# J.T.H. v. Missouri Department of Social Services Children's Division

> District Court, E.D. Missouri · June 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10235178

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** June 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

J.T.H. and H.D.H., )
)
Plaintiffs, )
)
v. ) Case No. 1:20 CV 222 ACL
)
MISSOURI DEPARTMENT OF )
SOCIAL SERVICES, CHILDREN’S )
DIVISION, et al., )
)
Defendants. )

MEMORANDUM AND ORDER
This matter is before the Court on the Complaint of Plaintiffs asserting various civil
rights and state law claims against Defendants Missouri Department of Social Services (“DSS”),
Children’s Division (“CD”) and Spring Cook, arising out of a CD investigation concerning
Plaintiffs’ minor son. Presently pending before the Court is Defendants’ Motion to Dismiss.
(Doc. 11.) Also pending are Plaintiffs’ Motion for Preliminary Injunction (Doc. 13) and Motion
for Leave to File a Sur-Response in Opposition to Defendants’ Motion to Dismiss (Doc. 44).
I. Background
A. The Complaint
The Complaint alleges that Plaintiff’s minor son was sexually abused by Scott County
Sheriff’s Deputy Brandon Cook in May 2018. Cook was a colleague of the Plaintiff Father, who
was also a Scott County deputy. Cook groomed the minor for sexual abuse through various
social activities and a smartphone app called Grindr. The sexual abuse took place in Cook’s
marked patrol car while Cook was in uniform. Shortly after the incident, Cook was arrested by
the Missouri State Highway Patrol (“MSHP”) for second-degree statutory sodomy.
In September 2018, Plaintiff Father, through counsel and as a next friend of his minor
son, asserted a claim against Scott County for the incident with Cook.
On November 7, 2018, Spring Cook, a CD director/circuit manager, appeared at
Plaintiffs’ family home with a deputy juvenile officer (“JO”) and MSHP troopers reporting that

there had been a hotline call regarding Plaintiffs’ minor son. Plaintiffs state that Spring Cook
routinely works “hand-in-glove” with certain Scott County Sheriff’s Deputies. (Doc. 1 at 4-5.)
Cook and the troopers interviewed Plaintiffs’ minor son at that time, and on three other
occasions—November 9, 2018, November 10, 2018, and November 13, 2018. Plaintiffs then
refused further home visits by Defendant Cook.
By letter from Plaintiffs’ counsel dated November 23, 2018, and by telephone call from
counsel, Plaintiffs requested that Spring Cook recuse herself from investigating the parents and
refer the investigation to a CD office in another county. Plaintiffs allege that such recusal is
customary for matters involving local law enforcement families, “because of the reality that local
law enforcement routinely works hand-in-glove with the local county Children’s Division

office.” (Doc. 1 at 6.) Plaintiffs declined a referral to SEMO-NASV for a physical examination
of the son on the basis that there had been no recent assault, and any such inspection would
traumatize the boy. Cook also proposed that the parents submit a parenting plan.
On January 7, 2019, Cook made a preliminary finding under a preponderance of evidence
standard of parental child neglect. Cook’s finding was based on the following three incidents:
(1) Brandon Cook’s sexual abuse of the son; (2) the son’s Facebook messaging about sex and
alleged sexual abuse by another adult, a local Tae Kwan Do instructor (“Instructor”); upon
learning of the abuse, Plaintiff Father confronted the Instructor while Plaintiffs’ daughter and her
friend were nearby in a car, the Instructor responded by assaulting Plaintiff Father; Plaintiff
Father de-escalated the situation by not responding with physical force and retreating; Plaintiff
Father did not report the assault; and (3) a benign, age-appropriate out-of-state date the minor
son went on with his mother’s permission. Cook focused her findings of neglect on the fact that
Plaintiffs allowed the minor son—who was sixteen at the time—usage of the internet on his

iPhone, and permitted him to drive a vehicle across state lines to go on an age-appropriate date.
Cook referred the matter to a JO, who conducted his own independent investigation and
found there was “no evidence” to support an allegation of parental neglect. Id. at 10. The JO’s
finding had no effect on Cook’s finding.
Plaintiffs timely filed an administrative appeal of Cook’s finding. As part of the
administrative review triggered by Plaintiffs’ appeal, Cook reviewed her own investigatory work
and upheld her finding of neglect.
Plaintiffs next sought review by the CD’s Child Abuse and Neglect Review Board
(“CANRB”). On August 27, 2019, the CANRB conducted a hearing in Jefferson City, Missouri,
in which Spring Cook participated by telephone and without counsel, and Plaintiffs appeared in

person and with individual counsel. Two days later, the CANRB issued letters holding that the
findings of neglect were unsubstantiated as to each parent under a preponderance of the evidence
standard.
Neither Plaintiff was listed on the Missouri Child Abuse and Neglect Registry (“Central
Registry”).
Plaintiffs allege they were subject to an investigation by the FBI concerning
“substantially similar charges” regarding their minor son in March 2020. (Doc. 1 at p. 16.)
Plaintiffs believe that two FBI agents visited Spring Cook’s office. One of the FBI agents then
questioned Plaintiffs’ daughter at length about the minor son’s sexuality and sexual conduct.
Plaintiffs’ daughter was told that she was the only member of the family who was known by “the
authorities” to be cooperative. Id. at 17. The FBI never followed-up with any other family
members, and eventually closed the investigation. Plaintiffs allege that Spring Cook contacted
the FBI in frustration that the CANRB did not substantiate her earlier allegation and/or in

retaliation against Plaintiffs.
The Complaint set forth five counts. In Count I, Plaintiffs request prospective,
declaratory relief against CD for violating Plaintiffs’ procedural due process rights. Count II
seeks to enjoin CD from enforcing allegedly unconstitutional procedures in resolving reports of
abuse made to the State of Missouri’s Child Abuse and Neglect Hotline. In Count III, Plaintiffs
allege Defendant Spring Cook, in her individual capacity, retaliated against Plaintiffs for making
allegations against Scott County and its Sheriff by investigating and making a finding of child
neglect against Plaintiffs in violation of their rights under the First Amendment to the United
States Constitution. Count IV alleges that Spring Cook, in her individual capacity, violated
Plaintiffs’ right to procedural and substantive due process under the Fourteenth Amendment. In

