Halley v. Oklahoma State Department of Human Services et al
Filing
133
OPINION AND ORDER by District Judge James H. Payne: denying 54 Motion to Dismiss; denying 55 Motion to Dismiss; denying 60 Motion to Dismiss (cjt, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
FRANK HALLEY, as Next Friend
of J.H., a minor child,
)
)
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Plaintiff,
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vs.
)
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STATE OF OKLAHOMA ex rel. the
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OKLAHOMA STATE DEPARTMENT OF )
HUMAN SERVICES, et al.,
)
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Defendants.
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Case No. 14-CV-562-JHP
OPINION AND ORDER
Before the Court are (1) Defendant Oklahoma Department of Human Services’ Motion to
Dismiss First Amended Complaint (Doc. No. 54), (2) Defendant Sara Huckaby’s Motion to
Dismiss (Doc. No. 55), and (3) Defendant Independent School District No.4 of Bryan County,
Oklahoma’s Motion to Dismiss (Doc. No. 60). After consideration of the briefs, and for the
reasons stated below, the Motions to Dismiss are DENIED.
BACKGROUND
Plaintiff Frank Halley filed this action as the next friend of J.H., a minor, to recover
against the defendants for alleged violations of the Fourth and Fourteenth Amendments to the
United States Constitution. Plaintiff also brings state law claims pursuant to Bosh v. Cherokee
County Governmental Building Authority, 305 P.3d 994 (Okla. 2013) and the Oklahoma
Governmental Tort Claims Act (“OGTCA”), OKLA. STAT. tit. 51, §§ 151 et seq. The First
Amended Complaint names as defendants (1) the State of Oklahoma ex rel. the Oklahoma State
Department of Human Services (“OKDHS”), (2) Sara Huckaby (DHS employee), (3) Ken
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Golden (Sheriff of Bryan County, Oklahoma), (4) Nathan Callaway (employee of Bryan County,
Oklahoma), (5) the City of Colbert, Oklahoma, (6) Jeff Goerke (Chief of Police of the City of
Colbert), and (7) Independent School District No. 4 of Bryan County, Oklahoma (“School”).
According to the First Amended Complaint, on February 12, 2014, detective Nathan
Callaway and an OKDHS employee interviewed Brittany Halley about alleged physical abuse
between Brittany and J.H.’s father. (Doc. No. 48, ¶ 7). The interview did not reveal that sixyear-old J.H. was in immediate danger of imminent harm, and OKDHS knew that J.H. was living
at that time with an appropriate caregiver. (Id. ¶ 11). Two days later, on February 14, 2014, Jeff
Goerke picked up J.H. from his school without “trustworthy or verified information, warrant,
lawful reason, legal process, court order, affidavit or other paperwork that would authorize or
justify the removal of J.H. from the school.” (Id. ¶¶ 13-14). Despite the lack of authority,
“employees of School retrieved J.H. and voluntarily presented him to Goerke.” (Id. ¶ 14). The
School “had actual knowledge that J.H. did not want to leave with Goerke or ride in his police
car, and they had actual knowledge that Goerke had not presented any lawful basis to remove
J.H. and force him to leave school property,” yet School employees “knowingly allowed Goerke
to force J.H. into his police car and drive away.” (Id. ¶ 17). Although J.H. unequivocally
objected to the removal, Goerke transported J.H. in his police car to ABC House in Durant,
Oklahoma, approximately thirteen miles from the elementary school. (Id. ¶ 15, 18).
At the ABC House, Sara Huckaby and/or Callaway interrogated J.H. about his father for
approximately one hour in an attempt “to solicit information to either file criminal charges
against [J.H.’s father], or to break apart his family, thus directly targeting the familial
relationship.” (Id. ¶¶ 20, 26). Plaintiff alleges J.H.’s removal and interrogation stemmed from a
failed criminal prosecution against J.H.’s father.
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(Id. ¶ 23).
Specifically, “the substantial
embarrassment stemming from the failure to obtain a conviction caused OKDHS and Bryan
County officials, including Huckaby and Callaway, to target [J.H.’s father] and his family for
retaliation in a vain effort to rehabilitate their own credibility and to further their own political
and professional ambitions.” (Id.).
