Parker v. Marston

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:17-cv-00229-MR-WCM

MICHAEL ALAN PARKER, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

CHARLES T. MARSTON, JR., M.D. )

and WILLIS A. ARCHER, M.D., )

)

Defendants. )

_______________________________ )

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.

II. STANDARD OF REVIEW

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

1 The Plaintiff also asserted fabrication of evidence claims against Detective Walter Clyde

Harper of the Henderson County Sheriff’s Office. The Plaintiff, however, dismissed his

claims against Detective Harper on September 26, 2018. [Doc. 38].

2

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).

3

III. FACTUAL BACKGROUND

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

-- Staci2, 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.

2 Staci’s name is spelled in various ways throughout the record. The Court will utilize the

version that appears in the CMEP report at issue.

4

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

5

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

6

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

3 The CMEP is a State program that was established in 1976 as a cooperative effort of

the UNC School of Medicine’s Department of Pediatrics the North Carolina State Division

of Social Services, the North Carolina General Assembly, local Departments of Social

Services, and local medical and mental health providers. [Doc. 1: Complaint at ¶ 33].

7

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

8

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]

notch4 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

4 Dr. Marston testified that a notch in the hymen “indicates a healed tear.” [Doc. 40-2:

Marston Dep. at 108].

5 At his deposition, Dr. Marston noted that the finding in his office note that the notch was

at 12 o’clock was in error, and that the notch was in fact at 6 o’clock. [Doc. 40-2: Marston

Dep. at 47]. He further recalled that he explained this error during his testimony at the

Plaintiff’s criminal trial. [Id. at 105]. There is no indication that this error fundamentally

changed any of Dr. Marston’s opinions.

9

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. [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

10

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.”

11

[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;

Doc. 40-1: Archer Dep. Ex. 26]. Dr. Archer was aware that Michael Jr. had

a history of chronic constipation and encopresis (the soiling of the bottom

with stool). [Doc. 40-1: Archer Dep. at 43, 51].

During the rectal examination, Dr. Archer had Michael Jr. lie on his

side, with his knees pulled up. When Dr. Archer pulled Michael Jr.’s gluteal

muscles and skin apart a little bit, “his rectum just fell open.” [Id. at 44].

12

When asked whether Michael Jr.’s anal laxity could have been due to

constipation, Dr. Archer testified: “I’ve seen hundreds of kids with chronic

constipation, a very common problem that we would have to deal with. And

I’ve never seen a kid who had rectal dilation where they could not close the

rectum when the stool was not present.” [Doc. 40-1: Archer Dep. at 72].

Having ruled out constipation as the cause of the anal laxity, Dr. Archer

chose not to wait until after the stool had passed to perform the examination

on Michael, Jr. [Doc. 40-1: Archer Dep. at 70-72, 76-78].

Dr. Archer documented that Michael Jr. had a “very laxed rectal

sphincter so that when buttock is spread the rectal opening relaxes to a

diameter of 2 centimeters and allows visualization of stool 6 centimeters

inside the bowel.” [Doc. 40-1: Archer Dep. Ex. 26]. He checked “abnormal”

for anal laxity on the CMEP form and did not observe any other abnormal

physical findings. [Doc. 40-1: Archer Dep. at 137; Doc. 40-1: Archer Dep.

Ex. 26]. Dr. Archer wrote on the CMEP report, “With the enlarged rectal

opening, the history of penetration of this child’s rectum with an adult penis

when the child was five or six years old seems very probable. Penetration

was probably on multiple occasions.” [Doc. 40-1: Archer Dep. Ex. 26]. He

checked the boxes indicating “definite” sexual maltreatment. [Id.].

13

Defendants’ CMEP reports were sent to Rutherford County DSS and

Detective Walter Harper at the Henderson County Sheriff’s Office. [Doc. 49-

10: Arrowood Dep. at 41-42; Doc. 49-2: Archer Dep. Exs. 31, 34-36]. On

January 28 and February 17, 1993, Detective Harper interviewed the Parker

children. During the interviews, the children made allegations of ritualistic

sexual abuse by the Plaintiff, his mother, neighbors, and others in the

community. [Doc. 49-7: Harper Dep. at 53, 103-27, 133-76; Doc. 49-2:

Archer Dep. Exs. 33-38]. Without the Defendants’ opinions of sexual abuse,

Detective Harper may not have recommended criminal charges and he

would have been hesitant to seek indictments without further investigation.

