Planck Civil Suit
Steve Planck
Planck Civil Suit May 21, 1996
Tort Claim Notice
Pursuant to I.C. 34-4-16.5 et seq.
To:
Rodney J. Cummings, Individually and as Prosecuting Attorney Madison
County
Fiftieth Judicial Circuit;
Cynthia Sauer, Individually and as Deputy Prosecuting Attorney of Madison
County, Fiftieth Judicial Circuit;
State of Indiana, Family and Social Services Administration;
Madison County; Madison County Welfare Department;
Madison County Division of Family and Children; Child Protective Services
of
Madison County;
Nellie Elston, Individually and in her official capacity as a case worker
for
the Madison County Department of Public Welfare;
Diana Cole, Individually and in her official capacity as a case worker for
the Madison County Department of Public Welfare;
Elaine Fuller, individually and in her official capacity as a case worker
for
Madison County Department of Public Welfare; CASA:
Officer Jack Woods, Individually and as an officer of the Alexandria
Police
Department;
Officers John Doe 1 through John Doe 20, Individually and as officers of
the
Alexandria Police Department and the Madison County Sheriff's Department.
From:
William Planck,
Sarah Planck,
Stephen Planck b/n/f William and Sarah Planck,
Emily Planck b/n/f William and Sarah Planck,
David Planck b/n/f William and Sarah Planck,
Shari Planck b/n/f William and Sarah Planck,
Curtis Planck b/n/f William and Sarah Planck
Brady Planck b/n/f William and Sarah Planck,
Rita Planck b/n/f William and Sarah Planck.
1. Introductory Statement
This is a formal Tort Claim Notice under I.C. 34-4-16.5, et seq. by
William
Planck, Sarah Planck, Stephen Planck b/n/f William and Sarah Planck, Emily
Planck b/n/f William and Sarah Planck, David Planck b/n/f William and
Sarah
Planck, Shari Planck b/n/f William and Sarah Planck, Curtis Planck b/n/f
William and Sarah Planck, Brady Planck b/n/f William and Sarah Planck,
Rita
Planck b/n/f William and Sarah Planck ("Claimants") arising from incidents
which occurred before November 26, 1995, and on and after November 26,
1995.
Claimants desire restitution and corrective action arising from the
violation
of the Claimants' statutory and constitutional rights under the statutes
and
Constitution of the State of Indiana and the United States.
II. Factual Background
(Date Place. Time. Circumstances and Nature of
Damages. Injuries and Losses sustained by Claimants)
A. Initial contact with welfare agency by older daughter.
The initial difficulties experienced by the Claimants with the Respondents
arose from contacts made by an older daughter of the Plancks, no longer
living in the home, who felt excluded from the family because of their
criticism of her lifestyle. As a result of said criticisms, said older
daughter made contact with the Madison County Office of Family and
Children.
The older daughter in contacting said agency raised complaints about the
family's religion, home education of children and questioned whether two
of
her siblings had congenital cataracts.
B. CHINS Petition filed.
As a result of the foregoing contacts, in November of 1992, a Child
Protective Services employee visited the Planck home to discuss the
alleged
vision problems of the three Planck children. As a result of said visit a
Child in Need of Services Petition was filed in January of 1993. A fact
finding hearing on the CHINS petition occurred in February of 1993. The
children were found not to be in need of services.
Despite this finding, in March of 1993, the Madison County Superior Court
Division II, ordered that the children's eyes be examined.
In a hearing in April of 1993, Nellie Elston, and perhaps others,
intentionally falsified the facts in an effort to manipulate the Court
into
interfering with the Plancks' lives, because she did not approve of the
Plancks' religious beliefs, practices and lifestyle. The practice of the
Madison County Welfare Department is to falsify facts to obtain favorable
court orders.
William and Sarah Planck are adherents to alternative medicine and were
never
advised nor do they now know of any legal requirement under Indiana or
federal law which would force them to subject their children to eye
examinations. The Plancks informed the Respondents that their children
could
see well and could read well and that there was no need for eye
examinations.
Further, the Plancks suspected that three of their children may have
cataracts, in that their mother. Sarah Planck, had congenital cataracts.
