JANE DOE; I.B. v. APRIL WOODARD, in hеr individual capacity; CHRISTINA NEWBILL, in her individual capacity; SHIRLEY RHODUS, in her individual capacity; RICHARD BENGTSSON, in his individual capacity; EL PASO COUNTY BOARD OF COUNTY COMMISSIONERS, and REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; JULIE KROW, in her official capacity as Executive Director of the El Paso County Department of Human Services
No. 18-1066
United States Court of Appeals for the Tenth Circuit
January 3, 2019
PUBLISH
FILED
United States Court of Appeals
Tenth Circuit
January 3, 2019
Elisabeth A. Shumaker
Clerk of Court
JANE DOE; I.B.,
Plaintiffs - Appellants,
v.
APRIL WOODARD, in her individual capacity; CHRISTINA NEWBILL, in her individual capacity; SHIRLEY RHODUS, in her individual capacity; RICHARD BENGTSSON, in his individual capacity; EL PASO COUNTY BOARD OF COUNTY COMMISSIONERS,
Defendants - Appellees,
and
REGGIE BICHA, in his official capacity as Executive Director of the Colorado Department of Human Services; JULIE KROW, in her official capacity as Executive Director of the El Paso County Department of Human Services,
Defendants.
PARENTAL RIGHTS FOUNDATION; NATIONAL CENTER FOR HOUSING AND CHILD WELFARE; NATIONAL COALITION FOR CHILD PROTECTION REFORM; PARENT GUIDANCE CENTER; MARK FREEMAN; PACIFIC JUSTICE INSTITUTE,
Amici Curiae.
Appeal from the United States District Court for the District of Colorado
(D.C. No. 1:15-CV-01165-KLM)
Theresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC, Monument, Colorado, for Plaintiffs - Appellants.
Kenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant County Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants - Appellees.
Kevin T. Snider, Pacific Justice Institute, Sacramento, California, filed an Amicus Curiae brief for Pacific Justice, in support of Appellants.
Darren A. Jones and James R. Mason, III, Purcellville, Virginia, Martin Guggenheim and Carolyn Kubitschek, Alexandria, Virginia, Diane Redleaf, College Park, Maryland, and Mark Freeman, Media, Pennsylvania, filed an Amici Curiae brief for Parental Rights Foundation, National Center for Housing and Child Welfare, National Coalition for Child Protection Reform, Parent Guidance Center, and Mark Freeman, Esq., in support of Appellants.
Before BRISCOE, LUCERO, and MATHESON, Circuit Judges.
I.B., a minor child, and her mother, Jane Doe (collectively, “Does“), claim that April Woodard, а caseworker from the El Paso County Department of Human Services (“DHS“), a state agency, wrongfully searched I.B. at the Head Start preschool program in Colorado Springs. Without consent or a warrant, Ms. Woodard partially undressed I.B., performed a visual examination for signs of abuse, then photographed I.B.s private areas and partially unclothed body.
In their lawsuit, the Does alleged that Ms. Woodard and other DHS officials violated the Fourth Amendment s prohibition on unreasonable searches and the Fourteenth Amendment s protection against undue interference with parental rights and with familial association. The Defendants moved to dismiss.1 The district court granted the motion, holding that qualified immunity precludes the Fourth Amendment unlawful search claim and that the complaint failed to state a Fourteenth Amendment claim.
The Does appeal these rulings and the district court s denial of leave to amend their complaint. Exercising jurisdiction under
I. BACKGROUND
A. Factual Background
In reviewing the grant of a motion to dismiss, we accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party—here, the Does. Mayfield v. Bethards, 826 F.3d 1252, 1255, 1258 (10th Cir. 2016).
In December 2014, I.B. was attending preschool at the Head Start Program in Colorado Springs.2 An anonymous source reported to DHS possible signs of abuse on I.B. s body, including bumps on her face, a nickel-sized bruise on her neck, a small red mark on her lower back, two small cuts on her stomach, and bruised knees. DHS caseworker April Woodard responded to the report, arriving to take I.B. to the nurse s office.3 Allegedly aсting on instructions from DHS supervisor Christina Newbill, Ms. Woodard removed
The Does alleged that the undressing and photographing were “executed under an unwritten, but well-established county-wide policy or custom encouraging the practice, often without first obtaining parental consent or a court order.” Aplt. Br. at 5 (citing Aplt.
App., Vol. I at 21-28). They further alleged that Richard Bengtsson, then Executive Director of the El Paso County DHS, issued the policy, and the director of Ms. Woodard s department, Shirley Rhodus, implemented it.
The following day, Ms. Woodard visited Ms. Doe at home. DHS did not suspect her of abuse, and she cooperated with the investigation. Ms. Woodard did not inform Ms. Doe that she had inspected and photographed I.B. in a state of partial undress. The case was closed as unfounded.
After DHS closed the case, I.B. told her mother about the incident, saying she hoped she would not see Ms. Woodard again because “I don‘t like it when she takes all my clothes off.” Aplt. App., Vol. I at 17. I.B. later said to Ms. Doe that Ms. Woodard had taken photos of her against her will. Aplt. App., Vol. I at 18. When Ms. Doe approached Ms. Woodard about her daughter s accusations, Ms. Woodard at first denied them. Two months later, she reversed course and admitted that she did the inspection and took photographs. Ms. Woodard told Ms. Doe that a child abuse accusation and investigation takes priority over the mother s parental rights.
