Tower v. Leslie-Brown

• Decision Date: 22 April 2003
• Docket Number: No. 02-1904.,02-1904.
• Citation: 326 F.3d 290
• Parties: Ann TOWER, individually and as parent and natural guardian of William Tower, III and Patricia Tower, minor children; William Tower, Jr., individually and as parent and natural guardian of William Tower, III and Patricia Tower, minor children, Plaintiffs, Appellants, v. Joan LESLIE-BROWN, individually and in her official capacity as a caseworker for the Maine State Department of Human Services; Darryl Peary, Jr., individually and in his official capacity as a trooper with the Maine State Police, Defendants, Appellees, State of Maine Department of Human Services; Michelle Dolley, individually and in her official capacity as the guardian ad litem of the children; Maine State Police, Defendants.
• Court: U.S. Court of Appeals — First Circuit

Page 290

326 F.3d 290

Ann TOWER, individually and as parent and natural guardian of William Tower, III and Patricia Tower, minor children; William Tower, Jr., individually and as parent and natural guardian of William Tower, III and Patricia Tower, minor children, Plaintiffs, Appellants, v. Joan LESLIE-BROWN, individually and in her official capacity as a caseworker for the Maine State Department of Human Services; Darryl Peary, Jr., individually and in his official capacity as a trooper with the Maine State Police, Defendants, Appellees State of Maine Department of Human Services; Michelle Dolley, individually and in her official capacity as the guardian ad litem of the children; Maine State Police, Defendants.

No. 02-1904.

United States Court of Appeals, First Circuit.

Submitted November 29, 2002.

Decided April 22, 2003.

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Ferdinand A. Slater for appellants.

Melissa Reynolds O'Dea, Assistant Attorney General, with whom G. Steven Rowe, Attorney General and Paul Stern, Deputy Attorney General, were on brief for appellees.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

This case arises from the events surrounding the arrest of plaintiff William Tower, Jr., and the subsequent removal of the Tower children from their home. The plaintiffs appeal the denial of their motion for judgment on the pleadings as well as the granting of defendants' motion for summary judgment on the plaintiffs' numerous civil rights claims. We affirm.

I. BACKGROUND

We review the district court's decision de novo, viewing the facts in the light most favorable to the plaintiffs. See Macone v. Town of Wakefield, 277 F.3d 1, 5 (1st Cir.2002). Plaintiffs William Tower, Jr. ("Tower"), and his wife Ann Tower are the parents of five children. Tower has a fifteen-year-old daughter, Melissa; Ann Tower has two teenaged children, Abigail and Marc; and together the Towers have two young children, William III ("Billy"), three years old, and Patricia, aged eleven months.¹ All five children lived with the Towers prior to the date of Tower's arrest.

On January 24, 2001, Abigail reported to her high school guidance counselor that she and Marc had been beaten by their stepfather, Tower. She related three incidents: that Tower had pushed her into a trough in the family's barn that contained sharp objects including nails and glass; that he had bent her backwards over a board and beaten her about the face; and that he had knocked Marc down and had hit and kicked him because he believed that Marc had been spying on their stepsister, Melissa, through a hole in the bathroom wall. The guidance counselor also spoke with Marc, who attended the same high school, and who confirmed that this third incident had occurred. Marc further related that Tower had on another occasion chased him around the living room and told him that if he caught him, he would kill him. Marc said that he was afraid to go home, and that he was tired of being hit. The counselor notified the high school principal about the children's reports of abuse, and the principal notified the school superintendent. A school official then forwarded the information to defendant State Trooper Darryl Peary, either in person or by leaving a telephone message. No further action was taken that day.

The next day, Peary went to the high school to interview Abigail and Marc. The children repeated their reports of abuse, and reported additional details about the assault on Marc in which he was repeatedly kicked in the head. They also told Peary about another incident in which Tower hit his own daughter, Melissa. After these interviews, Peary returned to his office in Skowhegan, Maine, to draft a request for a warrant to arrest Tower for misdemeanor assault. He also contacted the Maine Department of Human Services ("DHS"). Based on the information gathered by Peary, DHS sent two child protective workers, including defendant Joan Leslie-Brown, to interview the children at school. Marc and Abigail repeated their reports, and added that there was ongoing conflict in the house where all five children resided. When Melissa was interviewed, she confirmed that her father had hit her, and that the blow had caused her tooth to go through her lip. She also stated that she was afraid to go home. The children were interviewed separately and by different caseworkers, and their stories were consistent.