[Doc. 49-7: Harper Dep. at 102, 142]. To Detective Harper, the CMEP

reports corroborated the children’s allegations and demonstrated the need

for further investigation. [Id. at 96, 141-42].

On February 8, 1993, the Plaintiff was indicted in Henderson County

on twelve charges alleging statutory sexual offenses and indecent liberties

involving his three children. [Doc. 49-3: Harper Dep. Exs. 67-68]. His 63-

year-old mother Mildred Parker and eight others were also indicted. [Doc.

49-7: Harper Dep. at 105-06, 197-98; Doc. 49-3: Harper Dep. Exs. 69-70].

On January 18, 1994, the Plaintiff’s criminal trial began. The State was

represented by ADA Michael Edwards and the Plaintiff was represented by

14

J. Michael Edney. [Doc. 49-15: Edney Aff. at ¶ 3]. Both Defendants testified

at trial, and their CMEP reports were admitted into evidence and published

to the jury. Neither Dr. Archer nor Dr. Marston testified at trial that the Plaintiff

himself had committed sexual abuse of the Parker children, only that there

was evidence consistent with abuse. On February 4, 1994, the Plaintiff was

convicted of all charges and he was sentenced to eight consecutive life

sentences plus forty years in prison.6 [Doc. 49-3: Harper Dep. Ex. 75].

On November 27, 2013, the Plaintiff filed a Motion for Appropriate

Relief in the Henderson County General Court of Justice, Superior Court

Division, relying upon the affidavits of Cynthia Brown, M.D. and Jerry

Bernstein, M.D. On August 25, 2014, Superior Court Judge Marvin Pope,

Jr. entered an Order, finding that Dr. Brown’s and Dr. Bernstein’s opinions

constituted newly discovered evidence which, when considered along with

the “significant advances and changes not only in child medical evaluations

but also in the forensic interviewing of children who may be victims of sexual

abuse,” warranted the vacatur of the Plaintiff’s convictions and the dismissal

of all charges against him. [Doc. 49-2: Archer Dep. Ex. 50]. Thereafter, the

6 After the Plaintiff’s trial, Mildred Parker entered into a plea agreement with the State and

received probation. [Doc. 49-7: Harper Dep. at 204; Doc. 49-8: Edwards Dep. at 96-97;

Doc. 49-3: Harper Dep. Ex. 76]. The other cases were dismissed due to lack of evidence.

[Doc. 49-7: Harper Dep. at 204-05; Doc. 49-3: Harper Dep. Ex. 77].

15

Plaintiff was released from prison, having served more than twenty years for

these convictions.

In his deposition of March 5, 2018, Dr. Archer testified that he was

confident of his opinions in 1993 and 1994 and remains confident in his

opinions today. [Doc. 40-1: Archer Dep. at 82]. In his deposition of February

20, 2018, Dr. Marston similarly testified that, other than some of the

terminology not being used beyond the 1990s, he believes that his opinions

are still valid. [Doc. 40-2: Marston Dep. at 21-22]. Moreover, the Defendants

have presented the testimony of three additional experts, who opine that the

Defendants’ examinations met the standard of care as it existed in 1993 and

that their conclusions were reasonable based upon the medical knowledge

at the time. [See generally Doc. 40-5: Adams Aff.; Doc. 40-6: Sinal Dep.;

Doc. 40-7: Goodwin Dep.].

In her original affidavit submitted to the MAR Court, Dr. Brown opined

that although “[o]bservation of a rounded, thickened hymen was cause for

concern to a pediatrician in 1993-1994, . . . even under the criteria at that

time, such a finding alone would not have supported a conclusion of

‘probable’ abuse.” [Doc. 49-1: Brown 2012 Aff. at ¶ 27]. She also testified

that Dr. Marston’s examination of the Parker girls failed to comply with

“current standards of practice.” [Id. at ¶¶ 23, 24, 40, 42, 43].

