Kiser v. Garrett

• Decision Date: 19 October 1995
• Docket Number: No. 94-11090,94-11090
• Citation: 67 F.3d 1166
• Parties: Charles KISER, Jr., and Cody Kiser, Plaintiffs-Appellants, v. Pam GARRETT, et al., Defendants, Pam Garrett, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1166

67 F.3d 1166

Charles KISER, Jr., and Cody Kiser, Plaintiffs-Appellants, v. Pam GARRETT, et al., Defendants, Pam Garrett, et al., Defendants-Appellees.

No. 94-11090.

United States Court of Appeals, Fifth Circuit.

Oct. 19, 1995.

George D. Oleson, Fayetteville, AR, Thomas T. Williams, San Angelo, TX, for appellants.

Edwin N. Horne, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellees.

Esperanza Bravo, San Angelo, TX, pro se.

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

Before BARKSDALE, BENAVIDES and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This action arises out of a child being temporarily removed from his home during an investigation of possible child abuse; at issue is a summary judgment dismissing substantive and procedural due process claims, springing from a claimed liberty interest in living peaceably in a family, against several members of the Texas Department of Human Services (DHS). ¹ Because the claimed constitutional rights were not clearly established at the time in issue, the appellees are shielded by qualified immunity. Therefore, we AFFIRM.

I.

Before 7:00 a.m. on November 14, 1991, Charles Kiser, Jr., (Kiser) took his ten-week-old son, Cody, to the child's regular sitter, Esperanza Bravo, who operated a DHS registered day-care facility; Cody had been in day-care there for about a month. ² Later that morning, at approximately 10:45, Kiser picked up Cody from the Bravo home for a scheduled medical appointment, arriving at Dr. Herbert's office approximately 15 minutes later. Dr. Herbert examined Cody and prescribed medication for an ear infection, but noted no distress or other evidence of injury. ³ Kiser then returned Cody to the Bravo home (around noon).

At approximately 2:00 p.m. that day, Cody's mother picked him up from the Bravo home. When they reached home about ten minutes later, Cody seemed upset; his mother discovered that his right arm was swollen. She took Cody to Dr. Schultz, who diagnosed a fresh fracture of Cody's right forearm. Cody was admitted to the hospital for evaluation and treatment; x-rays revealed evidence of a partially healed prior fracture of his left arm, and an injury to his left leg. ⁴

On November 15, as required by Texas law, Dr. Schultz reported, to DHS, Cody's unexplained injuries, which suggested the possibility of abuse. Appellee Stinson assigned appellee Garrett to conduct an investigation. Garrett interviewed Dr. Schultz, who, according to Garrett's affidavit, stated that the cause of the fracture was consistent with a severe blow, rather than as a result of someone pulling on Cody's arm. ⁵

Garrett interviewed the Kisers at the hospital, and advised them that an ex parte court hearing was scheduled later that afternoon regarding temporary custody. After the hearing, Garrett took physical custody of Cody pursuant to a court order granting DHS temporary protective custody pending an investigation into the causes of Cody's injuries. Cody was placed in a foster home after his release from the hospital. ⁶

Appellee Bussey was assigned to investigate the Bravo facility with respect to whether Cody's injuries could have been caused while he was there. ⁷ On November 18, Bussey visited the Bravo household and interviewed Mrs. Bravo, her husband, and their daughter. Bussey also interviewed a child in Mrs. Bravo's care and several parents of other children in her care; none of the parents reported any suspicion of mistreatment of their children at the Bravo home. ⁸ Also on November 18, Bussey and Davis interviewed Kiser; ⁹ and, on November 26, he took a polygraph examination, which yielded inconclusive results. On the advice of his attorney, Kiser refused to submit to another.

On December 10, the state court ordered Kiser to move out of his home and permitted Cody to return there with his mother. But, three days later, Cody was removed from his home again, and placed in foster care. On March 19, 1992, the state court granted Cody's paternal grandmother's request to be appointed temporary possessory conservator, and ordered that the Kisers have unlimited supervised visitation. Cody was placed in his grandmother's custody on March 22, where he remained until he returned to his home (that May).

