Whitesel v. Jefferson County

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

AUG 23 2000

UNITED STATES COURT OF APPEALS

PATRICK FISHER

Clerk

TENTH CIRCUIT

KEVIN WHITESEL,

Plaintiff-Appellant,

v. No. 98-1472

KELLY SENGENBERGER F/K/A

KELLY CRONAN, JULIE

STRANSKI, JUNE H.

CANDELARIO, THE BOARD OF

COUNTY COMMISSIONERS FOR

JEFFERSON COUNTY, COLORADO,

NELSON NADEAU, BRENDA

BOUCHARD, and ELIZABETH

BARR,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE D. COLO.

(D.C. NO. 97-Z-2265)

Vincent C. Todd, Lakewood, Colorado, for the Plaintiff-Appellant.

William A. Tuthill III, Assistant County Attorney for Jefferson County, Golden,

Colorado, (Frank J. Hutfless, County Attorney, with him on the brief), for the

Defendants-Appellees.

Before HENRY , LUCERO , and MURPHY , Circuit Judges.

HENRY , Circuit Judge.

The appellant, Kevin Whitesel, brought an action for damages pursuant to

42 U.S.C. § 1983 against several pretrial services officers in the First Judicial

District of Colorado, alleging that they violated his constitutional rights by

issuing a temporary restraining order prior to a hearing before a judge. Mr.

Whitesel further alleged that the Board of County Commissioners (“the Board”)

established the policy authorizing the officers to issue the order. In a separate §

1983 claim, Mr. Whitesel alleged that the Director and two employees of the

Jefferson County Department of Human Services (collectively “Human Services

employees”) violated his due process rights in obtaining a default judgment

against him for child support and in initiating a wage assignment.

The district court found that the pretrial services officers were entitled to

quasi-judicial absolute immunity and granted judgment as a matter of law in their

favor. The court also granted judgment in favor of the Board. As to the Human

Services employees, the court determined that none of their actions, as alleged by

Mr. Whitesel, established a violation of clearly established federal rights. Thus,

the court granted summary judgment in their favor as well. For the reasons set

forth below, we affirm the district court’s judgment in part, and vacate it in part,

and remand for proceedings consistent with this opinion.

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I. BACKGROUND

A. Pretrial Service Officers

On September 10, 1997, Mr. Whitesel was arrested and charged with Third

Degree Assault, in violation of Colo. Rev. Stat. § 18-3-204, and Child Abuse, in

violation of Colo. Rev. Stat. § 18-6-401. In connection with his arrest and

charges, appellee June H. Candelario, a pretrial services employee, acting as a

bond commissioner, filled out a document entitled “Temporary Restraining Order

Pursuant to Section 18-1-1001, C.R.S” (“TRO”). Aplt’s App. at 40. This

document bore the stamped signature of Judge Charles T. Hoppin. It ordered Mr.

Whitesel not to “harass, molest, intimidate, retaliate against, or tamper with any

witness to or victim” of the crimes for which he was charged. Id. This provision

is mandatory, pursuant to Colo. Rev. Stat. § 18-1-1001(1), for persons arrested for

domestic violence offenses.

The TRO contained additional provisions requiring that Mr. Whitesel:

“[(1)] vacate the home of the victim and stay away from any other location the

victim is likely to be found. . . . [(2)] refrain from contacting or . . .

communicating with the victim. . . . [(3)] not possess or control a firearm or other

weapon. . . . [(4)] not possess or consume alcoholic beverages or controlled

substances.” Id. These provisions are discretionary under Colo. Rev. Stat. § 18-

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1-1001(3). 1

Ms. Candelario signed her name on the TRO, certifying that it was “a

true and complete copy of the original order.” Id.

When Mr. Whitesel returned to the family residence, several hours later, his

wife called the police, who re-arrested him for violating the discretionary

provisions of the TRO. At a subsequent hearing, a state court judge ruled that the

plain language of § 18-1-1001(3) implied that the court must afford the defendant

a hearing prior to issuance of a TRO containing one or more of the discretionary

provisions. Because Mr. Whitesel had not been afforded a hearing prior to

issuance of the discretionary provisions, the court held these provisions were not

1

Colo. Rev. Stat. § 18-1-1001(3) states:

Upon motion of the district attorney, or on the court’s motion to

protect the alleged victim, the court may, in cases involving domestic

violence as defined in section 18-6-800.3(1), enter any of the

following further orders against the defendant:

(a) An order to vacate or stay away from the home of the victim and

to stay away from any other location where the victim is likely to be

found;

(b) An order to refrain from contact or direct or indirect

communication with the victim;

(c) An order prohibiting possession or control of forearms or other

weapons;

(d) An order prohibiting possession or consumption of alcohol or

controlled substances;

(e) Any other order the court deems appropriate to protect the safety of the

alleged victim.