Plaintiff alleges Huckaby and Callaway “had actual
knowledge that state law did not permit them to unilaterally take custody of J.H. under these
circumstances,” yet used Goerke “to seize J.H. without warrant or probable cause.” (Id. ¶ 24).
After Huckaby and/or Callaway’s efforts to obtain “information necessary to pursue” J.H.’s
father failed, Callaway transported J.H. back to his school. (Id. ¶ 27). J.H.’s caretaker learned of
these events only upon picking up J.H. from school at the end of the school day. (Id. ¶ 28). As a
result of the seizure and interrogation, J.H. has allegedly suffered stress and trauma requiring
professional counseling. (Id. ¶ 29).
Plaintiff asserts a total of five causes of action against seven defendants. Relevant to the
motions at issue, Plaintiff seeks: (1) relief against OKDHS based on respondeat superior
liability for “unreasonable seizures or excessive force” in violation of Article 2 § 30 of the
Oklahoma Constitution and deprivation of J.H.’s due process rights in violation of Article 2 § 7
of the Oklahoma Constitution; (2) relief under 42 U.S.C. § 1983 against Huckaby for violation of
J.H.’s rights under the Fourth and Fourteenth Amendments to the United States Constitution; and
(3) recovery against School under the OGTCA for breach of its “duty of reasonable care to
ensure that minor children are not removed from the custodial care in violation of the law or
without proper legal authority” by “removing or allowing the removal of J.H. from the custodial
care of his classroom without proper legal authority.” (Id. ¶¶ 30-45).
Defendants OKDHS, Huckaby, and School have now moved to dismiss Plaintiff’s claims
against them pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim
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upon which any relief can be granted as a matter of law. Huckaby also seeks dismissal based on
qualified immunity. School also seeks dismissal pursuant to Federal Rule of Civil Procedure
12(b)(1) based on sovereign immunity.
DISCUSSION
In considering a Rule 12(b)(6) motion, the court must accept all well-pleaded allegations
of the complaint as true, and must construe them in the light most favorable to the plaintiff. See
Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).
To withstand a motion to dismiss, a complaint must contain enough allegations of fact “to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). The Tenth Circuit has stated that “plausibility” in this context refers “to the scope of the
allegations in the complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from
conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Twombly, 550 U.S. at 569). The plaintiff bears the burden to frame “a complaint with enough
factual matter (taken as true) to suggest” that he or she is entitled to relief. Twombly, 550 U.S. at
556. “A pleading that offers ‘labels and conclusions’ or a formulaic recitation of the elements of
a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555, 557).
I.
Motion of OKDHS
Plaintiff asserts two respondeat superior claims against OKDHS as a result of Huckaby’s
actions: (1) violation of Article 2 § 30 of the Oklahoma Constitution for “unreasonable seizure”
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or “excessive force” and (2) violation of Article 2 § 7 of the Oklahoma Constitution for
“unlawful targeting and interference with the familial relationship.”
With respect to these claims, Plaintiff seeks to rely on the Oklahoma Supreme Court’s
decision in Bosh v. Cherokee County Building Authority, 305 P.3d 994 (2013). In Bosh, the
court recognized a private right of action for excessive force based on Article 2 § 30 of the
Oklahoma Constitution, notwithstanding the limitations of the OGTCA. It further recognized the
doctrine of respondeat superior could apply as an available theory of recovery against municipal
employers for claims under that provision.
OKDHS argues Bosh, which involved a claim for excessive force by a corrections officer
against a handcuffed detainee, is factually distinguishable and should not be extended to the
circumstances pled in this case. OKDHS cites several cases examining Bosh, in which the court
concluded the Bosh rule and rationale did not extend to different factual circumstances. See
Hedger v. Kramer, 2013 WL 5873348, at *3 (W.D. Okla. Oct. 30, 2013) (declining to extend
Bosh rule to DHS for alleged “seizure” by placing child in foster care); accord Bishop v.
Oklahoma, 2013 WL 6192114, at *3-4 (W.D. Okla. Nov. 26, 2013); Koch v. Juber, 2014 WL
2171753, at *3 (W.D. Okla. May 23, 2014) (declining to extend Bosh rule to cover due process
claims, noting that “Bosh does not serve to create a private right of action for all claims arguably
arising under the Oklahoma Constitution.”).
