United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendants' Monte
McNeil's and the City of North Platte's (“the
City”) motion for summary judgment, Filing No. 69. This
is an action for violation of civil rights under 42 U.S.C.
amended complaint, plaintiff Wendell Matthews alleges that
North Platte Police Department Investigator Monte McNeil and
his supervisor, Rich Thompson,  violated Matthews's Fourth
Amendment right to be free from an unreasonable seizure and
his Fourteenth Amendment right to substantive due process by
conducting a reckless investigation of sexual assault
allegations by a minor and wrongfully arresting him. He also
alleges the defendants and other investigative, supervisory,
and policymaking personnel conspired to deprive him of his
constitutional rights. Further, he asserts that the City of
North Platte is liable for failing to properly train and
supervise its officers with respect to child sexual assault
defendants argue that Investigator McNeil is entitled to
qualified immunity because the record shows there has been no
constitutional violation. It further argues that the City is
entitled to summary judgment for the same reason.
following facts are gleaned from the pleadings, the
parties' briefs and the supporting evidence. See
Filing No. 70, Defendant's Brief at 2-8; Filing No. 74,
Plaintiff's Brief at 4-55; Filing No. 71, 75, and 80,
Indices of Evidence. Defendant City of North Platte is a
Nebraska political subdivision (“the City”).
Defendant Monte McNeil has been an employee of the North
Platte Police Department since 1995. For the last eight to
ten years, Investigator McNeil has been the lead investigator
for most cases involving sex crimes against minor victims.
Lieutenant Richard Thompson has been Investigator
McNeil's supervisor for the last seven or eight years.
Filing No. 75-2, Deposition of Monte McNeil (“McNeil
Dep.”) at 25-26.
of Hope Child Advocacy Center (“Bridge of Hope”)
is a nonprofit organization that coordinates investigation of
child abuse cases, provides intervention services, and brings
professionals and agencies together to work as a
multidisciplinary team. Investigator McNeil is one of five or
six forensic interviewers that Bridge of Hope uses to conduct
interviews. Investigator McNeil sat on Bridge of Hope's
Board of Directors, a volunteer position, for several years.
He is paid by the City.
January 2012, Investigator McNeil was assigned to investigate
a report by school personnel that that an eight-year old
student (hereinafter, “S.S.”) was hearing voices
in her head and had been experiencing “pooping
incidents.” Filing No. 75-14, Incident Report dated
January 12, 2012. The juvenile was interviewed at Project
Harmony, a child advocacy agency in Omaha, and vaguely
alluded to fear of a male and secrets. Id. The
interviewer noted the child had a history of lying, but
stated she seemed honest in the interview. Id. at 4.
The case was referred to law enforcement and Investigator
McNeil was assigned to the case. Id. Investigator
McNeil determined he did not have enough evidence to
interview S.S. at Bridge of Hope and he did not do any
further investigation as a result of the 2012 report. Filing
No. 75-2, McNeil Dep. at 100-02. Later, in December 2013,
when she was 10 years old, S.S. recounted sexual or
sexualized incidents with a minor friend in 2012 to her
psychologist, Dr. Luke McConnell. 75-40, Behavioral Medicine
Associates' notes at 1.
December 30, 2013, Investigator McNeil received a call from
Dr. Luke McConnell, a therapist at Behavioral Medicine and
Associates. Filing No. 71-1, McNeil Dep., Ex. 16, CM/ECF Page
ID # 271. Dr. McConnell reported that S.S. had disclosed
during a counselling session that she had been molested by
Wendall Matthews. Id. at CM/ECF Page ID # 272.
Investigator McNeil directed McConnell to call the child
abuse hotline. Id. The Department of Health and
Human Services Child Abuse/Neglect Intake Worksheet relayed
the information conveyed by Dr. McConnell to Debbie Gill at
Omaha-Project Harmony. Filing No. 75-21. The matter was
referred to law enforcement with this stated reason:
Intake Closure Status: Law Enforcement, Reason: 10-year-old
female reported that when she was in the 3rd grade living in
North Platte, her then mother's live in boyfriend
digitally penetrated her and penetrated her with his penis
both anally and vaginally five to six times. Last contact
with him was two years ago.
