Snell v. Tunnell

Citation920 F.2d 673
Decision Date30 November 1990
Docket NumberNo. 88-2879,88-2879
PartiesClark Davenport SNELL; Sharon Ruth Snell, individuals, husband and wife; Jim R. Snell, an individual; Beth Snell, a minor child by her next friends and parents Clark and Sharon Snell; Jason Snell, a minor child by his next friends and parents Clark and Sharon Snell; Brittany Snell, a minor child by her next friends and parents Clark and Sharon Snell; Patricia Jean Turtle, by her next friends and legal guardians Clark and Sharon Snell; and Jesse Sanders, by his next friends and legal guardians Clark and Sharon Snell, Plaintiffs-Appellees, v. Conley TUNNELL; Lissa Vernon; Mary Asbury; the Honorable Sidney D. Brown; and State of Oklahoma ex rel. the Department of Human Services, Defendants, and Michael Sweptson; Barbara Sieck; Benita Levingston; and Pamela Padley, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

David A. Brown, Asst. Gen. Counsel (Charles Lee Waters, Gen. Counsel, Roger Stuart and Richard L. Freeman, Jr., Asst. Gen. Counsel, with him on the brief), Legal Div., Dept. of Human Services, Oklahoma City, Okl., for defendants-appellants.

Marjorie Ramana (Allan DeVore with her on the brief), The DeVore Law Firm, Oklahoma City, Okl., for plaintiffs-appellees.

Before SEYMOUR and BALDOCK, Circuit Judges and SAFFELS, District Judge. *

BALDOCK, Circuit Judge.

We should be careful to get out of an experience only the wisdom that is in it--and stop there; lest we be like the cat that sits down on a hot stove-lid. She will never sit down on a hot stove-lid again--and that is well; but she will never sit down on a cold one any more.

Pudd'nhead Wilson's New Calendar.

M. Twain, Following the Equator ch XI at 107 (Harper Bros. ed.).

Plaintiffs instituted this action seeking injunctive relief and damages under 42 U.S.C. Secs. 1983 & 1985 based upon an investigation by the Oklahoma Department of Human Services (DHS) concerning allegations of child abuse. The district court denied injunctive relief, the Sec. 1985 claim was dismissed, and only four defendants remain after district court proceedings. In this appeal, we are required to decide whether these remaining defendants, DHS employees, are entitled to absolute or qualified immunity for activities which occurred during an investigation of a shelter/home for children operated by plaintiffs-appellees, Clark and Sharon Snell.

Defendants-appellants, Michael Sweptson (County Supervisor; Oklahoma County Child Welfare Field Services, Division of Children and Youth Services (DCYS)), Barbara Sieck (Social Services Supervisor; Oklahoma County Child Welfare Unit), Benita Levingston (Social Worker; Oklahoma County Child Welfare Unit), and Pam Padley (Assistant General Counsel; DHS) appeal from the district court's denial of absolute and qualified immunity. We review the denial of immunity de novo as a final decision under 28 U.S.C. Sec. 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985); McEvoy v. Shoemaker, 882 F.2d 463, 465 (10th Cir.1989).

Given the facts, we agree with the district court that the three non-attorney defendants challenging the denial of absolute immunity (Sweptson, Sieck and Levingston) were acting in an investigative, rather than a prosecutorial capacity, and accordingly, we affirm the denial of absolute immunity for these defendants. On narrower grounds, we affirm the district court's decision that the defendant DHS attorney (Padley) is not entitled to absolute immunity. We determine that defendant Padley, though acting in a prosecutorial capacity, did so without authority when she applied to the district court for assistance with the investigation of the Snells. As to the defense of qualified immunity, we agree with the district court that obtaining a court order, used to gain entry into the Snell home, based upon information known to be false clearly violates the fourth amendment, and a reasonable public official would have known this. Thus, we affirm the denial of qualified immunity for such conduct.

I.

At the outset, we note that our review of the district court's order is limited to deciding whether absolute or qualified immunity was properly denied to these four remaining defendants given the trial court's decision that the plaintiffs could proceed to trial. Snell v. Tunnell, 698 F.Supp. 1542 (W.D.Okla.1988). Although the district court resolved other issues in its lengthy opinion, we do not pass on the merits of the issues which encompass the grant of summary judgment in favor of other defendants, 1 including Mary Asbury (District Supervisor; Child Welfare Field Services, DCYS) and Conley Tunnell (Assistant Director; DHS; DCYS). We also do not pass on claims involving the grant of qualified immunity to the defendants.

