912 F.3d 1278 (10th Cir. 2019), 18-1066, Doe v. Woodard

Docket Nº:18-1066
Citation:912 F.3d 1278
Opinion Judge:MATHESON, Circuit Judge.
Party Name:Jane DOE; I.B., Plaintiffs-Appellants, v. April WOODARD, in Her Individual Capacity; Christina Newbill, in Her Individual Capacity; Shirley Rhodus, in Her Individual Capacity; Richard Bengtsson, in His Individual Capacity; El Paso County Board of County Commissioners, Defendants-Appellees, and Reggie Bicha, in His Official Capacity as Executive...
Attorney:Theresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC, Monument, Colorado, for Plaintiffs - Appellants. Kenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant County Attorney, with him on the brief), Colorado Springs, Colorado, for Defendant...
Judge Panel:Before BRISCOE, LUCERO, and MATHESON, Circuit Judges. BRISCOE, Circuit Judge, concurring in part, dissenting in part.
Case Date:January 03, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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912 F.3d 1278 (10th Cir. 2019)

Jane DOE; I.B., Plaintiffs-Appellants,

v.

April WOODARD, in Her Individual Capacity; Christina Newbill, in Her Individual Capacity; Shirley Rhodus, in Her Individual Capacity; Richard Bengtsson, in His Individual Capacity; El Paso County Board of County Commissioners, Defendants-Appellees, and Reggie Bicha, in His Official Capacity as Executive Director of the Colorado Department of Human Services; Julie Krow, in Her Official Capacity as Executive Director of the El Paso County Department of Human Services, Defendants. Parental Rights Foundation; National Center for Housing and Child Welfare; National Coalition for Child Protection Reform; Parent Guidance Center; Mark Freeman; Pacific Justice Institute, Amici Curiae.

No. 18-1066

United States Court of Appeals, Tenth Circuit

January 3, 2019

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Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-01165-KLM)

Theresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC, Monument, Colorado, for Plaintiffs - Appellants.

Kenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant County Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants - Appellees.

Kevin T. Snider, Pacific Justice Institute, Sacramento, California, filed an Amicus Curiae brief for Pacific Justice, in support of Appellants.

Darren A. Jones and James R. Mason, III, Purcellville, Virginia, Martin Guggenheim and Carolyn Kubitschek, Alexandria, Virginia, Diane Redleaf, College Park, Maryland, and Mark Freeman, Media, Pennsylvania, filed an Amici Curiae brief for Parental Rights Foundation, National Center for Housing and Child Welfare, National Coalition for Child Protection Reform, Parent Guidance Center, and Mark Freeman, Esq., in support of Appellants.

Before BRISCOE, LUCERO, and MATHESON, Circuit Judges.

OPINION

MATHESON, Circuit Judge.

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I.B., a minor child, and her mother, Jane Doe (collectively, "Does"), claim that April Woodard, a caseworker from the El Paso County Department of Human Services ("DHS"), a state agency, wrongfully searched I.B. at the Head Start preschool program in Colorado Springs. Without consent or a warrant, Ms. Woodard partially undressed I.B., performed a visual examination for signs of abuse, then photographed I.B.’s private areas and partially unclothed body.

In their lawsuit, the Does alleged that Ms. Woodard and other DHS officials violated the Fourth Amendment’s prohibition on unreasonable searches and the Fourteenth Amendment’s protection against undue interference with parental rights and with familial association. The Defendants moved to dismiss.1 The district court granted the motion, holding that qualified immunity precludes the Fourth Amendment unlawful search claim and that the complaint failed to state a Fourteenth Amendment claim.

The Does appeal these rulings and the district court’s denial of leave to amend their complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual Background

In reviewing the grant of a motion to dismiss, we accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party— here, the Does. Mayfield v. Bethards, 826 F.3d 1252, 1255, 1258 (10th Cir. 2016).

