# In Re Scott County Master Docket

> District Court, D. Minnesota · November 2, 1987 · 672 F. Supp. 1152

URL: https://www.frixlaw.com/law-library/cases/2091019

## Case

- **Full name:** In Re SCOTT COUNTY MASTER DOCKET. Greg MYERS and Jane Myers, Individually and as Parents and Natural Guardians of Andy Myers, Amy Myers and Brian Myers, Minors, Plaintiffs, v. SCOTT COUNTY and R. Kathleen Morris, Scott County Attorney, Scott County Welfare Department, and Peg Subby, Its Director of Human Services, Thomas Price, and Phipps-Yonas & Price, P.A., Paul Thomsen, Guardian Ad Litem, Doris Wilker Social Worker, and Other Employees of Scott County Human Services Whose Names and Titles Are Unknown, Defendants; Duane RANK and Dee Rank, Plaintiffs, v. R. Kathleen MORRIS, Individually and as Scott County Attorney; And John Doe Numbers 1-15, Individually and as Employees and Agents of Scott County, a Political Subdivision of the State of Minnesota, and Scott County, Defendants; Charles LALLAK and Carol Lallak, Husband and Wife; And Jeffrey Lallak and Jennifer Lallak, Minors, by Charles Lallak and Carol Lallak, Their Parents and Natural Guardians, Plaintiffs, v. SCOTT COUNTY; Scott County Attorney’s Office; R. Kathleen Morris, Scott County Attorney; Scott County Sheriff's Department, Douglas Tietz, Scott County Sheriff; Michael M. Busch, Scott County Deputy Sheriff; Patrick Morgan, Scott County Deputy Sheriff; David Einertson, Scott County Deputy Sheriff; Norman Pint, Scott County Deputy Sheriff; Other Employees of Scott County Sheriff's Department Whose Names and Titles Are Unknown; Scott County Human Services Department; Rachel Paff, Social Worker With Scott County Human Services Department; Other Employees of Scott County Human Services Department Whose Names and Titles Are Unknown; City of Jordan, Jordan City Council; Gail Anderson, Former Mayor of Jordan; Donald Tillman, Mayor of Jordan; Jordan Police Department; Alvin Erickson, Jordan Police Chief; Larry Norring, Officer With Jordan Police Department; Other Employees of Jordan Police Department Whose Names and Titles Are Unknown; Thomas L. Price, and Phipps-Yonas & Price, P.A., Defendants; Donald BUCHAN and Cindy Buchan, Individually and as Parents and Natural Guardians of Courtney Beth Buchan, Melissa Ellen Buchan, and William Donald Buchan, Minors, Plaintiffs, v. SCOTT COUNTY and R. Kathleen Morris, Scott County Attorney, Scott County Human Services, and Peg Subby, Its Director of Human Services, Thomas Price, and Phipps-Yonas & Price, P.A., Michael Shea and Shea & Associates, P.A., Diane Johnson, Guardian Ad Litem, John Manahan, Guardian Ad Litem, Doris Wilker, Social Worker, Mary Tafs, Social Worker, Judy Dean, Social Worker, Susan Devreis, Psychologist, and Other Employees of Scott County Human Services Whose Names and Titles Are Unknown, and Douglas Tietz, Scott County Sheriff, Defendants; Daniel J. MEGER and Wanda Lou Meger, Individually and as Parents and Natural Guardians of Brian Meger and Chad Meger, Minors, Plaintiffs, v. SCOTT COUNTY, a Political Subdivision of the State of Minnesota; R. Kathleen Morris, Individually and in Her Official Capacity as Attorney for Scott County; Scott County Welfare Department and Margaret Subby, Its Director of Human Services; Scott County Sheriff's Department and Its Deputies, Patrick Morgan and Michael Busch; Doris Wilker, Social Worker, Scott County Welfare Department; Joel Kaufmann, Psychologist, Scott County Welfare Department; Jane McNaught, and Center for Child and Family Therapy; B.A. Bershow, M.D., and Burnsville Family Physicians, P.A.; John Doe and Mary Doe and Other Employees of Scott County Whose Names and Titles Are Unknown, Defendants; Robert BENTZ and Lois Bentz, Individually and as Parents and Natural Guardians of Marlin Bentz, William Bentz and Anthony Bentz, Minors, Plaintiffs, v. SCOTT COUNTY; R. Kathleen Morris, Scott County Attorney; Margaret Subby, Scott County Welfare Department/Director of Human Services; Doris Wilker, Social Worker, Scott County Welfare Department; Paul Thomsen, Guardian Ad Litem; Michael Busch, Patrick Morgan and Norman Pint, Scott County Deputy Sheriffs; Michael Shea, Leslie Faricy, Michael Shea and Associates; And John Doe and Mary Roe; And Other Employees of Scott County Human Services Whose Names and Titles Are Unknown, Defendants; Thomas and Helen BROWN, Individually and as Parents and Natural Guardians of Brandy Brown and Jeff Brown, Plaintiffs, v. SCOTT COUNTY and R. Kathleen Morris, Scott County Attorney, Scott County Welfare Department and Peg Subby, Its Director of Human Services, Susan Phipps-Yonas and Phipps-Yonas & Price, P.A., John Manahan and Diane K. Johnson, Guardian Ad Litems, Doris Wilker Social Worker, and Other Employees of Scott County Human Services Whose Names and Titles Are Unknown, Defendants; Judith Ann KATH, Plaintiff, v. R. Kathleen MORRIS, Individually and as Scott County Attorney; And Unnamed Scott County Employees, Individually and as Employees and Agents of Scott County, a Political Subdivision of the State of Minnesota, and Scott County, Defendants; Coralene RAWSON, Individually and as a Parent and Natural Guardian of Sarah Rawson, Plaintiff, v. SCOTT COUNTY, R. Kathleen Morris, Scott County Attorney; Scott County Human Services and Peg Subby, Director of Scott County Human Services; Diane Johnson, Guardian Ad Litem of Sarah Rawson; John Manahan, Guardian Ad Litem of Sarah Rawson; Doris Wilker, Social Worker for Scott County Human Services; Karen Kandig, Social Worker for Scott County Human Services; Douglas Tietz, Scott County Sheriff; Patrick Morgan, Scott County Deputy Sheriff; Larry Norring, Scott County Deputy Sheriff; Michael Busch, Scott County Deputy Sheriff; Hubert H. Humphrey III, as Minnesota Attorney General and Individually; Norman Coleman, as Assistant Minnesota Attorney General and Individually; Michael Jordan, as Attorney General and Individually; Charles Black, as Assistant Ramsey County Attorney, and Individually; Wright Walling Attorney for Sarah Rawson and Diane Johnson, Guardians Ad Litem, Defendants; Irene MEISINGER; And Jeanie M. Meisinger and James R.H. Meisinger, by Irene M. Meisinger, Their Mother and Natural Guardian, Plaintiff, v. SCOTT COUNTY: R. Kathleen Morris, Scott County Attorney; Scott County Sheriff's Department; Douglas Tietz, Scott County Sheriff; Deputy Sheriff Patrick Morgan; Other Employees of the Scott County Sheriff's Department Whose Names and Titles Are Unknown; Larry Norring, Officer With Jordan Police Department; Scott County Human Services Department; Doris Wilker, Social Worker; Mary Tafs, Social Worker; And James Poulos, Social Worker, Defendants; Robert L. RAWSON, Individually and as Parent and Natural Guardian of Sarah Naomi Tiffany Rawson, Plaintiffs, v. SCOTT COUNTY and R. Kathleen Morris, Scott County Attorney; Scott County Sheriff Douglas Tietz; Scott County Deputy Sheriffs Patrick Morgan, Michael Busch, Norman Pint and David Einertson; Scott County Human Services Department and Margaret Subby, Director of Human Services; Social Worker Doris Wilker; And Other Scott County Officials or Employees as Yet Unknown, Defendants; John JOE and Jane Joe, Individually and as the Parents and Guardians of Tom Joe, Jim Joe, and Linda Joe, Their Minor Children, Plaintiffs, v. SCOTT COUNTY; Scott County Attorney’s Office; R. Kathleen Morris, Individually and in Her Official Capacity; Scott County Sheriff's Office; David Einertson, Individually and in His Official Capacity; Michael Busch, Individually and in His Official Capacity; Norman Pint, Individually and in His Official Capacity; Scott County Human Services Department; Margaret Subby, Individually and in Her Official Capacity; Thomas Behr, Individually and in His Official Capacity; Rachel Paff, Individually and in Her Official Capacity; And Victor Ellingson, Individually and in His Official Capacity, Defendants; Scott GERMUNDSON, Marlene Germundson, Sara Germundson and Melissa Germundson, Plaintiffs, v. SCOTT COUNTY; Scott County Attorney’s Office; R. Kathleen Morris, Scott County Attorney; R. Gehl Tucker, Nancy Platto, Miriam Wolfe, Mary Tafs, Karen Kandik, Paul Thomson; Scott County Sheriffs Department; Douglas Tietz, Scott County Sheriff; Michael M. Busch, Scott County Deputy Sheriff; Patrick Morgan, Scott County Deputy Sheriff; David Einertson, Scott County Deputy Sheriff; Norman Pint, Scott County Deputy Sheriff; Other Employees of Scott County Sheriff's Department Whose Names and Titles Are Unknown; Scott County Human Services Department; Doris Wilker, Social Worker With Scott County Human Services Department; Margaret Subby, Director of Scott County Human Services; Other Employees of Scott County Human Services Department Whose Names and Titles Are Unknown; Larry Norring, Officer With Jordan Police Department; Susan Phipps-Yonas, and Phipps-Yonas & Price, P.A., Defendants; Terry MORGENSON, Plaintiff, v. SCOTT COUNTY; Scott County Attorney’s Office; R. Kathleen Morris, Scott County Attorney, R. Gehl Tucker, Nancy Platto; Scott County Sheriff's Department; Douglas Tietz, Scott County Sheriff; Michael M. Busch, Scott County Deputy Sheriff; Patrick Morgan, Scott County Deputy Sheriff; David Einertson, Scott County Deputy Sheriff; Norman Pint, Scott County Deputy Sheriff; Other Employees of Scott County Sheriffs Department Whose Names and Titles Are Unknown; Scott County Human Services Department; Doris Wilker, Social Worker With Scott County Human Services Department; Margaret Subby, Director of Scott County Human Services; Other Employees of Scott County Human Services Department Whose Names and Titles Are Unknown; Thomas L. Price, and Phipps-Yonas & Price, P.A., Defendants
- **Court:** District Court, D. Minnesota
- **Decided:** November 2, 1987
- **Citations:** 672 F. Supp. 1152; 1987 U.S. Dist. LEXIS 10026
- **Precedential status:** Published
- **Opinion:** Opinion by MacLAUGHLIN
- **Judges:** MacLAUGHLIN
- **Cited by:** 62 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2091019

## How later opinions describe it (automated extraction)

- recognizing the protected constitutional interest “in the development of parental and filial bonds free from government interference ... manifested in the reciprocal rights of parent and child to one another’s companionship” (quotation omitted)
- stating that “[i]n a child removal context, post-deprivation remedies may be particularly appropriate”
- holding AACWA specifies “certain procedures” for state agencies but does “not bear upon plaintiffs’ claimed liberty interest”

## Opinion text

MEMORANDUM AND ORDER
MacLAUGHLIN, District Judge.
This case is before the Court for the second time on the motions of various plaintiffs and all defendants, including for the first time Scott County, for summary judgment. This long, sordid, and troubling matter, which has bitterly divided a community, ended a prosecutorial career, turned family members against family members, and almost certainly irretrievably harmed children, must come to an end. The Court, based upon the facts and the law, has concluded that judgment should be entered in favor of all defendants in all respects.
FACTS
Before the Court are fourteen civil rights lawsuits which grew out of a child sexual abuse investigation in Jordan, Minnesota during 1983-84. The facts of the case are ably set forth in
In re Scott County Master Docket,
618 F.Supp. 1534 (D.Minn.1985), and
Myers v. Morris,
810 F.2d 1437 (8th Cir.1987), and will not be extensively repeated here. In
Myers
the United States Court of Appeals for the Eighth Circuit affirmed the Court’s order granting summary judgment in favor of the guardians ad litem, therapists, Jordan defendants (including Larry Norring), and the Scott County Board of Commissioners in the
Myers, Rank, Lallak, Buchan, Meger, Bentz
and
Brown
cases, and for all defendants in the
Gould
case. In addition, the Court directed summary judgment for County Attorney R. Kathleen Morris, Sheriff Douglas Tietz and the deputy sheriffs in these cases and for therapist DeVries in
Buchan.
In the interim between the Court's 1985 decision and the Eighth Circuit’s ruling in
Myers
several additional plaintiffs filed suit. Those cases were consolidated with existing cases for purposes of discovery and pretrial motions. The facts of these new cases are set forth below. Discovery is now complete. All defendants now move for summary judgment as to all complaints filed against them and not otherwise disposed of in
Myers .
NEW CASES
Judy Kath
Judy Kath is the mother of V. Kath, one of the children who initially identified James Rud as a child abuser. Judy Kath
*1161
was identified as a suspect in interviews conducted with Marlene Germundson and Germundson’s twin daughters. The statements of Marlene Germundson corroborated information furnished in interviews with V. Kath, who described sexual activities between children and adults at the Rud residence. A criminal complaint charging Judy Kath with multiple counts of child sexual abuse issued November 14, 1983. Kath was arrested on that date. A second complaint against Kath issued November 16, 1983 based upon incriminating information furnished by V. Kath in a November 15, 1983 interview. Each of the Kath complaints was reviewed by a state court judge who found probable cause for the issuance of arrest warrants. On the date of Kath’s arrest, V. Kath was taken into protective custody. A neglect petition was filed in family court November 17,1983, and at the conclusion of a hearing conducted on that date the court ordered that legal custody of V. Kath be vested in the Scott County Human Services Department. V. Kath's biological father was given custody for a period of time, but was later relieved of custody at his request.
