The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30680
Summary Calendar
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LISA ALACK PETERS; MICHELLE WINTERSTEIN, Through her next friend,
Lisa Alack Peters; JOSEPH WINTERSTEIN
Plaintiffs-Appellees
v.
CONNIE LOWREY; ET AL
Defendants
CRAIG ANDREWS, Office of Community Services Worker, Individually
and in his Official Capacity; DALE FRAZIER, Office of Community
Services Supervisor, Individually and in his Official Capacity;
THOMAS HALL, Office of Community Services Supervisor, Individually
and in his Official Capacity
Defendants-Appellants
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-2738-J-4)
_________________________________________________________________
May 6, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
1
Lisa Alack Peters, Michelle Winterstein, and Joseph
Winterstein brought a suit under 42 U.S.C. § 1983, claiming that
their Fourth, Eighth, and Fourteenth Amendment rights had been
violated by various state employees during a child abuse
investigation. Craig Andrews, Dale Frazier, and Thomas Hall,
employees of the Office of Community Services, asserted the
defense of qualified immunity in their answer and in a motion for
summary judgment. They now appeal the district court’s
interlocutory order denying their motion to stay discovery and
denying their motion for review of the magistrate judge’s order
requiring them to comply with discovery. We vacate the district
court’s denial of the defendants’ motion to stay discovery and
remand for further proceedings.
I. BACKGROUND
A. Statement of Facts
On August 24, 1992, Peters and Winterstein discovered that
Michael Alack, their eight-month old child, had a skull injury.
He had recently returned home from the house of Evelyn McKnight,
one of two babysitters used by the family. The parents took
Michael to the hospital and learned that he had a fractured
skull. The parents believed the injury must have occurred in
their home. Approximately one month later, Michael returned home
from the same babysitter with another injury to his skull.
Multiple skull fractures were diagnosed at the hospital.
2
At that point, a child abuse investigation was opened by the
Tangipahoa Parish Sheriff’s Department and the Office of
Community Services (“OCS”) of Tangipahoa Parish. Peters alleges
that Connie Lowery, an investigator for the Sheriff’s Department,
made a series of false, intimidating, and malicious statements
and threatened to put her in jail and that the defendants relied
upon false and misleading information, ignored pertinent and
crucial facts, and failed to conduct a competent investigation.
Peters alleges that Lowery and Craig Andrews, a social worker at
OCS, told her that she was required to use McKnight as a
babysitter, and that she should not let her neighbor and friend,
Sandra Morgan, babysit Michael.
On Christmas day, Peters and her family attended a party at
her sister’s house. A videotape taken at that time and witness
testimony confirm that Michael was healthy and playing normally
that day. That evening, Peters allowed Michael and her eighteen-
month old daughter Michelle to visit Morgan’s house and stay
overnight.
On December 26, McKnight picked up Michelle and Michael from
Morgan’s house, with Peters’ permission, and took them to her
house to stay overnight. Peters called McKnight the next morning
to see how the children were doing. McKnight told Peters that
Michelle was playing, but Michael was still asleep. Peters
became alarmed because Michael usually did not sleep past 7:00
a.m., so she instructed McKnight to bring both children home
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immediately. Instead, McKnight took Michael to the hospital,
where he was diagnosed as being brain dead. Michael died on
December 29.
An investigation ensued, and Michelle was removed from her
parents and placed in foster care for sixteen months. In spite
of the existence of the video tape, witness testimony, and the
parents’ request that they be given lie detector tests, Peters
and Winterstein were arrested and imprisoned on charges of
cruelty to a juvenile and second degree murder. They were not
allowed to visit their son in the hospital before his death, and
they were denied access to information regarding his medical
condition. They remained in prison for approximately eight
months, until they were released by the issuance of a “No True
Bill” by the Tangipahoa Parish Grand Jury.
Following the death of another infant, who had reportedly
been kidnapped, McKnight was arrested on July 21, 1994, for
obstruction of justice and being an accessory after the fact.
Peters claims that the death of the other child led to the
revelation that McKnight caused Michael’s head injuries and gave
false statements regarding his death.
