Michael C. v. Gresbach, 05-C-650.
| Decision Date | 19 March 2007 |
| Docket Number | No. 05-C-650.,05-C-650. |
| Citation | 479 F.Supp.2d 914 |
| Parties | MICHAEL C., Cherita C., Kimberly W., Alexis C. and Ian W., Plaintiffs, v. Dana GRESBACH, Denise Revels Robinson and Helene Nelson, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Michael D. Dean, Michael D. Dean LLC, Waukesha, WI, Stephen M. Crampton, Brian Fahling, Michael J. Deprimo, Stephen M. Crampton, Tupelo, MS, for Plaintiffs.
John J. Glinski, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants.
DECISION AND ORDER
Three adult plaintiffs, parents and stepparents of the two minor plaintiffs, stepsiblings Ian W. ("Ian") and Alexis C. ("Alexis"), and the minor plaintiffs, bring this action under 42 U.S.C. 1983. They seek damages against defendant Dana Gresbach, a social worker, alleging that she subjected each of the minor plaintiffs to an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments and violated all plaintiffs' rights to due process of law in violation of the Fourteenth Amendment. Plaintiffs also assert official capacity claims against Gresbach and two of her superiors, seeking declaratory and injunctive relief, and raise supplemental state law claims. Before me are plaintiffs' motion to strike, plaintiffs' motion for partial summary judgment, and defendants' motion for summary judgment.
Alexis and Ian attended the Good Hope Christian Academy ("Good Hope"), a private elementary school in Milwaukee. In February 2004, a relative reported to the Bureau of Milwaukee Child Welfare ("MCW"), a subagency of the Wisconsin Department of Health and Family Services ("DHFS"), that Michael hit Ian on the wrist with a plastic stick. MCW assigned Gresbach to investigate. Gresbach visited Good Hope and advised school principal Cheryl Reetz that she was investigating an allegation of child abuse and that she wished to interview Ian and Alexis. Reetz asked whether she should first contact Ian and Alexis's parents, and Gresbach discouraged her from doing so. Reetz also asked if she could observe the interviews, and Gresbach said that she could not.
Gresbach first interviewed Ian, who told her that Michael sometimes hit him with a flexible stick. Gresbach examined Ian's wrist and saw no marks. She then told Ian to lift up his shirt. Ian did so and Gresbach examined him and found no evidence of injury. Gresbach then interviewed Alexis, who told her that her parents sometimes gave her "whoppings," but that they had not caused marks or injuries. (Pls.' Mot. for Summ. J. Ex. 4 at 3.) Gresbach told Alexis to pull down her tights, and Alexis did so.1 Gresbach examined her and again found no evidence of harm. Gresbach took no further action regarding the matter.
I will state additional facts in the course of the decision.
Plaintiffs move to strike the affidavits of Gresbach's, coworkers submitted in support of Gresbach's claim of entitlement to qualified immunity. The affiants aver that they would have handled the matter as Gresbach did. Plaintiffs argue that defendants failed to timely disclose the affiants' identities and that the affidavits contain inadmissible opinion testimony. Defendants respond that they only recently became aware of the names of the affiants and that the affidavits are factual in nature. While I am skeptical as to whether the affidavits present facts as opposed to opinions, I will deny plaintiffs' motion to strike. As discussed below in determining whether Gresbach is entitled to qualified immunity, I find the affidavits of little value.
Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law:"` Fed. R.Civ.P. 56(c). For a dispute to be "genuine," the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed2d 202 (1986). Per a dispute to be "material," it must relate to facts that might affect the outcome of the suit under the governing law. Id.
In evaluating a motion for summary judgment, I draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed2d 538 (1986). Where, as here, both parties have moved for summary judgment both are required to show that no genuine issues of fact exist, taking the facts in the light most favorable to the party opposing each motion. If issues of fact exist, neither party is entitled to summary judgment. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.1983).
