Malik v. Arapahoe County Dept. of SS.

• Decision Date: 14 September 1999
• Docket Number: Nos. 97-1476,97-1477,s. 97-1476
• Citation: 191 F.3d 1306
• Parties: (10th Cir. 1999) LOUISE MALIK, individually and as mother and natural guardian of her daughter; JULIE MALIK, a minor, Plaintiffs - Appellees, v. ARAPAHOE COUNTY DEPARTMENT OF SOCIAL SERVICES, an agency for the County of Arapahoe; COLORADO DEPARTMENT OF SOCIAL SERVICES, an agency of the State of Colorado; AURORA POLICE DEPARTMENT, an agency of the government of the City of Aurora; AURORA, CITY OF, Defendants, and ROBERTA D. COLEMAN and MYRLENE C. THORPE, Defendants - Appellants
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1306

191 F.3d 1306 (10th Cir. 1999)

LOUISE MALIK, individually and as mother and natural guardian of her daughter; JULIE MALIK, a minor, Plaintiffs - Appellees, v. ARAPAHOE COUNTY DEPARTMENT OF SOCIAL SERVICES, an agency for the County of Arapahoe; COLORADO DEPARTMENT OF SOCIAL SERVICES, an agency of the State of Colorado; AURORA POLICE DEPARTMENT, an agency of the government of the City of Aurora; AURORA, CITY OF, Defendants, and ROBERTA D. COLEMAN and MYRLENE C. THORPE, Defendants - Appellants.

Nos. 97-1476, 97-1477.

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 14, 1999

Appeal from the United States District Court for the District of Colorado. D.C. No. 95-K-144

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Edward M. Caswall of Alperstein & Covell, P.C., Denver, Colorado and Robert Stephan Hall (Marc F. Colin with him on the briefs), of Bruno, Bruno and Colin, P.C., Denver, Colorado, for the Appellant.

Daniel M. Reilly (Robert C. Brown and Ann C. Kiley with him on the briefs), of McKenna & Cuneo, L.L.P., Denver, Colorado, for the Appellee

Before EBEL, MAGILL^* and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Defendants Roberta Coleman and Myrlene Thorpe appeal the district court's denial of summary judgment in this civil rights action. The district court denied summary judgment for Coleman on her claims of absolute and qualified immunity, and denied summary judgment for Thorpe on her claims of qualified immunity, finding sufficient disputed facts to support a conclusion that Coleman's actions were outside the scope of absolute immunity, and that both defendants' actions violated clearly established law. Appellants contest these conclusions, as well as other decisions by the district court regarding state law claims, conspiracy, hearsay evidence, and attorneys fees. The case requires us to consider to what extent the reviewability doctrine enunciated in Behrens v. Pelletier, 516 U.S. 299, 313 (1996), and Johnson v. Jones, 515 U.S. 304, 317 (1995), and the pendent appellate jurisdiction doctrine permit us to review appellants' various claims. We affirm the district court's denial of summary judgment based on claims of absolute and qualified immunity, as well as its reinstatement of plaintiffs' conspiracy claim, and dismiss the remainder of appellants' claims for lack of jurisdiction.

I

On January 6, 1994, Inspector Pat Carr, a Denver-based enforcement officer for the United States Postal Inspector, contacted the Aurora, Colorado Police Department concerning ten photographs of a partially clothed young female child, some with full frontal genital exposure. The pictures had been forwarded to Carr's office from a Texas photo processing plant by the Dallas Police Department, and had originally been sent for processing from an Aurora address. Inspector Carr and defendant Roberta Coleman, an officer with the Aurora Police Department, began an investigation into the photos as potential violations of child pornography laws. Of particular concern to both officers was an area of the child's torso that appeared in some photos to indicate that the child's body was bruised.

Coleman learned that the person who sent the photos for processing was appellee Louise Malik, an Aurora resident who had a four-year-old daughter named Julie. On January 11, 1994, Coleman called Malik and, without being informed of the subject of the investigation, Malik agreed to drive to the police station for an interview. Soon after Malik arrived, Coleman advised her of her Miranda rights both verbally and in writing, and Malik acknowledged and signed a written advisement without requesting counsel. Coleman then told Malik the reason for the police's concern and showed her the photographs of Julie.

Malik informed the officers that the photos had been taken five months earlier by her brother Jim Maszle, a New York-based artist. Maszle had visited Malik in August 1993, two months after the death of Malik's husband (and Julie's father) in a car accident. During his visit, Maszle took approximately ten rolls of innocuous photographs of various subjects, including his family and friends. Maszle had also taken the photographs of Julie that had become the subject of Coleman and Carr's investigation. Months after Maszle's visit, Malik sent the film to a processing plant in Texas for developing.