In their brief, the Snells have challenged the district court's grant of qualified immunity to the defendants on the Snells' due process (liberty) and privacy claims. Brief of Plaintiffs-Appellees at 37-39. We have recognized the doctrine of pendent appellate jurisdiction to decide otherwise non-appealable issues, see State of Colo. v. Idarado Mining Co., 916 F.2d 1486, 1491-92 (10th Cir.1990); Tri-State Generation & Transmission v. Shoshone River Power, 874 F.2d 1346, 1351-53 (10th Cir.1989), and have applied the doctrine in cases involving claims of immunity to determine that a plaintiff's substantive claims were barred, see Petrini v. Howard, 918 F.2d 1482, 1483 (10th Cir.1990); Hill v. Department of the Air Force, 884 F.2d 1318, 1320 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990); see also Dube v. State Univ., 900 F.2d 587, 598-600 (2d Cir.1990); 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure Sec. 3914.20 (1990 Supp.). However, even assuming that our jurisdiction could extend to a plaintiff's cross-appeal from a defendant's interlocutory appeal of a denial of immunity, see Barrett v. United States, 798 F.2d 565, 571 (2d Cir.1986) (cross appeal of grant of immunity permitted where issues same as direct appeal of denial of immunity to other defendants), the plaintiffs in this case have not filed a cross-appeal. In all of the above cases, the court of appeals considered an exercise of jurisdiction to consider otherwise non-appealable issues raised by an appellant or cross-appellant. Thus, in Idarado, Tri-State, Petrini, Hill, Dube and Barrett, the only pendent issues considered were those raised by an appealing party. In no case did a court reach out to decide an issue when the party adversely affected had not appealed the adverse order. Accordingly, we simply do not have jurisdiction over the due process and privacy issues. Appellate resolution of those issues must await another day.

A.

Plaintiffs Clark and Sharon Snell use their private home as a foster care environment for children whose natural parents are unable to care for them. 2 The Snells' natural and adopted children, as well as children the Snells care for under various guardianship and custody arrangements, reside in the home. On August 26, 1987, defendant Padley applied to the juvenile division of the state district court seeking the court's assistance with a DHS investigation, after the district attorney, who normally would file such an application, refused repeatedly to become involved. The supporting grounds of the application provided in part:

1. DHS has received allegations of neglect, lack of supervision, child prostitution and child pornography in the Snell's home in violation of 21 O.S. Secs. 843-48.

2. DHS has received allegations that the Snells are effectively operating an unlicensed emergency shelter, child care facility, or foster home in violation of the Oklahoma Child Care Facilities Licensing Act, 10 O.S. Sec. 401 et seq.

3. DHS has been unable to complete the child abuse investigation due to lack of cooperation by the Snells.

4. Due to the child abuse allegations and reports received of numerous children being placed into and out of the Snell's home, DHS is concerned regarding the health, safety and welfare of the children residing with the Snells. The number and identity of the children residing with the Snells is unknown.

In re Child Abuse and Licensing Investigations of the Clark and Sharon Snell Home by the Oklahoma Dep't of Human Serv., Application at 1 (Okla. County Dist. Ct. Aug. 26, 1987), reproduced in rec. vol. I, doc. 1, ex. A. Primarily on the strength of the allegations of pornography, prostitution and denial of access to the children, the state district judge issued an ex parte order authorizing DHS personnel, accompanied by the police, to enter the Snell residence and investigate these allegations. In re Child Abuse and Licensing Investigations of the Clark and Sharon Snell Home by the Oklahoma Dep't of Human Serv., Ex Parte Order at 1 (Okla.County Dist.Ct. Aug. 26, 1987), reproduced in rec. vol. III, doc. 114, ex. A. The ex parte order directed that the children in the Snell home be placed in protective custody if the Snells could not produce a valid custody order for each child or if the welfare of the children was endangered. Id. at 1-2. Because the Snells could not produce documents evidencing court-ordered custody, seven children were removed from the home and placed in a juvenile shelter. At a subsequent hearing, the police detective involved in the case testified that the only allegations of child pornography came from defendants Asbury, Levingston and Sweptson. Rec. vol. III, doc. 114, ex. O at 68; see also id., ex. W at 18-19 (tracing pornography and prostitution allegations to defendant Levingston). Although two complaints about the lack of supervision and order at the Snell residence had occurred, Snell, 698 F.Supp. at 1549, the child prostitution and pornography allegations were groundless, assuming arguendo that such allegations were ever received.

B.

The Snells and certain DHS employees have experienced less than an amicable...

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