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Love v. Child Protective Services

United States District Court, N.D. Texas, Dallas Division

January 5, 2018




         This 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.

         Two of 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 filed.

         The 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.

         Applicable Background

         Love's 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].

         She 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.

         In her 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 CPS.

[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.

         Upon 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)).

         Defendants 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.

         Legal Standards

         “Qualified 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)).

         Review 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).

         A court 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 ...

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