(emphasis added).

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valid at the time of the alleged violation. Following the court’s ruling, the

government dismissed the charges against Mr. Whitesel for violating the TRO.

B. Human Services Employees

In a separate matter, on February 25, 1997, the Jefferson County

Department of Human Services served Mr. Whitesel with administrative process,

pursuant to the Colorado Administrative Procedure Act for the Establishment and

Enforcement of Child Support, Colo. Rev. Stat. §§ 26-13.5-101 through 13.5-112,

in an effort to obtain an ongoing child support obligation for his two children.

The administrative process notified Mr. Whitesel of his financial liability and

advised him of a scheduled negotiation conference on March 5, 1997 at which he

was entitled to contest liability. The notice further informed Mr. Whitesel that

failure to appear at or reschedule the negotiation conference would result in

issuance of an order of default, which would then be filed with the Jefferson

County District Court. The Human Services Department rescheduled the

negotiation conference for March 14, 1997 in order to comply with the ten-day

notice provision set forth in Colo. Rev. Stat. § 26-13.5-104.

Instead of appearing at the hearing, Mr. Whitesel served upon the Jefferson

County Department of Human Services a “Motion to Quash Administrative

Process and Notice of Financial Responsibility for Failure to Comply with § 26-

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13.5-104(1), Colorado Revised Statutes” (“Motion to Quash”). He also filed this

pleading with the Jefferson County District Court. Because the process was still

at the administrative level, the Jefferson County Department of Human Services

had not yet filed the matter in the Jefferson County District Court. Thus, the

court had no case within which to file Mr. Whitesel’s Motion to Quash and,

therefore, placed it in a dependency and neglect file.

When Mr. Whitesel failed to appear at the negotiation conference,

Department of Human Services employees Brenda Bouchard and Elizabeth Barr

filed an application for default in the Jefferson County District Court. In their

application, Ms. Bouchard and Ms. Barr did not inform the district court of Mr.

Whitesel’s Motion to Quash.

On March 27, 1997, the Jefferson County District Court issued a default

order for child support with an effective date of April 25, 1997. On April 2,

1997, Ms. Bouchard sent a Notice of Wage Assignment to Mr. Whitesel’s

employer, advising that certain wages should be withheld from Mr. Whitesel’s

pay “no later than the first pay period that begins at least 14 days from” April 2,

1997. Aplt’s App. at 106. Not later than April 28, 1997, Mr. Whitesel

successfully obtained an order staying the support order and garnishment

proceeding. At this time, Mr. Whitesel also received a hearing on the matters

raised in his Motion to Quash. The state court denied the Motion to Quash.

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However, on its own motion, the court set aside the default judgment and allowed

Mr. Whitesel to contest the child support enforcement action on the merits.

II. DISCUSSION

A. Pretrial Service Officers

1. Conversion of Motion to Dismiss to Motion for Summary

Judgment

In response to Mr. Whitesel’s Complaint, the defendants filed a Motion to

Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), and attached

supporting affidavits and exhibits. Mr. Whitesel in turn filed a “Motion for Leave

to Treat Portions of Defendants’ Motion to Dismiss as a Motion [for Summary

Judgment] Under Rule 56 and for Leave to Respond.” Aplt’s App. at 84. He

informed the court that he was awaiting the transcript of a ruling by Judge Hoppin

that would support the allegations in his complaint.

The district court issued an order dismissing pretrial services defendants

Ms. Sengenberger, Ms. Stransky, and Ms. Candelario, (collectively “pretrial

service officers”), finding they were entitled to absolute quasi-judicial immunity

from civil suit. In the same order, the court granted Mr. Whitesel’s motion to

treat the motion to dismiss as one for summary judgment to the extent either party

submitted materials outside the pleadings as to issues involving the remaining

defendants. The court granted Mr. Whitesel leave to file a response brief.

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Mr. Whitesel now argues that the district court was limited to, but went

beyond, the four corners of the complaint in dismissing the pretrial service

officers pursuant to Fed. R. Civ. P. 12(b)(6). He further implies the court erred in

dismissing these individuals without first permitting him to respond.

Mr. Whitesel’s procedural argument is unavailing. First, Mr. Whitesel

overlooks the fact that, although the court’s initial order dismissed the pretrial

service officers pursuant to Rule 12(b)(6), at Mr. Whitesel’s subsequent request,

it reconsidered their dismissal under summary judgment standards, eventually

entering judgment as a matter of law in their favor. See Aplt’s App. at 147, 152,

155. Thus, the court was not limited to the facts alleged in the complaint and was

entitled to consider any evidentiary materials submitted by either party.

