Ruiz v. Texas Department of Protective and Regulatory Services et al
Filing
52
ORDER granting 35 Motion to Dismiss; granting 40 Motion for Summary Judgment on the basis of qualified immunity..(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RAUL RUIZ,
Plaintiff,
VS.
TEXAS DEPARTMENT OF
PROTECTIVE AND REGULATORY
SERVICES, et al,
Defendants.
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§ CIVIL ACTION NO. 2:12-CV-407
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§
§
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§
§
ORDER
Texas Ruiz (Texas), an 18-month-old child, died from brutal injuries suffered
while in the care of his mother and her boyfriend. Texas’ father, Raul Ruiz (Ruiz), has
brought this action on his own behalf and on behalf of Texas against Eva Cadena
(Cadena) and Angela Arredondo (Arredondo), two social workers.
Cadena and
Arredondo, employees of the Texas Department of Protective and Regulatory Services
(TDPRS),1 were involved in the investigation of child abuse allegations and the
placement of Texas with relatives during the last six months of his life—a placement that
proved ineffective in preventing Lorraine Rodriguez (Mother) from taking Texas back to
her home, unsupervised, at the time of the incidents leading to his death.
Through 42 U.S.C. § 1983, Ruiz seeks damages for alleged constitutional
violations, including deliberate indifference to a substantial and known risk of harm to
Texas, failure to intervene to prevent injuries, depriving Ruiz and Texas of their right to
1
Ruiz dismissed the Texas Department of Protective and Regulatory Services as a separate defendant on May 10,
2013. D.E. 14.
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family integrity, failure to protect based on a “special relationship,” and “state created
danger.” D.E. 34, p. 4. Cadena and Arredondo have filed an Amended Motion to
Dismiss (D.E. 35) and a Motion for Summary Judgment (D.E. 40), arguing that Ruiz has
not stated a viable claim against them and that they are entitled to qualified immunity
from suit.
This Court is thus called upon to determine whether the tragic facts of this case
cross the lines that have been developed in too many cases that have preceded this one,
seeking to balance the rights of parents to raise their children in privacy against the
responsibilities of the state to intervene when children appear to be in danger. This is an
emotionally-charged arena with obviously high stakes. It also concerns issues that are
not always clear as the events unfold in real time, making hindsight an inappropriate
method for decision-making. Against this backdrop, this Court is duty-bound to make a
dispassionate determination of whether the facts of this case amount to constitutional
violations such that legal blame falls at the feet of Cadena and Arredondo.
As detailed below, the Court finds that Ruiz has not stated claims upon which
relief may be granted with respect to the Fourth Amendment and the Fourteenth
Amendment theories of “special relationship” and “state-created danger” and that the
allegations are insufficient to defeat the Defendants’ affirmative defense of qualified
immunity.
The Second Amended Motion to Dismiss (D.E. 35) is GRANTED.
Additionally, because the Court finds that the constitutional rights on which this case is
predicated do not apply to the facts or were not “clearly established” so as to put the
caseworkers on notice that their actions violated the constitution, qualified immunity
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protects Cadena and Arredondo and their Motion for Summary Judgment (D.E. 40) is
GRANTED. This action is thus DISMISSED in its entirety.
FACTS
Ruiz has tendered to the Court TDPRS records of its investigation on behalf of
Texas, along with Arredondo’s trial testimony from the criminal trial of Mother’s
boyfriend J.J. Garza (Garza). The salient portions of the TDPRS record reflect that
TDPRS received a referral from Texas’ daycare worker on June 24, 2010, regarding
bruising to Texas’ face, head, thigh, and buttocks, along with odd behavior—putting his
hands in front of his face when speaking.
There was no prior history between TDPRS and Texas or his mother. Mother
claimed that she lived alone with Texas and explained the apparent injuries as the result
of mosquito bites and a prior fall from some bleachers. After initial refusals, Mother
agreed to take Texas to Driscoll Children’s Hospital for evaluation and observation. The
doctor opined that the injuries were inflicted—not mosquito bites or the result of a fall.
The TDPRS investigation found that Garza did live with Mother despite her
previous denials. The maternal grandmother confirmed that she had seen bruises on
Texas’ buttocks within the same general time frame as his other bruises and had
questioned Mother about them.
The maternal grandmother, with Mother’s consent,
agreed to have Texas placed with her and to allow Mother only supervised visits.
Arredondo’s subsequent monthly visit to the maternal grandmother’s home on
July 29, 2010, indicated that Mother was not visiting Texas much, but that the father,
Ruiz, had picked up Texas for his designated weekend visitations and that Texas always
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returned from those visits clean and happy. A visit to the daycare on that same day
indicated that the daycare staff had no concerns.
They reported that the maternal
grandmother would drop off and pick up Texas, who was clean, ate well (although in a
messy fashion), and had no visible signs of abuse. The only concern was an apparent
diaper rash that was not healing, so measures were taken to address that with Mother and
maternal grandmother.
The next day, Arredondo met with Mother and Garza. The two were not happy
about the outcome of the initial investigation finding “reason to believe” neglect or abuse
had occurred. They wanted to appeal the finding. At that time, Mother was considered
cooperative and anxious to comply with the TDPRS plan and regain possession of Texas.
Because of a risk of future abuse, Mother was asked to, and did agree to, attend
individual counseling (because of her experience with domestic violence2) and parenting
classes. Garza also reluctantly agreed to go to parenting classes. At that time, Mother
asked that Texas be placed with the maternal grandfather because the maternal
grandmother was allowing Ruiz unscheduled visits.
The next month, on August 30, 2010, Arredondo met with Mother again. Mother
asked again that Texas be placed with the maternal grandfather because his home was
closer to hers and she was not on speaking terms with the maternal grandmother. She
had upgraded her apartment to a two-bedroom in order to have appropriate sleeping space
for Texas when she regained possession. On that same date, daycare workers reported
2
The TDPRS Evaluation indicates that Mother admitted to being abused in one unreported incident when she lived
with Ruiz. D.E. 49-2, pp. 10, 62.