16

Dr. Brown later clarified, however, that her prior affidavit was intended

merely “to correct the interpretation of the genital findings based on

subsequent research published in the medical literature over the last 25

years.” [Doc. 40-8: 2018 Brown Aff. at ¶ 3]. Dr. Brown attests that in her

opinion, “Dr. Marston’s examination of the children and his interpretation of

the genital findings were within the standard of care based on the prevailing

medical knowledge in 1993.” [Id.]. Dr. Brown further attests that she has

“never stated nor [does she] hold the opinion that Dr. Marston fabricated

evidence in his evaluation of the Parker children in 1993 or in his subsequent

testimony.” [Id.].7

Dr. Bernstein opines that Dr. Marston did not comply with the prevailing

standards of practice with respect to his examinations of Misty and Staci in

1993, and that Dr. Marston’s conclusions in his reports “were not supported

by his reported findings or by the existing medical knowledge.” [Doc. 49-4:

Bernstein Report at 1]. Specifically, Dr. Bernstein opines as follows:

The standards of practice required that Dr. Marston

verify his finding by examining Stac[i] in the “knee

chest” position. Oftentimes, what appears to be a

thickened hymen when the child is in the supine

position disappears when the child is placed in the

knee-chest position. Because he did not follow this

7 Dr. Brown has never opined on Dr. Archer’s testimony, findings or opinions.

17

standard procedure, Dr. Marston’s findings are

unreliable and could not reasonably form the basis

for a finding of probable abuse.

Further, at that time, a verified finding of a thickened

hymen remnant would only support a conclusion

that sexual abuse was possible in light of the

reported history. There was no scientific or statistical

basis for Dr. Marston’s conclusion that sexual abuse

was probable or that the findings were “consistent

with previous vaginal penetration, possibly multiple

events” or “consistent with a history of vaginal

penetration.”

[Id. at 3] (emphasis added).

With respect to Dr. Archer’s findings and conclusions, Dr. Bernstein

opines that “Dr. Archer did not comply with the prevailing standards of

practice with respect to his examination of Michael Parker Jr.,” and that the

conclusions reached in his report “were not supported by existing medical

knowledge.” [Id.]. Specifically, Dr. Bernstein opines as follows:

Dr. Archer should have conducted further inquiry due

to his finding of anal dilatation with stool present in

the rectal vault at the time of Michael Jr.’s

examination. In light of the finding, the standards of

practice required Dr. Archer to take a detailed history

about Michael Jr.’s encopresis and chronic

constipation, and to re-examine him, preferably in the

knee-chest position, when there was no stool present

in the rectal vault. However, Dr. Archer did not take

a detailed history, did not re-examine Michael Jr.

when stool was not present, and did not use the

knee-chest position. There was no contact between

Michael, Jr. and his father for five months before Dr.

18

Archer’s examination. Anal dilatation resulting from

alleged sexual abuse would not have persisted for

five months. Michael, Jr. had a well-documented

history of chronic constipation and encopresis. The

condition observed by Dr. Archer on January 19,

1993, was diagnostic of chronic constipation and not

of sexual abuse.

…

At the time of his examination, a verified finding of

anal dilatation with stool present in the rectal vault

would only support a conclusion that sexual

abuse was possible in light of the reported history.

There was no scientific or statistical basis for Dr.

Archer’s conclusion that sexual abuse was definite,

that the findings and history were “very probable,”

that the physical findings were “very consistent with

the possibility” of anal penetration, or that “the history

given by Michael is very likely true.”

[Id. at 4] (emphasis added).

IV. DISCUSSION

The Plaintiff’s fabrication of evidence claims against Dr. Archer are

based on his statements in the CMEP report that Michael experienced “very

probable” and “definite” sexual maltreatment, “probably on multiple

occasions.” [Doc. 40-1: Archer Dep. Ex. 26]. The Plaintiff’s fabrication of

evidence claims against Dr. Marston are based on his statements in the

CMEP reports that Misty and Staci had experienced “probable” sexual

19

maltreatment, and “possibly multiple events” of vaginal penetration for Staci.8

[Doc. 49-1: Marston Dep. Exs. 2, 9].

The Defendants contends that they are entitled to summary judgment

as to all the Plaintiff’s claims, because (1) the Plaintiff’s claims are barred by

the applicable statute of limitations; (2) the Plaintiff cannot demonstrate that

(i) these Defendants fabricated any evidence, (ii) the Plaintiff’s loss of liberty

resulted from the fabrication, and (iii) despite any intervening acts of

independent decisionmakers, the Plaintiff’s conviction was a reasonably

foreseeable result of the Defendants’ initial acts of fabrication; (3) the

Defendants are entitled to qualified and absolute immunity; and (4) the

Defendants are immune from liability pursuant to N.C. Gen. Stat. § 7B-309.

