Whisman Through Whisman v. Rinehart

Decision Date23 July 1997
Docket NumberNo. 95-4056,95-4056
Citation119 F.3d 1303
PartiesJoel WHISMAN, a minor, through his next friend Michelle Whisman; Michelle WHISMAN; Michael Whisman; Lynn Whisman, Plaintiffs-Appellees, v. Chuck RINEHART, in his individual capacity as Chief Deputy Juvenile Officer of the Thirty-ninth Judicial Circuit of the State of Missouri; Marla Pursley, in her individual capacity as social worker for the Lawrence County Office of the Missouri Division of Family Services; Ruth Cox, in her individual capacity and officially as social worker supervisor of the Lawrence County Office of the Missouri Division of Family services; Alfred Blair, in his individual capacity and officially as County Director of the Lawrence County Office of the Missouri Division of Family Services; Bill Jines, in his individual capacity and officially as Chief Juvenile Officer of the Thirty-ninth Judicial Circuit of the State of Missouri, Defendants-Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Mary S. Hack, Jefferson City, MO, argued (Keith J. Grady, on the brief), for defendants-appellant.

Robert M. Sweere, Springfield, MO, argued, for plaintiffs-appellees.

Before ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge, and KORNMANN, * District Judge.

KORNMANN, District Judge.

Rinehart, Pursley, Cox, Blair, and Jines appeal the district court's 1 denial of their motion to dismiss this 42 U.S.C. § 1983 action. Whismans filed this action against defendants, juvenile officers and social workers, claiming that defendants violated plaintiffs' constitutional rights of familial association, denying plaintiffs due process of law. Defendants filed a motion to dismiss, contending that plaintiffs' claims were in essence based upon claims of violation of state laws and, therefore, are not actionable under 42 U.S.C. § 1983, and that defendants Rinehart and Jines are entitled to absolute immunity. Defendants further contend that the claims against Jines, Cox and Blair are based upon respondeat superior, an insufficient basis for liability for suit under 42 U.S.C. § 1983, that the grandparents, Michael and Lynn Whisman, are not real parties in interest and should be dismissed, that plaintiffs have failed to show deprivation of a constitutional right in violation of due process, and that defendants are entitled to absolute and qualified immunity. The District Court denied the motion to dismiss. We affirm.

I. BACKGROUND

We set forth the facts, construing the complaint liberally. Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995). Joel Whisman ("Joel") is the sixteen month old son of Michelle Whisman ("Michelle"). Michelle left Joel with a babysitter on the evening of February 16, 1995, near her home in Aurora, Missouri. On the morning of February 17, 1995, the babysitter contacted the Lawrence County, Missouri, Division of Family Services and spoke with Marla Pursley ("Pursley"), a social worker. The babysitter reported to Pursley that Michelle had not picked up Joel as agreed and that Michelle's boyfriend had told the babysitter that Michelle was at home "passed out drunk." Chuck Rinehart ("Rinehart"), Chief Deputy Juvenile Officer, contacted the police. An officer went to Michelle's home at approximately 10:00 a.m. but failed to make contact with Michelle. Michelle contends she did not fail, at the agreed time, to pick up Joel and was not "passed out drunk".

Pursley went to the babysitter's home, examined Joel, and found him to be in good health. At that time, the babysitter told Pursley she had contacted Lynn Whisman ("Lynn"), Michelle's mother and Joel's grandmother, and that Lynn had agreed to pick up Joel from the babysitter around noon. Pursley, after consulting with Rinehart, directed the babysitter to immediately deliver Joel into Rinehart's custody. The babysitter did so at approximately 11:45 a.m., driving Joel to Monett, Missouri, fourteen miles away.

Rinehart examined Joel and drove him to Mt. Vernon, Missouri, leaving him at the Tri-County Shelter Home. Rinehart then returned to his office in Moneta.

Before Rinehart returned, Lynn arrived at Rinehart's office in Moneta and met with Bill Jines ("Jines"), the Chief Juvenile Officer and Rinehart's supervisor. Lynn requested that Joel be delivered to her. After Rinehart returned, Lynn requested both Rinehart and Jines to deliver Joel to her. They refused to do so or to advise Lynn of Joel's whereabouts. Rinehart advised Lynn to obtain a lawyer and file an application for custody.

