John Doe, Individually and on Behalf of His Minor Two Children v. State of Louisiana, Paula Bennett and Sheryl George

GARZA, Bеfore KING and EMILIO M. HALL,1 Judge. Judges, and District Circuit GARZA, Judge: M. Circuit EMILIO Doe, individually on be- Plaintiff John children, brought half of his two minor suit (1988), claiming U.S.C. rights were vi- their Fourteenth Amendment by employees state and enti- olated various investigation. The during a child abuse ties to dismiss under defendants filed motion 12(b)(6) of absolute Fed.R.Civ.P. on the basis immunity, the district qualified defendants, except all granted court as to contending appeal, The two defendants two. immunity. are entitled to erred, we Finding that the district court reverse.

I summary the facts following is purposes complaint, which for alleged in the 12(b)(6) taken as true. motion are of a Rule Dist., Indep. School v. Ysleta See Jefferson (5th Cir.1987). Doe and “mother”) (the were divorced and his wife joint custody granted of their both (referred “daughter” to as the minor children “son”), remaining as custo- spent daughter parent. The and son2 dial took parents. The mother with both time Bagnetto, a Dr. Richard daughter physical examina- pediatrician, for a routine daughter Bagnetto noticed tion. Dr. age and the son daughter was four 2. The Judge Texas, years of the Eastern District 1. District during eight age the relevant sitting designation. period. years irritation, Dr. did told the mother that Janzen vaginal and asked moth- had possible report findings. it that the child had er whether was not make a of his sexually abused. The mother said that been commenced, investigation When possibility was some of sexual abuse there paternal with his son was North Carolina daughter the did not live with her all grandparents. George was informed Bagnetto the of the time. Dr. referred join supposed to the son and drive Doe was daughter Hospital for a culdo- to Children’s Gеorge and him back to New Orleans. Both scopic to determine whether the examination Par- Detective John Pinero of the Jefferson abuse.3 As irritation was the result of sexual agreed a few ish Office to wait Sheriffs law,4 required by Bagnetto Dr. then state weeks to the son New Orleans. interview Department Louisiana the Social notified secretly George Bennett wrote to the Community Services Services Office described 24th Judicial District Court and (“OCS”) suspected of the abuse. abuse, of sexual identified the son as a victim mandate,5 statutory to its the Pursuant alleged perpetrator, and the father as the immediately began a four month inves- OCS being urgent danger. described the as son tigation August Sheryl George, 1990. result, As a court orders were issued and the caseworker, Bennett, an and Paula an OCS where, in mother went to North Carolina the supervisor, assigned investigate to OCS sheriff, company of a local she took charges. George the insisted and evaluate him to of the son and took back New that Doe have no contact with his chil- Orleans. dren, complied. interviewing he After daughter pres- the mother’s the outside of Subsequently, expedited an informal custo- play having daughter ence the with ana- dy hearing by was conducted the 24th Judi- dolls, tomically George correct informed the judge presided cial District Court who had sexually daughter had been mother over Doe’s and the divorce and mother’s The Jefferson Parish office abused. Sheriffs custody proceedings. judge The determined daughter then interviewed the outside of the misrepresented the file Dr. OCS case presence. mother’s The interview was video- Bagnetto’s physical findings, and therefore Immediately taped. after the interview the material factual contained at least one mis- videotape pro- mother was informed that the representation. judge placed The both the evidence of sexual abuse. vided conclusive daughter and son their Subsequently, the mother asked to view the Thereafter, George paternal grandparents. tape, tape but was informed that no existed. son, and Detective Pinero interviewed the existed, tape When she said that she knew videotape refused to the interview or simply the mother was told that she could independent psychologist to allow an child say nothing not it and was ordered to see present. George stated that the interview about it.6 George was inconclusive. also insisted examination, undergo proctoscopic the son day investigation, the third of the Dr. On objections. despite parents’ The exami- Janzen, psychologist William who was se- OCS, produce nation evidence of sexual failed by the and evaluated lected interviewed Subsequently, based on information daughter the mother. He concluded abuse. the Attorney provided by George, the District that there no evidence of sexual abuse. and, necessary, if to a local or state contend that unbeknownst to Dr. Resources Plaintiffs recurring yeast Bagnetto, daughter agency." the had a law enforcement La.Rev.Stat.Ann. months, past (West over the several infection Supp.1993). § 14:403 Note pediatrician diagnosed had and treated. another treating pediatrician attributed the condition The (West § 14:403 Note 5. See La.Rev.Stat.Ann. hygiene obesity. daughter's poor to the Supp.1993). "Any mandatory reporter who has cause to plaintiffs in their amended com- physical 6. The failed or mental health or believe that a child's gave endangered identify party parties plaint a result of abuse or the who welfare is as neglect a “re- attorney or sexual abuse ... shall" make and the the information the mother immediately protection port to the local child videotape. of the about the existence Department and Human unit of the of Health thereby Attorney, pro- District interfered child-in-need-of-eare a civil commenced family integrity plaintiffs’ ceeding. Amendment. the Fourteеnth Thereafter, falsely informed alleged