Chrissy F. by Medley v. Mississippi Dept. of Public Welfare, 90-1332

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation925 F.2d 844
Docket NumberNo. 90-1332,90-1332
PartiesCHRISSY F., By her next friend and Guardian ad litem Donna MEDLEY, Plaintiff-Appellee, v. MISSISSIPPI DEPARTMENT OF PUBLIC WELFARE, et al., Defendants-Appellants.
Decision Date08 March 1991

James F. Steel, Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, Miss., for all defendants-appellants except Douglass.

Thomas D. McNeese, Aultman, Tyner, McNeese & Ruffin, Ltd., Columbia, Miss., for Richard L. Douglass.

Daniel S. Mason, Furth, Fahrner & Mason, Sheila Brogna, Children's Law Offices, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RUBIN, JOHNSON, and BARKSDALE, Circuit Judges:

ALVIN B. RUBIN, Circuit Judge:

An eight-year-old child seeks injunctive and declaratory relief against two judges, a state district attorney, and various state and county welfare departments and their employees, as well as damages from the district attorney and the welfare department employees, alleging that each of them in various ways failed to report, investigate, or take any action in response to repeated reports that she had been sexually abused by her father. All of the defendants appeal the district court's denial of their motions to dismiss, and the district attorney also appeals denial of his motion for summary judgment, on the grounds of Eleventh Amendment immunity and absolute and qualified personal immunities. If the allegations of the complaint are proved, the state-official defendants violated at least some of Chrissy's clearly established constitutional rights, and we therefore affirm the denial of the motion to dismiss insofar as it seeks damages from those officials. We affirm the denial of the district attorney's motion for summary judgment because the district court correctly held that there are genuine disputes of material fact and that, if Chrissy's allegations are proved, the district attorney would be liable for some of his actions in his individual capacity. Lacking jurisdiction, we refuse to consider the arguments: (1) that the complaint fails to state a claim for which relief could be granted because the district court's denial of the motion to dismiss on that ground is interlocutory and not appealable; and (2) that the district court should have granted the defendants immunity from declaratory and injunctive relief.

I.

These are but a few of the facts well pleaded in the 81-page complaint. On review of a district court's denial of dismissal for failure to state a claim for which relief can be granted, we must accept as true all well-pleaded facts. The complaint is not subject to dismissal "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 1 The same rule applies when immunity is urged as a defense by a motion to dismiss. 2

In August 1984, Dorrie Singley, the mother of Chrissy F., who was then two years old, initiated divorce proceedings in the Chancery Court of Marion County against her husband, Chrissy's father, Timothy Foxworth, because she had allegedly seen Foxworth sexually molesting their daughter. Chancellor Sebe Dale awarded custody of Chrissy to her mother and gave Foxworth visitation rights. Shortly thereafter, Chrissy resisted visits with Foxworth and began complaining of genital pain. Singley took her to a hospital emergency room, where Dr. William Bradford found symptoms consistent with sexual molestation and filed a Report of Suspected Battered Child (DPW-440) with the Hancock County Welfare Department (HCWD). Bridget Logan, a social worker at HCWD, referred Chrissy to Dr. R. Bryant McCrary, who after examining her filed a DPW-440 with the Mississippi Department of Public Welfare (MDPW), stating that Chrissy's symptoms were "very suspicious of child abuse." Social Worker Logan telephoned Chancellor Dale and informed him of Dr. McCrary's report and recommendations. Chancellor Dale, however, refused to take any action or to dismiss the Chancery Court proceedings and forward all relevant documents to the Youth Court as required by the Mississippi Youth Court Law whenever an abused child is involved. 3 Neither HCWD nor MDPW further investigated the medical reports or referred the matter to the Hancock County Youth Court, the Youth Court Prosecutor, or the District Attorney.

A Hancock County Assistant District Attorney interviewed Chrissy in November 1986, and wrote to the District Attorney of Marion County Richard Douglass, urging him to prosecute Foxworth for abusing Chrissy. Singley had twice previously sought assistance from D.A. Douglass, but he had neither reported the matter to MDPW nor conducted any further investigation into the allegations of abuse. Although he received copies of the doctors' reports in November 1986, D.A. Douglass again failed to report or investigate the matter.

