Stem v. Ahearn

• Decision Date: 13 August 1990
• Docket Number: No. 89-2956,89-2956
• Parties: Stephen C. STEM, Plaintiff-Appellee, v. Ralph AHEARN and Chris Card, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1

908 F.2d 1

Stephen C. STEM, Plaintiff-Appellee, v. Ralph AHEARN and Chris Card, Defendants-Appellants.

No. 89-2956.

United States Court of Appeals, Fifth Circuit.

Aug. 13, 1990.

Sue Berkel, Asst. Atty. Gen., Patrick J. Fenney, Jim Mattox, Atty. Gen., Tort Lit. Div., Austin, Tex., for defendants-appellants.

John K. Grubb, Grubb & Dicecco, Chari Harnett-Kiger, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This civil rights action follows an acrimonious child-custody dispute, with one parent leveling charges of child molestation against her former husband. Child protective services workers investigated and concluded, despite medical evidence to the contrary, that the father had sexually abused his minor daughter. As a consequence of this investigation, the mother secured a temporary state court order certifying herself as the exclusive conservator of the child.

Enjoined by court-ordered visitation, the father was denied access to his daughter for over four months. He asserts constitutional claims against the child protective services workers, the investigating agency, and the county. Among other charges, the father maintains that his fundamental parental rights were terminated without due process of law and, independently, that the investigation of the alleged molestation was orchestrated negligently and impinged upon various constitutional guarantees.

The district court granted partial summary judgment in favor of the agency and county. The court declined to grant summary judgment in favor of the individual defendants, however, concluding that they are not immune from suit in either their individual or official capacities. This appeal follows that adverse immunity determination. Concluding that the child protective services workers enjoy immunity from liability, in both their official and personal capacities, we reverse.

I.

Stephen Stem agreed informally with his estranged wife, Lee Anne, to share custody of their two minor children pending a final decree of divorce. However, before a state court had the occasion to adjudicate custodial rights, the wife accused Stem, after the child's return from a weekend visit, of sexually abusing the minor daughter. Lee Anne did not confront her husband immediately about the child's well-being, electing instead to take her to the hospital for a physical examination. That examination evinced no medical evidence of molestation. The examining physician, however, dutifully notified the Harris County Children's Protective Services (HCCPS) of the alleged sexual abuse.

Ralph Ahearn is the child protective services employee charged with the investigation of this case. After interviewing the wife and child, Ahearn concluded that Stem had indeed molested his daughter, despite the lack of medical corroboration. Ahearn, however, never interviewed Stem or notified him of his investigation. Stem first learned of HCCPS's investigation when the agency petitioned to secure a temporary state court order to confer exclusive possessory conservatorship of the child upon his wife.

Stem argues that the investigation of the charge of child molestation, raised by his estranged wife, was so grossly negligent that it served to terminate fundamental parental rights in contravention of the process minimally due under the Constitution. Specifically, he was never given notice of the investigation or given an opportunity to be heard on the sexual-abuse charges prior to his condemnation, before HCCPS, of being a molester. Presumably, an interview would have cured any suspicion harbored by HCCPS investigators.

Relying upon alleged breaches of the fifth, sixth, and fourteenth amendments, Stem seeks $7 million in actual and punitive damages under 42 U.S.C. Sec. 1983 against Harris County and HCCPS and against Ahearn, and his supervisor, Chris Card, both of whom are sued in their official and private capacities. The Attorney General of Texas answered the civil complaint on behalf of all named defendants.

On motion for summary judgment, the district court agreed with the Attorney General that HCCPS is an organizational arm of the Texas Department of Human Services (TDHS) and that such a state agency enjoys eleventh amendment immunity. Further, Harris County, like all instruments of county government, cannot be held vicariously liable for the actions of state agencies, as essentially charged in the complaint.

However, the district court declined to grant summary judgment in favor of Ahearn or Card, reasoning that neither enjoys eleventh amendment or qualified immunity. This interlocutory appeal is thus limited to the immunity, if any, available to these child protective services workers, in their official and individual capacities.

II.

A.