Sarah Planck had experienced a bad result from surgery several years ago
for
her congenital cataracts, which worsened her condition and not improved
it.
In addition, William and Sarah Planck had good cause to believe that no
surgical procedure could be performed on the congenital cataracts of the
three minor children, due to their age. William and Sarah Planck had read
extensively about the proper treatment of congenital cataracts and
concluded
that various homeopathic remedies would cause a regression of the
cataracts.
The Plancks eventually demonstrated, in the instance of one child, that
such
is exactly what occurred.
C. Forced entry of home.
On April 26, 1993, approximately twenty (20) armed officers, with guns
drawn,
came to the Claimants' home and banged loudly on the door and demanded
entrance. They stated "do you know who we are, do you know what we're here
for? Are the children ready to go?" to which William Planck said "no, 1
don't"
to which the officers stated "are you resisting me?" at which point
William
Planck was pushed back against the wall, greatly upsetting his children as
his arm was grabbed and he was pushed out the door into the yard, with
rifles
pointed at him. Lance Planck went into a fetal position and retreated
against
a wall. Lance Planck feared what he called "the welfare police" from that
point until his death, frequently asking "Mommy, are the welfare police
coming back?". Lance and the other children were traumatized and suffered
severe emotional and psychological injury as a result of the show of
deadly
force, which they witnessed in their home. The other children were greatly
in
fear as officers entered their home and their father was forcibly removed
from the home. Several of the officers were in plain clothes. No
identification was shown at any time by any of the officers to any of the
Claimants. Approximately eight (8) officers came into the home and asked
"where are the children that are to go?". Sarah Planck asked the officers
as
they entered the home "is it legal to do what you're doing" and one
officer
said, with his hand violently trembling, "it's what the paper says".
Sarah
said "I don't think it's legal". Two (2) of the officers then made
threatening comments to the children telling them, among other things, to
"get their jacket on and get out the door". One child said "no, I won't
go"
to which an officer said "I'll drag you out of here". Curt, who was then
eight years old, drew his fist back as if he were going to hit an officer
and the officer said "I'll carry you out of here". An officer said to
Sarah
"I'm ordering you to send your children out the door". Sarah replied "no,
I
won't, if my kids want to go, that's okay". Stephen, who was then
fourteen,
said that he would not go when the officer told him to leave the home. A
CASA
worker then stated that "you're frightening your kids" to which Sarah
replied, "no, you are frightening them". Eventually, Emily, Stephen and
Curtis, who were crying, were placed into a van and driven into Anderson,
Indiana for eye examinations. The result of the eye examinations was that
there was no recommended treatment by the examining doctor. Dr. Joseph F.
Woschitz opined that Curtis Planck "potentially could benefit from a trial
of
the spectacle Rx...".
D. Petition for detention hearing in 1995.
From 1993 to 1995, the Respondents could not successfully proceed against
the
Plancks, because the Plancks did not do anything wrong. However, because
the
Respondents had targeted the Plancks due to their separate lifestyle and
religious beliefs, they again brought action against the Plancks. On July
10, 1995 the Madison County Office of Family and Children petitioned the
Madison County Superior Court for a detention hearing of the children.
After
said hearing, though the Plancks were not represented by counsel, the
Court
again declined to order the children to be detained.
At a hearing on August 29, 1995, in the Madison County Superior Court,
Division 11, issues were raised as to the home education of the children,
which had not previously been a serious subject of investigation by the
Respondents. At said hearing, Elaine Fuller, an employee of the Respondent
Madison County Division of Family and Children, admitted that she did not
feel "qualified to evaluate their curriculum, it probably should be
someone,
a specialist in the home school program", to which counsel for the Plancks
stated that they had no problem with an expert evaluating their home
education. Apparently the Respondents spoke with educational experts who
confirmed that the Plancks were fully complying with the law, because in
December of 1995, all educational neglect charges in the CHINS Petition
were
dismissed by said Court.
It is clear from the underlying record of Respondents' numerous charges
against the Plancks that they lost all objectivity in their professional
roles. Apparently their personal feelings against a religious family
which chose to home school their children and live a separated lifestyle
clouded their professional objectivity and led to an unbridled assault on
the Planck family. Further, in that levels of funding of Respondent
agencies
is based on the number of persons within the purview of said agencies, a
family with numerous children apparently presented an irresistible target.