No. 75-21. The case was assigned to Investigator McNeil.
Filing No. 26, Answer.
following day Investigator McNeil received the intake report.
Filing No. 75-15, Incident report at 2. He called the
victim's mother to arrange for an interview of S.S. at
Bridge of Hope. Id. S.S. was interviewed at the
Bridge of Hope on January 6, 2014, by Amber McNutt.
Id.; see Filing No. 71-1, McNeil Dep. at
132-34; Filing No. 75-29, Transcript of Interview
(“Tr.”). Investigator McNeil testified he gave
Bridge of Hope the intake report, but did not share any other
details with McNutt to prepare her for the interview of S.S.
Filing No. 71-1, McNeil Dep. at 137. Investigator McNeil
watched the entire interview of S.S. from the monitor room.
Id., McNeil Dep. at 142-43. Investigator McNeil
testified Ms. McNutt did not express any concerns about the
reliability of S.S.'s story. Id. at 159. McNutt
has been trained as a forensic interviewer. Filing No. 75-3,
Deposition of Amber McNutt (“McNutt Dep.”) at 17.
interview, S.S. gave a detailed and graphic account of abuse
by Wendell Matthews two years earlier during evenings when he
mother went to pool league. Filing No. 75-29, Tr. at 3-6,
27-29. Ms. McNutt asked S.S. why she had come to Bridge of
Hope that day and S.S. stated “because someone sexually
abused me.” Id. at 3. She identified Wendell
Matthews as the perpetrator without further prompting.
Id. S.S. also made vague statements about sexual
activities with several others: a girl her age, two little
boys (at the direction of the girl), and three cousins.
Id. at 20-25. She also mentioned a five-year-old and
a nine-year old and reported that she had taken baths with at
the home of an adult named Todd without her mother there;
that Todd “got mad at me for locking the door, ”
and unlocked the door with a key and let his son get in the
bath with her. Id. at 24. S.S. also stated that
other than Wendell Matthews, there were no other
“grownups” who had abused her. Id. at
25. McNutt took a break in the interview to consult with
Investigator McNeil, and Investigator McNeil did not request
any follow-up. Filing No. 75-3, McNutt Dep. at 77.
McNeil noted the following background in his report on the
December 30, 2013, incident:
It should be noted that a case was generated in January of
2012 in which [S.S.] was reported to be having issues at
School and the possibility of her being molested was
questioned. [S.S.] was defecating in her pants at School
during this time. [McNeil] had contacted [Lutheran Family
Services] and spoke with [S.S.'s] Counselor, Sue Heubner.
Sue was going to talk about good touch bad touch with [S.S.].
I later received a call in which Sue advised [S.S.] never
disclosed anything. In October 2013, [S.S.] had disclosed she
had a touching episode with a peer named [redacted].
[Redacted] had moved. [McNeil] learned the name as
[redacted]. The family had since moved to Alabama. [McNeil]
did call a cell number left with School Officials, but it was
No. 75-15, North Platte Police Prosecutor Report at 4.
sexual abuse nurse examination (“SANE exam”) on
January 8, 2014, revealed anal “possible multiple
healed trauma @ 8 o'clock to 6 o'clock” and
also showed a septal hymen with possible thickening
present.” Filing No. 75-32, SANE examinations at 5, 8;
Filing No. 71-1, McNeil Dep. at 192-93. A further exam on
January 22, 2014, stated the same observation, noting
“possible multiple healed trauma still present @ 6
o'clock to 8 o'clock.” Filing No. 75-32, SANE
examinations at 15. In his report, McNeil stated:
It is believed the acts began in 2007 when [S.S.] was in
second grade and 7 years of age. Behavior problems escalated
when [S.S.] was attending third grade and she was eight years
old. Wendell met Cristina and moved in with her and [S.S.]
when [S.S.] was 1 to 2 years of age. They split up shortly