Starkey ex rel. A.B. v. Boulder County Soc. Serv.

• Citation: 569 F.3d 1244
• Decision Date: 29 June 2009
• Docket Number: No. 08-1013.,08-1013.
• Parties: Stephen STARKEY, and Bedra Starkey, on behalf of themselves and on behalf of A.B., C.D., and E.F.<SMALL><SUP>*</SUP></SMALL>, Plaintiffs-Appellants, v. BOULDER COUNTY SOCIAL SERVICES; Doreen Miller; Brian Russell; Holly Smith; Barbara Park; Julie Kintzing; Ann Baldwin, in their individual and official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

569 F.3d 1244

Stephen STARKEY, and Bedra Starkey, on behalf of themselves and on behalf of A.B., C.D., and E.F.^*, Plaintiffs-Appellants, v. BOULDER COUNTY SOCIAL SERVICES; Doreen Miller; Brian Russell; Holly Smith; Barbara Park; Julie Kintzing; Ann Baldwin, in their individual and official capacities, Defendants-Appellees.

No. 08-1013.

United States Court of Appeals, Tenth Circuit.

June 29, 2009.

Samuel Ventola, Ventola & Staggs P.C., Denver, CO, for Plaintiffs-Appellants.

Madeline J. Meacham, Deputy County Attorney, (Shelly Stratton Bailey, Assistant County Attorney, with her on the brief), Boulder, CO, for Defendants-Appellees.

Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

Stephen Starkey, his wife Bedra Starkey, and his three children, A.B., C.D., and E.F., brought this action in federal court under 42 U.S.C. § 1983 against the Boulder County Department of Social Services (BCDSS) and six BCDSS employees—Doreen Miller, Brian Russell, Holly Smith, Barbara Park, Julie Kintzing, and Ann Baldwin—sued in their official and personal capacities (collectively, Defendants). The Starkeys claimed that Defendants deprived Mr. and Mrs. Starkey of custody and contact with A.B., C.D., and E.F. because of their disapproval of the Starkeys' religious beliefs, and that Defendants failed to place the children in a reasonably safe and secure environment while in the custody of BCDSS. They contended that this conduct violated their Fourteenth Amendment substantive-due-process rights to family integrity, their First Amendment rights to the free exercise of religion, and the children's Fourteenth Amendment substantive-due-process rights to reasonably safe and secure placement while in government custody. They also raised claims under Colorado law. They sought injunctive relief and damages.

The United States District Court for the District of Colorado dismissed on Eleventh Amendment sovereign-immunity grounds all claims for damages against BCDSS and the individual Defendants in their official capacities. The court also denied injunctive relief against all Defendants. It later granted summary judgment against the Starkeys on their § 1983 claims against the individual Defendants in their personal capacities. With no remaining federal claims before it, the court chose not to retain jurisdiction over the state-law claims.

On appeal the Starkeys contend (1) that BCDSS and the individual Defendants in their official capacities were not entitled to sovereign immunity because BCDSS is not an arm of the state of Colorado, (2) that the district court improperly struck portions of the Starkeys' affidavits submitted with their response to Defendants' summary-judgment motion, and (3) that the district court erred by granting summary judgment to the individual Defendants on the First and Fourteenth Amendment claims because there were genuine issues of material fact as to whether all six individual Defendants violated their constitutional rights. We have jurisdiction under 28 U.S.C. § 1291.

We affirm the district court's ruling striking portions of the Starkeys' affidavits, and we hold that the Starkeys have failed to present sufficient evidence to raise a genuine issue that their constitutional rights were violated. Thus, we affirm summary judgment for the individual Defendants in their personal capacities. Because there was no underlying constitutional violation, the Starkeys' claims against BCDSS and the individual Defendants in their official capacities must also fail. For subtle reasons that will be discussed more fully below, we need not address the jurisdictional issue of Eleventh Amendment sovereign immunity.

I. BACKGROUND

We summarize the pertinent evidence presented to the district court with respect to Defendants' summary-judgment motion, viewing it in the light most favorable to the Starkeys.¹ See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1216 (10th Cir.2008). A.B. (born in 1991), C.D. (born in 1993), and E.F. (born in 1995) are the children of Mr. Starkey and his former wife, Susan Kozlowski. Mr. Starkey is now married to Bedra Starkey, and Ms. Kozlowski to Robert Kozlowski.

On August 20, 2004, the children contacted BCDSS, alleging abuse by Mr. Starkey and stating that they were planning to run away from home. The children said that Mr. Starkey had punished them by imposing time-outs for several hours, withholding food, forcing them to lie on the floor with their faces down for hours, spanking them, and hitting E.F. on the head. After interviewing Mr. Starkey and the children, Tamara Tacha, a caseworker at BCDSS but not a Defendant, filed a Petition in Dependency or Neglect (D & N Petition) in Boulder County District Court. In addition, the police filed criminal charges of child abuse against Mr. Starkey; he pleaded no contest and was sentenced to 18 months' probation.