B. Procedural History
In August 1994, Peters, Michelle Winterstein, and Joseph
Winterstein (collectively “the Peters family”) filed a civil
rights action under 42 U.S.C. § 1983 against Sheriff J. Edward
4
Layrisson, Connie Lowery, an investigator for cases involving
juveniles for the Tangipahoa Parish Sheriff’s Department, Craig
Andrews, a social worker investigating child abuse for the Office
of Community Services of Tangipahoa Parish, and Dale Frazier and
Thomas Hall, OCS supervisors with responsibility for child abuse
investigations and foster care placements. The Peters family
alleged that the defendants violated the Fourth, Eighth, and
Fourteenth Amendments and the laws of Louisiana. Their
complaints include malicious prosecution, wrongful arrest and
imprisonment, wrongful placement in foster care and with
McKnight, harassment, and intimidation, which resulted in pain,
anguish, and the wrongful death of Michael Alack. They also
alleged that Layrisson, Frazier, and Hall were responsible under
a theory of respondeat superior because they had a policy,
custom, practice, and procedure of negligently and inadequately
hiring, training, supervising, and retaining employees,
particularly Lowery and Hall, and because they had condoned
Lowery and Hall’s handling of the case.
Layrisson and Lowery filed a Fed. R. Civ. P. 12(b)(6) motion
to dismiss in March 1995, asserting that there is no vicarious
liability under the Civil Rights Act, the plaintiffs did not
allege that they were arrested without probable cause, Layrisson
and Lowery were entitled to qualified and absolute immunity, they
were protected by sovereign immunity, the plaintiffs claims were
time-barred, and the district court lacked subject matter
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jurisdiction. Andrews, Hall, and Frazier also filed a Rule
12(b)(6) motion to dismiss, asserting that the action against
them was time-barred and that it was barred by the Eleventh
Amendment.
In September 1995, the district court, Judge Okla Jones II,
ruled that the state law claims were time-barred and granted the
motion to dismiss them; however, the district court denied the
motion to dismiss the remaining claims, ordered that they be
pleaded with specificity in an amended complaint, and ordered
limited discovery on the issue of immunity. The court set a
discovery deadline of July 5, 1996, and set a pretrial conference
for August 5, 1996.
Layrisson and Lowery filed an answer in November 1995.
Andrews, Frazier, and Hall filed an answer in January 1996 and a
motion for summary judgment in June 1996, asserting the defense
of qualified immunity in both.
Also in June 1996, Andrews, Frazier, and Hall filed a motion
to quash the plaintiffs’ “Notice of Deposition” and a motion for
a protective order on the grounds that the assertion of qualified
immunity entitled them not to be burdened with avoidable or
overly broad discovery and that the plaintiffs had failed to
allege a constitutional violation. The magistrate judge denied
the motion to quash and the motion for a protective order because
the defendants’ motion for summary judgment was not set for
hearing until after the discovery deadline. The judge also noted
6
that Andrews, Frazier, and Hall had not raised their qualified
immunity defense in their motion to dismiss filed in March 1995
and had waited until June 1996 to file a motion for summary
judgment on the issue.
Andrews, Frazier, and Hall filed a motion to set aside the
magistrate judge’s order, a request for an expedited hearing, and
a motion to stay discovery. The district court, Judge Patrick
Carr,1 denied their motions on the grounds that similar immunity
defenses had already been presented by these defendants and had
been denied by Judge Jones. Andrews, Frazier, and Hall filed a
timely notice of appeal. This court denied a motion for a stay
of discovery pending appeal.
II. DISCUSSION
A. Jurisdiction
The Peters family alleges that this court does not have
jurisdiction to hear this “very premature interlocutory appeal.”
We disagree. While orders compelling limited discovery are
interlocutory and not appealable under the final judgment rule in
most circumstances, Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th
Cir. 1987), the Supreme Court has held that orders denying
substantial claims of qualified immunity are immediately
appealable under the collateral order doctrine. Mitchell v.
Forsyth, 472 U.S. 511, 526-27 (1985). Thus, when a discovery
1
After Judge Jones’ death, the case was reassigned to Judge
Carr.
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order denies a state employee the benefits of the qualified
immunity defense, we have jurisdiction to review the order.
Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 994
(5th Cir.), cert. denied, 115 S. Ct. 2555 (1995).
In Lion Boulos, we held that a party asserting the defense
of qualified immunity is not immune from all discovery, but is
only immune from that discovery which is “avoidable or overly
broad.” 834 F.2d at 507. Thus, an order for limited discovery
in the appropriate circumstances is not immediately appealable.
Wicks, 41 F.3d at 994. Before even limited discovery begins,
however, the district court must find that the plaintiff’s
pleadings assert facts which, if true, would overcome the defense
of qualified immunity. Id. To overcome the qualified immunity
defense, the plaintiff must allege specific facts which, if true,
would demonstrate that the defendant violated clearly established
statutory or constitutional rights. Id. at 995.
In their motion to dismiss for failure to state a claim,
Andrews, Frazier, and Hall did not raise the defense of qualified
immunity. The district court denied their motion on the ground
that the Eleventh Amendment did not apply to them, but did not
make any determination as to whether the Peters family’s
allegations, if true, would overcome any qualified immunity
defense the defendants might raise.
Andrews, Frazier, and Hall raised the defense of qualified
immunity in their answer and motion for summary judgment. They
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also filed a motion to quash a notice of deposition, which was
denied by the magistrate judge without a determination as to
whether Peters had asserted specific facts to overcome a
qualified immunity defense.
The district court denied motions to review the magistrate
judge’s order and to stay discovery because Andrews, Frazier, and
Hall had presented similar issues to Judge Jones, who denied the
motion to dismiss. In fact, Judge Jones only addressed Layrisson
and Lowery’s qualified immunity defense because Andrews, Frazier,
and Hall had not raised a qualified immunity defense at that
time.
The district court has never determined that the Peters
family has asserted facts that would overcome a qualified
immunity defense. “The allowance of discovery without this
threshold showing is immediately appealable as a denial of the
true measure of protection of qualified immunity.” Wicks, 41
F.3d at 995. Therefore, we have jurisdiction to hear this
appeal.
B. Analysis
Our inquiry must focus on whether the allegations in the
Peters family’s complaint negate the defendants’ defense of
qualified immunity. The Peters family alleges that the
defendants failed to conduct a competent investigation because
they relied on false and misleading information, ignored and
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failed to investigate crucial facts, did not administer lie
detector tests, and failed to determine the identity of the
perpetrator of the child abuse. As a result of the investigation
into Michael’s death, Michelle was placed in foster care. The
Peters family also alleges that Andrews told her not to allow
Morgan to babysit Michael and to leave him only with McKnight.
The Peters family claims that Frazier and Hall were responsible
for the harm because OCS has a policy, custom, practice, and
procedure of inadequately hiring, training, supervising, and
retaining employees, and condoning the malicious handling of
cases.
The Peters family’s complaint against these defendants does
not implicate the constitutional guarantees at issue. There is
no clear allegation against the social workers of a violation of
either the Fourth or the Eighth Amendment.2 As to the Fourteenth
Amendment, the Peters family does not indicate whether they are
alleging a procedural or substantive due process violation. To
the extent that the Peters family is asserting a liberty interest
in family integrity, see generally, Doe v. Louisiana, 2 F.3d 1412
(5th Cir. 1993)(recognizing a constitutional right of family
integrity), they do not allege that they were deprived of a
2
The Fourth and Eighth Amendment claims make more sense in the
context of the allegations against Sheriff Layrisson and Lowery.
We note that the district court found that the Peters family had
met the threshold showing in their allegations against Layrisson
and Lowery and allowed limited discovery to address their immunity
defense.
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liberty interest without procedural due process. Moreover,
although a substantive due process right to family integrity has
been recognized, the contours of the right are nebulous and not
clearly established in the context of the state taking temporary
custody of a child. See Kiser v. Garrett, 67 F.3d 1166, 1171-73
(5th Cir. 1995). Thus, the Peters family has not alleged facts
with sufficient specificity to negate the defense of qualified
immunity.
III. CONCLUSION
For the foregoing reasons, we VACATE the denial of the
motion to stay discovery and REMAND the case for further
proceedings.
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