B. Procedural History
The Does sued under
1. Dismissal of Fourth Amendment Claims
A magistrate judge6 concluded Ms. Woodard and her supervisors were entitled to qualified immunity on the Fourth Amendment claim7 and dismissed the claim without prejudice. When the Does sought to file an amended complaint, the court rejected the request on futility grounds and dismissed the claim with prejudice.
The district court dismissed the Fourth Amendment claim against Ms. Woodard and Ms. Newbill because the law was not so “clearly established” as to “give Defendants fair warning that the taking photographs of portions of I.B. s unclothed body required a warrant.” Dist. Court Op. at 16.
To the extent the Fourth Amendment claim was based on the Defendants failure to show that the “special needs” doctrine justified the search, the district court recognized that a special needs search comports with the Fourth Amendment only if it is “justified at its inception” and “reasonably related in scope to the circumstances which justified interference in the first place.” Id. at 19 (quotations omitted). But, the district court concluded, the Does complaint “lack[ed] allegations” the search was unjustified at its inception or was improper in scope. Id.8
The district court dismissed the Does Fourth Amendment claim without prejudice.
b. Ms. Rhodus and Mr. Bengtsson
The district court dismissed the Fourth Amendment § 1983 supervisory liability claim against Ms. Rhodus and Mr. Bengtsson. Because qualified immunity shielded their supervisees, Ms. Woodard and Ms. Newbill, it also shielded them. Id. at 22. The
court also dismissed the claim for prospective relief against Ms. Rhodus and Mr. Bengtsson, which demanded safeguards on storing photographs obtained in future searches, because it was based only on a “mere potential violation.” Id. at 23-24.
2. Dismissal of Fourteenth Amendment Claims
a. Ms. Woodard and Ms. Newbill
The district court dismissed, for failure to state a claim, the Does substantive due process claims under the Fourteenth Amendment for violation of the parental right to direct medical care and of the right to familial association.
i. Right to direct medical care
The district court dismissed the parental rights claim, stating that (1) the visual exam of a child was not “essentially a medical procedure“; (2) the complaint did not allege that the exam “affected [I.B s mother s] right to direct [I.B. s] medical care“; and (3) the complaint did not allege that the exam caused any “interference with [I.B. s] medical treatment.” Id. at 31 (quotations omitted).
ii. Right to familial association
The district court dismissed the familial association claims, concluding the Does did not sufficiently plead that (1) the Defendants intended to separate I.B. from her mother or that (2) the Defendants knew their conduct would adversely affect the familial relationship. Id.
b. Ms. Rhodus, Mr. Bengtsson, and Mr. Bicha
The district court also dismissed the Fourteenth Amendment supervisory claims against Ms. Rhodus and Mr. Bengtsson and the official capacity claims against Mr. Bengtsson and Mr. Bicha because the complaint failed to allege an underlying violation of the Fourteenth Amendment.9
When the Does attempted to amend their complaint, the district court denied the request, stating that the Does “have not addressed the Court s determination that Defendants were entitled to qualified immunity because the law was not clearly established with respect to whether Defendants needed a warrant in order to search the minor Plaintiff. In the absence of any case clearly establishing Plaintiffs rights as asserted, the Court cannot find that Defendants knowingly violated the law, even assuming that they committed a constitutional violation.” Aplt. App., Vol. II at 72-73 (citations and quotations omitted).10
The district court also dismissed the Fourth and Fourteenth amendment claims with prejudice.11
II. DISCUSSION
Our discussion reviews (A) the district court s qualified immunity dismissal of the Does Fourth Amendment claims and (B) its dismissal of their Fourteenth Amendment claims for failure to state a claim. We affirm in both instances.
A. Fourth Amendment Claims
This section provides background on the standard of review; qualified immunity law; Fourth Amendment search requirements, with emphasis on the special needs doctrine; and analysis of whether the Does have shown there was clearly established law at the time of the search to support their claim. We conclude they have not shown clearly established law that the special needs doctrine could not support the search in this case. They therefore have not shown that a warrant clearly was required.12
1. Standard of Review
We review de novo the grant of a motion to dismiss under
“At [the motion to dismiss] stage, it is the defendant s conduct as alleged in the complaint that is scrutinized for objective legal reasonableness. ” Behrens v. Pelletier, 516 U.S. 299, 309 (1996).
a. Qualified immunity
Under
“[Q]ualified immunity protects all but the plainly incompetent or those who knowingly violate the law. ” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A motion to dismiss based on qualified immunity imposes the burden on the plaintiff to show “both that [1] a constitutional violation occurred and [2] that the constitutional right was clearly established at the time of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009) (quotations omitted). A court evaluating qualified immunity is free to “exercise [its]
sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A constitutional right is clearly established if it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The plaintiff must show there is a “Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011) (quotations omitted). Generally, “existing precedent must have placed the statutory or constitutional question beyond debate” for a right to be clearly established. The Estate of Lockett, 841 F.3d at 1107 (quoting Mullenix, 136 S. Ct. at 308).
