CLARK CNTY. v. DIST. CT. (EGGLESTON)

141 Nev., Advance Opinion ..31

IN THE SUPREME COURT OF THE STATE OF NEVADA

CLARK COUNTY; AND GEORGINA No. 87906

STUART,

Petitioners,

vs.

THE EIGHTH JUDICIAL DISTRICT

COURT OF THE STATE OF NEVADA,

IN AND FOR THE COUNTY OF

CLARK; AND THE HONORABLE

SUSAN JOHNSON, DISTRICT JUDGE,

Respondents,

and

STEVE EGGLESTON, AN

INDIVIDUAL,

Real Party in Interest.

Original petition for a writ of mandamus challenging a district

court order denying a motion for summary judgment on immunity grounds

in a 42 U.S.C. § 1983 and tort action.

Petition granted.

Olson, Cannon, Gormley & Stoberski and Felicia Galati and Stephanie A.

Barker, Las Vegas,

for Petitioners.

Clark Hill PLLC and Paola M. Armeni and William D. Schuller, Las Vegas,

for Real Party in Interest.

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BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, HERNDON, C.J.:

In this opinion, we consider whether qualified and

discretionary-act immunity apply to bar suit against a social worker who

allegedly coerced a parent to sign guardianship papers permitting relatives

to temporarily care for his children. Below, real party in interest Steve

Eggleston sued petitioners Clark County and Georgina Stuart, an employee

of the Clark County Department of Family Services (DFS), for violations of

his due process rights after he signed temporary guardianship papers in the

midst of an ongoing child abuse/neglect investigation, asserting that Stuart

and the County forced him to do so on threat that his children would

otherwise be forever removed from his care. Stuart and Clark County

moved for summary judgment on the ground that their actions were

protected by qualified immunity and discretionary-act immunity, but the

district court denied their motion. Stuart and Clark County then filed this

petition for a writ of mandamus challenging the order denying summary

judgment. We conclude that our discretionary consideration of the petition

is warranted and, determining that immunity bars the suit, grant the

petition.

FACTS AND PROCEDURAL HISTORY

Eggleston and his former girlfriend Laura Rodriguez have two

children together: R.E., born in December 2010, and H.E., born in July 2012.

Rodriguez also has adult children from prior relationships, and she has been

the subject of multiple Child Protective Services (CPS) investigations into

abuse and neglect involving those other children. Rodriguez has had

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ongoing problems with substance abuse that, in the years leading up to the

pertinent events, resulted in a DUI conviction, the loss of her job and

cosmetology license, and an overdose. On December 29, 2014, she told one

of her adult daughters that she planned to kill herself. When the daughter

reported this suicide threat to the police, DFS was notified and began

investigating for potential risk to the children, with Stuart assigned to the

case.

Stuart observed that Rodriguez's substance abuse was ongoing

and Eggleston was struggling to make ends meet while providing

supervision for the children. For example, when H.E. developed

appendicitis, Eggleston was rarely able to visit him in the hospital due to

his long work hours and instead left him in the care of Rodriguez, despite

Rodriguez's routine abuse of alcohol and prescription medications at the

time. At one point while under Rodriguez's care, H.E. fell into the family's

pool and nearly drowned. As a result, Stuart worked on developing a plan

to secure in-home services and support for the family by connecting

Eggleston with local organizations and resources, including mental health

support and rent assistance. Because Rodriguez's adult children, along

with Rodriguez's sister Lisa Callahan—who was visiting from out of state—

could provide supervision for the children, the DFS team determined that

the in-home care plan was sufficient. Despite these efforts, however, the

family faced numerous challenges in early January 2015, including

imminent eviction, Rodriguez and Eggleston planning to separate due to

Rodriguez seeking in-patient treatment for her substance abuse, and

Callahan's departure from the home, all of which raised a serious question

as to how Eggleston would provide for R.E. and H.E.

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In light of these developments, Stuart, her supervisors, and

other DFS employees met to discuss plans for the children's care and

supervision. They ultimately agreed that, without the assistance the

visiting family members had provided, Eggleston and Rodriguez likely

would not be able keep their children safe, and a supervisor recommended

the children's removal from the household and placement in the foster care

system. Stuart proposed that, alternatively, Eggleston and Rodriguez could

voluntarily assign temporary guardianship over R.E. and H.E. to the

Callahans.

On January 7, 2015, Stuart visited the home to discuss the DFS

team's proposed options for R.E. and H.E's care with Eggleston. She was

accompanied by two police officers and Rodriquez's sister, Lisa Callahan.

During the discussion, Stuart presented Eggleston with a choice: Eggleston

could sign the proposed temporary guardianship papers, or DFS would

place the children into protective custody and file an abuse and neglect

petition with the court seeking the removal of the children from the horne.

Eggleston called his attorney and apprised her of the situation. Eggleston's

attorney spoke directly with Stuart about the options available, and then

his attorney advised him to accept the ternporary guardianship. Taking his

attorney's counsel, Eggleston, a formerly practicing attorney himself, signed

the papers, which released the two minor children to the Callahans for up

to six rnonths. The Callahans returned to their home with the children, and

Eggleston asserts that, from the date on which the temporary guardianship

papers were signed, he has seen the children only once, at a legal proceeding

where the Callahans live.