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that Texas was still dropped off and picked up by his maternal grandmother, was doing
“wonderful,” played well with others, appeared to be developing on track, and had no
visible signs of abuse or neglect. Their only concern was an apparent delay in his speech
development. Also, he cried for unknown reasons when his mother came to visit.
On September 14, 2010, Mother appeared at TDPRS offices wanting to appeal the
results of the TDPRS investigation. Mother also reported that Texas had a diaper rash
that she thought was the fault of daycare and that he had bruising down his back that the
maternal grandmother had explained as the result of a fall down stairs. Mother reiterated
her desire to change Texas’ placement to the maternal grandfather and Arredondo
explained that she was still doing her investigation into his home situation to determine
whether placement there was appropriate.
That day, as a result of Mother’s complaints, Arredondo went to Texas’ daycare
for a visit. Texas appeared clean, appropriately dressed, and in good spirits. His speech
was greatly improved. He was suffering from a diaper rash, but it was not as severe as
Mother had reported, and there were no visible bruises on his back. The only bruises
were on his arms, which the daycare staff reported were the result of a peer who went on
a “biting frenzy.”
On September 21, 2010, Arredondo conducted a home visit with the maternal
grandfather.
He questioned the need to supervise Mother’s visits, and Arredondo
explained the results of the TDPRS investigation and risk of future abuse, with the goal
of eliminating those risks and reuniting the family. The maternal grandfather agreed to
the safety plan provided to him. On September 23, 2010, Mother agreed to the new
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safety plan placing Texas with the maternal grandfather and the new placement was
thereafter completed. Mother had, by September 30, 2010, initiated and actively engaged
in recommended services with Gulf Coast Rehab Services.
On October 1, 2010, the maternal step-grandfather called TDPRS and spoke to
Cadena, expressing his concern that Texas was not being cared for by the maternal
grandfather but was actually in the care of a 17-year-old uncle because of the maternal
grandfather’s work schedule. Arredondo explained to Cadena that she was aware of the
work schedule and the uncle’s participation in Texas’ care. All of the individuals living
at that address had passed the necessary background check and the arrangement was
deemed appropriate for Texas.
On October 8, 2010, Ruiz contacted Cadena to complain about the change in
Texas’ placement and being left “out of the loop.” Cadena explained that Ruiz needed to
communicate with Mother, who had primary custody of Texas, and that TDPRS was not
responsible for being messengers between them. Ruiz stated that he would hire a lawyer
and hung up on Cadena while she was still speaking.
On October 11, 2010, Mother reported that Ruiz had threatened her at her place of
employment and came to her apartment, irate. He pounded on her door, damaging it.
She called the police. When Ruiz left, she also left the premises out of fear for her safety,
just as the police pulled up. No police report was filed. After Mother’s call reporting this
information, Arredondo attempted to meet with Mother at her apartment, but no one
answered. Arredondo then went to the daycare to see Texas. He had facial bruises and a
deep scratch. He also had what looked like bruising or a healing diaper rash.
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Arredondo took photographs of these apparent injuries and reviewed them with
Cadena. That afternoon, they called in a new report of abuse and a new investigator was
assigned to the case.
He was instructed to locate Mother, inform her of the new
allegations and confront her and the maternal grandfather about the injuries and request
that Texas be taken to Driscoll Children’s Hospital for evaluation. He and Arredondo
went to the maternal grandfather’s house and he was not home. They went to Mother’s
house. She was not home and her phone was off. They went to the daycare and learned
that Mother had just picked up Texas. They went back to the maternal grandfather’s
home and still no one was there.
The subsequent investigation indicated that both Ruiz and Mother had permitted
the injuries to Texas because both had observed them and failed to act to report or
prevent them or otherwise protect Texas. D.E. 49-2, pp. 40-41. On October 12, 2010,
Arredondo and the investigator met with Mother and maternal grandfather at the latter’s
home. Mother claimed that the facial issues were mosquito bites and that she had taken
Texas to a doctor, who had prescribed a cream for treatment. She said that Texas’ diaper
rash had improved once the daycare was providing logs of diaper changes.
The
investigator informed the maternal grandfather that TDPRS wanted him to take Texas to
Driscoll Children’s Hospital for evaluation and he agreed. On October 13, 2010, Driscoll
Children’s Hospital confirmed that the facial bruising was an allergic reaction to
mosquito bites.
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On November 5, 2010, Arredondo learned that Texas had been admitted to
Driscoll Children’s Hospital the day before because of “an old subdural hematoma.” The
Emergency Room staff and the pediatric neurologist had ruled out abuse.
Texas
underwent surgery and other doctors reviewed the case, but they could not state that the
hematoma was the result of abuse or neglect. Ten days later, Arredondo spoke with the
maternal grandfather, who reported that Texas had recovered well and was running
around and playing as if nothing had happened. Another TDPRS worker attempted a
face-to-face contact with Texas and Mother on November 16, 17, and 29, but no one ever
answered the door.
On the morning of November 29, 2010, Arredondo learned that Texas was no
longer at the daycare as services had been terminated due to too many absences. Later
that morning, Arredondo went to the maternal grandfather’s home to see Texas and was
informed that Texas was with Mother. He admitted that he had broken the safety plan by
allowing Mother unsupervised care of Texas, but he said it was only that one night
because he had to work a double shift. Arredondo immediately tried to locate Mother,
but she was not at her home, her cell phone was disconnected, and she was not at work.
On December 9, 2010, Arredondo again tried to visit Mother at her home. She
could hear movement within the home. She heard the lock on the door turn, but no one
opened the door despite several knocks. On December 16, 2010, Texas was seen by his
physicians for a follow-up from the November surgery.
On December 20, 2010,
Arredondo sent Mother an appointment letter through certified mail requesting that she
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be available on December 27, 2010. On the day of the appointment, Mother called
Arredondo and left a message canceling and saying that she would call to reschedule.