On August 25 a hearing on the D & N Petition was held in state court. The children's guardian ad litem said that he believed that the children needed to be in foster care. The judge agreed, finding it in the best interests of the children to be placed in the temporary custody of BCDSS. The judge ordered (1) that legal custody of the children be placed with BCDSS, (2) that Mr. Starkey and Ms. Kozlowski have supervised visits with the children, and (3) that Mr. Starkey and Ms. Kozlowski complete psychological evaluations and interactional evaluations with the children.

On September 13 the case was transferred from Tacha to Defendant Miller. Ten days later the state court held another hearing. Mr. Starkey admitted that "[the children] lack proper parental care through the actions or omissions of their parent, guardian, or legal custodian," Aplee. Supp.App. at 756, and that "[t]here was conflict in the home," Aplt.App. Vol. II at 200. The court adjudicated the children "dependent or neglected," id., and ordered that there be no contact between Mr. Starkey and the children until the children were psychologically evaluated.

On October 29 Dr. Suzanne Pinto, a licensed psychologist, reported her evaluation of Mr. Starkey. The report expressed concerns about his psychological state and its effect on the children. It noted that he "ha[d] tried to raise [them] in isolation of a cult of one," and that only after the children had been removed from Mr. Starkey and placed "in a situation of perceived safety" were they willing to speak of their "considerable distress." Id. at 234. "While [Mr. Starkey] does not show all of the characteristics of paranoid schizophrenia," it noted, "this indeed may be possible. He does show a strong delusional system regarding both his relationship with God and in terms of his paranoia regarding others. This has led him to be an abusive individual, both physically, emotionally and spiritually." Id. The report further observed that "it is difficult for [Mr. Starkey] to recognize his own foibles and the impact of his behavior on the children." Id. at 233. Dr. Pinto concluded her report by recommending that the children not be returned to Mr. Starkey's care at that time.

At the next court hearing, on November 4, 2004, BCDSS submitted a proposed treatment plan for the Starkey family. The judge approved the plan with minor changes. The judge's order reiterated that it was in the best interests of the children to remain in the custody of BCDSS.

Sometime between the November 4 hearing and January 27, 2005, BCDSS moved A.B. to a separate foster home from her brother and sister. During this period all three children had weekly visits with Ms. Kozlowski (and their stepfather) and weekly visits with Mrs. Starkey. They did not have visits with Mr. Starkey.

On January 27, 2005, a permanency hearing was held in state court. Defendant Miller could not attend because of illness, but Defendant Russell, who had assisted her, testified. Russell said that "[t]he children have expressed a great deal of fear of their father and they've said they do not want to visit with him although at times they vacillate, you know, wondering what it would be like and are dealing with those issues in therapy." Id. at 248. The judge concluded that the return of the children to Mr. Starkey and Ms. Kozlowski was not yet appropriate.

In February 2005 the case was transferred from Defendant Miller to Dusti Moats, who is not a defendant in this case. In April, Mr. and Mrs. Starkey began having supervised visits with the children. About a month later A.B. reported to Moats that the children's initial allegations against their father in August 2004 had been exaggerated. She also said that she wanted to have unsupervised visits with her father and that she ultimately wanted to live with him part-time. C.D. confirmed that the allegations had been exaggerated and that she also wanted to live part-time with her father. E.F. continued to allege that his father hit him on the head, although he, too, wished for unsupervised visits and potentially part-time residence with Mr. Starkey.

On June 15 the case was transferred from Moats to Defendant Kintzing (and to Kintzing's supervisor, Defendant Park, in Kintzing's absence). On the same day, A.B. was returned to the custody of Ms. Kozlowski. C.D. and E.F. were returned to Ms. Kozlowski on June 30. Mr. Starkey and Ms. Kozlowski were apparently given equally divided custody beginning on August 1.

On Wednesday, August 31, 2005, Mr. Starkey picked up the children for his scheduled parenting time. Four days later Mr. Starkey dropped C.D. and E.F. off with Ms. Kozlowski, but A.B. remained with him. On Wednesday, September 7, Mr. Starkey received a call from A.B.'s school because A.B. was having an anxiety attack. He picked her up from school and drove her to the hospital. On the way, A.B. calmed down and told Mr. Starkey that she did not want to go into the hospital for treatment.

That evening Mr. and Mrs. Starkey took A.B. to Victory Church, where she had recently joined a youth group. A...