Eggleston subsequently sued Clark County and Stuart,

asserting claims for substantive and procedural due process violations

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under 42 U.S.C. § 1983 and for intentional infliction of emotional distress

(IIED). Following discovery, Stuart and Clark County moved for summary

judgment, arguing that qualified immunity and discretionary-act immunity

foreclosed the § 1983 claims and the IIED claim, respectively. The district

court denied the motion. Clark County and Stuart now petition this court

for mandamus relief.1

DISCUSSION

We elect to entertain the writ petition

Writ relief is extraordinary. Archon Corp. v. Eighth chid. Dist.

Ct., 133 Nev. 816, 822, 407 P.3d 702, 708 (2017). We may issue a writ of

mandamus "in all cases where there is not a plain, speedy and adequate

remedy in the ordinary course of law." NRS 34.170. "[T]he issuance of a

writ of mandamus . . . is purely discretionary with this court." Srnith v.

Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). This

court generally will not entertain petitions challenging the denial of

summary judgment but may do so where "the relevant facts are not in

dispute and a clear question of law, dispositive of the suit, is presented."

Bottorff v. O'Donnell, 96 Nev. 606, 608, 614 P.2d 7, 8 (1980). Because we

have not previously addressed whether a writ petition is the appropriate

vehicle for challenging the denial of a summary judgment motion premised

upon defenses of qualified and discretionary-act immunity, we take the

opportunity to do so here.

When forced to face the "burdens of litigation" erroneously,

public officials lose the protections of qualified and discretionary-act

As the parties do not distinguish Clark County and Stuart for

1

purposes of their immunity arguments, we treat them the same for such

purposes as well.

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immunity in their entirety. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985);

see also Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (explaining that

qualified immunity is meant to protect officials from pretrial matters as well

as from standing trial). The denial of such immunity cannot be adequately

remedied via traditional appeal from a final judgment because the

protections constitute an "immunity from suit rather than a mere defense

to liability." Forsyth, 472 U.S. at 526-27. The right to immunity "is

effectively lost if a case is erroneously permitted to go to trial," as the public

official cannot be reimmunized if erroneously required to face the burdens

of litigation. Id. Recognizing this unique characteristic of such immunity,

other states have permitted interlocutory review in similar circumstances

where a question of law is at issue. See, e.g., Tucker u. Resha, 648 So. 2d

1187, 1190 (Fla. 1994); Robinson v. Pack, 679 S.E.2d 660, 665 (W. Va. 2009);

Furlong v. Gardner, 956 P.2d 545, 550-51 (Colo. 1998). So too has the

United States Supreme Court. See Forsyth, 472 U.S. at 530. The same is

true of discretionary-act immunity. See Martinez v. Maruszczak, 123 Nev.

433, 447, 168 P.3d 720, 729 (2007) (indicating that, under NRS 41.032(2),

discretionary-act immunity is "immunity from suit").

Although we have not previously addressed whether a petition

for writ relief is an appropriate avenue to challenge a denial of immunity,

we have observed that questions of immunity must be resolved at the

earliest possible stage of litigation. See Butler ex rel. Biller v. Bayer, 123

Nev. 450, 458, 168 P.3d 1055, 1061 (2007). We recognize that an improper

denial of qualified and discretionary-act immunities subjects Stuart to the

very litigation that those doctrines were adopted to guard against and may

discourage similarly situated public officials from lawfully discharging their

duties out of fear of being sued. See Harlow u. Fitzgerald, 457 U.S. 800, 816

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(1982) (qualified immunity prevents the "distraction of officials from their

governmental duties" and the "deterrence of able people from public

service"); Forsyth, 472 U.S. at 526-27 (a denial of qualified immunity is

"effectively unreviewable on appeal from a final judgment" because

immunity is lost if a case erroneously goes to trial); Gregoire u. Biddle, 177

F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950) (holding that

without the protection of qualified immunity, the risks and uncertainty of

litigation could dissuade public servants from doing their duty). These

immunities are meant to insulate law-abiding public servants against the

harm of litigation itself, and therefore the ability to challenge the wrongful

denial of qualified and discretionary-act immunity defenses in an appeal

from the final judgment after trial does not constitute a plain, speedy, or

adequate remedy at law. Thus, we elect to entertain this petition.

Stuart is entitled to qualified immunity from Eggleston's constitutional

claims

Stuart argues that she is entitled to summary judgment on

Eggleston's substantive and procedural due process claims under the

doctrine of qualified immunity. "When reviewing an order granting or

denying summary judgment in the context of a writ petition, we must also

be cognizant of the summary judgment standard," and we review the order

de novo. State, Dep't of Transp. v. Eighth Jud. Dist. Ct., 133 Nev. 549, 553,

402 P.3d 677, 682 (2017). Summary judgment is proper if, considering the

pleadings and all other evidence in the record, no genuine issue of material

fact exists, and the movant is entitled to judgment as a matter of law. See

Wood u. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).

