538 F.3d 952 (8th Cir. 2008), 07-1517, Riehm v. Engelking

Docket Nº:07-1517.
Citation:538 F.3d 952
Party Name:David RIEHM; Colleen Riehm, Plaintiffs-Appellants, v. John ENGELKING, in his individual capacity and his official capacity as Middle and High School Principal of Cook County Public Schools, Independent School District Number 166; Ann Mershon, in her individual capacity and her official capacity as a public school teacher employed by Independent Sch
Case Date:August 15, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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538 F.3d 952 (8th Cir. 2008)

David RIEHM; Colleen Riehm, Plaintiffs-Appellants,

v.

John ENGELKING, in his individual capacity and his official capacity as Middle and High School Principal of Cook County Public Schools, Independent School District Number 166; Ann Mershon, in her individual capacity and her official capacity as a public school teacher employed by Independent School District Number 166; Independent School District Number 166, a political subdivision of the State of Minnesota, Defendants,

Steven Diercks, in his individual capacity and his official capacity as a social worker employed by the Department of Public Health and Social Services of Cook County, Minnesota; Ann DeBevec, in her individual capacity and her official capacity as a social worker employed by the Department of Public Health and Social Services of Cook County, Minnesota, Defendants-Appellees,

Deputy Joseph Zallar, in his individual capacity and his official capacity as a deputy sheriff employed by Cook County, Minnesota, Defendant,

Cook County, a political subdivision of the State of Minnesota, Defendant-Appellee,

Officer Christopher Thostenson, in his individual capacity and his official capacity as a Minnesota State Patrol Officer assigned to the Northeast Division, Defendant.

No. 07-1517.

United States Court of Appeals, Eighth Circuit.

August 15, 2008

Submitted: Nov. 13, 2007.

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Peter James Nickitas, argued, Minneapolis, MN, for appellant.

Jon Kermit Iverson, argued, Bloomington, MN, (Amber S. Lee, on the brief), for appellee.

Before MURPHY, HANSEN and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

David Riehm was a high school student who wrote an essay detailing a fantasy murder-suicide inspired by the school shooting that took place at Columbine High School in Littleton, Colorado. He left the essay with his teacher, who read it and reported it to law enforcement. He was taken from his home in Cook County, Minnesota, by court order, underwent a psychiatric evaluation and was released after seventy-two hours. He and his mother, Colleen Riehm, brought this lawsuit against Cook County and two of its employees, Steven Diercks and Ann DeBevec (collectively, the “county defendants" ), seeking damages on the grounds that David's detention violated his First Amendment right to free speech and Fourth Amendment right to be free from unreasonable seizures and Colleen's Fourteenth Amendment right to familial integrity, and that the county's failure to pay David's medical bills violated Colleen's Fourteenth Amendment substantive due process right, as well as Minnesota state law. The district court 1 granted the county defendants' motions for dismissal and summary judgment, and the Riehms appeal.2 For the reasons discussed below, we affirm.

I. BACKGROUND

In January 2005, David was seventeen years old and a student at Cook County High School in Grand Marais, Minnesota. During Ann Mershon's creative writing class, David wrote three essays that Mershon found disturbing, the last of which Mershon viewed as a personal threat.

David's first essay, “Poor John Redfield," written in the fall of 2004, described a student who had a nocturnal emission, fell and penetrated his anus on a toy, slipped on his own blood and was run over by a bus, which collapsed his head “in a

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red misty explosion." According to David, the moral of the story was “don't have wet dreams or you'll die a horrible death." Mershon returned the essay with comments indicating that she found it offensive and wanted him to make changes.

David wrote his second essay, consisting of two parts, “View Number One" and “View Number Two," around the same time. In “View Number One," he wrote that he usually thought “about life in general, and you know, life is not g rated. There is violence, language, sexual content everywhere." He stated, “Violence is on the news, that doesn't mean its [sic] pornography." In “View Number Two," he criticized an “old fashioned, narrow minded, uncreative, paranoid, ... jealous" English teacher pejoratively named “Mrs. Cuntchenson." He described her as an “old cranky teacher," with “absolutely no comprehension whatsoever of life." He wrote, from her perspective, “If a particular student writes about a violent or gory story, then of course I automatically assume that they have a problem with obsessive focus on sex and potty language." Mershon read the essay and informed David that they should talk about it. Mershon discussed the first two essays with David's mother, Colleen, at a conference and believed that the issue had been resolved.