E. Planck's exercise of Constitutional rights.
On October 19, 1995, responding to a request to testify, William and Sarah
Planck traveled to the State House in Indianapolis to testify before a
legislative study committee looking at family law issues. During the
testimony, William and Sarah Planck described to State Senator Jane
Leising,
who was Chairman of the Study Committee, as well as to other members of
the
Committee, how the Plancks had been treated by the Respondents, including
providing to the Study Committee details of the "SWAT team" invasion of
their
home earlier in April, 1993.
In thus testifying, the Plancks exercised their Constitutional rights
under
the First Amendment !0 the Constitution of the United States, which
accords
to them the right of free speech, as well as tie right to petition
government
for a redress of grievances. In addition, by so testifying at said
hearing
in October of 1995, the Plancks exercised their rights of free speech
under
Article 1, Section 9 of the Indiana Constitution and Article 1, Section 31
thereof, which accords to Indiana citizens the right to apply to the
General
Assembly for redress of grievances.
The Plancks have reason to believe that their testimony in October of 1995
before the Legislative Study Committee investigating family law issues,
caused them to be further considered by the Respondents as persons who
should be targeted for prosecution should any pretext for further
prosecution
ever arise.
F. Forced entry of Plancks' home with tear gas.
On the afternoon November 26, 1995 (a Sunday), the Plancks placed a 911
call
for their son, Lance Planck, who was not responding well to their physical
care. Lance had been sick, though he had materially recovered on
Thanksgiving
day and ate three full meals with members of his family and friends who
were
visiting. William and Sarah Planck believed that Lance had the flu, or,
because he said his jaws hurt, alternatively was having his six year
molars
coming in. On November 26, 1995, they gave Lance alcohol/water baths to
lower
his temperature, but when they noticed that his temperature went back up
after the alcohol baths and when he couldn't take liquids they called 911.
The ambulance responded to the 911 call and came to the Planck home.
Paramedics examined Lance and took him to Anderson Community Hospital.
When
William and Sarah Planck arrived at the Anderson Community Hospital,
employees of the Respondent Madison County Division of Family and Children
arrived minutes after the Plancks and began to intensively interrogate
William and Sarah Planck as to the whereabouts of the other children.
Even though their son was being examined at Anderson Community Hospital,
which led to great anxiety on the part of William and Sarah Planck,
employees
of Respondent Madison County Division of Family and Children continued to
interrogate William and Sarah Planck and ask them questions attempting to
cause the Plancks to admit that they had somehow caused their son's
illness.
Sarah Planck indicated to Captain John Woods that she did not want to
speak
to him, as she was concentrating on her son Lance. instead of respecting
her
emotional state, Captain Woods hid and eavesdropped while Sarah spoke to
the
nurse about Lance's condition. Captain Woods knew that Sarah Planck did
not
want to speak with him and that she fully intended the medical disclosures
to
be confidential and privileged, so he subversively spied on her to obtain
information otherwise unobtainable. It was eventually determined that
Lance
should be Lifelined to Riley Hospital in Indianapolis, because he was not
responding well to initial treatment at Anderson Community Hospital.
There
was no diagnosis made at Anderson Community Hospital as to the cause of
his
condition.
As William and Sarah Planck were at Anderson Community Hospital, they were
shocked at the insistence of the welfare workers in learning of the
location
of their other children. Because of this treatment and the past
difficulties
with the Respondents, it became obvious that welfare officials would seize
and spirit away the remaining children from the Planck home while William
and
Sarah Planck were in Indianapolis with Lance. This fear eventually was
substantiated, as will be seen below. A trusted person known to the
Plancks
met them at the Hospital and the Plancks asked him to go to their home and
take the children to their daughter Linda's home in Sheridan, Indiana,
while
they were with Lance at Riley Hospital in Indianapolis.
Shortly thereafter and while the Plancks were on their way to
Indianapolis, a
SWAT team of armed police officers went to the Planck home, unscrewed the
back light and physically broke into the rear door of the home, an unknown
number forcing entry into home with their guns drawn. The officers, who
were
wearing rubber gloves, then fired a CS tear gas canister into the enclosed
space in the home although they knew the Planck children would be there.