Granting summary judgment on qualified immunity grounds is appropriate

where the defendant's conduct did not violate any clearly established

constitutional law. See White u. Pauly, 580 U.S. 73, 78-79 (2017) (quoting

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Mullenix v. Luna, 577 U.S. 7, 11 (2015)); see also Butler, 123 Nev. at 458,

168 P.3d at 1061. Whether the defendant violated clearly established law

is a question of law that we review de novo, despite the necessary review of

the factual allegations. Forsyth, 472 U.S. at 528-29 & n.9; see also Mabe u.

San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th

Cir. 2011) ("Whether specific facts constitute a violat on of established law

is a legal determination reviewed de novo.").

We conduct a two-step analysis based on the Supreme Court's

holding in Saucier v. Katz, 533 U.S. 194 (2001), to decide the qualified

immunity question: (1) whether the defendant's conduct violated a

constitutional right, considering the evidence in the light most favorable to

the plaintiff, and (2) whether, at the time of the defendant's conduct, said

constitutional right was clearly established in the law. Butler, 123 Nev. at

458-59, 168 P.3d at 1061-62 (citing Saucier, 533 U.S. 194). We may address

either prong first. Pearson u. Callahan, 555 U.S. 223, 236 (2009). Thus, an

official's conduct loses the protections of qualified immunity when, at the

time of the conduct at issue, the scope of the right is so clearly established

that any reasonable official would recognize a violation. See Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011). This is an exacting standard, requiring that

every reasonable official would understand that then-existing precedent

forbids the defendant's conduct in the specific circumstances where it

occurred. See District of Columbia u. Wesby, 583 U.S. 48, 63 (2018). This

does not require a plaintiff to show that the exact conduct at issue has been

found unlawful in a case that is perfectly on point, but the unlawfulness of

the defendant's conduct must be obvious given the understanding of the law

at the time. See Hope u. Pelzer, 536 U.S. 730, 739 (2002); see also Hardwick

u. County of Orange, 844 F.3d 1112, 1117 (9th Cir. 2017). Courts must be

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careful not to define the law at issue at a high level of generality and should

focus their analysis on whether the specific facts alleged show a violation of

clearly established law. See Mullenix, 577 U.S. at 12.

Eggleston's § 1983 claim alleges that Stuart violated his

Fourteenth Amendment liberty interest in parenting his children, without

due process of law. In rejecting Stuart's qualified immunity defense as to

that claim, the district court cited three issues with Stuart's conduct that,

if substantiated by a jury, would constitute a violation of clearly established

law: (1) Stuart concealed aspects of her investigation from Eggleston;

(2) Stuart misrepresented that she had authority to offer Eggleston in-home

support services and rent assistance; and (3) Stuart coerced Eggleston's

consent by misrepresenting that he was only consenting to a temporary

guardianship, whereas now Eggleston has not seen his children for years.

In his opposition to Stuart's motion for summary judgment, Eggleston

proffered each of these contentions as supporting points for his overall

§ 1983 claim that his liberty interest in parenting his children was violated

by the act of removing the children from the home. Eggleston's answer to

the writ petition did not distinguish between these contentions, instead

alleging generally that Stuart's conduct in the removal violated his parental

liberty interest. We nevertheless address the issues under the two-prong

qualified immunity framework.

Stuart's alleged conduct did not violate a clearly established

substantive due process right

A parent's liberty interest in living with and raising their

children is beyond dispute. See Santosky v. Kramer, 455 U.S. 745, 753

(1982); see also Hardwick, 844 F.3d at 1116. Indeed, earlier in the

proceedings, we recognized that Eggleston's complaint raised a substantive

due process issue regarding the fundamental right to parent his children.

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See Eggleston v. Stuart, 137 Nev. 506, 511, 495 P.3d 482, 489 (2021)

(Eggleston 1). Eggleston alleges that this right was violated by Stuart's

conduct in obtaining his consent to a temporary guardianship and that he

has not seen his children since the guardianship began. Because we view

the second step of the Saucier test as dispositive in this case, we focus our

analysis on whether, at the time of Stuart's conduct, the law clearly

established that this conduct was a violation of Eggleston's constitutional

rights.2

In general, the appropriate standard for evaluating the alleged

violation of familial rights is whether the conduct at issue "shocks the

conscience." Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).

However, we are cognizant of the need to define rights at an appropriately

specific level of generality for the purposes of qualified irnrnunity. See

Mullenix, 577 U.S. at 12. The conduct at issue here was that Stuart gave

Eggleston two options for the care of the children: he could either consent

to a temporary guardianship with the Callahans, or DFS would place the

children into protective custody and then petition a court to remove the

2 0ur holding in Eggleston /—that Eggleston had sufficiently alleged

a violation of his constitutional due process rights—was strictly under the

motion to dismiss standard, where the allegations of the complaint are

taken as true. See Eggleston I, 137 Nev. at 512, 495 P.3d at 489-90 ("Taking

Eggleston's allegations as true, as we must in the context of a motion to

dismiss, the state's actions 'shock the conscience .. . ." (emphasis added)).