As these interviews were taking place, Peary went to the Maine District Court in Skowhegan to submit his warrant request. He presented the warrant application to a clerk, who took the application from him, and then returned a while later to inform him that the warrant was active. Peary did not receive a copy of the warrant.

Peary returned to the high school after having been told the warrant was active, and met with the workers from DHS. One worker stayed with the three teenaged children at the high school, while Peary and Leslie-Brown headed to the Tower residence. Peary went with the purpose of arresting Tower, and Leslie-Brown accompanied him because they expected Tower to be alone with the two younger children at that time of day, and she intended to supervise the children after Tower was arrested and until Ann Tower came home.

At the Tower residence, Peary, Leslie-Brown, and a number of state troopers who had joined them gained entry to the Towers' home, and shortly thereafter, the troopers handcuffed and arrested Tower. During the arrest, Peary took Tower's key ring from him, stating that he needed the key to the gun cabinet.

After the arrest, Peary and Leslie-Brown remained in the house with the two younger children until Ann Tower returned, approximately forty minutes later. During that time, Leslie-Brown called the high school and told the other caseworker to bring the three teenagers home. Peary made a number of long-distance phone calls to other state officers. When Ann Tower arrived, she spoke with Peary as well as Leslie-Brown and the other caseworker. Her conversation with the DHS workers led them to doubt her ability to protect the children, and the caseworkers decided to remove all five children from the home. The children have been out of the Towers' custody ever since.

After taking the children to the DHS office in Skowhegan, the caseworkers drafted a preliminary child protection order to grant DHS emergency custody over them. See Me.Rev.Stat. Ann. tit. 22, § 4034 (West 2002). The caseworkers then went with a supervisor to the home of a Maine Probate Court judge, who granted the petition and issued a preliminary protection order to place the children in DHS custody. A hearing on the order was held five days later, on January 30, 2001, at which point the Towers consented to the order.

On March 12, 2001, Ann Tower consented to the entry of a "jeopardy order," which represents a finding by the state court that the children were in "circumstances of jeopardy to [their] health or welfare" in her care. See Me.Rev.Stat. Ann. tit. 22, § 4035 (West 2002). Tower contested the entry of a similar jeopardy order against him, but after an adversarial hearing, the order was entered by the court. See In re Melissa T., 791 A.2d 98, 99 (Me.2002).

On May 1, 2001, the Towers brought the underlying 42 U.S.C. § 1983 action against the Maine State Police, DHS, the children's guardian ad litem, and Trooper Peary and Caseworker Leslie-Brown in their individual and official capacities. On October 9, 2001, the district court dismissed all claims except those against Peary and Leslie-Brown in their individual capacities. See Tower v. Leslie-Brown, 167 F.Supp.2d 399, 402-04 (D.Me.2001) (dismissing claims against Maine State Police, Maine DHS, and Peary and Leslie-Brown in their official capacities on the basis that, as state agencies and officials, they are not subject to suit under 42 U.S.C. § 1983; dismissing claims against the children's guardian ad litem for failure to state any factual allegations against her). The plaintiffs chose not to appeal those dismissals, and filed an amended complaint on January 15, 2002, seeking relief pursuant to 42 U.S.C. § 1983, and alleging that Peary and Leslie-Brown violated their First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights, and violated Title IV-E of the Social Security Act.

On February 21, 2002, the Maine Law Court affirmed the jeopardy orders against both Tower and Ann Tower. See In re Melissa T., 791 A.2d at 99. On February 27, 2002, the state prosecutor dismissed the criminal charges against Tower. On June 19, 2002, the district court entered a sealed order and memorandum granting the defendants' motion for summary judgment on all claims, and denying the plaintiffs' motion for judgment on the pleadings. On June 20, 2002, the district court entered final judgment for the defendants. This appeal followed.

II. ANALYSIS

The Towers claim that the district court erred in granting the defendants' motion for summary judgment, arguing that the defendants were not entitled to qualified immunity as to their Fourth Amendment claims, and that valid constitutional violations were stated as to their Fifth, Fourteenth, and First Amendment claims. We disagree.

A. Fourth Amendment

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Towers contend that this security was violated when defendants entered their home without a warrant, and then proceeded to unreasonably seize and search the premises. They further argue that the district court erred in its conclusion that Peary and Leslie-Brown were entitled to qualified immunity with regard to these alleged violations.

1. Entry to Arrest

The Towers claim that Peary violated their Fourth Amendment rights by entering their home to arrest Tower without a valid warrant. It is well established that "a non-consensual,...