There “need not be a case precisely on point.” Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir. 2018). But “it is a longstanding principle that clearly established law should not be defined at a high level of generality.” Id. (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)); see also District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (“The clearly established standard . . . requires a high degree of specificity.” (quotations omitted)). “[T]he salient question . . . is whether the state of the law . . . gave [the defendants] fair warning that their alleged treatment of [the plaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
“[G]eneral statements of the law are not inherently incapable of giving fair and clear warning to officers, but in the light of pre-existing law the unlawfulness must be apparent.” White, 137 S. Ct. at 552 (citations and quotations omitted). “[T]here can be the rare obvious case, where the unlawfulness of the officer s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Wesby, 138 S. Ct. at 590 (quotations omitted).
which result from the policy s application.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (quotations and brackets omitted). Supervisors cannot be liable under § 1983 where there is no underlying violation of a constitutional right by a supervisee. See Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009).
b. Fourth Amendment search requirements
i. The warrant requirement
The Fourth Amendment protects people from unreasonable government searches of their “persons, houses, papers, and effects.”
As a general rule, a search requires a warrant based on probable cause. Illinois v. Gates, 462 U.S. 213, 239 (1983). “Searches conducted without a warrant are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions. ” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States, 389 U.S. 347, 357
(1967)). These exceptions include (1) consent;13 (2) exigent circumstances;14 and (3) a “special need.” In this case, there was no warrant, consent, or exigent circumstance.
ii. Special needs doctrine
” Special needs is the label attached to certain cases where special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. ” Dubbs, 336 F.3d at 1212 (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830 (2002)).
There is no definitive list of “special needs.” The Supreme Court has found a special need in a principal s in-school search of a student s purse for drugs; a public
employer s search of an employee s desk; a probation officer s search of a probationer s home; a Federal Railroad Administration policy requiring employees to take blood and urine tests following a major rail accident; drug testing of United States Customs employees applying for drug interdiction jobs; schools random drug testing of athletes; and drug testing of public school students partaking in extracurricular activities. See Dubbs, 336 F.3d at 1213 (collecting cases). In Dubbs, we synthesized the special needs doctrine as follows:
(1) an exercise of governmental authority distinct from that of mere law enforcement—such as the authority as employer, the in loco parentis authority of school officials, or the post-incarceration authority of probation officers; (2) lack of individualized suspicion of wrongdoing, and concomitant lack of individualized stigma based on such suspicion; and (3) an interest in preventing future harm, generally involving the health or safety of the person being searched or of other persons directly touched by that person s conduct, rather than of deterrence or punishment for past wrongdoing.
State actors can invoke the special needs doctrine only when the purpose of the search is sufficiently “divorced from the State s generаl interest in law enforcement.” Ferguson v. City of Charleston, 532 U.S. 67, 79 (2001) (drug tests used in a state obstetrics ward not justified under special needs because they were coordinated with the police).
When it applies, the special needs doctrine employs a more relaxed test than the one traditionally used under the Fourth Amendment to assess the reasonableness of a search. To evaluate special needs reasonableness, we have (1) required that (a) the search be “justified at its inception” and (b) reasonable in its “scope” given the “circumstances“;15 or we have (2) balanced government and private interests.16
1) Child abuse context: Supreme Court and Tenth Circuit
The Supreme Court has not addressed the special needs doctrine in the context of social workers inspection of children upon
The Tenth Circuit has not previously addressed whether the special needs doctrine applies to a social worker s search of a student at school to detect evidence of suspected abuse. We applied it in a child abuse context when a student at a public school needed to be interviewed. Doe v. Bagan, 41 F.3d 571, 574 n.3 (10th Cir. 1994). That case concerned a seizure, however, not а search, because it involved the questioning of a minor suspected of abusing another child, not an inspection of the allegedly abused child. See id. In another case, we held that special needs did not permit a social worker, who suspected abuse, to enter a home and remove a child. Roska, 328 F.3d at 1242. In Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), we held that even if a police officer is performing the functions of a social worker in examining a young child s private areas upon suspicion of abuse, the police officer nevertheless must abide by the Fourth Amendment s warrant requirement.17
In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), a school invoked the special needs doctrine when it subjected an entire class of children to intrusive physical examinations (including genital examinations and blood tests) without parental notice or consent, stating this was “done in order to comply with federal regulations [and] is an effective means of identifying physical and developmental
impediments in children prior to them starting school, a goal of Head Start.” Id. at 1214. We did not decide whether the doctrine applied, holding instead that even if it did, the searches were unconstitutional under the balancing test. The extreme privacy deprivations involved in the invasive testing outweighed the ostensible special need of doing a health assessment. Id. at 1214-15.
We therefore have not established whether the special needs doctrine permits a social worker to search a child, such as by removing clothing and/or taking photographs, to investigate a report of suspected abuse.
2) Child abuse context: other circuits and special needs
Other circuits have split on whether a social worker s еxamination of a child upon suspicion of abuse requires a warrant or qualifies for the special needs doctrine.