that the defendants plaintiffs also grandparents Attorney District despite investigation of Doe pursued the group daughter to attend allow the abuse, in of sexual violation lack of evidence change custody counseling, in an effort to right to be of Doe’s Fourteenth Amendment mother. to the grandparents from the addition, prosecution. In free from malicious unjustified inves- then commenced the defendants violat- claim that daughter and son tigation of abuse Amendment ed the children’s Fourteenth which was abandoned grandparents, by subjecting them to culdo- privacy addition, intervened. Doe’s counsel scopie proctoscopic and examinations. that the children the mother OCS threatened in another in a home placed be foster would to dismiss The defendants filed a motion the give evidence that city if she did not subject jurisdiction and for lack of matter by Doe. sexually abused were children or cause of action failure to state a claim granted on upon which relief could the hearing in the ehild-in-need-of-care The to ground that the defendants were after four months was held about proceeding immunity. qualified The absolute dis- and/or begun. The eve before investigation had the all granted court motion as to defen- trict the requested the attorney hearing, Doe’s the dants, George. The except and dis- Bennett interview, daughter’s videotape of the George and court found that Bennett trict tape did not exist. Under was that the told immunity, qualified not entitled to be- order, tape the was of court threat complaint alleged plaintiffs’ facts cause the proof that tape no produced. The contained George and indicated that Bennett vio- daughter. George sexually his abused statutory or consti- clearly established lated the information contained produced also person rights of which a reasonable tutional physical report. No evidence of Dr. Janzen’s denying the motion to have known. In hearing; at the presented was abuse Bennett, George the dis- dismiss as to Janzen, opined including Dr. psychologists, “[djefendants’ bad faith trict court found that treating The no abuse had occurred. against Doe proceedings ris- maintenance of no had been physician testified that there tort the level of a constitutional es to addition, Geоrge admitted abuse. alleged by plaintiffs, the because under facts to her to never made a the had statement son liberty their fundamental defendants violated sexually either child had been establish that care, custody, manage- in Doe’s interest Furthermore, George had although abused. Son, liberty as that Daughter and ment of investigation that the represented during the by the fourteenth protected is daughter was culdoscopic examination at 23. Appeal Record amendment.” inconclusive, result judge that the the stated interlocutory bring this Bennett and not inconclu- negative, and exam was the denying qualified them appeal of the order charges judge the The dismissed sive. immunity. hearing. immediately after the against Doe brought this plaintiffs Subsequently, the II §§ pursuant to U.S.C. action alleged that complaint plaintiffs’ plain- The Fourteenth Amendment. and the (1) with Doe’s Bennett interfered attempted that the defendants7 tiffs claimed in the care and fundamental give false evi- manipulate the children to (2) violated Doe’s mother,-cre- Doe, against coerced the dence from right be free evidence, ignored constitutional withheld ated false the children’s violated prosecution, and evidence, misrepresen- and made exculpatory argue Bennett George and right privacy. the judges and mother and two tations to the Nelson, ("OCS”), Maynerva Community George, Services Bennett Besides Kelley, Louisiana, Secretary, Brenda capacity as in her brought the State suit Secretary. Services, capacity as in her Assistant the Office of Department of Social preexisting law the unlawfulness must be plaintiffs have failed to show the apparent. clearly established constitutional violation rights, have not overcome their and therefore 635, 640, 107 Creighton, Anderson v. 483 U.S. immunity. The com defense (1987) (em 3034, 3039, S.Ct. 97 L.Ed.2d 523 may ap “unless it plaint not be dismissed Hodorowski, added); phasis see also beyond plaintiff can pears doubt that requires that F.2d at 1217. Anderson support prove [or her] no set of facts of his existing on the law at the time of the focus entitle him [or her] claim which would violation to determine whether or Chrissy By Medley Mississippi F. relief.” Dept. Welfare, 925 F.2d Public Melear, 8; violated.8 862 F.2d at 1184 n. see (5th Cir.1991) Gibson, (quoting Conley v. (1st Bailey, also Frazier v. 99, 102, 41, 45, Cir.1992) (stating “a not find court (1957)). The same ‍‌​‌​​​​‌​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌​​‌​​​‌​‌‌​​‌‌​​‌​​‌‍is true when through was established urged in a motion to Id. dismiss. hindsight”); use of see also Landstrom v. Ill. Servs., Dept. Family Children & care workers arе entitled to Child Cir.1990) (stating questions qualified immunity performance of dis qualified immunity turn on the status of cretionary, nonprosecutorial functions. Stem sufficiency of norms and not the (5th Ahearn, 1, v. 908 F.2d 5 cert. allegations). factual denied, 1069, 788, 498 U.S. (1991); Ray, v. Hodorowski A (5th 1210, Cir.1988); Austin v. F.2d argue par and Bennett that a Cir.1987). Borel, 1356, process liberty ent’s substantive due “Qualified immunity only that shields conduct right in-the to the care and of his or clearly rights not violative of established of clearly her child was not a established consti person which a reasonable would have right tutional at the time of the viola Austin, 830 at 1355. "The known.” F.2d plaintiffs argue contrary.9 tion. The to the Supreme has stated: Court plaintiffs Both the and defendants cite to right the official is to have [T]he Kramer, 745, Santosky v. 102 