On January 1, 2011, at 3:03 a.m., Texas was pronounced dead at Driscoll
Children’s Hospital. Mother claimed that she was alone with Texas and that he had
fallen from a kitchen counter when she reached for a package of cookies for him. But
Texas’ injuries were not consistent with that explanation. It was later determined that
Garza was in the home at the time. The cause of death was multiple blunt force injuries
of the head and abdomen and was ruled a homicide.
PROCEDURAL POSTURE
Defendants Cadena and Arredondo seek dismissal of this case under Fed. R. Civ.
P. 12(b)(6), arguing that the Complaint (D.E. 34) fails to state a claim upon which relief
can be granted. The test of pleadings under Rule 12(b)(6) is devised to balance a party’s
right to redress against the interests of all parties and the court in minimizing expenditure
of time, money, and resources when a claim is insufficient to justify further proceedings.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966 (2007). See also,
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009).
The pleader must demonstrate that the facts of the case are sufficient to support the
necessary findings behind each claim made. He cannot rest on “labels and conclusions[;]
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 127
S.Ct. at 1964-65 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932 (1986)).
The Court must determine whether the alleged facts “fit” the constitutional claims
asserted.
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Defendants have also filed their Motion for Summary Judgment (D.E. 40) raising
the same issues as were briefed in their Motion to Dismiss, invoking the procedural
advantage of the shift of the burden of proof in the adjudication of summary judgment
motions on qualified immunity. D.E. 40, p. 2. Qualified immunity protects government
employees against civil liability in their individual capacity “insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.”3 Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982)) (internal quotation marks omitted). It is a well-settled method for striking a
balance between competing social objectives, providing breathing space for the vigorous
exercise of official authority, while at the same time allowing a possibility of redress for
victims of officials' abuses. Kinney v. Weaver, 367 F.3d 337, 349 (5th Cir. 2004) (citing
Butz v. Economou, 438 U.S. 478, 524, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)).
The qualified immunity defense raises a preliminary question of whether
Arredondo and Cadena may be charged with violating a constitutional right that was so
clear that no reasonable social worker would have engaged in the actions or omissions
alleged.
Once a defendant pleads a defense of qualified immunity,
“[o]n summary judgment, the judge appropriately may
determine, not only the currently applicable law, but whether
3
“Even if a defendant's conduct actually violates a plaintiff’s constitutional rights, the defendant is entitled to
qualified immunity if the conduct was objectively reasonable.” Zarnow v. City of Wichita Falls, 500 F.3d 401, 408
(5th Cir. 2007) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)). The Defendants’
Motions do not address this additional burden that Ruiz must overcome in order to prevail against them. Because
the Court finds that the case does not present a clearly established constitutional right in the first part of its analysis,
it need not reach the second, “objectively reasonable” conduct, element.
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that law was clearly established at the time an action
occurred. . . . Until this threshold immunity question is
resolved, discovery should not be allowed.”
Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793 (1991) (quoting Harlow,
supra). In sum, qualified immunity protects “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Both Motions are sharply focused on whether the allegations pled or the facts
illustrated in the summary judgment evidence outlined above involve a violation of a
constitutional right. To survive the Motions, there must be a constitutional right, it must
apply to the circumstances, and its parameters must be “clearly established” such that all
caseworkers would know where the line between lawful and unlawful conduct lies. The
Court looks to Ruiz’s live pleading to determine his theory of the case and the particular
constitutional violations at issue.
THE PLEADING
The fact section of Ruiz’s Second Amended Complaint, providing his version of
the events, is fairly brief and is set out here in its entirety:
5.
In July of 2010, the [TDPRS] was contacted by a daycare
concerning significant signs of abuse to Texas, the deceased
minor child. Thereafter, [TDPRS] initiated an investigation, and
found after uncovering numerous lies and varying “stories” of
how such injuries could have occurred, there was a reason to
believe that Texas’ mother Lorraine Rodriguez (hereinafter
referred to as Mother) and Mother’s boyfriend J.J. Garza
(hereinafter referred to as “Garza”) had caused such injuries upon
Texas. As a result, Defendants created a safety plan whereby
Texas would be in the care of his maternal grandmother and that
Mother and Garza would not be allowed any unsupervised visits
with Texas. At no time was Plaintiff contacted regarding his son
and he was never considered for placement, despite his numerous
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attempts to be so. Defendants actually prevented Plaintiff from
any kind of contact or visitation with his son.
6. Thereafter, Defendants allowed Mother, with little or no reason,
to have Texas transferred to the care of her father. Of course, such
was a ruse and Defendants NEVER saw Texas at the
grandfather’s residence, and believed Texas was truly in the care
of MOTHER and eventually found out months before Texas’
death that Texas was not - and probably never was - in the care of
the grandfather, that he had been removed by Mother and was not
attending daycare. Despite such and the fact that Texas had during
this time period been admitted to the hospital on multiple
occasions for varying injuries, Defendants, despite knowing that
Texas was in serious danger and in the care of persons who were
violating protective agreements and/or had not completed any
classes mandated as part of the protective plan - to maintain the
“care” of Texas. And after securing such knowledge, what did
Defendants do? Nothing. Despite not actually having seen the
child for months and even after an additional hospital stay for a
sub-dural hematoma, Defendants did not make contact with
Mother, did not take any legal action to remove the child despite
several visits where persons were heard to “lock” the door but
refused to open up, and never contacted Plaintiff or considered
him for placement of his son. Instead, Defendants merely wrote a
letter directing Mother (but not Garza) to meet with them on
December 27th. Not surprisingly, Mother cancelled said
appointment via a phone message the day before and no other
appointments were set and/or visits initiated. Basically,
Defendants then did nothing further, simply ignored the
continuing pleas from Plaintiff about his son’s welfare and just
waited for the inevitable phone call that Texas had been brought
to Driscoll Children’s Hospital unresponsive and dead due to a
vicious beating at the hands of Mother and/or Garza. And come it
did. Texas died January 1, 2011.
D.E. 34, pp. 2-3.