As with the other Scott County defendants, charges against Judy Kath were dropped by the county attorney October 15, 1984. Family court proceedings continued, and ultimately the court terminated Kath’s parental rights.
Kath filed suit July 8,1985, naming Morris, the Scott County Commissioners, “unnamed” Scott County agents and employees and Scott County as defendants. By stipulation of dismissal with prejudice filed January 23,1986 the Scott County Commissioners were dismissed from the suit.
Marlene and Scott Germundson
The Germundsons are parents of twin daughters, M. and S. Germundson. In interviews conducted with deputy Michael Busch November 10, 1983 the Germundson children furnished incriminating information which implicated Marlene Germundson. This information was corroborated by physical examinations of the Germundson children conducted November 4, 1983 by pediatrician Caroline Levitt. The physical examination revealed that both children, aged 5 at the time, had been sexually penetrated. At a November 10,1983 interview conducted at the Scott County Sheriff’s office Marlene Germundson allegedly admitted that she had knowledge of nude photographs taken of her children by James Rud at Judy Kath’s residence; that she had been present at Rud’s residence on an occasion when she “assumed” that Rud was engaged in sexual activity with her children in Rud’s bedroom; that her children had revealed to her in April or May 1983 that Rud was sexually abusing them; and that notwithstanding her knowledge of alleged sexual abuse, she continued to frequent the Rud residence with her children to the date of Rud’s arrest. Following the November 10, 1983 interview Marlene Germundson was placed under arrest. On that date the Germundson children were taken into protective custody and placed in emergency foster care. A neglect petition was filed in family court November 15, 1983. By order dated December 1, 1983 the family court assumed custody of the children and ordered psychological evaluations. By stipulation dated February 9, 1984 an adjudicatory hearing on the neglect petition was continued indefinitely and all time limitations under the juvenile court rules were waived. The matter of parental visitation was left to the children’s guardian ad litem and the psychologist in charge of evaluating the children. In September 1984 the family court granted Scott and Marlene Germundson supervised visitation at the office of the Scott County Human Services Department (HSD).
Scott Germundson was first implicated as a suspected child abuser in interviews of C. Lebens and J. Olson conducted by Jordan police officer Larry Norring on February 3 and February 7, 1984. Germundson was arrested February 27, 1984 pursuant to a probable cause warrant signed by a state court judge. As with the other Scott County defendants, all charges against the Germundsons were dismissed October 15, 1984.
Scott Germundson filed suit February 20, 1986 naming as defendants Scott County,
*1162
Morris, Tietz, various deputies and social workers, the Scott County HSD, Larry Norring and a psychologist who treated his children. Germundson’s claims against the psychologist were subsequently dismissed by stipulation. Marlene Germundson filed suit March 4, 1987 naming twenty-three defendants, including the Scott County Attorney’s office, Sheriff’s department, Morris, Tietz, various deputies and social workers. By stipulation dated June 24, 1987 plaintiffs dismissed with prejudice all claims asserted against Joel Kaufman and Joan Dickinson, therapists who counseled the children.
Irene Meisinger
Irene Meisinger is the mother of J.M. and J.R.H. Meisinger. In separate interviews conducted November 17 and November 26, 1983 Meisinger was identified as a child abuse suspect by J.M. and J.R.H. Meisinger, V. Kath and S. Krahl. On the basis of these allegations the Meisinger children were taken into protective custody and on November 23, 1983 a neglect petition was filed. A custody hearing was conducted November 30, 1983 on which date the family court directed the continued placement of the Meisinger children in foster care while assuming custody of the children. Irene Meisinger was ordered not to have contact with the children. On November 30, 1983 Irene Meisinger was arrested and charged with twelve counts of criminal sexual conduct in the first and second degree. Meisinger’s arrest followed a state court judge’s determination that probable cause for arrest had been demonstrated.
As with the other Scott County defendants, all charges against Meisinger were dismissed October 15,1984. The Meisinger children were returned to the custody of Irene Meisinger in March 1985 pursuant to order of the family court dated February 25, 1985.
Irene Meisinger filed suit May 10, 1985 naming Scott County, Morris, the Scott County Sheriff’s Department, Tietz, Nor-ring, various deputies, HSD and various social workers as defendants. Meisinger has stipulated to dismissal of the Sheriff’s Department as a defendant.
Terry Morgenson
Terry Morgenson is an employee in the Scott County Assessor’s office. Morgenson was first implicated as a suspected child abuser in interviews of A.M. and A.N. Myers conducted May 30, and June 4,1984. Morgenson was arrested June 4, 1984 and charged with two counts of criminal sexual misconduct. The arrest of Morgenson was a probable cause arrest effectuated without the benefit of a warrant by agent Patrick Shannon of the Minnesota Bureau of Criminal Apprehension. As with the other Scott County defendants, all charges against Morgenson were dismissed October 15, 1984.
Morgenson filed suit February 20, 1986 naming the Scott County Attorney’s office and Sheriff’s Department, Morris, Tietz and various deputies and social workers as defendants. By stipulation dated July 2, 1986 psychologists named as defendants in the complaint were dismissed from the case.
Coralene and Robert Rawson
Robert and Coralene Rawson are parents of four grown children who are not the subject of these lawsuits or otherwise implicated in this matter. The Rawsons also have an adoptive daughter, S. Rawson, whose biological mother is Coralene Raw-son’s sister. Robert Rawson was first implicated as a suspected child abuser in interviews of V. Arendsee and V. Kath conducted November 23, 1983. V. Arendsee (daughter of Judy Kath) claimed that Raw-son had sexually abused her at least twenty times dating to 1979. V. Kath claimed that Rawson had abused her at least seven times during that period. Rawson was arrested November 22, 1983 and charged with criminal sexual conduct in the first degree. Subsequently, in a March 6, 1983 interview conducted by detective Patrick Shannon of the Minnesota Bureau of Criminal Apprehension, S. Krahl identified Robert Rawson as a suspected child abuser. Additional charges against Rawson were filed March 19, 1984 based on these allegations. Thereafter, S. Rawson, V. Kath and
*1163
Robert Kath, 18-year-old son of Judy Kath, implicated Rawson in claims of child sexual abuse. Additional charges against Robert Rawson were filed and Rawson was arrested March 30, 1984 based on the allegations of S. Rawson and V. Kath and Robert Kath.
In an interview conducted March 26, 1983 S. Rawson identified her adoptive mother, Coralene Rawson, as an adult who had participated in acts of child sexual abuse. V. Kath likewise made statements which implicated Coralene Rawson. Allegations against the Rawsons were corroborated in part by physical evidence recovered from the Kath residence, including miniature bowling pins, and candles contaminated with human feces, and by a physical examination of S. Rawson conducted March 26 and 29, 1984 by Dr. Barry Bershow, which was partially confirmatory of sexual abuse.
S. Rawson was taken into protective custody March 22, 1984 and placed in emergency foster care. A neglect petition was filed March 26, 1984. By order Dated March 28, 1984 the family court assumed immediate custody of S. Rawson with a finding that there was probable cause that a juvenile protection matter existed and that the release of S. Rawson would endanger her health and welfare. The court continued S. Rawson’s foster care placement following a placement review hearing on April 11, 1984. By order dated September 24, 1984 following an eleven-day trial, the court found that S. Rawson had been sexually abused and was neglected. The court’s findings were vacated November 9, 1984 following S. Rawson’s recantation of her trial testimony. Following a second trial, by order dated April 22, 1986 the court again found S. Rawson dependent and neglected and her placement in foster care was continued. This decision was overturned by the Minnesota Court of Appeals on other grounds.
See In the Matter of the Welfare of S.N.T.R.,
403 N.W.2d 293, 297 (Minn.App.1987). A new petition was subsequently filed and S. Rawson remains in foster care. As with the other Scott County defendants, all charges against the Rawsons were dropped October 15, 1984.
Coralene Rawson filed suit October 18, 1985, naming Scott County, the Scott County HSD, Morris, Tietz, various deputies and social workers, and the Minnesota Attorney General as defendants. Robert Rawson filed suit November 1, 1985, naming Scott County, the Scott County HSD, Morris, Tietz and various social workers and deputies as defendants.
DISCUSSION
A. Social Workers
1
Various employees of the Scott County Human Services Department (HSD) are named as defendants in these actions (hereinafter “social workers”). Doris Wilker, a social worker with the Scott County HSD since 1981, is named in the
Bentz, Brown, Germundson, Meger, Meisinger
and
Myers
*1164
actions. Margaret Subby, former director of the Scott County HSD, is named in the
Bentz, Brown, Buchan, Germundson, Meger, Myers
and
Morgenson
actions. Mary Tafs, a child protection worker with the HSD, is named in the
Buchan, Germundson,
and
Meisinger
actions; Rachel Paff, a child protection worker with the HSD, in the
Lallak
action; Judy Dean, a child protection worker with the HSD, in the
Buchan
action; Karen Kandik, supervisor of the central intake unit for the Scott County HSD, in the
Germundson
action; and James Poulos, a child protection worker at the Scott County HSD, in the
Meisinger
action.
HSD involvement in the Scott County investigation dates. to October 1983. At that time Kathleen Morris requested that social workers assist in the questioning of child victim-witnesses and accompany deputies when arrests were made to assist in the removal of children from the homes. Social workers occasionally signed neglect petitions which resulted in the initiation of neglect-dependency proceedings. Additionally, on at least some occasions social workers actively intervened in questioning of child victim-witnesses, either to reassure or comfort the child or to assist the interrogating officer in eliciting information from the child.
In general, plaintiffs allege that the social workers acted in derogation of their fourteenth amendment liberty interests, by causing or contributing to initial and continuing separation of parents from children; by failing to reunite families and failing to assist parents whose children had been taken from them; and by aiding law enforcement officers in the fabrication of false evidence and the deception of judicial officers. The social workers now move for summary judgment as to all claims against them.
1. Due Process
The fourteenth amendment provides that no state shall deprive any person of life, liberty or property without due process of law. U.S. CONST. Amend. XIV;
Lehr v. Robertson,
463 U.S. 248 , 103 S.Ct. 2985, 2990 , 77 L.Ed.2d 614 (1983). It is undisputed that parents have a fundamental liberty interest in the care, custody, and management of their children.
Fitzgerald v. Williamson,
787 F.2d 403, 407 (8th Cir.1986);
Ruffalo by Ruffalo v. Civiletti,
702 F.2d 710, 715 (8th Cir.1983);
Santosky v. Kramer,
455 U.S. 745, 753 , 102 S.Ct. 1388, 1394 , 71 L.Ed.2d 599 (1982);
Stanley v. Illinois,
405 U.S. 645, 651 , 92 S.Ct. 1208, 1212 , 31 L.Ed.2d 551 (1972). This right is not absolute, however. Compelling public necessity can justify its termination if proper procedures are followed.
Ruffalo,
702 F.2d at 715 . In this case, plaintiffs claim that substantive and procedural due process as guaranteed by the fifth and fourteenth amendments has been denied them, due to state-sponsored disruption of the family unit. Because plaintiffs’ due process claims against the social workers are without merit, summary judgment for defendants will be granted.
(a) Substantive Due Process
The substantive component of the due process clause “bar[s] certain government actions regardless of the fairness of the procedures used to implement them ... [and thereby] serves to prevent governmental power from being ‘used for purposes of oppression.’ ”
Daniels v. Williams,
474 U.S. 327 , 106 S.Ct. 662, 665 , 88 L.Ed.2d 662 (1986),
quoting Murray’s Lessee v. Hoboken Land & Improvement Co.,
18 How. (59 U.S.) 272, 277, 15 L.Ed. 372 (1856);
quoted in Fitzgerald,
787 F.2d at 407 . Because due process of law, as a “ ‘historic and generative principle, precludes defining,’ there are no precise standards for determining what governmental actions are proscribed by substantive due process.”
Fitzgerald,
787 F.2d at 408 ,
quoting Rochin v. California,
342 U.S. 165, 173 , 72 S.Ct. 205, 210 , 96 L.Ed. 183 (1952). “[D]ue process is not a technical conception with a fixed content unrelated to time, place and circumstances____ Rather, the phrase expresses the requirement of ‘fundamental fairness’____ Applying the Due Process Clause is therefore an uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular situation.”
Lassiter v. Depart-
*1165
merit of Social Services of Durham County, North Carolina,
452 U.S. 18, 24-25 , 101 S.Ct. 2153, 2158-2159 , 68 L.Ed.2d 640 (1981). In determining whether a substantive right protected by the due process clause has been violated, it is necessary to balance “the liberty of the individual” and “the demands of an organized society.”
Youngberg v. Romeo,
457 U.S. 307, 320 , 102 S.Ct. 2452, 2460 , 73 L.Ed.2d 28 (1982). In seeking this balance, the Court must weigh “the individual’s interest in liberty against the State’s asserted reasons for restraining individual liberty.”
Youngberg,
457 U.S. at 320 , 102 S.Ct. at 2460 .
The interests of the various plaintiffs in preserving and maintaining their family units are among the strongest recognized in law. “[A] parent’s interest in the custody of his or her child is among the most basic and fundamental of the liberties protected by the Constitution.”
Davis v. Page,
618 F.2d 374, 379 (5th Cir.1980). The constitutional interest “in the development of parental and filial bonds free from government interference has many avatars____ [A]bove all, it is manifested in the reciprocal rights of parent and child to one another’s ‘companionship.’ ”
Franz v. United States,
707 F.2d 582, 595 ,
addendum at
712 F.2d 1428 (D.C.Cir.1983). As stated by the Eighth Circuit in
Bohn v. County of Dakota,
772 F.2d 1433, 1435 (8th Cir.1985)
cert. denied,
475 U.S. 1074 , 106 S.Ct. 1192 , 89 L.Ed.2d 307 (1986), “The privacy and autonomy of familial relationships ... are unarguably among the protectible interests which due process protects. We can conceive of no more important relationship, no more basic bond in American society, than the tie between parent and child.”
