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Wesley v. Campbell

United States Court of Appeals, Sixth Circuit

March 2, 2015

RICHARD WESLEY, Plaintiff-Appellant,
v.
ALISON CAMPBELL, et al., Defendants, JOANNE RIGNEY, individually and in her capacity as a police officer for the City of Covington, Defendant-Appellee

Argued March 12, 2014

Page 422

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:10-cv-00051--David L. Bunning, District Judge.

ARGUED:

Paul J. Hill, Fort Mitchell, Kentucky, for Appellant.

Bryce C. Rhoades, CITY OF COVINGTON, Covington, Kentucky, for Appellee.

ON BRIEF:

Paul J. Hill, Fort Mitchell, Kentucky, for Appellant.

Bryce C. Rhoades, Frank E. Warnock, CITY OF COVINGTON, Covington, Kentucky, for Appellee.

Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

OPINION

Page 423

MARTHA CRAIG DAUGHTREY, Circuit Judge.

In this civil rights case, plaintiff Richard Wesley, formerly an elementary school counselor and child behavioral specialist, appeals two adverse decisions by the district court in the lawsuit he brought against Joanne Rigney, an officer with the Covington Police Department, for false and retaliatory arrest. After finding probable cause, the district court initially dismissed Wesley's false arrest claim for failure to state a claim upon which relief could be granted and, subsequently, granted summary judgment to Rigney on Wesley's related claim for retaliatory arrest. Both claims arose from the same incident, in which one of Wesley's then-students accused Wesley of sexually assaulting him and two other students in an office at the school's administrative center. Rigney waited almost three months after the student made his allegations before seeking a

Page 424

warrant for Wesley's arrest and then omitted from her application a range of material facts demonstrating the unreliability of the student and his allegations. Taken together, those omissions thoroughly undermined the existence of probable cause. Because the district court's improper finding of probable cause supported its decisions to dismiss the complaint, we reverse the district court's judgment and remand the case for trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

The sexual-abuse allegations leveled against Richard Wesley were made by a seven-year-old male student referred to in this opinion as " J.S." At the time, Wesley served as a counselor and intervention specialist at Sixth District Elementary School in Covington, Kentucky, where he provided a range of services to students who, like J.S., suffered from psychological and behavioral problems. On February 5, 2009, Wesley responded to reports of a disturbance in a school hallway and found J.S. in the midst of an attempt at self-harm. Wesley removed J.S. from the hallway and brought the boy into his office, located in the middle of the school's administrative center, where he had been counseling two other students when the disturbance began. While Wesley left to contact J.S.'s mother, school secretary Peri Fischer stayed with the three students. She later testified that J.S. and Wesley were never alone together in Wesley's office that day.

Wesley reached J.S.'s mother by phone, informed her of the incident, and recommended that she take J.S. to NorthKey Community Care, a local mental health center. Before J.S.'s mother arrived, Wesley told J.S., " [W]hatever 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." When J.S.'s mother arrived at the school, Wesley called a cab for her and J.S., and followed them to NorthKey in his own car to make sure that they arrived. Wesley had an extensive record of counseling with J.S., knew that the boy had previously been hospitalized in a local psychiatric unit, had tried to arrange for J.S. to be evaluated at NorthKey, and knew that the boy's mother had failed to appear for his appointments there.

Before entering NorthKey, J.S.'s mother angrily confronted Wesley in the parking lot, shouting, " I know what you said to him, I know what you told him," and demanded that Wesley leave NorthKey. According to J.S.'s mother, J.S. disclosed during the car ride that Wesley had sexually abused him. She repeated those allegations to NorthKey personnel after Wesley left the center and returned to Sixth District School. NorthKey contacted the Kentucky Cabinet for Health and Family Services and arranged for Alison Campbell, a social worker with the Cabinet's Child Protection Branch, to meet J.S. and his mother that same day. In her investigative notes from her first interview with J.S., Campbell recorded J.S.'s allegations:

[J.S.] 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

Page 425

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.

