# Appendix — Sweptson v. Snell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1722%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 499 U.S. 976 ## Text GUT L GVO — | eepreme Cour, us] FILED FEB 2 7 1991 OFFICE OF THE BuxaX No. In The SUPREME COURT OF THE UNITED STATES October Term, 1990 MICHAEL SWEPSTON, PAM PADLEY, BARBARA SIECK, and BENITA LEVINGSTON, Petitioners, vs. CLARK DAVENPORT SNELL, SHARON RUTH SNELL, JIM R. SNELL, BETH SNELI., JASON SNELL, BRITTANY SNELL, PATRICIA JEAN TURTLE, and JESSE SANDERS, Respondents, APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Richard L. Freeman Assistant General Counsel Department of Human Services P.O. Box 53025 Oklahoma City, OK 73152-3025 (405) 521-3638 Attorney of Record for Petitioners Michael Swepston, Pam Padley, Barbara Sieck, and Benita Levingston APPENDIX 1 OPINION APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Filed November 30, 1990 UNITED STATES COURT OF APPEALS TENTH CIRCUIT CLARK DAVENPORT ) SNELL; SHARON SNELL, ) individuals, husband) and wife; JIM R. ) SNELL, an indivi- ) dual; BETH SNELL, a ) minor child by her ) next friends and ) parents Clark and ) Sharon Snell; JASON ) SNELL, a minor child) by his next friends ) and parents, Clark ) and Sharon Snell; ) BRITTANY SNELL, a ) minor child by her ) next friends and ) parents Clark and ) Sharon Snell; ) PATRICIA JEAN ) TURTLE, by her next ) friends and legal ) guardians Clark and ) Sharon Snell; and ) JESSE SANDERS, by ) his next friends and) legal guardians ) Clark and Sharon ) Snell, ) ) ) ) ) ) ) ) ) Plaintiffs-Appellees vs. CONLEY TUNNELL; LISSA VERNON; MARY ASBURY; THE Sase No. 88-2879 (Filed November 30, 1990) APP. 1 HONORABLE SIDNEY D. BROWN; and STATE OF OKLAHOMA ex rel. The Department of Human Services, Defendants, and MICHAEL SWEPTSON; BARBARA SIECK; BENITA LEVINGSTON; and PAMELA PADLEY, Defendants- Appellants. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. CIV-87-1812-P) David A. Brown, Assistant General Counsel (Charles Lee Waters, General Counsel, Roger Stuart and Richard L. Freeman, Jr. Assistant General Counsel, with him on the brief), Legal Division, Department of Human Services, Oklahoma City, Oklahoma, for Defendants-Appellants. a APP. 1 Marjorie Ramana (Allan DeVore with her on the brief), The DeVore Law Firm, Oklahoma City, Oklahoma, for Plaintiffs-Appellices. Before SEYMOUR and BALDOCK, Circuit Judges and SAFFELS, District Judge.~ BALDOCK, Circuit Judge. We should be careful to get out of an experience only the wisdom that is in it--and stop there; lest we be like the cat that sits down on a hot stove-lid. She will never sit down on a hot stove-lid again--and that is well; but she will never sit down ona cold one any more. Pudd'nhead Wilson's New Calendar. I M. Twain, Following the Equator ch. XI at 107 (Harper Bros. ed.). Plaintiffs instituted this action seeking injunctive relief and damages under “The Honorable Dale E. Saffels, United States District Judge for the District of Kansas, sitting by designation. 3 APP. 1 42 U.S.C. §§ 1983 & 1985 based upon an investigation by the Oklahoma Department of Human Services (DHS) concerning allegations of child abuse. The district court denied injunctive relief, the § 1985 claim was dismissed, and only four defendants remain after district court proceedings. In this appeal, we are required to decide whether these remaining defendants, DHS employees, are entitled to absolute or qualified immunity for activities which occurred during an investigation of a shelter/home for children operated by plaintiffs- appellees, Clark and Sharon Snell. Defendants-appellants, Michael Sweptson (County Supervisor; Oklahoma County Child Welfare Field Services, Division of Children and Youth Services (DCYS)), Barbara Sieck (Social Services Supervisor; Oklahoma County Child Welfare Unit), Benita Levingston APP. 1 (Social Worker; Oklahoma County Child Welfare Unit), and Pam Padley (Assistant General Counsel; DHS) appeal from the district court's denial of absolute and qualified immunity. We review the denial of immunity de novo as a final decision under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); McEvoy v. Shoemaker, 882 F.2d 463, 465 (10th Cir. 1989). Given the facts, we agree with the district court that the three non-attorney defendants challenging the denial of absolute immunity (Sweptson, Sieck and Levingston) were acting in an investigative, rather than a prosecutorial capacity, and accordingly, we affirm the denial of absolute immunity for these defendants. On narrower grounds, we affirm the district court's decision that the defendant DHS attorney (Padley) is not entitled to APP. 1 absolute immunity. We determine that defendant Padley, though acting in a prosecutorial capacity, did so without authority when she applied to the district court for assistance with the investigation of the Snells. As to the defense of qualified immunity, we agree with the district court that obtaining a court order, used to gain entry into the Snell home, based upon information known to be false Clearly violates the fourth amendment, and a reasonable public official would have known this. Thus, we affirm the denial of qualified immunity for such conduct. I. At the outset, we note that our review of the district court's order is limited to deciding whether absolute or qualified immunity was properly denied to these four remaining defendants given the trial court's 6 APP. 1 decision that the plaintiffs could proceed to trial. Snell v. Tunnell, 698 F. Supp. 1542 (W.D. Okla. 1988). Although the district court resolved other issues in its lengthy opinion, we do not pass on the merits of “he issues which encompass the grant of summary judgment in favor of other defendants,* including Mary Asbury (District Supervisor; Child Welfare Field Services, DcYSs) and Conley Tunnell (Assistant Director; DHS; DCYS). We also do not pass on claims involving the grant of qualified immunity to the defendants. In their brief, the Snells_ have challenged the district court's grant of *The district court dismissed Judge Brown as a defendant. Snell, 698 F.Supp. at 1543 n.l. The parties stipulated to the dismissal of defendant Lissa Vernon. Id. at 1544. Summary judgment was granted in favor of defendants Asbury, id. at 1565, and Tunnell, id. at 1544. 7 APP. 1 qualified immunity to the defendants on the Snells' due process (liberty) and privacy claims. Brief of Plaintiffs-Appellees at 37-39. We have recognized the doctrine of pendent appellate jurisdiction to decide otherwise non-appealable issues, see State of Colo. v. Idarado Mining Co., 916 F.2d 1486, -_, (10th Cir. 1990) (1990 WL 150137 at 24-25]; Tri-State Generation & Transmission v. Shoshone River Power, 874 F.2d 1346, 1351-53 (10th Cir. 1989), and have applied the doctrine in cases involving claims of immunity to determine that a plaintiff's substantive claims were barred, see Petrini v. Howard, No. 88-2204, slip op. at 2-3 (10th Cir. Nov. 15, 1990) [1990 WL 176845 at 2); Hill v. Department of the Air Force, 884 F.2d 1318, 1320 (10th Cir. 1989), cert. denied, 110 S. Ct. 2206 (1990); see also Dube v. State Univ., 900 F.2d 587, 598- 8 APP. 1 600 (2d Cir. 1990); 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure §3914.20 (1990 Supp.). However, even assuming that our jurisdiction could extend to a plaintiff's cross-appeal from a defendant's interlocutory appeal of a denial of immunity, see Barrett v. United States, 798 F.2d 565, 571 (2d Cir. 1986) (cross appeal of grant of immunity permitted where issues same as direct appeal of denial of immunity to other defendants), the plaintiffs in this case have not filed a cross-appeal. In all of the above cases, the court of appeals considered an exercise of jurisdiction to consider otherwise non- appealable issues raised by an appellant or cross-appellant. Thus, in Idarado, Tri- State, Petrini, Hill, Dube and Barrett, the only pendent issues considered were those raised by an appealing party. In no case 9 APP. 1 did a court reach out to decide an issuc when the party adversely affected had not appealed the adverse order. Accordingly, we Simply do not have jurisdiction over the duc process and privacy issues. Appellate resolution of those issues must await another day. A. Plaintiffs Clark and Sharon Snell use their private home as a foster care environment for children whose natural parents are unable to care for them.* The “The district court has done an admirable job of distilling the pleadings into a lengthy set of undisputed facts, and facts deemed established for purposes of Summary judgment, viewing the evidence in the light most favorable to the plaintiffs who opposed a grant of absolute or qualified immunity, Anderson v. Liberty pony. 477 U.S. 242, 255 (1986). See Snell, 698 F.Supp. at 1548-56. Our factual summary 10 APP. 1 Snells’ natural and adopted children, as well as children the Snells care for under various guardianship and custody arrangements, reside in the home. On August 26, 1987, defendant Padley applied to the juvenile division of the state district court seeking the court's assistance with a DHS investigation, after the district attorney, who normally would file such an application, refused repeatedly to become involved. The supporting grounds of the application provided in part: i. DHS has received allegations of neglect, lack of supervision, child prostitution and child pornography in the Snell's home in violation of 21 O.S. §§ 843-48. 