Whisman Ex Rel. Whisman v. Rinehart

___________

No. 95-4056

___________

JOEL WHISMAN, a minor, through *

his next friend Michelle *

Whisman; MICHELLE WHISMAN; *

MICHAEL WHISMAN; LYNN WHISMAN, *

*

Plaintiffs-Appellees, *

*

v. *

*

CHUCK RINEHART, in his *

individual capacity as Chief *

Deputy Juvenile Officer of the *

Thirty-ninth Judicial Circuit *

of the State of Missouri; MARLA *

PURSLEY, in her individual *

capacity as social worker for *

the Lawrence County Office of * Appeal from the United States

the Missouri Division of Family * District Court for the Western

Services; RUTH COX, in her * District of Missouri.

individual capacity and *

officially as social worker *

supervisor of the Lawrence *

County Office of the Missouri *

Division of Family services; *

ALFRED BLAIR, in his *

individual capacity and *

officially as County Director *

of the Lawrence County Office *

of the Missouri Division of *

Family Services; BILL JINES, in *

his individual capacity and *

officially as Chief Juvenile *

Officer of the Thirty-ninth *

Judicial Circuit of the *

State of Missouri, *

*

Defendants-Appellants. *

___________

Submitted: June 12, 1996

Filed: July 23, 1997

___________

Before ARNOLD, Chief Judge, F. GIBSON, Circuit Judge, and KORNMANN,*

District Judge.

___________

KORNMANN, District Judge.

Rinehart, Pursley, Cox, Blair, and Jines appeal the district court's1

denial of their motion to dismiss this 42 U.S.C. § 1983 action. Whismans

filed this action against defendants, juvenile officers and social workers,

claiming that defendants violated plaintiffs' constitutional rights of

familial association, denying plaintiffs due process of law. Defendants

filed a motion to dismiss, contending that plaintiffs' claims were in

essence based upon claims of violation of state laws and, therefore, are

not actionable under 42 U.S.C. § 1983, and that defendants Rinehart and

Jines are entitled to absolute immunity. Defendants further contend that

the claims against Jines, Cox and Blair are based upon respondeat superior,

an insufficient basis for liability for suit under 42 U.S. C. § 1983, that

the grandparents, Michael and Lynn Whisman, are not real parties in

interest and should be dismissed, that plaintiffs have failed to show

deprivation of a constitutional right in violation of due process, and that

defendants are entitled to absolute and qualified immunity. The District

Court denied the motion to dismiss. We affirm.

I. BACKGROUND

We set forth the facts, construing the complaint liberally. Frey v.

City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). Joel Whisman

(“Joel”) is the sixteen month old son of Michelle

*

The HONORABLE CHARLES B. KORNMANN, District Judge, United

States District Court for the District of South Dakota, sitting by

designation.

1

The Honorable Joseph E. Stevens, Jr., United States District

Judge for the Western District of Missouri.

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Whisman (“Michelle”). Michelle left Joel with a babysitter on the evening

of February 16, 1995, near her home in Aurora, Missouri. On the morning

of February 17, 1995, the babysitter contacted the Lawrence County,

Missouri, Division of Family Services and spoke with Marla Pursley

(“Pursley”), a social worker. The babysitter reported to Pursley that

Michelle had not picked up Joel as agreed and that Michelle's boyfriend had

told the babysitter that Michelle was at home "passed out drunk." Chuck

Rinehart (“Rinehart”), Chief Deputy Juvenile Officer, contacted the police.

An officer went to Michelle's home at approximately 10:00 a.m. but failed

to make contact with Michelle. Michelle contends she did not fail, at the

agreed time, to pick up Joel and was not "passed out drunk".

Pursley went to the babysitter's home, examined Joel, and found him

to be in good health. At that time, the babysitter told Pursley she had

contacted Lynn Whisman (“Lynn”), Michelle's mother and Joel's grandmother,

and that Lynn had agreed to pick up Joel from the babysitter around noon.

Pursley, after consulting with Rinehart, directed the babysitter to

immediately deliver Joel into Rinehart's custody. The babysitter did so

at approximately 11:45 a.m., driving Joel to Monett, Missouri, fourteen

miles away.

