Franz v. Lytle, Civ. A. No. 89-1312-T.

• Decision Date: 15 April 1992
• Docket Number: Civ. A. No. 89-1312-T.
• Citation: 791 F. Supp. 827
• Court: U.S. District Court — District of Kansas
• Parties: Timothy A. FRANZ, and Ashley M. Franz, a minor, By and Through Her Next Friend and Natural Guardian, Timothy A. Franz, and Katherine A. Franz, Plaintiffs, v. Richard LYTLE and Jeanette Schlabach, Defendants.

791 F. Supp. 827

Timothy A. FRANZ, and Ashley M. Franz, a minor, By and Through Her Next Friend and Natural Guardian, Timothy A. Franz, and Katherine A. Franz, Plaintiffs, v. Richard LYTLE and Jeanette Schlabach, Defendants.

Civ. A. No. 89-1312-T.

United States District Court, D. Kansas.

April 15, 1992.

James S. Phillips, Jr., Phillips & Phillips, Chartered, Wichita, Kan., for plaintiffs.

Dennis E. Shay, Smith, Shay, Farmer & Wetta, Wichita, Kan., James S. Pigg, Fisher, Patterson, Sayler & Smith, Topeka, Kan., for defendants.

OPINION AND ORDER

THEIS, Senior District Judge.

Plaintiffs Timothy and Katherine Franz and their two-year old child, Ashley Franz bring this § 1983 suit against Defendants Richard Lytle and Jeanette Schlabach, police officers for the city of Haysville, Kansas in connection with a child neglect or sexual abuse investigation. The plaintiffs allege that the defendants, by engaging in unconsented inspections of Ashley's vaginal area and by forcibly removing the child for medical examination, violated their Fourth and Fourteenth Amendment right to be free from unreasonable searches and right to familial integrity. Additionally, the defendants allegedly interfered with the plaintiffs' right to enjoyment of property. The plaintiffs also present pendent state claims based on invasion of privacy, trespass and deprivation of liberty. Defendants move for summary judgment on the ground that they are entitled to qualified immunity against the § 1983 claim; they also assert the discretionary function defense against the pendent claims.

UNCONTROVERTED FACTS

On October 19, 1988, Susan Brickley, a neighbor of the Franzes, reported to the police that two-year old Ashley Franz, who was playing near her house, was unsupervised by her parents and was wet and unclean. Officer Lytle responded to the call, knowing only that the call "had something to do with a child, possibly in need of care." Upon arrival at Brickley's home, Brickley told Officer Lytle that she thought Ashley had a diaper rash; there was no mention of sexual abuse or molestation. Lytle requested Brickley to remove Ashley's diapers without obtaining parental consent. He visually inspected Ashley's vaginal region and found a "very severe rash." He took photographs of the rash. Lytle then went to the Franz home and questioned Ashley's mother, Katherine Franz. Lytle subsequently indicated to Captain Gary Johnson of the Haysville Police Department that he was investigating a possible molestation case involving the Franz family.

On October 20, 1988, Defendant Lytle interviewed Paula Lassiter, a former neighbor of the plaintiffs, who reported that Ashley was not supervised and "soaked with urine all the time." Officer Lytle, accompanied by Officer Schlabach, then went to the Franz home to inspect Ashley. Katherine allowed the officers to enter the house. She denies, however, that she gave them consent to inspect or physically touch Ashley's body. The defendants asked Katherine to undress Ashley, and proceeded to inspect her vaginal area. Lytle observed what he believed was "some type of discoloration or bruises" around Ashley's vaginal region. He touched the area several times, asking Ashley if it hurt, to which Ashley said yes. Lytle was unable to determine, however, whether there had been molestation or sexual abuse.

After conducting the inspection, Lytle requested that Katherine voluntarily take Ashley to Wesley Hospital for a medical examination. When the plaintiffs hesitated and inquired about who was going to pay for the medical examination, Lytle responded: "We can do it this way or we can take the child into protective custody and take her up to the hospital and then have her put in a facility."

While the officers were in the Franz home, Ashley's father, Timothy Franz, arrived. He requested the officers to leave his home and wait out in the car but they refused, asserting that they were not letting the girl out of their sight. The Franzes then drove Ashley to Wesley Hospital, escorted by the police officers. The plaintiffs maintain that they did not drive to the hospital voluntarily, nor consent to the medical examination.