Plaintiff argues the Bosh rule extends beyond claims of excessive force occurring inside a
jail or prison and recognizes a private right of action for all state constitutional violations. In
support, Plaintiff cites White v. City of Tulsa, 979 F. Supp. 2d, 1246 (N.D. Okla. 2013), in which
an Oklahoma district court favored a more expansive approach to Bosh claims. See id. at 1249
(“The Court interprets Bosh to recognize a private cause of action for violations of the rights
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protected by Article 2, § 30, rather than merely recognizing a private right of action for excessive
force.”).
Here, Oklahoma state law governs the dispute, and “[i]t is unclear how expansively the
Oklahoma Supreme Court will apply the rule and rationale it adopted in Bosh.” Hedger, 2013
WL 5873348, at *3. In the absence of an authoritative pronouncement from the state’s highest
court, this Court’s task is to predict how the state’s highest court would rule. Daitom, Inc. v.
Pennwalt Corp., 741 F.2d 1569, 1574 (10th Cir. 1984). “This court must also follow any
intermediate state court decision unless other authority convinces [it] that the state supreme court
would decide otherwise.” Id. (citing Delano v. Kitch, 663 F.2d 990, 996 (10th Cir. 1981)).
“[T]he policies underlying the applicable legal doctrines, the doctrinal trends indicated by these
policies, and the decisions of other courts may also inform this court’s analysis.” Id. (citing
Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981)).
Both OKDHS and Plaintiff cite to a recent decision from the Oklahoma Court of Civil
Appeals in support of their respective positions: GJA v. Oklahoma Department of Human
Services, 347 P.3d 310 (Okla. Civ. App. 2015). GJA examined the applicability of Bosh claims
under a respondeat superior theory to DHS for child abuse committed by private actors. The
plaintiff in GJA alleged that “Daughter was sexually abused and Son was abused by withholding
needed medical treatment . . . [which] DHS was informed about . . . and the agency and its
employees did nothing [and that] DHS and its employees did not report the sexual abuse as
required by law.” Id. at 312. The plaintiffs filed Bosh claims against DHS under these facts for
violation of their rights under the Oklahoma Constitution. DHS moved to dismiss the Bosh
claims under Rule 12(b)(6) for failure to state a claim. The trial court dismissed the claim, and
the Civil Court of Appeals affirmed on appeal.
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In affirming dismissal of the Bosh claim, the Court of Civil Appeals in GJA nonetheless
noted, “[t]he Bosh case is not limited to its facts and specific holding. It does stand for the
proposition that the Supreme Court recognizes a broader scope of actionable claims based upon
violations of constitutional rights.” Id. at 316. The court in GJA cautioned, however, that a
violation of constitutional rights must occur for a Bosh claim to lie. Id. Accordingly, the court
concluded:
This Court interprets Bosh as providing a cause of action in order to protect
against violations of constitutional rights and guarantees in general rather than
being limited to the specific constitutional right involved in the case.
Nevertheless, not every misfeasance, malfeasance and nonfeasance amounts to a
violation of constitutional rights. In its role as gatekeeper, the trial court
determines whether the alleged conduct might reasonably be determined to be of
the character of a violation of constitutional rights. Here, the alleged action and
inaction on the part of DHS might constitute gross negligence, but they do not rise
to the level of a violation of constitutional rights.”
Id. at 318 (emphasis added).
Thus, the key observation in GJA is that, while Bosh may provide a cause of action for
violations of constitutional rights generally, the state may not be responsible for failure to
comply with its reporting obligations or to protect an individual’s safety against all possible
danger. This conclusion provides appropriate limits on Bosh claims and comports with U.S.
Supreme Court decisions addressing similar concerns. See DeShaney v. Winnebago County
Dep’t of Social Servs., 489 U.S. 189, 201 (1989) (“the State does not become the permanent
guarantor of an individual’s safety by having once offered him shelter.”); Town of Castle Rock,
Colorado v. Gonzales, 545 U.S. 748, 768 (2005) (no state liability for failure to comply with
state law obligating law enforcement to enforce restraining order). The Court finds GJA to be
persuasive authority regarding the limits of Bosh.