Plaintiffs may recover under § 1983 if they can establish that a defendant violated their constitutional rights under color of state law. Abraham v. Piechawski, 13 F.Supp.2d 870, 880 (E.D.Wis. 1998). Ian and Alexis claim that Gresbach violated their Fourth and Fourteenth Amendment' rights both by interviewing them and by examining their bodies under their clothes, and they seek summary judgment on the issue of Gresbach's liability for the latter conduct. Gresbach denies that she violated their rights and also argues that she is entitled to qualified immunity. She moves for summary judgment on Ian's and Alexis's Fourth Amendment claims. In addressing the parties' motions, I first determine whether Gresbach violated Ian's and Alexis's constitutional rights. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ().
The Fourth Amendment protects "[t]he right of the people to be secure in the persons, homes, papers, and effects against unreasonable searches and seizures." U.S. Const. Amend. IV. The protection provided in the amendment extends to children subjected to searches and/or seizures by social workers and to the schools in which they are enrolled. Doe v. Heck, 327 F.3d 492, 509 (7th Cir. 2003).
In Heck, the plaintiffs alleged that based on a report that a private school principal was corporally punishing students, MCW social workers visited the church that housed the school and asked to interview a child who had reportedly been paddled. Id. at 502-03. The principal and the church's pastor refused to permit the interview. Id, at 503. The social workers then called the police, who directed the principal and the pastor to allow the interview, which they did. Id. The Seventh Circuit concluded that the social workers had unreasonably searched the church and unreasonably seized the child. Id. at 510. The court held that child protection workers could only enter a private school and interview a child without the principal's consent if they had probable cause, entered pursuant to a court order or if there were exigent circumstances. Id. at 513. The court further stated that "to the extent Wis. Stat. § 48.981(3)(c)(1) [] authorizes government officials to conduct an investigation of child abuse on private property without a warrant or probable cause, consent or exigent circumstances, the statute is unconstitutional." Id. at 515-16. However, because the court found the statute to be facially valid at the time that the social workers acted, the court held that the social workers were entitled to qualified immunity. Id. at 516. Nevertheless, it noted that: "We now make it clear that it is patently unconstitutional for government officials to search the premises of a private or parochial school and/or seize a child attending that school without a warrant or court order, probable cause, consent, or exigent circumstances." Id. at 517.
In the present case, Gresbach did not have a court order and defendants do not assert that she had probable cause or that exigent circumstances existed. However, defendants argue that she acted reasonably because Reetz, who stood in loco parentis with respect to the children, consented to her actions. Ian and Alexis do not dispute that Reetz had the authority to permit Gresbach to interview them but argue that whether she voluntarily consented to the interviews is a question of fact for a jury and that Reetz did not consent to Gresbach's under the clothes examinations as a matter of law.
A search or seizure does not vio late the Fourth Amendment if an authorized person consents to it. A person can manifest consent through actions as well as words. United States v. Walls, 225 F.3d 858, 863 (7th Cir.2000) (). The permissible scope of a search made lawful by consent is limited by the scope of the consent. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). In determining the scope of consent, a court asks, "what would the typical reasonable person have understood the scope of consent to be by the exchange between the [official] and the [consentor]." Id.; see also United States v. Breit, 429 F.3d 725, 729 (7th Cfr.2005). When the consenter expressly limits the scope of her consent, the official must limit her action accordingly....
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...defendant's] consent [to search] was voluntary and whether he was illegally seized—are reviewed de novo.”), and Michael C. v. Gresbach, 479 F.Supp.2d 914, 920 (E.D.Wis.2007) (“Because voluntariness is determined based on a reasonable person standard, it is treated as a question of law.”). ¶......
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Wendrow v. Mich. Dep't of Human Servs.
...Carley argue that school officials' consent to the interviews may be substituted for IW's consent, relying on Michael C. v. Gresbach, 479 F. Supp. 2d 914, 922 (E.D. Wis. 2007). Gresbach, however, appears to be wrongly decided. See New Jersey v. T.L.O., 469 U.S. 325, 336 (1985) ("In carrying......