Rinehart examined Joel and drove him to Mt. Vernon, Missouri, leaving

him at the Tri-County Shelter Home. Rinehart then returned to his office

in Moneta.

Before Rinehart returned, Lynn arrived at Rinehart’s office in Moneta

and met with Bill Jines (“Jines”), the Chief Juvenile Officer and

Rinehart's supervisor. Lynn requested that Joel be delivered to her.

After Rinehart returned, Lynn requested both Rinehart and Jines to deliver

Joel to her. They refused to do so or to advise Lynn of Joel's

whereabouts. Rinehart advised Lynn to obtain a lawyer and file an

application for custody.

Rinehart and Pursley were notified on the afternoon of February 17,

1995, that Michelle was willing to sign over custody of Joel to Lynn.

Michelle and Lynn made repeated requests for

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Joel's return and the termination of his detention between February 17 and

March 1, 1995. On March 1, 1995, Michelle received in the mail copies of

a petition and Order of Temporary Legal Custody, with a letter notifying

her a hearing was planned for March 15, 1995. The letter was dated

February 27, 1995, postmarked on February 28, 1995.

The order granting temporary custody to the Division of Family

Services was ostensibly signed on February 17, 1995. Plaintiffs contend

the order was backdated and that this was a common practice used by

defendants. The petition and order were not filed until March 1, 1995, the

day Michelle received a copy of the petition and order in the mail. On

March 2, 1995, Whismans filed a request for an immediate hearing. Over the

objection of defendants, the hearing was held on March 6, 1995. Joel's

physical custody was restored to his family on March 6, 1995, seventeen

days after he was taken into custody by defendants.

II. DISCUSSION

Defendants appeal the denial of the motion to dismiss, claiming

absolute and qualified immunity. Only these issues in the present case are

appealable as a matter of right prior to a final judgment. Hafley v.

Lohman, 90 F.3d 264, 266 (8th Cir. 1996). We review de novo a district

court's denial of a motion to dismiss on the ground of immunity. Hafley

v. Lohman, 90 F.3d at 264; Brown v. Griesenauer, 970 F.2d 431, 434 (8th

Cir. 1992).

When considering a motion to dismiss, we must construe the complaint

liberally and assume all factual allegations to be true. Goss v. City of

Little Rock, 90 F.3d 306, 308 (8th Cir. 1996). We may order dismissal only

if it appears beyond a reasonable doubt that the plaintiffs can prove no

set of facts which would entitle them to relief. Goss, 90 F.3d at 308;

Frey v. City of Herculaneum, 44 F.3d at 671. "A motion to dismiss should

be granted 'as a practical matter . . . only in the unusual case in which

a

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plaintiff includes allegations that show on the face of the complaint that

there is some insuperable bar to relief.'" Frey v. City of Herculaneum,

44 F. 3d at 671 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104

S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)).

A. Absolute Immunity

Defendants allege they are entitled to absolute quasi-judicial or

quasi-prosecutorial immunity. The United States Supreme Court has

emphasized that “the official seeking absolute immunity bears the burden

of showing that such immunity is justified for the function in question.”

Burns v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934, 1939, 114 L. Ed. 2d 547

(1991). “The presumption is that qualified rather than absolute immunity

is sufficient to protect government officials in the exercise of their

duties” and, therefore, the Supreme Court has been “quite sparing” in its

recognition of absolute immunity. Burns v. Reed, 500 U.S. at 486-87, 111

S. Ct. at 1939.

The United States Supreme Court, in Imbler v. Pachtman, 424 U.S. 409,

431, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128 (1976), established the absolute

immunity of a prosecutor from a civil suit for damages under 42 U.S.C. §

1983 "in initiating a prosecution and in presenting the State's case." To

the extent that defendants are sued for initiating state judicial

proceedings seeking temporary protective custody of Joel, their "role was

functionally comparable to that of prosecutor." Thomason v. SCAN Volunteer

Services, Inc., 85 F.3d 1365, 1373 (8th Cir. 1996). The gravamen, however,

of Whismans' complaint is not based upon the institution of state court

proceedings, but upon defendants' failure to investigate, their detaining

Joel, and the claimed inordinate delay in filing state court proceedings.