In December 2014, I.B. was attending preschool at the Head Start Program in Colorado Springs.2 An anonymous source reported to DHS possible signs of abuse on I.B.’s body, including bumps on her face, a nickel-sized bruise on her neck, a small red mark on her lower back, two small cuts on her stomach, and bruised knees. DHS caseworker April Woodard responded to the report, arriving to take I.B. to the nurse’s office.3 Allegedly acting on instructions from DHS supervisor Christina Newbill, Ms. Woodard removed

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I.B.’s clothing and visually inspected and photographed I.B.’s buttocks, stomach, and back using a county-issued cell phone.4

The Does alleged that the undressing and photographing were "executed under an unwritten, but well-established county-wide policy or custom encouraging the practice, often without first obtaining parental consent or a court order." Aplt. Br. at 5 (citing Aplt. App., Vol. I at 21-28). They further alleged that Richard Bengtsson, then Executive Director of the El Paso County DHS, issued the policy, and the director of Ms. Woodard’s department, Shirley Rhodus, implemented it.

The following day, Ms. Woodard visited Ms. Doe at home. DHS did not suspect her of abuse, and she cooperated with the investigation. Ms. Woodard did not inform Ms. Doe that she had inspected and photographed I.B. in a state of partial undress. The case was closed as unfounded.

After DHS closed the case, I.B. told her mother about the incident, saying she hoped she would not see Ms. Woodard again because "I don’t like it when she takes all my clothes off." Aplt. App., Vol. I at 17. I.B. later said to Ms. Doe that Ms. Woodard had taken photos of her against her will. Aplt. App., Vol. I at 18. When Ms. Doe approached Ms. Woodard about her daughter’s accusations, Ms. Woodard at first denied them. Two months later, she reversed course and admitted that she did the inspection and took photographs. Ms. Woodard told Ms. Doe that a child abuse accusation and investigation takes priority over the mother’s parental rights.

B. Procedural History

The Does sued under 42 U.S.C. § 1983, alleging violation of I.B.’s Fourth Amendment rights and violations of I.B.’s and Ms. Doe’s Fourteenth Amendment rights.5 The Fourth Amendment claims were based on both the visual inspection and the photographs; the Fourteenth Amendment claims only on the inspection. In addition to Ms. Woodard, the Does named as defendants Ms. Woodard’s supervisors, Ms. Newbill and Ms. Rhodus; Mr. Bengtsson, Executive Director of El Paso County DHS; Reggie Bicha, Executive Director of Colorado DHS; and the El Paso Board of County Commissioners ("BOCC"). The Does sought damages and prospective relief against a "statewide and local policy and custom" encouraging "strip searching children whenever injuries are alleged." Aplt. App., Vol. I at 40. The Defendants moved to dismiss based on qualified immunity and failure to state a claim.

1. Dismissal of Fourth Amendment Claims

A magistrate judge6 concluded Ms. Woodard and her supervisors were entitled to qualified immunity on the Fourth Amendment claim7 and dismissed the claim without prejudice. When the Does sought to file an amended complaint, the court rejected the request on futility grounds and dismissed the claim with prejudice.

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a. Ms. Woodard and Ms. Newbill

The district court dismissed the Fourth Amendment claim against Ms. Woodard and Ms. Newbill because the law was not so "clearly established" as to "give Defendants fair warning that the taking photographs of portions of I.B.’s unclothed body required a warrant." Dist. Court Op. at 16.

To the extent the Fourth Amendment claim was based on the Defendants’ failure to show that the "special needs" doctrine justified the search, the district court recognized that a special needs search comports with the Fourth Amendment only if it is "justified at its inception" and "reasonably related in scope to the circumstances which justified interference in the first place." Id. at 19 (quotations omitted). But, the district court concluded, the Does’ complaint "lack[ed] allegations" the search was unjustified at its inception or was improper in scope. Id.

8

The district court dismissed the Does’ Fourth Amendment claim without prejudice.

b. Ms. Rhodus and Mr. Bengtsson

The district court dismissed the Fourth Amendment § 1983 supervisory liability claim against Ms. Rhodus and Mr. Bengtsson. Because qualified immunity shielded their supervisees, Ms. Woodard and Ms. Newbill, it also shielded them. Id. at 22. The court also dismissed the claim for prospective relief against Ms. Rhodus and Mr. Bengtsson, which demanded safeguards on storing photographs obtained in future searches, because it was based only on a "mere potential violation." Id. at 23-24.

2. Dismissal of Fourteenth Amendment Claims

a. Ms. Woodard and Ms. Newbill

The district court dismissed, for failure to state a claim, the Does’ substantive due process claims under the Fourteenth Amendment for violation of the parental right to direct medical care and of the right to familial association.

i. Right to direct medical care

The district court dismissed the parental rights...

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