Hunter v. South Dakota Dept. of Social Services et al
Filing
67
OPINION AND ORDER granting 25 DSS Defendants' Motion for Summary Judgment; and granting in part and denying in part 29 Avera Defendants' Motion for Summary Judgment. Signed by U.S. District Judge Roberto A. Lange on 3/25/19. (SKK)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
KIRSTEN HUNTER,AS GUARDIAN AD
LITEM OF HER MINOR CHILD,A.Q., AND
ON HER OWN BEHALF,
3:17-CV-03016-RAL
Plaintiff,
OPINION AND ORDER GRANTING
DSS DEFENDANTS' MOTION
vs.
FOR SUMMARY JUDGMENT AND
'
SOUTH DAKOTA DEPT. OF SOCIAL
SERVICES,LYNN VALENTI, HER
PERSONAL AND OFFICIAL CAPACITY;
VIRGENA WEISELER,IN HER PERSONAL
AND OFFICIAL CAPACITY; MATT
OPBROECK,IN HIS PERSONAL AND
GRANTING IN PART AVERA
DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
OFFICIAL CAPACITY; KATIE ROCHELLE,
IN HER PERSONAL AND OFFICIAL
CAPACITY; TERESA CASS,IN HER
PERSONAL AND OFFICIAL CAPACITY;
DOE DEFENDANTS 1^,AVERA ST.
MARY'S HOSPITAL,
Defendants.
Plaintiff Kristen Hunter,' individually and as guardian ad litem for her minor son A.Q.,
filed this action under 42 U.S.C.§§ 1983 and 1985 alleging that the Defendants—^the South Dakota
Department of Social Services, Lynne Valenti, Virgena Wieseler, and Matt Opbroek (collectively
DSS Defendants) and Avera St. Mary's Hospital, Teresa Cass, Katie Rochelle, and Doe
Defendants 1-4 (collectively Avera Defendants)—^violated her and her son's rights under the
Fourth Amendment, Fifth Amendment, and Due Process Clause of the Fourteenth Amendment.
'This Court refers to Plaintiff Kristen Hunter as "Hunter" when referencing her actions and
statements, but as "Plaintiff' when referencing her claims on behalf of her minor son and herself.
1
Doc. 12 at ]f 1. The DSS Defendants have filed a motion for summary judgment based upon the
merits and on qualified immunity. Doc. 25. The Avera Defendants have filed a motion for
summaryjudgment based upon the claim that they are not state aetors. Doc. 29. This Court held
oral argument on the motions on February 20, 2019. Doe. 66. For the reasons explained below,
this Court grants DSS Defendants' motion for siunmaryjudgment and grants in part and denies in
part Avera Defendants' motion for summaryjudgment.
I. Summary Judgment Standard
Under Rule 56(a)ofthe Federal Rules of Civil Procedure, summaryjudgment is proper "if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56(a) places the burden initially on
the moving party to establish the absence of a genuine issue of material fact and entitlement to
judgment as a matter oflaw. Fed. R. Civ. P. 56(a); see also Celotex Com,v. Catrett. 477 U.S. 317,
322-23 (1986). Once the moving party has met that burden, the nonmoving party must establish
that a material fact is genuinely disputed either by "citing to particular parts of materials in the
record" or by "showing that the materials cited do not establish the absence . . . of a genuine
dispute." Fed. R. Civ. P. 56(c)(1)(A),(B); Gacek v. Owens & Minor Distribution. Inc.. 666 F.3d
1142, 1145-46 (8th Cir. 2012); see also Moslev v. Citv of Northwoods. 415 F.3d 908, 910 (8th
Cir. 2005) (stating that nonmovant may not merely rely on allegations or denials). A party
opposing a properly supported motion for summary judgment may not rest upon mere allegations
or denials in his pleading, but must set forth specific facts showing that there is a genuine issue for
trial. Gacek. 666 F.3d at 1145. In ruling on a motion for summary judgment, the facts and
inferences fairly drawn from those facts are "viewed in the light most favorable to the party
opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587-88
(1986)(quoting United States v. Diebold. Inc.. 369 U.S. 654,655 (1962)).
n. Fact Not Subject to Genuine Dispute^
During February 2017, Hunter, her three-year-old son, A.Q., her five-year-old daughter,
and her boyfriend, Jeffiy Stanley (Stanley), lived together in Pierre, South Dakota. Doc. 27 at ]f
11; Doc. 42 at ][ 11, Doc. 31 at^ 1-2; Doc. 39 at^1-2. Stanley was on state probation and, as
part ofconditions ofprobation, he was required to submit to urinalysis tests. Doc.27 at^ 11; Doc.
42 at^ 11; Doc. 31 at^4; Doc. 39 at^4. Stanley failed to show up to a meeting with his probation
officer Mina Bonhorst(Bonhorst) to provide a urine sample, so on February 22, 2017, Bonhorst
went to Stanley's home. Doc. 31 at ^ 4; Doc. 39 at ]f 4. Stanley answered the door and admitted
to having smoked methamphetamine and marijuana with Hunter the prior morning. Doc. 31 at ^
5; Doc. 39 at ^ 5. Stanley stated that Hunter was not feeling well after using. Doc. 31 at 6; Doc.
39 at ^ 6. When law enforcement arrived at Stanley's home. Hunter appeared disheveled and
would not make eye contact. Doc. 31 at ]f 7; Doc. 39 at Tf 7. As a result of law enforcement's
observations and Stanley's admissions, law enforcement suspected Hunter of being under the
influence of methamphetamine "or something else during that time." Doc. 31 at 8; Doc. 39 at ^
8. Later that day, Stanley provided a urinalysis that tested positive for marijuana and was arrested.
^ This Court takes the facts in the light most favorable to Plaintiff as the nonmoving party and
draws the facts primarily firom the portions ofDefendants' the South Dakota Department of Social
Services, Lynne Valenti, Virgena Wieseler, and Mat Opbroek's Statement of Undisputed Material
Facts in Support ofMotion for Summary Judgment,Doc.27,and the Avera Defendants' Statement
of Undisputed Material Facts, Doc. 31, that were not genuinely disputed in Plaintiffs' Response to
DSS Defendants' Statement of Undisputed Facts and Statement of Genuinely Disputed Issues of
Material Facts that Preclude Summary Judgment, Doc. 42, and Plaintiffs' Response to Avera
Defendants' Statement of Undisputed Material Facts and Statement of Genuinely Disputed Issues
of Material Facts that Preclude Summary Judgment, Doc. 39.
Doc. 27 at ^ 11; Doc. 42 at ^ 11. Hunter learned that Stanley was going to be placed in jail for a
probation violation. Doc. 31 at ^ 9; Doc. 39 at ^ 9; Doc. 28-2 at 3.
That same day, based on comments by Stanley, Bonborst made a report to Child Protective
Services(CPS), a division ofthe South Dakota Department of Social Services(DSS), of possible
neglect concerning Hunter's two children. Doc. 27 atf 12; Doc.42 at Tf 12; Doc.28-1 at 1. Family
service specialist Mat Opbroek(Opbroek)was assigned to investigate Bonborst's report. Doc. 27
at 13; Doc. 42 at ^ 13; Doc. 31 at 3; Doc. 39 at ]f 3. At approximately 4:30 p.m., Opbroek and
a CPS supervisor lyvonne Jewett met with Pierre police officers to perform a welfare check at
Hunter's residence. Doc. 27 at^ 14; Doc.42 at ^ 14; Doc. 31 at^ 10; Doc. 39 at Tf 10. During the
welfare check. Hunter admitted that she bad used drugs while her children were present in the
home but said she did not use drugs while in the same room as the children.^ Doc.27 at 15; Doc.
42 at
15. Hunter admitted to using metbampbetamine four days before the welfare check and
showed law enforcement where she injected metbampbetamine into her arm. Doc.27 at If 16; Doc.
42 at If 16.
Hunter voluntarily provided a urine sample which field tested positive for
metbampbetamine and marijuana.'^ Doc. 27 at If 17; Doc. 42 at If 17; Doc. 31 at If 11; Doc. 39 at If
11.
^ This Court is taking Hunter's account of what she said as true here. Doc. 39 at If 12; Doc. 28-2
at 3. Avera Defendants dispute that Hunter did not use drugs in the same room as her children.
Doc. 31 at If 12; Doc. 28-2 at 27, but this fact is not material to whether summaryjudgment should
enter.
Based on law enforcement's investigation on February 22, 2017, Hunter was indicted and
charged with possession of a controlled substance, a class 5 felony, and contributing to the abuse,
neglect, and delinquency of a child under SDCL § 26-9-1, which is a class 1 misdemeanor. Doc.
27 at f 53; Doc. 42 at Tf 53. Hunter pleaded guilty to both charges and received a suspended
sentence conditioned on her completion of the drug court program. Doc. 27 at ]f 54; Doc. 42 at ^
54.
While at Hunter's residence, Opbroek observed drug paraphernalia where the children
could get to it, and law enforcement informed Opbroek that there were drugs in the house. Doc.
