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Livingston v. Luberoff

United States District Court, D. South Carolina, Columbia Division

September 20, 2019

Michael Livingston, Heather Livingston, Plaintiffs,
Susan Luberoff, MD, South Carolina Department of Social Services, Richland County Sheriff’s Department, Misty Puckett, Don Robinson, Kevin Preston, Angela Scott, Defendants.


         This case arises from an investigation and prosecution of Plaintiffs Michael Livingston and Heather Livingston for alleged child abuse. Plaintiffs filed a Complaint under 42 U.S.C. § 1983 against the above-captioned Defendants. The matter before the court is a review of the Magistrate Judge’s Report and Recommendation (“Report”). (ECF No. 83.)

         For the reasons below, the court REJECTS IN PART and ACCEPTS IN PART the Report and Recommendation (ECF No. 83), GRANTS IN PART and DENIES IN PART Defendants South Carolina Department of Social Services (“DSS”) and Angela Scott’s Motion for Summary Judgment (ECF No. 51) and DENIES Defendants Kevin Preston, Misty Puckett, Richland County Sheriff’s Department, and Don Robinson’s (“RCSD Individual Defendants”)[1]Motion for Summary Judgment (ECF No. 53).


         The Report sets forth the relevant facts and legal standards which the court incorporates herein without full recitation. (ECF No. 83 at 3-14.)

         A. Family History

         As of July 2017, Michael Livingston is a Major in the United States Army and employed as a nurse anesthetist at Moncrief Army Community Hospital, and Heather Livingston is a counselor at St. John Neumann Elementary School in Columbia, South Carolina. (Id. at ¶ 12.) Plaintiffs married in June 2001 (ECF No. 1-1 at 5 ¶ 11), had a daughter in August 2004 (Id. at 6 ¶ 14), and had twins in July 2013. (ECF No. 83 at 3.)

         B. Palmetto Health Children’s Hospital

         On September 1, 2013, Plaintiff Heather Livingston took her child (“Twin A”) to Palmetto Health Children’s Hospital for an examination. (ECF No. 83 at 3.) Plaintiffs allege that, on separate occasions, Twin A arched his back and struck his head on an infant bathtub and on Michael Livingston’s knee while being burped. (ECF No. 1-1 at 6 ¶¶ 16, 18.) Twin A underwent a CT scan and a full body scan at the hospital that revealed a mild skull fracture and multiple rib fractures. (ECF Nos. 1-1 at 7 ¶ 24; 83 at 3.) A subsequent CT scan and full body scan of the other twin (“Twin B”) also presented rib fractures. (ECF Nos. 1-1 at 9 ¶ 45; 83 at 3.) Plaintiffs claim that a similar examination of Plaintiffs’ daughter revealed no injuries. (ECF No. 1-1 at 9 ¶ 54.)

         Defendant Susan Luberoff, M.D., was consulted about the injuries to the children. (ECF No. 83 at 3-4.) Plaintiffs allege that Defendant Luberoff did not examine the twins, order additional testing, nor speak to Plaintiffs about the children’s injuries. (ECF No. 1-1 at 7 ¶¶ 30, 46-50.) Defendant Luberoff believed that the children’s injuries were the result of force applied by human hands. (ECF No. 83 at 3-4.) Allegedly, Defendant Luberoff reported Plaintiffs to authorities. (ECF No. 1-1 at 7 ¶ 32.)

         Representatives from the RCSD and DSS arrived at the hospital to speak with Plaintiffs. (Id.) The Report states that Plaintiffs could not offer any likely causes for the injuries. (Id. at 4.) However, Plaintiffs alleged that Heather Livingston explained the circumstances of Twin A’s arching back and head strikes, but that Defendant Scott “told Heather [Livingston] that [Twin A’s] arching and striking his head . . . could not explain the injuries.” (ECF No. 1-1 at 8.) Heather Livingston allegedly stated that she and Michael Livingston only had access to the children. (Id.) RCSD Deputy Misty Puckett began the Emergency Protective Custody process and DSS opened a case to investigate Plaintiffs. (Id.) RCSD deputies detained and transported Plaintiffs to RCSD for questioning. (Id. at 5.) Allegedly, RCSD deputies did not read Miranda rights to Plaintiffs before handcuffing and placing them into the back of the police car. (ECF No. 1-1 at 10.)