To make a claim under the Civil Rights Act of 1871, 42 U.S.C. § 1983, the statute
provides that the defendant must be a person “acting under color of state law” in
subjecting the plaintiff to a deprivation of any laws, privileges, or immunities secured by
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the United States Constitution. Doe v. Covington County School Dist., 675 F.3d 849, 854
(5th Cir. 2012) (en banc). Cadena and Arredondo do not dispute that, as employees of
TDPRS they were “acting under color of state law.” At the same time, however, social
workers are generally entitled to invoke the qualified immunity defense for actions taken
during the course of investigating allegations of child abuse. Hodorowski, supra; Roe v.
Texas Department of Protective and Regulatory Services, 299 F.3d 395, 400 (5th Cir.
2002); Doe v. State of Louisiana, 2 F.3d 1412, 1416 (5th Cir. 1993); Kiser v. Garrett, 67
F.3d 1166, 1173 (5th Cir. 1995).
What is at issue here is whether the pleading states a viable constitutional
deprivation. It refers to the Fourth and Fourteenth Amendments to the United States
Constitution, including substantive due process, specifically complaining of Defendants’
conduct:
a) by acting with deliberate indifference to a substantial and known
risk of harm to Texas;
b) by failing to intervene, where such intervention would have
prevented the injuries to Texas;
c) by depriving Plaintiff and/or Texas of their right to family
integrity;
d) by failing to protect Texas, who was in a “special relationship”
with Defendants and his inability to care for himself; and
e) in creating a “state-created” danger, which otherwise would not
have existed, but for the conduct of Defendants, and which made
more likely the opportunity of harm to occur to Texas.
D.E. 34, p. 4. Each of these claims of constitutional violations are discussed below.
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The Fourth Amendment claim stands on its own, challenging Cadena and
Arredondo’s conduct on “unreasonable search and seizure” grounds and will be
addressed first. The five itemized issues are all tied to the Fourteenth Amendment’s
substantive due process guarantee.
See e.g.,
Hernandez v. Texas Department of
Protective and Regulatory Services, 380 F.3d 872, 880 (5th Cir. 2004) (deliberate
indifference); Walton v. Alexander, 44 F.3d 1297, 1300 (5th Cir. 1995) (failure to protect);
Doe v. Covington, supra at 864 n.9, 876 (special relationship, state-created danger);
Morris v. Dearborne, 181 F.3d 657, 665 (5th Cir. 1999) (family integrity).
Because the injuries to Texas were not inflicted by Defendants but were
perpetrated by private parties (Mother and/or Garza), Ruiz must show that he and Texas
were within the scope of the substantive due process guarantee through a “special
relationship” or “state-created danger” analysis before the duties associated with
“deliberate indifference” and “failure to protect” are triggered against the state actors. As
detailed below, because the Court finds that the case does not survive the “special
relationship” and “state-created danger” analyses that create a duty, the Court does not
reach the “deliberate indifference” and “failure to protect” issues that provide the rubric
for determining whether the duty was breached.
Last, Ruiz does articulate a cognizable right to “family integrity.” However, as
detailed below, that right is insufficient to sustain this action when juxtaposed against the
qualified immunity “clearly established law” requirement. Each of the parties’ arguments
regarding (1) the Fourth Amendment, (2) Fourteenth Amendment, (a) special
relationship, (b) state-created danger, and (c) family integrity will be addressed in turn.
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THE ALLEGED CONSTITUTIONAL VIOLATIONS
1. Fourth Amendment: Unreasonable Search and Seizure
The Fourth Amendment protects persons from unreasonable search and seizure.
Ruiz has not articulated the basis of his claim under the Fourth Amendment, but it is
generally applied in child endangerment cases to prevent authorities from entering a
home and seizing the child without probable cause to believe that the child is abused
and/or neglected. E.g., Wooley v. City of Baton Rouge, 211 F.3d 913, 924-25 (5th Cir.
2000). In assessing the reasonableness of a search or seizure, courts balance “the nature
and quality of the intrusion on the individual's Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion.” Id. at 925
(citing United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637 (1983) and other
Supreme Court opinions). In this case, Ruiz pled that he “and/or” Texas was deprived of
this Fourth Amendment right.
There is nothing in his pleading, however, to reflect that Ruiz, himself, was
present, that any Defendant entered his home or property, or that they seized him by
arrest or detention. As he did not have custody of Texas, any seizure of Texas did not
invade Ruiz’s Fourth Amendment rights. Ruiz does suggest that Texas should have been
placed with him after Mother was deemed a threat to his safety.
The only authority upon which Ruiz relies for any Fourth Amendment claim is
Gates v. Texas Department of Protective and Regulatory Services, 537 F.3d 404 (5th Cir.
2008). That opinion stands for the proposition that a child should not be seized from a
parent absent court order, parental consent, or exigent circumstances. Id. at 420-22. Yet,
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if he was “seized” at all, Texas was seized from Mother under admittedly exigent
circumstances. In fact, Ruiz apparently applauds the intervention between Mother and
Texas.
There is no suggestion in the pleading that Ruiz shared the home or was entitled to
legal custody of Texas at the time of Defendants’ intervention. Ruiz has supplied no
authority for the proposition that the Fourth Amendment mandates that a seized child be
summarily placed with a parent who did not have the right to custody of the child’s
person at the time of the seizure. In other words, there is no known affirmative duty
expressed in the Fourth Amendment for specific handling of a seized person, once that
seizure has been accomplished. Ruiz does not allege facts or supply authority to support
recovery in his own name for any Fourth Amendment violation.
With respect to Texas’ Fourth Amendment rights, the factual allegations and the
summary judgment evidence do reflect that Texas was voluntarily placed first with
Texas’ maternal grandmother and later with Texas’ maternal grandfather. The pleading
clearly alleges that the facts not only justified a placement away from Mother, but
contends that Defendants should have done more to keep Texas away from the home
environment that presented a threat to his safety. Rather than pleading an “unreasonable”
search and seizure, the Complaint alleges facts wholly consistent with the reasonableness
of a seizure, if one occurred. Thus it does not express a Fourth Amendment claim on
behalf of Texas.