Rinehart and Pursley were notified on the afternoon of February 17, 1995, that Michelle was willing to sign over custody of Joel to Lynn. Michelle and Lynn made repeated requests for Joel's return and the termination of his detention between February 17 and March 1, 1995. On March 1, 1995, Michelle received in the mail copies of a petition and Order of Temporary Legal Custody, with a letter notifying her a hearing was planned for March 15, 1995. The letter was dated February 27, 1995, postmarked on February 28, 1995.

The order granting temporary custody to the Division of Family Services was ostensibly signed on February 17, 1995. Plaintiffs contend the order was backdated and that this was a common practice used by defendants. The petition and order were not filed until March 1, 1995, the day Michelle received a copy of the petition and order in the mail. On March 2, 1995, Whismans filed a request for an immediate hearing. Over the objection of defendants, the hearing was held on March 6, 1995. Joel's physical custody was restored to his family on March 6, 1995, seventeen days after he was taken into custody by defendants.

II. DISCUSSION

Defendants appeal the denial of the motion to dismiss, claiming absolute and qualified immunity. Only these issues in the present case are appealable as a matter of right prior to a final judgment. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996). We review de novo a district court's denial of a motion to dismiss on the ground of immunity. Hafley v. Lohman, 90 F.3d at 264; Brown v. Griesenauer, 970 F.2d 431, 434 (8th Cir.1992).

When considering a motion to dismiss, we must construe the complaint liberally and assume all factual allegations to be true. Goss v. City of Little Rock, 90 F.3d 306, 308 (8th Cir.1996). We may order dismissal only if it appears beyond a reasonable doubt that the plaintiffs can prove no set of facts which would entitle them to relief. Goss, 90 F.3d at 308; Frey v. City of Herculaneum, 44 F.3d at 671. "A motion to dismiss should be granted 'as a practical matter ... only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.' " Frey v. City of Herculaneum, 44 F.3d at 671 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)).

A. Absolute Immunity

Defendants allege they are entitled to absolute quasi-judicial or quasi-prosecutorial immunity. The United States Supreme Court has emphasized that "the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991). "The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties" and, therefore, the Supreme Court has been "quite sparing" in its recognition of absolute immunity. Burns v. Reed, 500 U.S. at 486-87, 111 S.Ct. at 1939.

The United States Supreme Court, in Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976), established the absolute immunity of a prosecutor from a civil suit for damages under 42 U.S.C. § 1983 "in initiating a prosecution and in presenting the State's case." To the extent that defendants are sued for initiating state judicial proceedings seeking temporary protective custody of Joel, their "role was functionally comparable to that of prosecutor." Thomason v. SCAN Volunteer Services, Inc., 85 F.3d 1365, 1373 (8th Cir.1996). The gravamen, however, of Whismans' complaint is not based upon the institution of state court proceedings, but upon defendants' failure to investigate, their detaining Joel, and the claimed inordinate delay in filing state court proceedings. Under a liberal reading of the Whismans' complaint, defendants' actions did not aid in the presentation of a case to the juvenile court; they were intentionally designed to avoid or unreasonably delay judicial process. These actions are not prosecutorial in nature and do not form the basis for absolute quasi-prosecutorial immunity.

"Judges performing judicial functions enjoy absolute immunity from § 1983 liability." Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir.1994). Judicial immunity is extended to officials other than judges when "their duties are functionally comparable to those of judges--that is, because they, too, exercise a discretionary judgment as part of their function." Robinson v. Freeze, 15 F.3d at 108 (quoting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436, 113 S.Ct. 2167, 2171, 124 L.Ed.2d 391 (1993)). Defendants' claimed actions in the present case do not fall within this category.

B. Qualified Immunity

Government officials performing discretionary functions are entitled to qualified immunity unless they violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, (1982). We have held that "qualified immunity is an affirmative defense," "which will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint." Hafley v. Lohman, 90 F.3d at 266 (quoting Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir.1995)).

The qualified immunity analysis is a two-step process. Weaver v. Clarke, 45 F.3d at 1255. The threshold...

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