27 at^ 18; Doc. 42 at^ 18; Doc. 31 at^ 19; Doc. 39 at ^ 19. Opbroek determined that Hunter was
still under the influence of drugs and thus unable to care for her children by herself, which
constituted a present danger to the children. Doc.27 at^ 19; Doc.42 at Tf 19; Doc. 31 at 13; Doc.
39 at ^ 13. Opbroek also noted the presence of a knife impaled in the door frame when he first
walked into Hunter's residence, which gave him further concerns for the children's safety. Doc.
31 at f 20; Doc. 39 at ]f 20. Opbroek did not believe that the potential danger from exposure to
methamphetamine was sufficient to have the children screened the night of February 22, 2017.
Doc. 27 at ^ 21; Doc. 42 at 21. Hunter and Opbroek agreed to a present danger plan involving a
neighbor named Margaret Rogers (Rogers). Doc. 27 at ^ 20; Doc. 42 at ^ 20. Rogers agreed to
help monitor Hunter thereafter.^ Doc. 27 at ^ 20; Doc. 42 at ^ 20.
On February 23, 2017, Opbroek ordered Hunter to get her children drug tested, and if she
refused, Hunter "couldn't keep them." Doc. 39 at 115.^ Opbroek's expressed rationale for the
drug screen was his concern that Hunter's children might have been exposed to drugs at some
level, including possible ingestion. Doc. 27 at ^ 23; Doc. 42 at ^ 23. Opbroek believed that the
'
Because Hunter is the party opposing summary judgment, this Court is taking as true Hunter's
account that the children were never removed from her custody, citing to Opbroek's deposition
where he states the children "were always in [Hunter]'s custody." Doc. 39 at ]f 14; Doc. 28-3 at
22. Avera Defendants contend that the "children were removed from [Hunter]'s care and put into
the temporary care of Margaret Rogers." Doc. 31 at If 14 (citing Doc. 28-3 at 7 where Opbroek
states "[w]e were not able to find an individual that would be able to stay in the home to provide
care for the children; so we did put the children with an individual that [Hunter] identified to care
for the children.").
^ Opbroek testified on February 23,2017,that he requested Hunter to have a drug screen performed
on her children and she agreed. Doc. 27 at ^f 22; Doc. 42 at ^ 22; Doc. 31 at Tf 15. In contrast,
Hunter testified that Opbroek told her that she had to have her children drug tested or she would
not be able to keep her children, and that is why she agreed. Doc. 27 at 122; Doc. 42 at 122.
children could have been exposed to the drugs due to their ability to aecess to areas where drugs
were kept. Doc. 31 at 17; Doc. 39 at f 17. Depending on the situation, DSS wants to know if
children are in danger of aetual exposure to drugs and whether their parents' drug use is directly
affecting the ehildren. Doc. 31 at Tf 16; Doc. 39 at 116.
Hunter and Opbroek discussed having the drug screening performed at the Avera Clinic
where Hunter had previously obtained healtheare. Doc.27 atf26;Doc.42 at^26. Hunter testified
that she did not know of any other option besides having the children drug tested at the Avera
Clinic.' Doc. 42 at ^ 25; Doc. 43-3 at 2; Doc. 31 at ^ 24; Doc. 39 at ^ 24. Opbroek told Hunter
that he assumed the drug sereens would involve urinalysis, but Opbroek did not diseuss with
Hunter how the medical provider would collect the samples used for the drug screens. Doc. 27 at
24, 32; Doc. 42 at Iflf 24, 32.
On February 24, 2017, Hunter contacted Opbroek to inform him that she wanted to go to
Huron for Stanley's court hearing. Doe. 27 at Tf 28; Doc. 42 at 28; Doc. 31 at ^ 30; Doc. 39 at ]f
30. Opbroek told Hunter to have the drug sereens for the ehildren completed before she left Pierre.
Doe. 27 at 128; Doc. 42 at ][ 28. Opbroek wanted the drug screening eompleted before Hunter
traveled to Huron to help him determine if there were any medical or health threats to Hunter's
ehildren, ineluding exposure to drugs. Doe. 27 at ^ 29; Doc. 42 at Tf 29; Doc. 31 at 131; Doc. 39
at^ 31. Hunter only agreed to have the drug screenings done because Opbroek said she would not
be able to keep her children unless she had her ehildren submit to urinalysis.^ Doc. 42 at ]f 28;
Doc. 32-1 at 2.
' Defendants contend that Opbroek told Hunter that the drug sereens could be performed by
DSS
her healthcare provider or by the South Dakota Child Assessment Center(CAC). Doc. 27 at ]f 25;
Doc. 28-3 at 11; Doc. 31 at ^ 24; Doc. 39 at Tf 24. Avera Defendants eontend that Hunter chose to
go to the Avera CUnic over the CAC. Doe. 31 at ^ 26.
^ As previously noted, this faet is disputed.
Hunter called the Avera Clinic and tried to make the appointments for urinalysis for her
two children.^ Doc. 33-1 at 6. Hunter told the lady who answered the phone at the clinic that she
was requesting a urinalysis because CPS wanted one done. Doc. 33-1 at 6. The lady at the Avera
Clinic "didn't have any knowledge of it." Doe. 33-1 at 6. Hunter called Opbroek and recounted
her call to the Avera Clinic. Doe. 33-1 at 6. Opbroek called the Avera Clinic/" and then called
Hunter back and told her that he made the appointment and dropped offsome papers at the clinic.
Doc. 33-1 at 6.
The papers Opbroek dropped off were some blank versions of DSS's
methamphetamine medical charting form. Doe. 27 at ]f 31; Doc. 42 at 131; Doe. 31 at Tf 32; Doc.
39 at^ 32. Opbroek did not give any other documents to Avera and did not fill out any part ofthe
form. Doc. 27 at ]f 31; Doc. 42 at ^ 31. Opbroek verbally told someone^^ at the Avera Clinic that
CPS was requesting "a toxicology or a drug screening" of Hunter's children because they might
have been exposed to drugs. Doc. 27 at ^ 32; Doe. 42 at ]f 32. Opbroek requested that the results
"How the appointment with Avera Clinic was made is less than clear. Avera Defendants contend
that Opbroek was not involved in scheduling the drug screening with Avera, which was done
entirely by Hunter. Doc. 31 at Tf 28. However, Avera nurse Katie Rochelle's (Rochelle) own
deposition and Avera Defendants' statements ofundisputed facts show that Opbroek was involved,
to some degree, in making the appointment. Rochelle testified that she called Hunter after she
received a note from an internal Avera system to call Hunter to gather more information about
what was being requested. Doc. 31 at If 40; Doe. 39 at 140; Doc. 33-5 at 2. Rochelle then spoke
with Hunter and Hunter requested a urinalysis. Doe. 31 at |lf 40-41; Doc. 39 at ^ 40-41.
Rochelle testified that she subsequently called Opbroek who confirmed that Hunter was going to
have a drug screening completed at Avera Clinic. Doe. 31 at ^ 42; Doc. 39 at If 42. DSS
Defendants also contend that "Opbroek did not schedule the appointment for [Hunter]." Doc. 27
at ^ 30;
^Doe. 28-3 at 28.
Opbroek testified about this during the deposition as follows:
Q. All right. So then after you have this phone call with Ms. Hunter, do you
remember with any clarity, did you call the clinic or did the clinic call you about
the drug screen?
A. I don't recall, but in my notes it says that I contacted them.
Doe. 43-5 at 8.
^ ^ Rochelle testified in her deposition that she was the person Opbroek spoke to at the Clinic. Doc.
32-5 at 3.
7
be sent to DSS via fax. Doe. 39 at 75; Doc. 33-5 at 3. Opbroek had no further contact with
anyone from Avera Clinic or with Himter before the drug screening was performed. Doe. 27 at
33; Doc. 42 at ]f 33.
Aroimd 11:00 a.m. on February 24, Katie Rochelle(Rochelle), a registered nurse in Avera
Clinic's pediatric department, called Teresa Cass(Cass), a pediatric nurse practitioner, about drug
screening Hunter's children. Doe. 31 at If 36; Doc. 39 at136;Doc. 32-5 at 5,8. Rochelle informed
Cass that Opbroek had told Hunter to get her children drug screened. Doc. 39 atf 37; Doe. 33-6
at 2. Cass then ordered the drug screen of Hunter's children. Doc. 31 at Tf 36; Doe. 39 at ^ 36.
Cass did not speak to Opbroek or anyone at DSS about Hunter's situation. Doc. 31 atf 37; Doc.
39 at ^ 37. Cass was not present at the clinic at the time. Doc. 39 at If 36; Doe. 33-6 at 2, 6, and
indeed was not scheduled to work that day and was out oftown. Doe. 32-6 at 2. There were two
other pediatricians working that day, but they did not order the tests. Doe. 40-5 at 7.