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In this case, the Court disagrees with OKDHS’ argument that Plaintiff’s allegations
against it amount to no more than claims of negligence, which are not actionable Bosh claims
under GJA. Unlike GJA, this case does not involve failure to report actions by third parties or
allegations of omission by OKDHS. Rather, Plaintiff alleges affirmative, intentional acts by
Defendant Huckaby and her employer OKDHS in having J.H. removed from school without
permission or legal authority. Plaintiff alleges Huckaby “had actual knowledge that state law did
not permit [her] to unilaterally take custody of J.H. under these circumstances,” yet she used
Goerke to seize J.H. without warrant or probable cause.” (Doc. No. 48, ¶ 24). Plaintiff alleges
there was no immediate threat of harm to J.H., and Huckaby participated in the seizure and
interrogation solely to retaliate against J.H.’s father for unrelated criminal conduct. (Id. ¶¶ 11,
23). Plaintiff alleges Huckaby attempted to solicit information from J.H. about his father “to
either file criminal charges against [J.H.’s father], or to break apart his family, thus directly
targeting the familial relationship.” (Id. ¶¶ 20, 26). These allegations are sufficient to state
plausible claims for violation of Article 2 § 30 and Article 2 § 7 of the Oklahoma Constitution.
In its reply brief, OKDHS additionally argues that Plaintiff’s Bosh claims should be
dismissed because Plaintiff submitted an OGTCA notice to OKDHS on February 5, 2015. (See
Doc. No. 6-1 (OGTCA notice)). OKDHS correctly states that the Oklahoma Supreme Court has
limited Bosh claims to those that may be brought against a municipality only when a cause of
action under the OGTCA is not available. Perry v. City of Norman, 341 P.3d 689, 689 (Okla.
2014). However, the Court will not comment on the availability of an OGTCA claim against
OKDHS in this case, because this point was raised only in OKDHS’ response brief, which is
improper. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (“This court does not
ordinarily review issues raised for the first time in a reply brief.”).
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Even if OKDHS’s argument were properly raised, the Court is not convinced the
submission of an OGTCA notice would suffice to bar Plaintiff’s Bosh claims. Plaintiff has not
pursued an OGTCA claim against OKDHS, and OKDHS does not make any effort to explain
how Plaintiff’s allegations are in fact remediable under the OGTCA. For this reason, the Order
cited in OKDHS’ notice of supplemental authority, Combs v. State of Oklahoma, Case No. CIV15-11-RAW (E.D. Okla. August 27, 2015) (filed as Doc. No. 76-1), is distinguishable. In
Combs, the plaintiff filed both OGTCA and Bosh claims against DHS for the same conduct.
Thus, it was plain to the court that “plaintiff does have the [O]GTCA remedy available.” Id. at 6.
It is not so plain to this Court that an OGTCA remedy is available to Plaintiff here, and the Court
declines to engage in a sua sponte analysis of whether an OGTCA remedy is available under the
alleged facts. Accordingly, the motion of OKDHS is denied.
II.
Motion of Huckaby
Plaintiff asserts two causes of action against Huckaby: (1) violation of J.H.’s Fourth
Amendment rights for unreasonable seizure, actionable pursuant to 42 U.S.C. § 1983 and (2)
violation of J.H.’s Fourteenth Amendment rights for her “surreptitious seizure and interrogation
of J.H.” that “imposed an undue burden on the Plaintiff’s associational rights,” actionable
pursuant to 42 U.S.C. § 1983. (Doc. No. 48, ¶¶ 30-35). Huckaby seeks dismissal of both counts
against her, for failure to state a claim and based on qualified immunity.
A.
Failure to State a Claim
First, Huckaby submits both counts against her fail to state a claim upon which any relief
can be granted. To state a claim for relief in a § 1983 action, a plaintiff must establish the
defendant’s conduct deprived him of a federal constitutional or statutory right and the alleged
deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
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U.S. 40, 49-50 (1999). Huckaby argues the allegations against her are so “broad and general that
they encompass a wide swath of innocent conduct,” and the allegations amount to no more that
“labels and conclusion” or “formulaic recitation of the elements” of a § 1983 claim. (Doc. No.
55, at 9).
However, the Court finds Plaintiff’s factual allegations to be sufficient to state a plausible
claim for relief under § 1983.