Bohn,
772 F.2d at 1435 .
Balanced against the individual interest in the privacy and autonomy of familial relationships is the state’s interest in the welfare and protection of children. “It cannot seriously be disputed that the state seeks to further a legitimate state interest when it sets out to protect the welfare of its citizens of tender age.”
Alsager v. District Court of Polk County, Iowa,
406 F.Supp. 10, 22 (S.D.Ia.1975),
aff'd,
545 F.2d 1137 (8th Cir.1976). The state has an “urgent interest” in the welfare of the child.
Lassiter,
452 U.S. at 27 , 101 S.Ct. at 2159 . Indeed, as the Supreme Court recognized in
Stanley v. Illinois,
405 U.S. 645, 649 , 92 S.Ct. 1208, 1211 , 31 L.Ed.2d 551 (1972), the state has the “right” and the “duty” to protect minor children.
Alsager,
406 F.Supp. at 22 ;
Prince v. Massachusetts,
321 U.S. 158, 166 , 64 S.Ct. 438, 442 , 88 L.Ed. 645 (1944). Of course, the fundamental liberty interest of natural parents in the care, custody, and management of their children does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state.
Santosky,
455 U.S. at 753 , 102 S.Ct. at 1395 . “Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.”
Santosky,
455 U.S. at 753 , 102 S.Ct. at 1394 . In balancing the interests of the individual and of the state, the contours of substantive due process “are ordinarily to be sought ... in intrinsic human rights, as they have been understood in ‘this Nation’s history and tradition.’ ”
Bohn,
772 F.2d at 1436 ,
quoting Moore v. City of East Cleveland, Ohio,
431 U.S. 494, 503 , 97 S.Ct. 1932, 1938 , 52 L.Ed.2d 531 (1977).
In this case, plaintiffs allege that the HSD and individual social workers contravened their rights to substantive due process by causing or contributing to the initial and continuing separation of children from their parents, developing allegedly false accusations of child sexual abuse against adult plaintiffs, failing to adhere to various state statutes and regulations in connection with child foster care, failing to properly investigate reports of child abuse, and failing to provide certain services to the parents and children. As to the plaintiffs’ allegations that the social workers caused or contributed to the arrest of plaintiffs and the initial and continuing separation of parents from children, at this stage of the litigation, following full and fair discovery, it is now apparent that plaintiffs simply cannot prove that the social workers “caused” these alleged constitutional depri
*1166
vations. As the Court noted in its 1985 Memorandum and Order, the sole role played by these defendants in the arrest of plaintiffs and removal of children from plaintiffs’ homes was to participate in questioning of the children and to be on hand when children were removed from the home. The final decision to arrest, and the final decision to remove children from a particular home, were made by others. A section 1983 damages action is in essence a tort damages action. A plaintiff seeking tort damages cannot withstand summary judgment if he is unable to satisfy the essential elements of a tort cause of action,
1. e.,
causation and damages.
Lossman v. Pekarske,
707 F.2d 288, 290 (7th Cir.1983). In order to succeed on their claims against the social workers, plaintiffs must allege and prove that the alleged denial of substantive due process was “a necessary condition, or ‘but for’ cause, of thé separation of children [from their parents] on which the claim for damages is based.”
Loss-man,
707 F.2d at 291. It must also be shown that the act was taken pursuant to the custom,
i.e.,
that the municipal custom was the “moving force” of the constitutional violation.
Harris v. City of Pagedale,
821 F.2d 499 (8th Cir.1987). Because the decision to arrest plaintiffs and to separate children from parents was made by others, with only very minimal input, if any at all, from the social workers, plaintiffs simply cannot satisfy this “but for” precondition.
Even if it is assumed that the HSD and social workers did play a role in deciding to arrest and separate, plaintiffs’ allegations still do not rise to the level of a substantive due process deprivation. In striking the substantive due process balance, the question “is not simply whether a liberty interest has been infringed but whether the extent or nature of the [infringement] ... is such as to violate due process.”
Youngberg,
457 U.S. at 320 , 102 S.Ct. at 246 . It is a question of degree. In general, substantive due process “is concerned with violations of personal rights ... so severe ... so disproportionate to the need presented, and ... so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”
Hall v. Tawney,
621 F.2d 607, 613 (4th Cir.1980);
citing Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir.1973). Among the rights given protection under the rubric of substantive due process is “the right to be free of state intrusions ... through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.”
Hall,
621 F.2d at 613 . Weighed in the balance against the state’s “urgent” interest in the welfare of the children, the Court finds that plaintiffs’ claims, taken as true for purposes of this summary judgment motion, simply do not rise to the level of justiciable substantive due process claims. The individual interests of the plaintiffs, although strong, are more than counterbalanced by the state’s compelling interest. The social workers simply assisted law enforcement officials by taking part in questioning and tending to the details of child foster care placement.
2
Under the circum
*1167
stances, the actions taken by social workers, although inarguably disruptive to the family units of the various plaintiffs, were motivated by compassion for the children and are in no way indicative of an “abuse of official power which shocks the conscience.”
This conclusion is supported by the Eighth Circuit’s decision in
Fitzgerald .
In
Fitzgerald
plaintiff brought suit against various defendants contending that they contravened her right to substantive due process by causing her relationship with her child to be terminated. The Eighth Circuit granted defendants’ motion for summary judgment as to plaintiffs’ substantive due process claim, finding that “defendants’ conduct in this case does not rise to the level of a substantive due process violation.”
Fitzgerald,
787 F.2d at 408 . The court explained its ruling in the following terms:
Our conclusion follows from the fact that it does not shock our conscience or otherwise offend our judicial notions of fairness to hear that caseworkers responsible for an allegedly abused child arranged for the child to be examined by a psychologist and, after receiving confirmation of child abuse, reduced the parents’ visitation rights and permitted the child to remain with her foster parent when the foster parent moved out of the parents’ geographical area.
Fitzgerald,
787 F.2d at 408 ; Significantly, the court made this finding despite “tak[ing] as true” plaintiffs’ allegations that the defendants “wanted to terminate the [plaintiffs’] relationship with their daughter and committed [the alleged acts] with this goal in mind.”
Fitzgerald,
787 F.2d at 408 .
In
Gibson v. Merced County Department of Human Services,
799 F.2d 582 (9th Cir.1986), a foster child and her foster parents brought an action against a county agency which had caused the child to be removed from the foster home, alleging,
inter alia,
violation of the child’s substantive due process rights based on social service officials’ deliberate indifference to her serious medical needs. The Ninth Circuit granted summary judgment for the county as to plaintiffs’ substantive due process claim, on the ground that plaintiffs had “failed to present any specific facts which would cast doubt on the Department’s assertion and extensive supporting materials showing that they were acting in [the child’s] best long term interests in removing her from the ... home.”
Gibson,
799 F.2d at 590. Because the removal decision could not “be said to be arbitrary” in light of all facts and circumstances of the case the court found plaintiffs’ substantive due process claim to be without foundation.
Gibson,
799 F.2d at 590. As stated by the court:
As it turned out, the Department’s decision to remove [the child] from the ... home was infelicitous. However, hindsight alone is not enough to establish a constitutional violation. We must examine the officials’ actions in the context in which they occurred____ In this case, the steps taken by the Department were entirely reasonable in light of the circumstances ____
Gibson,
799 F.2d at 590.
Viewing defendants’ actions “in the context in which they occurred,” it cannot be
*1168
said that the decision to separate children from their parents in the instant cases was either arbitrary or unreasonable. Although removal of a child from his or her home is “inevitably traumatic,” it is clear that defendants herein were motivated solely by sincere compassion for children reasonably suspected to be victims of abuse,
3
and that the disruption of plaintiffs’ familial units, although in some cases “infelicitous,” was undertaken with the long-term interests of the children firmly in view. “[Hindsight alone is not enough to establish a constitutional violation.”
Gibson,
799 F.2d at 590. Plaintiffs have not shown that defendants’ conduct was “inspired by malice or sadism” or that it “amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.” Quite to the contrary, the Court’s thorough review of the record leads it to conclude that although tainted in some respects by an “unwise excess of zeal” defendants’ act of removing children reasonably suspected of being abused was reasonable and does not rise to the level of a substantive due process deprivation.
Further, defendants exercised professional judgment throughout the investigation. In
Youngberg
the Supreme Court suggested that the appropriate substantive due process balance may be struck by examining the conduct of state actors in light of “accepted professional judgment.”
Youngberg,
457 U.S. at 323 , 102 S.Ct. at 2462 .
Youngberg
was a case concerning state treatment of involuntarily committed mentally retarded persons. In
Youngberg
plaintiff alleged that he had been denied his constitutional rights to safe conditions of confinement, freedom from bodily restraint, and rehabilitative training. In weighing plaintiff’s substantive due process claims, the
Youngberg
Court assessed the reasonableness of defendants’ conduct in light of professional norms, ruling that “liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”
Youngberg,
457 U.S. at 323 , 102 S.Ct. at 2462 . The Court reasoned:
We think the standard ... affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the [individuals]____ “[T]he Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.”
Youngberg,
457 U.S. at 321 , 102 S.Ct. at 2461 ,
quoting Romeo v. Youngberg,
644 F.2d 147, 178 (3d Cir.1980) (Seitz, J., dissenting). The Court further added that “the decision, if made by a professional, is presumptively valid.”
Youngberg,
457 U.S. at 323 , 102 S.Ct. at 2462 (footnote omitted).
Here, there is no evidence that the social workers departed from “accepted professional judgment, practice, or standards.” Responding to a request by the county attorney, social workers attended child interviews, and when a decision to remove a child from a home had been made, social workers accompanied police officers and arranged for emergency care. This conduct on the part of the social workers is presumptively valid, and plaintiffs have not offered any proof which would rebut that presumption. The record supports a finding that the social workers cleaved to professional standards throughout the investigation
4
. Here, as in
Youngberg,
“there
*1169
certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions.”
Youngberg,
457 U.S. at 323 , 102 S.Ct. at 2462 . In
Gibson
the United States Court of Appeals for the Ninth Circuit noted that “officials’ actions” must be examined “in the context in which they occurred. Moreover, we must be mindful that ‘courts must show deference to the judgment exercised by a qualified professional.’ ”
Gibson,
799 F.2d at 590. Because the defendants did not depart from accepted professional judgment, practice or standards, plaintiffs’ substantive due process claims against them will be dismissed.
(b) Procedural Due Process
Plaintiffs also claim that they were denied procedural due process, in contravention of the fifth and fourteenth amendments. An individual is not entitled to constitutional protection under the due process clause unless that party can demonstrate that: (a) there has been a deprivation of liberty or property in the constitutional sense; and (b) the procedures used by the state to effect this deprivation were constitutionally inadequate.
Rivera v. Marcus,
696 F.2d 1016, 1022 (2d Cir.1982). The procedural protections guaranteed by the fifth and fourteenth amendments “are triggered by the existence of a protectible liberty or property interest. Thus, the process that is due depends upon the nature of the interest at stake.”
Bohn,
772 F.2d at 1435 . In resolving such issues, the Eighth Circuit in
Bohn
directed the courts to engage in a two-step analysis. First, the Court must determine whether plaintiffs have identified a protectible interest. Plaintiffs have surmounted that barrier in this matter, as discussed above. Second, the Court must “examine the established procedures to determine whether they satisfy constitutional standards.”
Bohn,
772 F.2d at 1435 .
In determining the quantum of process due in a given context the courts have looked to the three factors specified in
Mathews v. Eldridge,
424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976):
First, the private interest that will be affected by the initial action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal administrative burden that the additional or substitute procedural requirement would entail.
See Bohn,
772 F.2d at 1436 .
The private interest at stake in these cases is the plaintiffs’ interests in preservation of the respective familial units. These are potent interests entitled to great deference, as discussed above. The state’s interest — that of protecting children reasonably suspected of being abused — is also of signal importance. Plaintiffs claim they were deprived of procedural due process in that their children were taken from them without notice and hearing. While acknowledging that plaintiffs’ children were removed in a summary manner, defendants point out that plaintiffs were entitled to and did avail themselves of significant post-deprivation remedies, which
in toto
negate any constitutional harm of which plaintiffs complain. The Court concludes that defendants are correct, and that the post-deprivation remedies afforded plaintiffs were sufficient to satisfy procedural due process.
Procedural due process fundamentally requires that an aggrieved party be provided with an opportunity to be heard at a meaningful time and in a meaningful manner.
Mathews,
424 U.S. at 333 , 96 S.Ct. at 901 ;
Rivera,
696 F.2d at 1027 . In some circumstances, postdeprivation remedies provided by state law and regulations may be sufficient to satisfy the strictures of procedural due process, notwithstanding that the deprivation of liberty or property
*1170
took place without the benefit of notice and hearing. In a child removal context, post-deprivation remedies may be particularly appropriate. For example, in
Fitzgerald
plaintiffs claimed denial of procedural due process based on the state’s act of terminating their parental relationship with their child. The state determined to place the child with a foster parent without the benefit of an administrative hearing and reduced the parents’ visitation rights without obtaining prior juvenile court approval. While recognizing that plaintiffs had a liberty interest in the “care, custody, and management of their child,” and that the state had failed to provide the plaintiffs with a hearing prior to reducing their visitation rights and prior to permitting the child to remain with her foster parent, the Eighth Circuit found that, because state law “provides adequate protection for the parental interests implicated by such decisions,” plaintiffs’ “procedural due process rights were not violated by the [State’s] visitation and placement decisions.”
