537 F.3d 404 (5th Cir. 2008), 06-20763, Gates v. Texas Dept. of Protective and Regulatory Services

Docket Nº:06-20763.
Citation:537 F.3d 404
Party Name:Gary W. GATES, Jr.; Melissa Gates, Individually and as next friends to Sarah Gates, Derodrick Gates, Travis Gates, Raquel Gates, Cynthia Gates, Cassandra Gates, Timothy Gates, Andrew Gates, Alexis Gates, and Marcus Gates; Gary Wilton Gates; George Gates; Scott Gates, Plaintiffs-Appellants, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES,
Case Date:July 28, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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537 F.3d 404 (5th Cir. 2008)

Gary W. GATES, Jr.; Melissa Gates, Individually and as next friends to Sarah Gates, Derodrick Gates, Travis Gates, Raquel Gates, Cynthia Gates, Cassandra Gates, Timothy Gates, Andrew Gates, Alexis Gates, and Marcus Gates; Gary Wilton Gates; George Gates; Scott Gates, Plaintiffs-Appellants,


TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Childrens Protective Services; Thomas Chapmond; Jerry Polasek; Amy Odin; Sandra Russell; Lisa Matthews; Laura Miller; Erika Davis; Sherrece Haywood; Laura Ramirez; Fort Bend County; Milton Wright; Sam Millsap; Arthur Chapman; Carlos Carrillo; Virginia Schaefer; Ken Lee; Lloyd Rowland, Sergeant; James Carlson, Detective; Spilman, Detective, Defendants-Appellees.

No. 06-20763.

United States Court of Appeals, Fifth Circuit.

July 28, 2008

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Thomas Christian Sanders, Sugar Land, TX, Robert Gaines Gibson, Jr. (argued), Stafford, TX, for Plaintiffs-Appellants.

Terrence L. Thompson, Asst. Atty. Gen. (argued), Austin, TX, Randall W. Morse (argued), Mary Elizabeth Reveles, Richmond, TX, for Defendants-Appellees.

James R. Mason, Purcellville, VA, Marc Aron Levin, Potts & Reilly, Austin, TX, for Amici Curiae.

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

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Before us is an appeal of a district court's decision to dismiss a family's claims against various governmental entities and employees who allegedly performed unconstitutional child abuse investigations. For the following reasons, we AFFIRM the judgment of the district court.

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Gary and Melissa Gates are the parents of thirteen children-two biological (Sarah and Will) and eleven adopted (George, Scott, Derodrick, Travis, Raquel, Cynthia, Cassandra, Timothy, Andrew, Alexis, and Marcus).1 The Gateses believe that the Texas Department of Protective and Regulatory Services (“TDPRS" )2 and Fort Bend County (“Fort Bend" ), along with employees of each, violated their constitutional rights when conducting several child abuse investigations of the Gates family.

A. First Incident-February 11, 2000

Gary and Melissa adopted siblings Scott, Derodrick, Travis, and Raquel through TDPRS in 1997. Travis had a severe attachment disorder and an eating disorder that caused him to steal and gorge on food. Travis's teachers at his school in the Lamar Consolidated Independent School District (“LCISD" ) were aware of this problem and had to monitor Travis closely, as he would frequently steal food from students and teachers. Indeed, Travis's school files contain documentation of dozens of instances of food theft by Travis. In addition to that, Gary and LCISD disagreed about how to best educate Travis overall, and the dispute culminated in a “heated" Admission, Review, and Dismissal meeting between Gary and LCISD personnel on February 10, 2000.

Also on February 10, Gary and Melissa discovered that Travis, who was ten years old at the time, had stolen food from the kitchen, including two boxes of fig bars that he ate in the attic. He had also played with matches while in the attic. In an attempt to make Travis understand the seriousness of his conduct, Gary put the fig bar wrappers in a baggie and pinned it to Travis's shirt. Gary said it was the first time Travis had shown genuine remorse for his actions, so Gary decided to make Travis wear the baggie filled with wrappers to school on February 11. Gary included a note in the baggie that explained his reason for the punishment and invited LCISD to contact him if it had any questions.

At 8:31 a.m. on February 11, Tiffany Bezdek (“Bezdek" ), a Statewide Intake Specialist with TDPRS, received a call on the Abuse/Neglect Hotline from an individual at LCISD (“the reporter" ) regarding Travis. According to the Call Narrative, the reporter stated as follows:

· Travis had been forced by his father to wear food wrappers stapled to his clothes as a punishment for stealing food from home.

· Travis was not allowed to attend the Valentine's Day parties or eat any food from school.

· Travis had a severe emotional disturbance and eating disorder.