S.Ct. U.S. ‘clearly must have been violated estab- Hodorowski, 1388, (1982), 71 L.Ed.2d 599 particularized ... lished’ in а ... sense: and Frazier. right The contours must be of suffi- Although agree plaintiffs ciently clear that a reasonable we with the that official recognize would understand that what he is those three cases a constitutional [or she] doing right. right family integrity that the Four- violates This is not Amendment, say protected by disagree that those that an official action is teenth we very parent’s liberty unless the action cases establish that a question previously family integrity clearly un- is has been held ...; say light right. Supreme lawful but it that is to constitutional While in. In the relevance of such factors as the overall sarily the relevant law n. and circumstances of each See Harlow L.Ed.2d largest define the ing established at the time of the conduct at issue. [a]s examining preexisting 32] excessively whether relevant Supreme exercise in our 102 S.Ct. general proposition, 396]. applicable body Court Fitzgerald inquiries. some discretion in formalistic, Relying solely particular is, then, ^[2727] cases, [457 In law, a court must neces- at weight law under the facts rules were we will not determining law in determin- U.S. on Fifth Circuit example, they determining 800 at looking n. 32 will loom authority, rigidly what [73 at 9. Plaintiffs did not management under Louisiana and fabricated provided nett, Doe's Melear lowed in the instant cess inadequate. Instead, Cir.1989). jurisdiction tively and the status of the courts that render sub- stantively relevant argument, claiming inter v. relevant plaintiffs made a substantive due Spears, alia, See Brief for Plaintiffs of his children. interest in the evidence, withheld decisions. allege courts case, decisions, thereby that exculpatory were concededly law, 1177, that render substan- сare, interfering as well as the constitutionally 1184 n. 8 custody, procedures at and Ben- evidence with pro- fol- generality is the of the relevant parents have an lished law recognized that has Court [M]any general constitutional care and man- rule.... liberty interest in the abstract rights, right has as the to due the Court such of their agement law, yet absolute or are established and so interest to be found that never Page, general that it often will be unclear wheth- Watterson unqualified. (1st Frazier, Cir.1993); right.... at 929-30. particular conduct violates the er law, we con- reviewing relevant case After appellants The district court held that failed to show plaintiffs clude that by qualified immunity protected were not violated a constitutional George and Bennett they violated the estab- sufficiently “partiсularized right ‘familyintegrity.’ think lished We under- official would that a reasonable [so] the district court’s formulation doing violate[d] he or she is that what stand general. beyond dispute that was too It is right.” many aspects family integrity possess But stature. reasonable sought to Santosky, In child care workers officials, only government knowing parents’ permanently terminate infringe family integrity, must not id., at children. See of their necessarily just what con- would not know Supreme 102 S.Ct. at 1393-95. particular, In prohibited. duct was permanently cannot held that a state Court authority, fact-specific absence of more relationship without parent-child sever appellants in this case do not think “fundamentally fair providing parents have known that their conduct should Id., at procedures.” 455 U.S. children from removing the Hodorowski at 1395. right of thе home violated the nebulous Hodorowski, argued that family integrity. protective service workers child omitted). omitted) (footnote (citation In Id. immunity, the qualified to conclusion, care work- we held that the child right family with their to workers interfered clearly established constitu- violated no ers Amendment integrity under the Fourteenth 1217. right. See id. at tional parents’ removing from their by the children Id., 844 prior Frazier, court order. involving home without facts and alle- In a case rejected plaintiffs’ 1212. the F.2d at We in the First gations to those this similar concluding process argument, procedural due emphasized that the contours Circuit also distinguishable due to the Santosky was family integrity that are not well- right the permanently attempt in that case to alleged state’s plaintiff There the defined.10 custody instant parents of while the deprive with his worker interfered child care social care, temporary deprivation. See involved a liberty case interest constitutional so, Hodorowski, doing 1217. In by F.2d at management his children custody, and a mistake to by pro- ‍‌​‌​​​​‌​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌​​‌​​​‌​‌‌​​‌‌​​‌​​‌‍that “it would be exculpatory we stated ignoring evidence alone, that, Santosky ... the falsely from accuse him conclude gramming his children taking the appellants have known during should of an inves- the course of sexual abuse temporary children into alleged Hodorowski the sexual tigation plaintiff the Frazier, right.” Id. at 1217. a constitutional violated two children. See abuse of his conclusion, we noted the reaching In discussed The First Circuit F.2d at 929. family integ- right the nature of worker had length nebulous the child care in whether suffi- right family was not rity, right and held that clearly estаblished violated a offi- so, that a reasonable not- ciently particularized doing First Circuit integrity. the difficulty or her conduct in experienced understand that his cer would have ed that courts right. We further stated: violated that finding family relationships. deciding right in the context of in important An consideration Hodorowski). The (citing id. at estab- See an official violated