Second, conversion of the motion to dismiss, with respect to the pretrial

service officers, was proper. “A court may convert a Rule 12(b)(6) motion to

dismiss into a motion for summary judgment in order to consider matters outside

of the plaintiff’s complaint.” Brown v. Zavaras , 63 F.3d 967, 969 (10th Cir.

1995). Prior to conversion, however, the trial court must “give the parties notice

of the changed status of the motion and thereby provide the parties to the

proceeding the opportunity to present to the court all material made pertinent to

such motion by Rule 56.” Id. (quotations omitted).

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These requirements were satisfied here. First, Mr. Whitesel himself

initially requested the court to treat the motion to dismiss as one for summary

judgment to the extent it relied on matters outside of the complaint. Thus, he had

notice that the court might convert the motion. See Gurary v. Winehouse , 190

F.3d 37, 43 (2d Cir. 1999) (stating that “[t]he essential inquiry is whether the

appellant should reasonably have recognized the possibility that the motion might

be converted to one for summary judgment”) .

Second, although the sequence of events here was unique, Mr. Whitesel had

an adequate opportunity to respond before the court granted summary judgment in

favor of the pretrial service officers. Although the court initially dismissed these

individuals pursuant to Rule 12(b)(6) without allowing Mr. Whitesel to respond,

Mr. Whitesel alleged in his response brief on the remaining claims that their

dismissal was in error. In essence, he asked the court to reconsider its ruling

under summary judgment standards. See Aplt’s App. at 152 (interpreting Mr.

Whitesel’s position as “objecting because [the court had] dismissed

[Sengenberger] and Stranski and Candelario on a motion to dismiss when [it]

should have dismissed them on a motion for summary judgment.”).

More importantly, in support of this claim of error, he attached an affidavit

and the transcript of Judge Hoppin’s ruling to his response brief, thus, clearly

urging the court’s consideration of both documents. See Collier v. City of

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Chicopee , 158 F.3d 601, 603 (1st Cir. 1998) (holding conversion is proper when

the non-movant appends materials to his opposition and urges the court to

consider them). Therefore, Mr. Whitesel was able to present evidentiary materials

before the court reconsidered, and upheld, dismissal of the pretrial service

officers under summary judgment standards.

Additionally, we note that Mr. Whitesel’s counsel did not argue during the

district court hearing, nor does he maintain on appeal, that there exists additional

evidence that would support denial of summary judgment. Further, he does not

contest the authenticity or accuracy of the evidentiary materials attached to the

motion to dismiss. Cf. Parrino v. FHP, Inc. , 146 F.3d 699, 706 n.4 (stating that

where a defendant attaches a document to a Rule 12(b)(6) motion that “is integral

to the plaintiff’s claims and its authenticity is not disputed , the plaintiff obviously

is on notice of the contents of the document and the need for a chance to refute

evidence is greatly diminished.”) (emphasis added) (internal quotations omitted).

For the foregoing reasons, we conclude Mr. Whitesel had notice and an

adequate opportunity to respond before the court reconsidered dismissal of the

pretrial service officers under summary judgment standards. Accordingly, there

was no error in the court’s conversion, and it was entitled to rely on materials

outside of the complaint.

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2. Summary Judgment Review

Because the court converted the appellees’ motion to dismiss to one for

summary judgment, we review under summary judgment standards as well.

We consider the grant of summary judgment de novo and apply the same legal

standard as the district court. See Simms v. Oklahoma, ex rel., Dep’t of Mental

Health & Substance Abuse Services , 165 F.3d 1321, 1326 (10th Cir.), cert.

denied ,120 S. Ct. 53 (1999). Summary judgment is proper if the movant shows

“there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When applying

this standard, we view the evidence and draw reasonable inferences therefrom in

the light most favorable to the nonmoving party.” Simms , 165 F.3d at 1326.

The movant bears the initial burden of making a prima facie demonstration

of the absence of a genuine issue of material fact and entitlement to judgment as a

matter of law. See Mitchell v. City of Moore, Oklahoma , Nos. 98-6446, 99-6177,

99-6101, 99-6121, 2000 WL 954930, at *4 (10th Cir. July 11, 2000). If the

movant carries this initial burden, the burden shifts to the nonmovant “to go

beyond the pleadings and set forth specific facts, identified by reference to

affidavits, deposition transcripts, or specific exhibits incorporated therein,” from

which a rational trier of fact could find for the nonmovant. Id. If the nonmovant

fails to establish a genuine issue of material fact, then “we determine whether the

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substantive law was applied correctly, and in so doing we examine the factual

record and reasonable inferences therefrom in the light most favorable to the party

opposing the motion.” Sealock v. Colorado , No. 99-1185, 2000 WL 954940, at

*2 (10th Cir. July 11, 2000).