We may entertain appeals, although seemingly interlocutory in nature, prosecuted by public officials who seek to challenge the district court's determination that they do not enjoy either absolute or qualified immunity from suit. ¹ However, the district court's denial of a motion for summary judgment because of the perceived lack of qualified or absolute immunity constitutes an appealable "final judgment" only if, as here, the immunity defense turns upon an issue of law and not of fact. ²

B.

The eleventh amendment generally divests federal courts of jurisdiction to entertain citizen suits directed against states. Port Authority Trans-Hudson Corp. v. Feeney, --- U.S. ----, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). The amendment is not evaded by suing state employees in their official capacity, since such an indirect pleading device remains in essence a claim upon the state treasury. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900, 908-09, 79 L.Ed.2d 67 (1984); Ford Motor Co. v. Department of Treasury 23 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).

The state, of course, may voluntarily waive eleventh amendment protection, if unequivocally expressed, Port Authority, 110 S.Ct. at 1873, or Congress may forcibly pierce state sovereign immunity to the extent allowed, for example, by section 5 of the fourteenth amendment, Will v. Michigan Dep't of State Police, --- U.S. ----, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). However, it remains a settled constitutional principle that the eleventh amendment divests the federal judiciary of jurisdiction to hear citizen suits designed, ultimately, to secure monetary recovery from nonconsenting states. It is irrelevant for purposes of eleventh amendment immunity that the action is framed against the state directly, or indirectly against subordinate agencies or officeholders operating in their official capacities.

Significantly, Texas has not consented to be sued in federal court by resident or nonresident citizens regarding its activities to protect the welfare of children, nor has state sovereign immunity been eviscerated by Congress with the passage of section 1983. The Will Court, in fact, held that states and state officials sued in their official capacity are not deemed "persons" subject to suit within the meaning of section 1983. Id. at 2309, 2311-12.

Thus, if Ahearn and Card are deemed Texas state employees, we lack subject matter jurisdiction to adjudicate claims fashioned against them in their official capacity. If, however, they are essentially Harris County employees, eleventh amendment immunity is not implicated, since political subdivisions, such as counties and municipalities, do not fall within the amendment's protection. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 400-01, 99 S.Ct. 1171, 1176-77, 59 L.Ed.2d 401 (1979); Jacintoport Corp. v. Greater Baton Rouge Port Comm'n, 762 F.2d 435, 438 (5th Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 797, 88 L.Ed.2d 774 (1986). Not surprisingly, the child protective services workers claim to be employees of TDHS, undisputedly an organ of state government. See Tex.Hum.Res.Code Ann. chs. 11, 21 (Vernon 1990) (TDHS created by legislature). Predictably, Stem asserts that the defendants are strictly Harris County child protective services employees.

In determining whether an entity is an organ of state or county government for eleventh amendment immunity purposes, we examine the following nonexhaustive list of factors: (1) whether state law views the entity as an arm of the state; (2) the source of the entity's funding; (3) the degree of local autonomy retained; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has authority to sue and be sued in its own name; and (6) whether the entity retains the right to hold and use property. Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th Cir.1986); accord McDonald v. Board of Mississippi Levee Comm'rs, 832 F.2d 901, 906 (5th Cir.1987). The Clark factors are not designed to be applied mathematically but, when viewed in combination, aid considerably in resolving the immunity enjoyed by both the entity and its employees.

With little difficulty, we conclude that Ahearn and Card are state, not county, child protective services employees. This conclusion is consistent with the view of Texas courts, which regard child protective services workers as instruments of state power and, thus, state employees for immunity purposes. See, e.g., Russell v. Texas Dep't of Human Resources, 746 S.W.2d 510, 513-14 (Tex.App.--Texarkana 1988, writ denied) (child protective services workers treated as state employees); Austin v. Hale, 711 S.W.2d 64, 66-67 (Tex.App.--Waco 1986, no writ) (same).

Functionally HCCPS, and thus Ahearn and Card, are governed by the TDHS commissioner, the administrator of a state agency. See, e.g., Tex. Hum. Res.Code Ann....