As Plaintiff points out, a child’s Fourth and Fourteenth
Amendment rights may be implicated when he is unlawfully seized by state actors from a safe
place. See J.B. v. Washington Cnty., 127 F.3d 919, 928-29 (10th Cir. 1997) (county employees’
temporary removal of child from her home for questioning regarding possible abuse implicated
child’s Fourth Amendment rights). Plaintiff alleges Huckaby, a DHS employee, had “actual
knowledge that state law did not permit [her] to unilaterally take custody of J.H. under [the]
circumstances,” yet Huckaby and/or Callaway “used Goerke to intentionally circumvent state
law to seize J.H. without warrant or probable cause.” (Doc. No. 48, ¶ 24). Plaintiff alleges
Huckaby interrogated J.H. at ABC House about his father without the knowledge or permission
of any guardian or caretaker, in an attempt to solicit information about J.H.’s father to file
criminal charges against him or to break apart his family. (Id. ¶¶ 19-20, 26). Plaintiff further
alleges Huckaby and others targeted J.H.’s father and his family for retaliation, following a failed
attempt to convict J.H.’s father on unrelated criminal charges. (Id. ¶ 23). Finally, Plaintiff
alleges J.H. suffered “stress, trauma and damages induced and caused by the Defendants.” (Id. ¶
29). Taken as true, these allegations are sufficient to nudge Plaintiff’s § 1983 claims “across the
line from conceivable to plausible.” Robbins, 519 F.3d at 1247 (quotation omitted).
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B.
Qualified Immunity
Second, Huckaby argues she is entitled to qualified immunity from personal liability for
any § 1983 claim alleged against her in this case. “The doctrine of qualified immunity shields
government officials performing discretionary functions from liability for damages ‘insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Accordingly, in a § 1983 action in
which the defense of qualified immunity from individual liability is at issue, “[t]he Twombly
standard may have greater ‘bite,’ appropriately reflecting the special interest in resolving the
affirmative defense of qualified immunity at the earliest stage of a litigation.” Robbins, 519 F.3d
at 1249 (quotation omitted). Therefore, to “nudge their claims across the line from conceivable
to plausible in this context,” the plaintiff must allege facts sufficient to show (1) the defendant’s
conduct violated their constitutional rights, and (2) those rights were “clearly established” at the
time of the defendant’s alleged misconduct. Id. (quotation omitted); Saucier v. Katz, 533 U.S.
194, 201-02 (2001).
The plaintiff bears the burden of convincing the court that the law at the time of
defendant’s actions was clearly established. Hilliard v. City and County of Denver, 930 F.2d
1516, 1518 (10th Cir. 1991).
To do so, the plaintiff “must demonstrate a substantial
correspondence between the conduct in question and prior law allegedly establishing that the
defendant’s actions were clearly prohibited.” Id. (quotation omitted). Generally, for a right to be
“clearly established,” “there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to be as the
plaintiff maintains.” Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008) (quotation
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omitted).
“The plaintiff is not required to show, however, that the very act in question
previously was held unlawful in order to establish an absence of qualified immunity.” Weigel v.
Broad, 544 F.3d 1143, 1153 (10th Cir. 2008) (quotation omitted). Qualified immunity protects
“all but the plainly incompetent or those who knowingly violate the law,” and immunity may be
denied only “if, on an objective basis, it is obvious that no reasonably competent officer would
have concluded” that the conduct was lawful at the time the defendant acted. Malley v. Briggs,
475 U.S. 335, 341 (1986).
1.
Fourth Amendment
Here, Plaintiff alleges deprivation of J.H.’s Fourth Amendment right to be secure against
unreasonable government seizures without probable cause.
Specifically, Plaintiff alleges
Huckaby used a police officer to remove six-year-old J.H. from his school, without lawful
authority and over J.H.’s objection, and transport him to a separate location thirteen miles from
J.H.’s school. (Doc. No. 48, ¶¶ 18, 24). Plaintiff alleges OKDHS had no reason to believe J.H.
was in immediate danger of imminent harm at his school, and thus no reason existed to remove
J.H. from there. (Id. ¶¶ 11, 24). Plaintiff alleges Huckaby interrogated J.H. for an hour about his
father, in an attempt to obtain unrelated criminal evidence against his father. (Id. ¶¶ 20, 26). The
interrogation is alleged to be part of a retaliation scheme by Huckaby and other officials against
J.H.’s father, resulting from a failed criminal prosecution against him. (Id. ¶ 23).