3. Absolute Quasi-Judicial Immunity

The district court granted summary judgment in favor of the pretrial service

officers on grounds that, as a matter of law, they were entitled to absolute quasi-

judicial immunity for their actions. We uphold that conclusion.

“Judges are absolutely immune from civil liability for judicial acts, unless

committed in the clear absence of all jurisdiction.” Henriksen v. Bentley , 644

F.2d 852, 855 (10th Cir. 1981) (citing Stump v. Sparkman , 435 U.S. 349 (1978)).

A judge does not act in the clear absence of all jurisdiction even if “the action he

took was in error, was done maliciously, or was in excess of his authority.”

Stump , 435 U.S. at 356-57. Moreover, “[a] judge is absolutely immune from

liability for his judicial acts even if his exercise of authority is flawed by the

commission of grave procedural errors.” Id. at 359.

“‘[I]mmunity is justified and defined by the functions it protects and

serves, not by the person to whom it attaches.’” Valdez v. City and County of

Denver , 878 F.2d 1285, 1287 (10th Cir. 1989) (quoting Forrester v. White , 484

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U.S. 219, 227 (1988)). Consequently, “[i]mmunity which derives from judicial

immunity may extend to persons other than a judge where performance of judicial

acts or activity as an official aid of the judge is involved.” Henriksen , 644 F.2d

at 855. Thus, absolute judicial immunity has been extended to non-judicial

officers where “their duties had an integral relationship with the judicial process.”

Eades v. Sterlinske , 810 F.2d 723, 726 (7th Cir. 1987).

Mr. Whitesel argues that pursuant to state statute, the additional,

discretionary provisions of the TRO could only be issued by a judge following a

hearing, and not by the pretrial service officers. Therefore, he contends that,

because he did not receive a hearing before a judge, the pretrial service officers

falsely certified that the TRO was a true and correct copy of an original order

issued by a judge.

We are not persuaded by Mr. Whitesel’s argument. “There can be no doubt

that . . . the decision whether to order the pretrial release of a criminal defendant .

. . [is an] important part[] of the judicial process in criminal cases.” Tripati v.

INS , 784 F.2d 345, 348 (10th Cir. 1986). Thus, we have held that “[those] who

assist in these determinations perform critical roles[,] . . . intimately associated

with the judicial phase of the criminal process,” and, therefore, they are entitled

to absolute immunity from civil suit for damages. Id.

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Here, the undisputed evidence demonstrates that the pretrial service officers

were designated by the judges of the First Judicial District to act as bond

commissioners. Colo. Rev. Stat. § 16-4-105(1)(o) permits a court to designate

persons to prepare information concerning the accused in order to assist the judge

in deciding whether to order release on personal recognizance. Pursuant to this

statutory authority, the judges of the First Judicial District authorized the pretrial

service officers, as bond commissioners, to implement the bond schedule of the

First Judicial District.

Although the bond schedule in effect at the time of Mr. Whitesel’s arrest

did not address TROs specifically, in “cases involv[ing] allegations of domestic

violence, the pretrial services officers, acting as bond commissioners, were

expected to deliver to the defendant a temporary restraining order pursuant to §

18-1-1001, C.R.S.” Aplt’s App. at 35 (Aff’t of Judge Charles T. Hoppin); see

also id. at 37 (Aff’t of Judge Henry E. Nieto). Moreover, “[t]he temporary

restraining orders that were supplied to the pretrial services officers were issued

on a state judicial form approved for use statewide” and were pre-signed by Judge

Hoppin. Aplt’s App. at 35.

Thus, there is no genuine issue as to whether the pretrial service officers

had the authority to assist the court in making bond decisions, to implement the

bond schedule of the First Judicial District, and to provide those arrested on

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domestic violence charges with the mandatory TRO set forth in Colo. Rev. Stat. §

18-1-1001(1). 2

See Aplt’s Br. at 4, n.1 (conceding that the pretrial service

officers had authority to release him pursuant to the bond schedule). We conclude

that, as a matter of law, these are judicial acts integral to the judicial process and

therefore are cloaked in absolute immunity. See Tripati , 784 F.2d at 348.

Mr. Whitesel further argues that because they did not have the authority to

enter the discretionary orders set forth in § 18-1-1001(3), the pretrial service

officers acted in clear absence of all jurisdiction. In support of his argument,

Mr. Whitesel relies on Judge Hoppin’s subsequent ruling that the discretionary

orders were invalid because, under the plain language of the statute, they could

only be entered after the court afforded the defendant a hearing, and such

procedure did not occur here. See Colo. Rev. Stat. § 18-1-1001(3); Aplt’s App. at

115-16 (Trans. of Proc. held Feb. 28, 1997).