         C. Richland County Sheriff’s Department

         Plaintiffs claim that investigators aggressively questioned Heather Livingston about the children’s injuries, implying that the mother is typically at fault in similar cases and that the father is also guilty for covering it up. (ECF No. 1-1 at 10 ¶¶ 68-71.) Questioning lasted ten to fifteen minutes. (ECF No. 1-1 at 11 ¶ 73.)

         In a separate room, officers read Defendant Luberoff’s medical conclusions to Plaintiff Michael Livingston and questioned him about his and Heather Livingston’s interactions with their children. (ECF No. 83 at 3-4.) Plaintiffs allege that, after investigators read the medical report, they “asked Michael Livingston what he did to cause the injuries” to his children. (ECF No. 1-1 at 11 ¶ 76.) After the initial questioning, officers read Defendant Michael Livingston his Miranda rights. (Id.) Michael Livingston responded in the affirmative to whether he understood his rights and that he did not wish to waive his right to an attorney. (Id.) Notably, the Report provides that: “[t]he officers placed Michael [Livingston’s] cell phone out of reach at some point during the questioning. The officers found [his] attorney’s number from Google. There is some implication that Plaintiff was not allowed to use his cell phone to call his attorney, but it is not clear that he asked either to use his cell phone or to look in the phone to view his attorney’s number.” (Id. at 5-6 n.2) Plaintiffs allege that “Michael’s phone rang during the investigation. Lt. Robinson took the phone from him.” (ECF No. 1-1 at 11 ¶ 79.) Plaintiff’s call to his attorney’s office, at 10:00 p.m. on a Sunday, went unanswered. (Id. at 5-6.)

         Allegedly, investigators then “spoke openly in front of Michael [Livingston] about their plan to continue the investigation by re-examining Heather [Livingston], questioning Hannah [Livingston], and possibly polygraphing Heather [Livingston]” and “told Michael [Livingston] that they already knew Heather [Livingston] was guilty and that she was never going to see her children again.” (ECF No. 1-1 at 12 ¶¶ 89, 91.)

         Plaintiffs claim that “[u]nder coercion and duress and in order to protect Heather [Livingston] from false and malicious allegations that she had abused her children and in order to reunite the children with their mother and to prevent [his wife] from being taken to jail, ” Michael Livingston confessed. (ECF No. 1-1 at 13 ¶¶ 95-96.) Consequently, a Richland County Magistrate Judge issued arrest warrants for Michael Livingston for charges of Unlawful Conduct Toward a Child, S.C. Code § 63-05-0070 (2019).[2] (ECF No. 83 at 7.)

         D. Family Court

         At the Richland County Family Court, Michael Livingston reaffirmed the confession provided at RCSD. (ECF No. 83 at 8.) The judge found probable cause to remove the children from Plaintiffs’ custody. (Id.)

         E. Medical Reviews

         In October 2013, a chiropractor reported that the children appeared “normal . . . showing no apparent signs of bruising or injury” at a visit prior to their admission to Palmetto Health Children’s Hospital. (ECF No. 83 at 9.)

         In November 2013, Dr. T. Whitney Gibson reported that radiographic studies of the children showed nothing to indicate the injuries were “non-accidental, ” which Plaintiffs’ counsel shared with DSS. (Id.) One month later, Dr. Gibson re-examined the children and noted that he “did not see any signs of nonaccidental trauma whatsoever.” (Id. (citing to ECF No. 63-22).)

         In May 2014, Heather Livingston was diagnosed with Ehlers Danlos Syndrome type III (“EDS”), which weakens the musculoskeletal system, and it was determined that she likely passed it to her children. (Id.) Additionally, a licensed radiologist, Dr. David Ayoub, reported that the children’s medical records did not contain evidence of abuse (Id), and Dr. Michael Holick, an endocrinologist, concluded that the children’s rib injuries were old and likely the result of child birth. (Id.) The Magistrate Judge observed that ...

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