On the Avera St. Mary's campus in Pierre, South Dakota, there are different departments
with different buildings. Doe. 40-5 at 3. The Child Assessment Center(CAC)is one department
located in a south building on the campus. Doe. 40-5 at 3. The CAC is a private agency funded
through grants, the National Children's Alliance, and other organizations. Doc. 40-5 at 5. The
CAC has an interagency agreement with DSS. Doc.40-5 at 6. Every month,the CAC has a multi-
disciplinary meeting involving the Department of Criminal Investigation, the Federal Bureau of
Investigation, the state's attorney's office, and a patient advocate. Doc. 40-5 at 6. Cass works
both for the CAC where she provides medical screening of children about 50 to 100 hours per year
and for Avera Clinic where she is a full time pediatric nurse practitioner. Doc. 32-6 at 3; Doe. 405 at 6. Doc. 40-4 at 2.
On the afternoon of February 24, 2017, Hunter went to Avera Clinie with her ehildren in
order to have both ofthem drug sereened. Doc. 31 at 35; Doc. 39 at 135; Doe. 31 at ]f 38; Doc.
39 at^ 38. According to Avera's Informed Consent Policy,"[a] written informed consent must be
obtained prior to any medical treatment being performed." Doc. 40-7 at 2. There is no evidence
that Hunter signed an informed consent document that day. Doc. 42 at ^ T. Hunter took her
ehildren to the lab area of Avera Clinie. Doe.27 at^ 34; Doe.42 at ^ 34; Doc. 31 at ]f 38; Doc. 39
at ^ 38. Hunter, her children, and a lab tech went into a private bathroom. Doe. 27 at 135; Doc.
42 at I 35. Hunter's daughter provided a urine sample by urinating into a specimen container
shaped like a hat.'^ Doe. 27 at ^ 35; Doe. 42 at If 35; Doe. 31 at ^f 38; Doc. 39 at ^ 38. Hunter's
son, A.Q., was not potty-trained. Doe. 27 at ^ 36; Doe. 42 at 136. A laboratory technician tried
to have A.Q. urinate into a specimen container shaped like a hat,but A.Q. would not urinate. Doc.
27 at 136; Doe. 42 at If 36; Doc. 31 at Tf 38; Doc. 39 at If 38.
After A.Q. could not voluntarily produce a urine sample, the laboratory technician called
Rochelle, and Roehelle took Hunter and her children to the pediatrics department to perform a
catheterization on A.Q.^^ Doe.27 at ^ 38; Doc.42 at Tf 38; Doe. 31 at Tf 53; Doc. 39 at 153; Doe.
28-4 at 3-A. Hunter felt like they were "rushed over across the room to the other." Doe. 29 at
|
46; Doe. 40-2 at 3. Hunter helped hold down A.Q. while Rochelle performed the catheterization
Hunter has not made any claims in this lawsuit on her daughter's behalf. Doe. 27 at ^ 35; Doc.
42 at Tf 35.
Avera Defendants contend that Rochelle visited with Hunter about possible altematives to
catheterization, although Himter disputes this conversation took place. Doe. 31 at ^ 39; Doe. 39
at ^ 39. Rochelle testified that since A.Q. was not yet potty-trained, Roehelle informed Himter
that A.Q. could (1) wait at the clinie and try again;(2) go home and come back later;(3) have a
bag put around his privates and wait at the clinie; or(4)be catheterized. Doc. 31 at^44; Doe. 335 at 2. She also testified that Hunter chose to have the catheterization done. Doe. 31 at 145; Doc.
33-5 at 2. Hunter testified that Roehelle did not discuss any other option besides catheterization
of A.Q. with her. Doe. 39 at ^f 39; Doc. 40-1 at 9.
procediire. Doc. 27 at ^38-39; Doc. 42 at T|Tf 38-39; Doc. 31 at ^ 55; Doc. 39 at ^ 55. The
procedure took a few minutes.
Doe. 31 at Tf 57; Doe. 39 at ]f 57. Upon eompletion of both
children's drug sereenings,Hunter stopped by the DSS offiee to inform Opbroek that the children's
drug screens had been completed and to complete paperwork related to setting up a present danger
plan involving Himter's mother. Doe. 31 at ^ 58; Doc. 39 at ^ 58.
DSS has no official policy requiring eatheterization to obtain a urine sample from a ehild.
Doe. 27 at ]f 52; Doe. 42 at^ 52. Opbroek did not know a eatheter had been used to obtain a urine
sample from A.Q. until Hunter told him after the eatheterization had already oeeurred. Doe. 27 at
]f 49; Doe.42 at^49;Doe.31 at^60;Doc.39 at ]f 60. Opbroek testified that the situation involving
Hunter and her ehildren was the only case Opbroek had ever been involved with where Avera
Clinie eonducted and proeessed the drug sereening of children. Doc. 31 at 62; Doc. 39 at Tf 62.
DSS considers how urine samples are obtained to be a deeision best determined by the medieal
provider. Doc. 27 at^ 52; Doc.42 at ^ 52. CPS is not aware ofany other child being eatheterized
as a result of a drug sereening or health assessment requested by CPS. Doe. 27 at 51; Doe.42 at
1f51.
Rochelle testified that the eatheterization was a medical procedure. Doc. 27 atf 40; Doc.
42 at Tf 40. Rochelle had eatheterized many ehildren before the procedure on A.Q. Doe. 27 at ^
39; Doe. 42 at ]f 39; Doe. 31 at ^ 49; Doc. 39 at f 49. A.Q.'s urine was subject to a drug screen
for an array ofintoxieating substanees. Doe. 27 at ^ 45; Doe. 42 at ^ 45. Roehelle was not aware
of a way to limit the drug screen to one substance sueh as methamphetamine. Doc. 27 at f 45;
Doc. 42 at]f 45.
A.Q. developed a urinary tract infection after the eatheterization and reeeived medieal attention
during later visits. Doe. 27 at ^ 50; Doe. 42 at ^ 50. The infeetion resolved after a seeond eourse
of antibiotie medieation. Doe.27 atf 50; Doe. 42 at^ 50.
10
Rochelle understood Hunter to be the person who could make medical decisions for A.Q.
Doc. 27 at ^ 41; Doc. 42 at ^ 41. Opbroek was not consulted about how to collect urine samples
from Hunter's children at Avera Clinic and did not direct anyone to have A.Q. catheterized. Doc.
27 at^44; Doc.42 at^44. Rochelle testified that she made the decision to obtain the urine sample
by catheterization and did so because Hunter wanted to use that method of obtaining the sample.
Doc. 27 at ]|41; Doc. 42 at ^ 41. However, Hunter testified that she was given no other option to
avoid losing her children than to get them drug tested at Avera Clinic and that once A.Q. could not
produce voluntarily a urine sample, catheterization was presented as the lone option. Doc.42 at Tf
25; Doc. 43-3 at 2; Doc. 31 at ^ 24; Doc. 39 at ^ 24.
On February 27, 2017, Cass learned that the results from the screening were in and called
Opbroek (and not Hunter) to inform CPS that the drug screens for both children were negative
concerning any intoxicating substances. Doc. 27 at 46; Doc. 42 at ^ 46; Doc. 31 at Tf 59; Doc.
39 at ^ 59; Doc. 33-6 at 7. On March 1,2017, Cass faxed to Opbroek(and not Hunter) a copy of
the medical toxicology results. Doc. 39 at ^ 59; Doc. 33-6 at 8. Avera did not use the DSS
methamphetamine medical charting form Opbroek dropped off and reported the results to CPS on
Avera's own form. Doc. 27 at ^ 46; Doc. 42 at ^ 46; Doc. 31 at ^ 33; Doc. 39 at 33. Hunter
|
agreed to release her children's medical records to CPS. Doc. 27 at 27; Doc. 42 at ]f 27. Hunter
signed the medical release form authorizing DSS to access A.Q.'s medical records on April 6,
2017. Doc. 42 at Tf CC; Doc. 43-11. Opbroek used the results as part of his initial family
Rochelle testified that Hunter could have stopped the catheterization if she had observed
anything that made her think using a catheter on A.Q. would be unsafe. Doc. 27 at 142; Doc. 42
at ^ 42. Rochelle testified that Opbroek had not asked her to keep Hunter at the clinic until A.Q.
provided a urine sample, and that she had no authority to keep Hunter from leaving the clinic
without providing a urine sample. Doc. 27 at Tf 43; Doc. 42 at ^ 43.
11
assessment. Doc. 27 at ^ 47; Doc. 42 at ^ 47. Opbroek did not provide the drug screen results to
anyone else. Doc. 27 at ^ 47; Doc. 42 at ^ 47. Hunter stated that she did not learn the results of
the drug screening until September of2017. Doc. 28-2 at 27.
Plaintiffs complaint contains four separate counts alleging violations of the Fourth
Amendment, Fifth Amendment, and Due Process Clause ofthe Fourteenth Amendment. Doc. 13
at If 1. Hunter seeks an order permanently enjoining the Defendants from catheterizing children
for any non-medical piurpose, compensatory and general damages, as well as attorney fees and
costs. Doc. 12 at
56-58. DSS Defendants and Avera Defendants have moved for summary
judgment on all claims. Docs. 25, 29.