In December 1986, Foxworth filed a petition for modification of custody; Singley brought countercharges of abuse. In August 1987, Chancellor Dale awarded Foxworth paramount custody of Chrissy, finding that Singley's lifestyle subjected Chrissy to detrimental influences and that there was "no credible evidence that Chrissy [had] been sexually abused." Shortly thereafter, Dr. Rebecca Russell at Children's Hospital in New Orleans performed a colposcopic examination on Chrissy, which yielded conclusive evidence of sexual molestation. Dr. Sylvia Strickland, a leading expert in the field, later reviewed the films taken of Chrissy and confirmed Dr. Russell's findings. Chancellor Dale, however, denied a motion for a new trial based on these findings. Singley met with D.A. Douglass once again and sent him Dr. Russell's report, but he neither investigated the matter nor reported it to MDPW or the Youth Court, as required by the Mississippi Youth Court Law. 4

On August 27, Singley filed a motion to reopen the custody hearing in Chancery Court, a second motion seeking appointment of a guardian ad litem for Chrissy, and a motion to recuse Chancellor Dale. None of these motions was acted upon. Instead, Chancellor Dale found Singley in contempt of court for failing to return Chrissy to her father's custody. Singley thereupon placed Chrissy in the care of friends and went into hiding.

Singley's attorney filed a Certificate of Appeal from the child-custody ruling in the Mississippi Supreme Court. She also wrote to Chancellor Dale, requesting that, to perfect the appeal, he sign an order ruling on the August 27 motions, but Dale never did so.

Two months later Singley died of a brain aneurysm. In November, Chancellor Dale denied Singley's lawyer's motion to substitute Singley's grandmother as her representative in her appeal and the appeal was dismissed.

In December, the family who had been taking care of Chrissy took her to California where they presented evidence of molestation to the San Francisco Department of Social Services (DSS) and the California Court for the County of San Francisco. A court-appointed psychiatrist reported that Chrissy had recounted incidents of sexual molestation by her father. The California Court issued a detention order and placed Chrissy in the temporary custody of DSS in the home of Donna Medley. Subsequently, the California Court decided to permit Chrissy's return to Mississippi with the following conditions: 1) she be placed in a neutral and stable setting, not with any maternal or paternal relatives; 2) she be physically and psychologically evaluated and all treatment recommendations be followed; 3) a qualified attorney be appointed her guardian ad litem; 4) a petition for proceeding in the Mississippi Youth Court be filed by MDPW before Chrissy's return to Mississippi; and 5) Chrissy have no contact with her father until so ordered by the Mississippi Court. Both Chancellor Dale and Thomas H. Brittain, the MDPW Commissioner, agreed to these conditions. Chancellor Dale entered an order which held the earlier Chancery Court award of custody to Foxworth "in abeyance" until the Mississippi Youth Court concluded its proceedings.

In accordance with what he contends was an order of Chancellor Dale, D.A. Douglass appeared at the California Court hearing, assured the Court that he would comply with its conditions, assumed temporary custody of Chrissy, and brought her back to Mississippi where she spent the night at Douglass's home. She was visited there by her paternal grandmother and aunt and her father, all with Douglass's approval, despite the express condition of the California court order, agreed to by Chancellor Dale, that she have no contact with her father until a court order permitted it.

The following day, Chancellor Dale ordered evaluations of Chrissy by a doctor and psychiatrist, both of whom had previously examined her and decided that she had not been abused. Chancellor Dale also ordered that Chrissy be placed in the home of her paternal grandmother, to which her father had unlimited access. Neither the Youth Court, any guardian ad litem, nor the California court was notified, nor were these orders made in the course of a judicial proceeding.

Meanwhile, the County Attorney and Youth Court Prosecutor had filed a petition in the Youth Court for temporary custody of Chrissy. Youth Court Referee Garland Upton thereupon appointed two guardians ad litem and ordered that MDPW assume temporary custody of Chrissy. On December 30, Upton presided over a hearing regarding Chrissy. Neither Chrissy's guardians ad litem, D.A. Douglass, MDPW, nor Chancellor Dale introduced into evidence any of the medical reports substantiating the charges that Chrissy had been abused. Based on evidence presented by the County Attorney, who is charged with prosecuting Youth Court proceedings, 5 the Youth Court recommended that Chrissy remain in the legal custody of her father, but cared for on a daily basis by her paternal grandmother. The...

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