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Parker v. Marston

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

August 12, 2019



          Martin Reidinger United States District Judge.

         THIS MATTER is before the Court on the Defendants' Motion for Summary Judgment [Doc. 39].

         I. BACKGROUND

         On February 4, 1994, the Plaintiff Michael Alan Parker was convicted of eight counts of first-degree sexual offense and four counts of taking indecent liberties with a child arising from accusations that he, and several others, sexually abused his three minor children in 1992. The Plaintiff was sentenced to eight consecutive terms of life imprisonment plus an additional forty years in prison.

         On August 25, 2014, a North Carolina Superior Court vacated the Plaintiff's convictions and dismissed all the charges. After serving more than twenty years, the Plaintiff was released from prison.

         On August 21, 2017, the Plaintiff initiated this action against Defendants Charles T. Marston, Jr., M.D. and Willis A. Archer, M.D., pursuant to 42 U.S.C. § 1983, alleging that his convictions were obtained as a result of the fabrication of forensic child medical evaluation reports by the Defendants.[1] [Doc. 1].

         The Defendants now move for summary judgment with respect to the Plaintiff's claims. [Doc. 39]. The Plaintiff has filed a Response in opposition [Doc. 48], and the Defendants have filed a Reply [Doc. 50]. The Court held a hearing on the Defendants' motion on February 13, 2019. Having been fully briefed and argued, this motion is ripe for disposition.


         Summary judgment is proper “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 fact is “material” if it “might affect the outcome of the case.” News and Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine dispute” exists “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 party asserting that a fact cannot be genuinely disputed must support its assertion with citations to the record or by showing that the adverse party cannot produce admissible evidence to support that fact. Fed.R.Civ.P. 56(c)(1). “Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact.” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). If this showing is made, the burden then shifts to the non-moving party who must convince the court that a triable issue exists. Id. Finally, in considering a party's summary judgment motion, the Court must view the pleadings and materials presented in the light most favorable to the non-moving party, and must draw all reasonable inferences in favor of the non-movant as well. Adams v. Trustees of Univ. of N.C. -Wilmington, 640 F.3d 550, 556 (4th Cir. 2011).


         Viewing the forecast of evidence in the light most favorable to the Plaintiff as the non-moving party, the following is a recitation of the relevant facts.

         In October 1991, the Plaintiff, his wife Sandra, and their three children -- Staci[2], Michael Jr., and Misty - moved to a mobile home in the Moses Robinson mobile home park in Saluda, North Carolina. [Doc. 49-13: Misty Parker Dep. at 163-64; Doc. 49-7: Harper Dep. at 142-43; Doc. 1: Complaint at ¶ 45]. On August 22, 1992, after an argument, Sandra Parker left the home with the children. Mrs. Parker and the children moved to Hendersonville and then to Rutherford County. [Doc. 49-2: Archer Dep. Exs. 21-22; Doc. 49-10: Arrowood Dep. at 9-10].

         On September 23, 1992, Mrs. Parker made a child protective services report to Rutherford County Department of Social Services (“DSS”), alleging that the Plaintiff had physically abused the children. [Doc. 49-10: Arrowood Dep. at 10-12; Doc. 49-2: Archer Dep. Ex. 22]. Rutherford County DSS Social Worker Regina Arrowood interviewed Mrs. Parker, the children, and a counselor. [Doc. 49-10: Arrowood Dep. at 15-18; Doc. 49-2: Archer Dep. Ex. 22]. Henderson County DSS Social Worker Linda Simpson interviewed the Plaintiff, his mother, neighbors, and the school principal. [Doc. 49-11: Simpson Dep. at 16-22, 25; Doc. 49-2: Archer Dep. Ex. 21]. At that time, the allegations were of physical abuse, but not sexual abuse. [Doc. 49-10: Arrowood Dep. at 17-19; Doc. 49-11: Simpson Dep. at 23]. On November 28, 1992, Ms. Arrowood substantiated the allegations that the Plaintiff physically abused the children and so notified Mrs. Parker by letter and in person. [Doc. 49-10: Arrowood Dep. at 20-21; Archer Dep. Ex. 22]. At that time, Mrs. Parker had a child custody case pending against the Plaintiff. In response, the Plaintiff had hired an attorney to seek joint custody of the children and visitation. [Doc. 49-12: Michael Parker Dep. at 48-49; Doc. 49-3: Harper Dep. Ex. 60-62].