Because the statute of limitations and issues of immunity asserted by the

Defendants are potentially dispositive of the Plaintiff’s claims, the Court

addresses these issues first.

A. Statute of Limitations

The Defendants first allege that the Plaintiff’s claims are barred by the

statute of limitations.

8 The Plaintiff has abandoned the fabrication of evidence claims asserted in the Complaint

based on Dr. Marston’s “consistent with” statements or the Defendants’ opinions stated

in the so-called “to whom it may concern” letters. [See Doc. 48 at 14]. Thus, the Court

focuses its analysis on the opinions stated by the Defendants in the CMEP reports.

20

Because there is no federal statute of limitations for 42 U.S.C. § 1983

actions, the applicable limitations period is that which is provided for state

tort actions for the recovery of personal injury damages. See Wilson v.

Garcia, 471 U.S. 261, 276 (1985). In North Carolina, the applicable statute

is N.C. Gen. Stat. § 1-52(5), which provides a three-year limitations period

for personal injury claims. Taylor v. Deaver, No. 5:11-CV-341-H, 2012 WL

12905868, at *6 (E.D.N.C. Sept. 28, 2012)

The date that a § 1983 claim accrues, however, “is a question of federal

law that is not resolved by reference to state law.” Wallace v. Kato, 549 U.S.

384, 388 (2007). Under federal law, a cause of action generally accrues

when the “plaintiff knows or has reason to know of the injury which is the

basis of the action.” Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975). Where,

however, the action is one for “damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid,” the action is not

cognizable until the conviction or sentence “has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal

court's issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S.

477, 486-87 (1994). “A claim for damages bearing that relationship to a

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conviction or sentence that has not been so invalidated is not cognizable

under § 1983.” Id. at 487. The Supreme Court most recently held that a

fabrication of evidence claim by its nature challenges that validity of the

underlying criminal proceeding, and thus, such a claim does not accrue until

the underlying criminal proceedings have been terminated in the plaintiff’s

favor. McDonough v. Smith, 139 S. Ct. 2149, 2156-57 (2019).

Here, the criminal proceedings against the Plaintiff were not terminated

in his favor until August 25, 2014, when his convictions were vacated. Thus,

the Plaintiff’s § 1983 claims based on the Defendants' alleged fabrication of

evidence in the CMEP reports did not accrue until August 25, 2014. The

Plaintiff filed the present action on August 21, 2017, well within the three-

year limitations period. Accordingly, the Court concludes that the Plaintiff’s

claims under § 1983 are not barred by the statute of limitations.

B. Absolute Immunity

The Defendants next contend that, as trial witnesses sued under §

1983, they have absolute immunity from suit to the extent that the Plaintiff’s

claims are based upon their testimony at the Plaintiff’s criminal trial. [Doc.

40 at 23 n.27]. Additionally, the Defendants argue that they are entitled to

absolute immunity from liability pursuant to N.C. Gen. Stat. § 7B-309, which

provides immunity for any person who cooperates with a protective services

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assessment or testifies in any judicial proceeding resulting from such an

assessment, provided that the person was acting in good faith. See N.C.

Gen. Stat. § 7B-309.

The Defendants’ arguments regarding absolute immunity are without

merit. First, the Plaintiff has not asserted any claims against the Defendants

based on their testimony at the underlying criminal trial. Moreover, the

absolute immunity afforded trial witnesses does not extend to pretrial, non-

testimonial acts of alleged fabrication. See Gregory v. City of Louisville, 444

F.3d 725, 739 (6th Cir. 2006) (“nontestimonial, pretrial acts do not benefit

from absolute immunity, despite any connection these acts might have to

later testimony”). Furthermore, a state statute that immunizes a person from

liability is pre-empted under § 1983 and therefore unenforceable in a federal

civil action. See Martinez v. California, 444 U.S. 277, 284 n.8 (1980)

(“Conduct by persons acting under color of state law which is wrongful under

42 U.S.C. § 1983 . . . cannot be immunized by state law.”) (citation omitted).

Accordingly, N.C. Gen. Stat. § 7B-309 does not afford the Defendants

absolute immunity in this case.