2. DHS has received allegations that the Snells are effectively operating an unlicensed emergency shelter, child care facility, or foster home in violation of the Oklahoma Child Care Facilities Licensing Act, 10 O.S. §401 et seg. 11 APP. 1 3% DHS has been unable to complete the child abuse investigation due to lack of cooperation by the Snells. 4. Due to the child abuse allega- tions and reports received of numerous children being placed into and out of the Snell's home, DHS is concerned regarding the health, safety and welfare of the children residing with the Snells. The number and identity of the children residing with the Snells is unknown. In _ re Child Abuse and Licensing Investi- gations of the Clark and Sharon Snell Home by the Oklahoma Dep't of Human Serv., Application at 1 (Okla. County Dist. Ct. Aug. 26, 1987), reproduced in rec. vol. I, doc. 1, ex. A. Primarily on the strength of the allegations of pornography, prostitution and denial of access to the children, the State district judge issued an ex parte order authorizing DHS personnel, accompanied by the police, to enter the Snell residence and investigate these allegations. In re Child Abuse and Licensing Investigations of 12 APP. 1 the Clark and Sharon Snell Home by the Oklahoma Dep't of Human Serv., Ex Parte Order at 1 (Okla. County Dist. Ct. Aug. 26, 1987), reproduced in rec. vol. III, doc. 114, ex. A. The ex parte order directed that the children in the Snell home be placed in protective custody if the Snells could not produce a valid custody order for each child or if the welfare of the children was endangered. Id. at 1-2. Because the Snells could not produce documents evidencing court-ordered custody, seven children were removed from the home and Placed in a juvenile shelter. At a subsequent hearing, the police detective involved in the case testified that the only allegations of child pornography came from defendants Asbury, Levingston and Sweptson. Rec. vol. III, doc. 114, ex. 0 at 68; see also id., ex. W at 18-19 (tracing 13 APP. 1 pornography and prostitution allegations to defendant Levingston). Although two complaints about the lack of supervision and order at the Snell residence had occurred, Snell. 698 F. Supp. at 1549, the child prostitution and pornography allegations were groundless, assuming arguendo that such allegations were ever received. B. The Snells and certain DHS employees have experienced less than an amicable relationship. A variety of alleged complaints against the Snells, ranging from improper supervision to failure to return children, have been processed by DHS over the years. The Snells have complained in turn about various DHS employees and custody decisions made by DHS. In 1986, the Snells complained to DHS on two occasions concerning DHS social 14 APP. 1 workers. First, the Snells complained about a DHS worker's “inappropriate visit" to their home and questioning of Mrs. Snell. mes Wen. £EZ, Goes 114, ex. P at 3. Second, they disagreed with a DHS determination that a child who had been placed in the Snell home for over one year should be returned to the natural mother. Id. at 4. The Snells were uncertain that the mother was capable of taking care of the child and complained that a DHS worker had inaccurately reported information furnished by them. Id. In February 1987, they complained to the DHS, the governor's, the attorney general's and the district attorney's offices about a DHS worker handling a case in another county. Id. The Snells believed that the case was mishandled and the father involved was using AFDC payments to pay restitution rather than feed 15 _ EE APP. 1 his children. Id. According to the Snells, the children were neglected, lacked adequate food and may have been subject to physical abuse. Id. Allegedly, DHS revealed Sharon Snell's name to the father and the father threatened her. Id. The Snells have had frequent visits from DHS personnel since they adopted their first child in 1981. Id. at 1. They list nine different DHS workers who have visited the home and state: "We have never denied agents of the Oklahoma Department of Human Services access to our home." Id. at 1-2. In April 1987, two DHS Licensing Division employees (Prins Anderson and Judy Collins) made an on-site visit to resolve various complaints about the Snells and to determine whether they were in compliance with state licensing laws. The DHS employees determined that “the Snells are not in 16 APP. 1 violation of the Child Care Facilities Licensing Act." Rec. vol. III, doc. 114, ex. S at 2. DHS social worker David McClain investigated the Snell home in July 1987, based upon an anonymous complaint of neglect and inadequate supervision. See rec. vol. II, doc. 115, ex. U. Plaintiffs' evidence indicates that the report generated by this visit did not indicate a problem with care: The interior of the home was remarkably clean and organized with this many children about the house. The worker counted 11 children in the house. The children were clean; appeared to be in good physical health and appropriately clothed. There was evidence of daily housekeeping activity. The older children were assigned age appropriate chores to be done on a daily basis. The children gave the appearance of being well fed and happy to be a part of this household. 17 APP. 1 Rec. vol. II, doc. 115, ex. V (Form CWS 14- A). The Snells would not identify the children in their care and McClain raised several questions about this in his report. While McClain was present, the ‘The report contains the following questions: 1) How many of these children were legally adopted by the Snells' [sic]? 2) How many children reside in this home by actual parental agreement Or a guardianship order? 3) Are Mr. and Mrs. Snell continuing to provide short term/long term care for children in the absence of their parents? 4) Is the Snell home an actual extension of the Jesus House thereby requiring a certificate of need and other licensing requirements as set forth by the State of Oklahoma? 5) Are the donations received by Mr. and Mrs. Snell going directly to provide for these children's needs? 6) Are the lives of these children in jeopardy because this home appears to be exempt from all- City-County-State-Federal licensing requirements as well as 18 APP. 1 Snells were in telephonic contact with their counsel. The Snells maintain that McClain indicated such disclosure was voluntary. Rec... VOL. tile GOOG. 444, OG8- F Ot Be TF Be They told McClain that the children in the home were adopted or were wards pursuant to legal guardianship or were there by parental consent. Id. McClain's report, also signed by defendant Sweptson, indicates that the investigative findings were uncertain and that a copy of the report would be provided for information only toc the district attorney for Oklahoma County Juvenile Court. Rec. vol. Boe @OQs. AbSe Ge Ve The report's recommendation to the district attorney for the Oklahoma County Criminal prudent judicial review concerning issues of custody and placement of minor children in the absence of their parents? Rec. VOL. II, Goc. 145, GR. Ve 19 _ APP. 1 Court was that additional investigation concerning possible criminal prosecution of "non-accidental physical or mental injury, sexual abuse or neglect appears indicated." Id. This recommendation is paradoxical given that the report makes no mention of such allegations. * The Snells maintain that during his investigation, McClain made derogatory comments concerning them to neighbors and told one that the Snells had been “run out of Bethany." See rec. vol. I, doc. 63 at 9; Id. vol. III, doc. 114, ex. D at 42. This prompted a July 20, 1987 meeting between Clark Snell and DHS officials in which Snell “Plaintiffs have provided evidence which indicates that the CWS 14-A report produced for discovery differs from the original and omits allegations of child abuse, child pornography and child prostitution. See Rec. vol. II, doc. 115, ex. J at 39-41. 20 APP. 1 aired his complaints about DHS. These complaints were referred to Lissa Vernon, the supervisor of Child Welfare Field Services, DCYS, who in turn referred them to Mary Asbury, the district supervisor in Child Welfare Field Services. Rec. supp. vol. II, doc. 150, ex. A at 24-25. Vernon also referred a complaint about the Snells to Asbury. In a memo dated July 23, 1987, Asbury discussed various allegations against the Snells: 1) they misled unnamed parents into granting them custody of children as an alternative to child welfare services (CWS), 2) they frequently complained about DHS personnel, 3) the Snelis* reporting of abuse and neglect to CWS “was more like harassment as the Snells called demanding an investigation be done immediately, several times in a 21 ———— APP. 1 extended periods. Id. at 14-15. According to Mrs. Snell, defendant Levingston attempted to talk to her, but Mrs. Snell went into her bedroom and attempted to phonc her husband at work and Sister Ruth at Jesus House. Unable to reach them, Mrs. Snell finally reached Eloise Harris, a DHS social worker. Id. at 11-13 Again, according to Mrs. Snell, defendant Levingston grabbed the telephone, slammed it down and said: "'If you don't let me--If you don't talk to me, I will get the police in here and they will make you talk to me.'" Id. The social workers then insisted on seeing the paperwork on the children “and if I did not cooperate, . . . the police would force me to cooperate. That's what they were there for." Id. at 15. Mrs. Snell then went from the bedroom to a desk in the living room which had the 50 APP. 1 files on the children. According to mrs. Sneil, upon seeing the first court order on one of the children, defendant Sieck said: “'That is not a legal document because it was rubber stamped [by the Oklahoma County District Court Clerk].'" Id. at 16. In the presence of defendant Levingston, defendant Sieck then directed the police: "To load up these kids, this lady does not have any legal documents on these kids." Id. Mrs. Snell then returned to her bedroom and gave the housekeeper permission to show the records to the social workers and police. Id. at 18. During this time, Mrs. Snell tried to call Hilde Lillegaard at DHS, not realizing that Lillegaard was present and making repeated apologies. Id. at 18, 34. Over an hour later, after the police and social workers had gone through all of the Snells' files, the police had a list of 51 APP. 1 seven names for which no court ,custody documents had been found. Id. at 23; Id. ex. E at 4. Sergeant Johnson asked defendants Sieck and Levingston if the seven children could be left with the Snells overnight because the Snells were likely to get the matter taken care of the next day. Id. ex. C at 24; Id. ex. D at 4. Defendant Sieck responded: “They could run with the kids. It's happened before.