United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendants' motion for
summary judgment. [DE 113]. The parties have also moved to
seal certain documents. [DE 124, 137]. Defendants' motion
for summary judgment has been fully briefed and the motions
are all ripe for disposition. For the reasons that follow,
defendants' motion for summary judgment [DE 113] is
February 24, 2015, plaintiffs called 911 when their
five-month-old son, NES, began having trouble breathing and
went limp. [DE 114, ¶¶ 15, 18]. A few days earlier,
on February 21, plaintiff Rachel Sahoo had taken NES to the
Apex WakeMed emergency room because she believed he had
contracted a virus. [DE 131');">131, ¶ 8]. On February 23, Ms.
Sahoo took NES to his pediatrician, Dr. Gary Dupuy, because
of similar concerns about a virus. [DE 114, ¶ 15; DE
131');">131, ¶ 10]. On February 24, NES was transported by
ambulance to WakeMed Raleigh, where he was diagnosed with
metapneumovirus and admitted to the Pediatric Intensive Care
his stay in the PICU, NES received several tests and
examinations, including a CT scan of his head. Initiatially,
the results of the CT scan were read as negative. [DE 114,
¶ 4]. On March 4, a re-read of the CT scan of NES's
head revealed chronic subdural hematomas. Id.
Medical staff ordered an MRJ that confirmed the presence of
chronic subdural hematomas. Id. Chronic subdural
hematomas are often indicative of non-accidental trauma,
including shaken baby syndrome, in non-mobile infants.
Id. ¶¶ 10, 22.
medical staff also observed what they believed to be
concerning behaviors in plaintiff Rachel Sahoo's
interactions with NES. In particular, nurses and pediatric
hospitalist Dr. Jennifer Vick observed that Ms. Sahoo ignored
NES, refused to hold him, change his diaper, or otherwise
comfort him when he cried, relied on the nurses to care for
NES, and appeared distant from him. Id. ¶¶
5, 11, 13. The medical staffs observations, coupled with the
results of the CT scan, prompted WakeMed social worker Ryah
Koprowski to make a report to Wake County Human Services
(WCHS) Child Protective Services (CPS) on the morning of
March 6, 2016. Id. ¶2.
hours later, on March 6, defendant Jamie Gleaton, a CPS
social worker, arrived at WakeMed hospital and began
interviewing plaintiffs and the medical staff. Id. ¶
7. Defendant Gleaton concluded that the interviews with
the medical staff were consistent with Ms. Koprowski's
report. Defendant Gleaton also believed that plaintiffs were
unable to provide an explanation for their son's
injuries, other than to describe an incident that had
occurred approximately two months earlier in which
plaintiffs' 3-year-old daughter, MRS, had pulled NES out
of his swing and onto the floor. Id. ¶¶
15, 18. Defendant Gleaton also noted that plaintiffs were
NES's only caretakers; plaintiffs dispute this, however,
contending that they had also told defendant Gleaton that
NES's grandmother, Edith Rotenberg, had taken care of NES
since his birth. [DE 131');">131, p. 1-2]. Plaintiffs also state that
they had previously provided the same explanation regarding
their daughter and the swing incident to Dr. Vick.
evening of March 6, NES's ophthalmology consult revealed
bilateral retinal hemorrhages. [DE 114, ¶ 21]. Retinal
hemorrhages and chronic subdural hematomas are two of the
most common signs of non-accidental trauma. Id.
¶ 22. Defendant Gleaton then consulted with her
supervisor, defendant Richard Hayner, and prepared a
"Safety Plan" for plaintiffs. More specifically,
defendant Gleaton completed by hand a North Carolina Safety
Assessment, detailing NES's condition and providing that
"Jessica Perry will keep [NGS, NES's twin brother]
are her home until next week and she will not allow contact
w/ parents. Maternal gma will keep [MRS] w/ her in Florida
for now." Id. ¶¶ 24-26. Then, also
handwritten in the "Safety Response" section
beneath the above quote, defendant Gleaton wrote
"Parents can not have contact w/ children until further
notice by CPS." Id. ¶ 26. Plaintiffs
signed the Safety Plan that evening and defendant Gleaton
verbally explained to them that they were to have no contact
with their children until further notice. Id. ¶
27. Plaintiffs, however, dispute that they voluntarily signed
the Safety Plan and that it included all of the above terms
at the time that they signed it. [DE 131');">131, p. 3].
left the hospital on the evening of March 6, but plaintiff
Rachel Sahoo returned two days later with her neighbor,
Jessica Perry, to attempt to see NES. [DE 114, ¶ 28].
