Turner v. Klika et al
Filing
153
ORDER granting 118 Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 9/29/2011. (mb, )
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOHN WILLIAM TURNER,
Plaintiff,
vs.
MICHAEL E. KLIKA, et aI.,
Defendants.
)
)
)
)
)
)
)
)
)
)
NO. CIV-07-268-D
ORDER
Before the Court is the motion for summary judgment [Doc. No. 118] of Defendant Carol
Houseman (“Houseman”). Plaintiff timely responded to the motion, and Houseman filed a reply.
Background:
Plaintiff brings this action pursuant to 42 U. S. C. § 1983,1 seeking damages for alleged
constitutional rights violations resulting from a child molestation investigation conducted by the
Oklahoma City Police Department, the Oklahoma Department of Human Services (“DHS”), and the
Oklahoma Attorney General. Houseman is the DHS social worker assigned to investigate the
molestation allegation after it was referred to DHS by the Oklahoma City police; the referral
followed an investigation of an allegation initially reported to Oklahoma City police officer Michael
E. Klika (“Klika”) during his investigation of a domestic violence complaint. Houseman and Klika
are sued in their individual capacities. Individual capacity claims are also asserted against five
“John Doe” defendants, who are alleged to be Oklahoma City police officers, and the City of
1
Plaintiff also asserts a claim pursuant to the Oklahoma Governmental Tort Claims Act, but that claim is not
directed at Houseman; accordingly, it is not addressed in this Order.
Oklahoma City (“City”).2
In the Second Amended Complaint, Plaintiff alleges his Fourth and Fourteenth Amendment
rights were violated during the investigation of an allegation that he sexually molested his five-year
old daughter, H.M.T. Plaintiff, who was employed at the time by the State of Oklahoma as an
Assistant Attorney General, alleges he was unlawfully seized by Houseman, Klika, and employees
of the Attorney General when he was detained at his workplace on April 20, 2005 during a search
of his residence. He also contends Houseman and others3 violated his rights by taking H.M.T. into
protective custody without prior notice to Plaintiff and by imposing restrictions on his contact with
H.M.T. during the investigation conducted by DHS.
In her motion, Houseman argues she is entitled to summary judgment on the claims asserted
by Plaintiff because the undisputed material facts establish that his constitutional rights were not
violated. She further contends that she is entitled to qualified immunity from § 1983 liability.
Plaintiff argues that disputed material facts preclude summary judgment for Houseman.
Summary judgment standard:
Summary judgment shall be granted where the undisputed material facts establish that one
party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). A material fact is one which may affect the outcome of the suit under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
2
Plaintiff also sued Assistant Attorney General Tom Gruber, the Attorney General of Oklahoma, and DHS.
However, by Joint Stipulation of Dismissal [Doc. No. 108], his claims against Tom Gruber and the Attorney General
were dismissed with prejudice. Although Plaintiff continues to list DHS as a defendant, he acknowledges that it is no
longer a party because it was dismissed by Order of April 24, 2007 [Doc. No. 33]. Plaintiff has never identified the John
Doe defendants, and service of process has never been perfected on those defendants.
These allegations are also directed at Klika, whose summary judgment motion is addressed in a separate Order.
3
2
To avoid summary judgment, a plaintiff must present more than a “mere scintilla” of
evidence; the evidence must be such that "a reasonable jury could return a verdict for the nonmoving
party.” Id. The facts in the record and reasonable inferences therefrom must be viewed in the light
most favorable to the nonmoving party. Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160,
1167 (10th Cir. 2007); MacKenzie v. City & County of Denver, 414 F.3d 1266, 1273 (10th Cir.2005).
Where the undisputed facts establish that a plaintiff cannot prove an essential element of a
cause of action, the defendant is entitled to judgment on that cause of action. Celotex, 477 U.S. at
322. The movant is not required to disprove the cause of action, but need only point to “a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). The burden then shifts to the nonmovant to “go
beyond the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event
of trial from which a rational trier of fact could find for the nonmovant.” Id. (citations omitted).
The facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits
incorporated therein. Adler, 144 F .3d at 671 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968
F.2d 1022, 1024 (10th Cir.1992), cert. denied, 506 U.S. 1013 (1992)). A plaintiff cannot rely on the
allegations in his complaint, his personal beliefs, or conclusory assertions; rather, he must come
forward with evidence outside the pleadings sufficient to create a factual dispute with regard to the
issue on which judgment is sought. Fed.R.Civ.P. 56(c); Harvey Barnett, Inc. v. Shidler, 338 F.3d
1125, 1136 (10th Cir. 2003); Adler, 144 F.3d at 671-72.
To avoid summary judgment, a plaintiff must present facts in evidence sufficient to show
more than “some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It is not the responsibility of the trial court to
3
attempt to locate evidence not cited by Plaintiff which could support his position. Adler, 144 F.3d
at 671.