III. Analysis
A. Avera Defendants as State Actors
Avera Defendants initially argue for summaryjudgment by asserting that they are not state
actors and thus not subject to a § 1983 claim because the catheterization of A.Q. was for a medical
purpose. Doc. 29 at 1. "Section 1983 imposes liability on anyone who, under color of state law,
deprives a person 'of any rights, privileges, or immunities secured by the Constitution and laws.'"
Blessing v. Freestone. 520 U.S. 329, 340 (1997)(citation omitted). "Private actors may incur
section 1983 liability only if they are willing participants in a joint action with public servants
acting imder color of state law." Johnson v. Outboard Marine Corp.. 172 F.3d 531, 536 (8th Cir.
1999) s^ Dennis v. Sparks. 449 U.S. 24, 27 (1980)(stating that a private actor is considered a
state actor if the private actor is a "willful participant in joint action with the State or its agents").
A person may fairly be said to be a state actor if they '"acted together with or . . . obtained
significant aid from state officials' in furtherance of the challenged action." Wickershfim y. City
of Columbia. 481 F.3d 591, 597(8th Cir. 2007)(quoting Lugar v. Edmondson Oil Co.. 457 U.S.
12
922,937(1982)). To establish liability under § 1983, a plaintiff"must establish, at the very least,
an agreement or meeting of the minds between the private and state aetors, and a eorresponding
violation of the plaintiffs' rights under the Constitution or laws of the United States." .Tohnsnu
172 F.3d at 536;s^ West v. Atkins. 487 U.S. 42,49(1988). State action exists "only when it can
be said that the State is responsible for the specific conduct of which the plaintiff complains."
Pariser v. Christian Health Care Svs.. Inc.. 816 F.2d 1248, 1252(8th Cir. 1987)(quoting Blum v.
Yaretskv. 457 U.S. 991, 1004 (1982)). "The traditional definition of acting under color of state
law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of
state law and made possible only because the wrongdoer is clothed with the authority of state
law.'" Parker v. Bover. 93 F.3d 445, 447-48 (8th Cir. 1996)(quoting West. 487 U.S. at 49).
Whether a defendant is a state actor is often a mixed question oflaw and fact. See Focus on the
Familv v. Pinellas Suneoast Transit Auth.. 344 F.3d 1263, 1276(11th Cir. 2003)(citing Lavne v.
SampleV. 627 F.2d 12, 13 (6th Cir. 1980)("Although in certain eases, it is possible to determine
the question whether a person acted under color of state law as a matter oflaw, there may remain
in some instances 'unanswered questions of fact regarding the proper characterization of the
actions' for the jury to decide.")).
Hunter can show state action when a medical provider acts as an "investigative arm ofthe
State." Thomas v. Nationwide Children's Hosp.. 882 F.3d 608,616(6th Cir. 2018). This potential
hability for acting as "an investigative arm of the state" must be based on the medical provider's
own acts or failure to act and not based merely on respondent superior.
Smith v Tnslev's Inc..
499 F.3d 875, 880 (8th Cir. 2007)("A corporation acting under color of state law will be held
liable under section 1983 for imconstitutional policies, but will not be liable on a respondent
superior theory."). "A private corporation cannot be held liable rmder § 1983 for its employees'
13
deprivation of another's rights." Id. However, a private corporation may be liable under § 1983
if the injury alleged is the result of the corporation's policy or practice or if the corporation knew
ofits employees' misconduct and failed to take steps to end the misconduct. Id
For example, in Kia P. v. Mclntvre. 235 F.3d 749(2d Cir. 2000), the Second Circuit held
that a hospital, owned and administered by a private corporation, was a state actor when it was
acting as a "reporting and enforcement machinery for . . . a government agency charged with
detection and prevention of child abuse and neglect." Id at 756. In Kia P.. on March 27, 1993,
Kia went into labor and disclosed to the hospital that she had used crack cocaine in the past, was
HIV-positive, and had a history oftuberculosis and syphilis. Id at 752. When Kia's daughter was
bom later that day, the hospital was concemed about the absence of adequate prenatal care and
tested the newborn's urine for drugs, which preliminarily tested positive for methadone. Id The
hospital, as required by statute, reported to the New York City Child Welfare Administration
(CWA)that the newbom tested positive for methadone. Id at 756. Kia was discharged from the
hospital on March 29, 1993, but the hospital refused to discharge Kia's newbom daughter for two
reasons. Id at 752. First, the hospital believed the newbom had dmgs in her system because of
the positive test result and wanted to monitor her health for withdrawal. Id Second, the hospital
held the newbom in accordance with its own policy and CWA's "policies requiring that any child
under investigation by CWA not be released from the [hjospital without CWA permission." Id at
752-53. After the initial test came back positive, the hospital sent the newbom's urine sample to
an outside laboratory for confirmatory testing. Id at 753. On April 6 or 7, the hospital leamed
that the confirmation test found no dmgs in the newbom's urine. Id Subsequently, the hospital
cleared the baby for discharge. Id The Court held that all ofthese actions until April 6 or 7 were
"taken by the [hjospital in its capacity as a private provider ofmedical care and thus do not subject
14
the [hjospital to liability under § 1983." Id. at 756. However, the hospital did not release the
newborn until April 8 solely because CWA did not give the hospital permission to release the baby
untd April 8 because CWA had concerns about child abuse and child welfare. Id at 757. The
Second Circuit reasoned that holding the newborn after she was medically cleared on April 6 or 7
until April 8 subjected the hospital to liability under § 1983 as state actors during that time because
the baby was there "solely pending action by the CWA." Id
Here, when viewing the evidence in the light most favorable to Hunter, Avera Clinic is not
a state actor. Plaintiff argues that Avera's CAC policies and contracts apply to the Avera Clinic
and constitute unconstitutional practice and procedure. This Court need not decided whether
CAC's policies and practices are unconstitutional. Any policies and interagency contracts CAC
has do not extend to Avera Clinic, nor is it Avera Clinic's practice to apply these policies. Unlike
the hospital in Kia P. whose policy directed that children not be released vmder certain
circumstances without the permission of CWA, Avera Clinic had no such policies related to
catheterization of children and DSS. Additionally, there is no evidence Avera Clinic knew of any
alleged employee misconduct and failed to correct the misconduct concerning catheterization of
children for DSS. No evidence has been presented that Avera Clinic had a pohcy or practice to
collect evidence for a state investigation by forcefully catheterizing children without parental
consent and without judicial approval. Summary judgment is granted for Avera Clinic on all
claims because Avera Clinic is not a state actor and cannot be held to be a state actor based merely
on respondeat superior principles.
Hunter also alleges that Doe Defendants 1-4 who participated in the catheterization ofA.Q.
and were present at the hospital are state actors. Doc. 12 at ^ 24. No evidence has been presented
that Doe Defendants 1—4 knew anything about the DSS investigation or knew the purpose of the
15
urinalysis. There was no "meeting ofthe minds" between Doe Defendants 1-4 and DSS to eollect
evidence for the state, so Doe Defendants 1—4 are not state actors and any claims against Doe
Defendants 1-^ are dismissed. See Doe v. Tsai. No. CIV.08-1198 (DWF/AJB), 2010 WL
2605970, at *13 (D. Minn. June 22, 2010)(holding that no reasonable juror could conclude that
three nurses violated Plaintiffs' constitutional rights when they had limited involvement in the
physical examinations of the children), afPd sub nom. Doe ex rel. Thomas v. Tsai. 648 F.3d 584
(8th Cir. 2011).
However, the same is not true for defendants Rochelle and Cass. Medical defendants can
become "state actors when the rationale behind their [treatment of a child] ceased to be medical
necessity and became solely the investigation of child abuse." Estiveme v. Esemio-Jenssen. 581
F. Supp. 2d 335, 345^6 (E.D.N.Y. 2008). Rochelle was not acting as a medical provider for
Hunter or A.Q. when retrieving a urine sample from A.Q. Hunter testified that she tried to schedule
the urinalysis but was not able to without DSS's help. If the urinalysis was for a medical purpose.
Hunter should have been able to schedule the appointment for her children to have the testing
preformed. Indeed, Opbroek called Avera Clinic to sueeessfully schedule the appointment,
advised Hunter of the appointment being made, and dropped off the DSS methamphetamine
medical charting form at the elinie. Although this methamphetamine medical charting form was
never used by Rochelle, Rochelle discussed the purpose of the appointment with Opbroek and
carried through with Opbroek's request to obtain urine samples, albeit using a catheter on A.Q.
without Opbroek's knowledge or direction.
Rochelle argues that the catheteiization was for a medical purpose and testified that the
eatheterization was a medical procedure. However, Rochelle evidently did not perform the test
because A.Q. exhibited medical signs of drug ingestion. Rochelle did not check vitals or conduct
16
any other evaluation of A.Q.