Neighbors who heard the officers enter the home smelled and were exposed
to
the tear gas, which caused their eyes to burn and dried their throats.
Needless to say, had the Plancks' children remained in the home,
particularly
their three (3) year old daughter, she could have been killed or seriously
hurt by the introduction of CS gas in such a confined space. The officers
failed to give prior warning before the assault on the Planck home, nor
did
they secure the back door upon leaving empty-handed.
The Respondent police officers had no right to forcibly enter the Planck
home
and did not exercise their search of the Planck home in a reasonable
manner
from the moment they entered the residence to the moment they departed it.
Breaking in the Planck door and tear gassing the Planck home was per se
unreasonable, thus violating the rights of the Claimants under the Fourth
Amendment of the United States Constitution.
G. Planck children eventually seized and separated from their parents.
The Planck children were picked up on December 1, 1995 at the Planck's'
older
daughter's home in Sheridan, Indiana, with no warrant. The officer said a
warrant could be faxed later to the police agency, but they did not have
same
at that time. The children asked for their lawyer and were told they were
not
entitled to one. They were told by the Hamilton County Sheriff's
Department
that if there was any trouble, they would call for backup. The children
were
then taken to the Hamilton County Sheriffs Department and interrogated,
with
no lawyer present, without the consent of their parents or a guardian ad
litem, who had previously been appointed. All the children, even three (3)
year old Rita, were taken to Community Hospital in Anderson, examined and
strip searched. Then they were taken to the Youth Opportunity Center in
Muncie where they were interrogated for the second time by Deputy
Prosecutor
Cynthia Sauer, Jack Woods, Diana Cole and others, and Strip searched the
second time. Still no lawyer, parent or ad litem was advised
nor
did any such person grant consent. It was clear by the children's' many
verbal objections and tears that the children did not want to cooperate
and
only wanted to be home with their parents to grieve the loss of their
brother.
No one explained the rationale for further traumatizing minor children by
asking them, for the second time, to physically expose themselves to
strangers, contrary to their religious upbringing and beliefs.
Sarah Planck's sister and brother asked to set in on the interrogation of
the
Planck children in Muncie. They were told by Chief Woods to leave because
the
Plancks' daughter Linda would set in on each interrogation. The Planck's'
daughter Linda then asked to set in on the interrogation of her siblings.
She
was refused by officer Woods, being told that her brother Stephen would
set
in on each interrogation. After Linda left, Stephen asked to set in on his
siblings' interrogations and he was then refused by Officer Woods. Still
no
guardian ad litem was asked to grant consent to said interrogations.
Instead,
the Respondents intentionally isolated the children in order to prevent
anyone from helping them, either legally, emotionally or spiritually. The
Planck children were kept in Muncie until December 4, 1995, when Judge
Brinkman of the Madison County Superior Court ordered them to be released
and
sent home.
On January 9, 1996, the remaining Planck children were again seized by the
instigation of the Respondents and taken from their parents, being placed
with the Danny Holland family. The Planck children were completely
separated from their parents, from whom they had never been separated
before (with the exception of the prior incident) until February 20, 1996,
when they were re-united after counsel for the Plancks petitioned to
modify conditions of bail, which was subsequently granted by the Court.
H. Examples of abuses by welfare workers.
In order to cause the seizure and forced separation of the Planck children
from their parents, the Respondents Diane Cole, Elaine Fuller, Nellie
Elston
and others lied to the Court and falsely created emotional scenarios
demanding detention of the Planck children, which they knew to be untrue
at
the time. These words and acts form an official pattern, policy, custom
and/or practice by which Respondents routinely mislead Madison County
Courts
in order to obtain sought-after orders which would not issue if the truth
were known.
Elaine Fuller stated that the Planks only used one book besides the Bible
for
home education, even though she knew the Plancks had six computers
and
an extensive home education curriculum.
Nellie Elsten testified that William Planck was armed and had said he
would
forcefully defend his family, even though William Planck does not own a
firearm, and never made such an inflammatory statement.
Diane Cole, swore that Lance Planck was contagious, as a basis for seizing
the children, and that she had been informed of same by the Anderson
Community Hospital, even though Lance Planck was not diagnosed by said
hospital with any contagious disease, at any time.