*” Id. ex. C at 25. according to the sergeant, he was told by DHS workers that the court's order directed removal of the children in the absence of valid court orders concerning custody and that the circumstances in the home would not allow for interviews with the children. Id. ex. D at 4. accordingly, Sergeant Johnson decided to take the children into custody. APP. 1 All during this time, the children had been placed in groups. Id. Defendant Levingston inquired about Patricia Turtic, @ child with medical problems. According to Mrs. Snell, defendant Levingston then told @ nearby poli ec officer that, "'no Indian tribe would ever leave a child in this home.'" After the decision had been made to take the children, Mrs. Snell asked defendants Sieck and Levingston if two of the seven children could remain because efforts were being made to contact their matural mother. Id. ex. C at 30. This request was denied by both defendants with the comment that the natural mother could see her children at the shelter. Id. As the DHS workers gathered the seven children, one of the children ran upstairs in an effort to hide and was retrieved forcibly by defendant Sieck. Id. at 31-32. 53 APP. 1 At approximately 7:30 p.m., the seven “hildren were taken in the rain, without blankets, without car seats for the very young and without necessary medicine,** to the Oklahoma County Juvenile Center. Id. ex. D at 35, ex. E at 5, ex. F. When one of the bystanders asked if blankets would be used to cover the children given the rain, defendant Levingston reportedly said: “'Children of this culture are used to the elements.'" Id., ex. D at 35. H. The next day, the Snells learned from counsel of the damaging child prostitution ‘inefendant Levingston indicates that Mrs. Snell and other adults at the Snell home refused to cooperate in getting the children ready to leave and became somewhat abusive. Rec. vol. I, doc. 96, ex. 6 at 3. This is corroborated by Sergeant Johnson, who indicated that the situation deteriorated as the children were removed. Id. at ex. 7 at 5. 54 APP. 1 and pornography alicgations. Id. at 53-54. Not revealing these damaging allegations earlier is directly contrary to the spirit, and the letter, of DHS regulations concerning mandatory disclosure by social workers in the course of child abuse investigations. See DHS Child Welfare Services-Child Abuse/Preventive Services Procedures §§ 622.4, 623.7(A)** (10/1/ **Under the title of “Due Process Procedures,” the DHS manual provides: A. o A . arents must receive a4 clear, precise explanation of allegations that have been presented. The explanation of allegations must occur immediately upon initial contact with the parent(s)/quardian. The worker also advises them of the agency's role in relation to the allegation, and of the statutes that exist to protect children in Oklahoma. DHS Child Welfare Services-Child Abuse/ Prevention Services Procedures §623.7(A) (10/1/84), reproduced in rec. vol. III, doc. 114, ex. I. 55 — L&T APP. 1 84), reproduced in rec. vol. III, doc. 114, ex. I. At the hearing of August 27, 1987, detective Einhorn testified that the allegations of child prostitution and pornography arose in DHS through Asbury** and defendants Levingston and Sweptson. Rec. vol. III, doc. 114, ex. 9 at 68. On cross-examination, he denied having any other information. The allegations of child prostitution and pornography were not even colorable, and all involved concede that a removal order plainly would be unwarranted merely to learn the identities of the children in the Snell household, their relationship to the Snells, and to conduct another review of the licensing situation. See rec. vol. III, doc. 114,; ex. C at 277- **The federal district court appears not to have considered this evidence linking Asbury to the ultimate issuance of the order. 56 APP. 1 78 (Padley); ex. N at 60 (Collins); ex. Dl at 43 (Judge Brown). Il. Defendants first contend that they are entitled to absolute immunity ir this § 1983 action because their activities as social workers are intimately associated with the judicial process. According to defendants, “(rJesponding and investigating reports of child abuse or neglect, requesting assistance from the court in making that response, and accompanying police officers executing orders of the juvenile court are functions intimately associated with the judicial phase of the juvenile court's jurisdiction." Brief of Defendants- Appellants at 29. We reject this broad proposed standard as out of step with absolute immunity precedent. 57 — APP. 1 The Supreme Court has recognized the defense of absolute immunity from civil rights suits in several well-established cortexts involving the judicial process. A judge acting in his judicial capacity is absolutely immune from such suits, unless the judge acts clearly without any colorable Claim of jurisdiction. St v. §$ 435 U.S. 349, 356-57 (1978); Pierson v. Ray, 386 U.S. 547, 553-55 (1967). tie ‘=o . : : ; . _- ~~ * we a. rw > o—~ . 7 | > . et APP. 2 Services’ Child Welfare Unit in Oklahoma County; (3) Pam Padley, DHS Assistant Gencral Counsel; (4) Barbara Sicck, a Social Services Supervisor for the Division of Children and Youth Services’ Child Welfare Unit, and (5) Benita Levingston, a Social Worker in the Division of Children and Youth Services’ Child Welfare Unit. On October 11, 1988, Ted Sherwood, guardian ad litem for the fifteen children plaintiffs who are not the natural or adopted children of the Snells, announced settlement on behalf of thirteen of those plaintiffs. As a result, the only remaining plaintiffs in this case are Clark and Sharon Snell, their five adopted children, and the two children formerly represented by Mr. 10 Sherwood. * None of the children removed from the Snell home on August 26, 1987 romain as plaintiffs. The plaintiffs allege that defendants individually deprived them of constitutional] rights guaranteed by the fourth, fifth and fourteenth amendments, and conspired to do SO. Defendants deny the allegations of the plaintiffs, asserting that their conduct was in good faith, and raise the affirmative defenses of absolute and qualified immunity. Although findings and conclusions were announced by the Court at the October 11, October 13, and October 24, 1988 hearings on 4 number of pretrial matters, some further history of the proceedings will help place ‘With the consent of all parties, the Court permitted Mr. Sherwood to withdraw from representing these two children because they are in the process of being adopted by the Snells. These two children are now represented by counsel for the Snells. .**% |? APP. 2 the matter in context for purposes of this Order. In reviewing the motion for summary judgment, the Court was mindful that caution is advised in pretrial dispositions of conspiracy allegations in civil rights actions. See Hammond v. Bales, 843 F.2d 1320, 1323 (10th Cir. 1988) (citing Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir. 1980). However, to survive a motion for summary judgment on a conspiracy claim, plaintiffs must show the existence of a conspiratorial agreement. Hammond v. Bales, 843 F.2d at 1324. In sifting through the briefs and exhibits, the Court experienced great difficulty discerning plaintiffs’ conspiracy theory. Accordingly, the Court issued an order on October 11, 1988, which cautioned plaintiffs that it would not be sufficient l2 APP. 2 to mercly identify several possible suspects -in the alleged deprivation of plaintiffs’ civil rights, informed plaintiffs that it expected and required evidence proving the existence of the alleged agreement to violate plaintiffs’ civil rights, and required plaintiffs to file a Supplemental Response Clarifying Plaintiffs' Conspiracy Theory, which was to provide the following: 1. Identify each member of the alleged conspiracy, including both parties and non-parties. 2. Specify the duration of the alleged conspiracy, giving the date it began and the date it ended. 3. As to each defendant who is a member of the alleged conspiracy, state when the defendant joined the alleged conspiracy and the words or conduct through which the defendant joined the alleged conspiracy. 