“The purpose of a summary judgment motion is to assess whether a trial is necessary.” Berry
v. T-Mobile USA, Inc., 490 F. 3d 1211, 1216 (10th Cir. 2007) (citing White v. York Int'l Corp., 45
F.3d 357, 360 (10th Cir.1995)). “In other words, there ‘must be evidence on which the jury could
reasonably find for the plaintiff.’” Id. (quoting Panis v. Mission Hills Bank, NA., 60 F.3d 1486,
1490 (10th Cir. l995)).
In this case, the Court must also apply the Tenth Circuit’s analysis applicable to summary
judgment motions asserting qualified immunity. Toevs v. Reid, 646 F. 3d 752, 755 (10th Cir. 2011).
“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.’” Id. (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “When a defendant asserts qualified immunity at summary
judgment, the responsibility shifts to the plaintiff to meet a ‘heavy two-part burden.’” Lobozzo v.
Colorado Dept. of Corrections, 2011 WL 2663548, at *2 (10th Cir. July 8, 2011) (unpublished
opinion) (quoting Case v. West Las Vegas Indep. Sch. Dist., 473 F. 3d 1323, 1327 (10th Cir. 2007)).
“[T]o avoid judgment for the defendant based on qualified immunity, ‘the plaintiff must show that
the defendant’s actions violated a specific statutory or constitutional right, and that the constitutional
or statutory rights the defendant allegedly violated were clearly established at the time of the
conduct at issue.’” Toevs, 646 F. 3d at 755 (quoting Steffey v. Orman, 461 F.3d 1218, 1221 (10th
Cir. 2006)). “We may address these questions in whatever order is appropriate under the
circumstances.” Id. (citing Pearson v. Callahan, 555 U.S. 223 (2009)). “If the plaintiff fails to
4
satisfy either part of the
two-part inquiry, we must grant the defendant qualified immunity.” Lobozzo, 2011 WL 2663548,
at *2.
The record before the Court:
In her motion, Houseman sets out a list of 11 facts which she contends are material and
undisputed. In response, Plaintiff states he “admits or denies as immaterial” Fact Nos. 1, 3, 4, 10
and 11. Plaintiff then sets out his response to the additional facts which he contends are disputed.
Plaintiff’s statement that he “admits or denies as immaterial” some of Houseman’s fact
statements is insufficient to create a dispute regarding those statements. Plaintiff does not identify
the fact statements he believes are immaterial, nor does he offer any explanation or evidence to
support his belief.
Pursuant to the Local Civil Rules of this Court, the party opposing summary judgment must
include a statement identifying the material facts which he contends are disputed:
The brief in opposition to a motion for summary judgment (or partial summary
judgment) shall begin with a section which contains a concise statement of material
facts to which the party asserts issues of fact exist. Each fact in dispute shall be
numbered, shall refer with particularity to those portions of the record upon which
the opposing party relies and, if applicable, shall state the number of the movant’s
facts that is disputed. All material facts set forth in the statement of the material facts
of the movant may be deemed admitted for the purpose of summary judgment unless
specifically controverted by the statement of material facts of the opposing party.
LCvR 56.1(c). “A fact is ‘disputed’ in a summary-judgment proceeding only if there is contrary
evidence or other sufficient reason to disbelieve it.” Grynberg v. Total, S. A., 538 F. 3d 1336, 1345
(10th Cir. 2008) (citing Fed.R.Civ.P. 56(e) and Trevizo v. Adams, 455 F.3d 1155, 1159-60 (10th
Cir.2006)).
When challenging the movant’s assertion that a fact is undisputed, the responding party has
5
the burden “to ensure that the factual dispute is portrayed with particularity, without...depending on
the trial court to conduct its own search of the record.” Cross v. The Home Depot, 390 F. 3d 1283,
1290 (10th Cir. 2004) (quotations omitted);Mitchell vs. City of Moore, 218 F. 3d 1190, 1199 (10th
Cir. 2000) (district court is “not obligated to comb the record” to determine the basis for a claim that
a factual dispute exists). If a nonmovant “fails to properly address another party’s assertion of fact
as required by Rule 56(c),” the fact may be deemed admitted for purposes of the motion. Fed. R.
Civ. P. 56(e)(2).
In this case, Plaintiff fails to specifically identify the basis for denying any of the facts set
forth in Houseman’s fact statement Nos. 1, 3, 4, 10 or 11. Accordingly, those facts are admitted for
purposes of this motion.
The evidence before the Court establishes that the DHS received from the Oklahoma City
police an initial referral or report of alleged sexual abuse of H.M.T. by Plaintiff on April 19, 2005.
A copy of DHS’s resulting “Report to District Attorney” regarding the referral is submitted under
seal as Houseman Ex. 1. At the time the allegation was referred to DHS, Houseman held the
position of Child Welfare Specialist III, and she had been employed as a DHS social worker for
more than ten years. The referral was assigned to Houseman.