Plaintiff’s specific factual allegations suffice to allege a Fourth Amendment claim under
clearly established law. “A person is seized within the meaning of the Fourth Amendment when
‘a reasonable person would believe that he or she is not “free to leave.”’” Roska ex rel. Roska v.
Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003) (quoting Florida v. Bostick, 501 U.S. 429, 435
(1991)). As discussed above, the Tenth Circuit has recognized the Fourth Amendment rights of
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minor children to be free from unreasonable seizure since at least 1997. See J.B. v. Washington
Cnty., 127 F.3d 919, 928-29 (10th Cir. 1997). Since at least 2003, the Tenth Circuit has
recognized “[t]here is no ‘social worker’ exception to the Fourth Amendment.” Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003) (citing Ferguson v. City of Charleston, 532
U.S. 67, 76 n.9 (2001)). In 2006, the Tenth Circuit found a child may be seized from a home
when there is “reasonable suspicion of an immediate threat to the safety of the child,” taking into
account “all relevant circumstances, including the state’s reasonableness in responding to a
perceived danger, as well as the objective nature, likelihood, and immediacy of danger to the
child.” Gomes v. Wood, 451 F.3d 1122, 1131 (10th Cir. 2006) (quotation omitted). Here, no
such reasonable suspicion of an immediate threat of harm to J.H. is alleged. Rather, Plaintiff
alleges J.H. was seized and taken to another location several miles away without any lawful
authority or reasonable suspicion of any threat, immediate or otherwise, to J.H.’s safety.
Huckaby argues the Oklahoma Children’s Code authorizes OKDHS social workers to
interview a possible child abuse or neglect victim “at any place, including, but not limited to the
child’s school” without prior permission from the person responsible for the child’s care and
safety. OKLA. STAT. tit. 10A, § 1-2-105(B)(1). Huckaby’s argument is not persuasive. Plaintiff
does not allege J.H. was seized and interrogated in relation to a child abuse investigation. To the
contrary, Plaintiff alleges Huckaby acted with a conspiratorial motive unrelated to J.H.’s safety,
imminent or otherwise, and that she acted in the absence of any legal authority at all. (Doc. No.
48, ¶¶ 23-24).
Moreover, Huckaby’s cited authority for interviewing J.H., though it does
authorize interviewing a child “at any place,” does not authorize removing a child from school in
order to interview him at a place of her choosing. The Court cannot reasonably read such
authority into the statute, as such a reading would authorize OKDHS workers to seize and
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transport a child to any location for the purpose of an interview. This cannot be the statute’s
intent. Plaintiff alleges no immediate threat of imminent harm to J.H. existed that would have
allowed Huckaby to direct J.H.’s lawful removal from school. Cf. OKLA. STAT. tit. 10A, §§ 1-4201(A)(1)(a)-(c) (permitting a peace officer to take a child into custody without court order if he
has “reasonable suspicion” that the child is in need of immediate protection due to an “imminent
safety threat”). Accordingly, Huckaby is not shielded from liability with respect to Plaintiff’s
Fourth Amendment claim. Her request for qualified immunity from this claim is denied.
2.
Fourteenth Amendment
Plaintiff also alleges a substantive due process claim against Huckaby under the
Fourteenth Amendment. Specifically, Plaintiff alleges violation of J.H.’s right to family integrity
and association. When a substantive due process claim under § 1983 is at issue, the court must
examine “whether the challenged government action shocks the conscience of federal judges.”
Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006) (quotation omitted). In this regard, “a
plaintiff must do more than show that the government actor intentionally or recklessly caused
injury to the plaintiff by abusing or misusing government power.” Id. (quotation omitted).