The Seventh Circuit held that a social worker s visual inspection of a child upon suspicion of child abuse falls under the special needs doctrine and thus can proceed without a warrant, as long as the search passes the special needs balancing test and is fundamentally reasonable. Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).18 In Wildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993), the Fourth Circuit held social workers warrantless examinations of potentially abused children in their foster
homes should be evaluatedFour other circuits, however, have held that social worker examinations of children based on abuse suspicions are not candidates for special needs analysis. The Third Circuit, in Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d 1087 (3d Cir. 1989), held that social workers’ search of a child in his home required either a search warrant, consent, or exigent circumstances. The Ninth Circuit, in Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), held that a social worker performing a search on a child to investigate possible abuse must have a warrant, consent, or exigent circumstances, and may not rely on the special needs doctrine (especially in this case where a police officer was also present with the social worker). The Second Circuit, in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), held that judicial authorization was required for social workers to examine a student upon suspicion of abuse. Finally, the Fifth Circuit, in Roe v. Texas Dep‘t of Protective & Regulatory Servs., 299 F.3d 395 (5th Cir. 2002), held that social workers performing a visual body cavity search for suspected abuse needed a court order based on probable cause or exigent circumstances, and that they could not rely on the special needs doctrine. Roe emphasized, under Ferguson, the overlap of social workers with law enforcement investigating abuse militates against the applicability of the special needs doctrine. Id. at 406.
3. Analysis
We limit our qualified immunity analysis, as the district court did, to whether the Does can satisfy the second prong of qualified immunity—that is, whether they can show that any
Defendants do not contest that Ms. Woodard conducted a search for
The Does have not cited a Supreme Court or Tenth Circuit decision specifically holding that a social worker must obtain a warrant to search a child at school for evidence of reported abuse. Instead, they argue that (a) only a warrant could have justified the search of I.B. because the special needs doctrine did not apply, or (b) even if the special needs doctrine did apply, Defendants’ conduct violated the
a. No showing of clearly established Fourth Amendment law on whether sоcial worker searches examining for abuse qualified for the special needs exception
In this section, we examine the Does’ attempts to show that Ms. Woodard‘s search violated clearly established
i. Supreme Court and Tenth Circuit law
The Does argue that Supreme Court and Tenth Circuit precedent on special needs existing when Ms. Woodard searched I.B. may be read to find a
The Does contend that these cases put the DHS caseworkers and their supervisors on notice that Ms. Woodard could not undress and photograph I.B. without a warrant, consent, or exigent circumstances. We disagree that these cases would have put a reasonable social worker on notice that her conduct violated the
First, Franz involved a police officer who searched a young child upon suspicion of abuse, and held that the officer needed a warrant, consent, or exigent circumstances to do so. In other words, the special needs doctrine did not apply. But a police search is not a social worker search, and Franz does not address the latter.
Second, Dubbs does not clearly establish
Third, Roska also does not provide clearly established law. In Roska, we said that a special need must “make the warrant and probable-cause requirement impracticable.” 328 F.3d at 1241 (quotations omitted). It held that, barring exigent circumstances, no special need “renders the warrant requirement impracticable when social workers enter a home to remove a child.” Id. at 1242. Roska does not bear upon social workers sеarching and photographing a child at school for suspected child abuse.
Finally, in Ferguson v. City of Charleston, 532 U.S. 67 (2001), the Supreme Court held that hospital workers’ reporting of drug tests taken in a maternity ward to police could not qualify for the special needs exception because their conduct was too intertwined with law enforcement. Ferguson says nothing about social workers
Taken together, these four cases do not constitute clearly established law that the Does suffered a
ii. Other circuits
Four circuits have rejected the special needs doctrine as an exception to the warrant requirement and two have approved it for searches like the one here. This does not amount to a “clearly established weight of authority from other courts,” Estate of Lockett v. Fallin, 841 F.3d 1098, 1112 (10th Cir. 2016) (quotations omitted), such that this “statutory оr constitutional question [is] beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Also, the circuits rejecting the special needs doctrine often did so based on facts distinguishable from this case—for instance, the search occurred at the child‘s home, see, e.g., Good, 891 F.2d at 1092; Roe, 299 F.3d at 411-12, or involved taking the child out of school to a hospital, see Tenenbaum, 193 F.3d at 602.
b. No showing of clearly established law on minimal Fourth Amendment reasonableness standards
Despite the lack of law clearly showing the special needs doctrine did not apply to the search here, the Does could still attempt to show that Ms. Woodard‘s search failed to meet clearly established minimal
When the Supreme Court first described the “special needs” exception in New Jersey v. T.L.O., 469 U.S. 325 (1985), it said a special needs search must satisfy minimum standards drawn from Terry v. Ohio, 392 U.S. 1 (1968):
the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the . . . action was justified at its inception“; second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.”
T.L.O., 469 U.S. at 341 (alteration in original) (citation omitted) (quoting Terry, 392 U.S. at 20). As noted above, we also have measured reasonableness by balancing government and private interests. See Dubbs, 336 F.3d at 1214.21
The Appellants offer almost no analysis to support their contention that the search violated clearly established minimal
ii. The dissent
We have shown that in December 2014 the law did not clearly establish that a warrant was required to justify Ms. Woodard‘s search. This is so because the law did not clearly establish that Ms. Woodard could not rely on the special needs exception to justify the search. See McInerney, 791 F.3d at 1237 (performing clearly established analysis by examining whether it was clearly established that an exception did not apply to the
Despite appearing to agree with the foregoing, the dissent contends the search violated clearly established
First, the Does must “identify a case where an officer acting under similar circumstances . . . was held to have violated the
In Dubbs, the nature of the search was an intrusive examination of the genitals of all children in the clаss, “separated only by partitions, so that it was possible for other children to see or hear portions of the examinations performed on their classmates.” Dubbs, 336 F.3d at 1199. “The girls were asked to lay spread-legged on a table where the nurses inspected the girls’ labia; in some cases the nurses would ‘palpate,’ or touch, the genital area when a visual inspection was not adequate. Similarly, the nurses would palpate the boys’ genitals to test for the presence of testes.” Id. at 1200. Accordingly, not only was the state justification weaker in Dubbs than in this case, the search was far more invasive, far less private, and applied indiscriminately to the entire class. Dubbs held the search unconstitutional under “the ‘special needs’ balancing test,” id. at 1214, but the factors to balance in this case are plainly different.
