51 F.3d 1540 (11th Cir. 1995), 93-3340, Lenz v. Winburn

Docket Nº:93-3340.
Citation:51 F.3d 1540
Party Name:Donald LENZ, Shirley Lenz, his wife, Plaintiffs-Appellants, v. Mary WINBURN, individually, for her official acts, and in her official capacity as Investigator for the Florida Department of Health and Rehabilitative Services, Doris Paskewitz, individually, for her official acts, and in her official capacity as Guardian Ad Litem, with the State of Fl
Case Date:May 12, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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51 F.3d 1540 (11th Cir. 1995)

Donald LENZ, Shirley Lenz, his wife, Plaintiffs-Appellants,

v.

Mary WINBURN, individually, for her official acts, and in

her official capacity as Investigator for the Florida

Department of Health and Rehabilitative Services, Doris

Paskewitz, individually, for her official acts, and in her

official capacity as Guardian Ad Litem, with the State of

Florida, or individually, for acts outside the scope of her

official authority, Volusia County, a governmental entity,

Elizabeth Lenz, individually, Defendants-Appellees,

Robert L. Vogel, Jr., in his official capacity as Sheriff of

Volusia County, Florida, W. Piser, in his official capacity

as Deputy Sheriff of Volusia County, Florida, M. Lusk, in

his official capacity as Deputy Sheriff of Volusia County,

Florida, Department of Health and Rehabilitative Services,

an agency of the State of Florida, Guardian Ad Litem Program

for the Seventh Judicial Circuit, an agency of the State of

Florida, Defendants.

No. 93-3340.

United States Court of Appeals, Eleventh Circuit

May 12, 1995

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Andrew C. Moler, Orlando, FL, for appellants.

Kenneth J. Servay, Appellate Advocacy Program-Tulane Law School, New Orleans, LA, Nina E. Vinik, A.C.L.U. Foundation of Fla., Miami, FL, for amicus curiae ACLU.

Michael Vance Matthews, Blakeney and Alexander, Charlotte, NC, for NCNB Bank.

Edmund T. Woolfolk, Woolfolk, Estex, Keough and Jordan, John E. DuBose, Jr., Orlando, FL, for Winburn.

Paolo G. Annino, Central FL Legal Services, Inc., Sylvia Starbuck, Daytona Beach, FL, for Elizabeth Lenz.

Tura Schnebly Broughton, Asst. County Atty., Legal Department, DeLand, FL, for County of Volusia.

Arthur C. Wallberg, Office of the Atty. Gen., Tallahassee, FL, for Paskewitz.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT and COX, Circuit Judges, and JOHNSON, Senior Circuit Judge.

COX, Circuit Judge:

Plaintiffs Donald and Shirley Lenz sued Mary Winburn, Doris Paskewitz, Elizabeth

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Lenz, and Volusia County, Florida under 42 U.S.C. Sec. 1983 for violation of their Fourth and Fourteenth Amendment rights. The district court granted all defendants summary judgment. The Lenzes appeal.

I. Background

A. Facts

Donald and Shirley Lenz (the elder Lenzes or the Lenzes) have a son named Kurt. 1 For a time Kurt Lenz was married to the defendant Elizabeth Lenz. Elizabeth had a son of her own named Ryan. Kurt and Elizabeth together had a daughter named Desirae, whom the elder Lenzes call "Mickey." When Kurt and Elizabeth separated in 1990, nine-year-old Desirae became the subject of a bitter custody fight. Kurt ultimately obtained primary custody. In the autumn of 1990, Desirae lived with her father, who resided in half of a duplex owned by the elder Lenzes. A doorway connected the duplex's two kitchens, effectively making the duplex into one large dwelling. This connection between the duplexes facilitated the elder Lenzes' care for Desirae, whom they often babysat when Kurt was at work.

In September 1990, the elder Lenzes reported to the Florida Department of Health and Rehabilitative Services (HRS) that Elizabeth had abused Desirae and Ryan by pouring dish soap down their throats. HRS assigned the case to Mary Winburn, an investigator. During the next six weeks, Winburn interviewed acquaintances, neighbors, and family of the Lenzes and Elizabeth. She also spoke to Doris Paskewitz, who was appointed Desirae's guardian ad litem in late October 1990. Based on her investigation, Winburn concluded that the accusations against Elizabeth were groundless, but that the elder Lenzes and Kurt abused Desirae.

Accordingly, Winburn resolved to remove Desirae from her father's custody immediately. She arranged to meet Paskewitz at Desirae's school. Winburn notified the principal that she and Paskewitz would arrive at the end of the school day to take Desirae and place her with Elizabeth. Winburn did not, however, apprise the elder Lenzes. Fearing a confrontation, the principal asked the Volusia County Department of Public Safety to provide two deputies to keep the peace. Winburn later sought the deputies' assistance at the Lenzes' house as well because of the Lenzes' reputation among their neighbors as firearm enthusiasts.