         On December 1, 1992, Mrs. Parker made a second child protective services report at the DSS office. Specifically, Mrs. Parker reported that Staci had disclosed that her father “would lift the front part of the vagina with a fork while inserting a spoon into the vaginal opening” sometimes with her father's friend present, and that Michael Jr. had told staff at Ten Broeck Hospital “that his father had laid on top of him.” [Doc. 49-2: Archer Dep. Ex. 29-30; Doc. 49-10: Arrowood Dep. at 21-22]. Ms. Arrowood interviewed Staci that day. Staci told Ms. Arrowood that a remark at breakfast caused her to remember that “her father would touch her ‘bottom' with a spoon and fork” and, on one occasion, the friend “‘put the spoon in until it hurt.'” [Doc. 49-10: Arrowood Dep. at 25-26; Doc. 49-2: Archer Dep. Ex. 31]. Although it was not in Arrowood's investigative notes [see Doc. 49-2: Archer Dep. Ex. 31], Misty apparently told DSS that her father sexually abused her by sticking a brush into her vagina and rectum [see Doc. 49-1 Marston Dep. Ex. 2].

         On January 16, 1993, Ms. Arrowood interviewed Michael Jr. He described an incident when he was tied to a sofa and his father “was sticking forks and spoons in my bottom” and “put his thing up me” with four other persons present. He also described an incident when his mouth was taped, he was tied to a bed, a man “put his mouth on Michael Jr.'s penis” and his father “put pepper on Michael Jr.'s penis” with other persons in white suits present. [Doc. 49-10: Arrowood Dep. at 29-30; Doc. 49-2: Archer Dep. Ex. 31]. Ms. Arrowood recalled that, as a relatively inexperienced social worker at the time, the children's reports seemed to her to be unusual, very shocking, and possibly exaggerated. [Doc. 49-10: Arrowood Dep. at 7-8, 37-38]. She noted that the children had not reported the sexual acts in the earlier interviews. [Id. at 29].

         On January 13, 1993 (before Michael Jr. was interviewed), DSS authorized Dr. Marston and Dr. Archer, who were physicians and partners at Rutherford Pediatrics, P.A. in Rutherford County, to complete forensic medical evaluations of the Parker children under the North Carolina Child Medical Evaluation Program (CMEP).[3] [Doc. 49-2: Marston Dep. Exs. 2, 9; Doc. 1: Complaint at ¶¶ 31-32, 35-36; Doc. 19: Answer at ¶¶ 31, 35-36]. They knew that their medical evaluations of the Parker children would be provided to and used by both DSS and law enforcement. [Doc. 40-1: Archer Dep. at 24-27, 153; Doc. 40-2: Marston Dep. at 15-16, 48]. The Defendants were also aware that they were required to make objective and scientifically valid conclusions during their CMEP exams. [Doc. 40-1: Archer Dep. at 26; Doc. 40-2: Marston Dep. at 48]. In their evaluations of the Parker children, Dr. Archer and Dr. Marston relied on the medical literature, knowledge, and standards at that time related to evidence of child sexual abuse. [Doc. 40-1: Archer Dep. at 33-34, 40-42; Doc. 40-2: Marston Dep. at 22-23, 25-26].

         On January 14, 1993, Dr. Marston conducted CMEP examinations of Misty (age 8) and Staci (age 11) at Rutherford Pediatrics for alleged sexual abuse. The CMEP forms indicated that the social worker had reported that Misty and Staci had both reported that their father had sexually abused them and that “[t]he mother and children are currently hiding from the father due to his abusive nature.” [Doc. 49-1: Marston Dep. Exs. 2, 9]. Additionally, the social worker reported that Misty had described the abuse as “penetration of a brush into the vagina and rectum.” [Doc. 49-1: Marston Dep. Ex. 2]. The social worker further reported that Staci had described the abuse as “holding her vaginal opening with a fork while inserting a spoon into the vagina.” [Doc. 49-1: Marston Dep. Ex. 9].

         Dr. Marston did not personally take a history from either Misty or Staci of the alleged abuse and did not assess their reliability, instead relying on the history taken by the social worker. Dr. Marston testified that this was standard protocol at the time so as to avoid the risk of influencing the child's testimony. [Doc. 40-2: Marston Dep. at 43-45].

