328 F.3d 1230 (10th Cir. 2003), 01-4057, Roska v. Peterson

Docket Nº:01-4057
Citation:328 F.3d 1230
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:April 29, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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328 F.3d 1230 (10th Cir. 2003)

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,



No. 01-4057

United States Court of Appeals, Tenth Circuit

April 29, 2003


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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 Circuit Judge, BALDOCK, and LUCERO, Circuit Judges.

TACHA, Chief Circuit Judge.

These matters are before the court on appellees' petition for rehearing with suggestion for rehearing en banc. We granted appellees' petition for rehearing in an order dated October 31, 2002. Pursuant to that order, the court's opinion of September 5, 2002, is withdrawn and replaced by this revised published opinion.


Plaintiffs brought this suit under 42 U.S.C. 1983, alleging various rights deprivations under the Fourth and Fourteenth Amendments. 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.

I. Background

On May 20, 1999, Connie Roska dropped off her 12-year-old son, Rusty Roska, 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 Rusty 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 showing that in April 1998, Mrs. Roska told a teacher that Rusty had a hole in his esophagus. In addition, the school nurse informed Sneddon that Mrs. Roska had told her that Rusty had parasites in his Page 1238

intestines. Further, school officials reported that Rusty's healthy appendix had been removed at Mrs. Roska's insistence. Finally, school officials reported that Rusty looked worse every day and expressed concern that Rusty might die unless DCFS intervened. 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.

On May 28, 1999, Morrison and Sneddon met with an 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. Plaintiffs 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. DCFS placed Rusty 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 Page 1239

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 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; and 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 violations4 and a Fourteenth Amendment violation.5 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 (Count 6) and Mr. and Mrs. Roska's Fourteenth Amendment rights to direct their children's medical care (Count 7). 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.

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 (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 (2001).

B. Violation of a Constitutional Right 6

In conducting our qualified immunity analysis, we must first consider Page 1240

"whether plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2513 (2002) (citation omitted). We consider each of the plaintiffs' allegations in turn. 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 Entry (Count 1)7

It is well-established that a warrantless search is presumptively unreasonable under the Fourth Amendment and therefore invalid unless it falls within a specific exception to the warrant requirement. United States v. Zubia- Melendez, 263 F.3d 1155, 1162 (10th Cir. 2001). In this case, it is undisputed that defendants failed to obtain a warrant before entering and searching the Roskas' residence. Thus, defendants' actions were presumptively unreasonable under the Fourth Amendment unless an exception to the warrant requirement applies Id. Defendants point to two possible exceptions to the warrant requirement. We consider each in turn.

(1) Exigent circumstances

First, the defendants point to the "exigent circumstances" exception to the warrant requirement. Exigent circumstances exist 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...

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