Doe v. Bagan, 1

• Decision Date: 15 November 1994
• Docket Number: No. 93-1120,D,No. 1,1,93-1120
• Citation: 41 F.3d 571
• Parties: 95 Ed. Law Rep. 907 John DOE, a minor, and as next best friend and guardian, Ruth Rios; Ruth Rios, individually, Plaintiffs-Appellants, v. Joseph BAGAN; Loretta Higa; Adams County Department of Social Services, named as Adams County Social Services Department; Adams County, Board of County Commissioners, Defendants-Appellees, and Judith Graham, Phyllis Berti, Ken Larusso, Kevin Callison, Ellen Haug, David Lopez, as individuals and members of the Board of Adams County School District; Adams County School District, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 571

41 F.3d 571

95 Ed. Law Rep. 907

John DOE, a minor, and as next best friend and guardian, Ruth Rios; Ruth Rios, individually, Plaintiffs-Appellants, v. Joseph BAGAN; Loretta Higa; Adams County Department of

Social Services, named as Adams County Social

Services Department; Adams County,

Board of County Commissioners,

Defendants-Appellees,

and

Judith Graham, Phyllis Berti, Ken Larusso, Kevin Callison,

Ellen Haug, David Lopez, as individuals and members of the

Board of Adams County School District No. 1; Adams County

School District No. 1, Defendants.

No. 93-1120.

United States Court of Appeals, Tenth Circuit.

Nov. 15, 1994.

Robert M. FitzGerald, Denver, CO, for plaintiffs-appellants.

Sylvia V. Kirk, Asst. County Atty., Robert J. Loew, Adams County Atty., Brighton, CO, for defendants-appellees.

Before MOORE and BRORBY, Circuit Judges, and VRATIL, ^* District Judge.

VRATIL, District Judge.

Plaintiffs, a mother and her minor son, brought suit under 42 U.S.C. Sec. 1983 in the United States District Court for the District of Colorado against two caseworkers for the Adams County Department of Social Services as individuals, the Adams County Department of Social Services, and the Adams County Board of County Commissioners for damages arising from the investigation of the son, John Doe, on suspicion of possible child abuse. Plaintiffs' complaint alleged a variety of constitutional violations as well as various state-based tort law claims. The case was initially reviewed by a United States magistrate judge who determined that the Sec. 1983 claims should be dismissed because plaintiffs failed to allege the deprivation of any rights protected by the Constitution. The district court accepted the recommendations of the magistrate judge and granted defendants' motion for summary judgment on the federal claims. It then dismissed the state law claims for want of subject matter jurisdiction.

On appeal, ¹ plaintiffs confine their argument to two areas: they contend that defendants violated John Doe's right to due process and his right to privacy. Because we agree with the district court that plaintiffs have failed to identify a constitutional right which defendants have abridged, we affirm.

We review a grant of summary judgment de novo, using the same standards as those relied on by the district court. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). We therefore determine whether the showing made by plaintiffs is sufficient to establish the existence of the elements essential to their case, and on which they would bear the burden of proof at trial. Edwards ex rel. Edwards v. Rees, 883 F.2d 882, 883 (10th Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). "To state a valid cause of action under Sec. 1983, a plaintiff must allege the deprivation by defendant of a right, privilege, or immunity secured by the Constitution and laws of the United States while the defendant was acting under color of state law." Hill v. Ibarra, 954 F.2d 1516, 1520 (10th Cir.1992).

Plaintiff John Doe, a nine-year-old boy at the time of this incident, came to the attention of the Adams County Department of Social Services (Social Services) as the possible perpetrator of sexual abuse on a five-year-old girl of his acquaintance. Defendant Joseph Bagan, a caseworker for Social Services, contacted Doe's school and arranged to interview Doe. He spoke with Doe alone in the principal's office with the door closed for approximately ten minutes. Doe denied having sexually assaulted the girl.