Count V, Plaintiffs assert a state law malicious prosecution claim against Spring Cook for
investigating and making findings against Plaintiffs for child neglect.
B. Missouri Child Abuse and Neglect Report Procedure
The Court’s summary of the State procedure was taken primarily from Defendants’
Memorandum in Support of their Motion to Dismiss (Doc. 12 at 7-23), and is provided for
background.
CD is a Division within DSS charged by law with “establish[ing] a child protection
system for the entire state” of Missouri. § 210.109.1 RSMo. Reports of child abuse or neglect
are called in to the central Child Abuse Hotline and recorded in the information system. §
210.145.1 RSMo. After the Central Abuse Hotline receives the report and determines that there
is enough information to merit an investigation or family assessment, the report and any relevant
information is transmitted to the local CD office. § 210.145.2 RSMo. Reports of child abuse or
neglect that, if true, would constitute a suspected violation of a crime under chapter 566 if the

victim is a child less than eighteen years of age merit a CD investigation and trigger CD’s
obligation to report to law enforcement. § 210.145.3 RSMo.
The local office then determines if the case should be handled as an investigation or
family assessment and services, and commence that process within certain time frames. §§
210.145.3, 210.145.8 RSMo.; 13 CSR 35-31.025. Local CD can decide to handle a case as an
assessment rather than investigation by assessing the needs of the family and offering services;
however, if CD determines that the child is at risk of abuse or neglect and the family declines to
accept voluntary services, CD may commence an investigation. §§ 210.145.15, 210.145.16
RSMo. If local CD decides to handle the case as an investigation, CD is required to contact and
work with law enforcement in all aspects of the investigation. § 210.145.7 RSMo. If the local

office decides to proceed, a timely investigation must be commenced. § 210.145.8 RSMo.; 13
CSR 35-31.020(6). In most cases, this includes directly observing the child within 24-72 hours.
Id. Section 210.145.10 RSMo defines the scope of the investigation as follows:
The investigation shall include but not be limited to the nature, extent, and cause
of the abuse or neglect; the identity and age of the person responsible for the
abuse or neglect; the names and conditions of other children in the home, if any;
the home environment and the relationship of the subject child to the parents or
other persons responsible for the child’s care; any indications or incidents of
physical violence against any other household or family member; and other
pertinent data.

Once CD has completed the investigation and decided whether to make a finding of child
abuse or neglect, it must update the information system and give timely written notice of the
decision to the alleged perpetrator and the child’s parents. § 210.152.2 RSMo. If CD determines
that a preponderance of the evidence supports a finding of child abuse or neglect it will issue a
preliminary finding, copies of which are sent to the alleged perpetrator and the child’s parents. §
210.152.2 RSMo.; 13 CSR 35-31.025(2). CD will not list the individual as a perpetrator of child

abuse or neglect in the Central Registry until the alleged perpetrator has been given notice and
opportunity for administrative review. 13 CSR 35-31.025.
The Central Registry is “a registry of persons where the division has found probable
cause to believe prior to August 28, 2004, or by a preponderance of the evidence after August 28,
2004, or a court has substantiated through court adjudication that the individual has committed
child abuse or neglect or the person has pled guilty or has been found guilty of a crime pursuant
to section 565.020, 565.021, 565.023, 565.024, 565.050, 566.030, 566.060, or 567.050 if the
victim is a child less than eighteen years of age, or any other crime pursuant to chapter 566 if the
victim is a child less than eighteen years of age and the perpetrator is twenty-one years of age or
older, a crime under section 568.020, 568.030, 568.045, 568.050, 568.060, 568.080*, 568.090*,

573.023, 573.025, 573.035, 573.037, 573.040, 573.200, or 573.205, or an attempt to commit any
such crimes. Any persons placed on the registry prior to August 28, 2004, shall remain on the
registry for the duration of time required by section 210.152.” § 210.110(3) RSMo.
When notified that CD has issued a preliminary finding of child abuse or neglect, the
alleged perpetrator has three options. First, do nothing and waive his or her right to
administrative or judicial review; in which event, CD will list the individual in the Central
Registry. Second, if they disagree, he or she may request administrative review of the decision.
13 CSR 35-31.025 and §210.152.4 RSMo. In these cases, CD will not list the individual in the
Central Registry unless and until the CANRB upholds the CD’s findings. When an alleged
perpetrator requests CANRB review, the CANRB’s decision is the CD’s decision, and the
preliminary findings of the investigator or Circuit Manager is not. 13 CSR 35-31.025(11).
Third, the alleged perpetrator can waive administrative review and file a Petition for Circuit
Court de novo review. § 536.100 RSMo. In these cases, CD will list the alleged perpetrator’s

name in the Central Registry, because the individual has waived his or her right to administrative
review. Id. The individual, however, can ask the court to stay CD’s decision and stay Central
Registry listing pending resolution of the judicial review. § 536.120 RSMo.30.
When CD receives a request for administrative review, the local circuit manager or her
designee will review the report to decide to uphold or reverse the finding. 13 CSR 35-
31.025(2)(B). If the Circuit Manager reverses the finding, the matter is concluded. 13 CSR 35-
31.025(2)(C). If the Circuit Manager upholds the finding, the case goes to the CANRB. Id.
The CANRB is a nine-member board within DSS responsible for providing an
independent review of child abuse and neglect determinations where the alleged perpetrator is
aggrieved by CD’s preliminary finding. § 210.153.1 RSMo. Members are appointed by the

Governor with the advice and consent of the Senate. § 210.153 RSMo. CANRB members
include various professionals with training or expertise in child abuse/neglect, and may include
parents, foster parents or grandparents. § 210.153.2 RSMo.
In CANRB proceedings, alleged perpetrators have a right to counsel, and to appear
personally or to submit written arguments. § 210.153.4(2) RSMo. They may present witnesses
§ 210.153.4(2). 13 CSR 35- 31.025(8)(F). Testimony is not given under oath, nor does the law
provide for compulsory attendance or cross-examination of witnesses. See § 210.153 and 13
CSR 35-31.025. The rules of evidence do not apply, and hearsay evidence can be considered.
Id. The CD and the alleged perpetrator may submit written materials and exhibits for
consideration. 13 CSR 35-31.025(9)(A)(4). There is no right to formal discovery, but the
Circuit Manager will provide a copy of the investigation, including all records provided to the
CANRB, with the exception of “confidential information or other information that could
jeopardize child safety.” 13 CSR 35-31.025(9)(A)(3). At the hearing, the child’s representative,

the CD, and the alleged perpetrator are given 20 minutes (if requested) to present their case. 13
CSR 35-31.025(10). The CANRB may grant additional time to a party. Id. The CANRB will
notify CD, the alleged perpetrator and the child’s representative of its decision within five
business days. 13 CSR 35-31.025(12). The CANRB’s decision is the CD’s final decision. 13
CSR 35- 31.025(11). An alleged perpetrator who is aggrieved by a CANRB decision has a right
to file a Petition in State Circuit Court for de novo judicial review. §§ 210.152.4 and 210.153
RSMo.
II. Standard

Federal Rule of Civil Procedure 12(b)(1) provides for a motion to dismiss for lack of
subject matter jurisdiction. The party asserting federal jurisdiction bears the burden to prove
federal subject matter jurisdiction exists. V S Ltd. P’ship v. Dep’t of Hous. & Urb. Dev., 235
F.3d 1109, 1112 (8th Cir. 2000).
Rule 12(b)(6) provides for a motion to dismiss for failure to state a claim. Fed. R. Civ.
P. 12(b)(6). The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal sufficiency of a
complaint so as to eliminate those actions “which are fatally flawed in their legal premises and
deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.”
Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490

U.S. 319, 326-27 (1989)). “To survive a motion to dismiss, a claim must be facially plausible,
meaning that the ‘factual content ... allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Cole v. Homier Dist. Co., Inc., 599 F.3d 856,
861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must
“accept the allegations contained in the complaint as true and draw all reasonable inferences in
favor of the nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir.