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The Court GRANTS the Defendants’ Second Amended Motion to Dismiss (D.E.
35) with respect to the Fourth Amendment claims asserted on behalf of both Ruiz and
Texas.
2. Fourteenth Amendment: Substantive Due Process
a. Special Relationship
According to the factual allegations of this lawsuit and the summary judgment
evidence, the injuries that Texas suffered were suffered at the hands of Mother and/or
Garza—private actors. Generally speaking, “[A] State’s failure to protect an individual
against private violence simply does not constitute a violation of the Due Process
Clause.” DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 197
(1989).
The “special relationship” doctrine arises out of a Fourteenth Amendment
substantive due process analysis, carving out exceptions to the general rule for
circumstances under which the state may be responsible for injuries inflicted by private
actors.
The purpose of the Due Process Clause “was to protect the people from the State,
not to ensure that the State protected them from each other.” Id. at 196. As indicated,
this general rule is subject to an exception where a duty arises out of certain “special
relationships” created or assumed by the State. Id. at 197. The DeShaney case has
defined the “special relationship” doctrine in a way that prevents its application to the
scenario here, where the child was injured by his own parent—even while the risk of
abuse was on the State’s radar. The parties disagree on the application of the holding in
DeShaney, so the case will be discussed at some length.
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In DeShaney, a case all too similar to the one before this Court, the authorities
were aware that the child was at risk of abuse at the hands of his own father, but felt that
they had insufficient evidence to retain the child in the custody of the court to the
exclusion of the father. So they had instituted a number of protective measures, including
enrolling the child in a preschool program, providing the father with counseling services,
and entering into an agreement with the father to cooperate toward voluntary goals. Still,
the child ended up in the emergency room on a number of additional occasions and the
father then refused to allow the caseworker to see the child. It was when the child fell
into a life-threatening coma (two years and three months after the State became involved)
that emergency brain surgery revealed a series of traumatic head injuries inflicted over a
long period of time. The child survived, but suffered brain damage so severe that he
would require institutionalized care the rest of his life.
The DeShaney child’s mother sued, alleging that the caseworkers knew or should
have known that the child was at extreme risk and should have intervened to better
protect him from his father. The fact that the caseworkers had intervened at all with the
intention of protecting the child from his dangerous father was used to support the
argument that, upon embarking on that path, they should have taken that path to its
necessary end: removing the child from the father’s reach. Id. at 197.
The Supreme Court disagreed, noting that the only established “special
relationships” arise when the State takes exclusive custody of (1) a prisoner or (2) an
involuntarily committed mental patient, as both types of individuals are rendered
incapable of acting for their own benefit because the State has taken custody of them. Id.
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at 199-200. “The affirmative duty to protect arises not from the State’s knowledge of the
individual’s predicament or from its expressions of intent to help him, but from the
limitation which it has imposed on his freedom to act on his own behalf.” Id. at 200. In
other words, no “special relationship” exists until the individual is taken into the state’s
exclusive custody. See generally, Doe v. Covington County School District, supra at
857-59 (explaining the significance of exclusive or “against their will” custody or “total
restriction” in recognizing the special relationship).
After DeShaney, the Fifth Circuit acknowledged that a child placed in foster care
to the exclusion of the parents’ right of possession is a third “special relationship”
exception. Griffith v. Johnston, 899 F.2d 1427, 1439 (5th Cir. 1990). However, that does
not encompass the argument here that temporary removal of the child triggered a special
relationship even after the parent regained possession.
In fact, the Griffith opinion
specifically recites the DeShaney conclusion that when the child is returned to his
parents, any special relationship with the State ends, despite any ongoing concern for the
child’s safety. For this reason, Ruiz’s request for discovery to better reveal whether the
State “removed” Texas such that it had created a special relationship is moot because
Texas was in Mother’s possession rather than in any State custody when the injuries
occurred.
The DeShaney opinion considered and addressed the argument that arises from the
gap between a parent’s undisturbed possession and the state’s exclusive possession in the
form of foster care—that time during which the state is investigating and seeking a
mutually beneficial solution to apparent risks of abuse and neglect without going so far as
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to take exclusive possession of the child.
The argument raised regarding this
“investigation gap” is that a child cannot act on his own behalf and, exercising some
control over the child—albeit temporarily—still creates a “special relationship.” In fact,
the dissenting opinion in DeShaney would have recognized this as another “special
relationship” exception to the general rule. Id. at 206-10 (Brennan, J., dissenting).
The reasoning for this additional exception to the “no duty to protect from private
actors” rule, according to Justice Brennan, is that the child’s community, which might
otherwise act with vigilance to protect the child, relaxes its efforts in reliance upon the
State’s power to act definitively once it has received the complaints. Thus, the “system”
puts the State in charge from the time the investigation is initiated, whether or not the
charges are ultimately substantiated and are so egregious as to mandate removal.
However, the majority of the Supreme Court rejected that argument. In particular, the
Court stated:
Petitioners concede that the harms Joshua suffered occurred
not while he was in the State's custody, but while he was in
the custody of his natural father, who was in no sense a state
actor. While the State may have been aware of the dangers
that Joshua faced in the free world, it played no part in their
creation, nor did it do anything to render him any more
vulnerable to them. That the State once took temporary
custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse
position than that in which he would have been had it not
acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him
shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.
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Id. at 201 (emphasis added). While rejecting a constitutional claim, the majority of the
Supreme Court did suggest that the State’s action in voluntarily undertaking to protect the
child might subject it to liability under state tort law for failing to provide adequate
protection against the known danger. But Ruiz has raised no state tort law claims in the
case before this Court.
Ruiz seeks to distinguish DeShaney, arguing that the State did not have custody of
the DeShaney child and the Fifth Circuit has recognized that when the TDPRS takes a
child into state custody, it creates that third “special relationship,” citing Hernandez v.
Texas Department of Protective and Regulatory Services, 380 F.3d 872 (5th Cir. 2004).