Under a liberal reading of the Whismans’ complaint, defendants’ actions did

not aid in the presentation of a case to the juvenile court; they were

intentionally designed to

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avoid or unreasonably delay judicial process. These actions are not

prosecutorial in nature and do not form the basis for absolute quasi-

prosecutorial immunity.

“Judges performing judicial functions enjoy absolute immunity from

§ 1983 liability.” Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994).

Judicial immunity is extended to officials other than judges when “their

duties are functionally comparable to those of judges -- that is, because

they, too, exercise a discretionary judgment as part of their function.”

Robinson v. Freeze, 15 F.3d at 108 (quoting Antoine v. Byers & Anderson,

Inc., 508 U.S. 429, 436, 113 S. Ct. 2167, 2171, 124 L. Ed. 2d 391 (1993)).

Defendants’ claimed actions in the present case do not fall within this

category.

B. Qualified Immunity

Government officials performing discretionary functions are entitled

to qualified immunity unless they violate clearly established statutory or

constitutional rights of which a reasonable person would have known.

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed.

2d 396, (1982). We have held that "qualified immunity is an affirmative

defense, "which will be upheld on a 12(b)(6) motion only when the immunity

is established on the face of the complaint." Hafley v. Lohman, 90 F.3d

at 266 (quoting Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir. 1995)).

The qualified immunity analysis is a two-step process. Weaver v.

Clark, 45 F.3d at 1255. The threshold question is whether the plaintiff

has alleged the violation of a constitutional right. Ebmeier v. Stump, 70

F.3d 1012, 1013 (8th Cir. 1995) (quoting Cole v. Bone, 993 F.2d 1328, 1332

(8th Cir. 1993)). If plaintiffs meet this standard, we next determine

"whether that right was 'clearly established' at the time of the alleged

violation." Weaver v. Clark, 45 F.3d at 1255. “A right is ‘clearly

established’ when the

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contours of the right are sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Birkenholz

v. Sluyter, 857 F.2d 1214, 1216 (8th Cir. 1988). “In determining whether

the legal right at issue is clearly established, this circuit applies a

flexible standard, requiring some, but not precise factual correspondence

with precedent, and demanding that officials apply general, well-developed

legal principles.” J.H.H. v. O’Hara, 878 F.2d 240, 243 (8th Cir. 1989).

Qualified immunity is usually raised by a motion for summary judgment

after a limited amount of discovery has been conducted to determine whether

defendants acted objectively in a reasonable manner and whether a

plaintiff’s rights were clearly established at the time of the alleged

deprivation. See Murphy v. Morris, 849 F.2d 1101, 1103 (8th Cir. 1988).

This is an objective standard. The standard is to be applied to a

particular defendant’s conduct as a question of law and is to be decided

by the court prior to trial. Swenson v. Trickey, 995 F.2d 132, 133 (8th

Cir. 1993). We review the inquiry on a motion to dismiss by accepting all

well pleaded facts in the complaint as true.

1. MICHELLE AND JOEL WHISMAN’S CLAIMS

Michelle has alleged that defendants' actions violated her

constitutional right to not be deprived of the custody of her son without

due process of law. Parents have a recognized liberty interest in the

care, custody, and management of their children. Myers v. Morris, 810 F.2d

1437, 1462 (8th Cir. 1987). Both parents and children have a liberty

interest in the care and companionship of each other. See Lehr v.

Robertson, 463 U.S. 248, 258, 103 S. Ct. 2985, 2991, 77 L. Ed. 2d 614

(1983). ("[T]he relationship of love and duty in a recognized family unit

is an interest in liberty entitled to constitutional protection."). Myers

v. Morris, 810 F.2d at 1462. That liberty interest "is limited by the

compelling governmental interest in protection of minor children,

particularly

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in circumstances where the protection is considered necessary as against

the parents themselves." Id.

We take a broad view of what constitutes "clearly established" under

the qualified immunity analysis. Munz v. Michael, 28 F.3d 795, 799 (8th

Cir. 1994). The balance favors the plaintiffs when the test is based

solely on the allegations in the complaint. Hafley v. Lohman, 90 F.3d at

267 (balancing an employee's First Amendment rights against a public

employer's interests). We have held that “when a state official pursuing

a child abuse investigation takes an action which would otherwise

unconstitutionally disrupt familial integrity, he or she is entitled to

qualified immunity, if such action is properly founded upon a reasonable

suspicion of child abuse.” Thomason v. SCAN Volunteer Services, 85 F.3d

at 1371.

