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McConnell v. Watauga County

United States District Court, W.D. North Carolina, Statesville Division

May 31, 2019

WATAUGA COUNTY, et al., Defendants.



         THIS MATTER comes before the Court on a Motion for Summary Judgment by Defendants Len D. Hagaman, Thomas Hughes, Jaska H. Rominger, Chad Slagle, Jennifer Smith, Watauga County, Watauga County Department of Social Services, Watauga County Sheriff's Department, Western Surety Company, and Jessica Weinbarger, (Doc. No. 47).

         I. BACKGROUND


         Plaintiffs James Edward McConnell and his wife, Kim McConnell, filed this action on October 27, 2017, asserting claims against Defendants in connection with James McConnell's arrest and subsequent criminal prosecution against him for committing sexual acts on his adopted son. McConnell was acquitted after a jury trial. Plaintiffs have named the following persons and entities as Defendants in this action: (1) Watauga County, North Carolina; (2) Watauga County Department of Social Services (“DSS”); (3) Thomas Hughes, Director of Watauga County DSS at all relevant times; (4) Jennifer Smith, a Watauga County DSS social worker at all relevant times; (5) Jessica Winebarger, a Watauga County DSS social worker at all relevant times; (6) Chad Slagle, a Watauga County DSS social worker at all relevant times; (7) Len D. Hagaman, the Watauga County Sheriff at all relevant times; (8) Watauga County Sheriff's Department; (9) Jaska H. Rominger, a Watauga County Deputy Sheriff at all relevant times; and (10) Western Surety Company, the surety on Sheriff Hagaman's bond.

         Plaintiffs assert a claim under 42 U.S.C. § 1983, alleging that Defendants violated Plaintiffs' federal constitutional rights by way of the arrest and prosecution of McConnell. (Doc. No. 1 at ¶¶ 65-79). Specifically, Plaintiffs allege that Defendants violated Plaintiffs' Fourth Amendment right to be free from unreasonable seizure and false arrest.[1] Plaintiffs also assert a claim under 42 U.S.C. §§ 1985 & 1986, alleging that Defendants conspired to violate their civil rights. (Id. at ¶¶ 80-86). Plaintiffs further assert numerous pendent, state law tort claims, including claims for false imprisonment/arrest, (id. at ¶¶ 87-91); abuse of process/malicious prosecution, (id. at ¶¶ 92-103); negligent hiring, supervision and retention, (id. at ¶¶ 104-111); intentional infliction of emotional distress, (id. at ¶¶ 112-117); and negligent infliction of emotional distress, (id. at ¶¶ 118-120). Plaintiffs also assert a direct claim under the North Carolina Constitution, (id. at ¶¶ 125-133); and a claim against Sheriff Hagaman's official bond under N.C. Gen. Stat. § 58-76-5, (id. at ¶¶ 9, 12). Plaintiffs seek compensatory and punitive damages, including damages for loss of consortium, (id. at ¶¶ 121-24).

         Defendants timely filed their Answer, (Doc. No. 24), denying Plaintiffs' material allegations and asserting numerous affirmative defenses, including qualified immunity, public officer's immunity, governmental immunity, and the expiration of the applicable statutes of limitation and/or repose.[2] On January 22, 2019, Defendants filed their summary judgment motion. (Doc. No. 47). On March 24, 2019, Plaintiffs filed a response in opposition to the summary judgment motion. (Doc. No. 80). Defendants filed a Reply on April 1, 2019. (Doc. No. 82).


         After serving as their foster parents, Plaintiffs adopted two brothers, Austin and Alex, then ages 5 and 3, on February 9, 2004. (K.M. Dep. at 28, 41; Doc. No. 1 at ¶ 17). In the ensuing years, Austin exhibited behavioral problems, including violence and anger issues, self mutilation/self-destructive behavior, and drug and alcohol use. In March 2014, Austin was involuntarily committed to Old Vineyard Behavioral Health and thereafter to Holly Hills Behavioral Health.

         On July 31, 2014, Austin was admitted to Timber Ridge Center, a Level III treatment camp located in Rowan County. (K.M. Dep. at 46-47, 65; J.M. Dep. at 81-82, Doc. No. 1 at ¶ 18). During Austin's admission to Timber Ridge, Nurse Sue Hahn interviewed Austin, at which time Austin reported to Hahn that his father James McConnell had engaged in sexual activity with him in the past. As required by law, Hahn referred these allegations to the Watauga County DSS. (Smith Aff. at ¶ 3). On August 5, 2014, a Rowan County social worker interviewed Austin, who reported that his father had engaged in sexual activity with him several years earlier. (Id. at ¶ 4). After the DSS notified the Sheriff's Office of the allegations on August 5, 2014, Detective Rominger began a criminal investigation. (Rominger Aff. at ¶ 7).