2005)). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” will not pass muster. Iqbal, 556 U.S. at 678.
III. Defendants’ Motion to Dismiss
Defendants first move to dismiss Counts I and II for lack of standing. Defendants next
argue that Counts I, II, and IV fail to state a claim, because Missouri law and procedures comply
with constitutional due process requirements, and Cook did not violate Plaintiffs’ right to
substantive due process. They argue that Count II also fails because it does not state a claim for

injunctive relief. Defendants contend that Count III fails because it does not identify a protected
activity, and because Cook had sufficient facts to raise a reasonable suspicion to support her
finding. Defendants argue Counts III and IV are barred by the doctrines of absolute, qualified,
and official immunities. Finally, they contend that Count V fails to state a claim for malicious
prosecution and is barred by absolute and official immunity.
On the same day Defendants filed their Motion to Dismiss, Plaintiffs moved for a
preliminary injunction to enjoin CD during the pendency of this litigation from enforcing the
Central Registry statutory and regulatory process without requiring the CD to grant accused
parties the following procedural due process rights: (1) right to obtain all evidence, including
disclosure of CD’s entire file, and to compel production of all evidence if necessary, with some

process to compel production; (2) right not to be charged money for disclosure of CD’s
evidence; and (3) right to cross-examine CD’s witnesses where there are conflicting narratives of
the truth, in light of an alleged perpetrator’s interest in avoiding “stigma plus” placement on the
Central Registry. (Doc. 13.)
A. Standing
Defendants first argue that Counts I and II fail because Plaintiffs lack standing in that no

actual controversy exists between the parties.
“The irreducible constitutional minimum of standing is that a plaintiff show (1) an
injury-in-fact that (2) is fairly ... traceable to the challenged action of the defendant and (3) is
likely ... to be redressed by a favorable decision in court.” Carlsen v. GameStop, Inc., 833 F.3d
903, 908 (8th Cir. 2016) (cleaned up) (quoting ABF Freight Sys. v. Int’l Bhd. of Teamsters, 645
F.3d 954, 958 (8th Cir. 2011) ). “A plaintiff has suffered an injury-in-fact if he has experienced
‘an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical.’” Id. (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992) ).
Plaintiffs must establish standing for each type of remedy sought, including declaratory

and injunctive relief. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 185 (2000); see Mosby v. Ligon, 418 F.3d 927, 932-33 (8th Cir.2005).
“A court deciding a motion under Rule 12(b)(1) must distinguish between a ‘facial
attack’ and a ‘factual attack’” on jurisdiction. Osborn v. United States, 918 F.2d 724, 729 n.6
(8th Cir. 1990). In a facial attack, “the court restricts itself to the face of the pleadings, and the
non-moving party receives the same protections as it would defending against a motion brought
under Rule 12(b)(6).” Id. (internal citations omitted). “In a factual attack, the court considers
matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6)
safeguards.” Id. (internal citation omitted).
Here, although Defendants do not specify, it appears they are alleging a facial attack. As
such, the Court accords Plaintiffs’ complaint Rule 12(b)(6) protection by “accepting as true all
facts alleged in the complaint.” See Trooien v. Mansour, 608 F.3d 1020, 1026 (8th Cir. 2010).
The Court will “consider[ ] only the materials that are ‘necessarily embraced by the pleadings

and exhibits attached to the complaint.’” Cox v. Mortgage Elec. Registration Sys., Inc., 685 F.3d
663, 668 (8th Cir. 2012) (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir.
2003)).
1. Count I
Count I seeks a declaratory judgment that Jamison v. State, 218 S.W.3d 399 (Mo. 2007)
is “no longer good law and it deprives the Plaintiffs of adequate procedural due process before a
‘stigma plus’ deprivation by being placed on the Child Abuse & Neglect Registry.” (Doc. 1 at
25.) Plaintiffs request that the Court issue a declaratory judgment enjoining CD from “enforcing
unconstitutional procedures as to pre-CANRB hearing discovery and hearing procedure.” Id.
In Jamison, the plaintiffs—nurses at a child care center—were accused of child abuse and

neglect. The plaintiffs had been listed in the Central Registry before the CANRB hearing. They
argued that the Missouri Child Abuse Act was unconstitutional, facially and as applied, under the
due process clauses of the United States and Missouri constitutions. The plaintiffs, like here,
argued that due process required a full evidentiary, pre-deprivation hearing on the record, with
the right to subpoena witnesses, conduct discovery and cross-examine witnesses under oath
before their names were entered in the Central Registry. The Court found that the listing of the
plaintiffs’ names on the Central Registry implicated a liberty interest for the purposes of a due
process challenge, and that these rights were violated when their names were listed prior to the
CANRB hearing. The Court, however, held that Missouri’s informal, CANRB procedures met
procedural due process requirements. Jamison, 218 S.W.3d at 412-415.
Defendants argue that no current, actual controversy exists between the parties because
the CANRB found in Plaintiffs’ favor and Plaintiffs were not listed in the Central Registry.

They contend that, as a result, entry of a declaratory judgment cannot put Plaintiffs in a better
position and would constitute an impermissible advisory opinion.
Plaintiffs respond that they suffered concrete and particularized injuries when Cook
found them to be neglectful of their minor son and continued to prosecute them at the CANRB
upon appeal, even though this finding was later overturned. They state that Plaintiff Father’s law
enforcement license and Plaintiff Mother’s desire to return to teaching constitute actual interests
that would be impaired by being placed on the Central Registry. Plaintiffs further argue that they
have demonstrated a well-founded fear that findings of neglect by Spring Cook and the CD will
continue. They cite to the following allegations in support: they have had a subsequent call out
by the FBI on substantially similar allegations; they have faced call outs by the same CD office

as to alleged social media content by their thirteen-year-old daughter; and a different sheriff’s
deputy attempted to “friend” Parents’ sixteen-year-old daughter on social media.
The Declaratory Judgment Act provides that, in “a case of actual controversy” within its
jurisdiction, a federal court may issue declaratory relief with regard to the rights and/or legal
relations of the parties. 28 U.S.C. § 2201. “The Declaratory Judgment Act [does] not extend
federal court jurisdiction beyond the recognized boundaries of justiciability, but only ‘enlarge[s]
the range of remedies available.’” Pub. Water Supply Dist. No. 10 of Cass Cnty., Mo. v. City of
Peculiar, Mo., 345 F.3d 570, 572 (8th Cir. 2003). In other words, the availability of relief under
the Declaratory Judgment Act “presupposes the existence of a judicially remediable
right.” Schilling v. Rogers, 363 U.S. 666, 677 (1960).
The undersigned finds that Plaintiffs have failed to demonstrate an injury in fact. They
claim that they were injured when each parent “was found by Spring Cook to be neglectful of

their minor son, and she continued to prosecute them at the CANRB upon administrative
appeal.” (Doc. 36 at p. 5.) In other words, Plaintiffs claim Spring Cook’s initial finding
constitutes an injury in fact. The decision of the CANRB, not the initial finding of Spring Cook,
is the final finding of the CD. It is undisputed, that, unlike the plaintiffs in Jamison, Plaintiffs
were never placed on the Central Registry. Under Count I Plaintiffs allege that the state
procedures are unconstitutional in that they deprive Plaintiffs of due process “by being placed on
the Child Abuse & Neglect Registry.” (Doc. 1 at p. 25) (emphasis added). As such, Plaintiffs
own pleadings reveal that the claimed injury is placement on the Registry, which did not occur in
this case.
Further, to the extent Plaintiffs allege Cook’s preliminary finding was their injury in fact,