In Safford, school officers searched a student suspected of distributing medications to other students. 557 U.S. at 368. The search, which involved removal of the student‘s clothing and pulling aside her undergarments to expose private areas, id. at 369, was comparable to this case, but the circumstances underlying the search were different. The student searched in Safford was suspected of harming others through drug distribution. Id. at 377. The child in this case was suspected of suffering abuse from a third party. The Safford Court asked whether the search was ““reasonably related in scope to the circumstances which justified the interference,“” id. at 375 (quoting T.L.O., 469 U.S. at 341), and held that it was not, given that the school lacked facts that the alleged medications were dangerous or that the student hid them “in her underwear.” Id. at 376. Neither Safford or Dubbs served to clearly establish that Ms. Woodard‘s search of I.B. was not reasonably related in scope to the circumstances—suspected child abuse. The dissent correctly states that the searches in all three cases involved the children‘s “intimate areas,” but the purpose and circumstances of the search for suspected child abuse in this case differed too much for Dubbs and Safford to have guided Ms. Woodard with clearly established law.
Unlike the dissent, therefore, we do not see how a reasonable social worker in Ms. Woodard‘s position would, based on these cases, know that her search of I.B. violated the requirements for the special needs exception or the basic protections of the
Second, the dissent‘s reliance on these cases runs counter to the Supreme Court‘s repeated instruction that “clearly established law should not be defined at a high level of generality” but “must be particularized to the facts of the case.” White, 137 S. Ct. at 552 (quotations omitted). The Court has stressed that the rule‘s high “degree of specificity” is “especially important in the
Even if Dubbs and Safford offer plausible authority to support a special needs
* * * *
In summary, the Does have not shown that Ms. Woodard‘s search violated clearly established
B. Fourteenth Amendment Claims
This section addresses the two substantive due process claims for violation of parental rights and interference with familial association. We describe our standard of review and provide legal background on the facts required to allege these types of claims and how those facts must “shock the conscienсe.” We then examine whether the Does’ complaint states a plausible claim under these standards and, like the district court, find it lacking.
1. Standard of Review
We review de novo a district court‘s
Under our de novo review, “[a]ll well-pleaded facts, as distinguished from conclusory allegations, must be taken as true,” and we must liberally construe the pleadings and make all reasonable inferences in favor of the non-moving party. Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (quotations omitted).
2. Legal Background
The following describes the parental right to direct medical care and the
a. Substantive due process claims—“shocks the conscience”
In Halley v. Huckaby, 902 F.3d 1136 (10th Cir. 2018), we recently recounted that the Supreme Court recognizes two types of substantive due process claims: (1) claims that the government has infringed a “fundamental” right, see, e.g., Washington v. Glucksberg, 521 U.S. 702, 721-22 (1997) (assessing asserted right to assisted suicide); and (2) claims that government action deprived a person of life, liberty, or property in a manner so arbitrary it shocks the judicial conscience, see, e.g., City of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (examining a high-speed police chase). Halley, 902 F.3d at 1153. “[W]e apply the fundamental-rights approach when the plaintiff challenges legislative action, and the shocks-the-conscience approach when the plaintiff seeks relief for tortious executive action.” Id. The Dоes’ substantive due process claims—violation of the parental right to direct medical care and to familial association—challenge executive action, id. at 1154, and therefore are “shocks the conscience” claims.
Executive action that shocks the conscience requires much more than negligence. Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006). Even the actions of a reckless official or one bent on injuring a person do not necessarily shock the conscience. Id. “Conduct that shocks the judicial conscience” is “deliberate government action that is arbitrary and unrestrained by the established principles of private right and distributive justice.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th Cir. 2013) (quotations omitted). “To show a defendant‘s conduct is conscience shocking, a plaintiff must prove a government actor arbitrarily abused his authority or employed it as an instrument of oppression.” Id. (brackets omitted) (quotations omitted). “The behavior complained of must be egregious and outrageous.” Id.; see Breithaupt v. Abram, 352 U.S. 432, 435 (1957) (“We set aside the conviction because such conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not comport with traditional ideas of fair play and decency.“) The Supreme Court found conscience-shocking behavior in a case involving a sheriff‘s application of stomach pumping to force vomiting, Rochin v. California, 342 U.S. 165, 172 (1952). This Circuit recently found a social worker‘s various actions that led to physical and sexual abuse of a minor shocked the conscience. T.D. v. Patton, 868 F.3d 1209, 1213 (10th Cir. 2017).
b. Parental right to direct child‘s medical care
The
c. Right of familial association
The government‘s “forced separation of parent from child, even for a
To state a claim, Ms. Doe must have alleged that (1) the Defendants intended to deprive her of her protected relationship with her daughter, see Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1175 (10th Cir. 2013); and that (2) the Defendants either unduly burdened Ms. Doe‘s protected relationship, see Jensen, 603 F.3d at 1199, or effected an “unwarranted intrusion” into that relationship, Trujillo v. Bd. of Cty. Comm‘rs, 768 F.2d 1186, 1190 (10th Cir. 1985).