         On August 8, 2014, Rominger and DSS social worker Jennifer Smith, who was conducting a parallel Child Protective Services investigation, interviewed James McConnell. McConnell vehemently denied Austin's allegations. (J.M. Dep. at 162; Rominger Aff. at ¶ 11; Rominger Dep. at 182-89; Smith Aff. at ¶ 10). On September 4, 2014, McConnell voluntarily undertook a polygraph examination. (J.M. Dep. at 15-18). The SBI polygrapher determined that McConnell's responses indicated a high level of deception. (Rominger Aff. at ¶ 17, J.M. Dep. at 161). Immediately thereafter, Rominger conferred with the District Attorney's Office (“D.A.”), who instructed Rominger to attempt to obtain the sex toys Austin had described as being used in the incidents with his father. (Rominger Aff. at ¶ 18; Rominger Dep. at 171-72).

         After conferring with attorney Britt Springer, Kim McConnell consented to a search of Plaintiffs' home by Rominger and voluntarily surrendered a bag of sex toys to Rominger. (K.M. Dep. at 59-62, Rominger Aff. at ¶ 22; Rominger Dep. at 173-79). That same day, the DSS, with Plaintiffs' consent, instituted a Safety Plan in which James McConnell would have no contact with Alex or Austin, who was still at Timber Ridge. (K.M. Dep. at 56; Smith Aff. at ¶ 22, Ex. M; Rominger Dep. at 175-76).

         At the direction of the D.A., Rominger conducted a recorded forensic interview of Austin[3] on September 11, 2014, during which Austin related several detailed sexual encounters with James McConnell when Austin was between 11 and 13 years old. (Rominger Aff. at ¶ 26, Ex. A; Rominger Dep. at 88-136, 205-11, 213). Rominger met the following day with the D.A., who reviewed her recorded interview of Austin. The D.A. determined to bring criminal charges against McConnell and instructed Rominger to seek arrest warrants for three counts of sex offenses with a minor and three counts of taking indecent liberties with a minor. (Rominger Aff. at ¶ 27; Rominger Dep. at 146, 158-59).

         On September 22, 2014, the DSS filed Juvenile Petitions as to Austin and Alex, alleging that Austin was an Abused, Dependent and Neglected Juvenile and that Alex was a Neglected Juvenile. (Smith Aff. at ¶ 27, Exs. O & P). At the D.A.'s direction, Rominger appeared before Magistrate Carrie Church on October 27, 2014, seeking warrants for McConnell's arrest on three counts of Taking Indecent Liberties with a Child and three counts of Statutory Rape/Sexual Offense With a Child by an Adult.[4] (Rominger Aff. at ¶ 35; Rominger Dep. at 148, 150-52, 232-34). After hearing Rominger's testimony, the Magistrate found that probable cause existed to issue arrest warrants. (Arrest Warrants; Rominger Aff. at ¶ 36, Rominger Dep. at 157). Later that day, a two-day hearing began in Juvenile Court regarding the Juvenile Petitions related to Austin and Alex. Plaintiffs attended this hearing, both represented by counsel. Several witnesses testified, including Austin. Plaintiffs' attorneys vigorously cross-examined Austin and other witnesses called by DSS. (K.M. Dep. at 12-14, J.M. Dep. at 18-30; Hearing Tr.).

         After the hearing, Judge Hal Harrison entered an Order on Adjudication and Interim Disposition, in which he found Austin's testimony “to be credible and specific” and concluded that “clear, cogent and convincing facts exist making [Austin] an Abused, Dependent and Neglected Juvenile, ” and further held “that [Austin] is adjudicated an Abused Juvenile in that [McConnell] permitted, committed and encouraged the commission of a sex or pornography offense, to-wit: N.C. G.S. § 14-202.1 - ‘indecent liberties' with or upon [Austin] in violation of criminal law, to wit: N.C. G.S. 7B-101(d).” (Order on Adjudication and Interim Disposition as to Austin).[5] On October 28, 2014, James McConnell surrendered himself at the Watauga County Courthouse. (K.M. Dep. at 62-63, J.M. Dep. at 46-47; Rominger Aff. at ¶ 38). He appeared before Judge Warren Hughes, who set a secured bond of $500, 000. McConnell was detained in the Watauga County Detention Center until December 15, 2014, when he was released on bond. (K.M. Dep. at 64, Doc. No. 1 at ¶ 38).