David titled his third essay “Bowling for Cuntchenson." The essay called Mrs. Cuntchenson a “bitch[ ]" who is “way out of line." The student-narrator is expelled from Mrs. Cuntchenson's English class and dreams about a smoking gun “next to a clump of blood matted hair. The hair belonged to an unrecognizable head." The student wakes up, packs his bag and begins an “interesting day." He eats alone in the cafeteria “like a prisoner sentenced to death. Sitting alone, trying to force down their [sic] last meal into their [sic] nervously wrecked and knotted stomach, knowing all to [sic] well their [sic] wasted life will be ended shortly." In Mrs. Cuntchenson's class, he finds himself “unable to free myself from her satantic grip" and is kicked out of her class, leaving in a “fit of rage," “ready to explode out like a million shards of glass in search of flesh to mangle." He stumbles into a church and bumps into a gun taped underneath a pew. “Maybe it was a sign, a sign from god, a sign that I should do something. Then I got the most horrific idea that I had ever had, but yet, maybe it was the best." The student then, “on a mission," returns to school where the other students had “no idea of what was about to happen." The student raises the gun, aims at Mrs. Cuntchenson and smirks at the “wide eyed look horror [sic] in her face." He winces “as the bullet replaced her left eye. In an instant a red mist was produced from the wound, followed by a stead [sic] flow of blood, tissue, and bone fragments. I felt the warm mist speckle onto my face. The splatter distance was incredible." The student licks his lips and tastes “[b]lood too, her blood, her blood that I had spilt." The student then commits suicide and concludes, “It was all totally worth it." The narrator fades to a movie theater, where he leaves with his friends and discusses the movie they just watched, presumably Bowling for Columbine.3

Mershon required students to submit essays in a personal folder she established for each student in a filing cabinet in her classroom. David alleges that he completed his third essay in early October before placing it in his folder in the filing cabinet.

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Mershon claims she did not see David's third essay until the weekend of January 22 and 23, 2005. When she read it, she felt threatened, scared and hurt. She reported her concerns to the school principal, John Engelking. Engelking suspended David on Monday, January 24. Engelking called Colleen to inform her of David's suspension.

Engelking and Mershon gave David's essays to Cook County Deputy Sheriff Joseph Zallar. Zallar took a statement from Mershon and gave her statement and the essays to Assistant Cook County Attorney Michael Boese and to the Cook County Department of Health and Human Services. Steven Diercks, a Cook County social worker, discussed David's essays with Zallar and Boese. Diercks opened a “Child Welfare Assessment" case with the approval of his supervisor, Ann DeBevec.

On January 25, Diercks prepared two petitions, one for a child in need of protection or services (“CHIPS petition" ), and the other an ex parte petition for emergency protective care (“ex parte petition" ). Diercks based his CHIPS petition on David's essays, particularly the third essay's “veiled threat" and “many threats," and upon Mershon's statement that “she feels very threatened and is very afraid about what this student may do." Diercks stated that David was a “child in need of protection or services," “one whose behavior, condition, or environment is such as to be injurious or dangerous to the child or others." Minn.Stat. § 260C.007, subd. 6(9).

Ordinarily, after a CHIPS petition has been filed, the parties appear before the court voluntarily, or the court issues a summons for a hearing concerning the allegations. Minn.Stat. § 260C.151, subd. 1. An exception exists, however, that allows immediate custody of a child prior to a hearing for “emergency protective care." The statute provides that,

If the court makes individualized, explicit findings, based on the notarized petition or sworn affidavit, that there are reasonable grounds to believe the child is in surroundings or conditions which endanger the child's health, safety, or welfare that require that responsibility for the child's care and custody be immediately assumed by the responsible social services agency and that continuation of the child in the custody of the parent or guardian is contrary to the child's welfare, the court may order that the officer serving the summons take the child into immediate custody for placement of the child in foster care.

Minn.Stat. § 260C.151, subd. 6; seeMinn. R. Juv. Prot. P. 28.02, subd. 1(b). Diercks prepared an ex parte petition for emergency protective care referring to this provision. The ex parte petition also relied on the contents of David's three essays as well as Mershon's concerns and concluded that immediately taking David into protective custody was...

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