the pleadings do not show that this injury could be redressed by a favorable decision of this
Court. Plaintiffs seek a judgment that Jamison is no longer good law, and that Missouri’s
procedures for a pre-deprivation hearing at the CANRB violate procedural due process. They
also request that the Court enjoin CD from enforcing unconstitutional procedures. Because the
CANRB found in Plaintiffs’ favor and reversed the preliminary finding of Cook, Plaintiffs will
be in no better position if the Court grants the requested relief. Thus, Cook’s preliminary finding
does not meet the requirements for establishing standing.
Plaintiffs next attempt to establish an injury in fact by arguing they have demonstrated a
well-founded fear that findings of neglect will occur in the future. They refer to alleged
instances occurring after the CANRB decision, including the FBI investigation and subsequent
call outs related to Plaintiffs’ other children.
Defendants, relying upon Mitchell v Dakota County Social Services, 959 F.3d 887 (8th
Cir. 2020), argue that Plaintiffs’ argument that they could face another investigation in the future

it too speculative to establish standing. They further argue that Plaintiffs’ allegations of
subsequent call outs related to their other children are not alleged in the Complaint and are
unsubstantiated.
Plaintiffs seeking prospective relief based on past actions must show “a real and
immediate threat that [they] would again suffer similar injury in the future.” Mosby, 418 F.3d at
933 (quoting Park v. Forest Serv. of the United States, 205 F.3d 1034, 1037 (8th Cir. 2000)
(internal quotations and brackets omitted)); see O’Shea v. Littleton, 414 U.S. 488, 496 (1974).
There are also certain “prudential limitations” on standing and the exercise of federal-court
jurisdiction. Warth v. Seldin, 422 U.S. 490, 498 (1975). As relevant here and in Mosby, one
such limitation is a rule that parties “generally must assert [their] own legal rights and interests,

and cannot rest [their] claim to relief on the legal rights or interests of third
parties.” Mosby, 418 F.3d at 933 (quoting Warth, 422 U.S. at 499).
In Mitchell, the plaintiffs, who were New Jersey residents that briefly resided in
Minnesota, brought suit challenging the constitutionality of various Minnesota child protection
statutes following the removal of children from their father. When the Mitchell plaintiffs filed
suit, the children had already been returned by the Minnesota officials and the Plaintiffs had
returned to New Jersey. In addition to the children’s father, an association of parents affected by
Minnesota’s child-protection services—"Stop Child Protection Services from Legal Kidnapping”
(“Association”)—was a party plaintiff. The Association argued it had standing because its
members lived in Minnesota, had had experiences with Minnesota’s child-protection services,
and could face child abuse investigations in the future. The Court held that “Mitchell’s or his
children’s speculative return to Minnesota is insufficient to show a real and immediate threat of
repeat injury. Without an injury in fact, Mitchell and his children lack standing…The

speculative future action alleged in the plaintiffs’ complaint is not enough to confer standing…to
challenge the facial constitutionality of the Minnesota statue.” Id. (citations omitted). The
Court further found that the Association lacked standing, noting that the “speculative future
action alleged in the plaintiffs’ complaint is not enough to confer standing on any individual
member of the association.” Id.
Plaintiffs argue Mitchell is distinguishable because, unlike the Mitchell Plaintiffs, they
continue to live within Spring Cook’s jurisdiction, and they have undergone investigations
subsequent to the CANRB decision.
Although it is true that the facts of Michell are distinguishable in that Plaintiffs in this
action remain Missouri residents, the reasoning still applies to preclude standing in this case.

The Mitchell Plaintiffs’ lack of residency in Minnesota was not the only factor considered by the
Court. This is demonstrated by the Court’s treatment of the Association Plaintiff. The members
of the Association were Minnesota residents, alleged they had suffered an injury by Minnesota’s
child protection system in the past, and argued they could again face child abuse investigations.
The Court rejected this argument, finding the allegations of potential future action too
speculative to establish standing. Thus, Mitchell illustrates that plaintiffs do not have standing to
challenge the constitutionality of child protection statutes unless they make a showing of a “real
and immediate threat of repeat injury.” Id. at 896 (emphasis added). See also Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158 (2014) (An allegation of “future injury may suffice if the
threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will
occur”) (internal citations omitted).
The only allegations in the Complaint regarding the possibility of future injury are those
related to the subsequent FBI investigation. Plaintiffs allege “on inference,” that Spring Cook

contacted the FBI in frustration that the CANRB did not substantiate her earlier allegation.
(Doc. 1 at 17.) Plaintiffs summarize that the FBI “received a hotline call, made an investigation,
and then closed the investigation for lack of probable cause for the allegations.” Id. By
Plaintiffs’ own admission, therefore, the FBI did not make a finding of neglect and has closed its
investigation. Although Plaintiffs infer that Spring Cook contacted the FBI, Plaintiffs do not
allege that Cook or CD opened another investigation. As such, these allegations do not
demonstrate a real and immediate threat of an injury caused by Cook or CD.
In an Affidavit attached to Plaintiffs’ Motion for Preliminary Injunction (Doc. 13-2),
Plaintiff Father alleges that Plaintiffs have also faced recent subsequent call outs by the same CD
office in Sikeston as to alleged social media content of their thirteen-year-old daughter; and a

different sheriff’s deputy attempted to “friend” their sixteen-year-old daughter on social media.
Defendants argue that these allegations raise facts outside the scope of the Complaint and should
not be considered. In the event the Court considers these new facts, Defendants have filed six
Affidavits with supporting materials in opposition.
Even assuming that this evidence can be considered, it does not aid Plaintiffs in
establishing standing. The Court will not, therefore, consider Defendants’ Affidavits. First,
Plaintiffs do not allege that Spring Cook or CD is currently investigating Plaintiffs for allegations
of child abuse or neglect. See Mosby, 418 F.3d at 933-34; cf. O’Shea 414 U.S. at 497
(“[A]ttempting to anticipate whether and when these respondents will be charged with crime and
will be made to [be subject to the challenged conduct] takes us into the area of speculation and
conjecture.”).
Second, even if Plaintiffs could show a CD investigation were pending, Plaintiffs would
still lack standing. As previously discussed, Plaintiffs’ alleged injury of reputational damage

could not be redressed by a favorable decision of this Court, because the requested relief would
put Plaintiffs in no better position in light of the fact the CANRB found in Plaintiffs’ favor. For
the same reason, the requested relief—a declaration that Missouri’s CANRB procedures violate
due process—would not redress any future injury. That is, preventing Defendants from
enforcing procedures as to “pre-CANRB hearing discovery and hearing procedure” would not
preclude Cook from making a preliminary finding of neglect and thereby causing the same injury
to Plaintiffs’ reputation. To the extent Plaintiffs allege a future investigation could result in not
only a preliminary finding of neglect by Cook but also an affirmance of this finding by the
CANRB, this argument requires even more speculation and necessarily fails.
Plaintiffs argue in the alternative that they have standing under the mootness exception

doctrine because the controversy is “capable of repetition, yet evading review.” Roberts v.
Norris, 415 F.3d 816, 819 (8th Cir. 2005.) Plaintiffs’ argument in unavailing. Defendants do not
argue, and this Court does not find that Counts I or II are moot. The exception to mootness for
disputes capable of repetition yet evading review does not operate to confer standing in this case
where Plaintiffs lacked standing at the onset. See Friends of the Earth, Inc., 528 U.S. at 191 (“if
a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of
repetition yet evading review will not entitle the complainant to a federal judicial forum”).
Thus, the Court finds that Plaintiffs lack standing to bring Count I.
2. Count II
In Count II of their Complaint, Plaintiffs seek a preliminary and permanent injunction
against CD “on the same grounds as stated in Count I.” (Doc. 1 at 25.) Plaintiffs seek to enjoin
CD “from enforcing unconstitutional procedures as to pre-CANRB hearing discovery and
hearing procedure.” Id. at 26.

