94 F.3d 1446 (10th Cir. 1996), 95-2092, Garramone v. Romo

Docket Nº:95-2092.
Citation:94 F.3d 1446
Party Name:Jeri GARRAMONE, individually and Jeri Garramone as guardian and next friend of Judy Garramone, a minor, Plaintiff-Appellee, v. Carla ROMO, Georgia Sanchez, Charlene Watson, Pete Adolph, Cindy Clark, Richard Griscomb, Angela Adams, Richard Heim, Defendants-Appellants, and Michael J. Caplan, Judy Jones, Defendants.
Case Date:August 27, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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94 F.3d 1446 (10th Cir. 1996)

Jeri GARRAMONE, individually and Jeri Garramone as guardian

and next friend of Judy Garramone, a minor,



Carla ROMO, Georgia Sanchez, Charlene Watson, Pete Adolph,

Cindy Clark, Richard Griscomb, Angela Adams,

Richard Heim, Defendants-Appellants,


Michael J. Caplan, Judy Jones, Defendants.

No. 95-2092.

United States Court of Appeals, Tenth Circuit

August 27, 1996

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[Copyrighted Material Omitted]

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Paula I. Forney, Legal Bureau/RMD, State of New Mexico, Santa Fe, New Mexico, for Appellants.

Jonathan E. Zorn (Chris Lackmann, with him, on the briefs), Albuquerque, New Mexico, for Appellee.

Before SEYMOUR, Chief Judge, TACHA and EBEL, Circuit Judges.

TACHA, Circuit Judge.

Jeri Garramone temporarily lost custody of her daughter as a result of a New Mexico civil neglect proceeding. After regaining custody, Garramone brought this suit under 42 U.S.C. §§ 1983 and 1985, alleging that employees of the New Mexico Human Services Department ("HSD") and an attorney retained by HSD wrongfully prosecuted her for neglect and obtained custody of her daughter in violation of her federal constitutional and statutory rights. The district court either dismissed or granted summary judgment in favor of the defendants on all claims except for the claims for prospective relief against all the HSD defendants in their official capacities and two of the claims against HSD defendants Carla Romo and Georgia Sanchez in their individual capacities. We exercise jurisdiction under 28 U.S.C. § 1291 to reverse in part and affirm in part.


Jeri Garramone resided in Grants, New Mexico, with her two children, Judy (age 14) and David (age 10), and her husband and the children's stepfather, Anthony Garramone. Jeri Garramone was a reservist in the United States Army, and in November 1990 the Army called her reserve unit to active duty and sent her to Saudi Arabia to serve in Operation Desert Shield-Desert Storm. When Garramone was sent overseas, she entrusted her children to the care of their stepfather, Anthony.

On February 18, 1991, while Garramone was still overseas, Anthony sexually abused Judy. Judy and her brother David immediately reported the incident to the Grants Police Department, and the police arrested Anthony and referred the case to HSD. HSD assigned the case to defendant Carmela Romo. Defendant Georgia Sanchez, Romo's immediate supervisor, performed administrative and investigative functions in the case. On February 20, 1991, HSD initiated civil abuse and neglect proceedings and petitioned for temporary physical and legal custody of Judy and David. The state court granted the petition by ex parte order the following day and scheduled a hearing within ten days to address continued custody. The two children were temporarily placed in a foster home.

Romo contacted Garramone on February 21 and notified her that Anthony had sexually abused Judy. On February 24, Garramone arrived in Grants on a thirty-day emergency leave from military duty. She soon discovered that Romo considered her, as well as her husband, to be at fault in failing to provide Judy with proper parental care. Garramone told Romo that she had arranged for her parents in Indiana to take custody of the children until she permanently returned from active duty. HSD agreed to this arrangement on the condition that Garramone sign a stipulated judgment finding her guilty of neglect, which she signed prior to the ten-day hearing.

During her thirty-day emergency leave, Garramone attended two state court hearings: a combined custody and neglect hearing on February 28, 1991, and a disposition hearing on March 8, 1991. She was not represented by counsel at either hearing, and alleges that neither the state court nor any HSD representative advised her of her right to counsel or offered to appoint counsel. At the conclusion of the disposition hearing, HSD maintained both physical and legal custody over Judy, but allowed both children to reside with Garramone's parents.

Garramone returned to active military duty until June 4, 1991. The Army reassigned her to Fort Carson, Colorado, and thus she never returned to the Persian Gulf, moving instead to Colorado where, at some point, she reunited with Anthony. The New Mexico state court conducted further hearings on the neglect case and granted Garramone physical custody of Judy on September

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10, 1991. Almost two years later, in May of 1993, HSD dismissed the case and returned legal custody of Judy to Garramone. In sum, HSD deprived Garramone of physical custody of her daughter for about six months and legal custody for about twenty-six months.

On February 18, 1994, Garramone and her daughter filed suit under 42 U.S.C. §§ 1983 and 1985 alleging that Michael Caplan, an attorney hired by HSD as an independent contractor, and numerous HSD employees violated their rights under the First, Fourth, and Fourteenth Amendments to the Constitution, the Soldiers' and Sailors' Civil Relief Act of 1940 ("SSCRA"), 50 U.S.C.App. §§ 520(3) & 521, and the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628 & 670-679a. Caplan filed a motion to dismiss for lack of subject matter jurisdiction, and the HSD defendants filed a motion to dismiss that the court later converted into a motion for summary judgment.

The district court dismissed all claims against Caplan on grounds of absolute immunity. The court granted summary judgment on all claims as to all HSD defendants in their individual capacities on the basis of qualified immunity, with the exception of the claims against Romo and Sanchez for alleged violations of Garramone's right to procedural due process and rights under the SSCRA. The court also granted summary judgment in favor of all HSD defendants in their official capacities on all claims for monetary relief on the basis of Eleventh Amendment immunity, but denied summary judgment to those defendants on all claims for prospective relief. Defendants now appeal, arguing that the district court erred in (1) finding that defendants Romo and Sanchez were not entitled to qualified immunity with regard to the procedural due process and SSCRA claims, (2) failing to dismiss the claims for prospective relief against the HSD defendants in their official capacities, and (3) failing to apply res judicata or collateral estoppel to the claims.


We begin by evaluating Romo's and Sanchez's contention that they are entitled to qualified immunity on Garramone's procedural due process and SSCRA claims. We analyze assertions of qualified immunity under a two-part framework: first we determine whether the plaintiff has asserted a violation of a constitutional or statutory right, and then we decide whether that right was clearly established such that a reasonable person in the defendant's position would have known that her conduct violated the right. Shinault v. Cleveland County Bd. of County Comm'rs, 82 F.3d 367, 370 (10th Cir.1996); see Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991). Garramone asserts that Romo and Sanchez violated her right of procedural due process by failing to inform her that she had a right to counsel. The Constitution guarantees a right to counsel only in certain situations. In both criminal and civil cases, for example, litigants have a presumed right to counsel when they could lose their physical liberty if they lose the litigation. See Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1161-62, 59 L.Ed.2d 383 (1979) (criminal defendant has Sixth Amendment and Fourteenth Amendment right to appointed counsel where she faces actual imprisonment if convicted); Vitek v. Jones, 445 U.S. 480, 496-97, 100 S.Ct. 1254, 1265-66, 63 L.Ed.2d 552 (1980) (inmate subject to involuntary administrative transfer to a mental hospital has a Fourteenth Amendment right to representation by either an attorney or qualified independent layperson).

In proceedings where litigants are not directly threatened by a loss of physical liberty, a presumption arises against their right to appointed counsel. Lassiter v. Department of Social Servs., 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159-2160, 68...

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