Doc. 40-4 at 9. Rochelle followed the directive from Opbroek
and tested A.Q.'s urine. Simply because catheterization is a medical procedure does not mean it
was done for medical reasons.
Tenenbaum v. Williams. 193 F.3d 581, 599 (2d Cir. 1999)
("During the examination of[the child]'to rule out[the possibility of] sexual abuse,' injuries might
have been found, and ifso we would surely expect them to have been treated. But that possibility
did not turn an investigative examination into one that is 'medically indicated' and designed for
treatment."). When viewing the facts in the light most favorable to Plaintiff, Rochelle is a state
actor because her actions were taken to collect evidence for the state.
Cass is also a state actor. Rochelle communicated with Cass over the telephone that the
test was being performed because Opbroek bad told Hvmter to have her children drug screened.
Cass subsequently ordered the drug screen. On February 27, 2017, Cass became aware that the
results from the screening were in and, instead of calling Hunter, she called Opbroek to inform
him that the results were negative. On March 1,2017,Cass faxed to Opbroek a copy ofthe medical
toxicology results. Hunter did not sign a written authorization to allow DSS to have access to
A.Q.'s medical records until April 2017, so Cass released the results to DSS before written
authorization was obtained. Hunter was not made aware ofthe results until months later. Opbroek
used the results as part ofbis investigation for DSS,a state agency. Plaintiffbas put forth sufficient
facts to show there was a meeting ofthe minds among Cass, Rochelle, and Opbroek to collect and
test A.Q.'s urine sample as evidence for DSS's investigation.
B. Personal Capacity Claims
1. Individual Capacity and Qualified Immunity
Under § 1983, state officials may be sued in their individual capacities, their official
capacities, or both. Johnson. 172 F.3d at 535. Here, Hunter is suing different defendants in
17
different capaeities under eaeh count. As explained more fully below, individual and official
capacity suits differ in both their pleading requirements and the defenses available to the official.
Hafer v. Melo. 502 U.S. 21, 25(1991). Because ofthese differences, this Court will address
Hunter's individual capacity and official capacity claims separately.
Plaintiff seeks compensatory and general damages against each of the individual
defendants sued in his or her personal capacity.^® Doe. 12 at ]f 57. Qualified immunity is one of
the defenses available to state officials sued in their individual capaeities under § 1983. "Qualified
immunity shields a government official firom liahility in a § 1983 action unless the official's
conduct violates a clearly established constitutional or statutory right of which a reasonable person
would have known." Partlow v. Stadler. 774 F.3d 497,501 (8th Cir. 2014). Courts use a two-step
inquiry to determine whether quaUfied immunity applies: "(1) whether the facts shown by the
plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was
clearly established at the time of the defendant's alleged misconduct." Id If the court finds that
one of the two elements is not met, the court need not decide the other element, and a court may
address the elements in any order it wishes "in light of the eircumstanees of the particular ease at
hand." Pearson v. Callahan. 555 U.S. 223, 236 (2009). "Government officials are entitled to
qualified immunity '[ujnless both of these questions are answered affirmatively.'" Greenman v
lessen. 787 F.3d 882, 887 (8th Cir. 2015)(alterations in original)(quoting Nord v. Walsh Ctv..
757 F.3d 734, 738 (8th Cir. 2014)).
Plaintiff also alleges what appears to be an individual capacity claim against Avera St. Mary's
Hospital. However, Rochelle and Cass being state actors for the purposes of this ease does not
render St. Mary's Hospital liable based on respondeat superior principles. See Tnslev's Inc.. 499
F.3d at 880.
18
A § 1983 claim cannot be based upon viearious liability. Kulow v. Nix. 28 F.3d 855, 858
(8th Cu-. 1994). That is,"a general responsibility for supervising the operations ofa[state agency]
IS msufScient to establish the personal involvement required to support hability" for an alleged
constitutional violation. Camberosv. Branstad,73 F.3d 174,176(8th Cir. 1995). Thus,this Court
must consider whether"each Government-official defendant,through the official's own individual
actions, has violated the Constitution." Ashcroftv. Tgbal. 556 U.S. 662,676(2009).
Wieseler is the Division Direetor for CPS. Doc.28-1 at 1. Valenti is the Secretary ofDSS.
Doc. 12 at 119. Plaintiffs' complaint is devoid of any allegations against Wieseler or Valenti in
their personal capacities. ^Doe. 12. Additionally, Plainiffs' Brief in Opposition to DSS
Defendants' Motion for Summary Judgment does not mention either ofthese two defendants.^
Doc. 41. Because Plaintiff does not allege that Wieseler or Valenti deprived her or A.Q."of any
nghts, pnvileges, or immunities secured by the Constitution and laws," Blessing. 520 U.S. at 340,
and because Plaintiffdoes not argue liability based on any theory,sueh as "supervisory authority,"
summaryjudgment is granted for Wieseler and Valenti on all personal eapacity elaims,^Ripson
Y^AU^ 21 F.3d 805, 809(8th Cir. 1994)(discussing ways a supervisor may be held hable under
§ 1983). The remaining defendants that may be sued under § 1983 in their individual capacities
are Opbroek, Cass, and Roehelle.
2. Counts in the Complaint
a. Count I: Fourth Amendment
i) Step One: Constitutional Violation
Hunter claims that "[t]he search of A.Q. violates the Fourth Amendment because it was
unreasonable and because it was not authorized by ajudge." Doc. 12 at U 13. Hunter is asserting
this claim on behalf of A.Q. Doc. 41 at 5. The Fourth Amendment of the United States
19
Constitution prohibits unreasonable searches and seizures. United States v. Place. 462 U.S. 696,
701 (1983). "[S]tate-compelled collection and testing ofurine ... constitutes a 'search' subject to
the demands of the Fourth Amendment." Levine v. Roebuck. 550 F.3d 684, 687(8th Cir. 2008)
(quoting Vemonia Sch. Dist. 47J v. Acton. 515 U.S. 646, 652 (1995)). "Search warrants are
ordinarily required for searches of dwellings, and absent an emergency, no less could be required
where intrusions into the human body are concerned." Schmerberv. California 384 U.S. 757,770
(1966). In Andrews v. Hickman County. 700 F.3d 845(6th Cir. 2012), the Sixth Circuit held that
"a social worker, like other state officers, is governed by the Fourth Amendment's warrant
requirement." Id at 859-60. The Fourth Amendment is implicated when a child is subjected to a
medical examination conducted at a private hospital undertaken at the initiative of a state official
that serves primarily an investigative function. Tenenbaum. 193 F.3d at 606; see id at 602
(affirming the district court's holding that a physical examination of a five-year-old girl where
"[t]he gynecological examination included the insertion ofa cotton swab in [the girl's] vagina and
anus" without consent or a court order violated the girl's constitutional rights).
However, there are exceptions to the warrant requirement, two of which are exigent
circumstances and consent. United States v. Uscanga-Ramirez. 475 F.3d 1024,1027-28(8th Cir.
2007). "Consent to search is a valid exception to the warrant requirement if the consent is
knowingly and volimtarily given." Id at 1027 (citation omitted). "[VJoluntariness of consent to
a search must be 'determined fi-om the totality of all the circumstances.'" Rircbfield v. North
Dakota. 136 S. Ct. 2160, 2186 (2016)(quoting Schneckloth v. Bustamonte. 412 U.S. 218, 219
(1973)). Hunter testified that Opbroek stated that her children would be taken away if she did not
get a urinalysis performed on the children. Based on that statement, there is at least a genuine
issue of material fact on whether Hunter's consent was obtained through coercion.
20
Goings v.
Chickasaw Cty.. 523 F. Supp. 2d 892, 912(N.D. Iowa 2007)(stating that ordinarily, testimony
that a person's children will be taken away if they do not consent to a search will be sufficient to
survive summary judgment); Lvnumn v. Illinois. 372 U.S. 528, 534 (1963) (holding that a
confession was coerced and not voluntary, where the suspect made the confession "only after the
police had told her that state financial aid for her infant children would be cut off, and her children
taken from her, if she did not 'cooperate'"); United States v. Tingle. 658 F.2d 1332,1335-36(9th
Cir. 1981)(reaching the same conclusion in case involving less explicit threats, because "[t]he
relationship between parent and child embodies a primordial and fundamental value of our
society").
Opbroek argues that he cannot be liable for the catheterization because he did not know a
catheter would be used for the urinalysis. "Because vicarious liability is inapplicable to ...§ 1983
suits, a plaintiff must plead that each Government-official defendant, through the official's own
individual actions, has violated the Constitution." Iqbal. 556 U.S. at 676. Opbroek's actions when
viewed in the light most favorable to Plaintiff include threatening Hunter that her children would
be taken away if she did not have her children drug screened, scheduling the children's urinalysis
appointments, and obtaining results of the urinalysis thereafter. Opbroek neither attended the
appointment with Hunter and her children,nor knew how the urine would be collected, nor directed
the use of a catheter on A.Q.
