Hurlman v. Rice
| Decision Date | 04 March 1991 |
| Docket Number | D,No. 851,851 |
| Citation | 927 F.2d 74 |
| Parties | George HURLMAN, Ruth Hurlman, Patricia Rice, Individually and as the Maternal Parent of Jillian Rice, an Infant, under the age of Fourteen years, Plaintiffs-Appellees, v. Charles W. RICE, Jr., Chester E. Nelson, Hector E. Pagan, Damon Mangual, Terrence P. Dwyer, Gregory Porteus and Timothy Knapp, Defendants, Chester E. Nelson, Hector E. Pagan, Damon Mangual, Terrence P. Dwyer, Gregory Porteus and Timothy Knapp, Defendants-Appellants. ocket 90-7518. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas A. O'Keefe, Peekskill, N.Y., for plaintiffs-appellees.
Marilyn T. Trautfield, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Kathie Ann Whipple, Deputy Bureau Chief, New York City, on the brief), for defendants-appellants.
Before KEARSE, WINTER, and ALTIMARI, Circuit Judges.
Defendants Chester E. Nelson, Hector E. Pagan, Damon Mangual, Terrence P. Dwyer, Gregory Porteus, and Timothy Knapp appeal from an order of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, denying their motion pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the amended complaint ("complaint") on the ground of, inter alia, qualified immunity. The complaint, brought principally under 42 U.S.C. Sec. 1983 (1988), charges appellants with wrongful, forcible entry of the home of plaintiffs George and Ruth Hurlman and the unlawful seizure of plaintiff Jillian Rice. The district court denied appellants' motion for summary judgment without comment. On appeal, appellants contend principally that the court erred in denying their motion and in doing so without explanation. For the reasons below, we conclude that the district court's order is not appealable, and we dismiss the appeal for lack of appellate jurisdiction.
The present litigation, centering on events occurring between approximately 11:30 p.m. on November 1 and 1 a.m. on November 2, 1986, has its origin in a controversy between plaintiff Patricia Rice and her estranged husband, defendant Charles W. Rice, Jr. ("Charles Rice"). Plaintiffs George Hurlman ("Hurlman") and Ruth Hurlman are Patricia Rice's parents; the then-four-year-old plaintiff Jillian Rice ("Jillian") is the daughter of Patricia Rice and Charles Rice. Charles Rice is or was a Westchester County, New York police officer; the six appellants are or were New York State Police Troopers.
The complaint alleges that at approximately midnight on the night in question, several of the appellants (the "troopers"), went to the Hurlmans' home, entered without consent, and forcibly seized custody of Jillian. The troopers represented that they had a Westchester County Family Court order giving them authority to remove Jillian from the premises. Upon demand, they produced a family court order to show cause that required Patricia Rice to show why she should not be enjoined from residing with Jillian at the home of her parents and temporarily restrained her from residing there with Jillian until further order of the court. The draft order presented to that court had contained a provision that would have given Charles Rice immediate temporary custody of Jillian; that provision had been stricken by the judge. Plaintiffs, protesting that the order did not provide for any summary removal of Jillian from the Hurlmans' home, asked the troopers to summon their superior officer. The troopers refused, forced their way into the Hurlmans' home, and threatened the Hurlmans and Patricia Rice with immediate arrest if they sought to interfere with the troopers' removal of Jillian from the premises. The troopers forced Patricia Rice to awaken and dress Jillian; they then took the child and delivered her to Charles Rice.
On November 6, 1986, Jillian was returned to her mother pursuant to an order of the family court. Plaintiffs commenced the present action in 1987, alleging that appellants had acted pursuant to a conspiracy between themselves and Charles Rice and had violated plaintiffs' constitutional rights, including the right to be free of unlawful entry into the home and the rights of mother and daughter not to be forcibly separated. They seek compensatory and punitive damages.
In their answer, appellants deny that they acted improperly. Though they admit that "Charles Rice was present during some of the relevant time," they deny having conspired with him. They also deny having entered the Hurlman home forcibly, deny having threatened plaintiffs in any manner, and deny having committed any other improper act or omission with respect to the events alleged in the complaint.