C. Qualified Immunity

Next, the Defendants contend that they are entitled to qualified

immunity.

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Qualified immunity “is an entitlement not to stand trial or face the other

burdens of litigation….” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The

application of qualified immunity requires a two-part inquiry. First, the Court

must determine “whether a constitutional right would have been violated on

the facts alleged.” Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled in

part by Pearson v. Callahan, 555 U.S. 223 (2009). Second, the Court must

determine “whether the right at issue was ‘clearly established’ at the time of

defendant's alleged misconduct.” Pearson, 555 U.S. at 232 (citation

omitted). “In performing this analysis, however, a court is not required to

consider the above two steps in any particular order. A court may exercise

its discretion to determine which of the two steps of the qualified immunity

analysis ‘should be addressed first in light of the circumstances in the

particular case at hand.’” Williams v. Ozmint, 716 F.3d 801, 805-06 (4th Cir.

2013) (quoting in part Pearson, 555 U.S. at 236). “If no constitutional right

would have been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity.” Saucier, 533

U.S. at 201.

Here, the Plaintiff contends that his conviction was obtained as a result

of the fabrication of the CMEP reports by the Defendants. The Fourteenth

Amendment to the United States Constitution guarantees criminal

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defendants the due process right “not to be deprived of liberty as a result of

the fabrication of evidence by a government officer acting in an investigatory

capacity.” Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005). Courts

have recognized that “forensic examiners act in an investigatory fashion

when they interpret and document physical evidence.” Gregory v. City of

Louisville, 444 F.3d 725, 740 (6th Cir. 2006). Thus, forensic examiners, such

as the Defendants in this case, are subject to the same standards of liability

as a police officer and may be held liable for the fabrication of evidence in

the course of a criminal investigation. See id. Moreover, the right not to be

deprived of liberty through the use of fabricated evidence was clearly

established in 1993, when the events relevant to the present litigation

occurred. See Washington, 407 F.3d at 283-84 (citing Miller v. Pate, 386

U.S. 1, 7 (1967) (“[T]he Fourteenth Amendment cannot tolerate a state

criminal conviction obtained by the knowing use of false evidence.”)).

Having identified the particular right at issue, and having determined

that such right was clearly established at the time that the Defendants

completed their forensic examinations of the Plaintiff’s children, the Court

turns to the issue of whether the Plaintiff has presented a forecast of

evidence from which a reasonable jury could conclude that his constitutional

rights were violated by either of the Defendants in this case.

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To defeat the Defendants’ assertion of qualified immunity, the Plaintiff

must present a forecast of evidence from which a reasonable jury could

conclude that the Defendants deliberately or with a reckless disregard for the

truth provided false forensic evidence. Massey v. Ojanit, 759 F.3d 343, 357

(4th Cir. 2014); Washington, 407 F.3d at 282; White v. Wright, 150 F. App’x

193, 198 (4th Cir. 2005).

Fabrication of evidence alone, however, is not sufficient to establish a

due process claim. The Plaintiff must also present a triable issue of fact as

to whether his conviction (1) actually resulted from the fabrication and (2)

was a reasonably foreseeable result of such fabrication. See Massey, 759

F.3d at 354 (“[C]onstitutional torts, like their common law brethren, require a

demonstration of both but-for and proximate causation.”) (citing Evans v.

Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)).

Here, the Plaintiff’s fabrication of evidence claims against Dr. Marston

are based on his statements in the CMEP reports that Misty and Staci had

experienced “probable” sexual maltreatment and “possibly multiple events”

of vaginal penetration for Staci. Specifically, the Plaintiff relies on the

opinions of Dr. Brown and Dr. Bernstein to show that Dr. Marston’s

conclusions did not have a scientific or statistical basis and were not justified

under the medical science prevailing at the time of the examinations in 1993.