The molestation allegation was reported to Klika during his investigation of a March 12,
2005 domestic violence complaint by Plaintiff’s girlfriend, Toni Cooper. On or about April 7, 2005,
Ms. Cooper reported to Klika that her three-year-old son, T.K.C., told her Plaintiff had put his finger
in T.K.C.’s bottom; he also said Plaintiff did the same to H.M.T. It is not disputed that Klika and
police department Child Abuse Unit inspectors Teresa Sterling and Priscilla Helm investigated that
allegation, resulting in the referral to DHS. Although Houseman was not involved in the police
6
department’s investigation, the evidence related to that investigation explains the circumstances
under which Houseman became involved. The evidence regarding the investigation by Klika and
Child Abuse Unit inspectors Sterling and Helm up to and including April 20, 2005 is set out in the
Court’s separate order addressing Klika’s motion for summary judgment; the Court's discussion of
the record is adopted as though fully set forth herein.
On April 20, 2005, Houseman was contacted by Inspector Sterling regarding the molestation
investigation. The record reflects that, prior to April 20, Houseman was not aware of the evidence
obtained in the police department investigation, and she did not know that Plaintiff was the alleged
perpetrator; she learned his identity while reviewing the reports provided to her by Inspector
Sterling.4 Houseman dep., Houseman Ex. 2, p. 10, lines 7-25; p. 11, lines 1-10.
On April 20, Houseman accompanied Sterling to H.M.T.’s school. Inspector Sterling
interviewed H.M.T. in Houseman’s presence, and they then took H.M.T. to the Child Abuse
Response and Evaluation (“CARE”) Center to be interviewed by forensic interviewer Vicki Gauldin.
It is not disputed that the CARE Center is a nationally accredited child advocacy center which has
participated since 1993 in an interagency, interdisciplinary approach to child abuse issues in
Oklahoma County as part of the county’s multidisciplinary child abuse team; the team was formed
4
Houseman also testified that, prior to April 20, the Oklahoma City police had advised DHS of an ongoing
police investigation of child molestation that would likely be the subject of a formal referral. According to Houseman,
Klika attended a regularly scheduled DHS meeting and advised that, during a domestic violence investigation, he
received an allegation of possible molestation; he also advised that Child Abuse Unit inspectors Sterling and Patricia
Helm were involved in investigating the complaint. Houseman dep., Ex.2, pp. 11-13; p. 15, lines 7-22. Houseman
recalled no names were provided, but she understood a high-profile individual was possibly involved. Id., p. 15, lines
9-22. She also said the Care Center sometimes receives such notifications involving individuals who, because of their
employment or position, would be described as high-profile. Houseman did not recall the exact date of this meeting, and
said it could have been one to three weeks prior to April 20. However, she also testified that DHS was not authorized
to begin its own investigation because it must receive a referral in order to do so. A referral may consist of a direct
complaint to DHS or a formal request by police officers who have received a complaint and initiated an investigation.
Houseman dep., p. 18, lines 14-25; p. 19, lines 1-25; p. 20, lines 1-6.
7
pursuant to an interagency agreement, a copy of which is submitted as Houseman Ex. 4. The
interagency team consists of several agencies, including but not limited to the Oklahoma County
District Attorney’s Office, DHS, and the Oklahoma City police department. Id.
It is not disputed that, when the molestation allegation was received, Plaintiff shared joint
custody of H.M.T. with his former wife, Mista Turner-Burgess. Although the specific terms of their
custody agreement are not in the record before the Court, the evidence reflects that the parties agree
H.M.T. spent several nights with Plaintiff at his residence during the week as well as some
weekends. It is not disputed that Plaintiff was not notified in advance regarding Ms. Gauldin's
interview of H.M.T.
The record reflects that Houseman and Sterling observed Ms. Gauldin’s Apri120 interview
of H.M.T., but did not directly participate in the interview. It is also not disputed that, following the
interview, Lt. Darla Dugan, who was Sterling’s supervisor in the police department’s Child Abuse
Unit, made the decision to place H.M.T. in protective custody at the Oklahoma County juvenile
shelter, where H.M.T. remained overnight. The parties agree that H.M.T. was returned to her
mother, Ms. Turner-Burgess, on the morning of April 21 , 2005, as directed by an Oklahoma County
Assistant District Attorney. The record also reflects that, on Apri1 21, 2005, Plaintiff and Ms.
Turner-Burgess presented to the Oklahoma County District Court an Emergency Temporary Order
in which they agreed that Ms. Turner-Burgess would have temporary sole custody of H.M.T.
pending the DHS investigation of Plaintiff. The Order also directs Ms. Turner-Burgess to “keep the
minor child away from and out of complete contact with” Plaintiff and to not restore his visitation
rights until the DHS investigation is concluded with a determination that “he is fit and capable of
8
resuming custody.” A copy of the Order is submitted as Klika Ex. 18.5 Plaintiff expressly agreed
to the April 21 temporary revision of the custody arrangement, although he denied the allegation that
he molested H.M.T. Id. It is not disputed that Houseman did not oppose the April 21 modification
of the existing custody order, and she agreed that H.M.T. should be returned to her mother.
