United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
pro se civil rights action has been referred to the
undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and an order of
reference from United States District Judge Jane J. Boyle.
See Dkt. No. 25.
the remaining defendants, Michelle Childers and Robin McGhee
(collectively “Defendants”), employees of Child
Protective Services (“CPS”), have moved for
summary judgment as to their affirmative defenses of immunity
and qualified immunity. See Dkt. Nos. 36, 37, &
38. On October 12, 2017, the Court denied Plaintiff Yulonda
Love's motion for leave to conduct
qualified-immunity-related discovery [Dkt. No. 40] and set
November 13, 2017 as the deadline by which Love was to have
responded to the summary judgment motion and November 28,
2017 as the deadline for Defendants to file a reply brief,
see Dkt. No. 41. Neither a response nor a reply was
undersigned issues these findings of fact, conclusions of
law, and recommendation that the Court should grant
Defendants' motion for summary judgment and dismiss this
action with prejudice.
version of events is drawn from her unverified complaint
[Dkt. No. 2] and her verified responses to the Court's
screening questionnaire [Dkt. No. 8].
claims that the defendants have violated her Fourth Amendment
right to be free from unreasonable seizures by “not
allowing [her] to talk to [her minor] child or to see her
while they had her on their property” and by
“speaking to [her] child and questioning her without
[Love's] consent or knowledge.” Dkt. No. 8 at 4;
see also Dkt. No. 2.
complaint, Love explains that, on the evening of July 5,
2016, she received a phone call from Defendant Jonathan's
Place, a private shelter, and was told to pick up S.L.,
Love's then-minor daughter. Love states that she was
eventually instructed to pick-up S.L. the next morning at the
CPS office. After Love arrived at the CPS office, she spoke
with Defendant Robin McGhee, identified as a supervisor with
[McGhee] asks me to give a statement as well. I refuse. I
mention to them my rights as [S.L.]'s parent and I tell
them they do not have consent to speak with [S.L.] or hold
her in their facility without my permission. I ask them if
any accusations were made against me and they stated no they
received a phone call. I informed them of their not having
custody or conservatorship, a warrant to seize or search my
child or even plausible cause....
Dkt. No. 2 at 2. Love further alleges that the defendants
refused to release S.L. to her.
initial screening under 28 U.S.C. § 1915(e)(2)(B), the
Court dismissed “Love's claims against the Texas
Department of Family Protective Services and her official
capacity claims against that state entity's employees as
barred by the Eleventh Amendment” and allowed to
proceed her claims against Jonathan's Place and
Defendants in their individual capacities, liberally
construing Love's factual allegations to support causes
of action under either the Fourth Amendment or the Fourteenth
Amendment to the United States Constitution (or both). Dkt.
No. 10, rec. adopted, Dkt. No. 11; see also
Dkt. No. 10 at 3-4 (“‘[A] deprivation of custody
constitutes a seizure under the Fourth Amendment, '
Phillips v. County of Orange, 894 F.Supp.2d 345, 361
(S.D.N.Y. 2012), and the United States Court of Appeals for
the Fifth Circuit has held that ‘the government may not
seize a child from his or her parents absent a court order,
parental consent, or exigent circumstances, ' Gates
v. Tex. Dep't of Protective & Regulatory Servs.,
537 F.3d 404, 429 (5th Cir. 2008). At least in the context of
stating a plausible claim, some courts have extended the
Fourth Amendment seizure of a minor child to include an
in-school interview of that child by school and/or child
protective service officials. See Phillips, 894
F.Supp.2d at 361-62 (collecting authority). And, ‘[i]n
this Circuit, it is “well established ... that the
Fourth Amendment regulates social workers' civil
investigations.”' Thomas v. Tex. Dep't of
Family & Protective Servs., 427 F. App'x 309,
314 (5th Cir. 2011) (per curiam) (quoting Gates, 537
F.3d at 420 (in turn citing Roe v. Tex. Dep't of
Protective & Regulatory Servs., 299 F.3d 395, 401
(5th Cir. 2002))).”); id. at 4 (“[I]n
light of the Court's obligation to ‘liberally
construe' pro se filings ‘with all
possible deference, ' the undersigned notes that Love
‘has a “fundamental liberty interest ... in the
care, custody, and management of [her] child, ”'
Pate v. Harbers, No. A-15-CA-375-SS, 2015 WL
4911407, at *9 (W.D. Tex. Aug. 17, 2015) (quoting
Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
‘The Fourteenth Amendment Due Process Clause protects
the right to family integrity. This right is held by both the
child and the parents.' Id. (citations
omitted).” (citations omitted)).
initially responded to the complaint by moving to dismiss the
claims asserted against them, under Federal Rule of Civil
Procedure 12(b)(6), primarily on the basis that they are
entitled to qualified immunity. See Dkt. Nos. 22,
23, & 24. The Court denied that motion without prejudice
to Defendants' filing an answer asserting that defense
and then moving for summary judgment as to that defense.
See Dkt. No. 32.
immunity attaches when an official's conduct ‘does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have
known.'” White v. Pauly, 137 S.Ct. 548,
551 (2017) (per curiam) (quoting Mullenix v. Luna,
136 S.Ct. 305, 308 (2015) (per curiam)); accord Pearson
v. Callahan, 555 U.S. 223, 231 (2009); Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). This “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, 134 S.Ct. 3, 5 (2013) (per curiam)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011); internal quotation marks omitted); accord City
& Cty. of San Francisco v. Sheehan, 135 S.Ct. 1765,
1774 (2015); see also Mullenix, 136 S.Ct. at 308
(“[a] clearly established right is one that is
‘sufficiently clear that every reasonable official
would have understood that what he is doing violates that
right'” (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012))); Hanks v. Rogers, 853 F.3d
738, 746-47 (5th Cir. 2017) (“A right may be clearly
established without ‘a case directly on point, '
but ‘existing precedent must have placed the statutory
or constitutional question beyond debate.'”
(quoting White, 137 S.Ct. at 551)).
of a motion for summary judgment based on qualified immunity
is accomplished in two steps, and, while a court may conduct
the required two-step examination in any order, see
Pearson, 555 U.S. at 236, “deciding the two prongs
in order ‘is often beneficial, '” Darden
v. City of Fort Worth, 866 F.3d 698, 702 (5th Cir. 2017)
(quoting Pearson, 555 U.S. at 236). But, regardless
which prong is addressed first, a court must decide
“whether the facts, taken in the light most favorable
to the plaintiff, show the officer's conduct violated a
federal constitutional or statutory right.” Luna v.
Mullenix, 773 F.3d 712, 718 (5th Cir. 2014) (citing
Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014) (per
curiam); Flores v. City of Palacios, 381 F.3d 391,
395 (5th Cir. 2004)), reversed on other grounds, 136
S.Ct. 305 (2015). Put differently, under the first prong, a
court simply must decide “whether the plaintiff has
alleged a violation of a constitutional right.”
Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008).
also must decide “whether the defendant's actions
violated clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Flores, 381 F.3d at 395. This second prong of the
analysis requires a court to determine “whether the
defendant's conduct was objectively reasonable in light
of the clearly established law at the time of the
incident.” Charles, 522 F.3d at 511. That is,
“whether it would have been clear to a reasonable
[official] in the [defendants'] position that their
conduct was unlawful in the situation they ...