This argument fails to support a remedy here for two reasons. First, in Hernandez, the
harm was actually inflicted by the foster parents who were selected by the State to serve
as custodians to the exclusion of the biological parent. The foster placement “special
relationship” recognized under these circumstances depends upon the child remaining in
that non-parental custody—a scenario that puts Hernandez in a class separate from
DeShaney and this case.
Second, this Court sees no material difference between the facts of DeShaney (the
State “returning” the child to an abusive parent) and the facts here, Mother retaining legal
custody, but agreeing to have Texas placed with a relative who, contrary to the agreed
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safety plan and the State’s intention, allows the child to return to that abusive parent.4
Indeed, the DeShaney fact scenario would supply a better argument against the
caseworkers than do the facts here because the DeShaney caseworkers apparently acted to
directly place the child back in the hands of the dangerous parent. Here, the caseworkers
did make some effort to keep the child from the unsupervised custody of the abusive
parent; the return of the child was indirect and unintended. Either way, however, the
child started in the abusive parent’s custody and was in that same parent’s custody when
that parent inflicted harm. The Supreme Court has decided that such a scenario does not
raise a substantive due process claim under the United States Constitution.
It is the Supreme Court’s prerogative to draw the line where inadvertence,
negligence, or even gross negligence ends and a constitutional violation begins. It has
drawn that line in a divided opinion where the argument in Ruiz’s favor was squarely
considered and did not prevail. It is not this Court’s place to move that line. The Court
GRANTS the Defendants’ Second Amended Motion to Dismiss (D.E. 35) and GRANTS
the Defendants’ Motion for Summary Judgment (D.E. 40) with respect to Ruiz’s
allegations of a violation of Fourteenth Amendment substantive due process rights by
4
Ruiz tries to make the manner in which Mother obtained custody of Texas an issue, alleging that Texas was
“kidnapped” by Mother from the State’s control. D.E. 29, p. 5. However, the placement at issue was done pursuant
to Mother’s “voluntary agreement,” which recited that “there is no court involvement with this child.” D.E. 35-1.
See also D.E. 35-2.
Ruiz suggests that he should be permitted to conduct discovery regarding the extent of the State’s control over
Texas’ placement and challenges any reliance on the documentary evidence provided with the Motion. No
discovery is necessary, however. The Court need not rely on the documents offered with the Amended Motion to
Dismiss because Ruiz has not alleged any basis by which the State had custody of Texas to the exclusion of Mother.
There is no fact issue to determine in that regard. Furthermore, Ruiz includes in his response references to trial
testimony in the criminal action taken against Garza that no legal action had been taken with respect to Texas’
custody that would defeat Mother’s rights. D.E. 29, p. 6 (referring to D.E. 29-1, p. 87).
22 / 32
way of a “special relationship.”
No special relationship existed so as to require
Arredondo and Cadena to prevent the harm caused by private actors, Mother and Garza.
b. State-Created Danger
Another theory that grows out of the nature of substantive due process rights
conferred by the Fourteenth Amendment is the “state-created danger” theory.
This
theory is based on the concept that the State has a duty to protect when its own
intervention in events had an active role subjecting an individual to a danger that would
not otherwise have affected him. The Fifth Circuit has recognized that other Circuits
have applied a state-created danger theory in the following contexts: (1) an undercover
operative was shot while working for the police; (2) city officials released personnel files
of the investigating officers to the drug conspirators that they were investigating; (3)
police officers stopped a clearly intoxicated woman and then left her alone to walk home
on a cold night; (4) a mental hospital patient killed an activity therapist on the job; (5)
motorists were injured by a drunk driver who had not been arrested when stopped by
police; (6) police officers conspired with a group of “skinheads” to assault demonstrators;
(7) police chief instructed his officers to ignore a woman’s pleas for assistance when her
estranged husband came to kill her; (8) a town clerk was abducted and terrorized by
prison inmates during a community work program; and (9) a passenger in a car was
abandoned on the side of the road and raped after officers impounded the vehicle in
which she had been riding. McClendon v. City of Columbia, 305 F.3d 314, 325 n.6 (5th
Cir. 2002) (per curiam; en banc).
23 / 32
As a result, the Fifth Circuit articulated the state-created danger claim as arising
when “the defendants used their authority to create a dangerous environment for the
plaintiff and [] the defendants acted with deliberate indifference to the plight of the
plaintiff.” Scanlan v. Texas A&M University, 343 F.3d 533, 537-38 (5th Cir. 2003). The
defendants must have created the environment for danger, know it is dangerous, and have
afforded a third-party an opportunity for harm—an opportunity that would not otherwise
have existed. Id. at 538 (citing Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir.
2001)). While articulating its parameters, the Fifth Circuit has repeatedly stated that it
has not recognized the state-created danger theory as viable. Id. at 537. See also, Doe v.
Covington County School Dist., supra at 863-67; Kovacic v. Villareal, 628 F.3d 209, 214
(5th Cir. 2010). Ruiz acknowledges this state of the law. D.E. 29, p. 7.
Still, Ruiz argues that the earlier McClendon case supports the imposition of
liability if the facts justify its application. In McClendon, the Fifth Circuit recites, “we
have not yet determined whether a state official has a similar duty to protect individuals
from state-created dangers.”5 Id. at 325. Ruiz argues that this case involves the precise
fact pattern necessary for imposing a duty for state-created danger for the first time.
However, when the McClendon opinion notes that it has not confronted a set of
facts that justify imposition of the state-created danger theory, it says this in the context
of the DeShaney facts.
5
The Fifth Circuit notes, with emphasis, the portion of the
The McClendon opinion further notes that, to raise such a theory to constitutional proportions in the qualified
immunity context, the existence of the right would have to be “defined with sufficient clarity to enable a reasonable
official to assess the lawfulness of his conduct.” Id. at 331. Ruiz argues that there has been sufficient consideration
of the theory to place state actors on notice of its potential application to the facts here. To the contrary, because this
theory was rejected in an opinion acknowledging the DeShaney fact pattern, state actors likely would not be
expected to anticipate its application here.