whether the time of the of the law at years from the state Although after was decided Frazier violation, alleged law in 1992 conduct. the state of the unconstitutional the explained by did not differ the First Circuit as explained prosecution. to malicious claimed that this was due First Circuit “(1) alleging right difficulty Bennett continued the inves- the the particularity, tigation proceeding sufficient and child-in-need-of-eare rights in this area.” Id. The nature of thе Attorney initiated the District after it was enough that is not then stated First Circuit support clear that there was no evidence to plaintiff “allege an abstract due for a allegation sexually the that Doe abused his family liberty relation- process interest plaintiffs’ children. The contention essential- Pointing ships.” out that courts have Id. ly asserts the common law tort of malicious emphasized the nebulous nature of a prosecution. confronting The issue us is relationships, in familial the First circumstances, whether, ma- and under what that because an interest Circuit stated prosecution might licious to the level of a rise family integrity always “must be balanced pro- constitutional violation for which governmental [in remedy. vides a education, health, and welfare of children as Although prosecution citizens], difficult, impossi- future it is if not ble, proceeding occurred in a civil and a officials to have know ‘clearly proceeding, violated established’ law.” Id. at civil ehild-in-need-of-care 930-31. The First Circuit concluded that plaintiffs argue underlying proceed family in- [the] [to “the dimensions of ings quasi-criminal should be considered be yet tegrity] have to be established.” criminally prose cause Doe could have been Thus, at the First Circuit held that Id. Fifth cuted and was advised of his Amend plaintiff failed to show that the child care rights adju ment at care the child-in-need-of amorphous worker’s conduct violated the dication. The circuits are divided on wheth family integrity, and that therefore er malicious alone constitutes quali- the child care worker was entitled to underlying constitutional violation where the immunity as a matter of law. fied See id. proceeding criminal. In Wheeler Cos Co., den F.2d 254 fact-specific Oil & Chemical Given the absence of more Hodorowski, Cir.), law,11 grounds, light reh’g on other Santo- modified sky procedural due cases— 744 F.2d we con —both Frazier, we cannot conclude that cluded that the Fourteenth Amendment re preexisting law establishes that quires States to make a determination of Bennett should have known that their con- probable prosecuting, cause before right family duct violated the nebulous of allegation therefore that an of held malicious Therefore, law, integrity.12 of as matter § prosecution alone is actionable under George and Bennett did not violate a consti- 260, English, See id. at see also Sanders v. clearly tutional that was established at (5th 1152, Cir.1992); 950 F.2d 1163 Hand v. the time of the conduct.13 Cir.1988). (5th 1420, Gary, 838 F.2d 1424-26 However, that tort most courts have held