Ms. Perry has stated that she received a phone call from a
WakeMed nurse authorizing the visit. Plaintiff Rachel Sahoo
went to NES's room on the pediatric floor before being
asked to leave by Ms. Koprowski, who reported the violation
of the Safety Plan to defendant Gleaton. Id.
¶¶ 30-32. Defendant Gleaton called defendant Hayner
to suggest filing a Petition for Non-Secure Custody.
Id. ¶ 32.
following day, March 9, defendant Gleaton filed a Petition
for Non-Secure Custody with the Wake Country District Court.
Id. ¶ 33. Judge Keith Gregory granted the
petition and entered an order granting WCHS custody of NES
and NGS, the twin 5-month-old boys. Id. Judge
Gregory's order, however, did not specifically authorize
WCHS custody of MRS, but noted that she had "been placed
with the maternal grandmother pursuant to a safety
assessment." [DE 131');">131, p. 3-4]. On March 12, a hearing
was held on the need for continuing non-secure custody;
plaintiffs were presented and represented by counsel at the
hearing. [DE 114, ¶¶ 3 7-3 8]. On March 20, Judge
Gregory entered a Continuing Order, providing that NES and
NGS would remain in WCHS custody. Id. ¶ 39.
Plaintiffs received supervised visitation with NES and NGS
between March 9 and May 22, 2015. Id. ¶ 55.
Visitation was facilitated by defendants Kitty Hart, a WCHS
foster care social worker, and her supervisor, defendant
Sweetly Sanders. Id.
6, 2015, Dr. Aditee Narayan performed a Child Medical
Examination (CME) on NES at Duke Medical Center. Id.
¶ 50. On May 21, Dr. Narayan finalized her CME report,
concluding that "It is possible that [NES]'s
findings are due to underlying or predisposing medical
conditions and that they are not necessarily due to abusive
head trauma." Id. ¶¶ 50-51. Dr.
Narayan went on to say that "it is most likely that the
findings could be related to benign extra-axial fluid
collection/expansion of subarachnoid spaces predisposing NES
to bleeding in the subdural space with minor trauma (that may
occur in the setting of routine and appropriate care)."
[DE 131');">131, p. 6]. The following morning, May 22, WCHS filed a
voluntary dismissal of its Petition for Non-Secure Custody
and Judge Monica Bousman entered an order dissolving the
earlier non-secure custody orders and returning custody of
the children to plaintiffs. [DE 114, ¶¶ 52-53]. NES
and NGS were in WCHS custody for a total of 74 days,
id. at ¶ 54, and plaintiffs were effectively
deprived of custody of MRS during the same period.
April 2016, plaintiffs initiated this action. [DE 1]. It has
since been consolidated and multiple amended complaints have
been filed, the most recent in May 2018. [DE 84]. Plaintiffs
bring procedural and substantive due process claims under 42
U.S.C. § 1983 against defendants Gleaton and Hayner
(Counts I and II) and against defendants Hart and Sanders
(Counts III and IV), state law claims of gross negligence
against defendants Gleaton and Hayner (Count VI) and against
defendants Hart and Sanders (Count VII), and a
Monell claim against defendant Wake County (Count
V). Id. In August 2018, following a hearing before
the undersigned, the Court denied defendants' motion to
dismiss plaintiffs' claims. [DE 103].
2019, defendants moved for summary judgment on all of
plaintiffs' claims. [DE 113]. Defendants argue that there
are no genuinely disputed issues of material fact and that
plaintiffs cannot prevail before a reasonable jury on any of
their claims on the evidence presented. Plaintiffs have
responded in opposition, arguing that many of defendants'
supposed undisputed facts are, in fact, disputed, and that
plaintiffs can prevail ...