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C.F.B. v. Board of Commissioners of Johnson County

United States District Court, D. Kansas

May 16, 2017

C.F.B., a minor, by and through her next friend TERRI E. BAKER, Plaintiff,


          CARLOS MURGUIA United States District Judge

         Plaintiff C.F.B., a minor, by and through her grandmother and next friend, Terri E. Baker, brings this action against the Board of Commissioners of Johnson County, Kansas (“BOCC”), Sheriff Frank Denning, Lieutenant Thomas Reddin, Sergeant Christopher Mills, and Deputy Travis Turner. Plaintiff claims that defendants deprived her of her civil rights under 42 U.S.C. § 1983 when representatives from the Johnson County Sheriff's department illegally seized her from her grandfather's driveway. The matter is now before the court on defendants' Motion for Summary Judgment (Doc. 10) and plaintiff's Motion to Permit Discovery Under Rule 56(d) (Doc. 23). Plaintiff responded to defendants' summary judgment motion and subsequently filed her motion for discovery asking the court to stay or deny the summary judgment motion so that she could more fully develop the record in order to respond to defendants' arguments. Defendants responded, arguing that no additional evidence beyond what was already provided is necessary to fully resolve the question of qualified immunity. The court agrees that no additional evidence is required to resolve the qualified immunity issue and, for the reasons set forth below, denies defendants' motion for summary judgment in part and grants it in part.

         I. Factual Background

         On September 2, 2015, Deputy Travis Turner of the Johnson County Sheriff's Department, was dispatched to meet with Ryan McCormick and his mother in a Johnson County parking lot. Upon arrival, Ryan informed Deputy Turner that he had filed for and been granted a Temporary Order of Protection from Abuse (PFA) against his estranged wife, Maggie McCormick. Ryan filed the petition in Wyandotte County and, after a hearing, a Wyandotte County judge granted the PFA, which prohibited Maggie from interacting with Ryan. According to the petition, Ryan sought the PFA for protection only for himself, claiming that while at a bar, Maggie allegedly sent someone outside to attack him and then actively prevented him from calling the police for help. She also continued to call and harass him after the incident and attempted to break into his house.

         Ryan also indicated in the petition that he and Maggie had a child in common, but did not seek protection for the child. He requested that Maggie be prohibited from entering his residence in Kansas City, Kansas, but sought joint legal custody of the child with parenting time. Ryan submitted a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavit along with his petition, in which he indicated that his child with Maggie, S.F.M., was born in November 2014 and was currently residing with Maggie at a residence in Stilwell, Kansas. While the affidavit did list the birth month and year for the child, it did not state the child's gender or age.

         The PFA was granted on September 1, 2015. The order protected only Ryan and did not include any protection for S.F.M. The order, however, noted that “[t]emporary legal custody and residency of the following named minor child(ren): S.F.M. II, shall be: sole legal custody granted to Plaintiff . . . until this order expires.” (Doc. 16-1, at 14.) Within the text of the order, the judge had the option to grant temporary parenting time to defendant or to withhold parenting time from the defendant. The judge did not choose either of these options. The order indicated it was effective when signed by the judge and that “[l]aw enforcement officials shall immediately enforce this order.” (Doc. 16-1, at 15.)

         Ryan provided the petition and order to Deputy Turner upon arrival at the scene. He informed Deputy Turner that the PFA had not yet been served on Maggie and that the Wyandotte County judge instructed him to directly contact the Johnson County Sheriff's office for processing and service, as it would be faster than if the court were to contact deputies for service. Deputy Turner immediately expressed concern over whether the Johnson County Sheriff's Department had authority to serve an order from Wyandotte County. Ryan also explained he was unclear about the custody order as he had only requested joint custody. Deputy Turner told Ryan and his mother that he needed to confirm his authority to serve the order and take custody of the child. Deputy Turner began making phone calls seeking guidance regarding the order and the custody issue.

         Because the entire encounter was recorded on Deputy Turner's body camera, the court notes the conversation between Deputy Turner, Ryan, and Ryan's mother immediately following his phone call:

Deputy Turner: “Well, the only thing I'm trying to figure out for 100% sure is usually we don't . . . force somebody if they, like, if they don't want to give the kid back, we don't forcibly take ‘em. But, we're just trying to make 100% sure because these things get messy.”
Ryan's mother: “So if she won't give the child up, um, what do we do, go back to the judge because, and say she wouldn't do it, and then what do they arrest her or what?
Deputy Turner: “They may-”
Ryan's Mother: “Because basically she's denying a court order saying that he has - yeah - she'd be in contempt of court for not following what that says.”

