March 27, 2008

DAVID BARRAGAN, ET AL., PLAINTIFFS,

v.

ROBIN LANDRY, INDIVIDUALLY, AND AS AN EMPLOYEE OF THE DIVISION OF CHILD PROTECTIVE SERVICES OF THE STATE OF NEVADA AND AGENCY OF THE STATE OF NEVADA EXISTING UNDER THE LAWS OF THE STATE OF NEVADA, COUNTY OF WHITE PINE; THE STATE OF NEVADA; AND DOES I-X, INCLUSIVE, DEFENDANTS.







The opinion of the court was delivered by: Larry R. Hicks United States District Judge

ORDER

Presently before the court is Plaintiffs' partial motion for summary judgment (#61*fn1 ). Defendants Robin Landry and the State of Nevada have filed an opposition (#63) to which Plaintiffs have replied (#70). Also before the court are Defendants' two cross-motions for summary judgment (#74, #80). Plaintiffs have filed oppositions to these motions (#79, #86).

Facts and Procedural History

This matter concerns claims brought by twenty-four plaintiffs, who consist of minors (collectively "Minor Plaintiffs") and their parents or representatives (collectively "Parent Plaintiffs"). Viewing the evidence in the light most favorable to Plaintiffs, the following narrative describes the facts of this case.

Defendant Robin Landry is employed by the Division of Child and Family Services ("DCFS") as a Rural Regional Manager. (Aff. of Landry (#80), Ex. 1 ¶ 5.) Minor Plaintiffs were boarding students at Abundant Life Academy ("ALA"). (First Am. Compl. (# 2) ¶ 16.) ALA is a Christian-based boarding school for "unmotivated, gifted youth," which was located in White Pine County, Nevada. Id. ¶¶ 5, 7. As of April 20, 2005, ALA was not operating under a valid child care license. See (Dep. of Paula Hawkins (#86) at Ex. C.)

On April 20, 2005, Child Protective Services ("CPS") of DCFS, received notice of problems at ALA. (Aff. of Tina Slaughter (#80), Ex. 2 ¶ 5.) The notification came from a parent whose daughter was previously boarded at ALA. Id. The parent alleged that (1) the children at ALA were sexually active with one another and staff members, (2) there was lack of supervision and medical care, (3) the children were being neglected educationally, and (4) there were approximately fifteen to seventeen boys housed in a trailer at ALA. (Aff. of Landry (#80), Ex. 1 ¶ see also Aff. of Slaughter (#80), Ex. 2 ¶ 5.) Landry learned of these allegations during a staff meeting in Fallon, Nevada. Id. ¶ 9.

At this meeting, the DCFS rural mangers discussed a need to investigate ALA. Id. Also, Larry Robb and Landry contacted other DCFS directors, to inquire about temporary housing for the ALA children in the event DCFS needed to remove them. (Dep. of Robb (#86), Ex. D at ll. 13-23.) Before DCFS conducted any investigation, it contacted Detective Sorenson in an effort to acquire assistance in removing the children from ALA. (Test. of Sorenson (#86), Ex. E.) Because DCFS had not conducted an investigation, Sorenson declined to assist at that time. Id.

On or about April 21, April 23, and May 1, 2005, DCFS employees and others visited the facility. (First Am. Compl. (# 2) ¶ 8.) Paula Hawkins, an employee of the DCFS licensing bureau, was directed to draft a "cease and desist" letter, which she delivered to ALA on April 21, 2005. (Aff. of Landry (#80), Ex. 1 ¶ 12; see also Dep. of Hawkins (#86) at Ex. C.) DCFS sent the letter because of ALA's lack of a child care license. (Notice of Cease and Desist (#80), at Ex. 4.)

After the April 21st investigation, Robb reported to Landry that the investigation team was unable to interview the children outside the presence of ALA supervisors. (Aff. of Landry (#80), Ex. 1 ¶ 13). Robb also reported that some of the boys wanted to leave ALA for the alleged reason that the staff monitored calls between students and their families to ensure the students did not report anything negative. (Aff. of Lawler (#80), Ex. 3 ¶ 7.) Additionally, the boys' (seventeen in number) sleeping arrangements were crowded and hazardous, as the "gutted out" trailer where they were housed lacked a smoke alarm.*fn2 (Aff. of Landry (#80), Ex. 1 ¶ 13.) Robb further reported that the trailer was located a distance from the main house and was without electricity, running water, or lavatories. Id. ¶ 13. As a result, Robb directed ALA to move the children to a safer location immediately--at least until smoke alarms were installed. Id. ¶ 14.