4. As to each defendant who is a member of the alleged conspiracy, itemize the independent evidence (i.c. each defendant's own words or conduct) which establishes the defendant's participation in the alleged 13 i APP. 2 conspiracy, including evidentiary citations which establish that such evidence is admissible. Order, Oct. li, 1988. ° Plaintiffs filed a document attempting to comply with this Order on October 18, *At the outset of this case, plaintiffs filed a Section 1985 conspiracy count against the defendants, claiming = actions were racially motivated. Plaintiffs' Amended Complaint at 11, 4 is The claim was apparently based on the fact that all seven of the children removed from the Snell -home on August 26, 1987, were Black. Ted Sherwood, who was appointed by the Court after the filing of the Complaint as guardian ad Liter for these children, subsequently to dismiss the Section 1985 action with prejudice. Sherwood, after careful analysis of the case, candidly acknowledged the “weakness” of this claim at the time of the requested dismissal. His co-counsel, Allan DeVore, made a similar acknowledgement at oral argument on October ll, 1988. In truth, the charge was baseless. Even a cursory review of the summary judgment filings reveals the Section 1985 action to be totally without merit. Nevertheless, this scurrilous allegation was trumpeted in the press by plaintiffs, and it is this allegation which has fueled much of the emotionally explosive atmosphere which now surrounds the casc. 14 APP. 2 1988.* Defendants filed a response on October 21, 1988. The final hearing on the summary judgment motion was held on Monday, October 24, 1988. For the reasons set forth below, defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART. The facts presented to the court upon @ motion for summary judgment must be construed in a light most favorable to the “Plaintiffs submission on October 18, 1983 did not comply with this Court's Order of October 11, 1988 in several respects. In direct violation of the Order, plaintiffs cited to numerous evidentiary materials not before the Court, failed to specify the independent evidence pertaining to cach defendant, and failed to provide evidentiary citations to many items of questionable admissibility. See Order dated October 21, 1988, Transcript of October 24, 1988 hearing, and Defendants’ Objection to Plaintiffs’ Application to Supplement filed October 20, 1988. 15 APP. 2 nonmoving party. Board of Education v. Pico, 457 U.S. 853, 864 (1982); United States v. Diebold, Inc., 369 U.S. 654 (1962). If there can be but one reasonable conclusion as to the material facts, summary judgment is appropriate. Only genuine disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary | judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (19867. Finally, the movant must show entitlement to judgment as a matter of law. Ellis v. El Paso Natural Gas Co.. 754 F.2d 884, 885 (10th Cir. 1985); Fed. R. Civ. P. 56 (c). Although the Court must view the facts and inferences to be drawn trom the record in the light most favorable to the nonmoving party, even under this standard there are cases where the evidence is so weak that the 16 a APP. 2 case-doecs not raise a genuine issuc of fact. Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir. 1988). As stated by the Supreme Court, "(sJummary judgment procedure is properly regerded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). The Supreme Court recently emphasized that, before granting summary judgment, the “requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 (emphasis in original). A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Id. The Court stated 17 APP. 2 that the guestion is “whether the cvidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. “The mere existence of a scintilla of evidence in support of the [party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [party)." Id. at 252. B. Qualified Immunity In the recent case of Coen v. Runner, 854 F.2d 374 (10th Cir. 1988), the Tenth Circuit articulated the standard to be used in determining whether to grant summary judgment based on gqualificd immunity. In Coen, our circuit stated: Qualified immunity is an affirmative defense that protects government officials from personal liability unless their actions violate clearly 18 ee APP. 2 established law of which a reasonable person would have known. Harlow v. Fitzgerald. 457 .S. 800, 818, 102 § 2738, 3 L. Ed. 2d 196 (1982). Once the defense has been raised and the plaintiffs have met their burden of identifying both the Clearly established law that the government official is alleged to have violated and the conduct that violated that law, the defendant must demonstrate that no material issues of fact remain as to whether his or her actions were objectively reasonable in light of the law and the information he or she possessed at the time. Pueblo Ne hood Health pe Las gay o, F. Cir. 1988). A defendant who makes such a showing of objective reasonableness is entitled to summary judgment unless the plaintiff can demonstrate that there are factual disputes relevant to the defendant's claim to immunity. DeVargas v. Mason & Ha r-Silas Co., WY F.2a 714, 718 (10th Cir. 1988) (citing Mitchell v. Forsyth. 472 U.S. Sill, 526, 105 S. Ct. 2806, 2815 86 L.Ed.2d 411 (1985)). Coen v. Runner, 354 F.2d at 377. IV. FACTUAL ANALYSIS 19 —- ~~. al o- o- this civil rights action have caused the Court to instead undertake its own analysis f the undisputed facts. After carefully examining the evidentiary submissions of the partics at the summary judgment stage, the following is an analysis of the conduct of each of the remaining five defendants, based on the undisputed facts, and on the disputed facts when viewed in the light most favorable to the plaintiffs. 1. Clark and Sharon Snell were known to DHS long before the events occurred which led to plaintiffs’ cause of action in this case. Plaintiffs’ Ex. “P", Affidavit of Clark and Sharon Snell at 1-3; Plaintiffs' Ex. 1", Deposition of Mary Asbury at 140. 2. The Snells have complained to DHS and other governmental agencies on several occasions regarding DHS social workers. 7 tnat “Cc OWCO _ ~ +, — > * s Sii\s :' aats > . + ** ‘= «* .-* DD } me 4 €&e ’ riAiGaisti = Wer a » > . e . "~~ « ss 7 +, ° 7 se *F ~ * — Sistant A . > . re ‘iu . ‘ ; TR ‘af _™~ | . : ‘ . > : ° . . . -* . . ry ¢ : Ff ; . : i» “« . * - . : " . “~~ . > > , ~ + APP. 2 DHS social worker, David McLain. Plaintiffs® Ex. "U", Child Abuse/Neglect Referral. The refcrral reported “environmental [neglect } and lack of supervision.” Id. 6. McLain visited the Snell home in regard to this referral on July 13, 1987. Plaintiffs’ Ex. "D", Deposition of Sharon Snell at 32-33. 7. Defendant Mary Asbury learned of the referral -ceceived by David McLain regarding the Snell home, on the day it was received, July 13, 1987. Plaintiffs' Ex. "1", Deposition of Asbury at 142, 145. 8. On July 13, 1987, or _ shortly thereafter, McLain filed a CWS 14-A report with the District Attorney's Office concerning the referral. Plaintiffs’ Ex. “v", Report to District Attorney, July 13, 1987. 26 APP. 2 9. On July 14, 1987 the day following McLain's visit to the Snell home, defendant Asbury spoke with McLain about his CWS 14-A report. That report indicated the Snells would not identify the children, but the Snell home was nice and comfortable. Plaintiffs' Ex. "1", Deposition of Asbury at 149. 10. On or about July 14, 1987, Asbury told McLain that he should characterize his investigation as “uncertain” and close the case. Plaintiffs' Ex. "1", Deposition of Asbury at 150. 11. The CWS 14-A report was filed with the District Attorney's Office and reviewed by Assistant District Attorney Rebecca McNeese sometime during July, 1987. Plaintiffs' Ex. "J", Deposition of McNeese at 35. As the CWS 14-A report was designated as “for information only" McNeese 27 not romember whether tne re’ ort was i Opy tn I Jinal, but rma | la par t would be im origina } it , 2 l2. At McNecsc's dcposition n June 22, 1988, McNeese testified that the Cws 14- *, report produced to plaintiffs during discovery (and included as Plaintiffs' Ex. “v") is not the report she reccived in July of 1987. Id. at 40-41. McNeese testified that the CWS 14-A report she reviewed in July 1987 contained allegations of child abusc, child pornography and child prostitution. Id. at 37-38. McNeese did not recall anything about licensing violations being included in the report. Id. at 38. These are both inconsistent with the CWS 14-A report produced by DHS which is Plaintiffs’ Ex. "Vv". Additionally, McNecse noted other variations between the report APP. 2 Programs, dated July 23, 1987. The memorandum contained, among other things, _ the following information: (1) DHS had received complaints from parents’ and relatives that the Snells would not give up children and may have coerced parents’ Signatures by telling the parents they would be referred to child welfare and would never get their children back; (2) the Snells had been complaining to DHS; (3) DHS had received reports that the children at the Snell home were unsupervised and poorly cared for, and; (4) DHS had received phone calls from the Warr Acres police informing them that the Snells were known drug dealers. Plaintiffs’ Ex. “I1", Memorandum from Asbury to George Miller, July 23, 1987. 15. In late July or carly August, 1987, DHS received three referrals concerning the Snells. Defendants’ Ex. "1", Affidavit of 30 COO APP. 2 Asbury at 1-2. One referral reported that seventeen (17) to twenty (20) children resided at the Snell home with inadcquatc supervision. Plaintiffs’ Ex. "Zz". rhe second referral concerned a mentally retarded boy, G.H., who had resided at the Snell home and had alleged that he had been kicked, and struck on the ears by Mr. Snell. Plaintiffs’ Ex. "Bl". The third referral asserted that the Snell home was dirty and the children were unsupervised. Plaintiffs’ Ex. “Al”. 