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Eric Massenburg, Tonya Massenburg, and H.M., A Minor Child, By Her v. Laurie Richardson

January 25, 2011


The opinion of the court was delivered by: Robert L. Miller, Jr. Judge United States District Court


This matter is before the court on motions for summary judgment filed by defendants Jacque Dermody, Lyn Stevens, and Laurie Richardson. The court already has granted defendant Jane Doe's summary judgment motion. See Opinion and Order, Oct. 12, 2010 [Doc. No. 101]. This court ordinarily requires parties to submit motions for summary judgment that are fully briefed, see Memorandum of Scheduling Conference, Oct. 12, 2010 [Doc. No. 100], but the Massenburgs never responded to the summary judgment motions Laurie Richardson and Jacque Dermody served on them. Most of the plaintiffs' claims don't state claims upon which relief can be granted, and this court previously dismissed the claims, though without prejudice. See Memorandum of Hearing, March 2, 2010 [Doc. No. 57]; FED. R. CIV. P. 12(b)(6). The Massenburgs filed an amended complaint that adds and clarifies a couple of claims, but the amended complaint remains largely deficient for the same reasons their original complaint was dismissed, which reasons were stated in open court. See Transcript of Motions Hearing [Doc. No. 71].

The Massenburgs haven't presented any evidence against any defendant that would substantiate any of their claims in any way. At the least, summary judgment is a mechanism designed to prevent wholly unsubstantiated claims such as these from taking up public time and expense at trial. See generally, FED.R. CIV. P. 56 (Dec. 1, 2010). The court's opinion granting summary judgment to teacher Jane Doe fully informed the Massenburgs of the requirement that they present some evidence beyond the amended complaint, and, having had such notice, it falls within the court's discretion to simply grant the defendants' summary judgment motions on the basis of the complete lack of evidence to support their claims. See Fed. R. Civ. P. 56(e)(4) (Dec. 1, 2010); Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003) (stating that summary judgment is the "put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events"); Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995) (stating failure to respond "constitutes an admission . . . that there are no disputed issues of genuine fact warranting a trial"). For this reason and for the further reasons stated below, the defendants' motions are granted, and judgment will be entered in favor of all defendants.

The court incorporates here and assumes familiarity with the facts and summary judgment standard set forth in its Opinion and Order granting summary judgment to teacher Jane Doe. Opinion and Order, Oct. 12, 2010, at 2-4. The court further assumes familiarity with the plaintiffs' amended complaint filed on March 22, 2010.

1. Probation Officer Jacque D. Dermody

The Massenburgs allege that Probation Officer Jacque Dermody promised to take Eric Massenburg off the Indiana sex offender registry and didn't do so out of racial animus. Ms. Dermody responds that she had no authority to add or remove names from the registry and that she's entitled to quasi-judicial immunity.

Ms. Dermody doesn't have the authority to add or remove names from the Indiana Sheriff's Sex Offender Registry. She was a Probation Officer of the LaPorte Circuit Court and she served "at the pleasure of the appointing court and [was] directly responsible to and subject to the orders of the court." IND. CODE § 11-13-1-1(c). An entirely different department of an entirely different branch of government-the Sheriff's department-is responsible for maintaining Indiana's sex offender registry. See IND. CODE § 11-8-8-1 et seq. Removal of a name from the Registry requires a petition, a court hearing, and specific findings. IND. CODE § 11- 8-8-22. Ms. Dermody can't have done anything to affect the presence of Mr. Massenburg's name on the Registry.

No evidence has been presented to support the assertion that Jacque Dermody made any promise to Eric Massenburg to remove his name from the sex offender registry. Even if she made a promise to do something she had no authority to do, no reason has been presented for why Ms. Dermody shouldn't be entitled to absolute quasi-judicial immunity for both state and federal claims. See Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992); H.B. v. State of Indiana-Elkhart Div. of Family & Children, 713 N.E.2d 300, 302 (Ind. App. 1999).

The court grants Ms. Dermody's motion for summary judgment.

2. Nurse Practitioner Lyn Stevens

The Massenburgs claim that Nurse Practitioner Lyn Stevens maliciously misdiagnosed their child's vaginal infection as a tear that could only be caused by digital penetration. They say Nurse Stevens should have believed Tonya Massenburg's explanation that the child only had an infection and should have called the child's physician instead of Laurie Richardson. The Massenburgs say that Nurse Stevens purposely withheld from Ms. Richardson the explanation that the tear may have been caused by the child's scratching, which, they say, evidences a conspiracy to deprive them of custody of their child, defame them, and cause other violations of their rights.

Nurse Stevens argues that the Indiana state claims are essentially a medical malpractice claim, and a malpractice claim is jurisdictionally barred here. Further, Nurse Stevens says she was only performing her statutory duty to report suspected child abuse, and to not report her findings upon examining the child would have been criminal. Finally, Nurse Stevens maintains she was a private actor, never met teacher Jane Doe or Probation Officer Dermody, and only met Laurie Richardson for the first time on March 8, 2007.

The Massenburgs don't deny the evidence that the child had a tear and not just an infection. Instead, they point to the affidavit Nurse Stevens submitted, where she admits that the tear she found on the child could have been caused by the child scratching herself. They say Nurse Stevens nefariously omitted this exculpatory explanation from Laurie Richardson, but they present no evidence as to what was or wasn't communicated between Nurse Stevens and Ms. Richardson. Instead, the only evidence available (Nurse Stevens' affidavit) reveals that Tonya brought her child to the Emergency Room, as Ms. Richardson instructed her to do, and told the nurses that Child Protective Services told her to bring the child into the ER. That information caused the nurses to examine the child for signs of sexual abuse. Seeing a tear caused by a finger and performing tests that ruled out an infection, Nurse Stevens told Ms. Richardson of her findings. The child's medical records indicate that the child wouldn't talk at all to Nurse Stevens.

Without presenting any supporting evidence, the Massenburgs leap from the statement that the tear could have been caused by the child herself to the conclusion that Nurse Stevens entered into a conspiracy to deprive the Massenburgs of custody of their child and defame them, all out of racial animus. The Massenburgs mistake their burden on a motion for summary judgment: they argue that the burden is on Nurse Stevens to prove her case before any burden is placed on them. This isn't how the federal summary judgment process works, and the Massenburgs were notified of the requirements placed on them by this court's order granting summary judgment to teacher Jane Doe. Nurse Stevens' summary judgment motion is a motion that argues to the court that the plaintiffs can't prove their case. The motion itself immediately places a burden on the plaintiffs to show what evidence they have that can convince a jury that their version of the facts is true. Our court of appeals has saliently called it the "put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to ...

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