Thomas et al v. Kaven et al

Filing 116

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 107 Defendant Dr. Anilla Del Fabbro's Rule 59(e) Motion to Amend Judgment and dismissing Defendant Del Fabbro with prejudice (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

LeGINA THOMAS,
TODD THOMAS,
Plaintiffs,
v.

No. Civ. 12-381-JCH-LAM

Dr. MARY KAVEN, Ph.D.,
JILL STRAITS, and
Dr. ANILLA DEL FABBRO, M.D.,
in their individual capacities,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant Dr. Anilla Del Fabbro’s Rule 59(e)
Motion to Amend Judgment (ECF No. 107). On December 13, 2016, this Court entered a
Memorandum Opinion and Order granting summary judgment to Defendants Dr. Mary Kaven
and Jill Straits for lack of personal participation in the alleged constitutional violation, but
denying summary judgment and qualified immunity to Dr. Del Fabbro. See Mem. Op. and Order
26-27, ECF No. 106. Defendant Del Fabbro (“Defendant”) asks the Court to reconsider its
decision denying her summary judgment and enter a new order granting her qualified immunity.
Defendant also filed a Notice under Rule 7.8 of supplemental authorities, informing the Court of
the Supreme Court’s decision in White v. Pauly, 137 S.Ct. 548 (2017). The Court, having
considered the motion, the entirety of the record, and the applicable law, particularly White v.
Pauly, concludes that it erred in denying Dr. Del Fabbro qualified immunity because the law was

not clearly established at the time that placing a medical hold on MT under the circumstances
Defendant confronted violated Plaintiffs’ right to familial association. The Court will therefore
grant the motion to reconsider and dismiss Dr. Del Fabbro from the case.
I.

FACTUAL BACKGROUND
The Court extensively reviewed the record in its Memorandum Opinion and Order and

incorporates those facts herein. See Mem. Op. and Order 1-14, ECF No. 106.
II.

STANDARD
Defendant brings this motion under Federal Rule of Civil Procedure 59(e): “A motion to

alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”
Although the Court has yet to enter judgment for or against Defendant Del Fabbro, every order
short of a final judgment is subject to reopening at the discretion of the district judge. Price v.
Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (quoting Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 12 (1983), and citing Fed. R. Civ. P. 54(b)). “Grounds
warranting a motion to reconsider include (1) an intervening change in the controlling law, (2)
new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion to
reconsider is not appropriate to get a second bite of the apple using the same arguments that were
raised or could have been raised in prior briefing; however, it is proper “where the court has
misapprehended the facts, a party's position, or the controlling law.” Id.
As for the relevant controlling law, qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Anderson v. Creighton, 483 U.S. 635, 638
(1987) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The purpose is to protect against
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officials being unduly inhibited in the discharge of their duties by the fear of personal monetary
liability and litigation. Id. “Officials who are mistaken about the lawfulness of their conduct may
still be entitled to qualified immunity if the mistake is reasonable in light of the applicable law
and the facts known to them at the time.” Gomes v. Wood, 451 F.3d 1122, 1136 (10th Cir. 2006).
If officials of reasonable competence could disagree about the lawfulness of the challenged
conduct, then the defendant is entitled to qualified immunity. Id. (quoting Malley, 475 U.S. at
341). The question is whether a reasonable official in Defendant’s circumstances could have
believed her conduct to be lawful in light of the clearly established law and the information the
officials possessed. Id. (quoting Anderson, 483 U.S. at 641). Although a plaintiff can overcome
the defense without a favorable case directly on point, existing precedent must have placed the
constitutional question “beyond debate.” Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Defendant is entitled to qualified
immunity “if reasonable officers could at least disagree as to the danger of discharging M.T.”
Thomas v. Kaven, 765 F.3d 1183, 1197 (10th Cir. 2014).
III.

