127 F.3d 919 (10th Cir. 1997), 95-4197, J.B. v. Washington County

Docket Nº:95-4197.
Citation:127 F.3d 919
Party Name:J.B., individually, and for her minor child, L.B., Plaintiffs-Appellants, v. WASHINGTON COUNTY, Defendant-Appellee.
Case Date:October 07, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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127 F.3d 919 (10th Cir. 1997)

J.B., individually, and for her minor child, L.B.,



WASHINGTON COUNTY, Defendant-Appellee.

No. 95-4197.

United States Court of Appeals, Tenth Circuit

October 7, 1997

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Richard A. Van Wagoner (with Allan L. Larson on the briefs), Snow, Christensen & Martineau, Salt Lake City, UT, for Defendant-Appellee.

Before KELLY, McWILLIAMS, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

In this 42 U.S.C. § 1983 action, plaintiff J.B., individually and for her minor child L.B., alleges that defendant, Washington County, violated J.B.'s and L.B.'s constitutional rights when County employees, acting under the authority of an ex parte order, seized L.B. for approximately eighteen hours. The purpose of this seizure was to obtain an interview with the child outside her parents' presence to investigate a report that the child's father had sexually abused her. Both parties submitted motions for summary judgment. The district court granted summary judgment to defendant Washington County, from which J.B. and L.B. now appeal. We have jurisdiction under 28 U.S.C. § 1291 and affirm.


Washington County Deputy Pamela Humphreys was presented with a dilemma when she received an eyewitness report that a seven year-old child, L.B., had been sexually abused by her father. Recognizing the need in such cases for an interview with the child outside the presence of her parents, the County had adopted a policy to interview children alleged to be victims of child abuse at school. 1 In this case, however, the school interview procedure was not available because L.B. was home-schooled. In accordance with the policies of the Sheriff's Office, Deputy Humphreys discussed the matter with County Sheriff Glenwood Humphries. See Aplts' App. vol II, doc. 4 at 4-6 (Depo. of Sheriff Glenwood Humphries).

Deputy Humphreys consulted a member of the Utah Division of Family Services, 2 Janalee Gregory, as required under Utah law. See Utah Code Ann. §§ 62A-4a-105(1), (6); -106(1)(h) (the Division [of Child and Family Services's] responsibilities include administering protective services to children); -101(16)(d)(i) (1996) (protective services defined as services provided "to bring the situation to the attention of the appropriate juvenile court and law enforcement agency" in cases of in-home perpetrators). Deputy Humphreys and Ms. Gregory could not think of a workable approach for conducting a private interview with L.B. See Aplts' App. vol. II, doc. 3 at 17-18 (Depo. of Deputy Sheriff Pamela Humphreys). Deputy Humphreys then sought advice from Deputy County Attorney W. Brent Langston, who is authorized by statute to prosecute any person charged with abuse or neglect before the juvenile court. See Utah Code Ann. § 17-18-1(7)(c) (1995). Deputy County Attorney Langston concurred that an interview was necessary and suggested they consult Juvenile Court Judge Joseph Jackson. See Aplt's App. vol. II, doc. 5 at 4, 11.

Judge Jackson recommended filing a petition with the juvenile court requesting an order to remove L.B. from her home temporarily to conduct an interview. See id. doc. 3 at 31-33, and ex. 2 (Deputy Sheriff Humphreys's Supl. Report). Deputy County Attorney Langston then prepared and filed a petition alleging "on information and belief" that L.B. was an "abused child." See J.B. & L.B. v. Washington County, 905 F.Supp. 979, 983 (D.Utah 1995). Following the ex parte hearing at which Deputy Humphreys testified, Judge Jackson issued an order to take L.B. to shelter care where she would stay pending a hearing. See Aplts' App. vol. II, doc. 3 at 30-31.

Deputy Humphreys delivered the order to two uniformed police officers. The officers

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went to J.B.'s home in the early evening and took L.B. to a prearranged shelter home. See id., doc. 7 at 7-8 (Depo. of Officer Kurt Wright). The next morning, Deputy Humphreys and Ms. Gregory interviewed L.B. The interview revealed no evidence of sexual abuse and L.B. was released to her parents, seventeen and one-half hours after she was taken from her home. See id. doc. 3, ex. 2; doc. 5 at 27-28. Thereafter, the juvenile court case was dismissed on motion by the County Attorney's office stating there was insufficient evidence to believe that L.B. was an abused child.