In addition to preparing to retrieve Desirae, Winburn made arrangements to collect Desirae's necessities. HRS caseworkers typically take some of the child's belongings when they remove a child, in order to lessen the child's trauma. Following this practice, Winburn had telephoned and visited Elizabeth to determine what would ease Desirae's move from her father's home to her mother's. Elizabeth asked for some of Desirae's clothing, some toys, a video game, and a set of child's encyclopedias Desirae used in her schoolwork.

Consequently, after Shirley and the deputies arrived at the school and Winburn explained the situation to Shirley and Desirae, Winburn, Paskewitz, Desirae, Shirley, and the two deputies all went to the Lenzes' duplex to gather Desirae's necessities. The parties dispute what happened there. The elder Lenzes contend that Winburn, Paskewitz, and the deputies entered the townhouse without permission. Donald testified that he said nothing to indicate to the deputies or Winburn that they were allowed in the house. Rather, Donald merely unlocked the gate to the townhouse's front courtyard and told the deputies that he was going to put on his shoes. As he turned to fetch his shoes, Donald testified, the deputies followed him into his house uninvited, with Winburn close behind. Shirley likewise denied having invited Winburn and the others into the house.

Winburn, on the other hand, testified that the deputies asked for permission to enter and that Donald explicitly consented, saying something like "come on" as he turned around to enter the house. She also testified that she had explained to Shirley at the school what she would be doing and that Shirley had agreed to it. Paskewitz testified that she entered last at Desirae's invitation, and that when she went in she greeted the

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elder Lenzes. She did not explicitly ask for consent to enter, but was not told to leave.

The parties agree that everyone came through the living room of the elder Lenzes' side of the duplex. The parties apparently also agree that Desirae and Paskewitz first went back to Desirae's room. Paskewitz testified that while they were there Desirae showed her a pet bird. Paskewitz also attested that she then asked Shirley to come to Desirae's room to help select clothing; Shirley testified that Paskewitz asked her to comfort Desirae. Shirley and Winburn then went to Desirae's room. What happened there is also disputed. Shirley testified that she comforted a sobbing Desirae as Paskewitz and Winburn rifled through Desirae's closet and that Winburn removed armloads of clothing. Paskewitz testified that everyone in the room helped select clothing and that little clothing was gathered or taken.

Winburn then carried the clothing and other items past Donald and the deputies out to her car. Winburn testified that she asked about each item as she left. The Lenzes testified that Winburn took what she liked without consulting them. After Desirae's belongings were in Winburn's car, Paskewitz, Desirae, Winburn, and the deputies left.

The parties dispute what Winburn took, and they dispute whether Paskewitz removed anything. Winburn and Paskewitz both testified that Winburn took some clothing, a video game, and a set of encyclopedias. The Lenzes testified that in addition Winburn took the pet bird, bed linens, and an assortment of stuffed animals. The Lenzes also claim that $1987 in cash, an answering machine, and a box of craft supplies disappeared during Winburn's visit. Neither Lenz saw any defendant take the machine or the cash, however, but maintain that either Winburn or Paskewitz could have done so.

B. Procedural History

The elder Lenzes sued the defendants pursuant to 42 U.S.C. Sec. 1983, contending that Winburn and Paskewitz's visit violated the Lenzes' Fourth and Fourteenth Amendment rights. The Lenzes also claim that Elizabeth Lenz conspired to deprive them of their Fourth and Fourteenth Amendment rights, and that Volusia County's policy of providing deputies to keep the peace in these circumstances was an unconstitutional practice.

The district court granted summary judgment to all defendants. It determined that Winburn was qualifiedly immune to the Lenzes' claim against her individually and that the Eleventh Amendment barred the claim against Winburn in her official capacity. The court concluded that qualified immunity entitled Paskewitz to summary judgment on the claim against her individually. The court also ruled that Paskewitz's conduct did not implicate the Fourth Amendment, and that therefore she was entitled to summary judgment on the claim against her in her official capacity. The court granted Elizabeth Lenz summary judgment for want of evidence of a conspiracy to violate the Lenzes' constitutional rights. Finally, the district court granted Volusia County summary judgment, having found no evidence of an unconstitutional policy or practice.

II. Issues on Appeal

The elder Lenzes raise one issue requiring discussion. They contend that the district court improperly determined that Winburn and Paskewitz merited qualified immunity from the suits against them individually, and that the district court improperly held in the alternative that the Lenzes had stated no Fourth Amendment claim. 2

III. Standard of Review

This court reviews...

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