16. Sometime in late July or early August, 1987, Asbury agreed with Vernon that DHS would not do anything further concerning the Snells until “we had the mecting” with state and regional nes officials. Plaintiffs’ Ex. "2", Deposition of Asbury at 176-77. 31 APP. 2 17. On August 10, 1987, Asbury assigned the three referrals on the Snells to defendant Barbara Sicck. Sieck later assigned them to defendant Benita Levingston. Plaintiffs’ Ex. "a" « Deposition of Asbury at 227; Defendants’ Ex. Affidavit of Asbury at 3. Asbury asked Sieck to delay action on the referrals until Sieck received further direction. Defendants’ Ex. "1", Affidavit of Asbury at 3. The three referrals, contrary to DHS policy, were not assigned a priority. See Plaintiffs’ Ex. Supp. "F", Deposition of Sieck at 285-88; Plaintiffs’ Ex. "2°, Deposition of Asbury at 168-69, 176. Nor was the investigation of the referrals begun immediately as would be required by DHS policy had the referrals been determined to contain allegations which would place the children in imminent harm. Plaintiffs’ 32 APP. 2 Supp. Ex. "F", Deposition of Sieck at 289, 293. 18. On August 12, 198/, Geftencant Padley, defendant Asbury, Lissa Vernon, DHS Supervisor of Child Welfare Ficld Services, Judy Collins, Assistant Administrator of the DHS Licensing Unit, and Prins Anderson, Administrator of the DHS Licensing Unit, met to discuss the Snell situation. Plaintiffs’ Supp. Ex. "D", Deposition of Asbury at 207. Asbury had prepared a list of things to discuss at the mecting. The following matters were discussed at the meeting: (1) DHS had received complaints that there were large numbers of children coming in and out of the Snell home (id. at 205-207); (2) Jesus House’ clients were told by the ‘Jesus House is a shelter for the homeless located in Oklahoma City, Oklahoma, where Clark and Sharon Snell formerly worked as volunteers. 33 initiated by Snell to a Las Vegas FBI agent about a man who had passed through Jesus House who allegedly was prostituting his sons. Later Snell would deny that he ever met this man. Asbury and Levingston clearly understood that there was no investigation of allegations that Snell was involved in child pornography or prostitution. Plaintiffs’ Ex. "6", Deposition of Asbury at 243. Treece reviewed the information which DHS had concerning the Snells. Plaintiffs’ Ex. "6", Deposition of Asbury at 243. Treece never suggested to any DHS employee that the Snells were under investigation for pornography or prostitution. 25. Sometime before August 26, 1987 defendant Levingston spoke with FBI Special Agent Leslie Treece. Levingston related to Treece that she was receiving complaints from the ncighbors of the Snells about child 38 eeeeeEeEeEeEeEeEEeEeEeEeEeeeeeee APP. 2 pornography and prostitution. This was the first Treece had heard of the possibility of child pornography or prostitution going on in the Snell home. Plaintiffs’ Ex. “w", Deposition of Treece at 17-18. Levingston spoke with Agent Treece on several occasions. Each time they spoke it was about the complaints DHS had received concerning the Snells. Id. at 20. Levingston, in her Affidavit, has denied ever asserting that the Snells have engaged in child prostitution or child pornography. Defendants' Ex. "6", Affidavit of Levingston 26. On August 18 or 139, 1987, defendant Padley called Assistant District Attorney Rebecca McNeesc. Padley told McNeese that she was going to ask McNeese for a favor concerning the Snells. McNeese cutoff the conversation at this point and it 19 APP. 2 went no further. Plaintiffs’ Ex. "J", Deposition of McNeese at 29. 27. On or about August 19, 1987, defendant Mike Swepston had a conversation with Clark Snell. Snell had been attempting to set up a meeting with DHS officials at the state office. Plaintiffs’ Ex. "El", Deposition of Clark Snell at 12. During the conversation Swepston began talking about G.H., a mentally retarded boy who was the source of one of the Snell referrals. According to Snell, Swepston said: “You know anything could happen with that." Snell replied: “You know, we haven't done anything wrong.” Swepston replied: "You don't have to do anything wrong out here. All we have to do is shuffle some papers around, and we can make anything fit.” Id. at 14. 28. Early in the day on August 19, 1987 defendant Asbury instructed defendant 40 APP. 2 Levingston to go to the police station to talk with the police captain regarding a Statute which provided that it was a misdemeanor to have guardianships of more than five unrelated people, and regarding the investigation concerning the Snells. Plaintiffs’ Supp. Ex. "K", Deposition of Levingston at 53. 29. On August 19, 1987 defendant Levingston went to the police station and spoke personally with Captain Griffith. Levingston told Captain Griffith of the allegations of abuse and neglect against the Snells and of the statute relating to guardianship. Plaintiffs' Supp. Ex. "K", Deposition of Levingston at 56-57. Levingston told Griffith that she thought the statute meant that the Snell children should be removed. Id. at 58. 4) if . » > 1A . > > > 19, 93/ Gefcendant Levingston, Hilde Lillegaard, t H ng lt, ind dacf« lant K tooK the yuardiansniy tatutc ¢t the : j tation 1intiffs* Supr Bite “Ro Deposition of Levingston at 53. 31. Following the meeting with Asbury on August 19, 1987, Lillegaard, Sieck and Levingston rode together to the police station. Plaintiffs’ Ex. "Cl", Deposition of Sieck at 145. When Levingston, Sieck and Lillegaard arrived at the police station, Griffith was not there so they talked to a sergeant on duty. Defendant Levingston told the sergeant that she had talked to Captain rriffith carlicr in the day, and she was nstructed to bring the yuardianship tatute, and the sergeant would accompany them to the Snells' home. Plainciffs' Supp. CC APP. The sergeant, however, said that he would need a court order to pick up the children from the Snell home. Id. at 59. 32. On August 19, 1987, after Sicck, Levingston and Lillegaard had returned from the police station, Sieck spoke with Asbury. Sieck told Asbury that the shift had changed at the police station and the sergeant would not send anyone to the Snell home without a court order. Plaintiffs’ Ex. "7". Deposition of Asbury at 264. 33. Defendant Asbury's next contact with Sieck or Levingston was around 6:30 or 7:30 p.m. on August 19, 1987. Asbury received a call from defendant Sieck (apparently the call was placed from the home of Snells* neighbor). Sieck told Asbury that they had encountered difficulty and asked for Judge Brown's telephone 43 Du! t 64-1 , 4 , ‘ ‘ ‘or? } 7 ‘ -* --* ; > ~~, 4 4 ’ ; ts ss Brown. Asbury also called and spoke bricfly jor Wilson regarding the Sne] matter. Judge Wilson told Asbury that he would rather talk to them in person regarding a pick-up order. Plaintiffs‘ Ex. "7", Deposition of Asbury at 264-66. 35. Also, on the evening of August 19, , aS noted above, Lillegaard, Sieck and Levingston visited the home of neighbors of > cc . ‘ ’ ‘ . 4 ’ . . " ne »"neliis. vVeTtcendant LCVingston tnen | | ; ; , ‘ ica fete t: rT 7 ing talp nin I ‘ ; ; t , it na , r) " it } ; , * ~~ ) , he ny a ane r ‘ > hs 4 ; é* ; ‘ rv > ; , , , F I Crra DH iaG If¢ clive 4 ti IU sat nel | , ; an F 4 ’ ‘ > ? , ’ ‘ , ’ ; ss ii . i; ; » > -_ APP. 2 statute which provided that it was a misdemeanor to have guardianship of morc than five unrelated children and, (3) her fear that the Snells were moving. Plaintiffs’ Supp. Ex. "K", Deposition of Levingston at 77-79. Judge Brown told Levingston he would issue a pick-up order if they thought an emergency existed. Id. at 79-85. Defendant Levingston kept the Judge on hold for a moment while she consulted with defendant Sieck. Levingston told Sieck that Judge Brown had asked if there was an emergency. Defendant Sieck replied to Levingston that there was an cmergency. However, it does not appear that Sicck's reply was communicated to Judge Brown. Id. at 80-81. Defendant Levingston told Judge Brown she would call him back if they needed a pick-up ordcr. Id. at 83; see also APP. 2 Plaintiffs’ Supp. Ex. "J", Deposition of Brown at 21. 16. Levingston, Lillicgaard and Sicck then decided to call Pam Padlicy. Plaintiffs’ Supp. Ex. “K", Deposition of Levingston at 84. Defendant Levingston called defendant Padley and told her what they had done, and that the Judge was not familiar with the guardianship statute. Levingston asked Padley to interpret the statute and Padley replied that she did not understand the statute to authorize removal of the children. Id. at 84-85. Levingston then told Lillegaard and Sieck what Padlcy said. Id. 376 Defendant Asbury met with Levingston and Sicck back at the DHS office on the evening of August 19, 1987 after they had been to the home of Snells' neighbor. 46 38. On or about August 20, 198 Assistant District Attorney Sullins toid Assistant District Attorney McNeese that he had been approached by defendant Siecck concerning picking up 19 or 20 children from a home. Sieck had shown Sullins the guardianship statute. Plaintiffs’ Exhibit "J", Deposition of McNeese at 28. 39. On August 20, 1987 defendant Asbury spoke with defendant Padley. They discussed Padley's conversation with defendants Sicck and Levingston the previous night. Asbury and Padley tentatively planned to get together and discuss the issues in the Snell case. Plaintiffs’ Ex. "7", Deposition of Asbury at 276. 