This does not appear to be a case of balancing the parent’s liberty

interest against the state's interest in protecting the child. Before Joel

was removed to defendants’ custody, defendants were advised that Lynn,

Joel's grandmother, had agreed to pick up Joel by noon. The babysitter

had contacted Lynn and thus, arguably, was entirely comfortable with Lynn’s

prompt response and plan to pick up Joel. Defendants blocked this

reasonable arrangement, which arrangement might have been authorized or

directed by Michelle. Defendants apparently had no information to the

contrary. Defendants knew there was no indication of any physical neglect

of Joel, no indication of any immediate threat to his welfare and no

indication of any criminal activity by Michelle or anyone else. All they

apparently had was third hand hearsay as to Michelle being intoxicated

while the child was being cared for by a babysitter. There was not, under

the allegations of the complaint, any reasonable suspicion of child abuse

such as was present in Thomason v. SCAN Volunteer Services, Inc., supra.

As we have already observed, rights of parents and children, in such a

relationship, are not absolute. “The intangible fibers that

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connect parent and child have infinite variety. . . . It is self-evident

that they are sufficiently vital to merit constitutional protection in

appropriate cases.” Lehr v. Robertson, 463 U.S. at 256, 103 S. Ct. at 2290

(emphasis added). We are unwilling to conclude that the case before us is

not such an appropriate case. The allegations here as to Michelle and Joel

are totally unlike the allegations and the factual scenario in Ebmeier v.

Stump, supra, where we agreed with the district court that the actions of

the defendants were objectively reasonable and where there was no violation

of a constitutionally protected liberty interest. As in Thomason, our

holding is limited to the claimed facts of this case. Despite repeated

attempts to retrieve Joel from defendants' custody, defendants refused to

return Joel. No investigation was done to determine whether it was

necessary or even advisable to take Joel into custody in the first place

and no investigation was ever done as to the possibility of returning Joel

to his mother, grandmother or anyone else designated by Michelle. We

accept as true, for the purposes of a motion to dismiss, that the state had

no compelling governmental interest in taking custody of Joel and there was

no reasonable suspicion of child abuse or neglect.

Defendants contend they were acting under a state court order. Yet

no state court order was filed until 13 days after defendants had taken

Joel into custody. Orders of this type are not effective until filed. See

Nance v Nance, 880 S.W.2d 341, 345 (Mo. App. 1994). Defendants attempted

to delay the hearing and Joel's return to his mother, in clear

contravention of Michelle's and Joel's rights. Michelle, on her own or

acting through her mother, had a clearly established right to custody of

Joel, of which right defendants reasonably should have known. Joel had a

corresponding clearly established right to familial association with his

mother. Defendants have not overcome the threshold inquiry with respect

to

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Michelle’s and Joel’s claims. To the contrary, the threshold question is

answered in favor of Michelle and Joel.

Even if defendants had a right to take temporary custody of Joel,

defendants had a corresponding obligation to afford Michelle and Joel an

adequate post-deprivation hearing. Doe v. Hennepin County, 858 F.2d 1325,

1329 (8th Cir. 1988). The right to an adequate post-deprivation hearing

was clearly established in February of 1995. Defendants scheduled the

hearing for March 15, 1995, nearly a month after taking Joel into custody.

Further, defendants objected to an earlier hearing, claiming administrative

inconvenience. Michelle’s and Joel’s first opportunity for a due process

hearing was seventeen days after Joel was taken into custody. Under the

facts of this case, seventeen days was not a prompt hearing.

Defendants contend that plaintiffs could have obtained a lawyer and

availed themselves of certain procedural remedies at an earlier time, thus

satisfying their right to due process. We cannot accept this contention.

There may be some analogy in observing that any person whose clear

constitutional rights are violated has the right to later employ counsel.