After his questioning of Doe, Bagan went to Doe's home to discuss the matter with Doe's parents. Because the girl had tested positive for chlamydia, Bagan also wanted Doe to be tested for the disease. According to Doe's mother, Bagan told her that "bad things" would happen to her son if she did not "do things his [Bagan's] way." Appellants' App. at 329. She testified that she was upset and afraid and felt pressured to have her son tested. ² The mother subsequently took her son to a private physician who arranged for the testing. The test results on Doe were negative. Nonetheless, Doe's name was placed by defendant Loretta Higa, one of the Social Services caseworkers, on the Colorado Central Registry for Child Protection as a child abuser. Plaintiffs also claim that in the course of her investigation, defendant Higa informed other neighborhood children of the suspicions about Doe, resulting in his public humiliation.

In their answer, the individual defendants claimed qualified immunity; defendant Social Services claimed Eleventh Amendment immunity and further asserted that it is not a "person" for purposes of Sec. 1983. The Board of County Commissioners argued that it cannot be liable under a respondeat superior theory for the actions of the other defendants.

We begin with the threshold inquiry in cases involving the qualified immunity defense: has the plaintiff alleged the violation of a constitutional right? See Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Once a defendant pleads a qualified immunity defense and moves for summary judgment, "the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This determination is necessary because "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id.; see also Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988). In Siegert, 500 U.S. 226, 111 S.Ct. 1789, the Supreme Court clarified the analytical approach for cases involving a claim of qualified immunity. The threshold inquiry in such cases is whether the plaintiff has alleged the violation of a clearly established constitutional right. Id. at 231, 111 S.Ct. at 1793. Before a court can decide whether the right asserted by the plaintiff is "clearly established," it must determine "whether the plaintiff has asserted a violation of a constitutional right at all." Id.

Plaintiffs here argue that John Doe had a due process right to assistance during his interview with Bagan, an event they characterize as a "custodial investigation." ³ Plaintiffs, however, do not specify what type of assistance the Constitution would require under these circumstances, nor do they identify any authority from which such a right would emanate. ⁴

The protection afforded by the Fourteenth Amendment due process clause applies whenever the state attempts to deprive a citizen of life, liberty, or property. Ingraham v. Wright, 430 U.S. 651, 672, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). Plaintiffs do not claim a deprivation of life or property here. Their claim, instead, is apparently grounded in what they perceive was a deprivation of Doe's liberty arising from his unassisted interview with Bagan, an event plaintiffs characterize as "proceedings." See Appellants' Br. at 13-16.

The Supreme Court has acknowledged that freedom from bodily restraint is a liberty interest protected by the Constitution. Ingraham, 430 U.S. at 673-74, 97 S.Ct. at 1413-14. That interest, however, does not extend to restraints that are insignificant. Id. at 674, 97 S.Ct. at 1414 (recognizing a de minimis level of interference with bodily freedom "with which the Constitution is not concerned"). We agree with the district court that this brief detention by a social services caseworker is not of constitutional dimension. Of course, had the investigation here proceeded further, Doe would have been entitled to all of the constitutional protections associated with the criminal and judicial process. The ten minute initial interview with a social services caseworker, however, was a de minimis interference with Doe's liberty, insufficient at that stage to trigger constitutional liberty concerns. This brief interference with Doe's freedom is not the kind of deprivation of a "privilege[ ] long recognized at common law as essential to the orderly pursuit of happiness by free men" historically protected by the due process clause. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). We agree with the district court that Doe did not enjoy any procedural due process rights which could have been offended here.

Plaintiffs also allege that defendants violated John Doe's due process rights by destroying his reputation and thereby denying him his right to an education and future employment. There are at least two flaws in this argument. Injury to reputation, by itself, is not a liberty interest protected by the Fourteenth Amendment. Paul v. Davis, 424 U.S. 693, 708-09, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976). In order to recover, a plaintiff must show that the damage to his reputation is combined with an injury to a right or status established by state law. Id. at 710-12, 96 S.Ct. at 1164-66. Here, plaintiffs allege that the humiliation Doe endured at the hands of his classmates when they learned of the suspicion against him made him miserable at school and thus denied his state-guaranteed right to a public education. ⁵ We acknowledge that school age children in Colorado must be given the opportunity to receive a free public education. Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005, 1018-19 (Colo.1982) (en banc). It is obvious, however, that Doe was not denied his right to public education. He was only denied his request to attend the public school of his choice. Plaintiffs cite no Colorado authority, and we have found none, indicating that the right to a public education encompasses a right to choose one's particular school.

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