However, even if the pretrial service officers exceeded their authority or

committed “grave procedural errors” in issuing the discretionary orders, such

2

We note that the purpose for authorizing the pretrial services officers to

perform these tasks was to “permit[] eligible arrestees to be released on bond

without having to spend the night or weekend in jail.” Aplt’s App. at 35. Mr.

Whitesel does not appear to contest that the pretrial services officers could have

kept him in custody prior to his initial appearance before a judge. It is hard to

imagine that, if he had been given the option, Mr. Whitesel would have chosen to

remain in jail while awaiting a hearing before a judge, rather than be released

with the TRO containing both the mandatory and discretionary provisions.

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actions do not equate to acting in clear absence of all jurisdiction. See Stump ,

435 U.S. at 359. Thus, Judge Hoppin’s ruling—that the additional provisions

were invalid because of failure to follow proper state procedure—is of little

consequence to the appellees’ immunity. See, e.g. , Thomas v. Palacios , No. 98-

4196, 1999 WL 710340, at *1 (10th Cir. Sept. 13, 1999) (“Despite the Utah

Supreme Court’s subsequent ruling that defendant [court employee] did not have

the authority to issue warrants, defendant issued the warrant based on

longstanding, previously accepted practice in Utah” and was, therefore, entitled to

quasi-judicial immunity).

The pretrial service officers acted within the general subject matter of their

jurisdiction. As stated previously, they were authorized to implement the bond

schedule and provide domestic violence arrestees with a mandatory TRO,

pursuant to § 18-1-1001(1). Therefore, we cannot conclude they acted in “clear

absence of all jurisdiction.” Stump , 435 U.S. at 356; see, e.g. , Newton v.

Buckley , No. 96-4202, 1997 WL 642085, at *4 (10th Cir. Oct. 17, 1997) (holding

court clerk did not act in absence of all jurisdiction and was therefore absolutely

immune from suit even if she did not follow proper procedures in issuing a bench

warrant and using the judge’s stamped signature); Figueroa v. Blackburn , 208

F.3d 435, 443-45 (3d Cir. 2000) (holding that a judge had absolute judicial

immunity for holding a party in contempt and jailing him without granting a stay

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as required by court rule even though in hearing the case she acted contrary to a

Supreme Court of New Jersey directive); Boyer v. County of Washington , 971

F.2d 100, 102 (8th Cir. 1992) (concluding court clerks were entitled to absolute

immunity for signing and issuing arrest warrant because, although they exceeded

their authority in issuing the warrants, they were authorized by state law to sign

such warrants and therefore did not act in complete absence of all jurisdiction);

Staples v. Edwards , 592 F. Supp. 763, 765 (E.D. Miss. 1984) (holding that

because defendant Pre-Trial Release Commissioner “had jurisdiction over the

subject matter—determining the conditions for pre-trial release of persons

accused of bailable offense,” she was entitled to absolute immunity even if she

exceeded her authority in not releasing plaintiff on bail).

In his final argument, Mr. Whitesel contends the pretrial service officers

were not entitled to absolute quasi-judicial immunity because their actions in

signing and preparing the TRO were ministerial, not discretionary. Although

absolute immunity generally extends to non-judicial officers performing

discretionary judicial acts, some circuits, including our own, have held that those

performing ministerial acts at the direction of a judge are also entitled to absolute

immunity. See, e.g. , Valdez , 878 F.2d at 1287-88; Rogers v. Bruntrager , 841 F.2d

853, 856 (8th Cir.1988) (concluding deputy clerk entitled to absolute immunity

from suit for issuing an arrest warrant at the direction of the assistant circuit

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judge); Tarter v. Hury , 646 F.2d 1010, 1013 (5th Cir.1981) (stating that court

clerks “have absolute immunity from actions for damages arising from acts they

are specifically required to do under court order or at a judge’s direction”); Waits

v. McGowan , 516 F.2d 203, 206 (3d Cir.1975) (stating “where the defendant is

directly involved in the judicial process, he may receive immunity in his own

right for the performance of a discretionary act or he may be covered by the

immunity afforded the judge because he is performing a ministerial function at

the direction of the judge”).

As we explained in Valdez :

To force officials performing ministerial acts intimately related

to the judicial process to answer in court every time a litigant believes

a judge acted improperly is unacceptable. Officials must not be called

upon to answer for the legality of decisions which they are powerless

to control. . . . [I]t is simply unfair to spare the judges who give them

orders while punishing the officers who obey them. Denying these

officials absolute immunity for their acts would make them a lightening

rod for harassing litigation aimed at judicial orders.

