Mcbeth v. Himes

Decision Date08 March 2010
Docket NumberNo. 07-1165,No. 07-1283,07-1165,07-1283
Citation598 F.3d 708
PartiesKaren McBETH, Plaintiff-Appellee, v. Jeffrey HIMES, individually and as an investigator and deputy sheriff of the Arapahoe County Sheriffs Office, Defendant-Appellant. Karen McBeth, Plaintiff-Appellant, v. Terry L. Santi, individually and in her capacity as a Department of Human Services Employee; Kathi Wagoner, individually and in her capacity as a Department of Human Services Employee; Jeffrey Himes, individually and as an investigator and deputy sheriff of the Arapahoe County Sheriffs Office, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

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Robin Cochran, Assistant County Attorney (Kathryn L. Schroeder, Arapahoe County Attorney, Douglas Jewell and Sean T. Olson of Bruno, Colin, Jew'ell & Lowe P.C., Denver, CO, with her on the briefs) Littleton, CO, for Defendant-Appellant in Case No. 07-1165.

A. Thomas Elliott, Jr. of A. Thomas Elliott, Jr., P.C., Denver, CO, for PlaintiffAppellee in Case No. 07-1165. A. Thomas Elliott, Jr. of A. Thomas Elliott, Jr., P.C., Denver, CO, for PlaintiffAppellant in Case No. 07-1283.

Kathleen L. Spalding, Assistant Attorney General (John W. Suthers, Attorney General; Friedrick C. Haines, First Assistant Attorney General with him on the brief), Denver, CO, for Defendants-Appellees Terry L. Santi and Kathi Wagoner in Case No. 07-1283.

Robin E. Cochran, Deputy County Attorney, Kathryn L. Schroeder, Arapahoe County Attorney, Littleton, CO, and Douglas Jewell and Sean T. Olson of Bruno Colin, Jewell & Lowe, P.C., Denver, CO filed a brief for Defendant-Appellee Jeffrey Himes in Case No. 07-1283.

Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

These consolidated appeals arise out of an investigation by the Arapahoe County Sheriffs Office and the Colorado Department of Human Services, Division of Child Care ("DHS") that resulted in Karen McBeth surrendering her license to run a daycare facility in Colorado. The district court granted summary judgment in favor of DHS employees Terry Santi and Kathi Wagoner on all counts on the ground of qualified immunity, and granted Detective Jeffrey Himes qualified immunity on all counts except for McBeth's claim that he retaliated against her for exercising her First Amendment rights. McBeth v. Santi No. 02-cv-00851-JLK, 2007 WL 274743, at *6 (D.Colo. Jan. 29, 2007). In appeal number 07-1165, Himes appeals the district court's denial of qualified immunity on the First Amendment claim; in appeal number 07-1283, McBeth appeals the district court's grant of qualified immunity on all the other claims. We REVERSE the denial of qualified immunity to Himes DISMISS the appeal of the grant of qualified immunity to Himes, and AFFIRM the grant of qualified immunity to Santi and Wagoner.

I. Background

In 2001, McBeth possessed a valid license issued by DHS, authorizing her to operate a daycare facility in her Littleton, Colorado home. See Colo.Rev.Stat. § 266-104(l)(a) (requiring operator of daycare facility to possess a license). Steven Forsyth, McBeth's adult son, also lived in the house at the time. Forsyth had visitation rights with his minor daughter, E.F., every other weekend. E.F. spent the weekend of June 23, 2001 with her father at McBeth's home. One of E.F.'s friends, E.W., spent time with E.F. and Forsyth that weekend, and afterwards told her parents that Forsyth had sexually assaulted both her and E.F. E.W.'s parents contacted the police and, on June 24, the police went to McBeth's home and arrested Forsyth.

Jeffrey Himes, an investigator with the Arapahoe County Sheriffs Office assigned to the Child Victims Unit, was assigned to investigate the charges against Forsyth. On June 25, Himes asked McBeth for her records concerning the children who currently attended her daycare, and McBeth voluntarily complied. At some point either on the 25th or the 26th, Himes also asked McBeth for the records regarding all the children who had attended the daycare since 1995, when Forsyth began living with McBeth. On the 26th, McBeth informed Himes that she had consulted with an attorney, who told her that she did not have to turn over any records in the absence of a court order directing her to do so. Pursuant to that advice, McBeth declined to provide the additional records Himes sought. Later that same day, Himes obtained and executed a search warrant forthe records in question, and McBeth then turned them over. None of the parents contacted by Himes claimed that Forsyth molested or abused their children.