         On November 3, 2014, a Grand Jury indicted McConnell on three counts of Taking Indecent Liberties with a Child and three counts of Statutory Rape/Sexual Offense with a Child by an Adult. (J.M. Dep. at 50, 71; Rominger Aff. at ¶ 40).[6] McConnell's criminal trial began on June 13, 2016, in Watauga County Criminal Superior Court. Following the close of the State's case, which included testimony by Austin, the defense made a motion to dismiss, which was denied. (Trial Trans., Vol. II at 319-22). The defense made a second motion to dismiss at the close of the defense case, which was also denied. (Trial Trans., Vol. II at 425-26). After deliberating for two hours, the jury acquitted McConnell of all charges. (J.M. Dep. at 61; Trial Trans., Vol. II at 450-51). Plaintiffs then filed this action against the various Defendants.


         Summary judgment shall be granted “if the movant shows 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). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material only if it might affect the outcome of the suit under governing law. Id.

         The movant has the “initial responsibility of informing the district 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 citations omitted).

         Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present sufficient evidence from which “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir. 1995).

         When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'” Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).



         Plaintiffs bring various constitutional claims against Defendants in their individual capacities through Section 1983 based on Plaintiffs' contentions that James McDonnell's arrest and subsequent trial was not based on probable cause. In response, Defendants raise the defense of qualified immunity. For the following reasons, the Court finds that Plaintiffs' Section 1983 claims fail because Defendants did not violate Plaintiffs' constitutional rights. In any event, even if there was a constitutional violation, Defendants are entitled to qualified immunity.

         Defendants first contend that there was no violation of Plaintiffs' constitutional rights because probable cause existed to arrest James McConnell. The Court agrees. A case involving an arrest, such as this one, implicates the Fourth Amendment's prohibition against “unreasonable…seizures.” U.S. Const. Amend. IV.[7] “The Fourth Amendment prohibits law enforcement officers from making unreasonable seizures, and a seizure of an individual effected without probable cause is unreasonable.” Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996). Conversely, a seizure effected with probable cause is reasonable as a matter of law; thus, the existence of probable cause defeats a claim of “unreasonable seizure” under the Fourth Amendment. See Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). “The Constitution does not guarantee that only the guilty will be arrested.” Baker v. McCollan, 443 U.S. 137, 145 (1979).

         If probable cause exists when an officer seeks issuance of a warrant, then the officer's action in seeking the warrant and the subsequent arrest do not violate the Fourth Amendment.[8] Thus, an officer who arrests a suspect pursuant to a warrant does not violate the Fourth Amendment unless that officer did not possess probable cause to seek the warrant. Porterfield v. Lott, 156 F.3d 563, 570 (4th Cir. 1998); Brooks, 85 F.3d at 184 n.7.

         “Probable cause is determined from the totality of the circumstances known to the officer at the time of the arrest.” Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002); United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988); Illinois v. Gates, 462 U.S. 213, 230-32 (1983). Probable cause is a commonsense, nontechnical concept that “deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Ornelas v. United States, 517 U.S. 690, 695 (1996). The circumstances are weighed “not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” United States v. Dickey-Bey, 393 F.3d 449, 453 (4th Cir. 2004) (quoting Gates, 462 U.S. at 232). Under this “pragmatic, common sense approach, ” courts “defer to the expertise and experience of law enforcement officers ….” Dickey-Bey, 393 F.3d at 453.

         As the Supreme Court has recently reiterated, “probable cause is not a high bar.” District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018). “While probable cause requires more than ‘bare suspicion,' it requires less than that evidence necessary to convict.” United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998); Wong Sun v. United States, 371 U.S. 471, 479 (1963). The arresting officer's belief need not be correct or even more likely true than false. Texas v. Brown, 460 U.S. 730, 742 (1983). Indeed, the Fourth Circuit has specifically rejected the argument that “probable cause means more likely than not, [more than] 50/50, ” and made it clear that “the probable-cause standard does not require that the officer's belief be more likely true than false.” United States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004). Therefore, a reasonable officer may have probable cause to believe a suspect has committed a crime even if the officer's belief is not more likely true than false. “Probable cause determinations are … preliminary and tentative.” Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st Cir. 2004). Since probable cause does not even require a showing that guilt is more probable than not, the probable cause stage is not the stage where the ultimate question of guilt or innocence is determined. Instead, the determination ...

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