Fitzgerald,
787 F.2d at 408 . The court’s decision was based primarily on the fact that state law provided an adequate
postdeprivation
remedy,
i.e.,
the parents had the ongoing opportunity to “petition the juvenile court for modification of custody orders at any time.”
Fitzgerald,
787 F.2d at 408 . Balancing the
Mathews v. Eldridge
factors, the court determined that this post-deprivation remedy was the quantum of process due the plaintiffs under the circumstances and that, accordingly, there was no constitutional deprivation.
Similarly, in
Bohn v. County of Dakota,
the Eighth Circuit found that plaintiffs had suffered no deprivation of procedural due process, notwithstanding that they had been “identified as suspected child abusers” without notice or hearing. The court found that “ex post procedures” available to plaintiffs were “fully adequate” to test the veracity of the county’s finding.
Bohn,
772 F.2d at 1438 . The
Bohn
court, in an opinion written by Judge Heaney, reasoned that:
Moreover, the
ex post
procedures for review are fully adequate to test the veracity of the County department’s finding in that these procedures substantially incorporate truth-testing measures long approved by our legal system. We note that
ex post
procedures have previously been approved by the courts in cases which bear comparison with the case at bar. Thus, the Second Circuit recently declared, “Where a pre-deprivation hearing is impractical and a post-deprivation hearing is meaningful, the State satisfies its constitutional obligation by providing the latter.”
Giglio v. Dunn,
732 F.2d 1133, 1135 (2d Cir.1984),
cert. denied,
[ 469 U.S. 932 ], 105 S.Ct. 328 , 83 L.Ed.2d 265 (1984). In cases which require fast action to protect the interests of children,
e.g., Duchesne v. Sugarman,
566 F.2d 817, 826 (2d Cir.1977), or where an
ex ante
intervention by the state was based on a generally reliable
ex ante
finding,
see Barry v. Barchi,
443 U.S. 55, 64-65 , 99 S.Ct. 2642, 2649 , 61 L.Ed.2d 365 (1979), such procedures have been upheld____ In addition, we believe that the interjection of fuller procedural protections at an earlier state in the process would be unduly time-consuming and cumbersome, and might well reduce important protections which the state legislature designed for otherwise vulnerable children.
Bohn,
772 F.2d at 1438-39 .
In the context of suspected child abuse, the “fundamental interest of the parents ... and the possibility of an erroneous adjudication of dependency [or abuse] must be balanced against any interest that the state may have in conducting summary proceedings ... to protect the health and welfare of the child.”
Davis,
618 F.2d at 381 . There is no denial of procedural due process if the state provides reasonable post-deprivation remedies for preventing families from being arbitrarily broken up by local officers.
Ellis v. Hamilton,
669 F.2d 510, 515 (7th Cir.),
cert. denied,
459 U.S. 1069 , 103 S.Ct. 488 , 74 L.Ed.2d 631 (1982). Where the state has a procedure for a prompt, adversary postdeprivation hearing in a child custody matter and the hearing is held and establishes that the state officers acted prudently in remov
*1171
ing the child from the parents’ custody without a prior hearing, that finding extinguishes any claim that the failure to hold a pre-deprivation hearing was a denial of due process.
Lossman,
707 F.2d at 292 . In general, when a child’s safety is threatened, that is “justification enough for action first and hearing afterward.”
Loss-man,
707 F.2d at 291. As Judge Heaney stated most eloquently in
Bohn :
Third, we consider the government’s interests, including the burdens imposed by additional procedural protections. The government has a strong interest in protecting powerless children who have not attained their age of majority but may be subject to abuse or neglect. To the extent that pre-investigation procedural protection might delay or frustrate the protection of these children, we believe the government’s interest might be impaired. In addition, although the pecuniary cost of such additional protection might not be great, to the extent that it would be duplicative of
ex post
procedures we have discussed at length, whatever cost would be entailed would be wasteful.
Bohn,
772 F.2d at 1439 .
In sum, the Court finds that plaintiffs have suffered no deprivation of substantive or procedural due process. Accordingly, defendants’ motion for summary judgment as to plaintiffs’ substantive and procedural due process claims will be granted.
2. Qualified Immunity
The social workers also move for summary judgment on the basis of qualified immunity.
5
In
Harlow v. Fitzgerald,
457
*1172
U.S. 800, 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow,
457 U.S. at 818 , 102 S.Ct. at 2738 . The doctrine of qualified immunity involves a delicate balancing of the rights of citizens to obtain redress for wrongs committed by public officials and the need to assure that public officials will perform their assigned duties unfettered by the prospect of being subjected to the costs of defense and the consequences of a damages award for acts done in the course of official duties.
Allred v. Svarczkopf,
573 F.2d 1146 (10th Cir.1978). Qualified immunity exists to protect public officers from liability for the exercise of discretion in performing a public duty; it reflects a decision that the public is better served by public officials who will not be deterred by fear of liability from executing the office with an independent and decisive judgment.
Fowler v. Cross,
635 F.2d 476 (5th Cir.1981). In order to determine the scope of the qualified immunity defense in a given context, the Court must “focus on the specific nature of the conduct complained of and the state of the law with respect to the identified conduct at the time the official acted.”
Myers,
810 F.2d at 1459 n. 16. “In order to determine whether a defendant has violated a plaintiff’s clearly established rights, [it is] necessary to make two inquiries ... (1) which particular act or omission of the defendant violated the plaintiff’s federal rights, and (2) whether governing case or statutory law would have given a reasonable official cause to know, at the time of the relevant events, that those acts or omissions violated the plaintiff’s rights.”
Davis v. Scherer,
468 U.S. 183 , 104 S.Ct. 3012 , 82 L.Ed.2d 139 (1984) (Brennan, J., concurring in part and dissenting in part),
cited in Myers,
810 F.2d at 1459 n. 16.
Here, plaintiffs have identified a number of
particular
acts or omissions which they allege to have violated their “clearly established rights”: interrogation of children for an improper purpose and an improper manner; causing or contributing to the initial and continuing separation of children from parents; and developing accusations against the adult plaintiffs in reckless disregard of the truth. Plaintiffs further allege that the HSD defendants contravened various state statutes and regulations in their handling of these matters. Defendants convincingly argue that even accepting that defendants are guilty of some or all of these acts and/or omissions, qualified immunity protects them from a civil suit for damages, in that the rights allegedly contravened were not “clearly established.” The Court finds defendants’ arguments to be the more persuasive.
With respect to allegations that the social workers improperly questioned child witnesses, “[i]mmunity is forfeited for the questioning function upon at least a preliminary showing that the interrogation so exceeded clearly established legal norms for this function that reasonable persons in the [social workers’] position would have known their conduct was illegal.”
Myers,
810 F.2d at 1460 ,
citing Kompare v. Stein,
801 F.2d 883, 887 (7th Cir.1986). In
Myers
the Eighth Circuit found that because the “standards for the interrogation of juvenile witnesses and victims, particularly in the area of sexual abuse” were not clearly established in 1984, deputy sheriffs who participated in the questioning were protected by qualified immunity.
Myers,
810 F.2d at 1461 . This reasoning applies with even greater force to the social workers, whose role in the questioning was peripheral at best. The social workers are protected by qualified immunity from allegations that they improperly questioned child witnesses.
With respect to allegations that the social workers caused or contributed to initial and continued separation of children from
*1173
parents (and completely apart from the fact plaintiffs cannot establish “but for” causation, since the removal decision was made by others), as stated by the Eighth Circuit in
Myers ,
“[t]he issue for immunity purposes ... is whether the members of the plaintiffs’ family units had a clearly established right to remain together prior to any initiation of charges of intrafamilial abuse.”
Myers,
810 F.2d at 1461-62 . If there was a “legitimate question” as to the legality of summarily separating children from parents then damages claims against the social workers based on such conduct are barred by qualified immunity.
Myers,
810 F.2d at 1462 . In
Myers ,
the Eighth Circuit expressly concluded that, because the parameters of plaintiffs’ liberty interest in maintenance of the family unit are ascertainable only by balancing the interests of the parents and children against those of the state, the right allegedly infringed by defendants was not “clearly established.” As stated by the court:
In our view, the parental liberty interest in keeping the family unit intact is not a clearly established right in the context of reasonable suspicion that parents may be abusing children. If law enforcement personnel who have at least arguable probable cause to believe that adults have been molesting children are not entitled to reasonable belief that the adults may pose a danger to their own children, then the law was (and is) not clearly established on this point. There is certainly no available legal precedent to this effect.
Myers,
810 F.2d at 1463 .
This reasoning is fully applicable to the social workers, whose role in initiating child removal was peripheral at best. The social workers are protected by principles of qualified immunity from allegations that they contravened plaintiffs’ liberty interests by causing or contributing to the initial and continuing separation of children from parents.
Plaintiffs also allege that the social workers aided and abetted police officers in fabricating evidence against them and deceiving judicial officers with false and unreliable representations of alleged child sexual abuse. A similar claim was made against the deputies in the
Myers
appeal. The Eighth Circuit found that while qualified immunity does not protect state actors who deliberately mislead judicial officers, “a substantial preliminary showing of dishonesty is necessary to obtain even an evidentiary hearing in an attempt to impeach a warrant application which on its face reveals probable cause.”
Myers,
810 F.2d at 1457 . After a thorough review of the claims made against the deputies, the court concluded that plaintiffs had “not even approached” the level of specificity required to defeat qualified immunity, in light of the fact that “[n]o facts have been recited which would indicate that any of the deputies actually believed the plaintiffs were innocent or the children were lying when the deputies acted on the children’s statements.”
Myers,
810 F.2d at 1458 . Plaintiffs’ “conclusory” allegations were found to be insufficient in the absence of a “specific affirmative showing of dishonesty” on the part of the deputies.
Myers,
810 F.2d at 1458 . Plaintiffs' claims of social worker evidence fabrication and duplicity are even less specific than the claims made by them against the deputies in
Myers .
Plaintiffs have offered only conclusory allegations unsupported by any specific affirmative showing of dishonesty. Plaintiffs have not and cannot show that any of the social workers actually believed the plaintiffs were innocent or that the children were lying when they participated in the arrest of plaintiffs and initiated placement of children in foster care. Under the circumstances, the reasoning and conclusion of the Eighth Circuit in
Myers
is fully dispositive of plaintiffs’ claims against the social workers. In the absence of a specific showing of dishonesty, the social workers are protected by qualified immunity from allegations that they fabricated evidence and deceived judicial officers.
Finally, plaintiffs point to various state statutes and regulations which the social workers allegedly contravened in handling the Scott County investigation. Specifically, plaintiffs claim that the social
*1174
workers violated Minn.Stat. §§ 626.556, subd. 10(a); 260.165, subd. 1(c)(2); 13.04, subd. 2; 257.071; as well as Minnesota Rules §§ 9560.025-9560.0500 and 42 U.S.C. §§ 671 (a)(15), 672(a)(1), and 675. As noted in
Myers ,
“a violation of state law is neither cognizable under section 1983 nor results in forfeiture of immunity for the alleged violations of rights which have independent constitutional origin” unless “the rights which form the basis of plaintiffs’ civil rights claims were conferred by state law.”
Myers,
810 F.2d at 1469 ,
citing Davis v. Scherer,
468 U.S. 183 , 104 S.Ct. 3012 , 82 L.Ed.2d 139 (1984). “[Qualified immunity will be forfeited only when at the time of the conduct in question it is clearly established that plaintiffs have the particular constitutional right and that the statutory and regulatory provisions in question bear upon or implicate that right.”
Culbreath v. Block,
799 F.2d 1248, 1250 (8th Cir.1986). Here, as in the cases disposed of in
Myers ,
the rights asserted by plaintiffs are all of federal constitutional origin, such as the fourth amendment right to be free from arrest without probable cause, the liberty interest in the family unit and fair trial, due process rights. Here, as in
Myers ,
“[n]one of these interests is conferred by Minnesota legislation.”
Myers,
810 F.2d at 1469 . At most these statutes and regulations establish “guidelines to be followed as a matter of state law and neither confers nor embodies any constitutionally-protected right asserted by the plaintiffs.”
Myers,
810 F.2d at 1469 . As to Minn.Stat. § 626.556, subd. 10(a), in
Myers
the court determined that “the statute is not the source of the liberty interest in the family unit which the plaintiffs have sued to vindicate.”
Myers,
810 F.2d at 1469 . As to Minn.Stat. § 260.165, subd. 1(c)(2), in
Myers
the court found that any violation of this statute “would not bear upon nor defeat immunity for the constitutional claim.”
Myers,
810 F.2d at 1470 . As to Minn.Stat. § 257.071 and 42 U.S.C. § 672-75 , these statutes specify certain procedures relative to foster care placement of children, but do not bear upon plaintiffs’ claimed liberty interest. Nor can plaintiffs show “but for” causation, inasmuch as even had defendants adhered to these requirements there was no guarantee that families would have been reunited. The Minnesota Rules relied upon by plaintiffs are similarly unconnected to plaintiffs’ federal law claims, and plaintiffs appear to have waived these requirements in any event. Finally, as to Minn.Stat. § 13.04, subd. 2 (“Tennessen” warning), plaintiffs have not claimed that their liberty interests in undisrupted family units derives from this statute, nor have plaintiffs made a threshold showing that defendants in fact violated the statute. The social workers’ participation in child victim-witness questioning was peripheral at best. In sum, because none of the state law statutes or regulations allegedly violated by defendants confer or embody any of the constitutionally-protected rights claimed, plaintiffs’ state law arguments are unavailing.
6
In sum, the social workers’ motion for summary judgment will be in all respects granted. Plaintiffs have not made out a justiciable substantive or procedural due process claim. Plaintiffs cannot show “but for” causation as to their claims that the social workers caused arrests or caused children to be separated from parents. The social workers are qualifiedly immune from claims that they improperly questioned children or deceived judicial officers.
