Hunter v. S.D. Dept. of Soc. Servs.

• Decision Date: 25 March 2019
• Docket Number: 3:17-CV-03016-RAL
• Parties: Kirsten HUNTER, as Guardian Ad Litem of Her Minor Child, A.Q., and on Her Own Behalf, Plaintiff, v. SOUTH DAKOTA DEPT. OF SOCIAL SERVICES, Lynn Valenti, in Her Personal and Official Capacity; Virgena Wieseler, in Her Personal and Official Capacity; Matt Opbroek, in His Personal and Official Capacity; Katie Rochelle, in Her Personal and Official Capacity; Teresa Cass, in Her Personal and Official Capacity; Doe Defendants 1–4, Avera St. Mary's Hospital, Defendants.
• Court: U.S. District Court — District of South Dakota

377 F.Supp.3d 964

Kirsten HUNTER, as Guardian Ad Litem of Her Minor Child, A.Q., and on Her Own Behalf, Plaintiff,

v.SOUTH DAKOTA DEPT. OF SOCIAL SERVICES, Lynn Valenti, in Her Personal and Official Capacity; Virgena Wieseler, in Her Personal and Official Capacity; Matt Opbroek, in His Personal and Official Capacity; Katie Rochelle, in Her Personal and Official Capacity; Teresa Cass, in Her Personal and Official Capacity; Doe Defendants 1–4, Avera St. Mary's Hospital, Defendants.

3:17-CV-03016-RAL

United States District Court, D. South Dakota, Central Division.

Signed March 25, 2019

Courtney A. Bowie, Pro Hac Vice, American Civil Liberties Union of South Dakota, Sioux Falls, SD, James D. Leach, Attorney at Law, Rapid City, SD, for Plaintiff.

James E. Moore, James A. Power, Woods, Fuller, Shultz & Smith, PC, Roger A. Sudbeck, Mitchell W. O'Hara, Boyce Law Firm, LLP, Sioux Falls, SD, for Defendants.

OPINION AND ORDER GRANTING DSS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AVERA DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

Plaintiff Kristen Hunter,¹ individually and as guardian ad litem for her minor son A.Q., filed this action under 42 U.S.C. §§ 1983 and 1985 alleging that the Defendants—the South Dakota Department of Social Services, Lynne Valenti, Virgena Wieseler, and Matt Opbroek (collectively DSS Defendants) and Avera St. Mary's Hospital, Teresa Cass, Katie Rochelle, and Doe Defendants 1–4 (collectively Avera Defendants)—violated her and her son's rights under the Fourth Amendment, Fifth Amendment, and Due Process Clause of the Fourteenth Amendment. Doc. 12 at ¶ 1. The DSS Defendants have filed a motion for summary judgment based upon the merits and on qualified immunity. Doc. 25. The Avera Defendants have filed a motion for summary judgment based upon the claim that they are not state actors. Doc. 29. This Court held oral argument on the motions on February 20, 2019. Doc. 66. For the reasons explained below, this Court grants DSS Defendants' motion for summary judgment and grants in part and denies in part Avera Defendants' motion for summary judgment.

I. Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56(a) places the burden initially on the moving party to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see also Celotex Com. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met that burden, the nonmoving party must establish that a material fact is genuinely disputed either by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence ... of a genuine dispute." Fed. R. Civ. P. 56(c)(1)(A), (B) ; Gacek v. Owens & Minor Distribution, Inc., 666 F.3d 1142, 1145–46 (8th Cir. 2012) ; see also Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (stating that nonmovant may not merely rely on allegations or denials). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Gacek, 666 F.3d at 1145. In ruling on a motion for summary judgment, the facts and inferences fairly drawn from those facts are "viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ).

II. Fact Not Subject to Genuine Dispute²

During February 2017, Hunter, her three-year-old son, A.Q., her five-year-old daughter, and her boyfriend, Jeffry Stanley (Stanley), lived together in Pierre, South Dakota. Doc. 27 at ¶ 11; Doc. 42 at ¶ 11, Doc. 31 at ¶¶ 1–2; Doc. 39 at ¶¶ 1–2. Stanley was on state probation and, as part of conditions of probation, he was required to submit to urinalysis tests. Doc. 27 at ¶ 11; Doc. 42 at ¶ 11; Doc. 31 at ¶ 4; Doc. 39 at ¶ 4. Stanley failed to show up to a meeting with his probation officer Mina Bonhorst (Bonhorst) to provide a urine sample, so on February 22, 2017, Bonhorst went to Stanley's home. Doc. 31 at ¶ 4; Doc. 39 at ¶ 4. Stanley answered the door and admitted to having smoked methamphetamine and marijuana with Hunter the prior morning. Doc. 31 at ¶ 5; Doc. 39 at ¶ 5. Stanley stated that Hunter was not feeling well after using. Doc. 31 at ¶ 6; Doc. 39 at ¶ 6. When law enforcement arrived at Stanley's home, Hunter appeared disheveled and would not make eye contact. Doc. 31 at ¶ 7; Doc. 39 at ¶ 7. As a result of law enforcement's observations and Stanley's admissions, law enforcement suspected Hunter of being under the influence of methamphetamine "or something else during that time." Doc. 31 at ¶ 8; Doc. 39 at ¶ 8. Later that day, Stanley provided a urinalysis that tested positive for marijuana and was arrested. Doc. 27 at ¶ 11; Doc. 42 at ¶ 11. Hunter learned that Stanley was going to be placed in jail for a probation violation. Doc. 31 at ¶ 9; Doc. 39 at ¶ 9; Doc. 28-2 at 3.