As a result of this complaint, Campbell contacted Joanne Rigney, a detective in the Covington Police Department with whom she had worked on similar cases, and with whom she had become friends. Notably, Rigney's participation in the ensuing investigation came at Campbell's instigation, rather than through normal assignment channels in the police department. Both Campbell and Rigney were present at a forensic interview of J.S. that took place six days later at the Children's Advocacy Center (CAC), a non-profit organization providing services to abused children. At this interview, J.S. described sexual abuse far more serious than that which he had disclosed in his earlier meeting with Campbell. He alleged that following the self-harm incident on February 5, Wesley had brought J.S. into his office and, with the door cracked open, sodomized him by " put[ting] his private part in [J.S.'s] butt." He stated that during this assault, Wesley was nude but that J.S.'s pants were on--pressed by the interviewer, J.S. clarified that Wesley had pulled down his " soft pants" in the back. Asked " how were you when [Wesley] did [the sodomy]," J.S. responded that both he and Wesley were " [s]tanding straight up." During the abuse, J.S. recalled looking out the office's ground-floor window and seeing his " Mom and Dad, and . . . sister" just outside the window. J.S. stated that having Wesley's " private part in [his] butt" made him feel " sad." It " didn't feel good," he elaborated, because " it [felt] like I was being treated wrong." J.S. also recalled certain details about Wesley's office, such as the presence of a window and a blue table. More ominously, he stated that Wesley had been sexually assaulting him in this manner for over a year and that Wesley had been sexually abusing two other children at the school as well.

As part of their joint investigation, Campbell and Rigney visited Sixth District Elementary the same day. Their goal was to have J.S. identify the two boys in Wesley's office during the February 5 incident, as well as the two other abuse victims he had mentioned during the CAC interview. J.S., however, was out sick. Because J.S. was unavailable to make identifications, Campbell and Rigney sought to locate the other abuse victims by using school records to identify " any child that [Wesley] had access to" on more than one occasion over the previous year. Those records indicated that 35 students had met previously with Wesley, a figure Rigney and Campbell considered to be the pool of children Wesley would have been able to abuse. They also spoke with Principal Anthony Ross, who allowed Rigney and Campbell to search Wesley's office, where they found school scheduling records confirming that he and J.S. had met together regularly. Consistent with J.S.'s description, they also found that Wesley's office contained a window and a blue table.

Rigney and Campbell did not seek to verify J.S.'s allegations by questioning potential witnesses at the school. For example, when Rigney spoke to Principal Ross, she did not ask if he had witnessed the incident on February 5. Nor did she speak with the school secretary, Peri Fischer, even though her desk directly faced Wesley's office. Later, in deposition testimony, Rigney agreed that she " didn't ask anyone at the school anything about the allegations that J.S. made," because she did not feel that their answers were " important to that specific part of the investigation." This omission proved an unfortunate one for Wesley, because Fischer, a

Page 426

genuine eyewitness, would later confirm in an affidavit that no inappropriate behavior occurred.

The next day, February 12, Campbell returned to the school with six other social workers. Working in shifts, they removed from class each of the 35 children identified as having met with Wesley more than once and interviewed them, individually, regarding sexual abuse, " bad touching," and their relationships with Wesley. The children uniformly denied any inappropriate or unprofessional behavior on Wesley's part.

Rigney also arranged for J.S. to undergo a medical examination for signs of physical trauma from the alleged anal rapes. He was examined by Dr. Philip Lichtenstein on February 18 at the CAC. On April 15, the " medical exam came back with no concerns." After scheduling this examination, Rigney and Campbell took no further steps to investigate J.S.'s allegations.

When he returned to Sixth District School after his initial confrontation with J.S.'s mother, Wesley was placed on indefinite administrative leave and was later formally terminated. During this time, Wesley made efforts to set up an interview with Rigney regarding the allegations, but for reasons the parties dispute, no interview ever occurred. Nor was he interviewed by Campbell, who nevertheless decided that J.S.'s allegations had been substantiated. Accordingly, she prepared a formal " substantiated investigation notification letter," which she sent to the Cabinet, ...


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