Today, we evaluate Eggleston's claims with the benefit of the evidence

produced in discovery under the stricter surnrnary judgrnent standard. See

Wood, 121 Nev. at 729, 121 P.3d at 1029. Additionally, in Eggleston I, we

addressed whether Eggleston was required to exhaust his administrative

rernedies before bringing his claims and whether he had alleged procedural

or substantive due process injuries, not the immunity defenses we now

consider. See Eggleston I, 137 Nev. at 507, 510-13, 515, 495 P.3d at 486,

488-90, 491-92.

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children from the home and place them in foster care. Eggleston consented

to the temporary guardianship option, but he now argues that his consent

was coerced. Thus, defined according to the specific circumstances in which

these events occurred, the liberty interest at issue is Eggleston's right to

determine his children's care, and the alleged violation is coercion of his

consent.

We note at the outset that courts have generally found that

placing children in temporary guardianships does not implicate a

substantive due process violation. See Mammaro u. N.J. Diu. of Child Prot.

& Permanency, 814 F.3d 164, 170 (3d Cir. 2016) ("[T]he [Supreme] Court

has never found a substantive due process violation when state agencies

temporarily remove a child, whatever the circumstances of the removal.").

The Second Circuit has drawn a distinction between temporary measures

like a temporary guardianship and more severe measures like termination

of parental rights, holding that the former do not implicate a "serious

constitutional question" due to their temporary nature. See Nicholson u.

Scoppetta, 344 F.3d 154, 172 (2d Cir. 2003) (holding that temporary 'ex

parte removal" to keep children safe during an investigation did not violate

substantive due process rights because there was no permanent

termination of parental rights).

We have not squarely addressed the scope of parental due

process rights in the context of consenting to a temporary guardianship

offered by social services where coercion is alleged. But we have previously

held that there is no substantive due process violation of parental rights

where a district court awarded a temporary guardianship for a hospital to

provide treatment to a child that the parents had refused to consent to. See

In re Guardianship of L.S. & H.S., 120 Nev. 157, 167, 87 P.3d 521, 527

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(2004) (holding that a temporary guardianship struck a proper balance

between parental substantive due process rights and the state's and child's

interest in the child's well-being). Additionally, NRS 432B.340(1)(a)

authorizes child welfare agencies to inform parents of a child in need of

protection that the agency can petition a court for removal authority if they

do not consent to a plan for services. Pursuant to NRS 432B.490, child

welfare agencies have authority to petition a court for removal after an

investigation shows a need for protection.

Other courts have held that it is not unconstitutionally coercive

for a social worker to offer parents a choice between a supervisory plan short

of full removal and full removal, so long as statutory authority supports

removal. In Dupuy u. Samuels, 465 F.3d 757 (2006), the Seventh Circuit

held that the practice of offering parents a choice between

(1) consenting to "safety plan" restrictions during abuse investigations or

(2) removal pursuant to statutory authority did not violate parental due

process rights so long as the threat of removal is supported by adequate

grounds. Id. at 760-63 ("It is not a forbidden means of 'coercing' a settlement

to threaten merely to enforce one's legal rights. . . Coercion is

objectionable—and when objectionable is more aptly described as duress or

extortion—when illegal means are used to obtain a benefit.").

Similarly, in Sangraal u. City and County of San Francisco, No.

C 11-04884 LB, 2013 WL 3187384 (N.D. Cal. June 21, 2013), a social worker

secured parental consent to a 48-hour movement restriction so that she

could investigate allegations of misconduct against the father. Id. at *3.

This agreement included the understanding that police would be called to

take custody of the parents' daughter if the parents left before 48 hours had

passed. Id. The parents alleged that their consent was unconstitutionally

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coerced. Id. at *9. The court identified the key issue as "whether it was

clearly established that the 48-hour 'hold' . . . interfered with [the parents]

familial relations, given the abuse allegations and the behavior [the social

worker] observed." The federal district court disagreed that any coercion

was unconstitutional, citing Dupuy and reasoning that, because there was

"strong evidence" to support a reasonable belief of imminent harm to the

daughter, the threat of police custody was not a clearly established violation

of the parents' constitutional rights sufficient to defeat a qualified immunity

defense. Id. at *11. This reasoning accords well with the Supreme Court's

holding that, generally, consent must not be coerced. See Schnechloth u.

Bustamonte, 412 U.S. 218, 228 (1973).

Still, other courts have noted that statutory authority to

support a threat of removal is only one factor in considering whether

consent to a temporary removal was coerced. See Morales u. County of

Mendocino, 16-CV-02429-EMC, 2018 WL 11257426, at *6-7 (N.D. Cal.

Feb. 5, 2018) (conducting a totality-of-the-circumstances analysis to

determine whether consent for temporary removal was coerced and

considering statutory authority along with grandmother's familiarity with

CPS procedures and her demeanor during the confrontation). Considering

these cases, the qualified immunity analysis inquiry here is whether, given

the statutory requirements for removal and the facts known to Stuart at the

time, any reasonable social worker would recognize that threatening to

petition for removal would violate Eggleston's constitutional rights.