40. On August 21, 1987 Asbury met with Padlicy. The two discussed what mi:ht 4? -- : - > -- . . e' " > . > «2 ‘ . , . = ; o * sd > 4 ‘ ~ -* > -« ~~ ‘ ’ 4 «+ - ‘ > oF ~ " o- . ‘ . + : " ~4 -. 4 : : - o« 7 s ‘ > " °. ~ e * -- - > _ -. '+ “ a > ? -« 4 ¥ ** a . " ‘ ~~ ‘ Abe? , . + : 4 : . erpretation o the + > he c convictil Depositic ’ ~ , J upon convict > & . ; tia - aes Belek ste "aS a MisSaemeano!l ana i be arrested." Id. at > = > - . -* » . 1 c ] > ¥ + 7 ‘* ‘ was iatlC© aria iu V » > _ “* 7 _ + 7 > ; AG y « \4s « : ‘ . ’ ¥ ‘e . + 'S* . ii an) ea , : toa int or jan? . . 4 ‘ sa\ssaGii . . v4 4 "Fr rT +7 | ham bbbd = F| ai4dNs ‘ s + > . | ve } | : sa sss ‘ - Judge Brown's on’ “interpret ~4 . Ace 4 & mean pal Z Du, y ‘ a. ss " ry ‘ ‘oe > Went y I il *?} n it tion that ce Statute. Plaintiffs’ Supp. Ex. a ag Deposition of Levingston at l1/-118. Levingston suggested to Einhorn that he call Judge Brown to make sure Einhorn “understood the same thing that [ Levingston] had understood." Id. 48. On August 26, 1987 between 9:00 and 9:30 a.m. Einhorn called defendant Levingston back, and said that Judge Brown was going to sign an order to pick up the children at the Snell home. Einhorn did not mention anything about child pornography or child prostitution during this conversation with Levingston. Plaintiffs’ Supp. Ex. "K", Deposition of Levingston at 117-119. 49. Later that day on August 26, 1987, defendant Padley received a phone call from Einhorn requesting she file an application in the Juvenile Division of the District Court. Einhorn told her he had talked with | ’ i~ ' Gt | ) ‘ | } t 1% tJ si¢ ‘comfy y r . slo : vw UL | iss i¢ an orac!r t J the poil sC y ie it ™ ; *, e| ir ipT | if , m ’ Einhorn told Padley “when all this came out, that the department [DHS] would look real bad." Defendant Padley told Einhorn to talk to the District Attorney and she would do some checking internally. Plaintiffs’ Ex. "Cc", Deposition of Padley at 157-58. 50. Following her conversation with Einhorn, still on August 26, 1987, Padley had phone conversations with people in child welfare in which she discussed the status of the Snell case. Plaintiffs’ Ex. "Cc", Deposition of Padley at 158-59. > Sometime during the period these . " + c 7 c *_* * + ~ | re , \ Rees e- nversations were taking place on August ne7 26, 198/, Padley received a telephone message that Judge Brown would like to speak with her. Plaintiffs’ Ex. "C", Deposition APP. 2 of Padley at 159. Padley returned the message and spoke with an employee in Judge Brown's office. The employee cxplained that Judge Brown was on the bench and would like to set an appointment. Id. at 160. 52. On August 26, 1987 defendant Padley spoke with Einhorn again and was told that he had spoken with Assistant District Attorney Mary Smith. According to Padley, Einhorn said that Mary Smith said that if the issue was in reference to the Snells that it was a DHS problem and that the District Attorney's Office was not going to get involved. Plaintiffs Ex. "ss Deposition of Padley at 159. During this conversation, Einhorn and Padley discussed Einhorn's contact with the Assistant District Attorney and Judge Brown. Padley told Einhorn that she was aware DHS had child abuse allegations concerning the Snell 54 APP. 2 household involving both neglect and abuse. Padley said she also knew the FBI had contacted DHS and indicated its interest in interviewing Mr. Snell in connection with a child prostitution and pornography investigation of another person, but that there were no allegations that the Snells were tavolved in child prostitution, pornography or trafficking of children. Id. at 160. Padley said she would see whether DHS would file an application. Id. at 161. 53. On August 26, 1987 Einhorn told Judge Brown that the reason he went to DHS was because defendants Asbury and Swepston were concerned about the number of kids in the Snell home, and complaints from neighbors concerning people going in and out of the home all day long. Plaintiffs' Supp. Ex. “G", Deposition of Einhorn at 42. Einhorn told Judge Brown that Levingston had 55 APP. 2 told him the Snells would not cooperate with a DHS worker who went to their home. Id. at 42. Einhorn also related to Judge Brown that Mr. Snell had a criminal record but had not indicated that fact on home adoptive studies. Id. at 41-42. Einhorn also told Judge Brown that Special Agent Treece had told him that she was investigating "a white male who was a known prostitute in regards to the Snells. . ." Id. at 39-40. All of Einhorn's information regarding the allegations of child pornography which he related to Judge Brown came from defendants Asbury, Levingston and Swepston. Plaintiffs' Ex. “O", Testimony of Einhorn Transcript of Proceedings before Judge Brown on August 27, 28 and 31, 1987 at 68, 71. 54. Sometime during the day on August 26, 1987 defendant Padley spoke with Judy Collins, an Assistant DHS Administrator. 56 APP. 2 Padley related to Collins that she had information from a police officer which indicated there may be abuse at the Snell home. Plaintiffs’ Ex. "N", Deposition of Collins at 48. Padley and Collins also talked about licensing and the need to determine the identities of the children in the Snell home. Id. at 49. During this conversation Collins related to Padley that if it was a licensing issue then an additional meeting should be set up with the Snells. Id. at 50, 80. Collins further related that the Snells had _ been cooperative. Id. 55. On August 26, 1987, following her second conversation with Einhorn, Padley spoke with Judge Brown. Plaintiffs’ Ex. "Cc", Deposition of Padley at 165. Judge Brown wanted her to file an application so he could enter an order to assist DHS in 57 APP. 2 completing its investigation of the Snells. Id. at 169. Padley told him it would be discussed within the Department. Id. 56. Later on August 26. 1987, Padley contacted defendants Levingston, Sicck, Swepston and an employee in licensing. Padley then prepared the Application. Plaintiffs' Ex. "C", Deposition of Padley at 187. Padley had no idea whether the allegations contained in the Application were true or false. Id. at 273. The Application filed by Padley was the only one of this type Padley knew of anyone in DHS preparing. Id. at 169-70. 57. The Application prepared by Padley asserted among other allegations, that DHS had received allegations of child prostitution and child pornography in the Snells‘ home. Defendants’ Ex. —— Application filed August 26, 1987, In the 58 APP. 2 Matter of Child Abuse and Licensing Investigations of the Clark and Sharon Snell Home by the Oklahoma Department of Human Services at 9 l. 58. On August 26, 1987 Padley went to Judge Brown's chambers and presented him with the Application. Padley indicated to Judge Brown that DHS was having problems completing the investigation. Plaintiffs' Ex. "C", Deposition of Padley at 187-188. The judge dictated the Order while Padley waited in his office. Id. at 188. 275. The pornography and prostitution allegations were the determinative factor in Judge Brown's decision to issue an order. According to Brown, it was the pornography/prostitution allegations which later led him to state: “I was concerned that I had been sort of sucked into a Situation where -- for lack of better 59 a APP. 2 terminology -- into issuing an order that had a lot of miscommunication." Plaintiffs’ Ex. "D", Deposition of Judge Srown at 47-46. 59. Between 3:50 and 4:30 p.m. on August 26, 1987, Padley arrived at Levingston's office with the Order signed by Judge Brown. Defendants Levingston, Sieck, Padley and Swepston reviewed the Order. Defendants’ Ex. "6", Affidavit of Levingston at 2. 60. On August 26, 1987 defendant Levingston called Special Agent Treece and invited her to go to the Snells that evening. Levingston told Treece they were going to request documentation of the children and pick up those children who had none. Plaintiffs’ Ex. "“W", Deposition of Treece at 24. Treece advised Levingston that there were no apparent federal 60 APP. 2 violations and declined the invitation. Id. at 25. 61. At approximately 5:00 p.m. on August 26, 1987 defendant Sicck, defendant Levingston, and Lillegaard arrived at the police station and presented Sergeant George Johnson with the Order signed by Judge Brown. Plaintiffs’ Ex. "E", Affidavit of Sergeant Johnson at 1-2. 62. Sergeant Johnson, accompanied by officers Thomas Picchione and Rodney Hill and by defendant Sieck, defendant Levingston and Lillegaard arrived at the Snell residence around 5:30 or 6:00 p.m. on August 26. When they entered the Snell home Sergeant Johnson observed that the house was generally clean and noticed no obvious signs of child abuse or neglect. Id. at 2. 63. When Sharon Snell arrived home on August 26, 1987 defendant Levingston, 61 r~ oe al > ; ‘ : . »> " : m : = ~~ * eee wa ‘ " m+ oY : ar > , . ‘ ‘ sis : 4 Me ne . ‘yt . ii i, i ii] Z 7 ’ , ~ * au ¥ dAAiM ’ : “ ’ » 4 +» i | ‘ ’ . : : , \¢ ‘ si ae! | ; , ‘ wu ’ , = ; ° ’ > ’ : : + + *- ; " . : " ; " -~ * “ : : > — 7 : eer) > > —j ? ’ . ’ Fy . : : : : : ss : ‘ . : as 5G ‘ .4 : . ~ : . -~ + . ‘+ > ° —_: ° : : : ‘ : .\ « : : tae & ee > “Saabs , 4 : oot by ™ »> “~* . .* 7 oO . : > * . s* : _- =F 4 ~ & —_ ‘4 . ’ _* . > = » > .* : : he . a ™ >> . : iio iy 4 - ‘aiAN ‘ -\ s> 4 >» hs 4% : " . > : . . i t ~—— Pe . ‘ 7 jG. ¥ . — :4 aay aiiy > sa : rye is he ™ »> _ _ ’ . > 7 , _ ‘cf » , : aa) as :4 :f sf ~ » ee? « >» \s « ‘ . . ‘ ) : 7 ™ . » > ™ _-_ vt, ™ . y . : ~ + "4 : is ~~» ‘>. = « =a hs > a > i » ’ _—— & ows . 