Kirkpatrick v. Cnty. of Washoe

• Decision Date: 09 December 2016
• Docket Number: No. 12-15080,12-15080
• Citation: 843 F.3d 784
• Parties: Jamie Kirkpatrick, individually, and as the natural father and legal guardian of B.W., a minor, Plaintiff–Appellant, v. County of Washoe; Amy Reynolds, WCDSS social worker; Ellen Wilcox, WCDSS social worker; Linda Kennedy, WCDSS social worker, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

843 F.3d 784

Jamie Kirkpatrick, individually, and as the natural father and legal guardian of B.W., a minor, Plaintiff–Appellant,

v.County of Washoe; Amy Reynolds, WCDSS social worker; Ellen Wilcox, WCDSS social worker; Linda Kennedy, WCDSS social worker, Defendants–Appellees.

No. 12-15080

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc June 22, 2016, San Francisco, California

Filed December 9, 2016

David J. Beauvais (argued), Oakland, California; Jeffrey Friedman (argued) and William R. Kendall, Reno, Nevada, for Plaintiff–Appellant.

Herbert B. Kaplan (argued), Deputy District Attorney; Richard A. Gammick, District Attorney; Reno, Nevada, for Defendant–Appellee County of Washoe.

Brian M. Brown (argued) and Kevin A. Pick, Thorndal Armstrong Delk Balkenbush & Eisinger, Reno, Nevada, for Defendants–Appellees Amy Reynolds, Ellen Wilcox, and Linda Kennedy.

Before: Sidney R. Thomas, Chief Judge, and Alex Kozinski, Diarmuid F. O' Scannlain, Ronald M. Gould, Johnnie B. Rawlinson, Carlos T. Bea, Mary H. Murguia, Morgan B. Christen, Paul J. Watford, Andrew D. Hurwitz, and Michelle T. Friedland, Circuit Judges.

Concurrence by Judge Christen ;

Partial Concurrence and Partial Dissent by Judge Friedland ;

Dissent by Judge Kozinski

OPINION

MURGUIA, Circuit Judge:

This appeal arises from Washoe County social workers' warrantless removal of a two-day-old child from the custody of her mother, who had a history of drug abuse and whose two other children had been previously placed in the care of the Washoe County Department of Social Services ("DSS"). The biological father subsequently brought suit under 42 U.S.C. § 1983 against the social workers and the County, claiming the removal of his daughter violated the Fourth and Fourteenth Amendments. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part the district court's grant of summary judgment in the defendants' favor, reverse in part, and remand for further proceedings.

BACKGROUND

The following facts are not in dispute. On July 15, 2008, Rachel Whitworth gave birth to a daughter, B.W.,¹ via cesarean section

at a hospital in Reno, Nevada. B.W. was born five weeks premature. Whitworth admitted to nursing staff that she used methamphetamine throughout her pregnancy, including as recently as two days prior. B.W. tested positive for methamphetamine at birth. At the time, Whitworth was unemployed and living with a friend. She had recently self-admitted to a drug rehabilitation program but left after three days.

Whitworth informed the hospital that she had two other children who were already in the custody of DSS, and volunteered the name of the social worker managing their case, Chondra Ithurralde. After B.W. was born, the hospital contacted Ithurralde, who noted that a permanent plan to terminate Whitworth's parental rights for her other children had been approved by a court due to her failure to comply with the DSS case plan, her lack of appropriate housing, and her demonstrated inability to care for her children. Ithurralde also advised placing a protective hold on B.W. to prevent her from being discharged. The hospital typically honors DSS hold requests as a courtesy, but it is not legally obligated to do so. The hold did not prevent Whitworth from interacting with B.W. while they were in the hospital together. B.W. remained in the room with Whitworth, who failed to feed the infant on schedule and to change her diapers.

The next day, Ithurralde visited the hospital with DSS social worker Ellen Wilcox. Wilcox interviewed Whitworth, and informed her of the hold and that a protective custody hearing had been scheduled for the following day. Until the hearing, DSS planned to place B.W. in the same foster home as her two half-siblings. Wilcox's supervisor, Linda Kennedy, directed Wilcox to take B.W. when the hospital released her. On July 17, 2008, the hospital discharged two-day-old B.W. into DSS's care. DSS did not attempt to obtain a warrant before assuming custody of B.W.