24 / 32
DeShaney opinion regarding the return of a child to an abusive parent that states,
“ ‘[w]hile the State may have been aware of the dangers that [the child] faced in the free
world, it played no part in their creation, nor did it do anything to render him any more
vulnerable to them.’ ” Id. at 324 (quoting DeShaney, 489 U.S. at 201; emphasis in
McClendon). Clearly, the Fifth Circuit does not regard the type of facts alleged in this
case as raising a cognizable claim of state-created danger. Simply stated, and tragically
so, Texas’ own mother created his danger.
The Court GRANTS the Defendants’ Second Amended Motion to Dismiss (D.E.
35) and the Defendants’ Motion for Summary Judgment (D.E. 40) with respect to Ruiz’s
allegation of a constitutional violation based on the state-created danger theory.
c. Family Integrity
There is no question that the right to “family integrity” is an acknowledged
constitutional right—“a form of liberty guaranteed by the due process clause of the
Fourteenth Amendment.” Morris v. Dearborne, 181 F.3d 657, 667 (5th Cir. 1999) (citing
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972)). The Defendants’ Motion to
Dismiss does not seek to eliminate Ruiz’s claim to “family integrity” to the extent that it
is stated as an affirmative claim. Instead, they seek to eliminate any recovery on this
claim by way of the assertion, and application, of their qualified immunity defense. Thus
the parameters of this liberty interest must be explored in order to determine whether
Ruiz has pled a violation of the right of family integrity with sufficient specificity to
survive the requirements of “clearly established” law with respect to qualified immunity.
25 / 32
The family integrity liberty interest inures to the benefit of all three family
members—the mother as well as father and child. It informs the means, manner, and
timing of action taken by social workers called upon to protect a child at risk of abuse. It
has been described as “nebulous”6 because it involves a continuum. On one side of the
continuum is the basic civil right “far more precious than property rights” of the parents
to the custody, care, and nurture of their child. Stanley, 405 U.S. 651. The Fifth Circuit
has described it as the “most essential and basic aspect of familial privacy—the right of
the family to remain together without the coercive interference of the awesome power of
the state.” Hodorowski v. Ray, 844 F.2d 1210, 1216 (5th Cir. 1988) (quoting Duchesne v.
Sugarman, 566 F.2d 817, 825 (2d Cir. 1977)).
On the other end of the continuum is the State’s clear prerogative to adopt
“necessary policies to protect the health, safety, and welfare of children.” Morris, supra
at 669, 671.
When the facts of a case place it in the center of the
continuum where the two interests overlap and create a
tension, the right to family integrity may properly be
characterized as nebulous, and thus a defendant may claim
the protection of qualified immunity. However, when the
facts of a case place it squarely on the end of the continuum
where the state's interest is negligible and where the family
privacy right is well developed in jurisprudence from this
circuit and the Supreme Court, a defendant's defense of
qualified immunity, based on a claim that the right to family
integrity was not clearly established, will fail.
Id. at 671. See also, Wooley v. City of Baton Rouge, supra at 924.
6
E.g., Brian T. v. Ward, 212 F.3d 595 (5th Cir. 2000).
26 / 32
It is well-established that the state must tread lightly when confronting the right to
family integrity. For that reason, the first step in a case involving allegations of child
abuse is to find a way to keep the family together, using such things as counseling,
parenting classes, and home visits to help parents better care for their children and to
monitor progress. See generally, Santosky v. Kramer, 455 U.S. 745, 748, 102 S.Ct. 1388,
1392 (1982); TEX. FAM. CODE § 263.102(e) (referring to 42 U.S.C. 629a). The state is
not permitted to use the allegation of past neglect or abuse to justify refusing to provide
the natural parents adequate procedural safeguards as they seek to enforce their right to
present and future family integrity. See generally, Santosky, 455 U.S. at 753-54, 102
S.Ct. at 1395. “[U]ntil the State proves parental unfitness, the child and his parents share
a vital interest in preventing erroneous termination of their natural relationship.” Id. 455
U.S. at 760, 102 S.Ct. at 1398.
Clearly, Ruiz and Texas had a right to family integrity, as did Mother. What is not
clear in the facts alleged here or in the law, is how the State was required to balance those
competing rights against its duty to intervene to protect Texas when the facts appeared to
place Texas’ situation vis-à-vis Mother (and, for that matter, Ruiz) somewhere in the
nebulous gray area of the continuum described above. The fact that the rights exist does
not ipso facto establish what actions can, or must, be taken in order to act consistently
with those rights under the circumstances. This is particularly problematic when we must
evaluate the State’s actions without the benefit of hindsight and consider its various tools,
which include temporary removal, family placement, foster care, and permanent
27 / 32
termination of parental rights, along with various educational and therapeutic
interventions and monitoring.
In the context of the Motions, the question is whether Ruiz has stated a claim
based on relevant facts that can survive a qualified immunity defense. As described
above, the qualified immunity defense will protect Cadena and Arredondo from
allegations of violation of constitutional rights if those constitutional rights were not
“clearly established.” In other words, the Court must decide whether the family integrity
right at issue is “defined with sufficient clarity to enable a reasonable official to assess
the lawfulness of his conduct.” McClendon, supra at 331.
Defendants have admitted that there is such a thing as a viable claim regarding
“family integrity” under the Fourteenth Amendment. D.E. 35, pp. 11-12. But that does
not end the inquiry. Defendants contend that Ruiz cannot satisfy the second prong: the
requirement that the specific family integrity right was “clearly established” when
Cadena and Arredondo intervened in Texas’ family. Ruiz responds, in essence, that the
clarity of the right violated is “abundantly clear” from his pleadings. D.E. 29, p. 9; 49, p.
10.