24 ” . : - ™ : “ : ; ‘ At oe 8 tis A 81Ci MmuUsSValiU, ,7 7 Te _ " >> . -> " . " : ° tN. ' : ‘ ‘s+ " — ° . > “a : " >» > ° ° ‘ : : : : : . " ‘* ™ " " : : + " : = . ‘ ’ *\? . : ™ : . > bee > ~ Plaintiffs’ Ex. "E", Affidavit of Sergeant scorge Johnson at 4. Sergeant Johnson then tiscussed with defendants Sieck ind Levingston the possibility of giving the Snells twenty-four (24) hours to produce documentation. Plaintiffs’ Ex. 2 ad Deposition of Sharon Snell at 23-25; Plaintiffs’ Ex. "E", Affidavit of Sergeant George Johnson at 4. Sergeant Johnson, after talking to defendants Sieck and Levingston, then made the decision to remove the seven children pursuant to the directive in Judge Brown's order. Plaintiffs’ Ex. wre D", Deposition of Sharon Snell at 33; Plaintiffs’ Ex. "E", Affidavit of Sergeant George Johnson at 4. Defendant Levingston asked about Patricia Turtle, an Indian child staying with the Snells. Defendant Sieck then made 65 EE ——— the comment to a police offic Indian tribe would ever leave a child in this home.” Plaintiffs’ Ex. "D", Deposition 9f Sharon Snell at 26. 71. One of the children, Shannon, ran up the stairs. Defendant Sieck went upstairs after him and, according to Mrs. Snell, pulled him by the arm down the Stairs. Plaintiffs' Ex. "D", Deposition of Sharon Snell at 31-33. 72. The children were being taken out of the house and the question was asked whether there were any blankets for the children to protect them from the rain. According to Mrs. Snell, Levingston remarked: “Children of this culture are used to the clements." Id. at 35. 73. At approximately 7:30 p.m. the police officers and DHS employees left the Snell home and transported the seven bb a APP. 2 children to the Oklahoma County Juvenile Shelter. Plaintiffs' Ex. "E", Affidavit of sergeant George Johnson at 74. At the hearings on August 27, 28 and 31, DHS was unable to come forward with any evidence whatsoever to support the pornography or prostitution allegations contained in the August 26, 1987 Application. See Plaintiffs' Ex. "Oo", Transcript of Proceedings before Judge Brown, Aug. 27, 28 and 3l, 1987. V. DEFENDANTS’ ABSOLUTE IMMUNITY DEFENSE Defendants contend they are entitled to absolute immunity from liability for claims under Title 42 U.S.C. § 1983 because their conduct in the performance of child protective functions was adversarial in nature and intimately associated with the judicial phase of the juvenile court's jurisdiction. Brief in 6/7 t of mary Judgment of Defendants at ; moubt that prosecutors arc ibsolutely immune from Section 1983 civil rights liability in initiating a prosecution and in presenting the state's case. Imbler v. Pachtman, 424 U.S. 409, 432 (1976); Martinez v. Chavez, 574 F.2d 1043, 1044 (10th Cir. 1978) (per curiam); see also Briscoc v. La Hue, 460 U.S. 325, 345-46 (1983) (police who allegedly perjure themselves on witness stand can claim absolute immunity under Section 1983); Butz Vv. Economou, (Department of 438 U.S. Agriculture 478, 515 (1978) officials performing certain functions analogous to ; tors can claim absolute immunity); crson v. Ray, 386 U.S. 547, 553.54 (1967) (Section 1983 does not abrogate absolute immunity of state judges Bradley vv. APP. 2 Fisher, U.S. (13 Wall. 335) (1872) (fedcral judges have absolute immunity); Meade v. Grubbs, 841 F.2d 1512, 1532-33 & n.18 (10th Cir. 1988) (Commissioner of State Department of Health and Attorney General may claim absolute immunity with respect to declining to initiate criminal and civil proceedings). Defendants argue that filing the Application containing allegations including child prostitution and child pornography, and pursuing the enforcement. of the consequent Order were quasiprosecutorial acts eliciting absolute immunity. The Court notes that the Tenth Circuit has not addressed this specific issue. Cf. Clulow v. Oklahoma, 700 F.2d i291, 1298 (i0Oth Cir. 1983) (“bar officials charged with the duties of investigating, drawing up, and presenting cases involving attorney ‘discipline enjoy absolute immunity"). The 69 APP. 2 Court further notes that only the Ninth Circuit has squarely decided this issue and has ruled in favor of absolute immunity under limited circumstanccs. Mycrs v. Contra Costa County Dept. of Social Serv., 812 F.2d 1154, 1156 (9th Cir.) (social worker granted absolute immunity in initiating and pursuing child dependency proceedings against father; but not for actions prior to judicial intervention), cert. denied, U.S. , 108 S. Crt. 98 (1987); cf. Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) (Social worker has absolute immunity for filing a negligence petition). Two federal district courts in Oklahoma have found absolute immunity for social workers under circumstances different than those present in this case. Compare Snook v. Lunsford, No. 87-C550-B (N.D. Okla. May 70 APP. 2 24, 1988) (DHS employee granted absolute immunity for temporary custody action involving a mother leaving state and negligently entrusting six-year-old child to two minor siblings) with Guest v. Moore. No. CIV-85-1458-R (W.D. Okla. June 24, 1987) (DHS workers granted absolute immunity for failure to initiate a judicial hearing within the statutory time following an emergency detention of a suspected abused child) and Fan v. Gaston, No. 85-C-716-E (N.D. Okla. July 23, 1987) (juvenile court case worker granted absolute immunity for filing affidavit to obtain arrest warrant); see generally Annotation, Failure of State Or Local Government Entity to Protect a Child Abuse Victim as Violation of Federal Constitutional Right, 79 A.L.R. Fed. 514 (1986 & Supp. 1987). 71 APP. 2 This Court belicves that social workers and their supervisors who are investigating claims of child abuse are analogous to federal investigative agents and police officers who may claim only qualified immunity arising out of their investigative efforts. See, e.g., Martinez v. Winner, 771 F.2d 424, 442 & 444 (10th Cir. 1985). While the tasks of social workers who investigate child protection matters are clearly matters of compelling interest and importance to the public, how can it be said that when these investigators allegedly violate a citizen's constitutional rights they are entitled to absolute immunity, when highly trained FBI, DEA and Treasury agents facing identical allegations are entitled to only qualified immunity? This argument Simply cannot stand. For this reason, the affirmative defense of absolute immunity of 72 a APP. 2 defendants Asbury, Levingston, Swepston, and Sieck must be denicd. The only extensions of the carefully carved grants of absolute immunity have been for government employees who perform functions analogous to prosecutors. See e.g., Imbler v. Pachtman, 424 U.S. at 43l- 32 & n.33. The only employee with even a colorable role in the prosecutorial function would be defendant Padley, the DHS attorney who filed the August 26, 1987 Application. However, prosecutorial absolute immunity is limited, and the Tenth Circuit has held that "a prosecutor acting as an investigator has only qualified immunity." Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.), cert. denied sub_nom., 174 U.S. 967 (1985), quoted in Meade v. Grubbs, 841 F.2d at 1532; see Harlow v. Fitzgerald, 457 U.S. 800, 811 n.16 (1982); see also Annotation, When is 73 APP. 2 Prosecutor Entitled to Absclute Immunity from Civil Suit for Damages under 42 U.S.C. Sec. 1983: Post-Imbler Cases, 67 A.L.R. Fed. 640 (1984 & Supp. 1987). The Court finds that the Application filed by defendant Padley was in furtherance of an investigation only, and therefore absolute immunity does not apply. See Rex v. Teeples, 753 F.2d at 843. Even if Padley's filing of the Application could be characterized as “prosecutorial” rather than "investigative", the Court would nevertheless decline to find absolute immunity for a DHS attorney who ventured outside her normal duties to perform a quasi-prosecutorial function. Significantly, the act by defendant Padlcy was completcly unique, as she admitted she had never filed such an application beforc. Oklahoma law and long established practice 74 APP. 2 envisions that the District Attorney shall — perform such acts on behalf of DHS. In this case, the District Attorney's Office was openly hostile to filing a petition or complaint against the Snells because of a lack of evidence. Immunity grounds are carefully drawn and are to be strictly construed. Padley is not entitled to absclute immunity. Accordingly, the Court holds that absolute immunity is DENIED as to all defendants. VI. DEFENDANTS' QUALIFIED IMMUNITY DEFENSE The question of whether defendants are entitled to qualified immunity is a legal issue to be decided by the Court. Pucblo Neighborhood Health Centers, Inc. Vv. Losavio, 847 F.2d 642, 646 (10th Cir. 1988). Once the affirmative defense has been raised, plaintiffs must come forward and 75 identify bot the clearly established law that the government officials allegedly violated and the conduct which violated that law. Coen v. Runner, 854 F.2d 374, 377 (10th Cir. 1988). Only then must the government officials demonstrate that no material issues of fact remain as to whether their conduct was objectively reasonable in light of the law and information they possessed at the time. Id. Thus, before undertaking any analysis of the objective reasonableness of defendants’ conduct, the Court must determine if plaintiffs have Cleared the first hurdle by identifying Clearly established constitutional rights that defendants allegedly violated. For the reasons set forth below, the Court finds that plaintiffs have failed in this regard with respect to several of their claims. 