*1175
B. Deputies
Scott County deputy sheriffs Michael Busch, Patrick Morgan, David Einertson and Norman Pint are named as defendants in the
Meisinger, Germundson
and
Morgenson
actions. Plaintiffs allege that the deputies sought arrest warrants, swore out criminal complaints, and effectuated arrest without probable cause; deceived judicial officers who found probable cause; interrogated children for an improper purpose and in an improper manner; and unconstitutionally removed minor children from their homes pursuant to police holds. Essentially the same claims were made against these deputies in the first
Myers
appeal. Defendants now move for summary judgment as to all claims against them on the basis of qualified immunity. The Court finds that all claims against the deputies are barred by principles of qualified immunity, and accordingly defendants’ motions for summary judgment will be granted.
1. Arrest
As to plaintiffs’ claims of unlawful arrest, in
Malley v. Briggs,
475 U.S. 335 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986), a case decided after this Court’s 1985 decision but before the Eighth Circuit’s
Myers
decision, the Supreme Court held that in the absence of proof that an arresting officer fabricated false evidence or otherwise deceived a judicial officer in connection with the procurement of an arrest warrant, the doctrine of qualified immunity bars any claim against the officer based on claims that he procured the arrest of the plaintiff without probable cause, provided that a reasonably competent and well-trained police officer would have believed that probable cause existed under the facts then known to the arresting officer. As interpreted by the Eighth Circuit in
Myers, Malley
stands for the proposition that “an officer requesting an arrest warrant will be shielded by qualified immunity for that function unless adjudged on an objective basis, ‘no officer of reasonable competence would have requested the warrant.’ ... ‘Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost.’ ”
Myers,
810 F.2d at 1455 . Furthermore, “if officers of reasonable competence could disagree on [the] issue, immunity should be recognized.”
Malley,
106 S.Ct. at 1096 ,
quoted in Myers,
810 F.2d at 1455 . In determining whether immunity obtains, the Court’s function is to “review the information before the deputy sheriffs when they swore out criminal complaints and performed arrests to determine whether no reasonably competent officer would have sought to arrest the ... plaintiffs on the basis of the known facts and circumstances.”
Myers,
810 F.2d at 1455 .
A review of the information before the deputies when they swore out complaints and arrested Judy Kath, Scott and Marlene Germundson, Terry Morgenson, and Irene Meisinger reveals that the deputies were reasonable in believing that probable cause to arrest existed based on the facts then known. On the date of Irene Meisinger’s arrest (November 30, 1983), the deputies had the following information: V. Kath’s statement that Meisinger and James Rud had performed oral sex on each other and on her and J.M. Meisinger on one occasion; S. Krahl’s description of activities at the home of Alvin and Rosemary Rud involving several adults, including Irene Meisinger, performing sexual acts upon and with children; and J.R.H. Meisinger’s statement that Irene Meisinger had performed oral sex upon him, and that his stepfather, Gary Pautsch, had physically abused him over an extended period of time with Irene Meisinger’s knowledge and consent. On the date of Marlene Germundson’s arrest (November 10,1983) the deputies had the following information: statements by the Germundson children that James Rud had sexually abused them in the presence of Marlene Germundson; physical evidence which corroborated the children’s statements,
i.e.,
a physical examination of the five-year-old children which revealed that they had been sexually penetrated; Marlene Germundson’s admission in a November 10, 1983 interview that she had knowledge of nude photographs of her children taken by James Rud and that she was been present
*1176
at Rud’s residence on occasion when she “assumed” that Rud was engaged in sexual activity with her children, and her admission that her children had revealed to her in April or May 1983 that Rud had sexually abused them. On the date of Scott Germundson’s arrest (February 27, 1984) the deputies had the following information: J. Olson's statement that on several occasions Scott Germundson had anally penetrated him; and C. Lebens’ description of acts of sexual abuse upon and with children by Marlene and Scott Germundson at the James Rud residence. On the date of Judy Kath’s arrest (November 14, 1983) deputies had the following information: V. Kath’s description of sexual activities involving children and adults, including Judy Kath, at the Rud residence; Marlene Germundson’s statements implicating Judy Kath in criminal sexual conduct at the Rud residence, which confirmed in part the statements made by V. Kath.
In the light of information before the deputies when they swore out criminal complaints against those plaintiffs, the Court finds that the deputies’ conduct was objectively reasonable. This is not an instance where “no officer of reasonable competence would have requested” the respective warrants. To the contrary, each criminal complaint and warrant was supported by detailed descriptions of criminal activity by suspected victim-eyewitnesses whose names and ages were known to the deputies and which were provided to judicial officers who also found probable cause. Each arrest was based on more than one accusation, and in the case of Judy Kath, a child’s accusation were partially corroborated by statements of an adult (Marlene Germundson). In the case of Marlene Germundson, statements made by her children and others were partially confirmed by physical evidence. As to the suggestion that the age and particular vulnerabilities of young children made their accusations unreliable, here, as in the first
Myers
appeal, the Court is obliged to “reject the inference that law enforcement personnel are necessarily less entitled to rely on details of criminal activity described by children than those described by adults.”
Myers,
810 F.2d at 1456-57 . A thorough review of the facts and circumstances known to police officers at the time of the arrests leads to the conclusion that the deputies’ conduct in seeking and performing the arrests was objectively reasonable,
7
and that, at the very least, officers of reasonable competence could have differed as to probable cause. As such, the deputies are protected by principles of qualified immunity from plaintiffs’ claims of unlawful arrest.
2. Deception of Judicial Officers
Plaintiffs also claim that the deputies perpetrated a fraud upon the judicial offi
*1177
cers who found probable cause by representing to judicial officers that child statements were reliable and by concealing allegedly exculpatory evidence. Allegations of judicial deception are sufficient to defeat qualified immunity if “the judicial finding of probable cause is based solely on information the officer knew to be false or would have known was false had he not recklessly disregarded the truth.”
Olson v. Tyler,
771 F.2d 277, 282 (7th Cir.1985). In order to impeach a warrant application which on its face reveals probable cause, “a substantial preliminary showing of dishonesty is necessary.”
Myers,
810 F.2d at 1457 . In order to surmount this threshold barrier, plaintiffs must identify specific facts which “indicate that ... the deputies actually believed the plaintiffs were innocent or the children were lying when the deputies acted on the children’s statements.”
Myers,
810 F.2d at 1458 .
Here, as in
Myers ,
plaintiffs “have not even approached” the requisite standard of specificity. Aside from conclusory allegations, plaintiffs have made no showing that the deputies believed the plaintiffs to be innocent or believed the children to be lying, or that the deputies presented information to judicial officers which they knew to be false or would have known to be false had they not recklessly disregarded the truth. To the contrary, in light of the many detailed, specific statements made by children and adults, many of which were corroborated by statements of others and/or by physical evidence, the deputies were fully justified in concluding that the information presented by them to judicial officers was bona fide. Any claim that the deputies would not have believed the children’s statements but for flawed interrogation and inadequate investigation must fail in the absence of a “specific affirmative showing of dishonesty by the applicant.”
Myers,
810 F.2d at 1458 ,
citing Franks v. Delaware,
438 U.S. 154, 171 , 98 S.Ct. 2674, 2684 , 57 L.Ed.2d 667 (1978). Plaintiffs have failed to make a preliminary showing
8
adequate to overcome the presumed validity of warrant applications which on their face contained information that competent officers could reasonably believe amounted to probable cause. Thus, qualified immunity protects the deputies from plaintiffs’ claims that they deceived judicial officers.
3. Questioning Children
Plaintiffs claim that the deputies interrogated children for an improper purpose and in an improper manner. Defendants claim they are qualifiedly immune from such claims. As discussed above, the deputies are shielded from liability for civil damages insofar as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow,
457 U.S. at 818 , 102 S.Ct. at 2738 . In the context of child interrogation, the relevant inquiry is whether the specific interrogation conduct identified in the record “so exceeded accepted legal norms for the questioning of witnesses and victims that the interrogating detectives knew or should have known their conduct would violate the rights of accused persons.”
Myers,
810 F.2d at 1458 . If, from a 1984 perspective, it was not “clearly established” that the conduct in which the deputies engaged contravened plaintiffs’ fourth, fifth, sixth and fourteenth amendment rights, the deputies are
*1178
immune from suit based on alleged improper questioning.
Myers,
810 F.2d at 1458-59 .
In
Myers
the Eighth Circuit concluded that deputy interrogation of child witnesses-victims “occurred in a grey area” to which there were, and probably still are, “less than clearly established legal norms.”
Myers,
810 F.2d at 1461 . Because the standards for the interrogation of juvenile witnesses and victims were not clearly established in 1984, the deputies were adjudged to be qualifiedly immune from suit. The Eighth Circuit’s ruling in
Myers
is fully dispositive of plaintiffs’ claims in the instant case. Because the law was not clearly established in 1984, it matters not that the record allegedly reveals examples of investigative mistakes and flawed interrogation. In the absence of clearly established standards, the deputies will not now be forced, on the basis of hindsight, to defend their questioning techniques. “Immunity is forfeited for the questioning function upon at least a preliminary showing that the interrogation so exceeded clearly established legal norms ... that reasonable persons ... would have known their conduct was illegal.”
Myers,
810 F.2d at 1460 ,
citing Kompare,
801 F.2d at 887 . Here, in the absence of clearly-established standards, plaintiffs have not made, and cannot make, the requisite preliminary showing. The deputies are protected by principles of qualified immunity from plaintiffs’ claims of improper child questioning.
4. Separation of Parents from Children
Plaintiffs also claim that the deputies caused or contributed to initial and continued separation of children from their parents. Plaintiffs' claims derive from their claimed liberty interest in maintenance of the family unit. In
Myers
the Eighth Circuit concluded that because the depth and breadth of plaintiffs’ liberty interest in familial relations is measurable only by resort to a balancing of private and state interests, the claimed “parental liberty interest in keeping the family unit intact is not a clearly established right in the context of reasonable suspicion that parents may be abusing children.”
Myers,
810 F.2d at 1463 . The Eighth Circuit held:
If law enforcement personnel who have at least arguable probable cause to believe that adults have been molesting children are not entitled to reasonable belief that the adults may pose a danger to their own children, then the law was (and is) not clearly established on this point. There is certainly no available legal precedent to this effect.
Myers,
810 F.2d at 1463 .
Here, the deputies had at least arguable probable cause to believe that the instant plaintiffs had been molesting children, as discussed above. Plaintiffs were implicated in abuse of their own (with the exception of Morgenson) and other children. Under the circumstances, the deputies were reasonable in believing that the children may have been in danger. As noted by the
Myers
panel, Minn.Stat. § 260.165 1(c)(2), upon which the deputies relied in removing children from their homes, “reflects a legislative policy in favor of vigorous and immediate child protective endeavors.”
Myers,
810 F.2d at 1463 . Because there was, at a minimum, a legitimate question concerning the legality of removing minor children from the custody of parents arrested for suspected child abuse, here, as in
Myers ,
the deputies are protected by qualified immunity from any claim that they improperly separated parents from children.
In sum, because the deputies are protected by qualified immunities from plaintiffs’ claims regarding arrest, questioning, and parent-child separation, and because plaintiffs have not made a threshold showing of deputy dishonesty with respect to their claim that deputies deceived judicial officers, the deputies are entitled to summary judgment as to all claims against them.
C. Sheriff Tietz
Scott County Sheriff Douglas Tietz is named as a defendant in the
Germundson, Meisinger
and
Morgenson
actions. Here, as in the first
Myers
appeal, plaintiffs do not claim that Tietz personally participated
*1179
in the allegedly unconstitutional conduct, but rather claim that Tietz failed to intercede to prevent abuses by Morris and the deputies and failed to properly train and supervise his deputies.
It is well established that a sheriff or supervisory officer cannot be held liable on a theory of
respondeat superior, Myers,
810 F.2d at 1464 ;
Monell v. Department of Social Services of City of New York,
436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978). Nor does liability attach for mere failure to prevent misconduct on the part of a deputy, absent a showing of direct responsibility for the improper conduct.
Rizzo v. Goode,
423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976);
Clay v. Conlee,
815 F.2d 1164 (8th Cir.1987). In
Myers
the Eighth Circuit concluded that plaintiffs’ claims of negligent failure to train or supervise were fatally deficient in view of the Court’s finding that the deputies’ conduct in procuring and making arrests was objectively reasonable and that the deputies violated no clearly established constitutional standards in interviewing witnesses and suspected victims and in removing children from the plaintiffs’ homes.
Myers,
810 F.2d at 1464 . Further, allegations that the sheriff deprived plaintiffs of procedural or substantive due process through negligent or grossly negligent conduct does not state a claim under section 1983.
Myers,
810 F.2d at 1468 ,
citing Davidson v. Cannon,
474 U.S. 344 , 106 S.Ct. 668 , 88 L.Ed.2d 677 (1986). Plaintiffs have not shown and cannot show that the sheriff’s alleged failure to train or supervise “was intentionally or knowingly committed with the purpose of injuring [plaintiffs], or that it was the result of an affirmative practice, custom, or policy instituted by the Sheriff.”
Lozano v. Smith,
718 F.2d 756, 769 (5th Cir.1983).
9
As to plaintiffs’ claims that Tietz failed to intervene to prevent or remedy abuses committed by Morris, these amount at most to a claim that Tietz negligently failed to defend his office against encroachment by the prosecutor, a claim not federally cognizable.
Myers,
810 F.2d at 1465 .
The motion of Sheriff Tietz for summary judgment will be granted.
D. Prosecutor
All of the instant plaintiffs have named former Scott County Attorney R. Kathleen Morris as a defendant. Morris’ involvement in these matters dates to the arrest and subsequent conviction of James Rud. In the course of the investigation, Morris prepared and signed criminal complaints as to the plaintiffs who were arrested; reviewed, approved and signed neglect petitions; made court appearances; contacted law enforcement personnel regarding new information in previously charged criminal cases; occasionally met and interviewed child witnesses; and prosecuted the Bentzes in August-September 1984. Plaintiffs’ claims against Morris in the instant cases essentially mirror the claims made against her in
Myers .
