Donald v. Polk County, 87-1138

Citation836 F.2d 376
Decision Date13 January 1988
Docket NumberNo. 87-1138,87-1138
PartiesWalter W. DONALD, et al., Plaintiffs-Appellants, v. POLK COUNTY, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

David E. Lasker, Buffett, Dew, Blaney, Olson & Lasker, Madison, Wis., for plaintiffs-appellants.

Claude J. Covelli, Boardman, Suhr, Curry & Field, Madison, Wis., for defendants-appellees.

Before WOOD and POSNER, Circuit Judges, and GRANT, Senior District Judge. *

HARLINGTON WOOD, Jr., Circuit Judge.

Dana Donald was taken into protective custody on January 14, 1983 by the Polk County Department of Social Services. Following a probable cause hearing and jury trial finding that Dana had been physically abused, Dana remained in the Department's custody until June 1, 1986, when she returned to her parents' custody. Dana, her parents, Walter and Kathryn, and her siblings brought this action under 42 U.S.C. Sec. 1983, claiming that the defendants--Polk County welfare and law enforcement officers and agencies--violated the Donalds' constitutional rights by removing Dana from their home and improperly investigating Dana's case. The district court held that the Donalds' claims are barred by the doctrine of collateral estoppel and granted summary judgment for the defendants. We affirm.

I. BACKGROUND

The following facts are undisputed. In January 1983, Dana Donald was a ten-year-old epileptic child with a mental age of less than four years. Prior to 1983, agents or employees of defendant Polk County Department of Social Services (Department) had contacted Dana's parents, plaintiffs Walter and Kathryn Donald, on several occasions concerning possible abuse of Dana. 1

On January 13, 1983, school officials contacted Nancy L. Stewart, a Department dispositional worker, and informed her that Dana had two sores on her back that the school officials suspected may have been caused by other than accidental means. Stewart then consulted her supervisor, defendant Calvin G. Schladweiler, and they jointly decided that Stewart would interview Dana on Friday, January 14, 1983.

During her January 14 interview with Dana, Stewart observed two circular lesions on Dana's back, each smaller than a dime. Dana gave four or five different explanations for the injuries on her back. Stewart believed that the injuries may have been intentionally inflicted. Stewart returned to her office and discussed taking Dana into custody with Schladweiler and Dave Sarow, an intake worker. 2 It was decided at that meeting to take Dana into custody to avoid the possibility of further injury.

Stewart picked up Dana at her school and took Dana to a physician, who examined her. Stewart then took Dana to a foster home for the weekend until a probable cause hearing could be held on Monday, January 17. Although the intake form indicated that Stewart notified Dana's parents at 4:00 p.m. on January 14, she did not do so. When Dana did not arrive home on the school bus, the Donalds were greatly concerned and reported to the sheriff that she was missing. Only after prompting by the FBI, the sheriff told the Donalds that Dana was in the custody of the Department. When the Donalds tried to learn more, Stewart merely said that Dana was in protective custody and that she would see them in court on the following Monday.

Pursuant to Wisconsin law, Wis.Stat.Ann. Sec. 48.255, Stewart filed a petition alleging that Dana was in need of protection and services. In this petition, Stewart stated that Dana had two circular lesions on her back and that a physician had stated that the injuries were burns. In addition, the petition stated that Dana had several circular scars on her hands and feet. Stewart also related the injuries to Dana that had been the subject of earlier contacts between the Department and the Donalds.

On Monday, January 17, 1983, a probable cause hearing was held in the state court to determine whether the county should continue to hold Dana in custody. The court found probable cause to keep Dana in custody pending a fact-finding hearing to determine whether Dana was in need of protection.

A jury trial was held on February 11, 1983. The jury returned a verdict that Dana had been physically abused. Concluding that Dana was in need of protection, the state court ordered that she continue in the Department's custody pending a dispositional hearing.

