district court. Argument 8 seeks a partial dismissal of the Third and Fourth Claims to the extent they allege a violation of the Fifth Amendment by Filson or Lutz. Argument 9, again, seeks a narrow partial dismissal of the Third Claim as to only Defendant Lutz regarding the filing of the termination petition. Argument 10 seeks a partial dismissal of the Fifth Claim (negligent infliction of emotional distress) against Ellerbee, Filson, and Lutz. Finally, argument 11 appears to seek a complete dismissal of the Second, Third, and Fourth Claims against Ellerbee, Filson and Lutz based on collateral estoppel.
With this preliminary analysis in mind, the Court now turns to the facts which are germane to the disposition of the Defendants' two motions for summary judgment.
BACKGROUND FACTS & PROCEDURE
On May 26, 2005, based on a report of possible child abuse and neglect, Individual Defendant and Department employee Christy Ellerbee removed E.G. from the custody of her parents, Michelle and Daren Green, while she was being treated at St. Vincent's Hospital in Billings, Montana for a dislodged feeding tube. The specific allegation that gave rise to this initial period of protective custody, as well as to subsequent periods of temporary legal custody granted to the Department by State District Judge Holly Brown, was that Michelle Green suffered from Munchausen's Syndrome by Proxy, and had abused and neglected her daughter by subjecting her to unnecessary medical treatment.
On May 27, 2005, the day after Defendant Ellerbee placed E.G. in emergency protective custody, Gayle Frandsen took over the investigation of E.G.'s case. Frandsen prepared and signed an Affidavit for Emergency Protective Services and Temporary Legal Custody, which was filed in conjunction with a Petition for Emergency Protective Services and Adjudication as Youth in Need of Care. Based on those documents, the district court entered an Order for Immediate Protection, finding that the facts presented in the petition and affidavit established probable cause to believe that E.G. was abused or neglected or in danger of being abused or neglected, that immediate protection was required, and ordering the Department to maintain custody. Judge Brown conducted a show cause hearing, beginning on June 17, 2005, and concluding on June 30, 2005, which was attended by Daren and Michelle Green and their Counsel. Following this hearing, Judge Brown issued an order continuing emergency protective services and finding, inter alia, that probable cause existed to believe that E.G. was abused or neglected. On August 25 and 26, 2005, Judge Brown held an adjudication hearing and filed her resulting Findings of Fact and Conclusions of Law for Adjudication on November 8, 2005, finding that the Department had "proven by a preponderance of the evidence that the parents have abused or neglected E.G. as defined in § 41-3-102." (Doc. 57-24 at 19, ¶ 8.) Following a hearing on November 15, 2005, Judge Brown issued an order that, inter alia, granted the Department temporary legal custody of E.G. for a six month period expiring on or about May 14, 2006, and ordered the Department to create treatment plans for the parents after conferring with the parents and their Counsel regarding the requirements of the treatment plans. These plans were the subject of several objections and revisions, including one court-ordered revision (Doc. 57 at 30, ¶ 105), and were ultimately signed by Plaintiffs, filed, and incorporated into Judge Brown's order of July 6, 2006. On September 21, 2006, Judge Brown signed an order denying the parents' motion to terminate custody and emergency motion for amendment to order extending temporary legal custody. On February 9, 2007, Judge Brown granted the Department's request to extend temporary legal custody, and on February 21, 2007, the Department filed a Petition for the Termination of Parental Rights. Judge Brown conducted a hearing on that Petition, which began on May 25, 2007, and continued on August 27-31, 2007.
On December 14, 2007, Judge Brown filed her Findings of Fact, Conclusions of Law, and Order on Termination of Parental Rights, in which she ordered E.G. returned to her parents' physical custody on December 15, 2007, and ordered that the parents regain full legal custody on January 31, 2008.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the moving party demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor. Anderson v. Liberty Lobby Inc., 477 U.S. 317, 323 (1986). The movant bears the initial burden of informing the Court of the basis for its motion and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
The movant's burden is satisfied when the documentary evidence produced by the parties permits only one conclusion. Anderson, 477 U.S. at 251-52. Where the moving party has met its initial burden, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (internal quotation marks omitted).
THE DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT
1. The Initial Removal and Placement of E.G. in Emergency Protective Services & ...