Defendants cite a line of cases that refused to permit a “family integrity”
allegation to defeat a qualified immunity defense because the right is not “clearly
established,” but “nebulous” or “amorphous.” D.E. 35, pp. 14-15 (citing Hodorowski,
supra at 1217; Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992); Doe v. State of
Louisiana, 2 F.3d 1412, 1417 (5th Cir. 1993); Kiser v. Garrett, 67 F.3d 1166, 1172-73 (5th
Cir. 1995); Peters v. Lowrey, 114 F.3d 1184, 1997 WL 255628, *4 (5th Cir. 1997) (per
28 / 32
curiam; addressing the viability of the family integrity claim as a pleading matter);
Burney v. Carrick, 170 F.3d 183, 1999 WL 47014, *3 (5th Cir. 1999) (per curiam);
Morris, supra at 671; Brian T., supra at *1; Doop v. Chapman, 211 Fed.Appx. 246, 2006
WL 3147323 (5th Cir. 2006) (per curiam). To be “clearly established” so as to inform the
“objective legal reasonableness” test of qualified immunity, “The contours of the right
must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97
L.Ed.2d 523 (1987); McClendon, supra at 331.
Reading the record indulgently in favor of Ruiz, it appears that his theory of this
case has two arguments. The first argument is that the safety plan whereby Texas’
possession was voluntarily transferred to the maternal grandfather was equivalent to the
State taking exclusive custody of Texas and thereby becoming responsible for Texas’
safety—either the proper execution of the safety plan by the maternal grandfather with
only supervised visits by Mother or strict liability for Texas’ safety once TDPRS
intervened in any manner. However, Ruiz does not supply the Court with any authority
in fact or in law for treating a voluntary plan for a child’s possession within a family as
equivalent to a state’s exclusive custody. The DeShaney analysis prevents this Court
from finding in favor of Ruiz on this argument.
Ruiz’s second argument appears to be that Cadena and Arredondo were required
to place Texas with him in order to maintain family integrity once Mother was identified
as a danger. Once again, Ruiz does not supply the Court with reason in fact or in law to
consider it “objectively unreasonable” to fail or refuse to select him as Texas’ appropriate
29 / 32
temporary caregiver.
The record that Ruiz has supplied indicates that (a) Mother
complained that Ruiz was abusive; (b) Ruiz had left Texas with Mother without
explanation, resulting in a court order allowing him only alternative weekend visitation;
(c) Ruiz was angry, irate, impatient, and prone to violence with respect to his relationship
with Mother and Texas; and (d) Ruiz had seen the bruising on Texas and had previously
failed to act to protect Texas.
Bloodlines alone do not indicate who can best care for, and protect, a child. Ruiz
does not support his theory that he should have been “next in line” with any law or
social-psychology that specifies that caseworkers must turn a child over to a noncustodial
parent (“possessory conservator”) when problems are identified with the custodial parent
(“managing conservator”). While the law prefers to see biological parents appointed as
possessory conservators, it also requires consideration of any history of past abuse and
qualifies that preference with the admonition:
“unless [the court] finds that the
appointment is not in the best interest of the child and that parental possession or access
would endanger the physical or emotional welfare of the child.” TEX. FAM. CODE §
153.191. See also, TEX. FAM. CODE § 153.004.
The summary judgment evidence shows, among other things, that: (1) medical
opinions were mixed as to whether Texas was suffering from abuse; (2) Mother had
court-awarded custody and appeared to comply with the safety plan until late November,
2010; and (3) Ruiz had previously abandoned Texas, leaving him with Mother; was
considered to have participated in the abuse by his own failure to protect; and displayed
serious anger management problems in the course of the TDPRS involvement.
30 / 32
Ruiz has not supplied the Court with any authority to show the precise action
required of Arredondo and Cadena triggered by that place on the continuum between
family privacy and clear endangerment of the child where the facts of this case fall.
Neither do the cases supply specific measures that can or cannot be taken at certain
intervals on that continuum. Consequently, Ruiz does not show that he or Texas had a
clearly defined constitutional right that Cadena and Arredondo violated or that their
conduct was “objectively unreasonable” under the circumstances. Family relationships
are as complex as the people who are in them. Without the benefit of hindsight, it would
not serve anyone in the community well to construct strict rules for the micromanaging of
families and task a team of social workers with the “awesome power of the state” to
enforce them without any professional discretion.
As noted, these child protective cases involve nebulously defined rights such that
Ruiz has not demonstrated, and cannot show, that Cadena and Arredondo acted in a
manner that all caseworkers would know was clearly unlawful.
Our decision in Hodorowski reflects our understanding of the
difficult and important decisions social workers such as
Sanders face when trying to balance parental rights against
the prospect that a child is in immediate danger. We have
noted that “because an interest in family integrity ‘must
always be balanced against the governmental interest [in the
health, education, and welfare of children as future citizens],
it is difficult, if not impossible, for officials to know when
they have violated “clearly established” law.’” Doe v.
Louisiana, 2 F.3d 1412, 1418 (5th Cir. 1993) (quoting Frazier
v. Bailey, 957 F.2d 920, 929 (1st Cir. 1992)).
Burney, supra. When, as here, the state actor must exercise discretion and the law does
not prescribe or proscribe a particular action, “[t]he qualified immunity standard gives
31 / 32
ample room for mistaken judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quotations
omitted). Ruiz has failed to demonstrate that Arredondo and Cadena were “plainly
incompetent” or “knowingly violated the law.”
While there is a general right to family integrity that could support a cause of
action under the right sequence of events, the Court finds that Ruiz has failed to articulate
that Cadena or Arredondo’s conduct crossed a clearly identified line that defines the
contours and limits of that right under the circumstances of this case.
Because
caseworkers are generally entitled to the defense of qualified immunity, the Court
GRANTS the Defendants’ Motion to Dismiss (D.E. 35) and GRANTS Defendants’
Motion for Summary Judgment with respect to Ruiz’s claim to damages for breach of the
right to family integrity on his own behalf and on behalf of Texas.
CONCLUSION
For the reasons set out above, the Court GRANTS the Defendants’ Second
Amended Motion to Dismiss (D.E. 35). In addition, the Court GRANTS the Defendants’
Motion for Summary Judgment (D.E. 40) on the basis of qualified immunity.
ORDERED this 28th day of October, 2013.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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