Lowther v. Children Youth & Families Dep't

ADAM LOWTHER and JESSICA LOWTHER on behalf of themselvesand as next friends to their minor children, W.L. and A.L., Plaintiffs, v. CHILDREN YOUTH AND FAMILIES DEPARTMENT, BERNALILLO COUNTY SHERIFF'S DEPARTMENT,MARIA MORALES, in her personal capacity acting under color of state law, ANDREA MILES,in her personal capacity acting under color of state law, JACOB WOOTTON,in his personal capacity acting under color of state law, CATHERINE SMALL,

in her personal capacity acting under color of state law, BRIAN THORNTON,

in his personal capacity acting under color of state law, and MARTIN LOZANO,

in his personal capacity acting under color of state law, Defendants.

-consolidated with-

JESSICA LOWTHER, and KELLY STOUT SANCHEZ, Rule 1-017 Guardian ad Litem for A.L. and W.L. Plaintiffs, v. JACOB WOOTTON and BOARD OF COUNTY COMMISSIONERS OF COUNTY OF BERNALILLO, Defendants.

No. 1:18-cv-00868-KWR-JFR

No. 1:19-cv-01205-KWR-JFR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

July 21, 2020

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court upon Defendants' Motion for Partial Summary Judgment based on qualified immunity, filed on August 20, 2019 (Doc. 59) and Plaintiffs' Cross Motion for Partial Summary Judgment, filed on October 22, 2019 (Doc. 81).

Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants' motion is well-taken in part and, therefore, is GRANTED in part and DENIED in part. Plaintiffs' Cross Motion is DENIED.

BACKGROUND

This case arises from an investigation of alleged child abuse at Plaintiffs' home. Plaintiffs claim that Defendants violated their First, Fourth, and Fourteenth Amendment rights, and the New Mexico Tort Claims Act (NMTCA), by inter alia, unlawfully arresting or detaining Dr. Adam Lowther (Dr. Lowther); entering the Lowther residence without a warrant; detaining Jessica Lowther (Mrs. Lowther); and removing the Lowther children (A.L. and W.L.).

Plaintiffs filed this case under 42 U.S.C. § 1983 and the New Mexico Tort Claims Act, alleging the following claims against the Defendants¹:

Count I: Fourth Amendment (Unlawful Seizure and Arrest of Dr. Lowther) (Defendants Wootton, Small, Thornton, and Lozano);

Count II: Fourth Amendment (in the alternative to Count I) (Unlawful Detention of Dr. Lowther) (Defendants Wootton, Small, Thornton, and Lozano);

Count III: Fourth Amendment (Unlawful Detention of Mrs. Lowther) (Defendants Wootton, Small, Thornton, and Lozano);

Count IV: Fourth Amendment (Unlawful Entry into the Lowther Home) (Defendants CYFD, Morales, Wootton, Small, Thornton, and Lozano);

Count V: Fourth and Fourteenth Amendments (Illegal Seizure of the Lowther Children) (Defendants CYFD, Morales, and Wootton);

Count VI: Fourth and Fourteenth Amendments (Illegal Seizure of the Lowther Children) (Defendants CYFD, Morales, and Miles);

Count VII: Fourth and Fourteenth Amendments (Illegal Arrest, Entry, and Seizures) (Defendant BSCO);

Count VIII: Fourth and Fourteenth Amendments (Illegal Seizure of the Lowther Children) (Defendant CYFD);Count IX: First Amendment (Retaliation against Mrs. Lowther) (Defendant Wootton);

Count X: NMTCA (False Arrest and Imprisonment of Dr. Lowther) (Defendant BSCO);

Count XI: NMTCA (False Arrest and Imprisonment of Mrs. Lowther) (Defendant BSCO);

Count XII: NMTCA (False Arrest and Imprisonment of the Lowther children) (Defendant BSCO);

Count XIII: NMTCA (Defamation of Dr. Lowther) (Defendant BSCO).

This Memorandum addresses Defendants' Bernalillo County Sheriff's Department (BCSO), Detective Jacob Wootton (Wootton), Deputies Catherine Small (Small)², Brian Thornton (Thornton), and Martin Lozano (Lozano) (collectively "County Defendants") motion for partial summary judgment on Plaintiffs' claims under Counts III, IV, V, VI, VII, IX, X, XI, XII, XIII as well as Plaintiffs' cross-motion for summary judgment with respect to Counts I, II, III, IV, V, and VII.³ Doc. 81. Preliminarily, the Court notes that Count VI does not raise claims against County Defendants and is not briefed by the parties. The Court presumes this was mistakenly included and will not address the arguments within that claim. Although an Amended Complaint has been filed, the claims related to this Memorandum remain unchanged with respect to County Defendants and therefore the Court may appropriately render a decision with respect to this subject matter.