When the state deprives parents and children of their right to familial

integrity, even in an emergency situation, without a prior due process

hearing, the state has the burden to initiate prompt judicial proceedings

to provide a post deprivation hearing. Weller v. Dep’t. of Soc. Serv. for

Baltimore, 901 F.2d 387, 396 (4th Cir. 1990). The Second Circuit held,

in Duchesne v. Sugarman, 566 F.2d 817, 828 (2nd Cir. 1977):

In this situation, the state cannot constitutionally “sit

back and wait” for the parent to institute judicial

proceedings. It “cannot . . . [adopt] for itself an attitude

of ‘if you don’t like it, sue.’” The burden of initiating

judicial review must be shouldered by the government. We deal

here with an uneven situation in which the government has a far

greater familiarity with the legal procedures available for

testing its action.

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In such a case, the state cannot be allowed to take action

depriving individuals of a most basic and essential liberty

interest which those uneducated and uninformed in legal

intricacies may allow to go unchallenged for a long period of

time.

We find Duchesne particularly persuasive where defendants are alleged, in

the present case, to have provided plaintiffs with false information as to

how they should proceed. The fact that other remedies may have been

available to plaintiffs to secure their constitutional rights to a post-

deprivation hearing does not relieve defendants of their obligation to

provide such a hearing. Of even more concern is the failure to provide

Joel his right to a prompt post-deprivation hearing; he was clearly not in

a position to secure that right for himself.

Defendants contend the supervisory officials, Jines, Cox and Blair,

are immune from liability. Clearly, claims based upon respondeat superior

are not cognizable under 42 U.S.C. § 1983. Frey v. City of Herculaneum,

44 F.3d at 672. The claims against the supervisory officials, however, are

based upon failure to properly train and supervise as well as creating,

encouraging and following the unconstitutional custom and practice of

detaining children for thirty days without a due process hearing. Both

these claims are cognizable under 42 U.S.C. § 1983. Tilson v. Forest City

Police Department, 28 F.3d 802, 806 (8th Cir. 1994); Weiler v. Purkett, 104

F.3d 149, 151 (8th Cir. 1997).

2. MICHAEL AND LYNN WHISMAN’S CLAIMS

Defendants contend Lynn and Michael Whisman, Joel's grandparents,

have failed to allege the violation of a constitutional right. The

grandparents alleged in the complaint that they had the right to intervene

in any juvenile court proceeding concerning Joel, which right defendants

deprived them of without due process of law. Mo. Rev. Stat. § 211.177.1

provides:

A grandparent shall have a right to intervene in any proceeding

initiated pursuant to the provisions of this

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chapter, in which the custody of a grandchild is in issue,

unless the juvenile judge decides after considering a motion to

intervene by the grandparent that such intervention is against

the best interest of the child.

Further, Rule 111.02(b) of the Missouri Juvenile Court Rules provides:

When a juvenile is taken into judicial custody, the juvenile

shall not remain in custody but shall be released at once to

the juvenile’s custodian or some other suitable person, unless;

(1) the court has ordered the juvenile to be in detention; or

(2) temporary detention has been ordered pursuant to Rule

111.06; or

(3) the juvenile was taken into protective custody and the

court determines the conditions requiring protective custody

continue to exist.

The complaint alleges that at the time Lynn initially requested that Joel

be returned to her, a request immediately joined in by Michelle, and during

the next twelve days, there was no court order for detention. In fact, the

complaint alleges that Lynn was told on February 17, 1995, that a court

order had to be signed for the process to begin and that it would take 30

days to obtain a court order. The grandparents allege that these actions

prevented them from exercising their statutory rights as grandparents to

intervene in the juvenile proceeding and such actions constitute a denial

of their rights without due process.

The Missouri Court of Appeals held in Ruth v. State of Missouri, 830

S.W.2d 528, 530 (Mo. App. 1992), that no statute confers upon a grandparent

an unconditional right to intervene in juvenile court proceedings

concerning the custody of a child. In 1993, the Missouri Legislature

enacted Mo. Rev. Stat. § 211.177.1 which mandates the right to intervention

unless the juvenile judge decides, after considering the motion of the

grandparents, that the requested intervention is contrary to the best

interest of the child.