Earlier, in January 1992, on the recommendation of Dr. Herbert, the Kisers obtained court authorization to have tests conducted on Cody to determine whether he suffered from osteogenesis imperfecta, a genetic defect. The tests were completed in May 1992, ruling out that possibility. Thereafter, on May 19, the custody proceedings were dismissed; and, as noted, Cody was allowed to return home. A criminal investigation of Kiser was concluded in October 1992. The appellees made no final determination as to who was responsible for causing Cody's injuries.

In late 1993, Kiser filed suit against the appellees and others under 42 U.S.C. Sec. 1983, claiming violation of a Fourteenth Amendment due process right not to be deprived of a liberty interest in living peaceably in a family. ¹⁰ The appellees moved to dismiss, asserting, inter alia, qualified immunity. But, the district court entered an order the next day, requiring that any motion to dismiss or for summary judgment on qualified immunity be filed within 30 days. The appellees then moved for summary judgment, again asserting qualified immunity.

The early motion to dismiss was denied without explanation; the district court later denied the appellees' motion for clarification of whether the order had denied their qualified immunity defenses. During the pendency of the appellees' interlocutory appeal of that order, however, the district court granted their summary judgment motion. The court acknowledged that the appellees had asserted qualified immunity defenses, but declined to consider them, holding instead that, as a matter of law, a right to due process was not violated because Kiser received notice and a hearing before the appellees removed Cody from the Kisers' home, and other hearings were conducted while Cody was temporarily out of the home.

II.

Kiser contends that the district court erred both by failing to address the substantive due process claims and by granting summary judgment against the procedural due process claims. Kiser stresses that he does not challenge the appellees' actions in removing Cody from his home, but asserts, instead, that the appellees, by continuing their investigation of Kiser long after they were in possession of information that conclusively showed that he could not have been responsible for Cody's injuries, violated the substantive due process right to family integrity. The procedural due process claim is based on the appellees' alleged withholding of exculpatory evidence. The appellees counter that, inter alia, the summary judgment should be affirmed on qualified immunity grounds.

After the summary judgment, our court, on the appellees' motion, dismissed their interlocutory appeal from the denial of their motion to dismiss. Kiser contends that the appellees waived their qualified immunity defenses when they dismissed that appeal. We disagree. Qualified immunity is not waived when a defendant fails to take an interlocutory appeal and, instead, subjects himself to discovery and trial. Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir.1988). It would be anomalous to conclude that a defendant waives a qualified immunity defense by dismissing as moot an interlocutory appeal that the defendant was not required to take in the first place.

In any event, in addition to raising qualified immunity in their motion to dismiss, the appellees raised it in their summary judgment motion. Although the district court did not rely on qualified immunity in granting summary judgment, it is more than well-settled that an appellee generally may urge in support of a judgment any matter appearing in the record. E.g., City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 n. 4 (5th Cir.1976). Likewise, we may affirm a summary judgment on issues raised in the district court, even if not relied on by it. See, e.g., Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1146 (5th Cir.1993). ¹¹

In considering qualified immunity claims, we apply a well-established two-part analysis; this appeal involves only the first part. "We must first determine whether the plaintiff[s] ha[ve] 'allege[d] the violation of a clearly established constitutional right' ". Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993) (quoting Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)). Because "many general constitutional rights ... are clearly established and yet so general that it often will be unclear whether particular conduct violates the right[,] ... the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right". Hodorowski v. Ray, 844 F.2d 1210, 1216-17 (5th Cir.1988). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ...; but it is to say that in light of pre-existing law the unlawfulness must be apparent". Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). ¹²

A.

Kiser acknowledges that the State had a compelling interest in taking custody of Cody when his unexplained injuries were discovered. He maintains, however, that the appellees soon became aware through their investigation that he could not have caused Cody's injuries, and that the injuries were most likely to have occurred while Cody was in the physical control of Mrs. Bravo. ¹³ Kiser contends that the appellees, by continuing their investigation of Kiser and maintaining custody of Cody...