         The CMEP forms contained spaces in which the examiner could make notes of any findings and observations. To indicate the type of maltreatment, the CMEP forms had boxes to be checked ranging from “emotional, ” “physical, ” and “sexual” to “none.” To indicate the degree of the examiner's certainty, the CMEP forms had boxes to be checked ranging from “no maltreatment, ” “possible, ” and “probable” to “definite.” Dr. Marston examined both in a frog-leg supine position, using a supine separation labial traction, with a magnifying otoscope. In Staci's examination, Dr. Marston noted the existence of a “thickened rounded hymen remnant, ” a condition that he considered significant because it was consistent with multiple events of penetration. [Doc. 40-2: Marston Dep. at 89-90; Doc. 49-1, Marston Dep. Ex. 9]. In Misty's examination, Dr. Marston noted the existence of a “rounded, thickened hypervascular hymen with [a] notch[4] at 12 o'clock, ” a condition that he considered to be consistent with sexual abuse.[5] [Doc. 40-2: Marston Dep. at 46-49, 53; Doc. 49-1: Marston Dep. Ex. 2]. Dr. Marston did not measure the depth of the notch, as measuring “[j]ust wasn't the custom, at the time.” [Id. at 81].

         Dr. Marston did not perform a colposcopy during his examinations, as he did not have a colposcope at his office at the time. [Id. at 48, 90]. Dr. Marston did not examine either Misty or Staci in any positions other than the frog-leg supine position for a couple of reasons. First, Dr. Marston noted that the lateral recumbent position is primarily used for anal inspections. As for the knee-to-chest position, Dr. Marston stated that this position is primarily used for detecting the presence of rectal or vaginal foreign bodies. [Id. at 49]. He further noted that there is “clear indication in the medical literature” not to use such positions in certain cases, as it can be uncomfortable and embarrassing, and should not be used on a child who has been abused, if the abusive event may have involved the same position. [Id. at 49-50, 90-91]. In Dr. Marston's opinion, “if the exam is absolutely clear with the frog-leg position and with the supine separation labial traction . . . [and] if the lesions are clear in that position, then the knee-chest position is not always needed.” [Id. at 50]. Dr. Marston testified that, given that “the finding [of a thickened hymen] was pretty clear, ” examining the girls in different positions “was probably not worth the additional trauma to [them].” [Id. at 61, 90-91].

         Dr. Marston did not photograph his findings, explaining that photographs “were generally done by DSS when they were needed” and that the medical literature warned that photography could be traumatizing, especially if photography may have been part of the abusive event. [ 51]. In Dr. Marston's opinion, “in a private office, . . . the frog-leg supine and diagrams are adequate . . . in and of themselves.” [Id. at 51-52]. Dr. Marston testified that he did not include a diagram in the CMEP reports because he felt that he “wouldn't know how to draw [the thickened hymen] that would be any clearer than [his] written description of it.” [Id. at 57; see also id. at 89-91].

         At the end of the examinations, Dr. Marston wrote on the CMEP report that Misty's “exam is consistent with previous vaginal penetration, ” and he checked the boxes on the form to indicate that the maltreatment was “sexual” and the certainty of the maltreatment was “probable.” [Doc. 40-2: Marston Dep. at 52-55; Doc. 49-1: Marston Dep. Ex. 2]. With respect to Staci, Dr. Marston wrote on the CMEP report that Stacey's “exam [is] consistent with previous vaginal penetration, possibly multiple events” and he checked the boxes indicating “sexual” maltreatment that was “probable.” [Doc. 40-2: Marston Dep. at 92, 96; Doc. 49-1: Marston Dep. Ex. 9].

         In determining that sexual abuse was “probable, ” Dr. Marston relied upon “the basic prevalence of sex abuse in the United States, plus the information I had heard from the social worker and the physical exam” to conclude that sexual abuse “was more likely than not, but not definite.” [Id. at 38]. Dr. Marston explained that at the time these examinations were performed, the term “consistent with” was used to describe conditions “that were not conclusive proof, but had been seen in girls who had been abused…. It would be fair enough to say that it's consistent with penetration, but it does not prove penetration. It could have happened as she described.” [Id. at 53]. Dr. Marston explained that if he were doing these examinations now, he would use the term “indeterminate” instead of “consistent with” to convey that the examination did not rule out penetration but did not explain it either. [Id.]

         On January 19, 1993, Dr. Archer conducted a CMEP examination of Michael Jr. (age 10) at Rutherford Pediatrics for alleged sexual abuse. Dr. Archer took a history from Michael Jr. and noted on the CMEP form that Michael Jr. reported that his father had sexually abused him, and that Michael Jr. had described this abuse as penetration. [Doc. 40-1: Archer Dep. at 123-24; Doc. 40-1: Archer Dep. Ex. 26]. Specifically, he noted that Michael Jr. stated that his “father penetrated rectum with his penis on multiple occasions from approximately age five years until about six months ago. He denies his father manipulated or hurt the patient's penis or used the patient's mouth in a sexual manner.” [Doc. 40-1: Archer Dep. at 125-26; ...

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