The dispositional hearing was held on March 8, 1983. The state court ordered that Dana be placed in foster care. Dana remained in foster care until June 1, 1986, when she returned to her parents' custody.

II. STANDARD OF REVIEW

The district court granted the defendants' motion for summary judgment. A district court should grant summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In reviewing a grant of summary judgment, we must first determine whether there are any genuine issues of material fact. " '[T]o preclude summary judgment, the nonmoving party must show the disputed fact to be material, that is, it must be outcome-determinative under the applicable law.... [F]acts not outcome-determinative under the applicable law, though in dispute may still permit the entry of summary judgment.' " Wallace v. Greer, 821 F.2d 1274, 1276 (7th Cir.1987) (quoting Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n, 806 F.2d 146, 149 (7th Cir.1986)). We must draw all reasonable inferences in the light most favorable to the nonmoving party. If no genuine issues of material fact exist, we must determine whether summary judgment is correct as a matter of law. Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538, 546 (7th Cir.1987); DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir.1987). In appeals from a grant of summary judgment, a reviewing court may affirm on any ground that finds support in the record. Wallace v. Greer, 821 F.2d at 1277.

To prevail on a claim under section 1983, the Donalds must show that: (1) they held a constitutionally protected right; (2) they were deprived of this right in violation of the Constitution; (3) the defendants intentionally caused this deprivation; and (4) the defendants acted under color of law. 3 Summary judgment is proper against a party who fails to establish the existence of an element essential to his case, and on which that party will bear the burden of proof at trial. As the Supreme Court recently stated: "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

III. ANALYSIS

The Donalds claim that the defendants violated several of their constitutional rights. The Donalds assert that because the defendants took Dana into custody without first providing notice and a hearing, the defendants violated their right to procedural due process under the fourteenth amendment. The Donalds also argue that the defendants deprived them of substantive constitutional rights without due process of law, including the right to family privacy and family life; the right to be offered social services under Chapter 48 of the Wisconsin Statutes; and the right to be free from unreasonable searches and seizures. Finally, the Donalds claim that the defendants violated their right to equal protection under the laws of Wisconsin, contrary to the equal protection clause of the fourteenth amendment. We will consider each of these contentions in turn.

A. Procedural Due Process

The Donalds' most cogent argument is that the Department took Dana into custody without prior notice to her parents 4 or any opportunity for a pre-taking hearing. Drawing all reasonable inferences in the light most favorable to the Donalds, it is nevertheless clear that this claim cannot survive because the Donalds failed to show actual damages resulting from the postdeprivation notice and hearing, an essential element of their claim.

In its opinion, the district court primarily relied on Lossman v. Pekarske, 707 F.2d 288 (7th Cir.1983). That case was similar to the present one in that it involved the taking of children from the custody of their parent, allegedly without good cause. As in this case, the defendants in Lossman picked the children up from school without previously or promptly notifying the custodial parent. There, as here, a hearing was held within the time limit prescribed by Wisconsin law. The hearings in both cases resulted in judicial determinations that the removals were justified.

The fourteenth amendment forbids a state from taking one's life, liberty or property without due process of law. For purposes of ruling on the grant of summary judgment, we will assume that the Donalds were deprived of liberty when the defendants took Dana into custody. 5

We next must consider whether the Donalds were afforded due process of law. In Lossman, this court held that the postdeprivation hearing that Lossman received satisfied due process. Lossman also emphasized that suits under section 1983 are tort damage actions. As in any tort action, a plaintiff under section 1983 cannot survive summary judgment unless he has sustained actual damages. Lossman, 707 F.2d at 290; see Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Cenco Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982). Because the hearing established that Lossman had abused his children, Lossman could not have sustained damages as a result of any delay in the notice or hearing.

Likewise, the Donalds have suffered no actual damages. In the adversarial hearing before the Wisconsin state court on Monday, January 17, 1983, the judge found probable cause that Dana's...

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