The evidence establishes that DHS continued its investigation of the molestation referral and
concluded that investigation on June 14, 2005. Consistent with applicable procedures, DHS reported
its findings to the Oklahoma County District Attorney. The findings included a recommendation of
“Court Intervention Requested,” thus recommending to the Oklahoma County District Attorney that
a deprived child action be filed. DHS Report to District Attorney, Houseman Ex. 1, p. 2. However,
no deprived child petition was filed because DHS’s finding that its investigation confirmed the
allegation was later reversed by the Appeals Section of DHS’s Children and Family Services
Division, pursuant to administrative appeals filed by Plaintiff and by Ms. Turner-Burgess.
The record further reflects that, upon Plaintiff’s motion, his visitation rights were further
modified by Court order of June 22, 2005, submitted as Klika Ex. 19. The Order expressly provides
that DHS expressed “no objection to supervised visitation” with H.M.T. as of that date, and DHS
agreed that Plaintiff should be allowed visitation to be supervised by Ms. Turner-Burgess. The
Order provides details regarding the terms of the visitations, and it appoints a guardian ad litem for
H.M.T. Klika Ex. 19. Plaintiff’s counsel expressly agreed to the Order.
The record also reflects that, on August 8, 2005, Plaintiff’s overnight visitation rights with
H.M.T. were restored, with visitation to be supervised by a third party until further court order.
August 8, 2005 Order, Klika Ex. 20. The August 8 Order also provided that Plaintiff and Ms.
5
Although Houseman and Plaintiff do not submit the April 21, 2005 Order in their exhibits, it is a part of the
record before the Court in this case; accordingly, it may be considered by the court pursuant to Fed.R.Civ.P. 56(c)(3).
9
Turner-Burgess would agree to select the party to supervise the visitation. The Order directed DHS
to “release all further decisions affecting the minor child’s custody to the parties and this Court,”
and determined DHS need not be notified of further proceedings in the matter. Klika Ex.
20.
It is undisputed that, on April 20, 2005, Oklahoma City police officers conducted a search
of Plaintiff’s residence pursuant to a warrant issued by Oklahoma County District Judge Ray C.
Elliott. Inspector Helm was present during the search, and she had previously prepared a 17-page
affidavit in support of the warrant. Copies of the affidavit and search warrant are contained in the
record as Exhibits 51 and 63, respectively, to the City’s summary judgment motion in this case.
Helm’s affidavit summarizes the investigation conducted by the police, including two interviews
with Plaintiff’s girlfriend, Toni Cooper, who initially reported to Klika her concern that, based on
comments made by her three-year-old son, Plaintiff might have sexually molested her son and
H.M.T. Helm also summarizes interviews with Plaintiff’s former girlfriend, Dawn Miller, and the
forensic interview of Ms. Cooper’s son. City Ex. 51. The Helm affidavit reports that, based on
these interviews, Inspector Helm believed Plaintiff possessed pornographic material in his residence,
including on his computer, and that he also had the capability of remotely accessing his home
computer in a manner that could delete files and thus compromise evidence.6 Id.
The record also establishes that, while the search warrant was being executed, Plaintiff was
detained at his office by his supervisor, Assistant Attorney General Tom Gruber, and by Roger
Chrisco, an investigator for the Attorney General's office. As explained in the Court’s separate order
addressing Klika’ s summary judgment motion, Plaintiff was detained because the investigators were
6
The detailed explanation set out in Helm’s affidavit is discussed in the Court’s separate order addressing
Klika’s summary judgment motion; that discussion is adopted as though fully set forth herein.
10
concerned that he might be able to remotely access his home computer and delete or otherwise
compromise evidence relevant to the investigation.
Application:
To prevail on a § 1983 claim, a plaintiff must prove: “(1) a violation of rights protected by
the federal Constitution or created by federal statute or regulation, (2) proximately caused (3) by the
conduct of a ‘person’ (4) who acted under color of [law].” Summum v. City of Ogden, 297 F.3d 995,
1000 (10th Cir. 2002) (citing Gomez v. Toledo, 446 U.S. 635, 640 (l980)). State actors “may only
be held liable under § 1983 for their own acts.” Robbins v. Oklahoma, 519 F. 3d 1242, 1247 (10th
Cir. 2008). To impose § 1983 liability on a state actor, a plaintiff must show that such actor
personally participated in the alleged violation of federal rights. Mitchell v. Maynard, 80 F.3d 1433,
1441 (10th Cir. 1996). Personal participation for this purpose does not necessarily require that the
defendant was physically present when the specific violation occurred because “direct participation
is not necessary” to impose § 1983 liability. Mink v. Knox, 613 F.3d 995, 1001 (10th Cir. 2010)
(emphasis in original). However, to prevail on a § 1983 claim, Plaintiff must prove a “causal
connection” between the defendant’s participation and the deprivation of his rights; to do so, he must
establish an “affirmative link between the constitutional deprivation and the officer’s exercise of
control or direction.” Id. (citing Poolaw v. Marcantel, 565 F. 3d 721, 732 (10th Cir. 2009)).