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The Plaintiff does not present a forecast of evidence of an intent on the

part of Dr. Marston to fabricate the findings in his CMEP reports. Thus, the

Plaintiff must rely on circumstantial evidence in order “to raise an inference

of intent.” White, 150 F. App’x at 199. The Plaintiff contends that such intent

may be inferred from the following: (1) Dr. Marston’s knowledge that Misty

had not reported sexual abuse during the prior visit; (2) the absence of a

clear, consistent, and detailed history of abuse at the time of the exams; (3)

the unusual statements of abuse reported by the social worker; (4) the

documented finding in Misty’s exam of an unmeasured anterior notch, and

subsequent revision to a posterior notch; (5) the lack of verification of the

findings in the knee-to-chest position; (6) the absence of any drawings or

photographs of the findings; (6) Dr. Marston’s knowledge that a “consistent

with” finding was not diagnostic of sexual abuse and only supported a finding

of “possible” sexual abuse; (7) the unclear and inconsistent stories from DSS

of abuse to the girls; (8) the unusual strength of his opinions; and (9) his

attempts to justify the opinions at trial with statements that were not

supported by any studies and lacked a scientific basis. [Doc. 48 at 17-18].

At best, however, this forecast of evidence establishes that Dr. Marston was

careless or negligent in conducting his forensic examinations of the female

Parker children, and that his opinions would no longer be considered valid

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under prevailing medical standards.9 A mere showing of negligence by a

forensic examiner, however, cannot defeat qualified immunity. See Ferris v.

City of Cadillac, 726 F. App’x 473, 480-81 (6th Cir. 2018) (“The question for

this court is not whether a self-interested litigant can find an expert to say the

defendants got it wrong, but whether the evidence — including any expert

opinions — creates a genuine issue of material fact that Defendants

fabricated that evidence.”); Brewer v. Hayne, 860 F.3d 819, 825 (5th Cir.

2017) (“Plaintiffs have made a compelling showing that Defendants were

negligent in their forensic analysis, but negligence alone will not defeat

qualified immunity.”); Caminata v. County of Wexford, 664 F. App’x 496, 501

(6th Cir. 2016) (expert testimony characterizing forensic examiner’s

investigation as “huge mistakes” that would not be expected of someone with

9 In fact, one of the experts relied upon by the Plaintiff disclaimed any opinion that Dr.

Marston was even negligent in his examination of the girls. While Dr. Brown expressed

disagreement with Dr. Marston’s techniques and conclusions in her 2012 Affidavit before

the MAR court, she later explained in her 2018 Affidavit as follows:

It is my opinion that [Dr. Marston’s] examination of the children

and his interpretation of the genital findings were within the

standard of care based on the prevailing medical knowledge

in 1993. It was my intention in the previous affidavit to correct

the interpretation of the genital findings based on subsequent

research published in the medical literature over the last 25

years. The findings described by Dr. Marston would no longer

be considered specifically diagnostic of penetrating trauma.

[Doc. 40-8: 2018 Brown Aff. at ¶ 3].

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his level of experience “impugns the quality of [the examiner’s] investigation,

[but] it is insufficient to establish knowing fabrication or deliberate or reckless

falsehoods, rather than mere negligence”); Burgess v. Baltimore Police

Dep’t, No. RDB-15-0834, 2017 WL 4947004, at *17 (D. Md. Oct. 31, 2017)

(“forensic examiners who improperly manipulate, suppress, or destroy

physical evidence in an effort to alter the results of their tests should be liable

for fabricating evidence, but courts must be careful not to open the floodgates

of litigation against forensic examiners whose analysis is less than perfect –

and more properly challenged via cross-examination at trial”).

Viewed in the light most favorable to Plaintiff, the record at best

demonstrates that Dr. Marston was negligent in his examination of the

female Parker children. A conclusion of negligence, however, “does not

establish a constitutional violation.” Caminata, 664 F. App’x at 501; see also

Ahlers v. Schebil, 188 F.3d 365, 373-74 (6th Cir. 1999) (“At best, however,

the investigation’s lack of thoroughness might support an inference of

negligence, but it does not demonstrate knowing or intentional behavior

designed to violate [the plaintiff’s] constitutional rights.”). As the Plaintiff has

failed to present a triable issue of fact as to whether Dr. Marston fabricated

evidence, the Court concludes that Dr. Marston is entitled to qualified

immunity with respect to the Plaintiff’s § 1983 claims.

