299 F.3d 395 (5th Cir. 2002), 01-50711, Roe v. Texas Dept. of Protective and Regulatory Services

Docket Nº:01-50711.
Citation:299 F.3d 395
Party Name:Mary ROE, Individually and as Next Friend of Jackie Doe, a Minor Child; John Doe, as Next Friend of Jackie Doe, a Minor Child, Plaintiffs-Appellees, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, et al., Defendants, Beverly Strickland, Individually and in Her Official Capacity, Defendant-Appellant.
Case Date:July 17, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 395

299 F.3d 395 (5th Cir. 2002)

Mary ROE, Individually and as Next Friend of Jackie Doe, a Minor Child; John Doe, as Next Friend of Jackie Doe, a Minor Child, Plaintiffs-Appellees,



Beverly Strickland, Individually and in Her Official Capacity, Defendant-Appellant.

No. 01-50711.

United States Court of Appeals, Fifth Circuit

July 17, 2002

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Robert Smead Hogan (argued), Gorsuch & Byrd, Lubbock, TX, for Plaintiffs-Appellees.

James C. Todd, Asst. Atty. Gen., Nancy Kathleen Juren, Asst. Atty. Gen. (argued), Austin, TX for Defendant-Appellant.

Scott W. Somerville, Purcellville, VA, for Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mary Roe and John Doe, as parents and next friends of Jackie Doe, sued the Texas Department of Protective and Regulatory Services ("TDPRS") and social worker Beverly Strickland after Strickland visually searched Jackie's body cavities without a court order. The district court dismissed the claims against the TDPRS, and plaintiffs do not appeal that dismissal. The court, however, rejected Strickland's motion for summary judgment, and Strickland appeals based on the denial of qualified immunity.

Although we conclude that the plaintiffs pleaded a claim and raised a fact question as to whether Strickland violated Jackie's Fourth Amendment rights, we reverse because those rights were not clearly established at the time of the search. Strickland is entitled to qualified immunity. The other allegations do not establish violations of the Fourth and Fourteenth Amendments. We remand for consideration of a state law claim.


Strickland worked for TDRPS in the Children's Protective Services ("CPS") division. On June 29, 1999, the CPS Statewide Intake Unit received a "hotline" call concerning Jackie, alleging that while she was attending a day camp, someone observed her "touch[ing] another six-year-old female's private parts and kiss[ing] her on the lips"; Jackie then allegedly "began dancing and licked her finger and ran it down her body and touched her own private parts." The events occurred in a bathroom where Jackie, naked, was changing out of her swimsuit.

The intake workers concluded that Jackie's "behavior indicates that she may have been sexually abused." The report assigned the case a priority 2 status, requiring a CPS investigator to attempt contact with the family in ten days. Samantha Woods, the supervisor for the CPS investigative unit, agreed with the priority 2 status and assigned the case to Strickland, who was required by law to make a prompt and thorough investigation of the child abuse report. Tex. Fam.Code Ann. § 261.301 (West Supp.2002).

On July 6-8, Strickland unsuccessfully attempted to contact Mrs. Roe. On July 9, Mrs. Roe called Strickland, using a business card that Strickland had left on Mrs. Roe's doorstep. According to Mrs. Roe, during the July 9 phone conversation Strickland introduced herself, explained that she worked for CPS, and said she needed to talk to Mrs. Roe. Strickland

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declined to describe the purpose of the visit and insisted that they talk in person. Strickland stated only that she had received a "referral concerning the care and welfare" of Jackie. Strickland and Mrs. Roe made an appointment for Strickland to visit Mrs. Roe's house the next morning.

On July l0, Strickland arrived at the house. Mrs. Roe testified that she had a brief conversation with Strickland outside the front door; Strickland introduced herself again, explained her affiliation with CPS, and gave Mrs. Roe a business card. Mrs. Roe testified that Strickland entered the house without an invitation or permission; Strickland maintains that she was invited inside. Mrs. Roe testified that Strickland did not act in a manner designed to frighten or intimidate. Mrs. Roe also admitted that she did not say or do anything to show that she did not want Strickland to enter.

After entering the house, Strickland explained the purpose of the visit and discussed the report that had been made to CPS. Mrs. Roe asked Strickland whether she should contact an attorney, and Strickland stated, "Oh no, no. Don't worry about it. You don't need anybody."