B prosecution impli of not malicious does alone constitutionally protected rights, cate allege and Bennett next that § violate therefore is not did not actionable under 1983 underlying proceeding Fourteenth Amendment to be from where the was crimi- free recognize, paugh County Dept. "[i]t 11. We that is not neces- v. Public Wa Welfare of 1172, sary point factually (7th Cir.), precedent to a which is County, bash 937 F.2d 1175 cert. denied, - U.S. -, 638, all-fours with the case at bar. It suffices that the 112 S.Ct. 116 L.Ed.2d general, well-developed [defendant] be aware of (1991). 656 legal Jefferson, principles.” 817 F.2d at 305 (footnote omitted). case, however, In this we allege wrong 13.Although plaintiffs malice and any well-developed legаl princi- cannot discern doing, allegation fails to transform the liber ples of which and Bennett should have ty family integrity interest in into a estab been aware. right. Siegert Gilley, lished constitutional See v. 1789, - U.S. -, -, 1793- 111 S.Ct Although may wrongdo there have been some 94, (1991). 277 ing, 114 L.Ed.2d "immunity applies only when the defen wrong dant did no is no at all.” Mills

1419 Oliver, § prosecution is actionable under 1983 See, 975 F.2d cious e.g., Albright v. nal. — underlying proceeding (6th where the was civil. granted, cert. 343, 345-46 -, 757 122 L.Ed.2d It unclear when the tort of malicious pros malicious (stating that a claim of a claim for denial of civil prosecution states criminal, alone, does civil or whether ecution § rights under where the malicious 1983 liberty or deprivation of not constitute proceeding. in a civil prosecution occurred pro meaning of the due property within assuming plaintiffs’ allegations Even actionable is therefore not clause and cess law tort of malicious support the common 1983); Dept. § v. Mass. Cor Smith under Phospate prosecution, we stated in Beker (1st Cir.1991) rections, (5th Muirhead, F.2d 1402 936 F.2d Corp. v. Cir. prosecution (stating 1978), that a claim of tort of misuse common law “[t]he un more, claim not state an actionable not legal procedure, alone does without does Schlueter, 1983); wrong § v. give Gunderson rise to the level of constitutional der (8th Cir.1990) (“[M]alicious Id., 1983.”15 remedied Section F.2d 1189; Epping, 714 for a section at Cloutier v. Town can form the basis prosecution Cir.1983). (1st However, we F.2d conduct only if the defendants’ 1983 action prosecu that a claim of malicious concluded infringes provision of Constitu some violation in tion state law.”); Coogan City v. or federal tion givеs Cir.1987) “litigiousness ‍‌​‌​​​​‌​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌​​‌​​​‌​‌‌​​‌‌​​‌​​‌‍which some instances: Wixom, 170, 175 F.2d action for misuse rise to a common law tort prosecution only when malicious (stating that procedure may egregious so as to legal be deprivation egregious as to constitute is so well, § 1983 as if the constitute a violation of pro § does dimension of constitutional law, tort-feasor, subjects under color of state remedy). vide a deprivation to a of constitu the tort-victim underly- argue that because the Plaintiffs Beker, 1189; 581 F.2d at tional dimension.” quasi-criminal were ing proceedings Sisk, (holding at 162 see also allegation of malicious find that their should proceedings was initiation of civil defendants’ sufficiently states a consti- prosecution alone “egregious” misuse of violation that is actionable tutional defendants therefore argument. reject § 1983. We Philo, Whatley qualified immunity); entirely speculative whether Doe would Cir.1987) It is plain (holding that criminally prosecuted for child have been to show that defendants’ tiff failed authority for and decline find no abuse. We es legal process violated a abuse of possibility of criminal right, that the mere “[a]t to hold tablished constitutional that, pro- most, civil supports proposition converts otherwise Beker equivalent pro- of a criminal the misuse ceeding into the actionable under ”); Easton determining ‘egregious’ whether ceeding purposes legal process must be (2d Sundram, Cir. There- right was violated.14 a constitutional 1991) (holding misuse of the fore, “[t]he its apply Wheeler and we refuse to a egregious as to work process must be so we must now progeny case. Thus to this dimension”), deprivation of a constitutional claim of mali- and when a determine whether 1084, (5th System, n. 5 casting argument plaintiffs' this case in States, Cir.1979) proceedings Kastigar 406 U.S. quasi-criminal because v. United volved 1653, 1656, rights 444, is to his Fifth Amendment was informed of 32 L.Ed.2d 92 S.Ct. avail, may properly denied, invoke the for a witness (1972)), no 449 U.S. cert. against compulsory "privilege Fifth Amendment (1981). proceeding, any civil or ... 'in self-incrimination criminal, judicial, investigatory administrative or legal proce- of described "misuse 15. We have ‘reasonably adjudicatory' [or she] when he "encompassing separate relat- three dure” as self-incrimination, ... apprehends a risk protect the interest ed common law torts pending against charges though are no criminal (1) unjustified litigation: mali- freedom from in her], prosecu even if the risk of ... and [or him (2) " wrongful prоceed- civil prosecution; cious Corrugated Container In Re tion is remote.' Levings, process." ings; Sisk abuse of (5th Litigation, Anti-Trust (5th Cir.1989). 868 F.2d 1980) Wehling (quoting v. Columbia Broad- Cir. — denied, U.S. -, ... of a constitutional tort because de- cert. (1992); plaintiffs’] McMaster v. Cabi [the 118 L.Ed.2d 548 fendants violated fundamental Resources, care, Human custody, net in liberty interest Doe’s Cir.1987) al (holding that the defendants’ management Daughter and Son.” Record a prosecution did not violate leged malicious We, however, Appeal at 23. refuse it did “shock synergistic approach, take a and thus decline conscience”). plaintiffs’ to find that the claims of malicious family integ- and interference Although eases indicate the above-cited rity, both of which were not estab- may prosecution claim that a civil malicious rights at the lished constitutional time egre- give a claim where rise to constitutional conduct, together taken unlawful gious present, none of those cases conduct state a violation of a established con- egre- even hint as to what constitutes such only right. gious have found stitutional conduct. We plain- found that the cases where the court legal procedure in a