878 F.2d at 1289 (internal quotations omitted); see also Ashbrook v. Hoffman ,

617 F.2d 474, 476 (7th Cir. 1980).

The reasoning of Valdez is fully applicable here. The evidence establishes

that the pretrial service officers were acting pursuant to judicial directives and

were expected to sign and deliver the TROs on the standard form approved by the

First Judicial District. Therefore, even if their actions could be characterized as

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ministerial, they would still be absolutely immune from civil suit. See Valdez ,

878 F.2d at 1289-90.

Finally, we note that this is a paradigmatic case for judicial immunity in

that it supports the most common justification for the doctrine: there are

effective, alternative methods of protecting litigants against judicial errors that

are less detrimental to the judicial process than exposing judges to liability for

civil claims. In Forrester v. White , the Supreme Court observed that:

[S]uits against judges [are not] the only available means through which

litigants can protect themselves from the consequences of judicial error.

Most judicial mistakes or wrongs are open to correction through

ordinary mechanisms of review, which are largely free of the harmful

side-effects inevitably associated with exposing judges to personal

liability.

484 U.S. 219, 227 (1988). Here, the error of which Mr. Whitesel complains was

corrected by the judicial process. Mr. Whitesel obtained a hearing on the

lawfulness of the TRO and the state court ruled in his favor, concluding that the

discretionary orders were invalid because they were issued in violation of state

statutory procedure. Thereafter, the government dismissed the charges against

Mr. Whitesel for violating the TRO.

For all of the foregoing reasons we conclude the court did not err in

granting summary judgment in favor of the pretrial service officers.

B. Board of County Commissioners

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Municipal entities and local governing bodies are not entitled to the

traditional common law immunities for section 1983 claims. See Leatherman v.

Tarrant County Narcotics Intelligence and Coordination Unit , 507 U.S. 163, 166

(1993). Thus, to establish a claim for damages under section 1983 against the

Board, Mr. Whitesel must prove the Board (1) executed a policy or custom, (2)

that caused Mr. Whitesel to suffer deprivation of constitutional or federal rights.

See Collins v. City of Harker Heights , 503 U.S. 115, 122 (1992); Pembaur v.

Cincinnati , 475 U.S. 469, 479 (1986).

In his complaint, Mr. Whitesel alleged that the individual pretrial service

officers acted pursuant to a policy established by the Board when they issued the

discretionary provisions of the TRO prior to a hearing before a judge. However,

the parties’ subsequent pleadings did not address the question of the existence of

a Board policy. In particular, the defendants’ motion to dismiss, which the court

converted to a motion for summary judgment, did not contest the existence of a

policy, but rather stated in conclusory fashion that Mr. Whitesel failed to establish

a deprivation of constitutional or federal rights. Mr. Whitesel’s submissions were

similarly deficient. His response to the motion to dismiss did not address the

alleged Board policy, and, after the court converted the motion to one for

summary judgment, he did not submit any evidence in support of his claim against

the Board.

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Perhaps because of the parties’ failure to discuss the Board’s liability, it

appears that the district court did not address the matter either. At one point

during the hearing, the defendants’ attorney expressed confusion over whether

both of Mr. Whitesel’s separate 1983 claims were being alleged against the

Board. Mr. Whitesel’s attorney then clarified that his second 1983 claim

involving the Human Services employees, discussed infra , was not being alleged

against the Board. See Aplt’s App. at 163. The parties then moved on to discuss

the merits of Mr. Whitesel’s second claim. Thus, there was never any discussion

during the hearing as to the Board’s liability on the first claim—in which he

alleged that the Board establish the policy pursuant to which the pretrial service

officers had issued the discretionary provisions of the TRO.

Immediately after the arguments on Mr. Whitesel’s second claim the court

made its ruling with respect to the Board:

[I]t appears to the Court that if there is any problem with their actions,

it involves violation of Colorado law and not federal law and not [the]

federal Constitution. . . . I can see nothing that was claimed . . . done

by the Board of County Commissioners which would rise to a level of

a violation of either the U.S. Constitution or federal law. And therefore

it appears that that entity as a defendant should be dismissed.

Aplt’s App. at 180-81. In its order granting judgment in favor of all defendants,

the court incorporated these oral conclusions. The court appears to have

addressed the Board’s liability as to Mr. Whitesel’s second claim (involving the

action of the Human Services employees) but failed to specifically address the

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Board’s liability as to his first claim (involving the actions of the pretrial service

officers).

Although we may affirm the district court’s grant of summary judgment in

favor of the Board for any reason supported by the record, see Perry v.

Woodward , 188 F.3d 1220, 1232 (10th Cir. 1999), the record in this case does not

permit us to do so. Mr. Whitesel never offered any evidence in support of his

allegation regarding the Board’s policy. However, he was never required to do

so: the defendants never contested his initial allegation that such a policy existed.

