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Abby Tiscareno; and Guillermo Tiscareno v. Richard anderson

March 14, 2011

ABBY TISCARENO; AND GUILLERMO TISCARENO, PLAINTIFFS--APPELLEES,
v.
RICHARD ANDERSON, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY, DEFENDANT--APPELLANT, LORI FRASIER; MARION WALKER;
AND WILLIAM BEERMAN, IN THEIR INDIVIDUAL CAPACITIES; AND INTERMOUNTAIN HEALTH CARE, INC., IN ITS INDIVIDUAL CAPACITY, DEFENDANTS.



Appeal from the United States District Court for the District of Utah (D.C. No. 2:07-CV-00336-CW-DN)

The opinion of the court was delivered by: Lucero, Circuit Judge.

PUBLISH

FILED

United States Court of Appeals Tenth Circuit

Elisabeth A. Shumaker Clerk of Court

Before LUCERO, HARTZ,and HOLMES, Circuit Judges.

Richard Anderson, former director of the Utah Division of Child and Family Services ("DCFS"), appeals the denial of his motion to dismiss this civil rights suit filed by Abby and Guillermo Tiscareno. Tiscareno*fn1 claims that Anderson was bound to comply with Brady v. Maryland, 373 U.S. 83 (1963), and to create policies ensuring that doctors working with DCFS properly revealed exculpatory evidence to prosecutors. Because such an obligation was not clearly established, we conclude that Anderson was entitled to qualified immunity. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand with instructions to dismiss the claims against Anderson.

I This appeal stems from the tragic and debilitating abuse of a one year old child, N.M. Because this appeal comes to us from the denial of a motion to dismiss for failure to state a claim, we recite the facts as Tiscareno pled them.

A Abby Tiscareno ran a licensed day care in Summit County, Utah. On the morning of November 14, 2003, James Molineux dropped off his two sons, including N.M. Tiscareno had been caring for the Molineux boys since September 2003. N.M. appeared sleepy that morning, and Tiscareno placed him in a crib. When Tiscareno attempted to feed the baby from his bottle, he was unable to drink and lost consciousness. After attempting and failing to revive N.M. by jostling him, Tiscareno called 911.

N.M. was taken to Children's Primary Medical Center ("CPMC") and given a CT scan. The scan revealed hemorrhaging in N.M.'s brain. Dr. Marion Walker performed surgery and removed a blood clot.Following the surgery, she sent a portion of the clot to the pathology department, in part to determine when N.M. had been injured. The pathology department concluded that the clot suggested "elements of previous as well as acute hemorrhage," indicating a "prior bleed."

Another CPMC employee, Dr. Lori Frasier, examined the CT scan, conducted a physical examination of N.M., and interviewed N.M.'s father. Dr. Frasier concluded that N.M.'s injury must have occurred the morning of November 14, while he was in Tiscareno's care. Dr. Frasier's conclusion accorded with Dr. Walker's observation from surgery that the bleeding in N.M.'s brain was fresh, suggesting a very recent injury.Shortly thereafter,Dr. Frasier became privy to the pathology report that would have undermined her and Dr. Walker's conclusion.

On the evening of November 17, Dr. Frasier spoke with one of the detectives investigating N.M.'s injuries. She told the detective that N.M. had been shaken and that his injuries could only have occurred while he was in Tiscareno's care. Tiscareno consistently denied that she had injured N.M., but Dr. Frasier's insistence that the injuries were recent led the police to focus exclusively on Tiscareno. Tiscareno was arrested and charged with felony child abuse.

Tiscareno subpoenaed any evidence pertaining to her case. Throughout Tiscareno's prosecution, one portion of N.M.'s medical records was kept at CPMC's main repository and another portion was kept at CPMC's Center for Safe and Healthy Families, consistent with the hospital's practice with respect to records of child abuse victims. Dr. Frasier, Dr. Walker, and hospital administrators received requests from the prosecutor for medical records but did not produce the pathology report.

DCFS, led by Anderson, also received a request from the prosecutor to produce N.M.'s records. The agency had an office at CPMC and frequently worked with the hospital in its investigations into potential child abuse. In Tiscareno's case, DCFS relied upon Dr. Frasier's conclusions in determining that N.M. was abused by Tiscareno. Rather than seeking out N.M.'s medical records, DCFS relied on CPMC to ...


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