Eggleston has not met the exacting "clearly established"

standard required to defeat qualified immunity on this point. Eggleston

cites cases showing that qualified immunity has been denied when social

workers removed a child with neither a warrant nor a reasonable belief in

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imminent harm. See Mabe, 237 F.3d at 1108-09 (denying summary

judgment on qualified immunity ground where social worker's delay of four

days between interview with alleged victim of child abuse and removal of

said victim indicated no reasonable belief in imminent threat); Rogers v.

County of San Joaquin, 487 F.3d 1288, 1295-96 (9th Cir. 2007) (finding that

officials' decision to delay obtaining medical care for children indicated that

there was not a reasonable belief in imminent threat to the children

sufficient to justify warrantless removal); Croft v. Westmoreland Cnty.

Child. & Youth Servs., 103 F.3d 1123, 1126-27 (3d Cir. 1997) (holding that

a single anonymous report of sexual abuse was insufficient to support belief

in imminent threat where subsequent interviews with parents did not

substantiate the report).3 Looking to other caselaw on the issue beyond

what Eggleston has cited in briefing, courts have considered other factors

such as an imminent lack of adequate care for children and the knowledge

level of a family member who consents to a temporary removal. See Ansara

v. Maldonado, 647 F. Supp. 3d 958, 973-74 (D. Nev. 2022) (imminent threat

of harm justified social worker's warrantless removal from a daycare

program because child would soon be transferred from the capable

caregivers at the daycare to parent with known substance abuse issues);

Morales, 2018 WL 11257426, at *6-7 (finding no coercion where consenting

3 Eggleston also cites to two other cases that are substantively

inapposite. See Garver v. Washoe County, No. 3:09—CV-00463—LRH—WGC,

2011 WL 6002969 (D. Nev. Nov. 28, 2011) (denying qualified immunity at

summary judgment stage because genuine issues of material fact remained

regarding what information was conveyed to social workers who ordered

removal by police but were not at the scene); Costanich v. Dep't of Soc. and

Health Servs., 627 F.3d 1101 (9th Cir. 2010) (affirming denial of qualified

immunity at summary judgment stage in case where foster license was

revoked).

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grandmother was familiar with CPS procedures from previous employment

and voluntarily consented after discussion with social worker).

Taken together, the facts do not indicate that any reasonable

social worker would recognize that stating that DFS would remove the

children into protective custody would violate Eggleston's constitutional

rights, given the circumstances present in this case and the state of the law

at the time. Stuart's investigation indicated that Rodriguez had ongoing

struggles with substance abuse and serious mental health issues, that the

children had faced serious risks to their well-being while left in Rodriguez's

sole care, and that Eggleston's long work hours meant he was often

unavailable to protect them or care for their needs. Stuart was also aware

that Eggleston and Rodriguez planned to separate and that Rodriguez

would be pursuing in-patient rehabilitation for her addiction problems,

meaning that the demands of caring for the children would soon fall on

Eggleston alone, despite his long work hours. Stuart knew from

communication with her supervisors and coworkers that the support

resources and rental assistance needed for the in-home safety plan were no

longer available. After the DFS meeting, she also knew that her supervisors

recommended removal to foster care, suggesting that she had statutory

authority to petition for removal pursuant to NRS 432B.340 and NRS

432B.490. Significantly, despite Eggleston's allegations that he was

threatened with never seeing his children again, Eggleston I, 137 Nev. at

514, 495 P.3d at 491, the record has not borne out that this was actually the

case. During the discussion where Stuart offered Eggleston the choice

between DFS placing the children into protective custody and petitioning a

court for removal, or signing the temporary guardianship papers, Stuart

allowed Eggleston to call his lawyer and even spoke to Eggleston's attorney

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herself. Thus, at the time Eggleston agreed to the temporary guardianship,

Eggleston had obtained legal advice, and it appeared to Stuart that

Eggleston understood his options.

These facts distinguish Stuart's situation from the caselaw

cited by Eggleston. Stuart had more familiarity with the threats facing the

children than the social workers in Sangraal and Croft, given her

investigation and communication with Eggleston. She knew that there

would soon be no reliable caretaker for the children, given that relatives

who had been providing care would be leaving, Rodriguez would be leaving

for rehabilitation, and Eggleston's demanding work schedule meant he

would be unable to consistently care for the children himself, a situation

similar to that in Ansara. She did not delay and leave H.E. and R.E. in this

dangerous situation, unlike the social workers in Mabe and Rogers. Similar

to the grandmother who had worked at CPS in Morales, Eggleston was able

to draw on his knowledge to make a more informed decision as to his options

and discussed those options with Stuart. Given the foregoing, we conclude

that Eggleston cannot show that on January 7, 2015, a reasonable social

worker would know that Stuart's offer of temporary guardianship in lieu of

removal to foster care was coercive or otherwise unconstitutional.