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Dr. Archer’s findings present a more difficult question. Dr. Archer

made findings of “very probable” and “definite” sexual maltreatment of

Michael, Jr., “probably on multiple occasions.” These findings were

premised on the anal laxity and dilation that Dr. Archer observed upon

examination, along with the reports of sexual abuse made by Michael, Jr. to

DSS (and subsequently relayed to Dr. Archer). The Plaintiff has presented

a forecast of evidence through the opinions of Dr. Bernstein that Dr. Archer

performed an inadequate examination of Michael, Jr. because he failed to

wait until the stool present in the child’s bowel had passed before conducting

his examination. According to Dr. Bernstein, the anal laxity/dilation observed

by Dr. Archer, when considered with Michael, Jr.’s known history of bowel

issues, was in fact diagnostic of only chronic constipation and “there was no

scientific or statistical basis” for a finding of “very probable” or “definite”

sexual abuse. [Doc. 49-4: Bernstein Report at 4]. Based on Dr. Bernstein’s

opinions, a reasonable jury could conclude that Dr. Archer’s examination of

Michael, Jr. was so “grossly deficient” as to raise an inference that his

findings on the CMEP report were fabricated. See Ferris, 726 F. App’x at

479-80. Particularly considering the abbreviated nature of Dr. Archer’s

examination of Michael, Jr., as well as his knowledge of Michael, Jr.’s history

of chronic constipation and its presentation, Dr. Archer’s providing of a report

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that sexual abuse of Michael, Jr. was “definite” could be found by a jury to

be reckless, or even to constitute the presentation of an overt falsehood. Dr.

Archer’s report gave his opinion the air of scientific certainty, where no such

scientific certainty existed. Thus, as to this issue the Plaintiff’s forecast of

evidence is sufficient to survive summary judgment.

While the Plaintiff has presented a triable issue of fact as to whether

Dr. Archer’s findings were fabricated, that is not the end of the inquiry. The

Plaintiff must also present a forecast of evidence from which a reasonable

jury could conclude that Dr. Archer’s report was both a “but for” and

proximate cause of the Plaintiff’s loss of liberty. The Plaintiff fails in

establishing these critical elements. In prosecuting the Plaintiff, the State

relied not only on the opinions of Dr. Archer, but also the testimony of the

investigating police officer, Detective Harper; the testimony of a psychiatrist

who opined that the Parker children had been subjected to sexual abuse; the

opinions of Dr. Marston of the “probable” sexual abuse of Misty and Staci;

and the testimony of the three Parker children, who all testified that their

father had abused them. [See Doc. 49-5 at 26-27]. In short, the State had

an abundance of evidence upon which to convict the Plaintiff, regardless of

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the findings in Dr. Archer’s CMEP report.10 In light of this volume of evidence,

a jury could not reasonably find that Dr. Archer’s report of “very probable”

and “definite” sexual abuse was a cause (either “but-for” or proximate) of the

Plaintiff’s convictions. It should be noted that the Plaintiff relies exclusively

on the assertion that the report contains a fabrication. But Dr. Archer testified

and was subject to cross-examination before the jury on this point. Thus, a

jury could not reasonably find that the Plaintiff’s convictions were the

reasonably foreseeable result of Dr. Archer’s report. For these reasons, the

Court concludes that Dr. Archer is also entitled to qualified immunity with

respect to the Plaintiff’s § 1983 claims.

O R D E R

IT IS, THEREFORE, ORDERED that the Defendants’ Motion for

Summary Judgment [Doc. 39] is GRANTED, and the Plaintiff’s claims are

hereby DISMISSED WITH PREJUDICE.

10 The Plaintiff contends that his convictions were a reasonably foreseeable result of the

Defendants’ CMEP reports in part because the opinions of abuse were a prominent part

of the State’s closing argument at trial. [See Doc. 48 at 22-23]. Notwithstanding such

prosecutorial tactic, which was arguably very improper, every jury is instructed that the

arguments of the attorneys are just that – arguments – and that the jury must consider

and weigh only the evidence in determining whether a defendant is guilty of an offense

beyond a reasonable doubt. Presumably the jury did so here. Moreover, the volume of

evidence of guilt that the jury had to consider consisted of much more than just Dr.

Archer’s report.

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A Judgment consistent with this Order will be entered

contemporaneously herewith.

IT IS SO ORDERED.

Signed: August 12, 2019

2 Reidi ie ye

eidinger ao

United States District Judge we

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