A plaintiff establishes a claim for deprivation of the right to familial association under the
Fourteenth Amendment by alleging that “(1) defendants intended to deprive them of their
protected relationship with their [family member], and that (2) balancing the [plaintiff’s] interest
in their protected relationship with [the family member] against the state’s interest in [the
child’s] health and safety, defendants either unduly burdened plaintiffs’ protected relationship, or
effected an ‘unwarranted intrusion’ into that relationship.” Thomas v. Kaven, 765 F.3d 1183,
1196 (10th Cir. 2014) (internal citations omitted). However, “[w]hether the right to familial
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association has been violated requires the court to conduct a fact-intensive balancing test not
ordinarily suitable for the Rule 12(b)(6) stage.” Id.
Huckaby argues Plaintiff fails to allege a violation of the Fourteenth Amendment,
because “[t]he right to family integrity clearly does not include a constitutional right to be free
from child abuse investigations.” Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993). While
Huckaby correctly states the law, J.H.’s seizure and interrogation was allegedly unrelated to any
child abuse investigation. Rather, Plaintiff specifically alleges Huckaby intended to damage
J.H.’s familial relationship by interrogating J.H. about his father, and that no health or safety
concerns regarding J.H. were at stake. (Doc. No. 48, ¶¶ 7-12, 26). Indeed, Plaintiff alleges two
days passed between Brittany Halley’s report of abuse and J.H.’s interrogation, which supports
the reasonable inference that OKDHS did not believe J.H.’s welfare was at imminent risk.
Plaintiff’s allegations that J.H. suffered trauma and needed counseling also support the
reasonable inference that Huckaby’s conduct either unduly burdened or effected an unwarranted
intrusion into J.H.’s relationship with his father. This law was clearly established by 2014. See,
e.g., Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1175 (10th Cir. 2013) (“In order to show
deprivation of the right to familial association, a plaintiff must show that the state actor intended
to deprive him or her of a specially protected familial relationship.”); PJ ex. rel. Jensen v.
Wagner, 603 F.3d 1182, 1199 (10th Cir. 2010) (“The purpose of the balancing test is to ascertain
whether a defendant’s conduct constitutes an undue burden on the plaintiff’s associational
rights.”); Trujillo v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 768 F.2d 1186, 1190 (10th Cir.
1985) (“[W]e conclude that an allegation of intent to interfere with a particular relationship
protected by the freedom of intimate association is required to state a claim under section
1983.”).
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Huckaby also argues her alleged conduct is not “conscience shocking.” The Court
disagrees. Huckaby’s alleged actions, if proven true, do indeed “shock the conscience” of the
Court and demonstrate actions that no reasonably competent social worker would believe was
lawful. Under the circumstances, Huckaby’s alleged action were either “plainly incompetent” or
done in knowing violation of the law. Hunter v. Bryant, 502, U.S. 224, 229 (1991) (quotation
omitted). Accordingly, Huckaby is not entitled to qualified immunity from personal liability
with regard to Plaintiff’s claims under the Fourteenth Amendment. Huckaby’s motion is denied.
III.
Motion of School
Plaintiff asserts one cause of action against School: liability under the OGTCA for
breach of its “duty of reasonable care to ensure that minor children are not removed from the
custodial care in violation of the law or without proper legal authority,” by “removing or
allowing the removal of J.H. from the custodial care of his classroom without proper legal
authority.” (Doc. No. 48, ¶ 45). School seeks to dismiss this count against it, based on lack of
subject matter jurisdiction (sovereign immunity) under Federal Rule of Civil Procedure 12(b)(1)
and for failure to state a claim under Rule 12(b)(6).
Federal courts are courts of limited jurisdiction, and there is a presumption against the
exercise of federal jurisdiction. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir.
2005). The party asserting jurisdiction has the burden to allege jurisdictional facts demonstrating
the presence of federal subject matter jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th
Cir. 2002). Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction “generally
take one of two forms.” Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.
2001). “First, a moving party may make a facial attack on the complaint’s allegations as to the
existence of subject matter jurisdiction. In reviewing a facial attack, the district court must
16
accept the allegations in the complaint as true.” Id. (internal citation omitted). The second type
of attack goes beyond the allegations in the complaint and challenges “the facts upon which
subject matter jurisdiction depends.” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
Here, School appears to be making a facial attack on Plaintiff’s complaint based on
School’s sovereign immunity for the acts alleged pursuant to the OGTCA.
