B.R. v. McGivern

714 F. App'x 528
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 1, 2017
DocketNo. 16-4208
StatusPublished
Cited by2 cases

This text of 714 F. App'x 528 (B.R. v. McGivern) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.R. v. McGivern, 714 F. App'x 528 (6th Cir. 2017).

Opinions

Cook, Circuit Judge.

This case involves four preteen girls, graphic accusations of sexual assault, and serious claims of bullying. C.M., F.S., and R.B. accused their schoolmate B.R. of forcing them to engage in sexual acts with her at sleepover parties. They alleged that B.R. threatened to harm them if they told anybody about the incidents. Based on information gleaned primarily from interviews with the four girls, the police arrested B.R. After a juvenile delinquency proceeding cleared B.R. of all criminal charges, B.R. and her parents sued the City of Canfield and several police officers alleging, among other claims, unconstitutional seizure. The district court granted summary judgment to Defendants on all counts, and Plaintiffs appealed. We AFFIRM.

I.

A.Initial Suggestions of Sexual Assault

On April 16, 2012, C.M.’s mother discovered a message written on the chalkboard in her daughter’s bedroom. Signed by F.S., the message suggested that F.S. had been raped by her best friend. After informing F.S.’s mother, C.M.’s mother spoke with C.M. and R.B. about the chalkboard when the girls arrived at her house after school. C.M. gave her mother a note written by F.S. containing graphic details about B.R. forcing F.S. to engage in various sexual acts, including oral sex and vaginal penetration with a writing instrument. In addition, R.B. informed C.M.’s mother that B.R. had also sexually assaulted R.B. and C.M. The girls claimed that B.R. threatened to spread rumors at their school that C.M. and R.B. were lesbians if they told anyone. That same day, F.S.’s father called David Blystone, the former Canfield Police Department Chief, expressing concern that his daughter had been sexually assaulted. Blystone then called Chuck Colucci, the current Canfield police chief, to inform him that he might have a new case on his hands.

On April 17, F.S.’s father met with Detective Brian McGivern and Officer Timothy Lamping at the Canfield police station. He explained that F.S. told him that B.R. sexually assaulted her twice during a sleepover at B.R.’s home in February 2012—once during the evening in the basement, and again the next morning in B.R.’s bedroom. F.S. had described the incidents as forceful kissing and removal of her clothes; she told her father that B.R. attempted digital, but only accomplished oral, vaginal penetration. F.S.’s father also reported that C.M. and R.B. claimed B.R. sexually assaulted them, prompting the officers to contact C.M.’s mother. She discussed with them F.S.’s chalkboard message and her conversation with C.M. and R.B.; she also gave the officers F.S.’s note. The officers also met with R.B.’s mother, who told them that R.B. described several occurrences of forced sexual contact by B.R, including oral sex. According to R.B.’s mother, R.B. pled with B.R, to stop attacking her, triggering B.R. to bully R.B. and spread rumors about R.B. being a lesbian.

Detective McGivern discussed the meetings with Assistant Prosecutor Anissa Mo-darelli. He also contacted the Mahoning County Children Services Board, requesting its assistance in investigating the matter. Children Services, however, informed Detective McGivern that it would not have a facility to interview the children for nearly three weeks. That wouldn’t work for Detective McGivern: knowing that B.R. was having a sleepover birthday party only several days later, he arranged for Children Services to interview the accusers at the police station within a matter of days.

The following day, Officer Steve Garstka met with Canfield Middle School interim principal Don Dailey. Dailey knew the four girls from conflict resolution meetings. In documentation he provided to Officer Garstka, Dailey recounted that he saw R.B., F.S., and B.R. walking and talking together on April 16, “appearing] to [him] that possibly things are back on track.” Dailey wrote that he met with F.S. and R.B. on April 17, during which time the girls “indicated that things were not good with [B.R.] ” and shared that “there were some ‘sexual’ encounters or attempts. They spoke of ‘lap dancing’ and [he] believe[d] an attempted kiss.” Dailey then stopped his conversation with the girls. Following the meeting, Officer Garstka shared Dai-ley’s notes with Assistant Police Chief Scott Weamer.