Fourth Amendment:
In the Second Amended Complaint, Plaintiff alleged that Houseman, Klika and other
unidentified police officers violated his Fourth Amendment rights by unlawfully seizing him and
conducting an unlawful search. During his deposition, however, Plaintiff withdrew his claims based
on an unlawful search of his residence and his vehicle, conceding that the residence was searched
11
pursuant to a warrant, and he consented in writing to the search of his vehicle.7 Thus, the only
remaining Fourth Amendment claim asserts that Plaintiff was unlawfully seized.
The Fourth Amendment protects individuals against “unreasonable searches and seizures.”
Porro v. Barnes, 624 F. 3d 1322, 1325 (10th Cir. 2010). A seizure for Fourth Amendment purposes
is not limited to an arrest, as it also applies to less intrusive encounters, including investigative
detentions. Cortez v. McCauley, 478 F. 3d 1108, 1115 (10th Cir. 2007). Although Houseman is not
a police officer, that does not preclude her potential liability for an unlawful seizure, as the Tenth
Circuit has held that both police and social workers are subject to the Fourth Amendment
requirements applicable to searches and seizures. Turner v. Houseman,8 268 F. App’x 785, 788 (10th
Cir. 2008) (unpublished opinion) (citing Jones v. Hunt, 410 F. 3d 1221, 1225 (10th Cir. 2005) and
Roska ex rel. Roska v. Peterson, 328 F. 3d 1230, 1240-42 (10th Cir. 2003)).
In its separate order ruling on Klika’s motion for summary judgment, the Court has
concluded the undisputed evidence establishes Plaintiff has failed to present evidence sufficient to
create a material factual dispute from which a reasonable jury could conclude his Fourth
Amendment rights were violated as a result of the April 20 detention at his office. The Court
concluded that, as a matter of law, no Fourth Amendment violation occurred, and granted Klika’s
motion for judgment.
7
Although Houseman does not submit a copy of the search warrant to her motion, it is not disputed that the
warrant was issued by Oklahoma County District Judge Ray Elliott. Klika submits a copy of the warrant as well as the
affidavit of Oklahoma City Police Inspector Patricia Helm in support of that warrant. Klika Exs. 1, 7. Plaintiff’s advance
written consent to search his vehicle is submitted as Klika Ex. 2.
8
The Circuit in Turner affirmed the Order [Doc. No. 33] denying Houseman’s motion to dismiss the original
complaint on qualified immunity grounds. Subsequently, this Court denied her motion to dismiss the amended complaint
based on qualified immunity, finding Plaintiff's allegations deficient but capable of being corrected in a second amended
complaint. Order of September 8, 2009 [Doc. No. 78]. The decision on Houseman’s motion to dismiss is not dispositive
here, however, because the standards applicable to a motion to dismiss are not the same as those governing qualified
immunity claims asserted in a summary judgment motion.
12
Because Plaintiff’s Fourth Amendment claim against Houseman is based on the same facts
and circumstances as that asserted against Klika, the Court’s determination that there was no
constitutional violation thus also warrants judgment in Houseman’s favor on this claim. However,
even if the Court had not reached that conclusion, Houseman is not liable under § 1983 unless
Plaintiff presents factual evidence sufficient to show she participated in the April 20 detention. The
evidence reflects that Plaintiff cannot do so.
It is not disputed that, prior to April 20, police investigators decided to seek a warrant to
search Plaintiff's residence, to interview H.M.T., and to interview Plaintiff's former wife, Mista
Turner-Burgess, with whom Plaintiff shared custody of H.M.T. Inspector Helm was assigned to
prepare the search warrant affidavit, Inspector Sterling was assigned to contact DHS and arrange
H.M.T.' s interview, and Klika was to interview Ms. Turner-Burgess.9 Houseman testified that she
attended an April 20 meeting when these officers’ assignments were discussed. Houseman dep.,
Houseman Ex. 2, p. 131, lines 3-11. However, there is no evidence that she had any role in any of
these decisions, including the decision to search Plaintiff's residence or to detain him at his
workplace while the search was being conducted. The record establishes it is undisputed that Klika,
Helm, and other police officers had previously met with the Attorney General’s staff. The record
reflects Assistant Attorney General Tom Gruber agreed to detain Plaintiff at his office during the
execution of the search warrant, as there was concern Plaintiff might be able to remotely access his
home computer and delete or compromise evidence consisting of pornographic images. There is no
evidence that Houseman was present during these discussions or that, prior to April 20, she was
aware these discussions had occurred.