At the hospital, the officers refused to let the plaintiffs out of their sight. Officer Schlabach followed Katherine and Ashley into the bathroom. Ashley was then examined by Dr. Davidson, who found some "mild redness" and concluded that Ashley had a rash from wearing nylon panties. The police officers apologized, and the Franz family returned home.

DISCUSSION

In considering a motion for summary judgment, the court is mindful that "summary judgment is a drastic remedy," and should be awarded with care. Conaway v. Smith, 853 F.2d 789, 792 (10th Cir.1988). Summary judgment is appropriate only when "there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). All factual disputes and inferences are construed in favor of the non-moving party. Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 899 F.2d 951, 979 (10th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 3241, 111 L.Ed.2d 752 (1990).

Qualified immunity claims are governed by the objective albeit fact-intensive "clearly established law" standard enunciated in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Under Harlow, an official who is entitled to raise the qualified immunity defense may not be held personally liable for monetary damages under § 1983 if his actions were objectively reasonable, as assessed in light of the general rules that were clearly established at the time the action was taken. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). In short, § 1983 liability attaches when the official's actions, at the time of occurrence, violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

The burden of proving the existence of a clearly established right rests upon the plaintiffs. E.g., Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990). A § 1983 plaintiff must show that the law is clearly established in a particularized sense, and not simply identify a clearly established right in the abstract. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id.

Plaintiffs allege that the defendants violated their Fourth and Fourteenth Amendment rights. According to the plaintiffs, the warrantless nude examinations and photographs of Ashley and her coerced removal from her home constitute an unreasonable search and seizure. The plaintiffs also contend that the forcible removal of Ashley from her home and coerced medical examination violate the plaintiffs' substantive due process right to preservation of family integrity and familial association. In addition, the defendants' refusal to leave the Franz home after being ordered to do so allegedly encroached upon the plaintiffs' right to be free from interference with the enjoyment of property.

Unreasonable Search and Seizure

In addressing the plaintiffs' Fourth Amendment claim, the crucial inquiry is whether, at the time the defendants acted, it was clearly established law that a child abuse investigation conducted by police officers is subject to the probable cause or warrant requirement. Defendants cite Darryl H. v. Coler, 801 F.2d 893, 901-02 (7th Cir.1986), for the proposition that the visual inspection of a child's nude body for signs of child abuse does not require a warrant or probable cause. According to the defendants, even if the warrantless searches at issue were found to be unconstitutional, the defendants are nonetheless qualifiedly immune because the law on child abuse investigations, at the time of their actions, was not clearly established.

Defendants fail to recognize, however, that the holding of Darryl H. is limited to child abuse investigations conducted by social workers. See id. It is true that the law, as of 1988, was not clearly established as to whether the Fourth Amendment required a social worker to comply with the probable cause or warrant requirement. The federal courts have been divided on this issue. See Kimmett v. Ryan, 1989 WL 23772, *5 (D.Colo.1989) ("In all cases, the courts have held that the law as to the constitutional right of a parent is not clearly established as to a social worker making the discretionary decision as to whether to remove a child from the home where there is suspected child abuse.") (Emphasis added); Donald M. v. Matava, 668 F.Supp. 703, 709 (D.Mass.1987) (the law is unclear as to whether warrantless home visits by social workers investigating child abuse violate Fourth Amendment). Compare Darryl H., 801 F.2d at 902 (no probable cause or warrant requirement) with Good v. Dauphin County Social Servs., 891 F.2d 1087, 1094 (3d Cir.1989) (warrantless search of home to investigate child abuse unconstitutional absent consent or exigent circumstances). Indeed, the Tenth Circuit has acknowledged this split in the circuits, and has conceded that this issue still remains a novel one in the Tenth Circuit. See Snell v. Tunnell, 920 F.2d 673, 697 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991) ("we do not have occasion to decide whether a search of a private home in child abuse investigation without a warrant or probable cause violates the fourth amendment").¹

This uncertainty in the law, however, arises in the context of warrantless administrative searches conducted by social workers. The present case is distinguishable because the warrantless searches at issue were part of a criminal investigation conducted by law enforcement officers. As enforcers of the criminal law, police officers are...