tiffs’ claim of misuse C proceeding civil stated a constitutional viola- conduct was tion because defendants’ so Lastly, George and Bennett contend County egregious. Campbell In Vinson v. violated no established con Court, Fiscal 820 F.2d 194 right by having the stitutional son mother’s children had been removed from daughter physically signs examined for Kentucky juvenile in her Ohio plaintiffs sexual abuse. The claimed that the probation services officer after it was deter- daughter subjected procto son and mined that the mother’s children were truant scopic culdoscopic examinations viola Kentucky. from their schools in Id. at 196— privacy tion of their under the Four brought rights 97. The mother a civil ac- law, teenth Amendment. Louisiana Under officer, probation alleging tions child care workers who have reason to be process. abuse of See id. at 200. The court sexually has abused lieve that child been egregious governmental found an abuse of physical a court order for a ex obtain power sufficient to state a claim under amination of the child. See La.Rev.Stat.Ann. Johnson, § 1983. id. at 201. In Cale v. See (West § Supp.1993). 14:403 Note We con (6th Cir.1988), defendant, 861 F.2d 943 law, light preexisting clude that official, prison planted drugs plaintiff, on the and Bennett would not have known that their inmate, retaliatory purposes. prison public responsibility fulfill their efforts to plaintiff subject pos- Because the to the determining whether sexual abuse occurred sibility disciplinary resulting and a actions right. Darryl violated a constitutional See liberty, loss of the Sixth Circuit held that the (7th Cir.1986) Coler, H. defendant’s conduct constituted (state qualified im social workers entitled to egregious governmental power, abuse of power munity by parents alleging that therefore the abuse of in action uncon adequately claim stated a constitutional claim stitutionality inspection of unclothed of visual Despite that was actionable under by social workers in in children conducted cases, holdings hardly it can those two claim); vestigating child abusе see also light be said that in of the law in 1990 that Landstrom, (holding 892 F.2d at 676-77 George’s the unlawfulness of and Bennett’s ‍‌​‌​​​​‌​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌​​‌​​​‌​‌‌​​‌‌​​‌​​‌‍qualified immunity defendants entitled be apparent. Consequently, conduct was “there clearly no established vi cause clearly was no established constitutional physically olation defendants exam where counterpart prose- to an action for malicious child, ined unclothed court found absence of Fenton, 373, Santiago cution.” v. establishing case law relevant estab (1st Cir.1989). 388 lished norm which defendants proposed Nonetheless, could have evaluated their own the court district found that conduct.) George course of We find no violation of and faith Bennett’s “bad maintenance proceedings against right. Doe rises to the level established constitutional complains That the of which actions III however, not mean egregious, are does reasons, hold that foregoing the For federally violation of a he has asserted the qualified are entitled to George Bennett by 42 right, required as protected U.S.C. The liability in this immunity from case. all, gravamen § the of his com- 1988. After judgment is REVERSED. court’s district prosecution, a state law plaint is malicious Thus, majority recognizes, tort claim. as the whether, confronting is concurring in the issue us KING, Judge, “[t]he Circuit circumstances, prose- under what malicious judgment: might rise to the level of a cution constitu- holding that majority’s agree I with the provides § for which tional violation caseworkers, George, are Bennett Majority remedy.” Opinion at 1418. matter of as a qualified however, I not majority, do law. Unlike II. question whether Doe has reaсh the majority suggests that civil malicious The “clearly consti of a established” the violation prosecution, such as that in this by Fitz required Harlow v. right, as tutional may give rise to a constitutional claim where 2727, 800, 818, 102 gerald, 457 U.S. S.Ct. However, present. is it egregious conduct (1982). because, This is 73 L.Ed.2d 396 Rather, actually question. never decides view, allegations fail “at an my Doe’s in majority “egregious” assumes that an inquiry stage of the into analytically earlier prosecution violate the — civil could malicious Gilley, immunity.” Siegert v. qualified constitution, only to then hold 1789, 1791, -, -, U.S. in at issue (1991). I would Specifically, allegedly conduct- and Bennett are entitled hold that Bennett investigation. faith ed their bad not as immunity because Doe has of a constitutional serted the violation approach I all malicious at -, at 1793. id. S.Ct. at all. See wаy. § 1983 a different claims under has, admittedly, flip-flopped on