Therefore, he cannot show that there was a violation of his clearly

established parental rights. We hold that Stuart is entitled to qualified

immunity on his substantive due process claims.

We are sensitive to Eggleston's assertions that he has not seen

his children in the years since he signed the guardianship. However, we

cannot ignore that an official's conduct is outside the protection of qualified

immunity only if it is clearly established as unconstitutional at the time of

the conduct. See, e.g., Pearson, 555 U.S. at 227 ("[P]etitioners are entitled

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to qualified immunity on the ground that it was not clearly established at

the time of the search that their conduct was unconstitutional."). When

Eggleston gave his consent, he and Stuart ostensibly believed that the

temporary guardianship would be temporary, and we must assess Stuart's

conduct in light of the guardianship's intended temporariness. Moreover, a

§ 1983 claim challenges government action, and the fact that the Callahans

have not sent H.E. and R.E. back to Nevada does not change the fact that

Stuart secured Eggleston's consent only for a temporary guardianship. See

42 U.S.C. § 1983.

Stuart's alleged conduct did not violate a clearly established

procedural due process right

Eggleston also alleged a violation of his procedural due process

rights. He claimed that because Stuart and DFS did not keep him fully

informed of various developments in their investigation, he did not have

adequate notice or opportunity to respond to the investigation and the

choice between removal or a temporary guardianship. In particular, he

alleges that he was unable to effectively respond to the investigation

because Stuart did not tell him that he was being investigated for abuse and

neglect, as well as Rodriguez, and because Stuart misrepresented her

ability to connect him with the in-home services and other benefits under

the safety plan. Eggleston argues that his cooperation with Stuart was

premised on the idea of the safety plan as an option and that he was thus

unable to effectively respond when it was suddenly withdrawn. Overall,

Eggleston alleges that Stuart used an "ambush strategy" when she

confronted him with his options, therefore depriving him of meaningful

notice and opportunity to respond to her.

Stuart asserts that she is entitled to qualified immunity on

these claims because Eggleston has not alleged a constitutional violation on

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these facts. She emphasizes that although procedural due process

requirements are well-documented for proceedings such as termination of

parental rights, there is no clearly established law showing procedural due

process violations occur when less severe measures are taken, such as the

temporary guardianship in this case. She also argues that there exists no

statutory or constitutional right to receive benefits or to be notified of

investigations or the possibility of DFS seeking removal.

As to Eggleston's contentions that he was not kept informed of

the DFS investigation's details and the withdrawal of safety plan benefits,

he has failed to establish that any constitutional violation occurred.

Eggleston has provided caselaw establishing the procedural due process

requirements in other areas of the law, but he has not pointed to any

authority showing a right to be completely informed of a DFS investigation

or of the availability of benefits. See Santosky v. Kramer, 455 U.S. 745, 758

(1982) (discussing procedural due process requirements for termination of

parental rights proceedings); Lassiter v. Dep't of Soc. Servs. of Durham

Cnty., N.C., 452 U.S. 18, 31-32 (1981) (same); Eureka County v. Seventh

Jud. Dist. Ct., 134 Nev. 275, 276, 417 P.3d 1123, 1125 (2018) (addressing

due process requirements for a show-cause hearing to determine water

rights); Harndi u. Rumsfeld, 542 U.S. 507, 533 (2004) (discussing due

process rights for U.S. citizens imprisoned as enemy combatants). These

cases do not establish that Eggleston had any procedural due process right

to be informed of the details of the DFS investigation or to be apprised of

whether the benefits and the safety plan were still available. Therefore,

these claims do not overcome the first prong of Saucier's two-prong test, and

Stuart is entitled to qualified immunity on these claims.

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Eggleston's claim that he was unable to effectively respond to

the choices that Stuart offered hirn on January 7 because of an "ambush

strategy" find more support in the caselaw he has provided, but there are

important distinguishing features. Santosky and Lassiter both addressed

parental rights termination proceedings, whereas Eggleston consented only

to a temporary guardianship. Thus, there is some doubt as to whether these

cases establish procedural due process rights in temporary guardianships

at an appropriate level of generality. However, even if we were to hold that

they do, and that Stuart's conduct violated those rights, that law was

certainly not clearly established at the time of the conduct sufficient to meet

the exacting standards of the second step in the Saucier framework. See

Costanich, 627 F.3d at 1108 (holding that a social worker was entitled to

qualified immunity on a due process claim where her conduct violated the

Due Process Clause, but at the time the law was not sufficiently clear as to

the specific proceeding at issue for the violation to be clearly established).

Therefore, we hold that Stuart is also entitled to qualified immunity on

Eggleston's alleged "ambush" procedural due process claim.