In Levine v. Roebuck, the Eighth Circuit held that a correctional officer could not be held
liable for the catheterization of an inmate because liability under § 1983 is personal. Levine. 550
F.3d at 689. In Levine. a correctional officer threatened an inmate that he would be subject to
discipline ifhe did not produce a urine sample, which was consistent with the prison's drug testing
policy. Id. at 688. The inmate could not produce a sample, so the officer ordered the inmate to be
21
taken to be catheterized, which then oeeurred. Id. at 689. The inmate argued that the
eatheterization violated his Fourth Amendment rights because his consent was only given because
he was threatened with prison discipline otherwise. Id However,the Eighth Circuit held that the
correctional officer was not personally responsible for any involimtary eatheterization, so he did
not violate the inmate's Fourth Amendment rights. Id. Similar to Levine. "even if[Opbroek]
ordered [Himter] to go to the [hospital],[he] had no contact with the medical professionals after
[Hunter] arrived and no authority to direct those professionals to undertake the eatheterization
procedure ifthey thought it medically inappropriate or if[Hunter] refused to consent." Id. While
Levine is a prison case and "a prison inmate has a far lower expectation of privacy than do most
other individuals in our society," M. at 687, the same vicarious liability principles apply in this
ease. Ophroek is not vicariously liable for the actions ofRoehelle or Cass. Because Opbroek was
not personally responsible for the eatheterization that occurred, Opbroek did not violate A.Q.'s
Fourth Amendment rights.
id at 689. Thus,summaryjudgment will enter for Opbroek in his
personal capacity on A.Q.'s Fourth Amendment rights claim.
As state actors, Cass and Roehelle are acting similarly to state hospital staff with respect
to A.Q. A state hospital's staffare government actors,subject to the Fourth Amendment. Ferguson
V. Citv of Charleston. 532 U.S. 67, 76 (2001). When state hospitals undertake to obtain evidence
from their patients for the specific purpose of incriminating those patients, they have a special
obligation to make sure that the patients are fully informed about their constitutional rights, as
standards ofknowing waiver require. Id at 85. Cass had no interaction with Hunter or A.Q. and
ordered urine samples to be obtained and tested, not directing that eatheterization of A.Q. be the
method. Thus, Cass's individual actions are far less than the correctional officer in Levine whom
the Eighth Circuit found not to be liable as a matter of law. Levine. 550 F.3d at 688-89. By
22
contrast, Rochelle is the one who chose to and did catheterize A.Q. to obtain his urine sample.
Whether or not Rochelle knew Hunter's consent was obtained by coercion from Opbroek, she
knew that the urinalysis was to collect evidence for DSS. Neither Rochelle nor anyone else
informed Hunter about any constitutional rights or obtained written consent for the catheterization,
in violation ofthe Fourth Amendment.
Notwithstanding the compulsion from the threat of her children being taken, a jury could
conclude from Hunter's actions that she consented to urine samples from her children, and indeed
Hrmter makes no claim on behalf of her daughter who voluntarily urinated into a hat-shaped
container to give a sample. Even so, a reasonable jury could find that Hunter did not consent to a
urinalysis by catheterization of A.Q. Plaintiffs argue that the manner in which A.Q.'s urine was
obtained violated A.Q.'s Fourth Amendment rights against unreasonable searches and seizures.^''
Doc. 41 at 40-41. "If the scope of the search exceeds that permitted by the terms of a validly
issued warrant or the [consent to the search], the subsequent seizure is unconstitutional without
more." Horton v. California. 496 U.S. 128,140(1990). When viewing the facts in the light most
favorable to Plaintiff, there is at least a question offact whether Rochelle violated A.Q.'s Fourth
Amendment rights on the basis of an unreasonable seizure. Doc. 41 at 42. After all,
"[cjatheterization is an invasive medical procedure. It involves insertion of a tube through the
suspect's urethra and into the bladder to obtain a urine sample. Such a highly intrusive act raises
the question if and when it is a reasonable method of urine collection." South Dakota v. Hi Ta
Substantive due process claims are unavailable when the claims are covered by the Fourth
Amendment. Ctv. of Sacramento v. Lewis. 523 U.S. 833, 843 (1998); Garcia-Torres v. Holder.
660 F.3d 333,337(8th Cir. 2011). Plaintiff claims that the way the ca&eterization was performed
shocks the conscience and violates the Substantive Due Process clause of the Fourteenth
Amendment. Doc. 41 at40-Al. However, the Fourth Amendment covers unreasonable searches
and seizures, so this claim is analyzed under the Fourth Amendment.
23
Lar, 2018 SD 18,f 24, 908 N.W.2d 181, 188(Kem,J., cxjncurring). "Moreover, the foreeful use
of a catheter is a 'gross personal indignity' far exceeding that involved in a simple blood test."
Ellis V. City of San Diego. 176 F.3d 1183, 1192 (9th Cir. 1999)(quoting Yanez v. Romero. 619
F.2d 851 (10th Cir. 1980)).
The catheterization ofA.Q. was not based on exigent circumstances. There is no indication
that an immediate urinalysis was necessary to prevent the presence of drugs from dissipating from
A.Q.'s urine.
Opbroek did not believe that the potential danger from exposure to
methamphetamine was sufficient to have the children screened on the night ofFebruary 22,2017.
A day and a half had passed between when Opbroek initially saw the need for a urinalysis and
when A.Q. was tested. When viewing the facts in the light most favorable to Plaintiff, a reasonable
jury could conclude that Rochelle violated A.Q.'s Fourth Amendment rights by using an
unreasonable method to collect a urine sample.
Despite being a state actor under these eireumstanees, Cass cannot be held vicariously
liable for Roehelle's involvmtary catheterization of A.Q. While Cass gave an order to get a urine
sample and communicated the results to Opbroek, Cass was not present for the catheterization and
did not specifically order catheterization ofA.Q. Cass has not violated A.Q.'s constitutional rights
based on her own actions. ^Levine. 550 F.3d at 689(holding that a eorreetional officer did not
violate the defendant's Fourth Amendment rights because he was not personally responsible for
the catheterization). For the same reasons Opbroek is not vicariously liable for the actions of
Rochelle, Cass is not vicariously liable for Roehelle's actions. Accordingly, Cass is entitled to
summaryjudgment on A.Q.'s Fourth Amendment claim.
il) Step Two: Clearly Established Right
24
Even if A.Q. was deprived of a constitutional right, Defendants can claim the protection of
qualified immunity if that right was not "clearly established." Saucier v. Katz. 533 U.S. 194, 201
(2001). "Qualified immunity gives government officials breathing room to make reasonable but
mistaken judgments," and "protects 'all but the plainly incompetent or those who knowingly
violate the law.'" Stanton v. Sims. 571 U.S. 3,6(2013)(per curiam)(quoting Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011)). Qualified immunity does not require there be a case directly on point
before concluding that the law is clearly established,"but existing precedent must have placed the
statutory or constitutional question beyond debate." Id at 6 (citation omitted). "In order to be
clearly established, the contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right[,]" and "[rjeciting an abstract right at a
high level of generality will not suffice." Ehlers v. Citv of Ranid Citv. 846 F.3d 1002, 1008 (8th
Cir. 2017)(citations, alteration, and intemal quotations omitted). "[Ojfficials can still be on notice
that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer.
536 U.S. 730, 741 (2002). "To overcome qualified immunity, a plaintiff typically must identify
either 'cases ofcontrolling authority in their jurisdiction at the time ofthe incident' or 'a consensus
of cases of persuasive authority such that a reasonable officer could not have believed that his
actions were lawful.'" Jacobson v. McCormick.763 F.3d 914,918(8th Cir. 2014)(quoting Wilson
V. Lavne. 526 U.S. 603, 617(1999)). "Officials are not liable for bad guesses in gray areas; they
are liable for transgressing bright lines." Ambrose v. Young.474 F.3d 1070,1077(8th Cir. 2007)
(citation omitted).
The DSS Defendants argue that requesting a drug screening of a minor child by medical
personal is not a violation ofa clearly established right. Doc. 46 at 11-12. However, viewing the
facts in the light most favorable to A.Q., which this Court is required to do at the summary
25
judgment stage, the question is whether threatening a person that her ehildren will be taken away
unless the ehildren submit to a drug sereening to colleet evidenee for the DSS is a violation of a
clearly established right. Ultimately, this Court need not determine this answer because no DSS
Defendants violated A.Q.'s Fourth Amendment rights. Only as to Roehelle is there a genuine issue
of material fact over any Avera Defendant having violated A.Q.'s Fourth Amendment rights.
Roehelle has not raised a qualified immunity defense and does not appear to have such a defense
available to her.^Richardson v. McKnight. 521 U.S. 399,401 (1997)(private company prison
guards not entitled to qualified immunity defense in § 1983 ease).^®
b. Count II: Fifth and Fourteenth Amendment Due Process
Plaintiff claims in her complaint that Defendants' coercion of Hunter's consent to
cooperate or lose custody of her ehildren violated the Due Process Clause of the Fifth
Amendment'^ and Fourteenth Amendment. Doc. 12 at 10. This Court interprets Count II in
Plaintiff's Amended Complaint as a procedural due process elahn. "To establish a violation of
procedural due process,[Hunter] must[show] 1)[the defendants] deprived [Hunter]oflife, liberty,
or property; and 2)[the defendants] deprived [Hxmter] ofthat interest without sufficient process."