(Ex. B at 4:00-4:45) At this point, Deputy Turner received another phone call and then informed Ryan and his mother that someone would be calling the civil unit in the Sheriff's Department for guidance. (Id. at 5:54). Deputy Turner then discussed the child custody order in the PFA:

Just because [child custody exchanges] can become really involved . . . yeah . . . you know because if something happened to the kid, she's gonna say well they forcefully took my kids away . . . then it puts us in a world of crap.

(Id. at 6:10). Ryan's mother then told Deputy Turner that if Maggie “absolutely refuses” to hand over the child, that she and Ryan will just call the judge. Ryan agreed with his mother and noted that he had requested joint custody because “she has never done anything to the child.” (Id. at 6:30-6:44). Ryan also noted that he didn't know, based on the order, if he had to take the child at this point. (Id. at 6:46).

         Ryan's mother then stated:

Yeah, and we're not the type that, you know, if we don't want . . . we're not wrenching the child out of her hand. We're not going to cause him any kind of . . . if she's refusing to do it, then we'll just take notes, maybe, obviously . . . you know, get your, you'll have your thing, and then we'll be telling the judge “well this is the officer here and they refused to give the child, ” so I guess she'd just have to be in trouble legally with that then, if she refuses.

(Id. at 7:00). Deputy Turner then took another call, allegedly from the department's civil sergeant, and then informed Ryan and his mother of his plan regarding the situation:

But basically, you know, with all this I'm going to tell her, you know, basically if she don't give the kid she's going to go to jail, so that's basically. And, that's what I figured, but I just wanted to make 100% sure before I go in there and start making myself look like a fool.

(Id. at 20:50). At that point, Ryan and his mother followed Deputy Turner to the home of Linus and Terri Baker, who are the parents of Maggie and grandparents of plaintiff. The Bakers' residence was listed on the PFA petition as the address at which Maggie could be served. Deputy Turner arrived on scene and proceeded up the driveway, where he made contact with Linus Baker (“Baker”). Plaintiff, who was approximately two years old at the time, appeared in the driveway with Baker. Deputy Turner told Baker, “we're here to talk to Maggie, ” to which Baker responded “you're going to have to leave.” (Ex. C at 1:02-1:06). Lt. Thomas Redding and Sgt. Christopher Mills of the Johnson County Sheriff's Department also arrived at the residence to assist Deputy Turner. After Baker asked the officers to leave, Sgt. Mills responded, “we're not doing that, I've got a court order, we're here to take [S.F.M.] . . . I've got a court order, she's going with us.” (Id. at 0:55).

         Baker continued to demand that the officers leave, and Sgt. Mills insisted that he had “a protection from abuse order granting sole custody to the plaintiff.” (Id. at 1:08.) Baker began to retreat up the driveway and Sgt. Mills followed him and approached plaintiff, who was standing nearby. Sgt. Mills asked plaintiff, “are you [S.F.M.]? Come here sweetheart.” (Id. at 1:16.) As Sgt. Mills reached down to pick up plaintiff, Baker began yelling “that is not [S.F.M.]!” (Id. at 1:19.) Plaintiff began to cry and scream for her mother as soon as Sgt. Mills picked her up. Baker continued to yell at Sgt. Mills to “give me that baby, give me [C.F.B.].” (Id. at 1:24.) Sgt. Mills proceeded to carry plaintiff down the driveway noting he was going to “check with the parents” presumably about the identity of the child. (Id. at 1:33.) Sgt. Mills carried plaintiff off the driveway and took her to the van where Ryan was parked with his mother. Sgt. Mills asked Ryan if plaintiff was S.F.M. to which Ryan responded “no, [S.F.M.] is a boy.” (Id. at 1:44.)

         Sgt. Mills then carried plaintiff back up the driveway. Baker grabbed plaintiff out of his arms and carried her up the driveway, continuing to demand that the officers get off his property. As Baker took plaintiff into the house, one officer is heard asking “did the order say for us to get the kid?” (Id. at 2:23.) As Deputy Turner began looking through the PFA order, Sgt Mills suggested they should “call Deer, ” and noted “I wish they would have handled it.” (Ex. C, at 2:39.) Sgt. Mills proceeded to get “Deer” on the phone and asked “hey, how much authority do we have? He's telling us to get off the property, and we can't take the child. All this stuff. He's an attorney. How enforceable is this order?” (Ex. D, at 3:18.)

         The officers eventually left the driveway in order to update Ryan and his mother who were still in their van parked on the street. After a few minutes, Ryan and his mother drove away and the incident was over. Officers were unable to confirm whether Maggie or S.F.M. were at the residence, and were unable to serve her with the PFA at that time.

         II. ...

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