Morrell v. Mock

Decision Date01 November 2001
Docket NumberNo. 00-1429,00-1429
Citation270 F.3d 1090
Parties(7th Cir. 2001) Stacey Morrell, individually and as next friend for Joshua Morrell, an infant, Plaintiff-Appellant, v. Philip Mock, et al., Defendants-Appellees
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 2459--George W. Lindberg, Judge. [Copyrighted Material Omitted] Before Flaum, Chief Judge, and Kanne and Williams, Circuit Judges.

Williams, Circuit Judge.

Three law enforcement officers, acting on directions from two assistant state's attorneys, took Stacey Morrell's child from her home in Illinois and gave the child to his putative father pursuant to an ex parte order issued by a New Mexico court. In this appeal we must decide if Morrell has stated a claim for deprivation, without due process, of a constitutionally protected liberty interest, and if so, whether the defendants are entitled to qualified immunity from suit. Although we hold that Morrell's allegations are sufficient to state a constitutional claim, we agree with the district court that defendants are entitled to immunity and therefore affirm the judgment of the district court.

A. Facts

Stacey Morrell had an affair with John Howell while both were assigned to a military base in Albuquerque, New Mexico. After the affair ended, Morrell reconciled with her husband, David, and the couple moved to El Paso, Texas, where David had been assigned for active duty. In El Paso, Stacey Morrell gave birth to Joshua Morrell. David Morrell was identified as the father on Joshua's birth certificate.

Meanwhile, Howell filed a "Petition to Establish Paternity, Custody, and Time Sharing" in a New Mexico court, and on the day before Joshua was born in El Paso, Howell attempted service on Morrell by posting a copy of the summons and petition on the premises of her former home in Albuquerque. Morrell never received that posted notice, and after she failed to enter an appearance, Howell moved for a default judgment. At a hearing on Howell's motion, New Mexico Judge Anne Kass ordered that Morrell be served by personal service and ordered her to appear in court on the day following service. That order was served on Morrell by hand delivery in El Paso, and when she failed to appear the next day, Judge Kass entered the following order:


Respondent was personally served with an order to appear at 9:00 a.m. the first business day following service. She was personally served on June 17, 1998. She failed to appear at 9:00 a.m. June 18, 1998.

Respondent has intentionally been avoiding service of process in this paternity case.

Respondent has willfully failed and refused to participate in an orderly process to determine parentage.


I. Law Enforcement Authorities are authorized and requested to assist John D. Howell . . . in obtaining physical custody of a male child born on or about 3/17/98.

II. Upon obtaining physical custody, a parentage determination shall be undertaken. It may be undertaken in New Mexico or in South Carolina as Mr. Howell decides.

III. If parentage determination is undertaken in So. Carolina or in any other state, New Mexico relinquishes jurisdiction to such other state to determine custody, visitation and child support issues.

IV. Judgment is entered against Stacey J. Morrell in favor of John D. Howell for fees and costs herein of $3,000.00.

After the order was entered, Morrell filed a special appearance contesting jurisdiction. At about the same time, David Morrell's active duty assignment in El Paso ended, and the family moved to Stacey Morrell's parents' home in Indiana while David Morrell sought new employment. There, Stacey Morrell filed a petition to establish paternity, and Howell responded with a motion to dismiss, relying on the New Mexico court's prior assertion of jurisdiction and asserting that he had already commenced another paternity action in South Carolina (where Howell resided). While the Indiana action was pending, David Morrell secured a job in Illinois, and the Morrells moved there with Joshua.

Howell then traveled to Illinois and filed the New Mexico order with the Will County Circuit Court clerk. Howell appeared that same day on an emergency motion before the Will County Circuit Court and requested enforcement of the New Mexico order by way of a body attachment (a civil writ ordering the seizure of a person). The Illinois judge refused to issue the writ without notice to Stacey Morrell. Undeterred, Howell went to the Will County State's Attorney's office and spoke to defendant Judy DeVriendt, an assistant state's attorney. DeVriendt telephoned the local police and told them to take custody of Joshua pursuant to the New Mexico order. When the local police went to Stacey Morrell's home, she showed them pleadings from the Indiana action. After consulting with their superiors, the police decided not to take custody of Joshua and advised Howell that they would not take further action without an order from the Will County court.