ANALYSIS
Defendant contends that the Court erred by misapplying the law and relying on cases that

were at too high a level of generality. Defendant also argues that the Court erred by disregarding
the critical, undisputed fact of MT’s suicidal statements the day before the hold, by relying on
certain other facts in the record that were not material to the qualified immunity defense, and by
using a subjective, rather than objective, test. Defendant asserts that application of the law as set
forth in White v. Pauly compels the conclusion that she is entitled to qualified immunity. Plaintiff
disagrees, arguing that the Court applied the proper objective standard and merely held there was

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sufficient evidence to create a jury question as to whether a reasonable medical official would
have placed a medical hold under the circumstances.
In White v. Pauly, the Supreme Court considered the Tenth Circuit’s denial of qualified
immunity to “an officer who—having arrived late to an ongoing police action and having
witnessed shots being fired by one of several individuals in a house surrounded by other
officers—shoots and kills an armed occupant of the house without first giving a warning.” White,
137 S.Ct. at 549. The Tenth Circuit, in affirming the denial of qualified immunity, relied on
general statements in the case law that (1) the reasonableness of the use of force depends
partially on the level of danger at the precise moment the officer used force; and (2) if a suspect
threatens an officer with a weapon, the officer may use deadly force to prevent escape, and
where feasible, after some warning has been given. Id. at 551. The Supreme Court reversed:
“The panel majority misunderstood the ‘clearly established’ analysis: It failed to identify a case
where an officer acting under similar circumstances as Officer White was held to have violated
the Fourth Amendment.” Id. at 552. It clarified once more that “clearly established law” must not
be defined “at a high level of generality.” Id. (quoting Al-Kidd, 563 U.S. at 742). Instead, the
unlawfulness must be apparent and pre-existing law must have placed the constitutional question
beyond debate. Id. at 551.
In its initial opinion, the Court concluded that factual questions existed as to whether Dr.
Del Fabbro violated Plaintiffs’ liberty interest in familial association. See Mem. Op. and Order
17-22, ECF No. 106. The Court also determined that questions of fact concerning the immediacy
of the need for the medical hold precluded granting qualified immunity to Dr. Del Fabbro,
relying on case law establishing that a state official may not infringe on a parent’s right to the
care and custody of her child without an immediate health or safety risk to that child. See id. at
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22. The Court relied on evidence that, construed in Plaintiffs’ favor, suggested that MT’s
medical condition did not improve between April 29, 2010, and May 6, 2010, yet Dr. Del Fabbro
authorized MT’s release on the latter date after the hospital received notice that Plaintiff’s insurer
would no longer cover MT’s stay. See id. at 22-23. The Court stated that Plaintiffs’ evidence cast
doubt on the sincerity and reasonableness of Dr. Del Fabbro’s belief. See id.
The qualified immunity test, however, asks whether the right was sufficiently clear to a
reasonable official. Thomas, 765 F.3d at 1194. The sincerity of Dr. Del Fabbro’s belief is not
relevant to the second prong of the qualified immunity analysis. Even assuming Dr. Del Fabbro
released the medical hold, not because MT’s condition improved but because her stay was no
longer paid for,1 the ultimate analysis on qualified immunity is the objective view of a reasonable
medical official with the facts known to Dr. Del Fabbro on April 29, 2010, when she placed the
medical hold.
With respect to those known facts, the Court found significant Dr. Kaven’s statements in
her psychological evaluation that MT was more likely than most people her age to demonstrate
generally adaptive interpersonal behavior most of the time and had sufficient psychological
resources to cope adequately with the demands life imposed on her. See Mem. Op. and Order 20,
23, ECF No. 106; Aff. of Samuel Roll, Ph.D ¶¶ 8(B), ECF No. 102-9. Dr. Roll opined that these
statements, and the psychological test data taken as a whole, were inconsistent with a need for
forced hospitalization. See Aff. of Samuel Roll, Ph.D ¶ 8(D), ECF No. 102-9. Although Dr. Del
Fabbro did not rely on the psychological evaluation when placing the hold, the facts construed in
favor of Plaintiffs suggest she was aware of the contents of the evaluation. The Court stands by

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Defendant disputes that she personally knew about the lack of insurance and that insurance played any role in the
decision to place or release the medical hold.