After asking some questions, Strickland told Mrs. Roe that she needed to take pictures of Jackie. Strickland did not give the mother the option of submitting to the examination and pictures or refusing them. Strickland did not disclose the type of pictures or extent of the examination. Strickland acknowledges that she could have requested a medical examination but did not do so. She had received no training in photography of children's genitalia.

Strickland asked Mrs. Roe to remove the child's upper clothing, so she could look for bruises or marks. Strickland found none. Strickland then asked Mrs. Roe to remove Jackie's underwear, so that Strickland could see if anything was abnormal. Mrs. Roe asked whether it was really necessary, and Strickland responded "Oh, don't worry. It's more stressful for the parent than it is the child." Strickland took pictures of Jackie's vagina and buttocks in a closed position, and then instructed Mrs. Roe to spread Jackie's labia and buttocks, so that she could take pictures of the genital and anal areas. Although Mrs. Roe asked a couple of times whether the photographs were necessary, she never requested that Strickland stop. Mrs. Roe "teared up" as Strickland took the pictures, but did not cry.

Mrs. Roe testified that Strickland never said anything about removing the child from the home. After taking the pictures, Strickland interviewed Jackie for fifteen to twenty minutes. Strickland and Mrs. Roe had another brief discussion, and Strickland left.

Plaintiff's expert, Lawrence Daly, testified by affidavit that Strickland could not have believed in good faith that the examination and pictures were necessary. Woods testified that she would not have taken the pictures but opined that the decision to do so lay within Strickland's discretion. Robert Brown, a Program Director at CPS, described the visual examination and pictures as appropriate because "caseworkers are trained to find and document all available evidence during their investigations." After Mrs. Roe's attorney complained to CPS, Woods reassigned the case to Michelle Carter. CPS "ruled out" abuse and closed the case.

Jackie subsequently experienced frequent nightmares involving the incident, and exhibited anxiety responses, for which she underwent counseling. The symptoms persisted for about six months. Mrs. Roe experienced a loss of sleep, sadness, and depression for the same period of time.

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Plaintiffs sued Strickland, TDPRS, and certain TDPRS officials under 42 U.S.C. § 1983, alleging a violation of their Fourth Amendment right to freedom from unreasonable searches, Fourth and Fourteenth Amendment rights to privacy, and Fourteenth Amendment liberty interests. They also asserted state law claims of invasion of privacy, intentional infliction of emotional distress, false imprisonment, trespass, and negligent failure to train and supervise.

Defendants filed a motion to dismiss and a motion for a reply under FED.R.CIV.P. 7. After plaintiffs filed a Rule 7 reply, the court dismissed all defendants but Strickland, who then moved for summary judgment, asserting qualified immunity to the § 1983 claims and official immunity to the state law claims. The court denied the motion, whereupon Strickland filed her interlocutory appeal.


Social workers may assert a qualified immunity defense when sued under § 1983.1 The denial of summary judgment based on qualified immunity is appealable under the collateral order doctrine before final judgment. Mitchell v. Forsyth, 472 U.S. 511, 526-28, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We can review the denial only to the extent it "turns on a question of law." Id. If disputed factual issues are material to qualified immunity, the denial is not appealable. Feagley v. Waddill, 868 F.2d 1437, 1439 (5th Cir. 1989) (dismissing appeal because factual arguments went to merits and not to qualified immunity defense).

This appeal turns on legal questions about the scope of Mrs. Roe's and Jackie's constitutional rights and Strickland's qualified immunity defense. The only disputed, material fact is whether Mrs. Roe invited Strickland into the house while the two stood on the front porch. Because we can resolve the legal issue while assuming the truthfulness of Mrs. Roe's testimony, this is not the type of "material fact" issue that divests the appellate court of jurisdiction. Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir. 1996). The limit on appellate review applies only when "what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that a particular conduct occurred." Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).

Our decision hinges on the resolution of legal, not factual, questions. "We examine the plaintiffs' factual allegations only to determine whether they would be sufficient, if proven, to make out a violation of clearly-established law." Geter v. Fortenberry, 882 F.2d 167, 169 (5th Cir. 1989). Our review of the legal questions is de novo. Id.


The district court found that plaintiffs created a fact question about whether Strickland's entry into their home violated their Fourth Amendment rights. Strickland argues, first, that social workers need not satisfy the...

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