3. Analysis
a. Right to direct medical care
Ms. Doe‘s allegations on the right to control medical treatment do not “shock the conscience.” To be conscience-shocking, Ms. Woodard‘s (or her supervisors‘) behavior had to be so “arbitrary” to be “as an instrument of oppression,” “egregious,” “outrageous,” and “so brutal and offensive” that it runs afoul of “traditional ideas of fair play and decency.” Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.
The allegations did not allege this level of severity. They did not allege interference with Ms. Doe‘s control of I.B.‘s medical treatment other than Ms. Woodard‘s performing an initial examination to determine whether I.B. had been abused. To the extent this was a “medical decision,” it hardly rose to the level of what precedent requires for “shocks the conscience.”
b. Familial association
Ms. Doe‘s familial association allegations similarly did not “shock the conscience” under Halley. We consider whether the complaint alleged (1) a deprivation of Ms. Doe‘s protected relationship with I.B. that (2) “unduly burdened” that relationship in a manner that was “egregious,” “outrageous,” “unrestrained,” “brutal,” and a display of arbitrary power being used “as an instrument of oppression.” Moore, 438 F.3d at 1040; Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.
Again, the complaint
Moreover, the search happened during school hours when I.B.‘s mother would not otherwise have been with her. To the extent I.B. was separated from her mother during a time when she would have wanted her mother to be present, this is a far cry from the substantial separation required in other cases. See, e.g., Thomas, 765 F.3d at 1188-90, 1197-98 (
* * * *
In summary, the Does have failed to state a
III. CONCLUSION
We affirm the district court‘s (1) dismissal of the I.B.‘s
No. 18-1066, Doe v. Woodard
BRISCOE, Circuit Judge, concurring in part, dissenting in part.
I agree with the majority that it is not clearly established that a social worker investigating an allegation of child abuse must obtain a warrant before searching a child. But, as the majority acknowledges, uncertainty about whether Ms. Woodard was required to obtain a warrant does not fully dispose of I.B.‘s
I disagree. Even assuming the special needs exception applied, it was clearly established in December 2014 that Ms. Woodard‘s search of I.B.‘s intimate areas—a search that Ms. Woodard conducted without parental consent or a specific
I
Ms. Woodard is entitled to qualified immunity “under
In Dubbs, a group of parents sued a Head Start program for violating their toddlers’
We explained that, “[i]n special needs cases, . . . the warrant and probable cause requirement [is replaced] with a balancing test that looks to the nature of the privacy
Lack of parental consent was a decisive fact in Dubbs bеcause “the requirement . . . of parental consent in the case of minor children[] serves important practical as well as dignitary concerns, even when a social welfare agency . . . believes it is acting for the good of the child.” Id. at 1207. “Even beyond constitutional values of privacy, dignity, and autonomy, parental notice and consent for childhood physical examinations are of significant practical value.” Id. Parents can “provide medical histories, discuss potential issues with the health care professionals, help to explain the procedures to the children, and reassure them about the disturbing and unfamiliar aspects of the exam—which included . . . visual . . . inspection of genitals by strangers.” Id.
Six years after Dubbs, the Supreme Court also analyzed the constitutionality of a search of a child‘s intimate areas under the special needs exception. See Safford, 557 U.S. 364. In Safford, a 13-year-old student was accused of distributing prescription and over-the-counter medications to other students at her school. Id. at 368. The pills had previously made another student sick. Id. at 372. In an effort to locate the medications, an assistant principal and administrative assistant searched the accused student‘s backpack, but found nothing. Id. The assistant principal then “instructed [the assistant] to take [the student] to the school nurse‘s office to search her clothes for pills.” Id. at 369. They found no medications. Id. Having already removed all of her clothing except her underwear, the student “was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree.” Id. Again, “[n]o pills were found.” Id. The student‘s mother sued the assistant principal for violating her daughter‘s
The Court explained that this type of search “implicate[s] the rule of reasonableness as stated in [New Jersey v. T.L.O., 469 U.S. 325 (1985)], that ‘the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.‘” Id. at 375 (second alteration in original) (quoting T.L.O., 469 U.S. at 341). Under this special needs test, “[t]he scope [of the search] will be permissible[] . . . when it is ‘not excessively intrusive in light of the age and sex of the [child] and the nature of the’ government‘s interest in conducting the search. Id. (quoting T.L.O., 469 U.S. at 342).