Carr informed Malik that sending or receiving through the mail photographs depicting child genitalia was a felony. Malik denied that the photographs were pornographic; rather, she characterized them as artistic and denied that the shaded areas on Julie's torso in the photographs were the result of bruising. Malik claims that as the questioning continued, she stated multiple times that she felt she needed a lawyer present. Coleman allegedly told Malik that she didn't need a lawyer, and that "if you can just give us reasonable explanations, this will probably all go away." Appellee's Supp. App. at 55. At the end of the interview, Coleman told Malik that her statement would be presented to the District Attorney, who would decide whether to proceed further in the investigation of the photos.

Pursuant to Coleman's request during the interview, Malik contacted Maszle that evening and requested that he call the Aurora Police Department. During a January 13 interview with Coleman, Maszle was read Miranda warnings and admitted taking the photos of his niece, although he denied having any prurient interest in taking them.

Coleman called Malik on January 14, and they scheduled an interview with Julie on January 19. Concerned about both the threat of prosecution and the imminent questioning of her daughter, Malik retained attorney Norman Mueller on January 17 to represent her. The next day, Mueller contacted Coleman, at which time Coleman informed the attorney that she would have to cancel the January 19 interview because of another investigation. Coleman insisted that Julie be made available for an interview, and allegedly told Mueller that if he did not cooperate, she would get a court order to gain access to the child. Although Mueller alleges that he and Coleman discussed both a date and a set of procedures and conditions for such an interview, Coleman concluded from the conversation that Mueller was not going to allow Julie to be interviewed.

Coleman called Malik directly on January 19 to reschedule the interview with Julie, even though she now knew Malik was represented by counsel. When Malik informed Coleman that she had retained a lawyer, Malik claims that Coleman told her, "this has nothing to do with your attorney . . . this has to do with Julie." Appellant's Supp. App. at 130. Coleman dismissed Malik's requests that the interview be recorded. Malik alleges that Coleman aggressively attempted to schedule the interview during the call, and that she felt trapped into agreeing to reschedule the interview for January 21.

The next day, January 20, Mueller faxed a letter to Coleman protesting the officer's direct contact with Malik, and reasserting his client's conditions for an interview with Julie. Specifically, he demanded that the police videotape the interview and that Malik be in attendance during the questioning. He also requested that Dr. Kathryn Jens, a child psychologist, screen the questions to be posed to Julie before the interview and attend the interview itself. Finally, because of his and Dr. Jens's unavailability on January 21, Mueller rejected the interview date Coleman had scheduled with Malik and proposed as alternatives either Friday, January 28, or the week of Monday, January 31. Coleman claims not to have read the letter until the afternoon of January 21.

Coleman and defendant Myrlene Thorpe, a caseworker with Arapahoe County Department of Social Services ("ACDSS") who had been assigned to the Julie Malik case, met that same day with Bob Ledwith, a physician's assistant on contract with ACDSS, who told Coleman and Thorpe that he did not believe the darkened spots on Julie's torso in the photos "necessarily represented bruising," and recommended that the pictures be shown to an expert. Appellees' Supp. App. at 106. During that same meeting, Coleman and Thorpe discussed the scheduling of the interview with Julie, and specifically considered a court order "of some sort" because Mueller "was not going to allow me to have access to Julie." Appellees' Supp. App. at 28. Coleman's handwritten notes concerning the meeting include the statement "Draw it up, court order, Monday, court Tuesday," with an accompanying bracketed phrase "(Plan of action)." Appellees' Supp. App. at 27. In her deposition, Coleman described the "plan" as a collaborative effort by Coleman, Thorpe, the Aurora Police Department, and the ACDSS to obtain a court order "[i]f Mr. Mueller and Mrs. Malik did not show up for appointments or provide Julie for our interview." Appellants' Supp. App. at 29.

On Friday, January 21, Coleman discussed Julie's case and Mueller's January 20 letter with Thorpe. Both agreed that the conditions Mueller demanded were "generally unacceptable" to them. Appellee's Supp. App. at 107. After her conversation with Coleman, Thorpe immediately called Mueller. Mueller and Thorpe vehemently disagree about the tone and content of their conversation. Whereas Mueller described Thorpe as "friendly" and "congenial" and concluded that Thorpe viewed the case as "no big deal," Appellants' Supp. App. at 84, Thorpe characterized Mueller as argumentative and "fairly accusatory" in his insistence about the legal requirements for interviewing Julie, Appellees' Supp. App. at 109.

After her conversation with Mueller, Thorpe called Lynne Graves of the County Attorney's office to discuss Julie's case, as well as what she characterized in her deposition as "the problem [Thorpe] was having with the attorney allowing the interview." Appellants' Supp. App. at 186. Other than informing Graves of Mueller's specific request that the police...