JAMIE KIRKPATRICK, individually, and as the natural father and legal guardian of B.W., a minor, Plaintiff-Appellant,
COUNTY OF WASHOE; AMY REYNOLDS, WCDSS social worker; ELLEN WILCOX, WCDSS social worker; LINDA KENNEDY, WCDSS social worker, Defendants-Appellees
Argued and Submitted, University of Nevada, Las Vegas January 28, 2014.
Appeal from the United States District Court for the District of Nevada. D.C. No. 3:09-cv-00600-ECR-VPC. Edward C. Reed, Jr., Senior District Judge, Presiding.
The panel affirmed in part and reversed in part the district court's summary judgment in favor of defendants and remanded in a 42 U.S.C. § 1983 action against the County of Washoe and three social workers alleging violations of the Fourth and Fourteenth Amendment when defendants took plaintiff's biological daughter, B.W., into protective custody when she was two days old and placed her with a foster parent without obtaining prior judicial authorization.
The panel affirmed the district court's summary judgment in favor of all of the defendants on the Fourteenth Amendment claim alleged by plaintiff on his own behalf. The panel held that plaintiff did not have a constitutionally recognized liberty interest in his relationship with B.W. when she was taken into custody because his paternity was not yet established.
The panel reversed the district court's summary judgment in favor of two social workers and Washoe County on the claim that they violated B.W.'s Fourth Amendment right to be free from unreasonable seizures. The panel concluded that the district court erred in deciding that the complaint did not provide adequate notice that B.W. asserted a Fourth Amendment claim on her own behalf. The panel further concluded that the social workers seized B.W. without obtaining a warrant under circumstances where a reasonable juror might find that a reasonable social worker could not have determined that the child was in imminent danger of serious bodily injury. The panel determined that the social workers were not entitled to qualified immunity on B.W.'s Fourth Amendment claim.
The panel held that the evidence presented at least an inference of an unconstitutional, unofficial custom in Washoe County of taking custody of children under non-exigent circumstances, without obtaining prior judicial authorization. The County therefore was not entitled to summary judgment. The panel remanded for further proceedings on the Fourth Amendment claim filed on behalf of B.W. against these three defendants.
The panel affirmed the district court's summary judgment in favor of social worker Amy Reynolds with respect to all claims because the plaintiffs had not alleged any facts suggesting that she was involved with the decision to take custody of B.W.
Dissenting in part, Judge Kozinski stated that the majority ignored the Supreme Court's clear admonition that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. Judge Kozinski stated that the majority imposed personal liability on two child protective service workers whose actions were anything but malicious or incompetent.
David J. Beauvais (argued), Oakland, California; William R. Kendall, Reno, Nevada; Jeffrey Friedman, Reno, Nevada, for Plaintiffs-Appellants.
Brian M. Brown (argued) and Kevin A. Pick, Thorndal, Armstrong, Delk, Balkenbush & Eisinger, Reno Nevada, for Defendants-Appellees Amy Reynolds, Ellen Wilcox, and Linda Kennedy.
Herbert B. Kaplan (argued), Deputy District Attorney; Richard Gammick, District Attorney, Reno, Nevada, for Defendant-Appellee Washoe County.
Before: Stephen Reinhardt, Alex Kozinski, and Jay S. Bybee, Circuit Judges. Opinion by Judge Bybee; Partial Dissent by Judge Kozinski.
Jay S. Bybee, Circuit Judge:
" Government officials are required to obtain prior judicial authorization before intruding on a parent's custody of her child unless they possess information at the time of the seizure that establishes 'reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.'" Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001) (quoting Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 1999)). The Washoe County Department of Social Services (WCDSS) took B.W. into protective custody when she was two-days old and placed her with a foster parent without obtaining prior judicial authorization. B.W.'s biological father, Jamie Kirkpatrick, filed this 42 U.S.C. § 1983 action against the County and three of its social workers, alleging violations of the Fourth and Fourteenth Amendments. The district court granted summary judgment in favor of all of the defendants. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's order granting summary judgment. Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011).
We affirm in part and reverse in part the district court's grant of summary judgment and remand for further proceedings.
A. The County Takes Custody of B.W.
On July 15, 2008, Rachel Whitworth gave birth to her daughter B.W. at a hospital in Reno, Nevada. Whitworth admitted that she used methamphetamine throughout her pregnancy, including as recently as two days earlier. B.W. tested positive for methamphetamine at birth. When Whitworth informed hospital staff that her two other children were in the custody of the WCDSS, the hospital contacted Chondra Ithurralde, the WCDSS social worker managing the open case.