1. William and Sarah Planck Falsely Arrested.
William and Sarah Planck were falsely arrested at the time of their
indictment in that the Prosecutor of Madison County knew at the time
of their indictment that the grand jury proceedings were fatally flawed in
that the charge to the grand jury of the law in the State of Indiana was
not
recorded as required by statute, instead the Prosecutor having
intentionally
turned off the recording device, contrary to law. As a result of the
aforesaid violation of the statute, the indictments are faulty and the
arrests arising therefrom were false.
III. Violation of Claimants' Statutory and Constitutional Rights.
As a result of the acts as set forth herein, the Claimants have suffered
substantial deprivation of their statutory and constitutional rights.
Among
the possible claims which could be brought are the following, but same are
not an inclusive list thereof.
The acts which are made the subject of this Tort Claim Notice applicable
under 42 USC §1983, subjected the Claimants to deprivation under color of
law
of their rights as secured by the Fifth and Sixth Amendments to the
Constitution of the United States they also were deprived of their rights
under the Fourteenth Amendment to the United States Constitution, by which
citizens of the United States may not be deprived of their life, liberty
or
property without due process of law and must enjoy the equal protection of
the law. The acts of the Respondents are in deprivation of said rights as
set
forth in more detail herein.
The acts of the Respondents are not isolated mistakes, but instead part of
the customary pattern, custom, policy and/or practice of the Respondents
as
to persons of religious faith who are residents of the County of Madison,
and
as to persons whose lifestyles are "different'.
A. Violation of Constitutional Rights.
The Planck children's' (Claimants herein) Constitutional rights to the
presence, guidance and parenting of their natural parents were denied by
the
actions of the Respondents. Further, their rights to due process and
equal
protection of law were violated by said actions by Respondents. The
Respondent police officers used excessive force by threatening deadly
force
and by displaying firearms in the presence and within the sight of the
Planck
children. The Planck children have a Constitutional right to not be
victims
of excessive force.
Because no one in the Planck family owned any firearms, and the
Respondents,
consequently, had no reason to believe that they would be met with armed
force at the Planck home, the said officers used excessive, unneeded force
in
arriving at the Planck home on two said occasions with numerous armed
officers, causing intentional infliction of emotional distress to the
Planck
children and reckless disregard of their rights.
The said officers were not properly trained to use their firearms in the
presence of easily traumatized children. They thus breached their duty to
preserve and protect citizens of Madison County. Other Respondents,
including but not limited to welfare and CASA workers, are not properly
trained. The failure to properly train workers is a proximate cause of
the
violations complained of herein.
B. Violation of First Amendment rights.
The Claimants' First Amendment rights of free exercise of religion were
violated by the Respondents who selectively targeted them and selectively
urged the prosecution of them solely due to their religious beliefs
which
they manifested in part, through home education and alternative
medicine.
The Claimants' rights under Article IV of the Constitution of the United
States were denied to them in that their right to be secure in their
persons,
houses, papers and effects against unreasonable searches and seizures was
violated by the intrusion into their borne on two separate occasions by
armed
police officers. Further, the Respondent police officers did not conduct
themselves in a reasonable manner. Duncan vs. Barnes (1979) 5th Cir. 592
F.2d
1336, 1338.
Respondent Prosecuting Attorney, Rodney J. Cummings, violated the
constitutional rights of the claimants, including but not limited, to
their
right to a fair and impartial trial under the Sixth Amendment to the
Constitution of the United States and Section 12 of Article I of the
Constitution of the State of Indiana. Prosecutor Cummings does not enjoy
absolute immunity for actions brought under the Federal Civil Rights Act
(42
USC § 1983) for damages which arise from extrajudicial statements and
actions
made by the prosecutor. Buckle vs. Fitzsimmons (1993), 113 S.Ct. 2606.
When a
prosecutor is dealing with the media he is acting in an administrative
capacity and thus is only entitled to qualified good faith immunity when
he
disseminated extraneous statements to the press designed to gain an unfair
advantage at trial, thus stigmatizing the Claimants' property interests
and
their reputation. When a prosecutor acts in an investigative capacity he
loses his immunity.