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its previous determination that Dr. Kaven’s statements and Dr. Roll’s opinions create a question
of fact as to the need for the medical hold and whether Dr. Del Fabbro erred. After reconsidering
Dr. Roll’s opinion, however, the Court finds it does not create factual questions going to the
“clearly established law” portion of the analysis. Dr. Roll does not opine that, when considering
all the facts Dr. Del Fabbro had before her, no reasonable official would agree there was an
immediate threat to the safety of MT.
This Court relied in its initial opinion extensively on the Tenth Circuit’s decision
remanding this case for reconsideration. The Tenth Circuit, however, made clear that on a Rule
12(b)(6) motion, Defendants were subject to a more challenging standard of review than would
apply on summary judgment. Thomas, 765 F.3d at 1194. It also noted that the complaint did not
contain facts showing MT’s suicide risk on April 29, 2010. Id. at 1197. On summary judgment, it
is undisputed that Dr. Del Fabbro knew that MT stated on April 28, 2010 that if she were to go
home, her suicidal ideation would be 8 out of 10 for the likelihood of hurting herself and 5 or 6
for wanting to kill herself. See Mem. Op. and Order 7, ECF No. 106.
After reconsidering the summary judgment record and existing precedent, the Court
concludes that this undisputed fact makes this case a unique one, subject to the qualified
immunity defense. Cf. White, 137 S.Ct. at 552 (stating that important indication that defendant
did not violate clearly established right is where case presents a unique set of facts and
circumstances). Plaintiffs did not provide, and the Court did not find, a case similar to the one
here, as White v. Pauly instructs is necessary to overcome the defense. See id. Instead, in initially
finding the law clearly established, this Court relied on the cases of Suasnavas v. Stover, 196 F.
App’x 647 (10th Cir. Aug. 25, 2006), and Roska ex rel. Roska v. Peterson, 328 F.3d 1230 (10th

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Cir. 2003), neither of which involved placing a medical hold on a patient threatening suicide. See
Mem. Op. and Order 24, ECF No. 106.
The case of Suasnavas involved an allegation that child welfare social workers violated
plaintiffs’ rights to familial association in connection with a series of state-court child welfare
proceedings in which, among other things, defendants allegedly (i) falsely accused Arnold
Luethje, the plaintiff’s step-father, of sexually molesting the plaintiff mother when she was a
child, (ii) then removed plaintiff’s child from her custody based on the false assertion that she
endangered her child by leaving her in Mr. Luethje’s home, and (iii) threatened plaintiff that her
daughter would never be returned to her if she continued to associate with the Luethjes. See
Suasnavas, 196 F. App’x at 650. The Tenth Circuit concluded, after reviewing the allegations of
the complaint, that defendants were not entitled to a Rule 12(b)(6) dismissal based on their
qualified immunity defense because the plaintiff mother alleged that defendants constructively
terminated her clearly established parental rights without a hearing or proper justification and
that defendants acted with the intent to interfere with her relationship with her daughter. See id.
at 656-57.
In Roska, school employees reported to Utah’s Division of Child and Family Services
that they were concerned about a student’s health, providing information on numerous instances
in which the student’s mother reported that her son had various, serious medical disorders,
including one suffered by only 10 or 100 people in the world. Roska, 328 F.3d at 1237-38. A
case worker suspected the mother suffered from Munchausen Syndrome by Proxy, a disorder in
which a mother inflicts harm upon her children to gain sympathy and attention of medical
personnel, and a decision was made to remove the child from the home. Id. at 1238. The case
worker later admitted, however, that the boy was not in imminent danger of death. Id. The Tenth
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Circuit concluded that plaintiffs pled sufficient facts to demonstrate that emergency
circumstances did not exist to justify the boy’s immediate removal from the home without notice
or a hearing, based on the mere possibility of danger, and denied qualified immunity to
defendants. See id. at 1245-46, 50.
To support their position that Dr. Del Fabbro had fair warning that her actions violated
their constitutional rights, Plaintiffs also relied on the following familial association cases:
Santosky v. Kramer, 455 U.S. 745, 768-70 (1982) (holding that “fair preponderance of the
evidence” standard in parental rights termination proceedings violated due process); PJ ex rel.
Jensen v. Wagner, 603 F.3d 1182, 1198-99 (10th Cir. 2010) (supporting general proposition of
law that forced separation of parent from child is serious impingement, but determining there
was no constitutional violation where state had an interest in safeguarding child’s life, all
medical evidence pointed to serious medical condition requiring chemotherapy, and child was
never physically removed from custody to obtain that treatment); Lowery v. County of Riley, 522
F.3d 1086, 1090-92 (10th Cir. 2008) (holding that defendants were entitled to qualified immunity
on claim that plaintiff’s wrongful arrest, conviction, and incarceration interfered with his right to
familial association with his daughter because there was no evidence that any defendants
directed their conduct at familial relationship); J.B. v. Washington County, 127 F.3d 919, 927-28
(10th Cir. 1997) (concluding that county officials’ physical removal of child from her home for
period of almost 18 hours to investigate report of child sexual abuse did not impermissibly
interfere with plaintiffs’ right of familial association); Griffin v. Strong, 983 F.2d 1544, 1548-49
(10th Cir. 1993) (holding that officer did not violate plaintiff’s familial associational rights with
her husband by lying to her that her husband confessed to child abuse); and Trujillo v. Board of
County Comm’rs, 768 F.2d 1186, 1187, 1189-90 (10th Cir. 1985) (recognizing right to familial
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association, but affirming dismissal of claim based on wrongful death of plaintiffs’ son and
brother while incarcerated in jail for failure to allege intent to interfere with the particular
relationship).
None of the cited cases have similar enough circumstances to place every reasonable
medical doctor on notice that placing a medical hold on a minor who threatened suicide should
she be released the next day would amount to an unlawful intrusion of the right to familial
association when conflicting medical evidence existed that indicated the threat might be hollow.
Cf. Stonecipher v. Valles, 759 F.3d 1134, 1144-45 (10th Cir. 2014) (granting officer qualified
immunity on unlawful search and entry claim because, although officer was perhaps negligent in
investigation, officer had conflicting evidence, some of which supported officer’s assessment of
probable cause); Gomes, 451 F.3d at 1135-38 (after concluding factual issues existed as to
whether defendants had reasonable suspicion to remove child from parent’s custody, based on
pediatrician’s testimony that child’s fracture was consistent with parent’s assertion that child
injured herself falling from bed and his report that he was comfortable allowing parent to take
child home, Tenth Circuit granted social worker qualified immunity because reasonable official
could have believed there was immediate threat to child’s safety based on other evidence –
significant head injury to the child, questionable explanation from parents, and delay in seeking
treatment). The Court now concludes it relied on cases with too high a level of generality when
denying qualified immunity. Cf. White, 137 S.Ct. at 552 (noting that Tenth Circuit failed to
identify case where officer acting under similar circumstances as Officer White was held to have
violated Fourth Amendment); Garcia v. Escalante, No. 15-2058, 2017 WL 443610, at *7-9 (10th
Cir. Feb. 2, 2017) (unpublished opinion) (reversing district court’s denial of qualified immunity
to officer who arrested suspect for possession of hydrocodone without valid prescription who
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presented 13-14 month old prescription, because none of the cases relied on by district court
involved arrest of suspect for possession of controlled substances, much less a suspect who
contemporaneously presented arresting officers with prescription for drug at issue); Aldaba, 844
F.3d at 879 (holding that no cases presented a sufficiently similar situation to say that every
reasonable officer would know Fourth Amendment condemned using Taser to avoid full-out
confrontation with patient whose life depended on immediate treatment); Kirkpatrick v. County
of Washoe, 843 F.3d 784, 793 (9th Cir. 2016) (granting social workers qualified immunity where
they removed child from parent’s custody without warrant because “none of the cases from this
court explain when removing an infant from a parent's custody at a hospital to prevent neglect,
without a warrant, crosses the line of reasonableness and violates the Fourth Amendment”).
IV.