· Travis was in a strict setting at school because Gary would not treat him medically.

· Gary was “very religious and very controlling" and weighed Travis each day, forcing him to work off any extra pounds.

· Gary once punished Travis for stealing food by requiring him to move bricks from one pile to another.

· One year ago, Gary punished Travis for stealing food by handcuffing him to his bed for a day.

Based on this information, Bezdek classified the report as Priority 1. TDPRS is

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supposed to classify reports as Priority 1 when the reports “concern children who appear to face an immediate risk of abuse or neglect that could result in death or serious harm." 40 TEX. ADMIN. CODE § 700.505 (2007).3 TDPRS must investigate Priority 1 reports within twenty-four hours. Id.

Because of the Priority 1 designation, TDPRS dispatched Defendant-Appellee Erika Davis (“Davis" ), a TDPRS investigator, to interview Travis at his school. Upon arriving, Davis noticed that Travis “had a mark on his hand and a mark on his face somewhere." Davis decided to take Travis to the Child Advocacy Center (“the CAC" ) for a videotaped interview. The CAC was established pursuant to Chapter 264, Subchapter E, of the Texas Family Code. The goal of the CAC is to coordinate child abuse investigations among the various branches of government, including TDPRS, county law enforcement, and the district attorney, so that children will not experience the trauma of multiple investigations from the different governmental entities. Thus, for example, a CAC worker may conduct one interview of a child that can then be used by any branch of government, rather than each entity conducting its own interview.

Upon arrival at the CAC, Travis was interviewed by CAC worker Bonnie Martin (“Martin" ). Travis told her that, following Gary's discovery that Travis had been stealing food, Gary pushed and kicked Travis, made Travis sit in the “chair position" with his back against the wall, and run up and down stairs until his legs hurt. Travis further stated that Gary's punishments in the past included drinking “throw up" medicine, running, and moving bricks. Travis also said he had been spanked with a board before.

Prior to Travis's interview with Martin, Davis learned that Travis had twelve other siblings. Davis informed her supervisors at TDPRS of this fact, and Jerry Polasek (“Polasek" ), a TDPRS supervisor, sent TDPRS employees Amy Odin (“Odin" ) and Sherrece Haywood (“Haywood" ), along with TDPRS trainees Lisa Matthews (“Matthews" ) and Laura Ramirez (“Ramirez" ), to interview Will, George, and Scott at their schools. Polasek, Odin, Haywood, Matthews, and Ramirez are all Defendants-Appellees in this action.

According to Will, George, and Scott, Gary was the disciplinarian in the family. His punishments included requiring the children to sit in the chair position against a wall (sometimes with weights in their laps), move boards and bricks around the driveway, and run (both for punishment and for exercise). The smaller children were spanked with a belt. Will and Scott stated that Gary had handcuffed Travis to his bed in the past to keep him from stealing food. Scott also stated that Gary pushed Travis down when he found out about Travis stealing the fig bars. After reporting this information to their TDPRS supervisors, Odin, Haywood, Matthews, and Ramirez went to lunch.

At approximately 1:30 p.m., Davis took Travis from the CAC to the TDPRS offices. She then called Gary to inform him that TDPRS had interviewed Travis and to request permission to interview his other children. Gary denied permission to interview his children and arrived at the TDPRS offices ten minutes later to discuss

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the matter. TDPRS did not tell him that Travis was in the building.

In the meantime, Polasek called Odin, Haywood, Matthews, and Ramirez while they were at lunch and told them to go to the Gateses' home and interview the remaining children. Before arriving at the Gateses' home, Odin called for non-emergency support from the Fort Bend Sheriff's Department. Deputies Carlos Carrillo (“Carrillo" ) and Virginia Schaefer (“Schaefer" ), who are Defendants-Appellees, responded to the request. The six of them arrived at the house between 3:00 and 3:30, right before the children came home from school. The Gateses' housekeeper Nermi Menjivar (“Menjivar" ) answered the door. She spoke only Spanish, which Carrillo and Ramirez also spoke.

Whether Menjivar consented to the entry of the individual defendants into the Gateses' house is the subject of some debate between the parties. Ramirez, Odin, and Haywood all remember that Menjivar let them into the house, but they do not remember what anyone said during the conversation. Carrillo believes he would have remembered if Menjivar had refused to let them in, and he does not recall that happening. Schaefer and Matthews do not remember anything about the conversation. According to Menjivar, someone at the door told her that they wanted to speak with the children. She told them that Gary and Melissa were not home but that Melissa would be back between 4:00 and 4:30. Menjivar testified at her deposition that the TDPRS employees and Fort Bend deputies did not ask for...

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