That same day, based on comments by Stanley, Bonhorst made a report to Child Protective Services (CPS), a division of the South Dakota Department of Social Services (DSS), of possible neglect concerning Hunter's two children. Doc. 27 at ¶ 12; Doc. 42 at ¶ 12; Doc. 28-1 at 1. Family service specialist Mat Opbroek (Opbroek) was assigned to investigate Bonhorst's report. Doc. 27 at ¶ 13; Doc. 42 at ¶ 13; Doc. 31 at ¶ 3; Doc. 39 at ¶ 3. At approximately 4:30 p.m., Opbroek and a CPS supervisor Iyvonne Jewett met with Pierre police officers to perform a welfare check at Hunter's residence. Doc. 27 at ¶ 14; Doc. 42 at ¶ 14; Doc. 31 at ¶ 10; Doc. 39 at ¶ 10. During the welfare check, Hunter admitted that she had used drugs while her children were present in the home but said she did not use drugs while in the same room as the children.³ Doc. 27 at ¶ 15; Doc. 42 at ¶ 15. Hunter admitted to using methamphetamine four days before the welfare check and showed law enforcement where she injected methamphetamine into her arm. Doc. 27 at ¶ 16; Doc. 42 at ¶ 16. Hunter voluntarily provided a urine sample which field tested positive for methamphetamine and marijuana.⁴ Doc. 27 at ¶ 17; Doc. 42 at ¶ 17; Doc. 31 at ¶ 11; Doc. 39 at ¶ 11.

While at Hunter's residence, Opbroek observed drug paraphernalia where the children could get to it, and law enforcement informed Opbroek that there were drugs in the house. Doc. 27 at ¶ 18; Doc. 42 at ¶ 18; Doc. 31 at ¶ 19; Doc. 39 at ¶ 19. Opbroek determined that Hunter was still under the influence of drugs and thus unable to care for her children by herself, which constituted a present danger to the children. Doc. 27 at ¶ 19; Doc. 42 at ¶ 19; Doc. 31 at ¶ 13; Doc. 39 at ¶ 13. Opbroek also noted the presence of a knife impaled in the door frame when he first walked into Hunter's residence, which gave him further concerns for the children's safety. Doc. 31 at ¶ 20; Doc. 39 at ¶ 20. Opbroek did not believe that the potential danger from exposure to methamphetamine was sufficient to have the children screened the night of February 22, 2017. Doc. 27 at ¶ 21; Doc. 42 at ¶ 21. Hunter and Opbroek agreed to a present danger plan involving a neighbor named Margaret Rogers (Rogers). Doc. 27 at ¶ 20; Doc. 42 at ¶ 20. Rogers agreed to help monitor Hunter thereafter.⁵ Doc. 27 at ¶ 20; Doc. 42 at ¶ 20.

On February 23, 2017, Opbroek ordered Hunter to get her children drug tested, and if she refused, Hunter "couldn't keep them." Doc. 39 at ¶ 15.⁶ Opbroek's expressed rationale for the drug screen was his concern that Hunter's children might have been exposed to drugs at some level, including possible ingestion. Doc. 27 at ¶ 23; Doc. 42 at ¶ 23. Opbroek believed that the children could have been exposed to the drugs due to their ability to access to areas where drugs were kept. Doc. 31 at ¶ 17; Doc. 39 at ¶ 17. Depending on the situation, DSS wants to know if children are in danger of actual exposure to drugs and whether their parents' drug use is directly affecting the children. Doc. 31 at ¶ 16; Doc. 39 at ¶ 16.

Hunter and Opbroek discussed having the drug screening performed at the Avera Clinic where Hunter had previously obtained healthcare. Doc. 27 at ¶ 26; Doc. 42 at ¶ 26. Hunter testified that she did not know of any other option besides having the children drug tested at the Avera Clinic.⁷ Doc. 42 at ¶ 25; Doc. 43-3 at 2; Doc. 31 at ¶ 24; Doc. 39 at ¶ 24. Opbroek told Hunter that he assumed the drug screens would involve urinalysis, but Opbroek did not discuss with Hunter how the medical provider would collect the samples used for the drug screens. Doc. 27 at ¶¶ 24, 32; Doc. 42 at ¶¶ 24, 32.

On February 24, 2017, Hunter contacted Opbroek to inform him that she wanted to go to Huron for Stanley's court hearing. Doc. 27 at ¶ 28; Doc. 42 at ¶ 28; Doc. 31 at ¶ 30; Doc. 39 at ¶ 30. Opbroek told Hunter to have the drug screens for the children completed before she left Pierre. Doc. 27 at ¶ 28; Doc. 42 at ¶ 28. Opbroek wanted the drug screening completed before Hunter traveled to Huron to help him determine if there were any medical or health threats to Hunter's children, including exposure to drugs. Doc. 27 at ¶ 29; Doc. 42 at ¶ 29; Doc. 31 at ¶ 31; Doc. 39 at ¶ 31. Hunter only agreed to have the drug screenings done because Opbroek said she would not be able to keep her children unless she had her children submit to urinalysis.⁸ Doc. 42 at ¶ 28; Doc. 32-1 at 2.

Hunter called the Avera Clinic and tried to make the appointments for urinalysis for her two children.⁹ Doc. 33-1 at 6. Hunter told the...