After a period of discovery, appellants moved for summary judgment dismissing the complaint on grounds of, inter alia, qualified immunity. The thrust of the qualified-immunity branch of the motion was that Charles Rice had been concerned for the welfare of his daughter because, in April 1985, Hurlman had been convicted of The affidavit of Porteus revealed that he and Charles Rice had been friends for some 12 years and that sometime after Porteus went off duty at 11 p.m. on November 1, 1986, Rice had come to the State Police barracks seeking help in removing Jillian from the Hurlmans' home. At his deposition, Porteus could not recall whether or not he had read the family court's order to show cause; he recalled that Charles Rice was concerned for the welfare of his daughter.
an offense involving endangering the welfare of a child and had been given a probationary sentence that included a prohibition against Hurlman's having contact with his two other grandchildren; that the troopers dispatched to the Hurlman home had not entered forcibly but had entered with consent; that the troopers had not threatened anyone with arrest; and that Patricia Rice herself had voluntarily delivered Jillian to Charles Rice who went there with the troopers. In support of these assertions, appellants submitted their own affidavits and excerpts from various depositions.
The affidavit of Knapp, the barracks desk officer from 11 p.m. on November 1 to 7 a.m. on November 2, stated that Knapp had read the family court order brought to the barracks by Charles Rice and had discussed it with Porteus, Nelson, and Pagan. Knapp thereupon dispatched Nelson, Pagan, Dwyer, and Mangual to the Hurlmans' residence to remove Jillian from the premises. His affidavit stated that
[a]lthough the Court order did not specifically direct the State Police to intervene in any dispute, I believed that there was a reasonable risk of violence if Mr. Rice went to the Hurlman residence on his own to remove Jillian Rice from the residence. In addition, I had overheard Mr. Rice and Trooper Porteus talking about the possibility that there were weapons in the Hurlman residence and about George Hurlman's history of deviant sexual behavior toward one or more of his daughters.
Knapp felt that sending the troopers was "the safest way to execute the Court order."
Appellants' statement pursuant to Local Rule 3(g), setting forth material facts as to which they contended there was no genuine issue to be tried, included the statement that "Troopers Dwyer and Mangual did not force their way into the residence, but entered with permission, either express or implied." In support of this assertion, Dwyer stated in his affidavit that after arriving at the Hurlmans' home,
I was standing inside the house. Although I was not specifically invited inside, at no time was I told not to come inside or that I was trespassing and had no authority to be there.
Likewise, Mangual stated in his affidavit,
I was standing inside the house, approximately ten to twelve feet from the front door. Although I had not been specifically invited inside, at no time had I been told not to come inside or that I was trespassing and had no authority to be there.
Further, according to Mangual, Trooper Dwyer merely followed Patricia Rice upstairs when she went to get the child, in accordance with "standard practice not to let anyone out of your sight when responding to a family situation." The affidavits of both Dwyer and Mangual stated that the troopers did not threaten Patricia Rice or Hurlman with arrest. Rather, both stated that "she agreed to relinquish the child to Mr. Rice." Appellants' attorney's affidavit in support of the motion concluded that "the overwhelming evidence demonstrates that the troopers did not threaten either Patricia Rice or George Hurlman with immediate 'forcible arrest' that evening." The affidavits of Knapp, Dwyer, and Mangual stated that each "further believed that the terms of the Court order provided ... authority, if necessary, to remove Jillian Rice from the Hurlman residence."
In opposition to the motion for summary judgment, plaintiffs controverted virtually all of appellant's principal assertions. Disputing appellants' Rule 3(g) statement that four uniformed police officers came to my home and upon my property, without permission. They forced their way into my home and forcibly removed Jillian, terrorizing my wife, daughter and myself.
the troopers had "entered [the Hurlmans' home] with permission, either express or implied," Patricia Rice testified at her deposition precisely to the contrary. She stated that she had objected to the troopers' entering the house, saying, "You can't come in." At his deposition, Hurlman testified that he was "blocking the door," and that Dwyer brushed past him and went upstairs. Further, Hurlman submitted an affidavit stating that
I was prevented from attempting to stop them and was humiliated in front of my family because police threatened to arrest my entire family.
I gave no permission, express or implied, for the uniformed defendants to come...
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