In general, plaintiffs allege that Morris abused the power of her office in the manner in which she initiated or threatened prosecution, handled evidentiary materials, and otherwise conducted matters preliminary to and encompassed within the investigation; erroneously advised law enforcement personnel that probable cause existed to arrest various plaintiffs; interrogated children for an improper purpose and in an improper manner; approved summary removal of children from their homes and initiated neglect petitions as to these children in derogation of plaintiffs’ constitutional liberties; fabricated evidence and presented false evidence to the family court; and withheld potentially exculpatory evidence and destroyed items of evidence.
In
Myers
the Eighth Circuit found that Morris was absolutely or qualifiedly immune from suit as to all claims made against her. Because the Eighth circuit’s ruling in
Myers
is fully dispositive of all claims made against Morris in the instant cases, Morris’ motion for summary judgment will be granted.
Plaintiffs claim Morris abused the power of her office in the manner in which she
*1180
initiated prosecution. In
Myers
the court found that a prosecutor’s “decision to file charges is protected, even in the face of accusations of: vindictive prosecution ... or reckless prosecution without adequate investigation ... or conspiracy to prosecute for a crime that never occurred ... [or] threatening criminal prosecution.”
Myers,
810 F.2d at 1446 (citations omitted). Plaintiffs claim Morris unconstitutionally initiated neglect-dependency proceedings; however, in
Myers
the Eighth Circuit found that among the acts encompassed within the protected function of initiating a case is the initiation of parental rights termination proceedings, even if done without notice to the parent.
Myers,
810 F.2d at 1446 . Plaintiffs claim Morris presented false evidence to judicial officers. In
Myers
the Eighth Circuit ruled that “allegations that a prosecutor knowingly offered, used or presented false, misleading or perjured testimony ... do not defeat absolute prosecutorial immunity,”
Myers,
810 F.2d at 1446 , and that allegations of withholding or suppressing exculpatory evidence are also protected. As for the alleged destruction of evidence, the
Myers
court determined that the subject evidence was without constitutional significance and that nothing linked Morris to the destruction of evidence in any event.
Myers,
810 F.2d at 1448 .
As to plaintiffs’ claims that Morris improperly caused their arrest, it is now clear that Morris had “no direct role in procuring or executing arrest warrants or performing warrantless arrests” and that “in providing advice to law enforcement officials concerning the existence of probable cause the prospective legality of arrests, Morris was functioning in a quasi-judicial capacity as a prosecutor initiating the formal judicial process.”
Myers,
810 F.2d at 1448 . Morris is also “absolutely immune from having to defend her role in the interviewing of children,” inasmuch as her involvement in child interrogation “was an integral part of her advocatory functions,
i.e.,
her ongoing prosecutorial responsibilities to decide whom to charge and to prepare for the presentation of her cases.”
Myers,
810 F.2d at 1451 . Finally, as to plaintiffs’ claims that Morris impermissibly caused children to be separated from parents, the
Myers
court held that “a county attorney [is] absolutely immune for the function of initiating juvenile dependency and neglect proceedings.”
Myers,
810 F.2d at 1452 .
In sum, all of the claims raised by plaintiffs against Morris in the instant suits were dispositively dealt with in
Myers .
In view of the Eighth Circuit’s teachings on absolute prosecutorial immunity, the Court is constrained to find that Morris is immune from all claims raised against her in these matters. For this reason, Morris’ motion for summary judgment will be granted.
E. Scott County
10
1. Monell
In
Monell v. Department of Social Services of City of New York,
436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978) the Supreme Court held that local governmental units could be made liable under section 1983 for deprivations of federal rights, overruling
Monroe v. Pape,
365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961). In so doing, the Court recognized that “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.”
Monell,
436 U.S. at 691 , 98 S.Ct. at 2036 . A governmental entity cannot be made liable by application of the doctrine of respondeat superior,
Monell,
436 U.S. at 691 , 98 S.Ct. at 2036 , or vicarious liability,
Monell,
436 U.S. at 692-94 , 98 S.Ct. at 2036-38 . A city or other governmental entity may be held accountable only if the alleged constitutional deprivation was the result of municipal
*1181
“custom or policy,”
11
City of Oklahoma City v. Tuttle,
471 U.S. 808 , 105 S.Ct. 2427, 2433 , 85 L.Ed.2d 791 (1985), or took place pursuant to the instructions of a final or authorized decision maker.
Pembaur v. City of Cincinnati,
475 U.S. 469 , 106 S.Ct. 1292, 1299 , 89 L.Ed.2d 452 (1986). The municipal policy must be “the moving force of the constitutional violation.”
Polk County v. Dodson,
454 U.S. 312, 326 , 102 S.Ct. 445, 454 , 70 L.Ed.2d 509 (1981);
Tuttle,
105 S.Ct. at 2434 . “The ‘official policy’ requirement was intended to distinguish acts of the
municipality
from acts of
employees
of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”
Pembaur,
106 S.Ct. at 1298 . “At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged.”
Tuttle,
105 S.Ct. at 2436 . That is, the entity’s official “policy or custom” must have “caused” the constitutional violation alleged.
Clay v. Conlee,
815 F.2d 1164, 1170 (8th Cir.1987),
citing Tuttle,
471 U.S. at 823-24 , 105 S.Ct. at 2436-37 ;
Pembaur,
106 S.Ct. at 1292 . The “causal connection” requirement was “intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers.”
Tuttle,
105 S.Ct. at 2435 .
In a case where plaintiff seeks to hold a municipality or other governmental entity answerable in damages under
Monell ,
the Court is obliged to undertake a two-step analysis. The first task is to identify what the governmental body’s policy is. The second task is to determine whether that policy is unconstitutional.
Dick v. Watonwan County,
738 F.2d 939, 943 (8th Cir.1984). Otherwise put, plaintiffs must first establish that they have been deprived of a constitutional right or rights, and then must establish that the governmental entity was the “person” who caused plaintiffs to be subjected to the deprivation.
Tuttle,
105 S.Ct. at 2433 . The mere fact that plaintiffs have alleged deprivations of constitutional guarantees will not suffice if in fact the entity’s policy is not unconstitutional or if in fact the entity’s policy did not cause the deprivation.
Dodson,
454 U.S. at 326 , 102 S.Ct. at 454 (municipality not subject to section 1983 liability where the policy identified by plaintiff as causing his deprivation did not violate the Constitution). As stated in
Patzner v. Burkett,
779 F.2d 1363, 1367 (8th Cir.1985):
Monell
instructs that, for a municipality to be held liable under § 1983, a plaintiff must show that the action alleged to be unconstitutional implements a county policy or was invoked pursuant to a governmental custom,
Monell,
436 U.S. at 690-91 , 98 S.Ct. at 2035-36 , and that the official policy was the “moving force” behind the violation.
Id.
at 694 , 98 S.Ct. at 2037;
cf. Rizzo v. Goode,
423 U.S. 362, 370-77 , 96 S.Ct. 598, 603-07 , 46 L.Ed.2d 561 (1976) (general allegation of administrative negligence fails to state a constitutional claim cognizable under § 1983). Moreover, the plaintiff must show not only that a policy or custom existed, and that it was causally related to the plaintiff’s injury, but that the policy itself was unconstitutional.
(a) Specificity
As a preliminary matter, defendants point out that plaintiffs have failed to allege unconstitutional customs or policies with specificity. Under
Monell ,
liability of a governmental entity lies only where plaintiff in his complaint alleges a specific unconstitutional policy or custom.
Move Organization v. City of Philadelphia,
530 F.Supp. 764, 765 (E.D.Pa.1982). This is in keeping with the general principle that “plaintiffs in civil rights cases are required to plead facts with specificity.”
Rotolo v. Borough of Charleroi,
532 F.2d 920, 922 (3d Cir.1976). General, unspecific allegations of an actionable municipal policy or
*1182
custom are insufficient to raise a justiciable
Monell
claim. In the cases before the Court, plaintiffs have made vague, conclusory allegations which fall short of the requisite level of specificity.
12
Indeed, even following a thorough review of plaintiffs’ complaints, briefs and exhibits, it is extremely difficult to discern exactly what unconstitutional policies or customs Scott County is charged with having promulgated. The vague, conclusory, unspecific nature of plaintiffs’ allegations against Scott County is probably a sufficient basis on which to dismiss all such claims.
See Move,
530 F.Supp. at 765 (complaint against municipal entity dismissed where only vague, conclusory allegations of policy or custom made);
Seiber v. Cooper,
522 F.Supp. 157, 159 (E.D.Tenn.1981) (absent allegations in complaint that plaintiff's injuries were caused directly by the execution of official governmental policy or custom plaintiff held not to have stated claim against the county);
Zanghi v. Incorporated Village of Old Brookville,
752 F.2d 42 (2d Cir.1985),
aff'd in part and rev’d in part,
— U.S. —, 106 S.Ct. 3220 , 92 L.Ed.2d 635 (1986) (plaintiff failed to allege facts sufficient to raise justiciable claim against municipality);
Glaros v. Perse,
628 F.2d 679 (1st Cir.1980) (complaint so bereft of specific allegations against city that it states no civil rights claim against city);
Ekergren v. City of Chicago,
538 F.Supp. 770, 773 (N.D.Ill.1982) (general, unspecific allegations fail to state a claim against municipality);
Silo v. City of Philadelphia,
593 F.Supp. 870, 875 (E.D.Pa.1984) (plain
*1183
tiffs in civil rights cases are required to plead facts with specificity).
However, giving plaintiffs’ complaints the benefit of every possible doubt, it is possible to identify some possible policies or customs, as for example those set forth in the Court’s original Memorandum and Order: “[e]xamples of ... possible policies or customs include those relating to the manner of conducting the sex ring investigation, the training and supervision of county employees, and the purported failure of HSD to attempt to reunite families whenever possible.”
In re Scott County Master Docket,
618 F.Supp. at 1569 . Plaintiffs also appear to allege that Scott County, acting through Morris and the HSD, had a custom or policy of placing children in foster homes rather than with relatives, of changing children’s names without parental input, of changing children’s religions without regard to their choice in the matter, and of denying the parents the opportunity to visit with their children during the period of foster home placement. Plaintiffs apparently contend that these “customs or policies” were undertaken in derogation of their fourteenth amendment liberty interest in an undisrupted family unit. Plaintiffs further appear to allege deprivation of their fourth amendment rights by virtue of various Scott County policies or customs, including: a policy of retaliatory arrest of Scott County residents who threatened the sex ring investigation or who spoke openly against the prosecutor and/or law enforcement officers; a policy or custom of concealing exculpatory evidence from judicial officers; a policy or custom of fabricating evidence of child abuse, primarily through suggestive questioning of child victim-witnesses. Fairly construed, plaintiffs’ allegations of unconstitutional Scott County customs or policies are of four types: (1) a custom or policy of removing children from the home and continuing their separation in derogation of plaintiffs’ fourteenth amendment liberty interest; (2) a custom or policy of arresting plaintiffs without probable cause in derogation of their fourth amendment rights; (3) a custom or policy of misleading judicial officers, improperly questioning children, and otherwise conducting the sex ring investigation in an unconstitutional manner; and (4) a custom or policy of inadequately training employees, which in turn caused plaintiffs to suffer constitutional deprivations.
(b) Deprivation
Under
Monell
analysis, the first step is to identify the putatively unconstitutional customs or policies and to determine whether these customs or policies “caused” a deprivation of plaintiffs’ rights, that is, whether the customs or policies were the “moving force” behind the constitutional violation.
City of Los Angeles v. Heller,
475 U.S. 796 , 106 S.Ct. 1571, 1573 , 89 L.Ed. 2d 806 (1986);
Clay,
815 F.2d at 1169 .
Plaintiffs claim they were deprived of constitutional guarantees by virtue of Scott County’s unconstitutional policy of disrupting the family unit without the benefit of due process of law. Plaintiffs’ due process liberty interest claims were extensively analyzed above in connection with the discussion of social worker liability. Based upon that discussion, the Court concludes that plaintiffs simply have not suffered a deprivation of their liberty interests. Whether analyzed as substantive due process claims or procedural due process claims, the separation of children from parents, although inarguably disruptive, was simply not of constitutional magnitude. As noted above, in determining whether a substantive right protected by the due process clause has been violated, it is necessary to balance the interests of the individual against the demands of an organized society. Plaintiffs have a strong and undisputed interest in the “care, custody, and management of their children.” However, Scott’ County also has a strong and undisputed interest in protecting the welfare of children reasonably suspected to be the victims of abuse. Here, plaintiffs allege that Scott County caused their family units to be disrupted in contravention of their right to substantive due process; but as discussed extensively above, plaintiffs have failed to show and cannot show that in the unique setting of these cases the county’s
*1184
acts amounted to a “brutal and inhumane abuse of official power literally shocking to the conscience.” Because plaintiffs have not established the existence of a substantive due process deprivation, it matters not whether a Scott County custom or policy caused the break-up of the family units; in either event, plaintiffs’ claims must fail. With respect to plaintiffs’ procedural due process claims, as discussed above, plaintiffs received all the process due them. The mere fact that HSD social workers may not have followed state law procedures in all their particulars is irrelevant since a violation of state law is not cognizable under section 1983, as discussed above. Plaintiffs have not suffered a deprivation of their liberty interest in an undisrupted family unit and for that reason their claims against Scott County must fail.
Plaintiffs also claim that they were arrested without probable cause, and apparently claim that Scott County caused this deprivation, either directly through the actions of Morris and/or Tietz or indirectly through the sheriff’s failure to properly train his subordinates. In any event, plaintiffs must first establish that they were in fact arrested without probable cause. That is, they must first establish that their fourth amendment rights were in fact infringed. Because plaintiffs fail to surmount this hurdle, it is unnecessary to reach “causation” analysis.