Moreover, as noted above, the district court never addressed the question of

whether there was such a policy and, if so, whether it violated Mr. Whitesel’s due

process rights.

We also note that Mr. Whitesel’s claim against the Board raises an

important legal issue. He has alleged that the Board established a policy whereby,

prior to a hearing before a judge, pretrial service officers issued the discretionary

restraining orders set forth in § 18-1-1001(3) to persons arrested on domestic

abuse charges. Although at least one judge in the First Judicial District of

Colorado has concluded that failure to provide a pre-issuance hearing renders the

discretionary orders invalid under state law, it is a separate and unsettled question

whether that practice comports with the due process requirements of the federal

constitution.

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The discretionary restraining orders at issue entail some degree of restraint

on liberty and property. For example, one such provision requires the accused to

vacate the home of the victim, which, in cases of domestic violence, may be the

home of the accused as well. See C.R.S. § 18-1-1001(3)(a). Thus, we know at

least some process is due. Exactly what or how much process is due, however, is

the pivotal issue. It appears as though courts have had little opportunity to decide

this issue or ones analogous to it. See, e.g. , United States v. Kirschenbaum , 156

F.3d 784, 792 (7th Cir. 1998) (“The more difficult issue is the one left open by

the [Supreme] Court: ‘whether the Due Process Clause requires a hearing before a

pretrial restraining order [restricting property rights] can be imposed.’”) (quoting

United States v. Monsanto , 491 U.S. 600, 615 n.10 (1989)); Nollet v. Justices of

the Trial Court of the Commonwealth of Massachusetts , 83 F. Supp. 2d 204, 212

(D. Mass. 2000) (stating “there is very little case law on the constitutionality of . .

. ex parte temporary restraining order procedure[s]” that involve petitions by

victims of domestic abuse seeking orders requiring the abuser to vacate the home

and avoid contact with victim). The issue is a meaningful one that merits

substantive and focused briefing by the parties beyond what has been provided,

and warrants consideration by the district court prior to our review.

However, to succeed on his claim against the Board, we reiterate that Mr.

Whitesel must first prove that the pretrial service officers were acting pursuant to

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a policy created by the Board. We have already concluded the record establishes

that the pretrial service officers were acting pursuant to a policy formulated by

the judges of the First Judicial District of Colorado. At this point it is not clear

that the policy of the state judiciary included authorizing the pretrial service

officers to issue the discretionary restraining orders prior to a hearing before a

judge. However, we note, such instruction might be implied by the fact that the

discretionary orders were listed on the judicially approved TRO form.

Nevertheless, we emphasize that the Board cannot be liable for merely

implementing a policy created by the state judiciary. In order to prevail on his

claim against the Board, Mr. Whitesel must demonstrate that the Board was “the

moving force” behind the pretrial services officers issuance of the discretionary

orders. See Gates v. Unified School Dist. No. 449 of Leavenworth County, Kan. ,

996 F.2d 1035, 1041 (10th Cir. 1993).

We, therefore, conclude that the district court’s grant of summary judgment

to the Board on Mr. Whitesel’s first claim involving the TRO is not supported by

the record. That claim must be remanded to the district court for further

development of the parties’ factual and legal contentions.

C. Human Services Employees

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Mr. Whitesel’s second § 1983 claim alleges that Jefferson County

Department of Human Services employees Brenda Bouchard and Elizabeth Barr

denied him due process in their efforts to obtain a child support enforcement

judgment and garnishment of wages. In particular, he maintains that Ms.

Bouchard and Ms. Barr violated his due process rights in two instances: (1) when

they failed to notify the court of his Motion to Quash the administrative process;

and (2) when they falsely advised his employer to garnish his wages on the first

pay period after April 16, 1997, when the default order stated its effective date

was not until April 25, 1997. Mr. Whitesel also named as a defendant Nelson

Nadeau, Director of Human Services, asserting that he created the policy pursuant

to which Ms. Bouchard and Ms. Barr were acting.

The district court granted summary judgment in favor of the Human

Services employees, finding that they were entitled to qualified immunity. “[W]e

review summary judgment decisions involving a qualified immunity defense

somewhat differently than other summary judgment rulings.” Romero v. Fay , 45

F.3d 1472, 1475 (10th Cir.1995) (quotations omitted) . “This difference arises

from the unique nature of qualified immunity, which is designed to protect public

officials from spending inordinate time and money defending erroneous suits at

trial.” Nelson v. McMullen , 207 F.3d 1202, 1206 (10th Cir. 2000).