While Himes was conducting the police investigation, DHS began its own investigation. On June 25, the day following her son's arrest, McBeth called Kathi Wagoner, a Licensing Specialist employed by Front Range Community College.1 Wagoner was responsible for conducting licensing interviews on behalf of DHS, as well as investigating allegations of child abuse. During their conversation on June 25, McBeth informed Wagoner of her son's arrest and told her that the alleged conduct took place in McBeth's home. McBeth apparently only told Wagoner that Forsyth was accused of molesting his daughter and did not mention E.W. After speaking to McBeth, Wagoner called Terry Santi, her supervisor at DHS, and informed Santi of her conversation with McBeth.

On June 26, according to McBeth, after she denied Himes' request for her records dating back to 1995, Himes complained to Santi at DHS that McBeth was refusing to cooperate with the police investigation by withholding the records of her former daycare clients. McBeth alleges that as a result of this complaint, Wagoner came to McBeth's home and threatened to take her daycare license. Prior to doing so, Wagoner told McBeth that she was required to produce the records sought by Himes. While Wagoner was in McBeth's home, McBeth spoke to Santi on the phone, who informed her that DHS would suspend her license because of Himes' "complaint" that she was not cooperating with the police. Santi informed her that if she voluntarily relinquished her license, it would be easier for McBeth to have it reinstated. Directly as a result of this "coercion, " McBeth argues, she surrendered her license to Wagoner.

The defendants dispute significant portions of this account of the June 26 events. The parties agree that Himes informed DHS on June 26 that McBeth was refusing to turn over her records.2 According to Santi, however, the information provided by Himes did not cause DHS to seek to retaliate against McBeth; rather, the nature of the charges against Forsyth and the potential threat of harm to children resulted in DHS assigning the complaint against McBeth a severity level of one, which is the second highest level of seriousness and requires inspection and contact with the licensee within forty-eight hours. Pursuant to this categorization of the complaint, Wagoner visited McBeth on June 26. Before going to McBeth's house, Wagoner first contacted Himes, who informed her that he was in the process of obtaining a warrant and assured her that her visit would not interfere with his investigation. Wagoner told McBeth that shewas there "because of a complaint received concerning [McBeth's] refusal to cooperate with authorities." (App. at 271.) McBeth informed Wagoner that her attorney advised her to withhold the records; this is the first time that the record shows either Wagoner or Santi learned that McBeth had spoken with an attorney.

Wagoner suggested that if McBeth felt uncomfortable turning over the records to the police, McBeth could turn them over to her instead, but McBeth declined to do so. While Wagoner was still at McBeth's house, Wagoner received a call from Santi, who told her that she had learned from Himes that a second child victim (E.W.) had been identified, and that because the charges now extended beyond the immediate family, DHS had decided to proceed with emergency suspension of McBeth's license. Santi and Wagoner then explained McBeth's options to her, and told her that it would be easier to have her license reissued if she voluntarily surrendered it because that would not appear on her permanent record. Although initially reluctant to do so, McBeth ultimately gave Wagoner her license.

McBeth brought suit against Santi, Wagoner, and Himes, alleging violations of her Fourth, Sixth, and Fourteenth Amendment rights, and seeking a declaratory judgment, damages, and injunctive relief pursuant to 42 U.S.C. § 1983.3 Shortly after commencing her suit, McBeth applied for and received a new daycare license, and she has accordingly withdrawn her claim for injunctive relief. The defendants all moved for summary judgment on the ground that they are entitled to qualified immunity. The district court granted Santi and Wagoner's motion for summary judgment, concluding that they did not violate any clearly established rights of McBeth. McBeth, 2007 WL 274743, at *6. The court also granted in part Himes' motion for summary judgment on the ground of qualified immunity, but concluded that a factual dispute precluded summary judgment as to McBeth's claim that Himes violated her constitutional rights by retaliating against her for consulting with an attorney. Id. at *4-6. The district court denied Himes' motion to reconsider. In appeal number 07-1165, Himes appeals the district court's denial of summary judgment on qualified immunity grounds. In appeal number 07-1283, McBeth appeals the district court's grant of summary judgment to Himes, Santi, and Wagoner. Based on the common facts, record, and parties, this court consolidated the appeals.

II. Discussion
A. Himes

The district court denied Himes' motion for summary judgment on qualified immunity grounds as to McBeth's claim that Himes called DHS in retaliation for McBeth exercising her First Amendment right to consult with an attorney. Id. at *4-5. The court also granted Himes' motion for summary judgment regarding McBeth's claims that he...

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