Stuart is entitled to discretionary-act immunity from Eggleston's tort claint

Stuart also argues that she is entitled to discretionary-act

immunity from Eggleston's IIED claim. We agree. "[T]o fall within the

scope of discretionary-act immunity, a decision must (1) involve an element

of individual judgment or choice and (2) be based on considerations of social,

economic, or political policy." Martinez u. Maruszczak, 123 Nev. 433, 446-

47, 168 P.3d 720, 729 (2007) (adopting the Berkouitz-Gaubert test that the

United States Supreme Court established for federal discretionary-act

immunity). As to the first criterion, we have clarified that discretionary-act

immunity does not apply to intentional torts or bad-faith conduct, as such

acts are outside of a public official's discretion. Franchise Tax Bd. of Cal. v.

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Hyatt, 130 Nev. 662, 682, 335 P.3d 125, 139 (2014), vacated on other

grounds, 578 U.S. 171 (2016). As to the second criterion, we have held that

"if the injury-producing conduct is an integral part of governmental policy-

making or planning, if the imposition of liability might jeopardize the

quality of the governmental process, or if the legislative or executive

branch's power or responsibility would be usurped, immunity will likely

attach under the second criterion." Martinez, 123 Nev. at 446, 168 P.3d at

729.

The district court denied discretionary-act immunity on the

grounds that Stuart's actions did not conclusively satisfy the requirements

for discretionary-act immunity, because if a jury found that Stuart had

coerced Eggleston, her actions would have exceeded her discretion and

would not have fallen within the considerations of social policy.

Whether discretionary-act immunity applies to a particular

official's actions presents a mixed question of law and fact. Martinez, 123

Nev. at 438-39, 168 P.3d 724. We review a district court's conclusions of

law de novo. Id.

As to the first inquiry, Stuart's actions involved elements of

individual judgment or choice. Stuart testified during her deposition that

(1) she was the person who presented Eggleston with the choice between

DFS placing the children into protective custody and petitioning a court for

removal or Eggleston signing a temporary guardianship, (2) she called

police to assist, and (3) she conferred with her DFS colleagues to ensure that

her actions were appropriate. Although the decision to either seek to

remove the children to foster care or place them in a temporary

guardianship may not have been Stuart's alone, the first part of the

Martinez test only requires "an element of individual judgment or choice."

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123 Nev. at 446-47, 168 P.3d at 729. Stuart had to make individual

judgments as to the safety of the children if left at Eggleston's home, the

propriety of the alternatives (temporary guardianship or removal), and

whether police officers would be necessary to ensure the safety of all

involved. These judgments reflect an element of individual judgment or

choice.

Furthermore, her actions do not reflect bad faith or an

intentional tort. Eggleston has not presented evidence of bad faith on

Stuart's part. Considering the previous abuse and neglect investigations by

CPS, and the decision from her DFS colleagues and supervisors, Stuart had

a reasonable, good-faith belief that she was operating under statutory

authority when she presented Eggleston with his options based on NRS

432B.340 and 432B.490.

Stuart's actions were also based on policy considerations

sufficient to satisfy the second part of the test. "The focus of the second

criterion's inquiry is not on the employee's 'subjective intent in exercising

the discretion conferred by statute or regulation, but on the nature of the

actions taken and on whether they are susceptible to policy analysis."

Martinez, 123 Nev. at 445, 168 P.3d at 728 (quoting United States u.

Gaubert, 499 U.S. 315, 325 (1991)). The state has an interest in the welfare

of children, and in acting upon that interest, the state generally must do so

with the goal of securing the child's best interests. Stuart's actions in this

case are susceptible to this policy analysis because offering placement

options to parents facing a potential termination of parental rights

implicate the best interests of the children, a mainstay of family law policy.

See, e.g., Manuela H. u. Eighth Jud. Dist. Ct., 132 Nev. 1, 7, 365 P.3d 497,

501-02 (2016) (discussing the legislature's interest in protecting best

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interests of children when enacting statutes governing petitions for removal

from parental custody); In re Parental Rights as to D.R.H., 120 Nev. 422,

427, 92 P.3d 1230, 1233-34 (2004) (discussing the state's compelling interest

in protecting the best interests of children in parental rights termination

proceedings). Stuart's actions in investigating Eggleston and in obtaining

his consent to a temporary guardianship clearly implicate Nevada's policy

of supporting the best interests of children, and allowing the claims against

her to proceed could negatively impact how that policy is carried out in the

future.

Lastly, immunizing Stuart from suit promotes Nevada's

"compelling interest in assuring that abused and neglected children achieve

safe, stable and permanent home environments within which to be reared."

Id. at 427, 92 P.3d at 1233. The determination that it is in children's best

interests to separate them from their parents will always be in fundamental

tension with parental rights. Discretionary-act immunity is necessary for

social workers to do the painstaking work of navigating that tension

competently and lawfully. Here, Stuart acted to protect the children from

Eggleston's failure to adequately supervise and care for them in the face of

Rodriguez's struggles with addiction and mental health. Accordingly, we

hold that Stuart is entitled to discretionary-act immunity on Eggleston's

IIED claim.

