304 F.3d 982 (10th Cir. 2002), 01-4057, Roska v. Peterson

Docket Nº:01-4057.
Citation:304 F.3d 982
Party Name:Connie ROSKA, on behalf of minor children Rusty and Jessica Roska, and Maria Stewart; James Roska, on behalf of minor children Rusty and Jessica Roska, and Maria Stewart; Rusty Roska, Plaintiffs-Appellants, v. Craig T. PETERSON; Melinda Sneddon; Shirley Morrison; Colleen Lasater; Dan Choate; Darla Rampton, Defendants-Appellees.
Case Date:September 05, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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304 F.3d 982 (10th Cir. 2002)

Connie ROSKA, on behalf of minor children Rusty and Jessica Roska, and Maria Stewart; James Roska, on behalf of minor children Rusty and Jessica Roska, and Maria Stewart; Rusty Roska, Plaintiffs-Appellants,


Craig T. PETERSON; Melinda Sneddon; Shirley Morrison; Colleen Lasater; Dan Choate; Darla Rampton, Defendants-Appellees.

No. 01-4057.

United States Court of Appeals, Tenth Circuit

September 5, 2002

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Steven C. Russell, Affordable Legal Advocates, P.C., Salt Lake City, Utah, appearing for Appellants.

Nancy L. Kemp, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney General, with her on the brief), Office of the Attorney General, Salt Lake City, Utah, appearing for the Appellees.

Before TACHA, Chief Judge, BALDOCK, and LUCERO, Circuit Judges.

TACHA, Chief Judge.

Plaintiffs brought this suit under 42 U.S.C. § 1983, alleging deprivations of various Fourth and Fourteenth Amendment rights. The district court found that defendants were entitled to qualified immunity and dismissed the suit. We exercise jurisdiction pursuant to 28 U.S.C § 1291, and AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

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I. Background

On May 20, 1999, Connie Roska ("Mrs.Roska") dropped off her 12-year-old son, Rusty Roska ("Rusty"), at school. He was wearing a parka even though it was 70 degrees outside. Patricia Maynor, a school nurse, noticed that Rusty looked ill, was sweating, and had a pallid complexion. Mrs. Roska apparently stated that Rusty was suffering from kidney failure. The school nurse called Rusty's rehabilitation physician, Dr. Judith Gooch, who allegedly informed the nurse that he did not have kidney failure.1

On May 26, 1999, employees for the Davis County School District met with Melinda Sneddon, a caseworker for Utah's Division of Child and Family Services (DCFS). The school district employees expressed concern for Rusty's health and provided several documents to DCFS. These documents included records that show that in April of 1998, Mrs. Roska told a teacher that Rusty had a hole in his esophagus. Further investigation indicated that Mrs. Roska had allegedly claimed that Rusty suffered from a disease that is only suffered by 10 or 100 people in the world.

Sneddon assigned Shirley Morrison, another caseworker, to investigate. Morrison suspected that Mrs. Roska suffered from Munchausen Syndrome by Proxy ("MSBP"), a disorder where an individual, usually a mother, inflicts physical harm upon his or her children in order to gain the sympathy and attention of medical personnel. E. Selene Steelman, Note, A Question of Revenge: Munchausen Syndrome by Proxy and a Proposed Diminished Capacity Defense for Homicidal Mothers, 8 Cardozo Women's L.J. 261, 262-63 (2002).2 Morrison's investigation revealed that one of Rusty's psychologists and a doctor at Primary Children's Hospital had suspected MSBP but were unable to substantiate a diagnosis. Although Morrison later admitted that Rusty was not in imminent danger of death,3 the decision was made to remove Rusty from the Roskas' home.4

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On May 28, Morrison and Sneddon met with the Assistant Attorney General of Utah, Craig Peterson, who advised them that the facts supported removing Rusty from the home. Morrison and Sneddon, accompanied by a police officer, allegedly entered the Roska residence without a warrant and without knocking and proceeded to remove Rusty. Before leaving, they were admonished over the phone by Doctor Gooch that removal could destroy "this family emotionally and Rusty may never recover." Sneddon consulted with her supervisor, Colleen Lasater, and then proceeded with the removal. Appellees contend that, while in the home, Sneddon pushed Rusty's sisters, Maria Stewart and Jessica Roska, as they attempted to comfort Rusty, and abused others in the home, both physically and verbally.5 Rusty was placed in a foster home, where he allegedly was not given proper medication for his chronic pain.