In
Myers
the Eighth Circuit found that defendants had “arguable probable cause” to arrest the plaintiffs involved in that appeal. This finding took place in connection with a discussion of qualified immunity. Here, the focus is not on arguable probable cause, but on
probable cause,
a more stringent standard. In general, probable cause “is a reasonable ground for belief of guilt.”
Myers,
810 F.2d at 1454 . “It means ‘less than evidence which would justify ... conviction [but] more than bare suspicion.’ ”
Myers,
810 F.2d at 1454 . The questions of plaintiffs’ innocence is “neither dispositive of nor relevant to the ultimate issue in the case ... since ‘the Constitution does not guarantee that only the guilty will be arrested.’ ”
Clay,
815 F.2d at 1167 ;
quoting Baker v. McCollan,
443 U.S. 137, 145 , 99 S.Ct. 2689, 2695 , 61 L.Ed.2d 433 (1979). The Constitution prohibits only arrests that are not based on probable cause.
Clay,
815 F.2d at 1168 . The relevant standard was set forth in the Eighth Circuit’s recent
Clay v. Conlee
decision:
Whether [an] arrest was constitutionally valid depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [person arrested] had committed ... an offense.
Clay,
815 F.2d at 1168 ;
quoting Beck v. Ohio,
379 U.S. 89 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964). “Thus, it is the ‘facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information’ at the time of arrest” which are instrumental.
Clay,
815 F.2d at 1168 .
Turning to the facts of these cases, it is clear that viewed in the light of all facts and circumstances known to the arresting officers and of which they had reasonably trustworthy information at the time of the arrests, plaintiffs simply have not suffered any infringement of their respective fourth amendment rights. In
Myers
the Eighth Circuit examined the facts of the
Myers, Rank, Lallak, Buchan, Meger, Bentz, Brown
and
Gould
cases and found that “[i]n light of the facts and circumstances before the deputies, we concluded that their conduct in seeking and performing the arrests was objectively reasonable.”
Myers,
810 F.2d at 1457 . Although this finding was made in connection with a discussion of qualified immunity under the arguable probable cause standard, the Court’s finding of “objective reasonableness” is instructive in applying the more stringent probable cause standard as well. For example, the arrests of Robert and Lois Bentz were based on accounts of two children who had not been in contact with one another for more than a month; the children’s accounts were consistent
*1185
with one another and not identical; the children explicitly described games in which children were required to perform and submit to acts of oral sex; and other children previously interviewed had named the Bentz children as victims of abuse.
Myers,
810 F.2d at 1456 . The arrest of Greg Myers was based on statements by three children; one of the children had previously been identified by other children as a victim; and children explicitly described games involving children and adults in which sexual abuse figured prominently.
Myers,
810 F.2d at 1456 . Jane Myers and the Lallaks were arrested on the basis of statements made by two children; the statements were detailed and consistent with the accounts given by other children; in addition, other children had previously implicated the Lallaks. The arrests of the other plaintiffs were also found by the Eighth Circuit to be objectively reasonable.
Myers,
810 F.2d at 1457 . As stated by the Court, “[t]hese accounts were not hearsay or anonymous tips, but were detailed descriptions of criminal activity by suspected victim-eyewitnesses whose names and ages were known to the deputies and were provided to the judicial officers who also found probable cause.”
Myers,
810 F.2d at 1456 .
As for the remaining cases, the facts and circumstances known to officers on the dates of arrest establish without dispute that the arresting officers had probable cause to arrest Judy Kath, the Germundsons, the Rawsons, Irene Meisinger and Terry Morgenson. For example, and without meaning to belabor the point, the Court notes the following indicium of probable cause in these cases: KATH — allegations by three children, apparently corroborative physical information; M. GERMUNDSON —allegations by two children, corroborative physical information and Germundson’s own statements; S. GERMUNDSON —allegations by two children, each internally consistent and obtained at different times in different interviews; MEISINGER — allegations by four children; apparently corroborative physical evidence. In the light of the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information at the time of the arrests, it is clear that plaintiffs simply have not suffered deprivations of their respective fourth amendment rights. Because plaintiffs have suffered no deprivations, their claims against Scott County in this regard must be dismissed.
Plaintiffs point out several instances of arguably suggestive victim-witness questioning, and contend that these flawed interrogative techniques, coupled with other alleged errors on the part of law enforcement officials, such as their alleged failure to fairly and fully document investigative interviews, fatally tainted the officers’ probable cause determinations. Plaintiffs also go to great lengths in challenging the credibility of certain children. Because the information relied upon by the officers in making the decisions to arrest was in some respects untrustworthy, plaintiffs contend, the officers were not justified in believing that probable cause to arrest had been established. Conclusory allegations aside, plaintiffs have failed to demonstrate that the information on which the officers relied was known by the officers to be untrustworthy at the time of the probable cause determinations. Further, even accepting that the investigation was flawed in some respects, isolated instances of investigative error and doubts as to the credibility of some victim-witnesses in no way diminishes the substantial quantum of indisputably trustworthy information on which the officers justifiably relied in making the decisions to arrest,
viz.,
physical evidence of abuse, such as contaminated bowling pins and candles and physical examinations of children indicative of abuse, as well as corroborative admissions by adults, principally Marlene Germundson and Robert Kath, and the confession of James Rud himself, whose detailed descriptions of sexual abuse of children lent considerable credence to the accusations later elicited from child victim-witnesses. Isolated instances of flawed investigative technique do not a constitutional deprivation make, particularly given the flood of trustworthy information on which officers justifiably relied.
*1186
Finally, plaintiffs allege in conclusory terms that Scott County had a custom or policy of improperly training its employees. Once again, the Court is handicapped by plaintiffs’ failure to identify the allegedly unconstitutional customs or policies with specificity. However, it is perhaps reasonable to assume that plaintiffs rely on allegedly unconstitutional training of deputies with respect to arrests and questioning, and improper training of social workers with respect to questioning and foster care placement. Under any construction, it seems clear that plaintiffs have not suffered constitutional deprivations caused by a “custom or policy” under
Monell
standards and that their action against Scott County must fail.
It is well accepted that “a supervisor may be liable for the acts of a subordinate if injury is inflicted upon the plaintiff as a result of a breach of the supervisor’s duty to train, supervise, or control the actions of subordinates.”
Hahn v. McLey,
737 F.2d 771, 773 (8th Cir.1984) (per curiam);
Clay,
815 F.2d at 1170 . If a municipality fails to train its police force, or if it does so in a grossly negligent manner so that it inevitably results in police misconduct, the municipality may fairly be said to have authorized the violations.
Warren v. City of Lincoln,
816 F.2d 1254, 1262 (8th Cir.1987). “[Wjhere a § 1983 claim is based on a municipality’s alleged failure to prevent misconduct by its employees, the city is liable only where municipal officials can be shown to be directly responsible for the improper actions of their subordinates.”
Harris v. City of Pagedale,
821 F.2d 499 (8th Cir.1987);
Wilson v. City of North Little Rock,
801 F.2d 316, 322 (8th Cir.1986). “The claimant must demonstrate ‘deliberate indifference or tacit authorization [by municipal officials] of the offensive acts by [failure] to take remedial steps following notice'of a pattern of such acts by ... subordinates.’ ”
Harris ,
at 504
quoting Wilson,
801 F.2d at 322 . In
Tuttle ,
Justice Rehnquist writing for the plurality noted that because the word “ ‘policy’ generally implies a course of action consciously chosen from among various alternatives ... it is ... difficult in one sense even to accept the submission that someone pursues a ‘policy’ of ‘inadequate training,’ unless evidence be adduced which proves that the inadequacies resulted from conscious choice — that is, proof that the policymakers deliberately chose a training program which would prove inadequate.”
Tuttle,
105 S.Ct. at 2436 (footnotes omitted). Nonetheless, in a series of recent eases, the Eighth Circuit has fleshed out the parameters of municipal liability in the context of a claim that a high-ranking official, typically a police supervisor, failed to adequately train or supervise his subordinates. In general, “a municipality may be liable if it had notice of prior misbehavior by its officers and failed to take remedial steps amounting to deliberate indifference____ ‘Deliberate indifference’ may be shown by a failure to train, or by conducting a training program in a grossly negligent manner so that police misconduct inevitably occurs.”
Patzner,
779 F.2d at 1367 .
See also Marchant v. City of Little Rock, Arkansas,
741 F.2d 201 (8th Cir.1984);
Herrera v. Valentine,
653 F.2d 1220 (8th Cir.1981);
Baker v. McCoy,
739 F.2d 381 (8th Cir.1984).
With this standard in mind, it seems clear that plaintiffs’ “failure to train or supervise” claims against Scott County, Morris and Tietz must fail, for several reasons. First and foremost, plaintiffs have failed to surmount the threshold barrier of establishing constitutional deprivations. Plaintiffs simply have not and cannot prove that their rights were infringed. In
City of Los Angeles v. Heller,
475 U.S. 796 , 106 S.Ct. 1571 , 89 L.Ed.2d 806 (1986), a jury returned a finding that a police officer charged with unconstitutional arrest of the plaintiff had not in fact infringed plaintiff’s constitutional rights — the arrest was based on probable cause and was not effectuated with excessive force. Based on the absence of a threshold finding of deprivation, the Supreme Court found that the municipality could not under any circumstances be found liable to the plaintiff, stating: “neither
Monell
... nor any other of our cases authorizes the award of damages against the municipal corporation based on
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the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm.”
Heller,
106 S.Ct. at 1573 . Here, plaintiffs have not suffered any constitutional harm at the hands of the deputies or the social workers, hence, their failure to train or supervise theory against Scott County must fail.
13
See, e.g., Clay,
815 F.2d at 1169 (“[w]e hold that as a matter of law there was probable cause for [plaintiffs] arrest. That being the case, his arrest did not deprive him of any federal constitutional right, and he thus has no cause of action against [the arresting officer] under § 1983”).
Second, plaintiffs have utterly failed to establish that the county officials had notice of prior misbehavior and that its deliberate failure to act upon such notice caused their injury. For example, no evidence has been presented that Tietz had prior notice of arrests made by his deputies without the benefit of probable cause, or that Tietz, armed with such knowledge, deliberately failed to act. In light of the Eighth Circuit’s teaching in
Harris, Wilson, Patzner, Marchant, Herrera, Baker, Clay,
and
Warren ,
plaintiffs’ claims must fail.
2. Immunity
Even were the Court to accept that unconstitutional policies or customs of Scott County caused plaintiffs to suffer constitutional harm, to the extent the harm is attributable to the actions of Morris, defendants convincingly argue that the county shares the prosecutor’s absolute immunity. It is well accepted that a municipality or other governmental entity “may not assert the good faith of its officers or agents as a defense to liability under § 1983.”
Owen v. City of Independence,
445 U.S. 622, 638 , 100 S.Ct. 1398, 1409 , 63 L.Ed.2d 673 (1980). Consequently, Scott County may not raise the good faith defense of its social workers and deputy sheriffs as a bar to suit against it. With regard to the absolute immunity of prosecutor Morris, however, there is authority for the proposition that the county may derivatively avail itself of the prosecutor’s absolute immunity in a section 1983 action which seeks to hold the county responsible for the prosecutor’s actions.
See Armstead v. Town of Harrison,
579 F.Supp. 777 (S.D.N.Y.1984);
Whelehan v. Monroe County,
558 F.Supp. 1093 (W.D.N.Y.1983);
Cribb v. Pelham,
552 F.Supp. 1217 (D.S.C.1982);
Hancock v. Washtenaw County Prosecutor’s Office,
548 F.Supp. 1255 (E.D.Mich.1982).
But see Wagner v. Genesee County Board of Commissioners,
607 F.Supp. 1158 (E.D.Mich.1985);
Czikalla v. Malloy,
649 F.Supp. 1212 (D.Colo.1986).
In general, immunity defenses to suits under section 1983 have been recognized where the immunity was one “well established at common law” on the date of section 1983’s enactment and where public policy and the compensatory and deterrent functions of section 1983 are compatible with such immunity.
Owen,
445 U.S. at 638 , 100 S.Ct. at 1409 . In
Owen
the Supreme Court determined that “there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify ... qualified immunity” for a municipality.
Owen,
445 U.S. at 638 , 100 S.Ct. at 1409 . In support of this conclusion, the Court detailed the public policy considerations militating against derivative qualified immunity, including the injustice to “victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense.”
Owen,
445 U.S. at 651 , 100 S.Ct. at 1415 . In addition to the interest in compensation of “victims of past abuse,” the Court also cited the interest in deterring future constitutional
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deprivations, reasoning that, “the knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights.”
Owen,
445 U.S. at 652 , 100 S.Ct. at 1416 (footnote omitted). As stated by the Court:
Furthermore, the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights. Such procedures are particularly beneficial in preventing those “systemic” injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith.
Owen,
445 U.S. at 652 , 100 S.Ct. at 1416 (footnote omitted).
Undeniably, a finding that a county or municipality may avail itself of a prosecutor’s absolute immunity will work to the detriment of those wronged by the exercise of official power. “If the act’s purpose is to provide protection to those persons wronged by the misuse of power exercised under state law ... it clearly would result in a frustration of that purpose to deny a remedy to those who were, in fact, injured.”
Wagner,
607 F.Supp. at 1169 . Moreover, a central rationale undergirding good faith immunity for state actors — the crushing personal liability which may flow from a finding of liability — is simply not present where the municipality is the defendant, since the cost of defending suit and paying damages, if any, will be “spread among the general public, which is ultimately responsible for the conduct of its officials.”
