Mueller v. Auker

Decision Date10 August 2009
Docket NumberNo. 07-35554.,07-35554.
Citation576 F.3d 979
PartiesEric MUELLER; Corissa D. Mueller, husband and wife individually and on behalf of Taige L. Mueller, a minor, and on behalf of themselves and those similarly situated, Plaintiffs-Appellees, v. April K. AUKER; Barbara Harmon; Janet A. Fletcher; Kimberly A. Osadchuk; Linda Rodenbaugh; Karl B. Kurtz; Ken Diebert; City of Boise, Defendants, Ted Snyder; Tim Green; Richard K. MacDonald; Saint Luke's Regional Medical Center, Ltd., Defendants, and Dale Rogers, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Kirtlan G. Naylor, Naylor & Hales, P.C., Boise, ID, for the defendant-appellant.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-04-00399-BLW.

Before J. CLIFFORD WALLACE, STEPHEN S. TROTT, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge TROTT; Partial Concurrence and Partial Dissent by Judge WALLACE.

TROTT, Circuit Judge:

Detective Dale Rogers made a decision permitted by Idaho law to remove temporarily a sick infant from the custody of her parents in order to secure a medical diagnostic test and prophylactic treatment, procedures which pediatric doctors advised Rogers were both necessary and within the standard of care for the infant's situation. At the time, the child had been taken to St. Luke's hospital in Boise, Idaho, by her mother, while her father, Eric Mueller, remained at home to care for the couple's other child. Detective Rogers intervened at the behest of hospital doctors after the child's mother, Corissa Mueller, refused to consent to the recommended procedures. Eric Mueller was not given pre-deprivation notice of the detective's intentions or post-deprivation notice by Detective Rogers, and the Muellers's child received a medical test and treatment in Eric Mueller's absence.

Eric Mueller sued Detective Rogers, claiming that he was deprived of (1) his substantive due process rights, and also (2) his individual procedural due process rights to both pre- and post-deprivation notice in connection with the detective's decision. Corissa Mueller's causes of action are not part of this appeal.

As a defense, Detective Rogers timely asserted qualified immunity. The district court (1) ruled with respect to both parties' competing motions for summary judgment on the Muellers's substantive due process claims that a genuine issue of material fact existed as to whether the child was in imminent danger when Detective Rogers made his decision, (2) granted nonetheless Rogers's request for qualified immunity on those substantive due process claims, (3) denied Rogers's request for qualified immunity on Eric Mueller's procedural due process claims, and (4) granted summary judgment to Eric Mueller on his procedural due process claims on the ground that Rogers's failure timely to notify him both before and immediately after the deprivation of custody violated his constitutional rights as a matter of law.

In this appeal, Rogers asks us (1) to reverse the district court's grant of summary judgment in favor of Eric Mueller's procedural pre-deprivation and post-deprivation notice due process claims, and (2) to rule in his favor on those claims on the ground of qualified immunity.

We have jurisdiction over this timely appeal, and we conclude (1) that the district court erred in granting summary judgment to Eric Mueller on his procedural due process claims as a matter of law, and (2) that Detective Rogers is shielded by qualified immunity from those same claims. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I BACKGROUND

The facts that accompany this appeal are largely undisputed. They are as follows.

On August 12, 2002, Corissa Mueller's five-week-old infant, Taige Mueller, developed a fever. Throughout the course of the evening, Corissa Mueller consulted with the child's naturopathic physician, Dr. Karen Erickson, via telephone. Mother and physician grew concerned when the child's fever rose from roughly 99 degrees at 8:00 p.m. to 100.8 degrees by around 9:00 p.m. In light of Taige's age, elevated temperature, and poor appetite, Dr. Erickson recommended that Corissa Mueller have the infant examined to rule out such conditions as an ear infection, a urinary tract infection, or possibly meningitis. Dr. Erickson, who had no hospital privileges, informed Corissa Mueller that, if she took Taige to an emergency room, doctors would likely want to conduct a chest x-ray, urinalysis, and blood tests as well as "automatically" begin an antibiotic regimen and perform a spinal tap, which is a diagnostic test used to determine if a patient has meningitis.