9
Klika had interviewed Ms. Turner-Burgess in connection with the domestic violence complaint, but that
interview occurred prior to the report of possible molestation.
13
In fact, there is no evidence that Houseman had any knowledge, prior to April 20, that
Plaintiff’s residence would be searched or that he would be detained. The undisputed evidence in
the record establishes Houseman did not even know Plaintiff’s identity until April 20.
While direct participation in an alleged Fourth Amendment violation is not required to
establish potential § 1983 liability, Plaintiff must present evidence sufficient to show that Houseman
had some role in directing or controlling the events on which the claim is based. Mink, 613 F .3d
at 1001. He must present evidence to show a causal connection between Houseman's participation
and the injury he claims to have suffered. Id.
Construing the evidence most liberally in Plaintiff’s favor, the record establishes he cannot
show Houseman participated in the search, the detention, or any other occurrence on which he bases
his Fourth Amendment claim, or directed or controlled these events. Thus, even if the Court found
a factual dispute regarding the lawfulness of Plaintiff’s detention, Houseman would not be liable
under § 1983. Accordingly, Houseman is entitled to summary judgment on Plaintiff’s Fourth
Amendment claim.
Fourteenth Amendment:
Plaintiff also contends Houseman and Klika violated his rights because they did not notify
Plaintiff in advance of H.M. T.’s placement in protective custody on April 20, 2005. Plaintiff argues
the failure to provide notice violates his constitutional right to due process under the Fourteenth
Amendment. Construing the allegations most liberally in his favor, it appears that Plaintiff also
asserts a substantive due process argument, contending Houseman and Klika violated his right to
familial association by placing H.M.T. in custody and, thereafter, by restricting Plaintiff’s visitation
rights.
In her summary judgment motion, Houseman argues that, as a matter of law, no
14
constitutional violation occurred; furthermore, she argues she is entitled to qualified immunity on
this claim because her conduct was consistent with established law at the time of these occurrences.
Notice to the parent and a hearing are generally required before a child may be removed from
parents; however, an exception exists for extraordinary situations in which there is a valid
governmental interest which justifies postponing the hearing until after the child is removed.
Roska v. Peterson, 328 F. 3d 1230, 1245 (10th Cir. 2003). Where responsible officials have a
“reasonable suspicion” of a threat to the child’s safety, that is a sufficient governmental interest
justifying removal of the child without prior notice and hearing. Gomes v. Wood, 451 F. 3d
1122,1130 (10th Cir. 2006), cert. denied, 549 U.S. 1053 (2006).
In Gomes, the Tenth Circuit
rejected the contention that probable cause was required to justify removal of the child. Concluding
that reasonable officials could differ in their opinion as to whether a reasonable suspicion justified
removal, the Circuit concluded the defendant state caseworker who removed the child without prior
notice and a hearing was entitled to qualified immunity from § 1983 liability. Gomes, 451 F. 3d at
1131.
The Tenth Circuit has held that, where a child’s parent is suspected of sexual abuse, the child
may be removed and placed in an overnight shelter without violating the parent’s due process rights,
so long as a post-deprivation hearing is promptly conducted. J.B. v. Washington County, 127 F. 3d
919, 927 (10th Cir. 1997).
In J.B., the child was removed by social services workers after an
allegation of parental sexual abuse; the parents alleged their due process rights were violated
because they did not receive prior notice, and no hearing was conducted prior to the child's removal.
Although the child was kept in overnight custody, a hearing was conducted the following day. The
Tenth Circuit observed that, “in retrospects” the social services employees could have possibly taken
15
steps to avoid keeping the child overnight; however, the Circuit found no violation of parental rights
on that basis. J.B., 127 F. 3d at 926. Instead, the Circuit found the procedure followed by the
employees was reasonably calculated to balance the interests of the parents against the state’s
interest in protecting the child, given the circumstances faced by the employees at the time the
decision was made; thus, no constitutional rights violation occurred. Id.
In this case, the undisputed facts establish that, at the direction of Lt. Dugan, H.M.T. was
removed and kept in protective custody overnight. The following morning, in a court hearing, she
was
released to the custody of her mother, Ms. Turner-Burgess, with the Plaintiff’s consent that the
existing joint custody order be replaced by an order awarding Ms. Turner-Burgess sole custody and
suspending Plaintiff’s visitation privileges while the DHS investigation continued. Thus, a postdeprivation hearing was promptly conducted, consistent with the Tenth Circuit’s decision in J.B.
Plaintiff did not object to the resulting court order restricting his visitation privileges.