Fifth Circuit prosecu malicious question of whether I. cognizable independently tion Camble, § v. allegations in 1983. See Brummett Initially, I note (5th Cir.1991), cert. de true, “night- if 1180 n. complaint, Doe’s are amended — nied, -, S.Ct. protective work- Two child services marish.” view, (1992). my the better ers, sexually L.Ed.2d 241 prove that Doe in a rush to not in a claim is a four- answer is that such young launched abused his Judge § As cognizable under investigation may best be de- itself month Kesery, 976 Mahoney v. explained Among hunt.” other Posner as a “witch scribed (7th Cir.1992), defama “[i]f suppressed the re- F.2d things, the two workers: tort, a constitutional [as tion is not actionable reports indicating that no sexual sults of Davis, [96 424 U.S. occurred; misrepresented to au- see Paul abuse had (1976)], it is difficult to 405] 47 L.Ed.2d in those findings the nature of the thorities prosecution is.” See obtained, through de- believe that malicious reports; in secret and Oliver, Albright 345-346 awarding custody of also ception, a court order — U.S. -, (7th Cir.1992), mother; granted, cert. gave false Doe’s son to his (1993). 1382, 122 L.Ed.2d 757 This Attorney’s office 113 S.Ct. to the District information mean, actions does not to have the children removed an effort prose amounting to defamation temporary custody paternal of their from the basis for a can form the deception cution never a result of the grandparents. As example, tort can be workers, “either claim. For Doe was practiced these two showing deprivation liber link in a his chil- chain effectively all contact with denied process of due law.” months, ty property or without he was some four dren for (citing Ray at sor Mahoney, 976 F.2d ultimately exonerated. (i.e., (2d by terminating stroy family bonds 39-40 Authority, 768 Port provide the denied, parent-child relationship), it must 106 S.Ct. rt. ce (1986)).1 procedures. fundamentally fair parents with L.Ed.2d 337 (and Santosky of Doe’s reliance on Because sought Thus, that Doe has to the extent a “funda- allegations that he was denied his prose- a malicious solely on the basis of relief I construe mentally procedure”), fair would cution, allegations do I hold that the attempting pro- to assert a complaint as his not, Siegert, assert the viola- in the words of process due claim.2 cedural right at all. To the tion of a liberty asserting deprivation of he is a true, extent clearly satisfy allegations, if Doe’s law, process of how- property without due pro procedural of a due first two elements ever, allеgations must be scrutinized is, sufficiently al claim. That he has cess closely. more deprived liberty of a inter leged that he was that, complaint amended recounts