Clark V. Kansas Citv Mo. Sch. Dist.. 375 F.3d 698, 701 (8th Cir. 2004)(citation and internal
quotation marks omitted).
During oral argument on the motions for summary judgment.
The Avera Defendants did not plead a defense of qualified immunity either. Rule 8(c) of the
Federal Rules of Civil Procedure requires a party to plead affirmative defenses in its answer. Fed.
R. Civ. P. 8(c); see also Swanson v. Van Otterloo. 177 F.R.D. 645,647(N.D. Iowa 1998)(stating
that qualified immunity is an affirmative defense to be plead in a responsive pleadings). The
general rule is that failure to plead an affirmative defense results in waiver of that defense.
Sherman v. Winco Fireworks. Inc.. 532 F.3d 709, 714-15 (8th Cir. 2008). Because the Avera
Defendant,including Roehelle, did not plead a qualified immunity defense,they have waived such
a defense.
Plaintiff concedes that there is no Fifth Amendment Due Process claim in this ease. Doe. 41 at
37-38.
26
PlaintifPs counsel conceded that a proeedural due proeess elaim existed only if, as some
Defendants had suggested, the children were removed from Hunter's custody. Opbroek testified
that the children "were always in [Hunter]'s custody; we never requested to remove custody from
her ....[W]e never requested eustody or stated the children were not in her custody." Doc. 43-5
at 5. Plaintiff maintains that DSS Defendants never removed the ehildren from her custody. Even
when viewing the facts in the light most favorable to Plaintiff, there is no procedural due process
claim because the children were never removed from Hunter's custody, so Defendants are entitled
to summary judgment on Count 11 ofthe Amended Complaint.
c. Count III: Substantive Due Process
Count III of the Amended Complaint alleges that Defendants violated Plaintiffs
substantive due process right to familial relationships. Doc. 41 at 36.^" The substantive due
process claim is brought on behalf of both Hunter and A.Q. Doe. 41 at 39. In § 1983 actions
involving interference with the right to familial integrity, "it is nearly impossible to separate the
eonstitutional violation analysis from the clearly established right analysis." K.D. v. Ctv. of Crow
Wing. 434 F.3d 1051, 1055 (8th Cir. 2006)(quoting Manzano v. S.D. Dep't of Soc. Servs.. 60
F.3d 505, 510(8th Cir.1995)).
"For all its consequence,'due process' has never been, and perhaps never can be, precisely
defined." Lassiter v. Dep't of Social Servs.. 452 U.S. 18, 24(1981). However,"[sjince the time
of our early explanations of due process, we have understood the core of the concept to be
protection against arbitrary[government] aetion." Ctv of Saeramento v. Lewis. 523 U.S. 833,845
Plaintiff also alleges that the Defendants' conduct of seciiring a urine sample from A.Q. by
catheterizing him shocks the eonscience or interferes with rights implicit in the eoneept ofordered
liberty in violation of A.Q.'s rights and Hunter's rights guaranteed by the Due Process Clause of
the Fifth and Fourteenth Amendments ofthe Constitution. Doc. 12 at 11. For the reasons explained
in footnote 17, this Court has analyzed that claim imder the Fourth Amendment.
27
(1998); see also Tenenbaum. 193 F.3d at 600 ("Substantive due-process rights guard against the
government's 'exercise ofpower without any reasonable justification in the service ofa legitimate
governmental objective.'"(quoting Ctv. of Sacramento. 523 U.S. at 846)).
Parents have a liberty interest in the "care, custody, and management of their children."
Swipies V. Kofka, 419 F.3d 709, 713-14 (8th Cir. 2005)(quoting Manzano. 60 F.3d at 509-10);
^Santoskv v. Kramer. 455 U.S. 745, 753 (1982)("The fundamental liberty interest of natural
parents in the care, custody, and management of their child does not evaporate simply because
they have not been model parents
"). The right has been described as "perhaps the oldest of
the fundamental liberty interests recognized by [the Supreme] Court." Troxel v. Granville. 530
U.S. 57, 69-70, 72(2000). However,"this interest is "limited by the state's eompelling interest
in protecting a child." Stanlevv. Fiimegan. 899 F.3d 623,627(8th Cir. 2018)(citation and internal
quotation marks omitted). In cases where the rights of the parent are balanced against the state's
interest in protecting the ehild, the qualified immunity defense is difficult to overcome. K.D..434
F.3datl055.
"Generally, mere verbal threats made by a state-actor do not constitute a § 1983 claim."
King V. Olmsted Ctv., 117 F.3d 1065,1067(8th Cir. 1997). In King v. Olmsted Countv.the Eighth
Circuit held that"a threat constitutes an actionable constitutional violation only when the threat is
so brutal or wantonly cruel as to shock the conscience ... or ifthe threat exerts coercive pressure
on the plaintiff and the plaintiff suffers the deprivation of a constitutional right." King. 117 F.3d
at 1067. In King, social services workers allegedly "interfered with [Mr. and Mrs. King's] right
to familial relations by eoercing and manipulating them with threats that Social Services would
take[two oftheir ehildren] unless the Kings 'eooperat[ed] with what the government wanted to do
to [another one of their children]."' Id The Eighth Circuit reasoned that the threats did not
28
constitute an actionable constitution violation because the threats were not so brutal or wantonly
cruel to shock the conscience and the threats did not exert coercive pressure on the Kings because
the Kings did not act on these statements. Id. at 1067-68. In coming to this conclusion,the Eighth
Circuit stated that the social workers did not exhibit any signs that they would act on these threats,
the Kings were represented by counsel, the Kings had ample time to challenge the threats, and the
Kings did not show that they were coerced by the threats. Id
Here, similar to King, the threat by Opbroek to Hunter that she would have her children
taken away unless they were drug tested,"although seemingly inappropriate, do[es] not rise to the
level of a constitutional violation." ^ id, at 1067. After all, Hvmter admitted using
methamphetamine with the children nearby, appeared to be under the influence while in the
presence of the children, and had drug paraphernalia where Obproek thought the children might
be able to reach it. Doc. 27 at
15-16, 18-19; Doc. 42 at^15-16, 18-19. However, unlike in
King. Hunter did act on Opbroek's threat and coercive pressure by taking her children to Avera
Cluiic to have them drug screened.
Although parents enjoy a constitutionally protected interest in their family integrity, this
interest is counterbalanced by the '"compelling governmental interest in the protection of minor
children, particularly in circumstances where the protection is considered necessary as against the
parents themselves.'" Manzano. 60 F.3d at 510 (quoting Mvers v. Morris. 810 F.2d 1437, 1462
(8th Cir. 1987), overruled on other grounds bv Bums v. Reed. 500 U.S. 478 (1991)). "[W]hen a
state official pursuing a child abuse investigation takes an action which would otherwise
rmconstitutionally disrupt famihal integrity, he or she is entitled to qualified immunity, if such
action is properly founded upon a reasonable suspicion ofchild abuse." Manzano.60 F.3d at 511.
29
Opbroek had a reasonable suspicion of child abuse. Hunter admitted that she had done
drugs while her children were present in the home, she provide a urine sample that field tested
positive for methamphetamine and marijuana, Opbroek thought Hunter was still under the
influence of drugs when he visited the home, Opbroek observed drug paraphernalia where her
children might get to it, and law enforcement informed him that there were drugs in the house.
Doc.27 at^^ 15-16,18-19; Doc.42 atflf 15-16,18-19. Under Manzano and the facts not subject
to genuine dispute, Opbroek is entitled to qualified immunity for the nature ofhis interference with
Himter's familial relationship. Opbroek's conduct under the circumstances does not constitute
arbitrary government action. The Avera Defendants did not threaten to take away Himter's
children or have the apparent authority to do so. Notwithstanding that qualified immunity defenses
do not apply to the Avera Defendants, all Defendants are entitled to summary judgment on this
claim as well.
d. Count rV: Civil Conspiracy
Plaintiffalleges in Count IV ofthe Amended Complaint that Defendants Valenti, Weiseler,
Opbroek, Rochelle, Cass, and Doe Defendants 1—4 have violated rights guaranteed to Hunter and
A.Q. by 42 U.S.C. § 1985 through a conspiracy to deprive A.Q. of his right to be firee of
unreasonable search and seizure and excessive force without due process. Doe. 12 at 11-12. A
conspiracy claim under 42 U.S.C. § 1985 requires proof of some meeting of the minds among
defendants resulting in an agreement, express or tacit, to achieve an unlawful end—^in this case,
allegedly depriving Hunter and A.Q. of constitutional rights to be free from unlawflil and
unreasonable searches and seizures. 42 U.S.C. § 1985; see also Barstad v. Murrav Ctv.. 420 F.3d
880, 887(8th Cir. 2005); Scale v. Madison Ctv.. 929 F. Supp. 2d 51, 71 (N.D.N.Y 2013). While
there is evidence that Rochelle and Opbroek had a meeting of the minds that Rochelle would
30
collect evidence for DSS,the meeting ofthe minds did not include, or even involve discussion of,
catheterizing A.Q. to obtain the urine sample and thus was not a meeting of minds to violate
Plaintiffs constitutional rights. Summary judgment is granted for the Defendants on Plaintiffs
conspiracy claim.