Construing the facts liberally in Plaintiff’s favor, even if the actions of Houseman were
sufficient to constitute her participation in the decision to place H.M. T. in overnight custody
without prior notice to Plaintiff, her actions were consistent with those approved by the Circuit in
J.B. Plaintiff cannot dispute that, despite his denial of any improper conduct, he was the alleged
perpetrator of child sexual abuse. Moreover, he testified in his deposition that, once the allegation
was made, the police and DHS had a duty to conduct an investigation. Plaintiff’s dep., Klika Ex. 1,
pp. 148, 163. Although he was a custodial parent, the officials involved in the decision were required
to balance his interests against those of the state in protecting H.M.T. from perceived harm,
according to the circumstances they faced at the time. Houseman’s own testimony reflects that, once
16
she learned Helm and Klika agreed H.M.T. could be returned to Ms. Turner-Burgess that evening,
it was too late to contact the assistant District Attorney to accomplish that result. As in J.B., a
retrospective review of her conduct could arguably show that further efforts might have been taken
by Houseman to avoid keeping H.M.T. overnight; however, when viewed from her perspective at
the time, the Court easily finds she acted reasonably in light of the circumstances.
Moreover, Plaintiff’s arguments in this regard are directed at the purported failure to consider
the rights of Ms. Turner-Burgess; however, she has separately asserted her rights in her own lawsuit.
Plaintiff offers no authority to support his contention that, as the parent alleged to have sexually
molested his child, he had the right to advance notification and a hearing prior to his daughter’s
placement in protective custody.
The record also establishes that Houseman’s conduct was consistent with the requirements
of Oklahoma law at the time. In 2005, the applicable Oklahoma statute provided that, with respect
to protective custody of a child, officers could remove the child and take him into custody without
a prior court order “if continuation of the child in the child’s home is contrary to the health, safety
or welfare of the child.” Okla. Stat. tit. 10 § 7003-2.1 (A)(l) (2005). The statutes were amended in
2009 and recodified at Title 10A § § 1-1-101, et seq. As Inspector Helm testified, the statute
currently provides there must be an “imminent” threat to the child’s safety before she may be taken
into protective custody. Okla. Stat. tit. 10A § 1-4-201 (A)(l). However, the immediacy requirement
was not the law in 2005. Accordingly, Lt. Dugan was not required to conclude that H.M.T. was in
imminent danger prior to taking her into protective custody, and was required to find only that
remaining in the home was contrary to her safety or welfare. Plaintiff offers no authority suggesting
that Houseman had a duty, or possessed the authority, to take action to attempt to alter Lt. Dugan’s
17
decision. Furthermore, the record reflects that Houseman appeared in court the following morning
with Ms. Turner-Burgess and that Houseman did not object to the modification to the custody order
which allowed Ms. Turner-Burgess to have sole temporary custody of H.M.T. Plaintiff agreed to that
order.
The Court finds that the evidence in the record and the governing law establish that the
placement of H.M.T. in protective custody on April 20 without prior notice to Plaintiff did not
violate his due process rights under the circumstances. At a minimum, Houseman is entitled to
qualified immunity with respect to Plaintiff’s claim that she violated his rights by failing to provide
Plaintiff with notice; her actions were consistent with Oklahoma law and Tenth Circuit precedent
at the relevant time.
Plaintiff also argues, however, that Houseman interfered with his substantive due process
right of familial association after April 20, 2005, while the DHS investigation was ongoing. He
contends she did so by preventing him from having contact with H.M.T. and by conducting an
improper or deficient investigation of the claim.
The Fourteenth Amendment’s due process clause protects the fundamental right of parents
to make decisions concerning the care, custody, and control of their children. Jensen v. Wagner, 603
F. 3d 1182, 1197 (10th Cir. 2010); Starkey v. Boulder County Social Services, 569 F. 3d 1244 (10th
Cir. 2009). The parental right is not, however, absolute. States have a compelling interest in
protecting the lives and health of resident children. Accordingly, when a child’s life or health is
endangered by a parent’s decision, the state may intervene without violating the parent’s
constitutional rights. Jensen, 603 F. 3d at 1197; Starkey, 569 F. 3d at 1253. The Tenth Circuit
recognizes that “‘the constitutional right to familial integrity is amorphous and always must be
18
balanced against the governmental interest involved.’” Starkey, 569 F. 3 d at 1253 (quoting Martinez
v. Mafchir, 35 F. 3d 1486, 1490 (10th Cir. 1994)).
The state’s interest in protecting the life and health of resident children is well established,
and justifies state intervention without violating the parent’s constitutional rights. Jensen, 603 F. 3d
at 1197. In such circumstances, the parent’s right to familial association must be balanced against
the state’s interest in protecting children from abuse and neglect. J. B., 127 F. 3d at 927. In
balancing these interests, “considerable deference should be given to the judgment of responsible
government officials in acting to protect children from perceived imminent danger or abuse.” Id.
at 925. Governmental entities have a “traditional and transcendent interest” in protecting children
from abuse. Maryland v. Craig, 497 U.S. 836, 855 (1990). “The prevention of sexual exploitation
and abuse of children constitutes a government objective of surpassing importance.” New York v.
Ferber, 458 U.S. 747,757 (1982).