CONCLUSION
Plaintiffs’ evidence creates factual questions as to whether Defendant intended to deprive

Plaintiffs of their protected relationship with MT and whether the state’s interest was sufficiently
strong to justify an intrusion into their relationship. However, other undisputed evidence in the
record – specifically, MT’s suicidal threats – could support a reasonable official’s conclusion
that there was an immediate danger to MT. Most significantly, Plaintiffs failed to identify a case
where a medical official acting under similar circumstances was held to have violated the
Constitution.
Physicians faced with a child threatening suicide if released are placed in a difficult
situation in which the failure to act to prevent their patients’ discharge may have unthinkable
consequences, and therefore, courts afford physicians with some discretion when they seek to
protect a child whose safety may be at risk. Cf. Gomes, 451 F.3d at 1130 (explaining that social

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workers should be afforded some discretion when they seek to protect a child from harm by
removing the child from the home because of the “unthinkable consequence[s]” of failing to act).
Granting qualified immunity supports the policies underlying the doctrine of protecting the
public from unwarranted timidity by public officials and reducing the chance that lawsuits will
distract from the performance of public duties. See id. at 1138. For all the foregoing reasons, the
Court erred in not granting Dr. Del Fabbro qualified immunity on the “clearly established law”
prong of the analysis.
IT IS THEREFORE ORDERED that
1. Defendant Dr. Anilla Del Fabbro’s Rule 59(e) Motion to Amend Judgment (ECF No.
107) is GRANTED.
2. Defendant Del Fabbro is entitled to qualified immunity and will be DISMISSED
WITH PREJUDICE from the case.

____________________________________
UNITED STATES DISTRICT JUDGE

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