CONCLUSION

Qualified and discretionary-act immunities protect government

employees from suit when performing their jobs unless they do so in a way

that violates a clearly established right or is conducted in bad faith. These

immunities present special legal issues that must be decided before trial,

lest they be lost forever. Stuart's actions did not violate any of Eggleston's

clearly established rights but rather reflected her lawful exercise of

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discretion as a public servant. Accordingly, we grant the petition and direct

the clerk of this court to issue a writ of mandamus ordering the district court

to vacate the challenged order denying summary judgment and enter an

order granting summary judgment on the 1983 claims and the IIED claims

in favor of Stuart and Clark County. In light of this opinion, we lift the stay

of proceedings imposed by our March 18, 2024, order.

, C.J.

Herndon

We concur:

J.

Parraguirre

J.

Stiglich

.t (

ofiet/ J.

Cadish

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BELL, J., dissenting:

I respectfully dissent for two reasons. First, granting Stuart's

petition contradicts our decision in Eggleston v. Stuart, 137 Nev. 506, 495

P.3d 482 (2021) (hereinafter Eggleston 1). Second, I disagree with the

majority's conclusion that Stuart was simply acting pursuant to her

authority under NRS Chapter 432B. Evidence could support a conclusion

that Stuart circumvented the carefully structured statutory process to

protect neglected children by coercing Eggleston into signing a

guardianship, thereby disposing of the need to have any further

involvement with the Eggleston children. If Stuart used coercion or threats

to achieve her aims, she would not be entitled to qualified or discretionary

act immunity.

Granting Stuart immunity conflicts with our decision in Eggleston I

This case last came before us after the district court granted in

part Stuart's motion to dismiss. Id. at 506-07, 495 P.3d at 486. Two pieces

of our analysis are relevant here. First, we concluded Eggleston was not

required to exhaust administrative remedies because he asserted a

substantive, rather than a procedural, due process claim. Id. at 513, 495

P.3d at 490. We took Eggleston's allegations as true "that Clark County

and Stuart arbitrarily and capriciously . . . forced him under duress to sign

temporary guardianship papers leading to the unwarranted removal of his

children from his care." Id. at 511-12, 495 P.3d at 489. We concluded this

was enough to "shock the conscience," giving rise to a substantive due

process claim. Id. at 512, 495 P.3d at 489-90. Discovery has not eliminated

factual disputes about whether Stuart's threat was arbitrary and

capricious. Stuart's coercive tactics still "shock the conscience," and conduct

shocking to the conscience is not protected by qualified immunity. See

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Tobias v. Arteaga, 996 F.3d 571, 575 (9th Cir. 2021); Hernandez ex rel.

Hernandez v. Foster, 657 F.3d 463, 478-79 (7th Cir. 2011).

Second, we concluded the district court erred in Eggleston I by

disallowing punitive damages. Eggleston I, 137 Nev. at 514, 495 P.3d at

491. We stated punitive damages were allowed because the allegations in

the complaint indicated Stuart was acting in an individual capacity, outside

the scope of her official authority. Id. Specifically, we stated that Eggleston

sufficiently alleged Stuart acted beyond the scope of her authority when she

arrived at his home with two police officers and forced him to sign

temporary guardianship papers under the threat that he would otherwise

never see his children again." Id. Discovery has borne out Eggleston's

allegations, and I see no reason we should reverse course and now declare

that Stuart's actions were within the scope of her authority. Because Stuart

was acting in her individual capacity, she should not be entitled to qualified

or discretionary act immunity.

Stuart's threat circumvented the statutory procedures for removal

Stuart's coercive tactics also sidestepped important procedural

protections, both for Eggleston and the children. Absent Stuart's on-the-

spot ultimatum, Eggleston could have made an informed choice to work

toward getting his children back through a normal protective custody

proceeding, affording him a panoply of procedural protections. See NRS

432B.470(1) (providing notice and a hearing within 72 hours of removal to

determine whether protective custody is required); NRS 432B.540(2)

(requiring DFS to submit a plan for placement of the children during an

investigation); NRS 432B.540(2)(b) (requiring DFS to submit a plan to

reunite the parents and children); NRS 432B.393(1) (requiring DFS to

make reasonable efforts to preserve and reunify the family of a child").

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By coercing Eggleston into agreeing to the temporary

guardianship, Stuart avoided her responsibilities to appropriately place the

children, ensure the children's continuing welfare, and make efforts to

reunify Eggleston with his children. Meanwhile, Eggleston lost access to

resources that would assist him with reunification and the opportunity to

contest any of DFS's actions in court. Using a threat to circumvent

important protections for children and parents violated Eggleston's clearly

established right to custody and control of his children. Santosky v. Kramer,

455 U.S. 745, 753 (1982) (explaining that "[t]he fundamental liberty interest

of natural parents in the care, custody, and management of their child does

not evaporate simply because they have not been model parents"). This

holds especially true if Stuart could not actually have taken the children on

the spot, and Eggleston has offered evidence the children were not in

immediate danger when Stuart made her threat. Thus, I believe there is a

triable question of fact as to whether Stuart violated Eggleston's clearly

established due process rights. Social workers are responsible for some of

the most vulnerable people in our society, but that does not entitle Stuart

to use threats or coercion to achieve those nds, and I dissent.

J.

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