Even if the conduct of an official interferes with the right of familial association, however,
the official is not liable unless he acted willfully with the intent to interfere with the parental
relationship. J.B., 127 F. 3d at 927. “‘Not every statement or act that results in an interference with
the rights of intimate association is actionable.’” Id. (emphasis in original) (quoting Griffin v. Strong,
983 F. 2d 1544, 1548 (10th Cir. 1993)). “The conduct or statement must be directed ‘at the intimate
relationship with knowledge that the statement or conduct will adversely affect that relationship.’”
Id. (quoting Griffin, 983 F.2d at 1548). Absent “evidence of wilfulness or intent,” a cause of action
cannot be maintained. J.B., 127 F. 3d at 928.
In this case, Plaintiff acknowledges that intentional and willful conduct is essential to
maintain this claim against Houseman. He argues that the evidence shows she intentionally and
19
willfully engaged in an investigation designed to show he was guilty of the molestation allegation,
and that she ignored his protestations of innocence and failed to contact witnesses who would
support his contention that Ms. Cooper caused him to be falsely accused.10
Having reviewed the record, the Court concludes that Plaintiff’s accusations regarding
Houseman’s motivations are not supported by the evidence. The record reflects that she pursued
the DHS investigation to which she was assigned, and the record does not support his contention that
she intentionally sought to interfere with his visitation rights during the course of the investigation
on April 20 or thereafter. The court order of April 21, 2005 restricted his visitation rights during
the pendency of the DHS investigation, and he agreed to that restriction. Approximately two months
later, while the DHS investigation was ongoing, the restrictions on his visitation rights were
modified so that he was allowed visitation with H.M.T.; there is no evidence that Houseman
opposed that modification. There is evidence in the record that, in the interim, he urged her to allow
him more extensive visitation rights; it is undisputed, however, that the court order remained in
effect during this time period. Plaintiff’s suggestion that Houseman should have taken action to
expand his visitation rights during this time period is not supported by any legal authority. Plaintiff
had the right to return to court and seek a modification of the April 21 Order, and he did so – the
June 22, 2005 Order reflects that it was issued upon his motion. That order allowed him visitation
to be supervised by Ms. Turner-Burgess. He argues that, during this time period, a request was
made that he be allowed to attend his daughter’s dance recital without Ms. Turner-Burgess being
present or to otherwise see H.M.T. in Ms. Turner-Burgess’s absence, and Houseman refused, stating
10
The record suggests that, notwithstanding his stated belief that Ms. Cooper falsely accused him, Plaintiff and
Ms. Cooper renewed their relationship within a few months after the April 2005 occurrences. Plaintiff s dep., Klika Ex.
1, p. 165, lines 23-25.
20
such visits would violate the existing court order and also risk endangering Ms. Turner-Burgess’s
compliance with that order. There is nothing in the record to show that Houseman’s response was
incorrect or somehow motivated by a wrongful intent; Houseman’s response was consistent with the
terms of the June 22 Order.
As an attorney who was also represented by counsel, Plaintiff certainly knew he could seek
further revision of the June 22 order and asks the court’s permission to attend the recital or to
otherwise modify the restrictions on his visitation rights. He did not do so.
As Houseman points out in her brief, where a defendant asserts a qualified immunity claim,
the plaintiff must do more than show that the government actor intentionally or recklessly caused
injury to the plaintiff. Moore v. Guthrie, 438 F. 3d 1036, 1040 (10th Cir. 2006). Thus, even if
Plaintiff’s contentions, construed most liberally in his favor, could be seen as reflecting mistakes by
Houseman in conducting the investigation, they do not overcome her qualified immunity defense
to his Fourteenth Amendment claim of interference with parental rights. Under the law, she is
entitled to qualified immunity if her actions were objectively reasonable in light of the information
she possessed at the time of those actions. Hollingsworth v. Hill, 110 F. 3d 733, 738 (10th Cir.
1997). By its very nature, a DHS investigation of child molestation can impact parental rights,
especially those of the parent who is the alleged perpetrator. The record before the Court reflects
that, in conducting this investigation, Houseman acted in accordance with her ten years of
experience as a DHS social worker. There is no evidence that she intentionally sought to wrongfully
interfere with Plaintiff’s parental rights beyond the interference that necessarily results from such
an investigation.
The Court concludes that Plaintiff has failed to present evidence from which a reasonable
21
jury could conclude that Houseman violated his Fourteenth Amendment right to familial association.
Even if her actions could be viewed as violating his right, those actions were consistent with
established law at the time, and she is entitled to qualified immunity from § 1983 liability.
Accordingly, her motion for summary judgment is granted.
Conclusion:
For the foregoing reasons, the motion for summary judgment of Carol Houseman [Doc. No.
118] is GRANTED as to all claims asserted by Plaintiff in this action.
IT IS SO ORDERED this 29th day of September, 2011.
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?