On July 18, the family division of Nevada's Second Judicial District Court held a protective custody hearing at which Whitworth participated by phone from the hospital. The court determined that B.W. should remain in protective custody due to Whitworth's ongoing drug use, finding reasonable cause to believe that continuation in Whitworth's care was contrary to B.W.'s welfare. Following the hearing, Whitworth made no contact with her attorney or DSS. On July 28, 2008, DSS filed a petition alleging that B.W. was a child in need of protection. Whitworth failed to attend any of the subsequent adjudicatory or dispositional hearings. DSS attempted to locate Whitworth but was unable to find her.

Plaintiff–Appellant Jamie Kirkpatrick was present at the hospital when Whitworth gave birth to B.W., although he did not know at the time whether he was B.W.'s biological father, nor did he sign an affidavit of paternity. Kirkpatrick first learned of DSS's involvement soon after Wilcox took custody of B.W. on July 17, 2008. He left his contact information with Wilcox for the purpose of scheduling a paternity test to determine whether he was B.W.'s biological father. Kirkpatrick also advised DSS that he was moving to Elko, Nevada. Kirkpatrick did not attend the protective custody hearing on July 18, 2008, but the court ordered a paternity test at his request. The test revealed that Kirkpatrick is indeed B.W.'s biological father.

Kirkpatrick visited B.W. twice in the Fall of 2008, and expressed an interest in reunification at a six-month permanency hearing held in January 2009. After the hearing, Kirkpatrick returned to Reno and began visiting B.W. more frequently. He continued to maintain his visits, employment, and housing over the next year. In June 2009, B.W.'s foster family determined that they were no longer able to care for B.W. and her half-siblings, and the children were transferred to a different foster home. Kirkpatrick became concerned about B.W.'s care there, and after an incident during which B.W. suffered a large bruise on her forehead Kirkpatrick began advocating more strongly that B.W. should be placed with him. On December 31, 2009, B.W. was reunified with Kirkpatrick.

In October 2009, Kirkpatrick brought suit under 42 U.S.C. § 1983 against Washoe County and DSS workers Ellen Wilcox, Linda Kennedy, and Amy Reynolds—another supervisor—for removing B.W. from Whitworth without a warrant. In the operative complaint—the Second Amended Complaint ("SAC")—Kirkpatrick alleged one cause of action against the social-worker defendants and another cause of action against the County, both on behalf of "Plaintiff," in the singular. The SAC also stated that "Plaintiff is the father and legal guardian of the minor child, [B.W.]," and requested damages because "[B.W.'s] constitutional right to be with her parents was violated."

The district court granted the defendants' motion for summary judgment. The district court first determined that Kirkpatrick had asserted only claims on his own behalf under the Fourth and Fourteenth Amendments. Accordingly, the district court found that Kirkpatrick had not demonstrated that the defendants violated his constitutional rights because only B.W. suffered a potential Fourth Amendment violation, and Kirkpatrick had not established parental rights as of the date of the challenged seizure that could give rise to a Fourteenth Amendment claim. Finding that Kirkpatrick had failed to prove a constitutional violation, the court also entered judgment in favor of Washoe County. This appeal followed.

DISCUSSION

Section 1983 provides a remedy for violations of rights secured by the Constitution by persons acting under the color of state law. 42 U.S.C. § 1983. However, the doctrine of qualified immunity shields individual officers "from liability for civil damages insofar as their conduct [did] not violate clearly established ... constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Municipalities and other local governmental units are "persons" subject to suit under § 1983, but to prevail on a claim against a municipal entity for a constitutional violation, a plaintiff must also show that his or her injury is attributable "to official municipal policy of some nature." Monell v. Dep't of Soc. Servs. of N.Y. , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Kirkpatrick's claims against the social workers and Washoe County are addressed, in turn, below.

I.

We apply a two-prong analysis in qualified immunity cases, under which summary judgment is improper if, resolving all disputes of fact and credibility in favor of the party asserting the injury, (1) the facts adduced show that the officer's conduct violated a constitutional right, and (2) that right was "clearly established" at the time of the violation. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Thus, even if Kirkpatrick demonstrates that there is a question of fact as to whether the social workers violated his or B.W.'s constitutional rights, the workers are entitled to qualified immunity unless the law at the time of B.W.'s removal in 2008 clearly established the unconstitutionality of their conduct.

A.

Two provisions of the Constitution protect the parent-child relationship from unwanted interference by the state: the Fourth and the Fourteenth Amendments.²

First, parents "have a well-elaborated constitutional right to live" with their children that "is an essential liberty interest protected by the Fourteenth Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency." Wallis v. Spencer , 202 F.3d 1126, 1136 (9th Cir. 1999) ; accord Mabe v. San Bernardino Cty., Dep't of Pub. Soc. Servs. , 237 F.3d 1101, 1107 (9th Cir. 2001) ; Ram...