At an initial shelter hearing on June 3, 1999, the juvenile court ruled that Rusty should remain in protective custody. After additional evidence was produced the next day, the court ordered that Rusty be returned to the Roskas' care. The court also ordered the Roskas to permit substantial intervention by DCFS in Rusty's treatment.

On October 6, 1999, plaintiffs commenced this action under 42 U.S.C. § 1983. The plaintiffs are Rusty Roska, Connie and James Roska (Rusty's parents), and Maria Stewart and Jessica Roska (Rusty's sisters). The defendants are Craig T. Peterson, Assistant Attorney General for the State of Utah; Melinda Sneddon, a social worker with DCFS; Shirley Morrison, a social worker with DCFS; Colleen Lasater, Sneddon's and Morrison's supervisor; Dan Choate and Darla Rampton, DCFS placement workers who placed Rusty in a foster home. The first, third, fourth, and fifth causes of action are directed against Peterson, Sneddon, and Morrison and allege three Fourth Amendment violations 6 and a Fourteenth Amendment violation.7 The second cause of action alleges that defendants Sneddon and Morrison used unreasonable force in violation of the Fourth Amendment. The sixth and seventh claims allege that all defendants violated Rusty's Fourteenth Amendment substantive due process right to be safe from harm while held by the state (sixth cause of action) and Mr. and Mrs. Roska's Fourteenth Amendment rights to direct their children's medical care (seventh cause of action). Finally, plaintiffs' eighth cause of action is against defendant Morrison for alleged malicious prosecution and abuse of process. The district court granted defendants summary judgment on grounds of qualified immunity. We now affirm in part, reverse in part, and remand for further proceedings.

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II. Discussion

A. Standard of Review

We review de novo a district court's ruling on qualified immunity. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir. 2002). Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. To determine whether a plaintiff can overcome the qualified immunity defense, "first we determine whether the plaintiff has asserted a violation of a constitutional or statutory right, and then we decide whether that right was clearly established such that a reasonable person in the defendant's position would have known that [his] conduct violated that right." Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996) (citation omitted). Order is important; we must decide first whether the plaintiff has alleged a constitutional violation, and only then do we proceed to determine whether the law was clearly established. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

B. Violation of a Constitutional Right

1. Fourth Amendment Claims (Counts 1, 2, 3, .4, and 8)

The Fourth Amendment, applied to the states through the Fourteenth Amendment's Due Process Clause, provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const, amend IV. Plaintiffs advance five theories upon which a Fourth Amendment violation might be found. We address each in turn.

a. The Warrantless No-Knock Entry (Count 1)

It is well-established that a warrantless search is presumptively unreasonable under the Fourth Amendment unless it falls within a specific exception to the warrant requirement. United States v. Zubia-Melendez, 263 F.3d 1155,1162 (10th Cir. 2001). It is similarly well-established that an official must knock before entering a domicile, unless the official has a reasonable suspicion that knocking and announcing his or her presence would be dangerous or futile or would inhibit the effective investigation of the crime. Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct' 1416, 137 L.Ed.2d 615 (1997).

Plaintiffs have produced several affidavits indicating that defendants did not knock before entering the Roskas' house. We find no facts in the record indicating that knocking and announcing the presence of the defendants would have been dangerous or futile or would have inhibited the seizure of Rusty. We therefore hold that Plaintiffs have sufficiently asserted a violation of the Fourth Amendment as a result of the "no-knock" entry.

The only exception to which defendants point in order to justify their failure to obtain a warrant before entering and searching the Roskas' residence is the "exigent circumstances" exception. Exigent circumstances arise when

(1) the law enforcement officers . . . have reasonable grounds to believe that there is immediate need to protect their lives or others or their property or that of others, (2) the search [is not] motivated by an intent to arrest and seize evidence, and (3) there [is] some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be searched.

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United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir. 1992) (alterations in original). The government bears the burden of proving exigency. United States v. Wicks, 995 F.2d 964, 970 (10th Cir. 1993). The government's burden is "particularly heavy where the police seek to enter a suspect's home." Anderson, 981 F.2d at 1567 (quoting United States v. Maez, 872 F.2d 1444, 1452 (10th Cir. 1989)). In evaluating whether exigent circumstances existed, we examine the circumstances "as they would have appeared to prudent, cautious, and trained...

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