C. Claims against Defendants in their Official Capacities
DSS Defendants argue that "Hunter's claims alleged against the Department of Social
Services are barred by the Eleventh Amendment. Her claims against State employees acting in
their official capacities are likewise barred by the Eleventh Amendment to the extent that she seeks
money damages." Doc. 26 at 10. First, § 1983 only provides a cause of action against a "person"
who, acting under the color of state law, deprives another of his or her federal constitutional or
statutory rights. See Will v. Mich. Den't of State Police. 491 U.S. 58, 71 (1989). The Supreme
Court in Will held that "neither a State nor its officials acting in their official capacities are
'persons'under § 1983" when sued for money damages. Id Eleventh Amendment immunity also
extends to state agencies. Hadlev v. N.Ark. Cmtv. Tech. Coll.. 76 F.3d 1437,1438(8th Cir.1996).
Section 1983 therefore does not allow Plaintiff to sue the DSS or DSS employees in their official
capacity for damages. Will, 491 U.S. at 71; see also Arizonans for Official English v. Arizona.
520 U.S. 43,69 n.24(1997)("State officers in their official capacities, like States themselves, are
not amenable to suit for damages under § 1983.").
Second, absent consent by the state or congressional abrogation ofimmunity,"the Eleventh
Amendment prohibits federal-court lawsuits seeking monetary damages fi om individual state
:
officers in their official capacities because such lawsuits are essentially 'for the recovery ofmoney
fi-om the state.'" Treleven v. Univ. of Minn.. 73 F.3d 816, 818 (8th Cir. 1996)(footnote omitted)
(quoting Ford Motor Co. v. Den't of the Treasury. 323 U.S. 459, 464 (1945)). DSS has not
31
consented to offieial eapaeity suits under § 1983, § 1983 has not abrogated DSS Defendants'
Eleventh Amendment immunity, and the DSS Defendants have raised Eleventh Amendment
immunity as a defense in this case. Doe. 14 at ]f 29; Doe. 26 at 9;^Ballegooven v. Brownson.
4:14-CV-04186-KES,2016 WL 5794719,at *3(D.S.D. Sept. 30, 2016)(holding that SDCL § 21-
32-16 did not waive the Eleventh Amendmentimmunity oftwo state ageneies). Thus,the Eleventh
Amendment bars Plaintiff's elaims for damages against the DSS Defendants in their offieial
eapacities. Nix v. Norman.879 F.2d 429,431 (8th Cir. 1989)
("The Eleventh Amendment presents
a jurisdietional limit on federal eourts in eivil rights cases against states and their employees.").
However, Plaintiff elarified that "[n]o money damages are sought fi om DSS or the DSS
:
Defendants in their offieial capaeities." Doe.41 at 16. Plaintiffs requested reliefin her Amended
Complaint ineludes an award for "eompensatory and general damages,in an amount to be proven
at trial, against Avera St. Mary's and against eaeh of the individual defendants sued in his or her
personal capacity." Doe. 12 at^ 57(emphasis added). Beeause siimmaryjudgment as explained
above should enter for the DSS Defendants for all alleged eonstitutional violations. Plaintiff has
no remaining elaim against the DSS Defendants for damages.
Plaintiff also seeks prospeetive deelaratory and injunetive relief for the ongoing
government use ofcatheterization ofehildren for non-medieal purposes against Defendants in their
offieial eapaeities. Doe. 12 at ]|]f 55-56; Doe. 41 at 15. Plaintiffs argue that "foreible
eatheterizations of young ehildren could continue if the DSS Defendants are not enjoined fi om
:
requesting urine tests without a warrant or removal." Doc. 41 at 44. Official capacity suits are
"another way ofpleading an aetion against an entity of whieh an offieer is an agent." Kentuekv v.
Graham. 473 U.S. 159, 165(1985)(eitation omitted). "A suit for injunetive or deelaratory relief
avoids [Eleventh Amendment]immunity ifthe offieial has some eoimeetion to the enforeement of
32
the challenged laws." Calzone v. Hawlev. 866 F.3d 866, 869 (8th Cir. 2017)(citing Ex parte
Young. 209 U.S. 123, 157 (1908)). Suits against state employees in their official capacities that
seek only prospective, injunctive reliefare allowed by § 1983, Will. 491 U.S at 71 n.lO (explaining
that state officials are "persons" under § 1983 when sued for injunctive relief in their official
capacities), and are not barred by the Eleventh Amendment, Ex parte Young. 209 U.S. at 157-60
(holding that state officials may be sued in their official capacities for prospective injunctive relief
without violating the Eleventh Amendment).
Plaintiff of course bears the burden of establishing that she has standing under Article 111
of the Constitution to request the particular injunctive relief sought. Park v. Forest Serv. of U.S..
205 F.3d 1034, 1036-37 (8th Cir. 2000). To demonstrate standing. Plaintiff must establish an
injury in fact; a causal connection between the injury and the alleged conduct of the Defendants;
and a likelihood that the remedy she seeks will redress the alleged injury. Steel Co. v. Citizens for
a Better Env't 523 U.S. 83, 102-03 (1998). When, as here, the plaintiff is seeking injunctive
relief, "the 'injury in fact' element of standing requires a showing that the plaintiff faces a threat
of ongoing or future harm." Park. 205 F.3d at 1037. Evidence that the plaintiff suffered an injury
in the past does not alone establish that the plaintiff has standing to seek injunctive relief. See
O'Shea v. Littelton. 414 U.S. 488,495-96(1974)(holding that "[pjast exposure to illegal conduct
does not in itself show a present case or controversy regarding injimctive relief . . . if
unaccompanied by any continuing, present adverse effects"). A plaintiffs speculation that he or
she may suffer injury in the fiiture is likewise insufficient. Citv ofLos Angeles v. Lvons.461 U.S.
95,102(1983)(explaining that a "conjectural" or "hypothetical" threat ofinjury does not establish
standing). Instead, as the Supreme Court made clear in Lvons. the plaintiff must show that "the
injury or threat ofinjury" is '"real and immediate'" to have standing to seek injunctive relief. Idi
33
In Lyons, the plaintiff sought injunctive relief barring police officers from the City of Los
Angeles from using chokeholds unless suspects were threatening the officers with the immediate
use of deadly force. Ifr at 98. The Supreme Court held that the plaintiff did not have standing to
seek such relief because he had failed to demonstrate that there was a sufficient likelihood that the
police would subject him to a chokehold in the future. Id at 105-10. Although the plaintiff had
been subjected to a chokehold in the past and alleged that the police officers routinely applied
chokeholds when they were not threatened by deadly force, the Supreme Court concluded that
these facts fell short of establishing that the plaintiff faced a real and immediate threat of future
harm. Id. 105-06.
Like the plaintiff in Lyons. Plaintiff has failed to demonstrate that there is a sufficient
likelihood that she or A.Q. will suffer harm from being forced to submit to catheterization in the
future. Plaintiff has not offered sufficient eyidence that the Defendants haye an ongoing policy of
forcing children to submit to forced catheterizations in yiolation of their constitutional rights or
that other children haye been treated in a similar manner. The undisputed facts show that Opbroek
did not know a catheter would be used on A.Q. and that DSS pohcy left the determination of how
urine would be collected to the medical proyider. In short, Plaintiff lacks standing to seek
injunctiye relief due to the absence of a sufficient likelihood that Hunter or A.Q. faces a real and
immediate future threat of being forced to submit to catheterization in a manner that could yiolate
their constitutional rights. See id.; Knox y. McGinnis. 998 F.2d 1405, 1413-15 (7th Cir. 1993)
(holding that prisoner's speculation that he could be returned to segregation did not giye him
standing to seek injunctiye relief against prison's use of "black box" restraining deyice on all
inmates in segregation).
IV. Conclusion
34
For the reasons explained above,it is hereby
ORDERED that DSS Defendants' motion for summary judgment. Doc. 25, is granted. It
is further
ORDERED that Avera Defendants' motion for summary judgment, Doc. 29, is granted in
part and denied in part, in that the § 1983 claims that Rochelle violated Plaintiffs Fourth
Amendment rights by subjecting A.Q.to catheterization without Hunter's consent or by subjecting
A.Q.to an unreasonable search survive Avera Defendants' motion for summary judgment. Avera
Defendants' motion for summaryjudgment is otherwise granted.
DATED this ^S^ay of March, 2019.
BY THE COURT:
ROBERTO A. LANGE'
UNITED STATES DISTRICT JUDGE
35
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?