As previously noted, Plaintiffs have also moved for a preliminary injunction to enjoin CD
during the pendency of this litigation from enforcing the Central Registry statutory and
regulatory process without requiring the CD to grant accused parties the following procedural
due process rights: (1) right to obtain all evidence, including disclosure of CD’s entire file, and
to compel production of all evidence if necessary, with some process to compel production; (2)
right not to be charged money for disclosure of CD’s evidence; and (3) right to cross-examine
CD’s witnesses where there are conflicting narratives of the truth, in light of an alleged
perpetrator’s interest in avoiding “stigma plus” placement on the Central Registry. (Doc. 13.)
To establish standing for their claim for injunctive relief asserted in Count II, Plaintiffs
must show the same elements required for their declaratory relief claim, including redressability.

See Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 956 (8th Cir. 2015) (citing
Lujan, 504 U.S. at 560.) The Court has found that Plaintiffs have not sufficiently alleged that
they suffered an injury in fact or will suffer an injury in fact in the immediate future that is
redressable by a favorable decision. Thus, Plaintiffs lack standing to bring a claim for a
preliminary or permanent injunction. Id. at 560-61.
Accordingly, Count II is dismissed. Additionally, Plaintiffs’ Motion for a Preliminary
Injunction will be denied as moot.
B. Merits of Counts I, II, and IV
Alternatively, had Plaintiffs established standing, Plaintiffs fail to state causes of action
for violations of procedural and substantive due process.
To state a claim under 42 U.S.C. § 1983, plaintiff must show a deprivation of a right,
privilege, or immunity protected by the Constitution. Meyer v. City of Joplin, 281 F.3d 759, 761

(8th Cir. 2002).
A claim for violation of due process may be procedural or substantive. Creason v. City of
Wash., 435 F.3d 820, 824 (8th Cir. 2006). A procedural due process violation requires the
following elements: (1) a protected life, liberty, or property interest; (2) the deprivation of the
same; and (3) the state’s failure to provide adequate procedural rights before impinging upon the
protected interest. Mulvenon v. Greenwood, 643 F.3d 653, 657 (8th Cir. 2011).
A substantive due process violation requires the following elements: (1) violation of a
constitutional right; and (2) that the state officials’ conduct in violating the right “was shocking
to the contemporary conscience.” Flowers v. City of Minneapolis, Minn., 478 F.3d 869, 873 (8th
Cir. 2007).

Whether the due process violation alleged is procedural or substantive in nature, the
threshold question is whether the right at issue is protected by the due process clause. Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972); U.S. Const. amend. XIV (“[n]o [s]tate
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any [s]tate deprive any person of life, liberty, or property, without the
due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws”).
Plaintiffs first argue that Spring Cook’s finding of child neglect was sufficiently stigmatic
as to entitle them to the minimum requirements of procedural due process. They assert that they
have a liberty interest in being free from State interference in their parenting of their children
absent a reasonable suspicion for abuse or imminent danger of abuse. Plaintiffs claim that once a
CD official such as Spring Cook “makes an official finding of child neglect against them,” then

they are entitled to additional procedural due process. (Doc. 36 at 10.) They contend that the
constitutional gravamen of a procedural due process claim is not the deprivation itself, but the
lack of due process.
“In Paul v. Davis, the Supreme Court made clear that injury to reputation alone is not
sufficient to state a § 1983 claim.” Jones v. McNeese, 746 F.3d 887, 898 (8th Cir. 2014)
(citing Paul v. Davis, 424 U.S. 693, 712 (1976)). However, “reputational harm coupled
with ‘some more tangible interest such as employment,’ can together be ‘sufficient to invoke the
procedural protection of the Due Process Clause,’” this is known as the “stigma-plus”
test. Id. (quoting Paul, 424 U.S. at 701). According to the Court, the “plus” element of the
stigma plus test is where:

As a result of the state action complained of, a right or status previously
recognized by state law was distinctly altered or extinguished. It was this
alteration, officially removing the interest from the recognition and protection
previously afforded by the State, which we found sufficient to invoke the
procedural guarantees contained in the Due Process Clause of the Fourteenth
Amendment.

Paul, 424 U.S. at 711. The Court held that Paul’s action in branding Davis as a known shoplifter
in a flyer, despite the harm to Davis’ reputation, did not alter or extinguish any right or status
Davis enjoyed under state law. Id. at 711-12. Thus, Davis was not deprived of a liberty or
property interest protected by the Due Process Clause. Id. at 712.
The Jamison Court applied Paul in holding a Central Registry listing met the “stigma
plus” test to implicate an individual’s constitutionally protected liberty interest insofar as it
essentially barred plaintiffs from working in their childcare profession. 218 S.W.3d at 406-08.
The Court, however, found additional procedural protections were not required at the pre-
deprivation hearing before the CANRB. Id. at 412. Citing the State’s interest in protecting
children and the fact that plaintiffs may seek de novo judicial review, the Court found the

“protections given at the CANRB hearing are sufficient.” Id. at 415.
Here, Plaintiffs have not alleged that a right or status was altered by Spring Cook’s
preliminary finding of neglect. Cook’s finding was confidential under Missouri law, and
Plaintiffs do not claim Cook published the finding. Although Plaintiffs’ fear of losing their
abilities to work in their fields of law enforcement and teaching due to placement on the Central
Registry was reasonable, they were not placed on the Central Registry. Because the CANRB
found the allegations of neglect were unsubstantiated, Plaintiffs were never placed on the Central
Registry, and no other adverse consequences occurred.
It is undisputed that Plaintiffs have a constitutionally protected liberty interest in being
free from State interference in their parenting of their children. See Troxel v. Granville, 530 U.S.

