United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on the Defendants'
Motion for Summary Judgment [Doc. 39].
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.
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.
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. [Doc. 1].
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
STANDARD OF REVIEW
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
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).
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.
October 1991, the Plaintiff, his wife Sandra, and their three
children -- Staci, 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
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].
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].
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].
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). [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].
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].
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
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 at 12 o'clock, ” a condition
that he considered to be consistent with sexual
abuse. [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].
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,
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. [Id.at 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].
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].
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.
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; ...