The Court emphasized the severity of a search that “expos[es]” a child‘s “intimate parts.” Id. at 377. “[B]oth subjective and reasonable societal expectations of personal privacy support the treatment of . . . a search [of a child‘s intimate areas] as categorically distinct” from more
The legal principle controlling the constitutionality of Ms. Woodard‘s search of I.B. is clearly established because Dubbs and Safford are “particularized to the facts of [this] case.” McCoy, 887 F.3d at 1044 (quoting Pauly, 137 S. Ct. at 552). Both cases analyze the search of the intimatе areas of a child‘s body under the special needs exception, which is the issue presented here. In both cases, the searches were justified by the state‘s interest in child welfare—“identifying physical and developmental impediments” in Dubbs, 336 F.3d at 1214, and preventing students from distributing medications in Safford. Both searches were conducted by multiple adults, on school property, without parental notification, consent, or presence. In both Dubbs and Safford, the searches violated the
This “precedent [is] clear enough that every reasonable official would interpret it to establish the particular rule the [Does] seek[] to apply,” Wesby, 138 S. Ct. at 590, namely that Ms. Woodard‘s search needed to be “justified at its inception and reasonably related in scope to the circumstances that justified the interference in the first place,” Aplt. Br. at 36 (citing Safford, 557 U.S. at 375). See Jones v. Hunt, 410 F.3d 1221, 1228-31 (10th Cir. 2005) (reversing grant of qualified immunity to a social worker who seized a student on school property because the seizure was not “justified at its inception“). Given their factual similarities to the search at issue here, Dubbs and Safford “obviously resolve whether the circumstances . . . confronted” by Ms. Woodard satisfied the special needs exception. Wesby, 138 S. Ct. at 590 (quotation marks omitted).
The majority concludes that the searches at issue in Dubbs and Safford are too dissimilar from Ms. Woodard‘s search of I.B. for Dubbs and Safford to be clearly established law. Maj. Op. at 28-32. I do not think that Defendants are entitled to qualified immunity based on the factual differences between Dubbs, Safford, and Woodard‘s search of I.B. “[T]here does not have to be ‘a case directly on point[;]’ existing precedent must [have] place[d] the lawfulness of the particular [action] ‘beyond debate.‘” Wesby, 138 S. Ct. at 590 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). At the very least, Safford clearly established the legal principle that, under the special needs exception, a government official‘s search оf a child‘s body must be “reasonably related in scope to the circumstances which justified the interference in the first place.” 557 U.S. at 375 (quoting T.L.O., 469 U.S. at 341). Safford also established that, because of “the categorically extreme intrusiveness of a search down to the body,” such a search “requires some justification in suspected facts, general background possibilities fall short.” Id. at 376. To be “reasonable,” a “search that extensive calls for suspicion that it will pay off.” Id.
Ms. Woodard could not have thought herself exempt from Safford. “We have
As I discuss in the next section, this is where Ms. Woodard fell short of meeting the standard required by clearly established law. The Does have pled an unconstitutional search under Safford because they have alleged that Ms. Woodard was not aware of specific facts to justify a reasonable suspicion that she would find evidence of abuse by examining I.B.‘s intimate areas. See McCoy, 887 F.3d at 1052-53 (concluding that precedent was clearly established law even though “not factually identical” to the case on apрeal because the precedent was “factually analogous” and “share[d] . . . decisive factual circumstance[s]” with the case on appeal).
II
Because I would conclude that there is clearly established law on the question of whether Ms. Woodard‘s search was constitutional under the special needs exception, I would also address the remaining prong of the qualified immunity test—whether Ms. Woodard “violated [I.B.‘s] federal . . . constitutional right.” Wesby, 138 S. Ct. at 589.
Ms. Woodard‘s search needed to be “reasonably related in scope to the circumstances which justified the interference in the first place,” meaning that the search should “not [have been] excessively intrusive in light of the age and sex of [I.B.] and the nature of the” government interest. Safford, 557 U.S. at 375 (quoting T.L.O., 469 U.S. at 341, 342). Certainly, the government‘s interest in thoroughly and promptly investigating allegations of child abuse is weighty. See Roska, 328 F.3d at 1242 (“It is true that the state has a strong interest in protecting children, and that this interest should be taken into account in evaluating the reasonableness of [a] search . . . .“). But that interest does not supersede I.B.‘s
The El Paso County Department of Human Services “receivеd a report that I.B. was being abused” on December 9, 2014. App. Vol. I at 15. “Allegations of abuse included little bumps on I.B.‘s face, a bruise about the size of a nickel on her neck, a small red mark on her lower back, two small cuts on her stomach, and bruised knees.” Id. The next day, on December 10, 2014, Ms. Woodard went to I.B.‘s school. Id. at 16. At that time, Ms. Woodard had already “received permission from her supervisor[] . . . to view I.B.‘s buttocks, stomach/abdomen, and back so [she] could look for marks/bruises.” Id. (quotation marks omitted).
I.B was taken to the school nurse‘s office with Ms. Woodard and a school health paraprofessional. Id. Without first assessing the accuracy of the report of abuse—which, given the location of the alleged injuries, could have been accomplished without fully removing I.B.‘s clothes—“Ms. Woodard instructed I.B. to show her buttocks and stomach and back.” Id. Ms. Woodard and the school health employee then “took off all I.B.‘s clothes” and “viewed I.B.” Id. When Ms. Woodard later documented her findings, she noted that “the marks observed were not consistent with the” report of alleged abuse. Id. at 17.
Nevertheless, Ms. Woodard and the school nurse “prepared to take photographs.” Id. at 16. “I.B. told Ms. Woodard she did not want photographs taken.” Id. Undeterred, Ms. Woodard “took color photographs of private and unclothed areas of I.B.‘s body.” Id. At no point did Ms. Woodard notify Ms. Doe of her plan to search I.B. or seek consent from Ms. Doe to conduct the search. See id. at 17.