57, 65 (2000) (“the interest of parents in the care, custody, and control of their children—is
perhaps the oldest of the fundamental liberty interests recognized by this Court”). That interest,
however, “is limited by the compelling governmental interest in the protection of minor children,
particularly in circumstances where the protection is considered necessary as against the parents
themselves.” Thomason v. SCAN Vol. Services, Inc., 85 F.3d 1365, 1371 (8th Cir. 1996). As
such, parents do not have a constitutional right to be free from child abuse investigations. Id.
The Court finds Plaintiffs have failed to allege a sufficient basis to establish Defendants
violated a liberty interest. The Complaint reveals that Plaintiffs’ minor child was sexually
abused by an adult, and that prior to the abuse, he had been groomed through the use of a
smartphone app. Spring Cook received a child neglect hotline call regarding Plaintiffs’ minor
son, which required Defendants to conduct an investigation. While the investigation was being
conducted, Plaintiffs learned that their minor son had had sex with another adult and that this
adult had also been contacting the minor son on social media. Plaintiff Father admits he

confronted the adult with his daughter and her friend present, which resulted in a physical
altercation. Spring Cook found that Plaintiffs were neglectful in failing to supervise their child.
(Doc. 13-2.) When Cook notified Plaintiffs of her finding, she informed them of their rights for
administrative and judicial review. Id. Plaintiffs successfully exercised these rights by seeking
review before the CANRB, resulting in a reversal of Spring’s preliminary finding after a hearing.
Assuming the allegations in the Complaint are true, they do not support a violation of
Plaintiffs’ liberty interest. Plaintiffs do not dispute the facts cited by Cook as a basis for her
finding of neglect. Instead, they disagree with her conclusion that their actions were neglectful.
In light of the admitted facts that Plaintiffs’ minor son had been a victim of sexual abuse on
multiple occasions, Defendants had a compelling governmental interest in the protection of

Plaintiffs’ minor son. Plaintiffs successfully challenged Cook’s preliminary finding. Contrary to
their argument, the fact that other agencies did not press charges or find Plaintiffs were
neglectful has no bearing on Cook’s preliminary finding. Notably, Plaintiffs do not allege
Defendants ever removed any of their children from their home for any length of time during or
after the investigation.
Thus, they have not shown that Defendants violated a protected liberty interest by
interfering with the custody or care of the children. Because Defendants did not violate a
constitutionally protected liberty interest, the Court need not address what process was due.
Thus, the procedural due process claims alleged in Counts I, II, and IV will be dismissed.
Similarly, Plaintiffs’ substantive due process claim against Defendant Cook asserted in
IV necessarily fails due to Plaintiffs’ failure to show a deprivation of a protected liberty interest.
Thus, Count IV will also be dismissed.
C. Count III

In Count III, Plaintiffs assert a First Amendment retaliation claim against Spring Cook
pursuant to § 1983. Specifically, Plaintiffs allege the following: (1) Cook investigated and made
findings of parental neglect against Plaintiffs; (2) Plaintiff Father engaged in a protected First
Amendment activity in making allegations against Scott County and its Sheriff, and Plaintiff
Father’s allegations played a part in Cook’s decision to investigate and make findings of parental
neglect against Plaintiffs; (3) Cook was acting under color of law; (4) Cook took adverse action
against Plaintiffs that would chill a person of ordinary firmness from continuing in the activity;
(5) the adverse action was motivated at least in part by the exercise of the protected activity; and
(6) Plaintiffs were damaged.
Defendants argue that Count III should be dismissed because Plaintiffs fail to meet any of

the elements of a First Amendment retaliation claim.
Retaliation by a government actor in response to an exercise of free speech does qualify
as a basis for § 1983 liability. See Nieves v. Bartlett, ––– U.S. ––––, 139 S. Ct. 1715, 1722, 204
L.Ed.2d 1 (2019); Pendleton v. St. Louis Cnty., 178 F.3d 1007, 1011 (8th Cir. 1999). To
successfully plead a First Amendment retaliation claim, a plaintiff “must show (1) that he
engaged in a constitutionally protected activity; (2) that the defendant took adverse action against
him that would chill a person of ordinary firmness from continuing in the activity; and (3) that
the adverse action was motivated in part by [the plaintiff's] exercise of his constitutional
rights.” Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir.2014); see also Zutz v. Nelson, 601 F.3d
842, 848-49 (8th Cir.2010); Okruhlik v. Univ. of Arkansas, 395 F.3d 872, 878 (8th Cir. 2005).
First, Plaintiffs must plausibly plead that they engaged in a protected activity. Plaintiffs
allege that, “making a civil claim against a government entity related to a matter of public

concern—that is, the sexual abuse of a minor son by an on-duty, uniformed police officer—is
surely a First Amendment-protected activity.” (Doc. 36 at 22.) Defendants argue that Plaintiffs’
allegations are insufficient because they fail to indicate the specific claims made that would
provide a motive for Cook to retaliate.
It is established law that prison officials may not retaliate against an inmate for filing
legal actions in the exercise of his constitutional right of access to the courts. Goff v. Burton, 7
F.3d 734, 736 (8th Cir. 1993); Sanders v. St. Louis Cnty., 724 F.2d 665, 666 (8th Cir. 1983).
This concept is not exclusive to the formal filing of lawsuits by prisoners, as “criticism of public
officials lies at the very core of speech protected by the First Amendment.” Naucke v. City of
Park Hills, 284 F.3d 923, 927-28 (8th Cir. 2002). See United States v. Catlett, 584 F.2d 864, 867

(8th Cir. 1978) (referring to “first amendment right to protest government ... tax
policies”); Evenstad v. Herberg, 994 F. Supp. 2d 995, 1000 (D. Minn. 2014) (“The First
Amendment protects ‘a significant amount of verbal criticism and challenge’ directed at the
government and its officials.”) (quoting City of Houston v. Hill, 482 U.S. 451, 461 (1987));
see also Garcia v. City of Trenton, 348 F.3d 726, 729 (8th Cir. 2003) (case involving retaliatory
parking tickets issued to plaintiff who complained to city and state officials about failure to
enforce ordinance was sufficient to go to jury).
The Complaint alleges that Plaintiff Father made allegations against Scott County and its
Sheriff related to the sexual abuse of his son by a Scott County Sheriff’s Deputy. Specifically,
on September 7 and 17, 2018, Plaintiff Father, through counsel and as a next friend of his minor
son, “asserted but did not file claims against the County related to the underlying occurrence.”
(Doc. 1 at 4.) Plaintiffs state that these claims were resolved. Id. Plaintiffs allege that Scott
County Sheriff’s deputies routinely work “hand-in-glove” with Spring Cook.

The Court finds that Plaintiffs have sufficiently alleged that they engaged in a
constitutionally protected activity. Defendants raise questions about the specific claims and
statements made by Plaintiffs against Scott County that would support Spring Cook’s motive to
retaliate against Plaintiffs. These are issues better addressed after discovery has been conducted.
At this stage, the “plausibility standard requires a plaintiff to show at the pleading stage that
success on the merits is more than a sheer possibility,” it is not a “probability
requirement.” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009)
(citing Iqbal, 129 S.Ct. at 1949).
Plaintiffs must next allege that the defendant took adverse action against them that would
chill a person of ordinary firmness from continuing in the activity. Defendants argue that “how

or why the plaintiffs would be chilled by Ms. Cook’s alleged actions is not supported by any
allegations of fact.” (Doc. 12 at 51.) The Complaint alleges that Cook’s finding of parental
neglect constitutes an adverse action. The “ordinary firmness test” requires only a small effect
on the freedom of speech, as “there is no justification for harassing people for exercising their
constitutional rights, it need not be great in order to be actionable.” Garcia, 348 F.3d at 728-29
(plaintiff’s receipt of $35.00 in parking tickets after she complained about city’s failure to
enforce sidewalk ordinance was sufficient to establish retaliation that would chill the speech of a
person of ordinary firmness.) The undersigned finds that Cook’s preliminary finding of parental
neglect was sufficiently adverse to chill a person of ordinary firmness.
Third, Plaintiffs must allege that the adverse action was motivated in part by Plaintiffs’
exercise of their constitutional rights. Defendants, relying upon Peterson v. Kopp, 754 F.3d 594,
602 (8th Cir. 2014), argue that Plaintiffs failed to allege specific facts to establish a plausible
claim that their protected activities were a “substantial ‘but for’ cause of Ms. Cook’s decision.”