Corissa Mueller discussed the possibility of a spinal tap and the administration of antibiotics with her husband, Eric Mueller. The Muellers believed they would have the authority to withhold consent or at least obtain a second opinion if an emergency room doctor suggested a course of treatment with which they were uncomfortable. In response to Corissa Mueller's expression of concern regarding a spinal tap and administration of antibiotics, Dr. Erickson suggested that, should the situation arise, Corissa Mueller could consent to a chest x-ray, urinalysis, and blood tests right away, but wait until the results of these initial tests were returned before consenting to the spinal tap and antibiotics. In his deposition, Eric Mueller explained that he and his wife weighed their options and determined that taking Taige to the emergency room "would be the safe thing to do."

At around 10:00 p.m., while Eric Mueller remained at home with the couple's young son, Corissa Mueller took Taige to the emergency room at St. Luke's Hospital in Boise, Idaho. Upon admitting Taige, Corissa Mueller provided the hospital with her husband's name, stated that he was Taige's father, and gave the hospital the address and telephone number where she and her husband lived. In her deposition, Corissa Mueller explained that she remained in telephone contact with Dr. Erickson and called her "a handful of times" throughout the night.

In the emergency room, Dr. Richard MacDonald examined the infant, observing that she had a temperature of 101.3, appeared ill, and was slightly lethargic and fussy with a delayed capillary refill and a slight rash. Concerned Taige may have meningitis or another serious bacterial infection, Dr. MacDonald recommended Taige undergo a full septic work-up, including various lab tests and a spinal tap and begin an antibiotic regimen. Dr. MacDonald emphasized that time was of the essence to perform the spinal tap and administer antibiotics because "these babies can go from bad to worse very quickly."

Despite Dr. MacDonald's warning that there was a five percent chance Taige had contracted meningitis, Corissa Mueller, though not a medical professional, believed through her own research that the risk was likely less than one percent. She further believed the risks associated with administering antibiotics and performing a spinal tap outweighed the probability that Taige had meningitis. Although Corissa Mueller consented to the performance of a chest x-ray and to the blood work, urinalysis, and stool sample, she withheld consent for the spinal tap and antibiotics, expressing her preference to "wait until the initial lab results got back, or at least until ... [Taige] got worse...."

At around 11:00 p.m. the results of Taige's lab tests became available. The results ruled out a urinary tract infection and ear infection, but no test had been administered which could rule out meningitis. Corissa Mueller understood the only way to rule out meningitis was to perform a spinal tap. By that time, Taige had received intravenous fluids, her temperature had fallen to 98.9 degrees, and she began to nurse again. Corissa Mueller could find no reason to consent to further treatment. She rejected Dr. MacDonald's offer to obtain a second medical opinion. Without consulting her husband, she denied permission to the doctors to take any further diagnostic steps.

In response to Corissa Mueller's refusal to consent to the recommended procedures, Dr. MacDonald consulted with board-certified pediatrician Dr. Noreen Womack, who agreed that for five-week-old infants with Taige's symptoms the standard of care was to perform a spinal tap and administer antibiotics. Dr. Womack recommended that Dr. MacDonald contact a social worker if Corissa Mueller continued to withhold her consent. Dr. MacDonald contacted hospital social worker Bob Condon. Citing the hospital's policy regarding the duties of a social worker, Condon decided to contact both Child Protective Services (CPS), a division of the Idaho Department of Health and Welfare, and law enforcement. Though the policy upon which Condon relied did not forbid contacting a magistrate judge, neither did it require it. At 11:39 p.m., Condon called April Auker, the on-call Risk Assessment Worker for CPS. Also, Condon contacted police officers Ted Snyder and Tim Green, who were present in the hospital.

At around 12:00 a.m. on August 13, Auker arrived at the hospital emergency room. Dr. MacDonald spoke with Auker, Officer Snyder, and Officer Green about Taige Mueller's condition. A transcript of the conversation recorded on Officer Snyder's belt recorder reveals Dr. MacDonald explaining:

[I]f I took a hundred kids with the same presentation probably 95 percent of them would end up having just some viral illness; will get better in a couple of days; would be fine. I know that about 5 out of those 100 if I let them go home will die. Will die of meningitis ... if I practice medicine the way she[Corissa Mueller] is wanting me to practice it, I would ... I'd lose five out of a hundred kids. See what I'm saying?

Dr. MacDonald explained to Auker...

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