Garner v. Memphis Police Dept.,
710 F.2d 240, 248 (6th Cir.1983),
aff'd,
471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985). With this in mind, it is clear that the first factor cited by the
Owen
Court, the public’s interest in compensating “victims of past abuse,” militates against derivative absolute immunity.
However, this factor may be offset by the strong interest in protecting the discretionary power of public prosecutors, in the limited instance where absolute prosecutorial immunity is invoked by the governmental entity. In
Owen
the Supreme Court suggested that constrained by threats of municipal liability state actors will be inclined to “err on the side of protecting citizens’ constitutional rights,” and to “institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights,” particularly where the infringement derives from the “systemic” interaction of several governmental officials.
Owen,
445 U.S. at 651-52 , 100 S.Ct. at 1415-16 . In the context of the public functions at issue in
Owen ,
these sentiments are undoubtedly well-founded. However, as pointed out in
Whelehan ,
where
prosecutorial
functions are concerned, the “danger of inhibiting public decisionmaking ... is to be given much greater weight.”
Whelehan,
558 F.Supp. at 1106 . As expressly stated by the Supreme Court in
Imbler,
“[t]he public trust of the prosecutor’s office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability” in a suit for damages.
Imbler,
424 U.S. at 424 , 96 S.Ct. at 992. The rationale for this greater protection of prosecutors was exhaustively detailed in
Imbler:
(1) prosecutor impartiality and vigilance could be impaired by the threat of damages actions against them; (2) actions against prosecutors would in all likelihood be frequent; (3) prosecutors required to answer in court to charges of wrongdoing would be obliged to neglect their pressing duties; (4) prosecutors are frequently required to make arguable judgment decisions under serious time constraints thus rendering them especially vulnerable to constitutional claims; (5) prosecutor discretion to call witnesses and present evidence might be impaired; (6) post-trial procedures designed to determine whether an accused has been fairly tried might be compromised if appellate judicial officers acted with “subconscious” knowl
*1189
edge that a ruling in favor of the accused could translate into damages liability for the prosecutor; (7) unlike other public functionaries, a prosecutor is constrained by “professional discipline by ... [his] peers” as well as possible criminal liability pursuant to 18 U.S.C. § 242 .
See Imbler,
424 U.S. at 424-27 , 96 S.Ct. at 992-93;
Whelehan,
558 F.Supp. at 1106 .
14
These compelling policy considerations are manifestly operative where a municipal defendant rather than a prosecutor is the subject of a section 1983 damages claim. “It can scarcely be denied that a defendant who has been acquitted of criminal charges has nothing to lose by commencing a § 1983 action against the prosecutor’s municipal employer.”
Armstead,
579 F.Supp. at 782 . The fact that it is the municipality which is the named defendant and the municipality which will bear the costs of defense and damages, if any, does not alter the fact that it is the prosecutor who is being hailed into court to answer for his or her actions. Each of the policy concerns enunciated in
Imbler
is implicated in such a suit. Time better spent in the “pressing duty of enforcing the criminal law” will inevitably be diverted to civil defense preparation and appearances. Haunted by the prospect of potential damages actions against their employers, prosecutors may well find their professional judgment and discretion compromised in determining who to charge and what witnesses to call and evidence to present. “[T]he number of claims that may be expected would still pose a significant threat to municipalities’ financial stability and consequently to their provision of important services to the public.”
Whelehan,
558 F.Supp. at 1107 . Further, as noted in
Whelehan ,
the deterrent effect of holding municipalities answerable for prosecutorial misconduct, if any, would in all likelihood be exerted against the wrong parties, inasmuch as “conscientious and law-respecting” prosecutors could be expected to exercise greater caution in the face of potential constitutional claims against their employers, while “conspicuously lawless” prosecutors, whose conduct is individually actionable in any event to the extent they exceed the bounds of their prosecutorial function, would not be unduly swayed by the threat.
Whelehan,
558 F.Supp. at 1107-08 . Perhaps most significantly, the deterrent impact outlined in
Owen
— the likelihood that policymakers will institute internal rules and procedures designed to prevent systemic injuries — is simply inapplicable in the context of a prosecutor constrained by the very nature of his or her position to make arguable “judgment calls” on short notice in areas of the law which in many if not most cases bespeak a hue of indistinct greyness. As persuasively reasoned in
Armstead :
The costs to the public from frivolous claims of malicious prosecution ... are great, and far outweigh the minimal deterrent effect of civil suits on actual prosecutorial misconduct. Whether the government’s case is weak or strong, if there is evidence establishing probable cause to believe criminal acts have been performed, the prosecutor should be given every incentive to submit the evidence to the “crucible of the judicial process so that the factfinder may consider it ... to determine where the truth lies.” These incentives are not provided if the prosecutor is to be constantly distracted by civil actions under § 1983 that require a judge and jury to second guess the propriety of his acts performed in discharging his core responsibilities.
Armstead,
579 F.Supp. at 782-83 (footnote omitted).
*1190
Because it is unnecessary to reach the point, in light of the Court’s finding of no constitutional deprivation, the Court reaches no conclusion as to whether the county shares the absolute immunity of the prosecutor, but obviously strong arguments can be made that it does.
In sum, plaintiffs’ claims against Scott County are deficient as a matter of law, accordingly, the county’s motion for summary judgment will be granted. Plaintiffs have failed to plead policy or custom with specificity. Plaintiffs have failed to make a threshold showing of deprivation. Plaintiffs have not shown that Scott County had a policy or custom of arresting without probable cause or improper questioning or separation of children from parents or deception of judicial officers which was unconstitutional and which caused them injury. Plaintiffs have not made out a valid “failure to train or supervise” claim. Scott County’s motion for summary judgment will be granted.
F. Conspiracy
In
Myers
the Eighth Circuit found that the conspiracy claims of plaintiffs against Morris, Tietz, the deputies, social workers and others were without foundation and accordingly summary judgment was entered for defendants. The court concisely summarized the plaintiffs’ conspiracy claims:
The heart of the plaintiffs’ case is their position that the children’s accounts of sexual abuse were false and the prosecutor, sheriff, sheriff’s deputies, guardians, therapists, a court-appointed attorney, and a police officer conspired among themselves and with others to extract fabricated accusations from children in order to target the plaintiffs for prosecution. The alleged purpose of the conspiracy was to invent a “sex ring” as part of a publicity campaign against child abuse and incest undertaken by the conspirators in order to advance the career of the prosecutor.
Myers,
810 F.2d at 1452 (footnote omitted). In assessing plaintiffs’ conspiracy claims, the court considered “whether [the] assertion of qualified immunity could be defeated by the charge that facially legitimate investigative and reporting functions had in reality been corrupted into a stratagem for the ventilation of false accusations.”
Myers,
810 F.2d at 1452 . Accordingly, the court scoured the record for “facts and inferences which, viewed in the plaintiffs’ favor, would create a genuine issue of improper purpose.”
Myers,
810 F.2d at 1452 . Based on its review of the record, the court concluded that “[t]here is no inference in the pleadings, records or even briefs that Morris, the sheriff and his deputies or the other alleged conspirators ... had the slightest interest in targeting these particular plaintiffs for any personal motives____ Why this diverse group of personalities and offices should have cooperated with each other in a scheme to advance R. Kathleen Morris’ career is clarified nowhere in the pleadings, records or briefs.”
Myers,
810 F.2d at 1453 . Accordingly, the court concluded that “plaintiffs’ assertions of conspiratorial purpose amount to no more than unsupported allegations of malice” uncognizable in a section 1983 action.
Myers,
810 F.2d at 1453 . The court concluded:
Many people believed that children had been abused by the plaintiffs____ A commonly held belief that a crime has been committed is not a conspiracy. Various people engaged in investigating and reporting suspected criminal activity does not amount to conspiracy. We look for a genuine factual issue of concerted activity toward an unlawful objective____
We have found inadequate record support to create a genuine issue of concerted activity directed at a common goal to achieve an unlawful purpose. Therefore, the pleading deficiencies and lack of evidence of substance sufficient to create a submissible issue of fact require the dismissal of plaintiffs’ conspiracy claims.
Myers,
810 F.2d at 1454 .
The conspiracy claims of the new plaintiffs are no more substantive than those dealt with in
Myers .
Indeed, the new plaintiffs’ conspiracy claims mirror the claims made by the original set of plaintiffs. Under the circumstances, the Eighth Circuit’s conclusions in
Myers
are fully dispositive
*1191
of plaintiffs’ conspiracy claims, and summary judgment for all defendants as to the conspiracy claims will be entered. Plaintiffs have alleged nothing more specific than malice or bad faith, and have failed to identify a genuine factual issue of concerted activity toward an unlawful objective. Defendants’ motions for summary judgment as to plaintiffs’ conspiracy claims will be granted.
15
G. Robert Rawson
Plaintiff Robert Rawson has stipulated to dismissal of all claims brought by him with the exception of an “excessive force” claim against Scott County, Sheriff Tietz, deputies Morgan, Busch and Einertson, and “others unnamed.” These defendants now move for summary judgment as to Raw-son’s excessive force claim.
Rawson was arrested November 22, 1983 at his home in Shakopee, Minnesota. Both uniformed and ununiformed officers were involved in the arrest. Plaintiff alleges that in the course of the arrest, deputy Busch and other unidentified arresting officers caused Rawson’s arm to be “twisted” behind his back while placing handcuffs on him.
16
Plaintiff alleges that he immediately notified the officers that he was in pain and asked that he be handcuffed with his arms in front, rather than in back. The deputies’ response, plaintiff alleges, was to state that they did not have the keys to the handcuffs. When plaintiff continued to protest, Deputy Busch produced a key and the handcuffs were removed and placed in front. Plaintiff now brings this action under 42 U.S.C. § 1983 , alleging that the deputies’ use of excessive force caused him to suffer a shoulder injury.
Plaintiff acknowledges that prior to the November 22,1983 incident he had a preexisting shoulder injury, suffered in the course of his employment in 1980. Plaintiff has undergone medical treatment of his shoulder since 1982. Prior to the arrest incident, plaintiff was assigned a fifteen percent permanent disability rating in connection with his shoulder problems. Plaintiff’s condition apparently continued to deteriorate up to the date of the arrest incident, as evidenced by the fact that plaintiff complained of increasing pain and discomfort and loss of motion on November 8, 1983, prior to the arrest incident. Following the arrest incident, plaintiff underwent a shoulder arthrogram, which revealed a tear of the right rotator cuff. Plaintiff was admitted to Metropolitan Medical Center on February 1,1984 and on February 4, 1984, a right shoulder acromioplasty and right rotator cuff repair surgery was performed. Plaintiff was discharged from the hospital February 9, 1984.
Allegations of brutality by law enforcement personnel apprehending a suspect or effecting an arrest are cognizable in a suit brought under section 1983.
New v. City of Minneapolis,
792 F.2d 724, 726 (8th Cir.1986). However, “§ 1983 does not grant a cause of action for every injury wrongfully inflicted by a state officer.”
Mark v. Caldwell,
754 F.2d 1260, 1261 (5th Cir.),
cert. denied,
474 U.S. 945 , 106 S.Ct. 310 , 88 L.Ed.2d 287 (1985). “In determining whether the state officer has crossed the constitutional line that would make the physical abuse actionable under Section 1983, [the Court] must inquire into the amount of force used in relationship to the need presented, the extent of the injury inflicted and the motives of the state officer. If the state officer’s action caused severe injuries, was grossly disproportionate to the need for action under the circumstances, and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under § 1983.”
Shillingford v. Holmes,
634 F.2d 263, 265 (5th
*1192
Cir.1981),
cited with approval in Raley v. Fraser,
747 F.2d 287, 289 (5th Cir.1984). “If sufficiently egregious, a deliberate use of excessive force ... can implicate the substantive fourth amendment guarantee against unreasonable seizures, the substantive due process right to be free from abusive governmental conduct ‘offensive to human dignity,' or both.”
New,
792 F.2d at 726 . In
Davis v. Forrest,
768 F.2d 257 (8th Cir.1985) the Eighth Circuit approved the use of a four-factor test in determining whether state officers have violated an arrestee’s constitutional rights through the use of excessive force: “(1) [t]he need for the application of force; (2) [t]he relationship between the need and the amount of force that was used; (3) [t]he extent of injury inflicted; and (4) [wjhether force was applied in a good faith effort to effectuate the arrest or maliciously and sadistically for the very purpose of causing harm.”
Davis,
768 F.2d at 258 .
Applying the
Davis
factors to the facts of this case, the Court finds that plaintiff has not raised a justiciable claim of “excessive force” in connection with his November 22, 1983 arrest. Viewed in a light most favorable to plaintiff, plaintiff’s claims amount to an allegation that he was handcuffed behind his back, and when he expressed pain, the cuffs were removed and he was handcuffed with his hands in front. Plaintiff has not made any showing that he was handcuffed or otherwise physically abused “maliciously and sadistically for the very purpose of causing harm.” Further, although plaintiff undoubtedly suffered some injury, the extent of the injury inflicted must be gauged in relation to the shoulder woes already experienced by him on the date of the arrest. As of that date Rawson had been diagnosed as suffering some permanent injury to his shoulder and had been under a doctor’s care for more than a year. In light of these facts, it is extremely difficult to gauge the exact extent of injury caused by the arrest incident. It appears at least as likely as not that the major portion of injury of which Rawson complains stems from the 1980 work-related incident and not from the 1983 arrest incident.
Some physical touching is a necessary corollary to every arrest. The use of force in connection with an arrest rises to the level of a constitutional violation only where the force used is excessive under the circumstances; that is, where the arresting officer’s acts literally “shock the conscience.” It seems clear in this case that plaintiff merely suffered some discomfort as a consequence of a minimal use of force in connection with a routine arrest. It is highly probative that upon plaintiff’s expression of discomfort the arresting officers removed the handcuffs in an attempt

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2091019. Public record. Not legal advice.