(Doc. 12 at 52.) Defendants acknowledge that Peterson involved a retaliatory arrest and held
that, “[i]n retaliatory arrest cases, we have identified a fourth prong: lack of probable cause or
arguable probable cause.” Id. Defendants argue that this Court should nonetheless apply this
principle and require Plaintiffs to show that Cook lacked “reasonable suspicion of child
abuse/neglect.” (Doc. 12 at 52.) Plaintiffs respond that Peterson does not apply. In the
alternative, Plaintiffs argue that they sufficiently alleged lack of probable cause.
The Complaint alleges the following facts supporting the adverse action was motivated
by Plaintiffs’ exercise of their constitutional rights: Defendant Cook arrived at Plaintiffs’ home
with a Scott County Deputy JO to investigate an alleged child neglect hotline call regarding
Plaintiffs’ minor son approximately seven weeks after Plaintiff Father asserted claims against

Scott County but before the claims were resolved; Defendant Cook and the minor son’s abuser
share a last name; Plaintiffs, by letter from their counsel, requested that Cook recuse herself from
investigating Plaintiffs but Cook did not recuse herself; during a call out to the family home,
Spring Cook made a comment to Plaintiff Father about “getting” his “POST”1 license; Spring
Cook reviewed her own investigatory work as part of the administrative review triggered by
Plaintiffs’ appeal of her initial finding, despite Plaintiffs’ request that she recuse herself; the JO
conducted his own investigation and found no evidence to support an allegation of parental

1“POST” is an acronym for Peace Officers Standards and Training, and is a program created by
state law. See, e.g., Mo. Rev. Stat. §§ 590.010(4), 590.020–.050.)
neglect; the MSHP never charged Plaintiffs with a crime; the CANRB held that the findings of
neglect were unsubstantiated; Spring Cook contacted the FBI after the CANRB did not
substantiate her finding as retaliation against Plaintiffs; and the FBI closed its investigation for
lack of probable cause for the allegations.

Plaintiffs have plausibly alleged the required causal connection between their protected
activity and Cook’s decision to investigate and make a preliminary finding of child neglect. At
the pleading stage, Plaintiffs need only allege that Defendant’s “adverse action was motivated at
least in part by” Plaintiff Father’s protected activity. Id. at 808 (emphasis added). Plaintiffs’
Complaint contains ample allegations of retaliatory motive.
The Court is not persuaded that Plaintiffs must plead and ultimately prove that Defendant
lacked probable cause for her finding of neglect. Nonetheless, the Court finds that Plaintiffs
have sufficiently alleged lack of probable cause. Cook’s investigation was initiated as a result of
Plaintiffs’ minor being the victim of sexual abuse by an adult. The Plaintiff Parents, however,
were not the abusers. Spring’s finding of neglect were based on the facts that Plaintiffs allowed

their sixteen-year-old son to have a smartphone with access to the internet and drive a vehicle;
the minor son was permitted to go on an age-appropriate date with another minor across state
lines; and Plaintiff Father confronted an alleged abuser and was assaulted but did not report the
incident to law enforcement. Plaintiffs allege that the CANRB found Cook’s findings of neglect
were unsubstantiated, the JO found no evidence to support an allegation of parental neglect, the
FBI closed its investigation of Plaintiffs for lack of probable cause, and the MSHP never charged
Plaintiff with a crime. When the allegations in the Complaint are accepted as true and all
reasonable inferences are drawn in favor of Plaintiffs, Plaintiffs have sufficiently pled the
absence of probable cause.
In sum, Plaintiffs have plausibly alleged a First Amendment retaliation claim.
Defendant’s arguments to the contrary target the causal connection between Plaintiffs’ protected
activity and Defendant’s allegedly retaliatory action. Causation, however, is a fact-intensive
issue, and Defendant’s arguments rely principally on materials which cannot be considered, at

this stage, to dispute the well-pled allegations of Plaintiffs’ Complaint. Thus, the Court denies
Defendant’s Motion to Dismiss as to Count III.
D. Absolute and Qualified Immunity
Defendants next argue that Spring Cook is entitled to absolute and qualified immunity
from liability on Counts III and IV. Because the Court has already found that Count IV fails to
state a claim, the Court will only discuss Count III.
1. Absolute Immunity
“Absolute immunity defeats a suit at the outset, so long as the official’s actions were
within the scope of the immunity.” Sample v. City of Woodbury, 836 F.3d 913, 916 (8th Cir.
2016) (quoting Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976) ). It “protects prosecutors

against claims arising from their initiation of a prosecution and presenting a criminal case
‘insofar as that conduct is intimately associated with the judicial phase of the criminal
process.’” Sample, 836 F.3d at 916 (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)). Thus,
“[p]rosecutors enjoy absolute immunity in their review of and decisions to charge a violation of
the law,” Sample, 836 F.3d at 916 (citing Imbler, 424 U.S. at 420-27), and they are entitled to
immunity for the decision to bring charges “whether [they have] probable cause or
not[,]” Saterdalen v. Spencer, 725 F.3d 838, 843 (quoting Buckley v. Fitzsimmons, 509 U.S.
259, 274 n.5 (1993)).
“However, purely administrative or investigative actions that do not relate to the
initiation of a prosecution do not qualify for absolute immunity.” Winslow v. Smith, 696 F.3d
716, 739 (8th Cir. 2012) (quoting Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006)).
In Buckley v. Fitzsimmons, the Supreme Court explained that “[t]here is a difference between the

advocate’s role in evaluating evidence ... as he prepares for trial, on the one hand, and the
detective’s role in searching for the clues and corroboration that might give him probable cause
to recommend that a suspect be arrested, on the other hand.” 509 U.S. 259, 273 (1993). It is
“[w]hen a prosecutor performs the investigative functions normally performed by a detective or
police officer” that he is not entitled to absolute immunity. Id. Therefore, there is a distinction
between a police officer’s initial collection of evidence and a prosecutor’s “professional
evaluation of the evidence assembled by the police and appropriate preparation for its
presentation at trial....” Id. The latter function is entitled to absolute immunity. See Forrester v.
White, 484 U.S. 219, 229 (1987) (The court must look to “the nature of the function
performed....”). Absolute immunity has been applied to individuals other than prosecutors if

those individuals are participating in court proceedings. See, e.g. Thomason, 85 F.3d at 1373
(Social workers “absolutely immune from liability for their participation in the ex parte
proceedings in state court that led to the award of temporary protective custody of [the child] to
the state”).
Here, Plaintiffs challenge Spring Cook’s actions in initiating an investigation and making
a preliminary administrative finding of child neglect. Defendants have cited no authority for
extending absolute immunity to such administrative investigations. Thus, Cook is not entitled to
absolute immunity on Count III.
2. Qualified Immunity
Defendants next argue that Spring Cook is entitled to qualified immunity on Count III.
Qualified immunity from personal damage liability “gives government officials breathing
room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-
Kidd, 563 U.S. 731, 743 (2011). “Qualified immunity attaches when an official’s conduct does