Upon this directive, that night ALA removed the boys from Hidden Canyon Ranch to Sunny Side Ranch. (Dep. of Craig Rogers (#79) at Ex. A.) Due to the move, one boy (David Svoboda), became frightened and lit a rag on fire in order to set off the fire alarm. (Dep. of Tracy Svoboda (#79), Ex. B at 31-33.) This was apparently done in an effort to obtain help. Id. As a result, the boy was arrested by police and detained in a Tonopah juvenile detention center. Id. at 34.

The investigation team returned on or about the following Saturday, April 23, 2005, to continue investigating ALA and interviewing the children. Id. ¶ 15. Upon their return, Robb discovered the boys were not at the ALA facility; thus, Defendants were unable to complete the investigation. Id. ¶ 16.

On April 28, 2005, Jerolyn Tennyson, a social work supervisor for DCFS who was not directly involved in ALA's investigation, received a telephone call from a former employee of ALA. (Aff. of Tennyson (#80), Ex. 5 ¶ 6.) The former employee expressed some ethical concerns about the ALA program. Id. ¶ 7. These concerns included the following: (1) vehicles used at the facility had been made to look as though they were properly licensed by using "false stickers"; (2) an ALA employee who drove the children did not have a driver's license and had been recently convicted of a DUI; (3) one staff member was terminated for having a sexual relationship with a student, but he was later rehired for lack of staffing; the staff member continued the relationship and was terminated a second time; (4) the staff to student ratio was inadequate, resulting in lack of supervision; (5) children were engaging in sexual activity with one another, and there were reports of girls being taken to a physician for pregnancy checks; and (6) background checks were not a part of the hiring process; and (7) one staff member had warrants out for his arrest. Id. On April 29, 2005, Tennyson participated in a strategy meeting concerning the ALA investigation. Id. ¶ 8.

On or about May 1, 2005, the investigation team, absent Robb but including Landry, went to ALA and interviewed the staff and children. (Aff. of Landry (#80), Ex. 1 ¶¶ 28, 29.) The following information was obtained during that investigation:

"The boys did not have adult supervision," and while "there were older boys who were group leaders . . . they were just kids not adults." (Aff. of Slaughter (#80), Ex. 2 ¶ 11.) There was "no awake staff 24 hours per day." (Aff. of Landry (#80), Ex. 1 ¶ 32.)

A staff member had "kicked [a minor] in the 'nuts' with his knee." (Aff. of Lawler (#80), Ex. 3 ¶ 21.)

Some of the girls reported that they would sneak out at night to see the boys. (Aff. of Norton (#80), Ex. 6 ¶ 10.)

An ALA staff member, who was also an ALA graduate, stated he "was or had been sexually active with one of the girls." (Aff. of Landry (#80), Ex. 1 ¶ 37.)

An ALA staff-interviewee appeared to be intoxicated. Id.

Male students were acting out sexually by engaging in group masturbation contests and by "making advances toward other youths including attempts to 'mount' male students for purposes of sexual acts." (Aff. of Lawler (#80), Ex. 3 ¶ 24.)

The ALA's medicine box was disorganized and unlocked. (Aff. of Landry (#80), Ex. 1 ¶ 32.)

The medical log had not been updated for several weeks; and an interviewee was unable to confirm whether the children were receiving their medications, even though the interviewee was responsible for medication distribution. Id.

One child-interviewee indicated he did not take his medication for his schizophrenia episodes. (Aff. of Lawler (#80), Ex. 3 ¶ 15.)

The children reported they did not always receive their medications, and some stated they had been taken off their prescription medications. (Aff. of Norton (#80), Ex. 6 ¶¶ 8, 9.) People with no medical training were dispensing prescription medications. (Aff. of Tuso (#80), Ex. 7) ¶ 25.)

ALA did not have a qualified mental health professional on staff. (Aff. of Norton (#80), Ex. 6 ¶ 11.)

After Landry finished interviewing the children, several of them asked her when she would be returning for them. (Aff. of Landry (#80), Ex. 1 ¶ 36.)