est. His III. investigation, he basi during the four-month And, cally lost of his children.3 complaint, has I Doe’s amended he As read Santosky the made clear that natural Court sought link and Bennett’s to liberty parents a “fundamental interest have showing the prosecution to a chain malicious care, management custody, in the liberty deprivation a interest without due may be de their child”—an interest that process specifically Doe asserts of law. only “fundamentally proce fair stroyed violated his the defendants 753-54, 102 at dures.” See 455 U.S. at care, liberty in the fundamental interest only tempo though 1394-95. Even Doe was custody, management of the minor intеrest, liberty rarily deprived of it this protected is a Fourteenth children which Santosky entirely consistent with to seems right pursuant Santosky v. Amendment require deprivation occur in the this Kramer, 1388, 71 [455 U.S. fundamentally procedures. fair context (1982)], action of because the (6th Hooks, 935, 941 Hooks v. See below, defendants, sought as outlined 1985) require (reading Santosky to Cir. a destroy the familial bonds without parent’s liberty any deprivation of a interest fundamentally procedure and without fair custody of his or her children be in the basis in fact. sufficient meeting by procedures the re “accomplished added). Doe (emphasis The case on which quirements process”). of due a namely, Santosky v. Kramer — is relies— There, procedural due problem with Doe’s procedural process due case. ability ultimately lies with his process a to de- claim held that when state moves Court allegations a substantive protections ‍‌​‌​​​​‌​​‌​​‌‌​‌‌‌​‌‌​​​‌​‌​​‌​​​‌​‌‌​​‌‌​​‌​​‌‍were sufficient to raise 1. Fourth Amendment also claim, implicated involving prosecu- every process then claim of malicious in cases due See, converted, facto, e.g., English, ipso prosecution tion. Sanders into would be Cir.1992). claim. a federal complaint majority 2. The construes Doe’s initially 3.According complaint, to his he com claim; yet only process it due raise substantive request plied with one of the caseworkers' procedural process primarily due cases relies with his children. There is he have no contact determining are enti- and Bennett question action would as to whether this some has, admittedly, immunity. tled to “deprivation” purposes due constitute question on the of whether been less than clear analysis. Department process See Weller v. claim, process asserting procedural he is due Baltimore, Social Servs. claim, My process re- substantive due or both. 1990) ("If voluntarily one surrenders Cir. complaint, con- view of his amended State, liberty no to the there has been sought procedur- to raise a vinces me that he has State, 'deprivation' of that interest and no Moreover, process because I do al due claim. violation.”) However, process there can be due independent an federal not think that there is judge question the state district no that when prosecution,” I would nec- claim for "malicious temporary placed Doe's children reject any attemрt phrase essarily such a claim all, grandparents, paternal he was "de of their After as a substantive due violation. meaning prived” within the of a a malicious claim essence of Amendment. egregious legal process; of the Fourteenth if such abuse custody liberty in of his children alleged— facts as to demonstrate —on fundamentally procedures. fair without custody of his chil deprived was of that he Cf. Court, Campbell County v. Fiscal Vinson process law. Several due without dren Cir.1987) (concluding process does held that due courts have summary judgment procedural pro due hearing in cases where prior mandate proper imprisonment claim was cess/false protect a needed to emergency action “only plaintiff alleged that she was See, Department e.g., Weller child. deprived liberty because estab Baltimore, 901 F.2d Servs. Social followed, procedures were not lished state Cir.1990). course, when the state Of proce state not that [and] parent of temporarily deprives a deprivation”); Fitzgerald v. dure effected a child, prompt post-depriva provide a it must (8th Cir.1986) Williamson, ratify emergency action. hearing tion (holding concern procedures that state law basically oc This is what id at 396. See adequate ing parents’ rights custodial accept if we in case—at least curred Doe’s process purposes). for due tempo Although he allegations as true. his Thus, that, the state rarily Siegert, of his lost I would hold him ultimately exonerated has not asserted a violation of his procedures Doe court process law. and Bennett result, due and, interest was as a are, qualified immu- consequently, restored. claim, nity procedural on Doe’s due compen- seeking extent that Doe is To the only procedures provide because state Bennett for their from sation adequate post-deprivation reme- with an him bringing about this tem- malicious actions dy. might be if Louisiana This case different I hold that Louisi- porary deprivation, would protective workers absolute gave its child provide procedures if, post-deprivation immunity pursuing ana’s or after his state court procedures remedy, Doe had process he is due.4 See Doe with all the way employed the state were some (noting possibility at Mahoney, 976 F.2d constitutionally But has not defective. he in Parratt v. Supreme Court’s deсision Accordingly, I must allegations. made such Taylor, 451 not asserted the viola- that he has conclude (1981), “wiped out” all due has federally protected right. any tion claims). Loui- process/malieious prosecution clearly recognizes an action for civil siana Soileau, prosecution. See Jones (La.1984) (the 1268, first ele-

448 So.2d claim is “the a malicious

ment of original an or

commencement continuance (em- judicial proceeding”)

criminal or civil added). Moreover, Louisiana law

phasis George and Bennett

gives like caseworkers carrying out

only good faith investigative responsibilities.5 Given

their procedures tort recov- allow

that Louisiana’s faith child abuse

ery the sort of bad here, simply Doe can-

investigations at issue deprived of his

not demonstrate he investigative judgment Indeed, investigation, ma[de] an could difficult see how the state it is disposition, information use[d] or prevent release[d] or or the kind of abuse have intervened to (2) registry,” or she in the central complains. contained about which report to be false or known ”ma[de] report.” disregard truth of the for the reckless Specifically, the events in this at the time (West Supp.1993) civilly 14:403 crimi- See La.Rev held a caseworker could be Stat.Ann. notes). (historical nally "conducted] she liable if in bad faith

Case Details

Case Name: John Doe, Individually and on Behalf of His Minor Two Children v. State of Louisiana, Paula Bennett and Sheryl George

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 12, 1993

Citation: 2 F.3d 1412

Docket Number: 92-3144

Court Abbreviation: 5th Cir.