The next day, Ithurralde visited the hospital with WCDSS social worker Ellen Wilcox. Ithurralde notified the hospital that Whitworth was an active methamphetamine user who lacked stable housing and the supplies necessary to care for an infant and that the Department planned to terminate her parental rights vis-à-vis her two other children. Wilcox interviewed Whitworth, who again acknowledged that she was a methamphetamine user who did not have the means to provide for B.W. In light of this information, Wilcox requested that the hospital place a " hold" on B.W. to prevent her from being discharged. The hospital typically honors the Department's hold request as a courtesy, but it is not a court order. The hold did not prevent Whitworth from interacting with B.W. while they were in the hospital together. The hospital's notes state that B.W. remained in the room with Whitworth, who failed to feed the infant on schedule and keep her dry. Meanwhile, Wilcox conferred with her supervisor Linda Kennedy, who authorized Wilcox to take custody of B.W. when the hospital released the infant. Wilcox informed Whitworth that she had placed a hold on the child and that a protective custody hearing would be scheduled.
On July 17, 2008, the hospital discharged two-day-old B.W. into the custody of the WCDSS. The Department arranged for B.W. to stay with the foster parent who was caring for Whitworth's other children. The WCDSS had not requested judicial authorization before taking custody of B.W.
The family division of Nevada's Second Judicial District Court held a protective custody hearing the next day, with Whitworth participating by phone from the hospital. The court determined that B.W. should remain in protective custody due to Whitworth's ongoing drug use, her lack of stable housing and employment, her inability to provide for the child, and the fact that Whitworth's other children were already in foster care.
B. Kirkpatrick's Involvement
Jamie Kirkpatrick, B.W.'s biological father, was present at the hospital when Whitworth gave birth to B.W. While Whitworth was pregnant, she notified Kirkpatrick that he might be the father, though she also told him that there were other potential candidates. Kirkpatrick spoke with Whitworth a couple of times during her pregnancy, but he did not participate in providing any type of prenatal care. He acknowledged that he did not know whether he was B.W.'s biological father at the time of her birth.
Kirkpatrick first learned of the Department's involvement soon after it took custody of the child on July 17, 2008. He left his contact information with Whitworth so that the Department could schedule a paternity test to determine whether he was B.W.'s biological father. Kirkpatrick did not attend the protective custody hearing the next day, but the court ordered a paternity test at his request. The test revealed that Kirkpatrick is indeed B.W.'s biological father.
On July 28, 2008, the WCDSS filed a petition alleging that B.W. was a child in need of protection. The court held hearings on August 25, 2008, and September 15, 2008. Neither Whitworth nor Kirkpatrick attended despite being served with notice. Kirkpatrick visited B.W. twice before January 2009, when he attended a six-month permanency hearing and expressed interest in reunifying with his daughter. He returned to Reno--where B.W. lived with her foster family--and began visiting his child more frequently.
In October 2009, Kirkpatrick initiated this § 1983 action against Washoe County, Amy Reynolds, Ellen Wilcox, and Linda Kennedy. Following discovery, the parties filed cross-motions for summary judgment. The district court denied Kirkpatrick's motion for summary judgment and granted summary judgment in favor of Washoe County and the three individual defendants. Kirkpatrick timely appealed.
The state's decision to take custody of a child implicates the constitutional rights of the parent and the child under the Fourteenth and Fourth Amendments, respectively. " Parents and children have a well-elaborated constitutional right to live together without governmental interference. That right is an essential liberty interest protected by the Fourteenth Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency." Wallis, 202 F.3d at 1136 (internal citations omitted). " The claims of the parents in this regard should properly be assessed under the Fourteenth Amendment standard for interference with the right to family association." Id. at 1137 n.8. But " [b]ecause only the children [a]re subjected to a seizure, their claims should properly be assessed under the Fourth Amendment." Id. Parents cannot assert that the seizure of their child violated their own Fourth Amendment rights. Mabe, 237 F.3d at 1111 (" [The parent] has no standing to claim a violation of [the child's] Fourth Amendment rights." ).
We evaluate the claims of children who are taken into state custody under the Fourth Amendment right to be free from unreasonable seizures rather than the Fourteenth Amendment right to familial association " [b]ecause [when] the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Southerland v. City of New York, 680 F.3d 127, 143 (2d Cir. 2011) ( " For child removal claims brought by the child, we have concluded that the Constitution provides an alternative, more specific source of protection than substantive due process. When a child is taken into state custody, his or her person is 'seized' for Fourth Amendment purposes. The child may therefore assert a claim under the Fourth Amendment that the seizure of his or her person was 'unreasonable.'" ); Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 474 (7th Cir. 2011) ( " [S]ubstantive due process may not be called upon when a specific constitutional provision (here, the Fourth Amendment) protects the right allegedly infringed upon. . . . [The child's] claim arising from his initial removal is properly analyzed under the Fourth Amendment because it is premised on his seizure and does not coincide with sufficiently separate conduct involving his relationship with his parents." (first alteration in original) (internal quotation marks and citations omitted)).
A. Kirkpatrick's Fourteenth Amendment Claim
We first consider whether the district court correctly granted the defendants' motion for summary judgment on Kirkpatrick's claim that the County and its agents violated his Fourteenth Amendment right not to be separated from B.W. without due process under non-exigent circumstances. See Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1136. We affirm the district court's summary judgment in favor of all of the defendants on Kirkpatrick's claim because the facts alleged, construed in the light most favorable to Kirkpatrick, do not show that the defendants violated his constitutional rights. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ( " If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries." ).