not violate clearly established ... constitutional rights of which a reasonable person would have
known.” White v. Pauly, 137 S.Ct. 548, 551 (2017) (quotation omitted). It “protects all but the
plainly incompetent or those who knowingly violate the law.” Mullenix v. Luna, 577 U.S. 7, 12
(2015) (quotation omitted).
As previously discussed, construed in the light most favorable to Plaintiffs, Count III
states a plausible claim of retaliation in violation of the First Amendment against Defendant
Cook. Thus, the Court next determines whether the law was clearly established.
The Supreme Court has repeatedly warned that “clearly established law should not be
defined at a high level of generality ... [but] must be particularized to the facts of the
case.” White, 137 S.Ct. at 552 (citing prior cases). Although the Supreme Court “does not

require a case directly on point for a right to be clearly established, existing precedent must have
placed the ... constitutional question beyond debate” at the time the defendant acted. White, 137
S.Ct. at 551 (quotation omitted); see Mullenix, 136 S.Ct. at 308; Reichle v. Howards, 566 U.S.
658 (2012) (“[T]he right in question is not the general right to be free from retaliation for one’s
speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported
by probable cause,” id. at 665; qualified immunity applied to protective service officers as the
right was not clearly established, id. at 670).
Defendants argue that Jamison is the clearly established law in Missouri on the
constitutionality of Missouri’s CANRB procedures. Because Cook followed these procedures,
Defendants contend that she must be accorded qualified immunity from liability for damages.
They further argue that Cook’s decision to issue the preliminary finding was objectively
reasonable given the facts and in light of the CD’s role in conducting child abuse and neglect
investigations.

Count III does not challenge the procedures Cook followed, nor does it allege Cook made
a mistaken judgment. Instead, the crux of Plaintiffs’ claim is Cook’s retaliatory intent in making
her determination. “Conduct that retaliates against the exercise of a constitutionally protected
right is actionable, even if the conduct would have been proper if motivated by a different
reason.” Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001). The retaliatory conduct here—the
preliminary finding of neglect—is not the constitutional violation; the violation “lies in the intent
to impede access to the courts.” Id. (citing Madewell v. Roberts, 909 F.2d 1203, 1206-07 (8th
Cir. 1990)).
The question, therefore, is whether a reasonable official might have believed that it was
permissible to make findings of child neglect in retaliation for parents making claims against

county officials related to the sexual abuse of their child. Under clear Eighth Circuit precedent,
the answer is no. See Goff, 7 F.3d at 736 ; Naucke, 284 F.3d at 927-28; Catlett, 584 F.2d at 867;
Garcia, 348 F.3d at 729.
Because Plaintiffs successfully allege a violation of a constitutional right, and the right at
issue was “clearly established” at the time of the alleged misconduct, Defendant Spring Cook
cannot establish qualified immunity “on the face of the complaint.” Bradford v. Huckabee, 330
F.3d 1038, 1041 (8th Cir. 2003). Thus, the Court will not dismiss Count III.
E. Count V
In Count V, Plaintiffs assert a state law malicious prosecution claim against Spring Cook
for investigating and making findings against Plaintiffs for child neglect
Defendants argue Count V should be dismissed for the following reasons: Defendant
Cook is entitled to official immunity; Cook is absolutely immune from liability for malicious
prosecution; Count V fails to plead the elements of a claim for malicious prosecution; or, in the

alternative, the Court should decline to exercise its supplemental jurisdiction.
To prevail on a malicious prosecution claim in Missouri, a party must prove six elements:
(1) commencement of an earlier suit against the party; (2) instigation of that suit by the adverse
party; (3) termination of the suit in the party's favor; (4) lack of probable cause for filing the suit;
(5) malice by the adverse party in initiating the suit; and (6) damage sustained by the party as a
result of the suit. State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. banc 2014).
Malicious prosecution actions are not favored in the law as public policy supports uncovering
and prosecuting crime. Sanders v. Daniel Int’l Corp., 682 S.W.2d 803, 806 (Mo. banc 1984).
As such, courts require strict compliance with the requisite elements. Edwards v. Gerstein, 237
S.W.3d 580, 583 (Mo. banc 2007).

Missouri courts have not recognized a cause of action for malicious prosecution arising
outside of judicial proceedings. See, e.g., Holland v. Healthcare Servs. of the Ozarks, 347
S.W.3d 166, 168 n.2 (Mo. Ct. App. 2011) (“No Missouri court has recognized a claim
for malicious prosecution arising from an administrative proceeding. The underlying proceeding
has always been either a civil or criminal lawsuit.”); Teefey v. Cleaves, 73 S.W.3d 813, 816 (Mo.
Ct. App. 2002) (“Were we to pass favorably on [plaintiffs’] cause of action, we would be the first
Missouri court to apply a malicious prosecution claim to an administrative proceeding. No
Missouri court has recognized the claim in this context.”).
This Court,2 in Abernathy v. White, 4:19-CV-00009-NAB, 2019 WL 4750247, at *3
(E.D. Mo. Sept. 30, 2019), recently considered whether a city alderman stated a claim for
malicious prosecution arising from impeachment proceedings initiated by the city. Judge Baker
held that the plaintiff failed to state a claim, noting that the “Court is not included to supplant the

judgment of the Missouri courts and extend the law in the manner required to sustain Plaintiff’s
claim.” Id.
The undersigned declines to extend Missouri malicious prosecution actions to
administrative proceedings in the absence of any authority to do so. Thus, Count V fails to state
a claim for which relief can be granted, and will be dismissed.
F. Plaintiffs’ Motion for Leave to File a Sur-Response
Plaintiffs have requested the opportunity to file a Sur-Response in opposition to the
Defendants’ Motion to Dismiss. The Defendants oppose the Motion.
Eastern District of Missouri Local Rule 4.01(C) states that additional memoranda
following a reply may be filed only with leave of Court. Insofar as the above analysis has

resulted in a favorable outcome for the Plaintiffs as to Count III, Plaintiffs’ request to file a Sur-
Response is moot. As to their substantive due process claim, Plaintiffs wish this Court to
consider an out-of-district decision that is not binding authority on this Court. The undersigned
has found that Plaintiffs’ substantive due process claim against Defendant Cook necessarily fails
because the undisputed facts do not support a violation of Plaintiffs’ liberty interest. As such, the
Court declines to entertain Plaintiffs’ Sur-Response.
Accordingly,

2The Honorable Nannette A. Baker, United States Magistrate Judge.
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc. 11) is granted
in part and denied in part.
IT IS FURTHER ORDERED that Counts I, II, IV, and V are dismissed.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction (Doc.

13) is denied as moot.
IT IS FURTHER ORDERED that Motion for Leave to File a Sur-Response in
Opposition to Defendants’ Motion to Dismiss (Doc. 44) is denied as moot.
s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 4th day of June, 2021.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10235178. Public record. Not legal advice.