The information leaked by Prosecutor Cummings selectively from the Grand
Jury
testimony was testimony by Dr. John Pless, which was incomplete and
inaccurate. In fact, Lance Planck died when his breathing and other
equipment
was terminated, in spite of the denial of the parents for authority to do
so.
Further, Lance Planck was the victim of pneumococcal meningitis, which
caused
him to be in the condition he was in at the time that his life support
systems were terminated. The testimony of Dr. John Pless was secret, and
Prosecutor Cummings knew it to be secret and misleading and could not be
released without a court order at the time that he released it to the
media.
Further, Prosecutor Cummings rushed and pressured Dr. Pless into making
premature findings, before Dr. Pless had an opportunity to review all the
medical records. Cummings may have acted in this manner because of
intense
personal pressure he felt from media attention and represented the
beginning
of a "win at all costs" attitude which continues to this date, even to the
point of ignoring and violating the Planck's' Constitutional rights, to
gain
an unfair advantage.
Warrants obtained by Prosecutor Cummings were based on false affidavits
and
false testimony of Respondents Elston, Cole, Fuller and Woods. Absent said
false averments no basis for the warrants would have existed.
Deputy Prosecuting Attorney Cynthia Sauer defamed the Claimants by
repeatedly
stating to persons who called the Prosecutor's Office from either the
media,
or individual citizens, that "you should see what the documents show from
Riley Hospital where the Plancks didn't even care about their son" and
similar defamatory statements holding the Plancks up to high ridicule and
approbation on a false and a malicious basis.
The acts and actions of the Respondents have materially deprived the
Claimants of their Constitutional rights under both the Indiana and United
States Constitutions for which said Respondents are entitled to
compensation
under applicable statute.
IV. Individuals involved in the Claimants' loss.
Rodney J. Cummings, Individually, and as Prosecuting Attorney of Madison
County, Fiftieth Judicial Circuit; Cynthia Sauer, Individually and as
Deputy
Prosecuting Attorney of Madison County; State of Indiana, Family and
Social
Services Administration; Madison County; Madison County Welfare
Department;
Madison County Division of Family and Children; Child Protective Services
of
Madison County; Nellie Elston, Individually and in her official capacity
as a
case worker for the Madison County Department of Public Welfare; Diana
Cole,
individually and in her official capacity as a case worker for the Madison
County Department of Public Welfare; CASA; Elaine Fuller, individually and
in her official capacity as a case worker for the Madison County
Department
of Public Welfare; Officer Jack Woods, individually and as an officer of
the
Alexandria Police Department; Officers John Doe 1 through John Doe 20,
Individually and as officers of the Alexandria Police Department and the
Madison County Sheriff's Department.
V. Damages.
The Claimants demand compensatory damages for the loss of rights as set
forth
herein in the maximum sum permitted by law and as shown by the evidence at
trial, but not less than the sum of statutory maximum allowed by law for
each
Claimant, arising as a direct and proximate result of the actions by the
Respondents herein. Further, the Claimants demand punitive damages, where
appropriate by law. Ramsey vs. American Air Filter (1985) 7th Cir, 772 F.
2d
1303.
VI. Conclusion
Claimants demand damages as set forth above, and give notice thereof under
1.C. 34-4-16.5, et seq.
VII. Claimants' legal representation.
Claimants are represented herein by John R. Price, Attorney No. 5828-49,
JOHN
PRICE & ASSOCIATES, 9000 Keystone Crossing, Suite 150, Indianapolis,
Indiana
46240, (317) 844-8822, FAX (317) 844-7766 and Katharine C. Liell, Attorney
No. 14433-49, LIELL & McNEIL, 81 East Hill Street, Wabash, Indiana 46992,
(219) 563-3996, FAX (219) 563-4716. All further contact and correspondence
should be directed to Claimants' legal counsel.
JOHN R. PRICE & ASSOCIATES
Attorney No. 5828-49
9000 Keystone Crossing
Suite 150
Indianapolis, Indiana 46240
(317) 844-8822
Katharine C. Liell
Attorney No. 14433-49
LIELL & McNEIL
81 East Hill Street
Wabash, IN 46992
(219) 563-3996