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Alleged violations of state laws, state-agency regulations, and even

state court orders do not by themselves state a claim under 42 U.S.C.§

1983. Only federal rights are guarded and vindicated by such statute.

Ebmeier v. Stump, 70 F.3d at 1013. Constitutional significance may attach

only to certain interests created by state law and it is clear that not

every transgression of state law may do double duty as a constitutional

violation. Id. We must be extremely careful in examining claimed violations

of state laws, regulations and court orders. Only in very limited and

obvious circumstances will federal constitutional significance attach in

these matters. “There is a body of law, to be sure, holding that state law

may create a ‘liberty interest’ protected by the Fourteenth Amendment. If,

for example, a state statute gives ‘specific directives to the decision

maker that if the (statute’s) substantive predicates are present, a

particular outcome must follow,’ a ‘liberty interest’ protected by the

Fourteenth Amendment is created.” Bagley v. Rogerson, 5 F.3d 325, 328 (8th

Cir. 1993) (quoting Kentucky Dept. of Corrections v. Thompson, 490 U.S.

454, 463, 109 S. Ct. 1904, 1910, 104 L. Ed. 2d 506 (1989)).

Michael and Lynn advance the argument that they have a liberty

interest in the custody of their grandchildren. “[W]e reach the more

fundamental question whether . . . a natural grandparent’s interest in the

society of her grandchildren, though an interest rooted in powerful

emotions, is a liberty interest under the due process clause. If the

grandchildren are in their parents’ custody, the answer is probably no .

. . A more difficult question is presented where, as here, the

grandchildren are not in the parents’ custody.” Ellis v. Hamilton, 669

F.2d 510, 513 (7th Cir. 1982). The Whismans allege the impacts of the

defendants’ conduct on each individual and on the family as a whole. These

are significant allegations under the plurality opinion in Moore v. City

of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), a

case in which a zoning ordinance which prevented a

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grandmother from living with her grandson was struck down. The Court was

there concerned with the interests of the child as well as the grandparent.

It is also significant that, in the present case, there was no contest

between the mother and the grandparents. They were united in interest in

attempting to restore the family unit.

We are also “under a duty to examine the complaint to determine if

the allegations provide for relief on any possible theory,” even if it is

a theory not advanced by the grandparents. Harrison v. Springdale Water

& Sewer Comm’n, 780 F.2d 1422, 1426 (8th Cir. 1986). We held over nine

years before Joel was taken into custody that “access to the courts is a

fundamental right of every citizen.” Harrison, 780 F.2d at 1427. The

Missouri Legislature, in 1993, provided grandparents guaranteed access to

the courts by allowing grandparents to file a motion to intervene in

juvenile court proceedings. Mo. Rev. Stat. § 211.177.1. Thus, Michael and

Lynn Whisman had a clearly established right in 1995 to petition the

Missouri juvenile court for custody of Joel. Grandparents who wish to seek

to intervene should receive “whatever process is due in connection with the

determination of whether” intervention is in the child’s best interests.

Kentucky Dep’t. of Corrections v. Thompson, 490 U.S. 454, 463 (1989).

Government action designed to prevent an individual from utilizing

legal remedies may infringe upon the First Amendment right to petition the

courts. In re Worker’s Compensation Refund, 46 F.3d 813, 822 (8th Cir.

1995). The complaint alleges that defendants intentionally failed to

initiate juvenile court proceedings until March 1, 1995. Defendants were

aware that the grandparents desired to obtain custody of Joel and that

Michelle had authorized it. Instead of promptly initiating proceedings

wherein the grandparents could petition to intervene, defendants told Lynn

that they could do nothing until such proceedings were initiated and that

it would take thirty days to initiate

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proceedings. Defendants’ alleged actions in preventing the grandparents

from petitioning the court for custody of Joel state a cause of action for

violation of their First Amendment rights to access to the courts. The

Missouri statute did not authorize grandparents to initiate any custody

proceeding. It authorized intervention and defendants blocked such right

by refusing to act to initiate the proceeding. Plaintiffs have alleged the

violation of a clearly established constitutional right of which a

reasonable person would have known. Defendants’ motion to dismiss on the

grounds of qualified immunity was therefore properly denied.

Conclusion

For the foregoing reasons, the order of the District Court is

affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

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