Plaintiffs pursue four claims on appeal. First, they contend that the County's employees violated their rights to procedural due process when they removed L.B. from J.B.'s home. Second, they claim the removal of L.B. was a reckless and deliberate interference with familial associational rights. Third, they contend that the removal of L.B. violated their Fourth Amendment rights to be secure against unreasonable seizures. Finally, plaintiffs allege that the policy adopted by the County violated their Fourteenth Amendment right to equal protection. 3

We review the grant of summary judgment de novo, applying the same standard as the district court. Hollingsworth v. Hill, 110 F.3d 733, 737 (10th Cir.1997). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "We view the evidence and draw any inferences therefrom in the light most favorable to the party opposing summary judgment." Coosewoon v. Meridian Oil Co., 25 F.3d 920, 929 (10th Cir.1994). " 'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,' summary judgment in favor of the moving party is proper." Thomas v. International Bus. Machs., 48 F.3d 478, 484 (10th Cir.1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

I. County Policy or Procedure

The parties do not challenge the district court's holding that the actions of the officials involved are imputed to the defendant County as policy, procedure, or custom of the County because the actions were authorized or ratified by the authorized decision makers. See J.B., 905 F.Supp. at 985. The Supreme Court has recently calibrated the test for determining what comprises a county policy, in a failure to train setting, and we must evaluate its applicability here. 4 See Bryan County v. Brown, --- U.S. ----, ----, 117 S.Ct. 1382, 1391, 137 L.Ed.2d 626 (1997) (stating that "we did not foreclose the possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability") (citing City of Canton v. Harris, 489 U.S. 378, 390 & n. 10, 109 S.Ct. 1197, 1205-06 & n. 10, 103 L.Ed.2d 412 (1989)).

A plaintiff seeking to impose liability on a county under § 1983 must identify a policy or custom that caused the plaintiff's injury. Bryan County, --- U.S. at ----, 117 S.Ct. at 1388. This "ensures that a [county] is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may be fairly said to be those of the [county]." Id. at ---- - ----, 117 S.Ct. at 1387-88 ("municipalities and other local governmental bodies are 'persons' within the meaning of § 1983") (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 689, 694, 98 S.Ct. 2018, 2035, 2037-38, 56 L.Ed.2d 611 (1978)).

In addition to the identification of a county policy or custom, a "plaintiff must also demonstrate

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that, through its deliberate conduct, the [county] was the 'moving force' behind the injury alleged. That is, a plaintiff must show that the [county] action was taken with the requisite degree of culpability and must demonstrate a causal link between the [county] action and the deprivation of federal rights." Id.

In Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court indicated that an authorized decision maker's course of action "tailored to a particular situation and not intended to control decision in later situations" may, under certain circumstances, give rise to liability under § 1983. Id. at 481, 106 S.Ct. at 1299. "Where a 'plaintiff seeks to impose municipal liability on the basis of a single incident, the plaintiff must show that the particular illegal course of action was taken pursuant to a decision made by a person with authority to make policy decisions on behalf of the entity being sued.' " Hollingsworth, 110 F.3d at 743 (quoting Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir.1996) (citing Pembaur, 475 U.S. at 483-85, 106 S.Ct. at 1299-1301)). Here, unlike the failure to train allegations in Bryan County, the decision to adopt the particular course of action to remove L.B. from her home to interview her outside the home was "made by [the county's] lawmakers or by those whose edicts or acts may be fairly said to represent official policy." Cannon v. City & County of Denver, 998 F.2d 867, 877 (10th Cir.1993); see 905 F.Supp. at 985 n. 7 (testimony of Washington County Sheriff Humphries stating that he approved Deputy Humphreys's actions "as being in accordance with [County Sheriff's Office's] policies and procedures"). 5 Thus, the decision was a "course of action consciously chosen from among various alternatives," which generally implies a policy. Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985).

Washington County's actions were tailored to accommodate its interest in investigating the sexual abuse allegations that involved a home-school child. This decision, properly made by the County's authorized...

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