DeVriendt then consulted defendant Philip Mock, chief of the state's attorney's civil division. Mock reviewed the New Mexico order and the docket sheet from the hearing before the Will County Circuit Court, which showed that the court had denied Howell's emergency motion for a body attachment. Mock then read the Illinois Uniform Child Custody Jurisdiction Act (UCCJA), 750 Ill. Comp. Stat. 35/1, et seq., which governs the recognition in Illinois of custody determinations of other states. He also checked the circuit court's computer database to determine whether any other orders or judgments involving these parties had been filed in Will County, and directed his subordinates to verify that the New Mexico order had not been vacated. Mock concluded that the New Mexico order was valid and directed DeVriendt to have the Will County Sheriff's Department pick up the child and give him to Howell.

Defendant Richard Ackerson, an investigator with the Will County Sheriff's Department, was assigned to the case. According to Ackerson, DeVriendt showed him the New Mexico order and paperwork from the Indiana action, told him that the New Mexico order had been validated by an Illinois judge, and directed him to arrest Morrell if she did not cooperate. Acting on her instructions, Ackerson and two deputy sheriffs, defendants Richard Holman and Keith Ploense, went to the Morrells' home. As she had when the police visited a few days earlier, Morrell showed the sheriff's deputies the paperwork from the Indiana action. She also asked them to speak by telephone with her lawyer in Indiana, who told them that the Indiana action had "superceded" the New Mexico order. Ackerson replied that he had instructions to serve the New Mexico order, which was the only one that had been "validated" in Illinois. Morrell gave Joshua to the deputies--after being threatened with arrest if she refused--and the deputies gave the eight-month-old infant to Howell. Howell immediately returned to South Carolina with Joshua.

Later that day, Morrell appeared before another judge in Will County, who ordered Mock to retrieve the baby. Joshua was reunited with his mother four days later.

B. The District Court Proceedings

Morrell filed suit on behalf of herself and Joshua claiming a deprivation, without due process, of their liberty interests in familial relations protected by the Fourteenth Amendment. After discovery, all parties moved for summary judgment. Without reaching the question of whether there had been a constitutional violation, the district court held that the deputies were absolutely immune from liability for damages arising from their execution of the court order. With respect to the assistant state's attorneys, the court held that reasonable persons in their position would not have known that ordering the child to be seized was unconstitutional, and that they were therefore entitled to qualified immunity from damages. The court therefore granted the defendants' motions for summary judgment, denied the plaintiff's cross motion for summary judgment, and entered judgment for the defendants.


To evaluate defendants' claim of qualified immunity under § 1983, the court must decide (1) whether plaintiff has stated a claim for violation of her constitutional rights, and if so, (2) whether those rights were clearly established at the time of the violation, such that a reasonable official would understand that what he was doing violates those rights. Wilson v. Layne, 526 U.S. 603, 609 (1999); Mitchell v. Randolph, 215 F.3d 753, 755 (7th Cir. 2000). We first address the constitutionality of the defendants' conduct. Saucier v. Katz, 121 S.Ct. 2151, 2155-56 (2001); Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001). On that question, "we are required to determine only whether [the plaintiff's] allegations, if true, state a claim of deprivation." Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001); see also Katz, 121 S.Ct. at 2156. We review the district court's judgment de novo. McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).

A. The Constitutional Violation

Morrell contends that the New Mexico court lacked jurisdiction, and that the court's order could not be enforced in Illinois until Morrell received notice and an opportunity to be heard in Illinois. Her claim is based on a mother's liberty interest, protected by the due process clause of the Fourteenth Amendment, in the companionship, care, custody, and control of her child. See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981); Brokaw v. Mercer County, 235 F.3d 1000, 1020 (7th Cir. 2000); Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir. 1982).1 To meet the requirements of due process, the state must afford notice and an opportunity to be heard "at a meaningful time and in a meaningful...

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