The next day, on December 11, 2014, Ms. Woodard visited the Does’ home to continue her investigation. Id. at 16. On January 5, 2015, “[t]he case was closed as unfounded.” Id. at 17.
Safford dictates the outcome of this case. The privacy intrusion at issue here is more serious than in Safford, where the student‘s “breasts and pelvic area” were briefly exposed “to some degree,” 557 U.S. at 374, because Ms. Woodard removed all of I.B.‘s clothes and took color photographs of I.B.‘s naked body. To survive
The Does’ allegations do not support an inference that Ms. Woodard believed I.B. to be in particular danger. See Id. at 375-76 (“[T]he content of the [vice principal‘s] suspicion failed to match the degree of intrusion” because “[h]e must have been aware of the nature and limited threat of the specific drugs he was searching for[.]“). DHS did not dispatch Ms. Woodard to investigate the allegation of abuse until the day after its receipt, when I.B. was already back at school. It is reasonable to infer that, had DHS or Ms. Woodard considered I.B. to be in particular danger, Ms. Woodard would have intervened more promptly. Nor is there any indication that, when Ms. Woodard arrived at the school, I.B. appeared more injured or more in danger than the report suggested.
Neither could Ms. Woodard have had a “specific suspicion[]” that evidence of abuse would be found in the private areas of I.B.‘s body. Id. at 377. No facts were pled that support such a suspicion. The report of abuse was limited
I would reach the same conclusion relying on Dubbs. Ms. Woodard‘s search was unreasonable because she had “no justification for proceeding without parental notice and consent.” Dubbs, 336 F.3d at 1214. Ms. Woodard began to investigate the allegation of abuse the day after the report was received by DHS, ostensibly giving Ms. Woodard time to speak with Jane Doe, I.B.‘s mother. App. Vol. I at 15-16. In fact, Ms. Woodard had time to secure her supervisor‘s approval for the search prior to arriving at I.B.‘s school, id. at 16, making it all the more reasonable to infer that Ms. Woodard had time to seek consent from Ms. Doe. Instead, Ms. Woodard elected to search I.B. without Ms. Doe‘s consent, which left four-year-old I.B. alone in the school nurse‘s office as two adult strangers examined and photographed her naked body in sеarch of signs of physical abuse. Ms. Doe could not “discuss potential issues with” Ms. Woodard, “help to explain” the search to I.B., or “reassure [I.B.] about the disturbing and unfamiliar aspects of the exam.” Dubbs, 336 F.3d at 1207. “[I]t is plain that” Ms. Woodard‘s search of I.B. was “unconstitutional.” Id. at 1214.
The unconstitutional nature of Ms. Woodard‘s search becomes even clearer upon consideration of new facts alleged in the proposed Second Amended Complaint.5 First, the Does allege that Ms. Woodard was aware, before she searched I.B., of a previous unfounded report of abuse from I.B.‘s school. App. Vol. I at 206. Ms. Woodard also “knew that Jane Doe had been cooperative in [the] previous DHS investigation.” Id. Second, the Does allege that Ms. Woodard “interviewed I.B. at her school prior” to the search. Id. at 230. During this interview, “I.B. told [Ms.] Woodard that she gets red dots on her face when she cries, but that she did not have any other ‘owies.‘” Id.
Because Ms. Woodard knew that I.B.‘s school had previously made an unfounded report of abuse, it was less reasonable for Ms. Woodard to rely on a report from the same source to justify a search of the intimate areas of I.B.‘s body. That Ms. Woodard knew Ms. Doe had cooperated in the previous DHS investigation also made it less reasonable for Ms. Woodard to search I.B. without first attempting to notify Ms. Doe. Finally, when I.B. explained the marks on her face and denied any other injuries, it was not reasonable for Ms. Woodard to then expand the search beyond the scope of reported abuse, to
Amended Complaint make it all the more plain that Ms. Woodard‘s search was unconstitutional.
Because I would conclude that Ms. Woodard violated I.B.‘s clearly established
[A] court must consider whether reliance on the statute rendered the [official‘s] conduct “objectively reasonable,” considering such factors as: (1) the degree of specificity with which the statute authorized the conduct in question; (2) whether the officer in fact complied with the statute; (3) whether the statute has fallen into desuetude; and (4) whether the officer could have reasоnably concluded that the statute was constitutional.
Id. at 1253 (footnotes omitted).
Defendant‘s rely on
First, the statute does not authorize Ms. Woodard to undress I.B. The statute specifically limits Ms. Woodard‘s authority to photograph “areas of trauma” that are “visible.”
Moreover, Ms. Woodard did not photograph areas of trauma. The Does allege that Woodard took photographs of “private and unclothed areas of I.B.‘s body,” App. Vol. I at 16, even though the report of abuse only implicated non-private parts of I.B.‘s body and “the marks observed [on I.B.‘s body] were not consistent” with the report of abuse, id. at 17.
Ms. Woodard also let I.B. return to school and her mother‘s custody, which further suggests that Ms. Woodard did not “reasonably believe[ I.B.] ha[d] been abused or neglected.”
III
I concur in the majority‘s rulings on the