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“When a defendant raises the qualified immunity defense on summary

judgment, the burden shifts to the plaintiff to meet a strict two-part test.” Id.

“First, the plaintiff must demonstrate that the defendant’s actions violated a

constitutional or statutory right. Second, the plaintiff must show that the

constitutional or statutory rights the defendant allegedly violated were clearly

established at the time of the conduct at issue.” Albright v. Rodriguez , 51 F.3d

1531, 1534-35 (10th Cir.1995) (citations omitted). “Ordinarily, in order for the

law to be clearly established, there must be a Supreme Court or Tenth Circuit

decision on point, or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains.” Oliver v. Woods , 209

F.3d 1179, 1185 (10th Cir. 2000) (quotations omitted). If, and only if, the

plaintiff establishes both elements of the test does a defendant then bear the

traditional burden of showing “that there are no genuine issues of material fact

and that he or she is entitled to judgment as a matter of law.” Albright , 51 F.3d at

1535 (quotations and citation omitted).

Here, the district court concluded that Mr. Whitesel had failed to show that

the Human Services employees’ actions violated a clearly established federal or

constitutional right. We agree with that conclusion. Although, it is clearly

established that “[i]n . . . cases [involving garnishment of wages], the Due

Process Clause requires notice and a hearing prior to application of the

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garnishment remedy,” North Georgia Finishing, Inc. v. Di-Chem, Inc. , 419 U.S.

601, 611 n.2 (1975) (citing Sniadach v. Family Finance Corp. , 395 U.S. 337, 340

(1969)), Mr. Whitesel has failed to show the Human Services employees’ actions

denied him of this right.

As to the first alleged violation, Mr. Whitesel has failed to direct us to any

authority establishing that the Human Services employees violated due process by

failing to inform the court of the Motion to Quash prior to obtaining a default

judgment. Ms. Bouchard and Ms. Barr were acting pursuant to the state

administrative procedures mandated by statute. Those procedures afforded Mr.

Whitesel notice of his financial responsibility and the opportunity to contest it

before issuance of administrative default and approval of the default in district

court. Moreover, Mr. Whitesel does not contest the constitutionality of the state

procedures. In fact, he conceded to the district court that “the [state] statute can

be read such that it is constitutional.” Aplt’s App. at 169-70.

More importantly, Mr. Whitesel admits he “[u]ltimately . . . received due

process.” Aplt’s App. 173. He obtained a stay of execution of the default order

no later than April 28, 1997, and on that same date received a hearing in state

court on his Motion to Quash. The court ultimately denied the motion, finding

the Human Services employees fully complied with state procedure in serving him

with administrative process. Mr. Whitesel never appealed this decision. Further,

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the court sua sponte set aside the order of default and provided Mr. Whitesel with

a hearing on the merits of the child support enforcement action. Mr. Whitesel

availed himself of state procedures and successfully obtained a reduction in the

amount of support liability.

Mr. Whitesel’s second contention is also without merit. Although he

alleges that the Human Services employees falsely notified his employer to begin

garnishing his wages prior to the effective date of the default order, at most, their

actions would be a violation of a state court order. However, “a violation of state

law alone does not give rise to a federal cause of action under § 1983.” Malek v.

Haun , 26 F.3d 1013, 1016 (10th Cir.1994); see also Roy v. City of Augusta , 712

F.2d 1517, 1522-23 (1st Cir.1983) (analyzing a § 1983 claim and noting that

“[m]ere violations of state law do not, of course, create constitutional claims”).

Further, Mr. Whitesel conceded his wages were “released before they were

paid over to the court.” Aplt’s App. at 168. The record establishes that “no child

support payment was received from Mr. Whitesel through a garnishment until

August 14, 1997.” Aplt’s App. at 132 (Aff’d of Debbie Moss). This occurred

after Mr. Whitesel was afforded a hearing to contest liability. Although he argues

“the deprivation of property [was] the initial taking and holding of the wages”

prior to receiving a hearing, he obtained notice and the opportunity to contest

financial responsibility at the March 14, 1997 negotiation conference before this

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alleged deprivation occurred. Id. at 168. Mr. Whitesel’s choice to respond to the

notice in his own manner by filing a Motion to Quash, rather than to participate in

the state administrative process by attending or rescheduling the negotiation

conference, does not equate to a denial of due process.

III. CONCLUSION

For the reasons set forth above we AFFIRM the district court’s grant of

summary judgment in favor of the pretrial service officers, Ms. Sengenberger, Ms.

Stransky, and Ms. Candelario, and Human Services employees, Ms. Bouchard,

Ms. Barr, and Mr. Nadeau. We VACATE the court’s grant of summary judgment

in favor of the Board of County Commissioners and REMAND for proceedings

consistent with this opinion.

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