LEGAL STANDARD

County Defendants have asserted the defense of qualified immunity, which shields government officials from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would haveknown." Pearson v. Callahan, 555 U.S. 223, 231 (2009); Romero v. Story, 672 F.3d 880 (10th Cir. 2012).

When a defendant moves for summary judgment on the basis of qualified immunity, the plaintiff bears a heavy two-fold burden. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). The plaintiff must put forward evidence showing (1) that the defendant violated plaintiff's constitutional rights, and (2) the right at issue was clearly established at the time of the violation. Id. If the plaintiff fails to establish either part of the two-part inquiry, the court must grant the defendants qualified immunity. Id. If the plaintiff meets his or her burden of coming forward with facts or allegations which would demonstrate that the defendant's alleged violation should have been apparent in light of preexisting law, then the defendant assumes the normal summary judgment burden of establishing that no material facts remain in dispute that would defeat its claim of qualified immunity. See Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir. 1992). In determining whether summary judgment is appropriate, the Court considers the facts and all reasonable inferences drawn therefrom in a light most favorable to the nonmoving party. Hollander v. Sandoz Pharmaceuticals Corp., 289 F.3d 1193, 1214 (10th Cir. 2002).

UNDISPUTED MATERIAL FACTS⁴

To the extent a party's statement of facts do not contain citations to the record, the Court disregards them. See Fed. R. Civ. P. 56(c)(3) ("Materials not cited. The Court need consider only the cited materials, but it may consider other materials in the record."). Additionally, the Court may disregard a party's version of the facts which are clearly unsupported by the record.⁵ As held by the Supreme Court in Scott v. Harris (550 U.S. 372, 380 (2007)):

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Here, both parties rely almost exclusively on the belt tape audio content recorded by County Defendants' officers. Notably, Plaintiffs' cross motion for summary judgment states that "The core constitutional claims may be resolved by summary judgment because the material facts can be derived from the belt tape recordings and from the sworn and recorded statements of the lead investigators on the case, defendants Jacob Wootton and Maria Morales. Those facts are incontrovertible ..." (Doc. 81 Page 3).

Plaintiffs do not dispute the majority of County Defendants' facts so much as characterize or qualify them differently. The Court has reviewed the record and the relevant audio tapes, which by Plaintiffs' own attestation represents the requisite material facts, and incorporates general findings given the competing characterization of portions of the parties' factual presentations.

Factual Background

In 2017, the Lowther household had two children, A.L. and W.L., ages four and seven respectively. In August 2017, A.L. enrolled in Calvary Christian Academy. A.L.'s kindergarten teacher was Betty DuBoise (DuBoise). A.L. attended the school for approximately two weeks. On different occasions, DuBoise informed A.L.'s parents, Dr. and Mrs. Lowther, of inappropriate behavior A.L. had exhibited at school, including touching her private parts and hiking up her dress. Both parents acknowledged that A.L. was having issues which they were trying to address.

On August 30, 2017, at approximately 2:28 p.m., DuBoise anonymously called The New Mexico Children, Youth and Families Department (CYFD) and informed CYFD of her suspicionthat A.L. was being sexually abused by Dr. Lowther. CYFD's intake report highlighted the information DuBoise disclosed regarding A.L.'s behavior and what she had told DuBoise, which formed the basis of DuBoise's concerns. In the pertinent part, the report states:

On 8.25.2017 Source spoke with Adam about behaviors that [A.L.] had been displaying in class. [A.L.] has been touching her private area and hiking up her dress. Adam stated that they have been working with her and that she gets it from watching her 7 year old brother touch himself while sucking his thumb. On 8.29.2017 Source spoke with Jessica about the behaviors [A.L.] has been displaying. Jessica stated that [A.L.] has been having a hard time and that she would talk with her....

On 8.30.2017 [A.L.] told a male student that he had a penis. Source redirected the children. Source asked [A.L.] how she knew the word. [A.L.] says Adam puts her on his lap when he goes to the bathroom and likes to move her up and down like a horsey. Adam sleeps with her and kisses her on the lips with tongue. Adam touches her on her bottom and puts his finger inside of her. She was able to demonstrate the movement with her hands and fingers. [A.L.] relayed that her brother kisses her with tongue and that her brother touches her as well. [A.L.] said Adam also touches

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