The OGTCA
generally immunizes “the state, its political subdivisions, and all of their employees acting within
the scope of their employment” from liability for torts. OKLA. STAT. tit. 51, § 152.1(A). This
immunity is subject to a limited waiver for the state and its political subdivisions, but “only to
the extent and in the manner provided” in the OGTCA. OKLA. STAT. tit. 51, § 152.1(B).
School argues it is immune from suit with respect to Plaintiff’s OGTCA claim because,
as a political subdivision, it is absolutely immune from liability for those actions where a private
person or entity would be immune from liability for money damages under Oklahoma law.
OKLA. STAT. tit. 51, § 153(A).1 School argues that, by granting Goerke access to J.H. in
connection with a child abuse investigation, it cannot be subject to suit because Oklahoma law
provides that “[a]ny person who, in good faith and exercising due care, . . . allows access to a
child by persons authorized to investigate a report concerning the child shall have immunity from
any liability, civil or criminal, that might otherwise be incurred or imposed.” OKLA. STAT. tit.
10A § 1-2-104(A). Moreover, DHS is entitled to interview a child “at any place,” including the
child’s school, when a report of child abuse is made. OKLA. STAT. tit. 10A § 1-2-105(B)(1).
School is correct that, like a private individual, it may not be held liable for granting
access to J.H. for the purpose of investigating possible child abuse. However, Plaintiff does not
allege that School employees allowed access to OKDHS to J.H. at the school for an interview.
1
It is undisputed that School is a “political subdivision” of the State of Oklahoma. OKLA. STAT. tit. 51 §
152(11)(b).
17
Instead, Plaintiff alleges School employees “knowingly allowed Goerke to force J.H. into his
police car and drive away,” with actual knowledge that J.H. did not want to leave with Goerke or
ride in his police car, and with actual knowledge that Goerke had not presented any lawful basis
to remove J.H. and force him to leave school property. (Doc. No. 48, ¶ 17).
The immunity statute cited by School, § 1-2-104(A), does not provide such broad
immunity as to cover removal of a child from his school solely for investigation purposes. To
the extent School urges the Court to read such authority into the statute, the Court declines to do
so. A reading of “access” to cover “removal” of the child would go directly against the stated
goal of the Oklahoma Children’s Code to protect the child’s best interests, because it would
allow authorities to disrupt a child’s routine unnecessarily. Such a reading would immunize
anyone who allows a police officer to remove a child from school, without any authority, and
transport him to any location. See OKLA. STAT. tit. 10A, § 1-1-102(E) (“It is the intent of the
Legislature that the paramount consideration in all proceedings within the Oklahoma Children’s
Code is the best interests of the child.”). This reading not only appears contrary to the best
interest of the child, but also raises potential safety and constitutional concerns.
School has identified no authority for allowing removal of J.H. from his school, and
Plaintiff specifically alleges no such authority existed. (See Doc. No. 48, ¶ 17 (alleging School
employees had “actual knowledge that Goerke had not presented any lawful basis to remove J.H.
and force him to leave school property.”). Cf. Gomes v. Wood, 451 F.3d 1122, 1130 (10th Cir.
2006) (holding state officials may seize a child from the home “when they have a reasonable
suspicion of an immediate threat to the safety of the child if he or she is allowed to remain
there.”). Accordingly, the Court disagrees with School’s argument that removal of a child by
law enforcement to a child advocacy center for an interview is “authorized and contemplated in
18
the child abuse reporting statutes.” (Doc. No. 64, at 2). School’s cited authority on this point,
Myers v. Lashley, 44 P.3d 553 (Okla. 2002), is inapplicable. Myers addressed immunity from
liability for reporting child abuse and consequent harm, not for removing a child from school for
the purpose of an interview.
In this case, the Court concludes School is not immune from suit under the OGTCA,
because School is not entitled to rely on immunity enjoyed by those who allow “access” to a
child for purposes of investigating a child abuse complaint. “Access” in this context does not
cover allowing removal of a child from school premises to conduct a DHS interview. Plaintiff
has sufficiently alleged School employees breached their duty of reasonable care to ensure that
J.H. was not removed from their custodial care without proper legal authority. Accordingly,
School’s motion is denied.
CONCLUSION
For the reasons detailed above, the Motions to Dismiss (Doc. Nos. 54, 55, 60) are
DENIED.
SO ORDERED this 31st day of March, 2016.
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