B. First Round of Interviews with R.B., C.M., and F.S.

On April 20, Kim Woods, a case worker from Children Services, interviewed R.B., C.M., and F.S. individually at the Canfield Police Department. Each interview lasted roughly 20 minutes. Nobody else sat in on the sessions, but Detective McGivern, Officer Lamping, and Assistant Prosecutor Modarelli watched live video feeds (Assistant Chief Weamer watched live feeds of C.M.’s and F.S.’s interviews).

R.B. went first. She told Woods that the first time B.R. slept over at her house, B.R. showed her pornography on her iPod. After that,' B.R. “forced [R.B.] down onto her bed; with [R.B.] on her back, [B.R.] pulled off [R.B.]’s pants and underwear; [B.R.] then used two of her fingers to digitally penetrate [R.B.]’s vagina.” R.B. continued, explaining to Woods that “[B.R.] forced [R.B.] to receive oral sex; [B.R.] then forced [R.B.] to digitally penetrate [B.R.] ’s vagina; at that point, [B.R.] took her clothes off and proceeded to sit on [R.B.]’s face; [B.R.] forced [R.B.] to lick [B.R.] ’s vagina.” After this, B.R. warned R.B. that she would hurt R.B. if she told anybody about what happened. R.B. also recounted a separate sleepover at B.R.’s house, during which “[B.R.] tided to give lap dances to and Mss [R.B.], [F.S.], and [C.M.]”

Woods interviewed C.M. next. According to C.M., she slept over at B.R.’s house the prior week, during which B.R. watched pornography. B.R. took off C.M.’s clothes and then removed her own. “[B.R.] forced [C.M.] onto the bed and then started ‘licking’ [C.M.]’s vagina; [B.R.] then forced [C.M.] to ‘lick’ [B.R.]’s vagina.” C.M. continued, recounting that “[B.R.] forced [C.M.] to put her finger in [B.R.]’s ‘butt’; [B.R.] reciprocated by doing the same to [C.M.]; [B.R.] told [C.M.] that she would Mil her if [C.M.] didn’t do as she was told.” C.M. also “stated that she was forced to give and receive oral sex with [B.R.] on at least five different occurrences” and “confirmed that there was vaginal digital penetration by [B.R.] ... [C.M.] was also forced to put her fingers in [B.R.]’s vagina.” B.R. said she would kill C.M. if she told anyone about what happened. C.M. also discussed another incident where B.R. allegedly forced her, R.B., and F.S. onto mats and started Mssing and “humping” them.

F.S. sat for her interview last. She described for Woods a sleepover she attended with C.M. and R.B. at B.R.’s house after Christmas 2011. F.S. said that B.R. watched lesbian pornography in front of the group and suggested they all practice Mssing, After F.S., C.M., and R.B. refused, B.R. tried to give them lap dances. F.S. next discussed a subsequent sleepover at B.R.’s house, at which B.R. also watched pornography and tried to give F.S. a lap dance. “[B.R.] then took [F.S.] ’s pants and underwear off; [B.R.] began to ‘lick’ [F.S.] ’s vagina as the pornography showed on the i[P]od; [B.R.] removed her clothes and forced [F.S.] to ‘lick’ [B,R.]’s vagina.” F.S. stated that B.R. attempted to, but couldn’t, digitally penetrate her vagina. Next, “[B.R.] forced [F.S.] to digitally penetrate [B.R.]’s vagina with her fingers; [B.R.] then got a marker and put it inside of [F.S.] ’s vagina,” which, F.S. explained, “hurt badly.” F.S.

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Bluebook (online)
714 F. App'x 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/br-v-mcgivern-ca6-2017.