Kirkpatrick did not have a constitutionally recognized liberty interest in his relationship with B.W. when she was taken into custody on July 17, 2008, because he was not yet a " parent" to B.W. At the time, no one was confident about whether Kirkpatrick was B.W.'s biological father. Kirkpatrick acknowledged that he " did not know" whether he was the father and that there were " possibly other candidates." Rachel Whitworth had informed Kirkpatrick that B.W. might be his child, but that there was " a possibility it could be someone else's as well." The test that eventually established Kirkpatrick's paternity was not administered until four days after B.W. was taken into custody.
We have recognized that the constitutional interest in a biological parent's relationship with his child persists even when that relationship is, as a practical matter, quite attenuated. See Burke v. Cnty. of Alameda, 586 F.3d 725, 733 (9th Cir. 2009) (holding that a biological father had a liberty interest in his relationship with his daughter even though the child's mother had sole physical custody of the child); Brittain v. Hansen, 451 F.3d 982, 992 (9th Cir. 2006) (holding that " non-custodial parents with court-ordered visitation rights have a liberty interest in the companionship, care, custody, and management of their children" ). But Kirkpatrick did not take any steps to confirm that he was B.W.'s biological father before the WCDSS took custody of B.W., such as requesting a paternity test before she was born or during her two days in the hospital, or attempting to execute a voluntary acknowledgment of paternity declaration. See Nev. Rev. Stat. § 126.053 ( providing that a voluntary acknowledgment of paternity declaration is " deemed to have the same effect as a judgment or order of a court determining the existence of the relationship of parent and child if the declaration is signed . . . by the mother and father of the child" ). Of course Kirkpatrick was not obligated to attempt to confirm his paternity, but he cannot claim the constitutional entitlements that have been allocated to biological parents when he did not seek to establish that he was B.W.'s father.
On these facts, we conclude that Kirkpatrick lacked a cognizable liberty interest in his relationship with B.W. Because Kirkpatrick cannot prove a violation of his constitutional rights, the district court properly granted summary judgment in favor of all of the defendants on the claim asserted by Kirkpatrick on his own behalf.
B. B.W.'s Fourth Amendment Claim
We next consider whether the defendants violated B.W.'s Fourth Amendment right to be free from unreasonable seizures when she was taken into custody by the WCDSS.
1. Adequate notice
The district court granted summary judgment in favor of the defendants because it concluded that the operative complaint--which is styled the second amended complaint--does not assert a cause of action on behalf of B.W. The court noted that the complaint repeatedly refers to the " Plaintiff" in the singular, including in the caption. Only once, the district court observed, does the complaint allege that " [B.W.'s] constitutional right to be with her parents was violated." The court reasoned that the complaint fails to articulate a claim on behalf of B.W. because " [r]ead in the context of the entire complaint, this one sentence does not provide notice that B.W. is a plaintiff to this case or that [Kirkpatrick] is asserting a cause of action on her behalf." Furthermore, the complaint's sole reference to the Fourth Amendment is located in a paragraph asserting that the defendants " acted under color of state law to deprive Plaintiff . . . of constitutionally protected rights, including . . . the right to be free from unreasonable searches and seizures." The district court inferred that the singular " Plaintiff" refers to Kirkpatrick, not B.W., and, under these circumstances, a parent cannot claim relief on the grounds that the state violated his own Fourth Amendment rights by seizing his child. See Mabe, 237 F.3d at 1111.
The district court did not appear to disagree with the premise that a parent is authorized to assert causes of action belonging to his minor child on behalf of the child. See Fed.R.Civ.P. 17(c)(2) (" A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem." ); Fed.R.Civ.P. 17(b)(3) (" Capacity to sue or be sued is determined . . . by the law of the individual's domicile." ); Nev. Rev. Stat. § 12.080 (" [T]he father or the mother, without preference to either, may maintain an action for the injury of a minor child who has not been emancipated, if the injury is caused by the wrongful act or neglect of another." ). Instead, the court determined that the complaint simply failed to " provide notice to the Defendants or the Court that B.W. is also a plaintiff in this case, or that Plaintiff is asserting a cause of action on her behalf." We respectfully disagree with the district court's reading of the complaint.
The operative complaint recites that " [B.W.'s] constitutional right to be with her parents was violated. This also resulted in the violation of Plaintiff's constitutional right to be with his daughter." These sentences indicate that the complaint alleges claims on behalf of both B.W. and Kirkpatrick. A pleading need not repeat the same assertion more than once to provide notice. We understand that the defendants or the court might have been confused to encounter this pair of claims given that the rest of the complaint refers to a singular " Plaintiff." But defendants can resolve such ambiguities by filing a Rule 12(e) motion for a more definite statement. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ( " If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding." ); see also Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (encouraging district courts to " grant the defendant's motion for a more definite statement under Rule 12(e)" where, as here, discovery in an action against a public official would undermine " the substance of the qualified immunity defense" ). The district court may also sua sponte request a more definite statement from the plaintiffs, even if the defendants find the complaint ...