76 pi “ 4 : — .* ' ’ + | 2 4 4 “+ . , + + r+ ‘F asi ¥ nNron A» *» - Iran rive ur ru VaCy >) } . ~ + ? - a 7s + . ‘ >. ¥ , A 4 A ' ,y Vv ‘ a\4 , - » + . >» Laanl » » | a oe — — } r A s ; + jUTrrceen lan al and aw anal mS hla “+ sa . ‘ wu ~ rmr ‘ i 44 » - ? v + A * net > , ‘ - r a’ te ai , ; | sc+ > > > ; +> > a4 > — i _., - as plaintiffs claim, there is a constitutionally protected liberty interest. Thus, plaintiffs claim the defendants were required to respect plaintiffs’ liberty interest and to afford plaintiffs duc process. See Plaintiffs" Objection to Defendants’ Motion for Summary Judgment and Revised Brief at 31-35. Defendants contend there was 9170 relationship between the Snells and the seven removed children that warrants constitutional protection, and further contend that even foster parents have no constitutionally protected liberty interest in a foster family relationship. At the least, defendants claim, there is no clearly established right under the fifth or fourteenth amendments to due process relating to the removal of foster children from a foster home. See Bricf in Support of 78 =a Motion for Summary Judgment of Defendants at APP. 2 23-26. 2. Analysis The rights of liberty and privacy that the Snells rely upon are not clearly spelled out in the constitution. They have been variously described as "penumbras" emanating from the Bill of Rights, “zones of privacy" implicit in the fourteenth amendment's concept of liberty, or as "the right to be let alone." Grusendorf v. City of Oklahoma City, 816 F.2d 539, 540-41 (190th Cir. 1987) (citations omitted). These rights of liberty and privacy have been recognized only under limited Circumstances. The Supreme Court has stated that “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,' are included in this guarantee of personal liberty." Roe v. 79 rr APP. 2 Wade. 410 U.S. 113, 152 (1973) (citation omitted). The Supreme Court outlined the Current reach of these interests "as embracing personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education." Grusendorf v. City of Oklahoma City, 815 F.2d at 541 (citing Carey v. Population Serv. Int'l., 431 U.S. 678, 685 (1977)). Plaintiffs have unsuccessfully attempted to place themselves within the ambit of the recognized interests involving family relationships. The Snells admit their alleged liberty interest concerning their relationship with the seven removed children is not superior to or. even coextensive with the liberty interest natural parents have with their children. Plaintiffs' Objection to Defendants' Motion for Summary Judgment and Revised Brief at 80 APP. 2 34. The Snells urge, however, that they are in a position similar to that of foster parents, and that the law is clearly established that foster parents have a constitutionally protected liberty interest in maintaining their relationships with foster children. As discussed below, the Court finds as a matter of law that the Snells do not have a constitutionally protected liberty or privacy interest in maintaining their relationship with the seven removed children. The Supreme Court considered the issue of whether foster parentS possess a constitutionally protected liberty interest in maintaining the foster family relation in Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977) (hereinafter "“OFFER"). In OFFER the Court noted two important distinctions between 81 APP. 2 foster family relationships and natural family relationships: (1) the source of the former is contractual in nature and is limited by the state through foster care agreements; and (2) there is virtually an unavoidable tension between protecting the liberty interest of natural parents while at the same time extending the rights of foster parents. Gibson v. Merced County Dept. of Human Resources, 799 F.2d 582, 586 (9th Cir. 1986) (citing OFFER, 431 U.S. at 845-46). The Supreme Court in OFFER found it unnecessary to decide whether foster parents have a protected liberty interest, since the Court based its decision on other grounds. OFFER, 431 U.S. at 847. Justice Stewart, however, in a concurring opinion, stated that he would squarely hold that foster parents’ interests are not of a kind that the due process clause of the fourteenth 82 APP. 2 amendment protects. The state “confers no right on foster families to remain intact, defeasible only upon proof of specific acts or circumstances," nor does the state provide a "basis for a justifiable expectation on the part of foster families that their relationship will continue indefinitely." OFFER, 431 U.S. at 859-860. The Fifth, Sixth, and Seventh Circuits have relied on OFFER to support holdings that foster parents do not possess a constitutionally protected liberty interest in the maintenance of the foster family relationship. Drummond v. Fulton County Dept. of Family and Children's Serv.. 563 F.2d 1200, 1207 (5th Cir. 1977), cert. denied. 437 U.S. 910 (1978); Sherrard v. Owens, 644 F.2d 542, 543 (6tn Cir.), cert. denied, 454 U.S. 828 (1981); Kyees v. County 83 ee APP. Dept. of Public Welfare 600 F.2d 693 699 ~ crc ff TOT), i- Summa tr 7 J“uy ~— SRANTED LT) favor of all defendants on the due process B. PLAINTIFFS' FOURTH AMENDMENT CLAIMS The plaintiffs, in Counts III and IV of their Amended Complaint, allege that defendants have deprived the Snells and the remaining seven children plaintiffs of their right to be secure in their house, papers and effects against unreasonable searches and seizures as provided by the fourth amendment.” Defendants contend they did not violate any clearly established particularized fourth amendment strictures. Brief in Support of Motion for Summary idament of Defendants at 20-23. “As indicated previously, the children who were “seized" or removed from the Snell home on the evening of August 26, 198/7, are no longer plaintiffs, having announced settlement of their claims. ‘ 56 Defendants cite >ases which indicate that “there is a substantial question whether warrantless home visits by social workers investigating claims of child abuse violate the Fourth Amendment." Donald M. v. Matava, 668 F. Supp. 703, 709 (D. Mass. 1987); see also Darryl H. v. Coler. 801 F.2d 893 (7th Cir. 1986). Brief *in Support of Motion for Summary Judgment of Defendants at 21-23. Based on these cases, defendants argue that “it cannot follow that since social workers in this case accompanied police officers acting pursuant rs a court order directing plaintiffs' cooperation with defendants’ investigation, defendants should have known that their conduct violated the Fourth Amendment”. Brief in Support of Motion for Summary Judgment of Defendants at 22. The problem with this analysis is that the Court Order 89 APP. 2 in question was procured through the presentation of false information to a judicial officer. In the instant case, the plaintiffs, in an effort to meet their burden, have identified the law that the government officials are alleged to have violated as the fourth amendment right to be free from unreasonable searches and seizures and have argued that the entry into the plaintiffs' home on August 26, 1987 violated this law. It is undisputed that the plaintiffs have a reasonable expectation of privacy in their home, and that the Snells did not forfeit their fourth amendment protection merely by operating an emergency shelter home. The nature and extent of plaintiffs' fourth amendment protection, however, is the subject of much dispute between the parties. 90 APP. 2 At the outset, the Court rejects defendants’ argument that the Order of Judge Brown, which authorized entry into the Snell home, relieves the defendants from potential liability. The alleged unreasonableness of the defendants’ conduct is not lessened by the fact that Judge Brown issued an order authorizing entry. In Malley v. Briggs, 475 U.S. 335 (1986), the United States Supreme Court rejected the contention that the actions of a magistrate in issuing a warrant shielded a police officer from liability. Here, the reasonableness of the defendants' conduct must stand or fall on defendants' own actions because, viewing the evidence in the light most favorable to plaintiffs, Judge Brown's Order was issued based upon intentional or reckless misrepresentations generated by defendants Padley, Levingston, Sieck and Swepston. Indeed, a fair reading 91 a APP. 2 of Judge Brown's testimony is that it was the child pornography and prostitution allegations which “sucked [him] into” issuing his August 26, 1987 Order. It might also be inferred that the pornography and prostitution allegations © constituted evidence of an “emergency” invented by the defendants to get them over the hump of their previously unsuccessful efforts to obtain a pickup order for the children. See factual analysis finding No. 35 supra. The parties agree that the “clearly established law" is grounded in the fourth amendment. The defendants, however, seem to argue (and thus, the plaintiffs have attempted to refute) that probable cause is not necessary to support an order authorizing entry into a home in a child abuse or child custody context. This law probably is not clearly established. See, 92 APP. 2 e.g., Donald M. v. Matava, 668 F. Supp. 703 (D. Mass. 1987). This Court, however, should not reach the issue of what level of evidence is, or is not, necessary to support a finding of probable cause for the issuance of a warrant or order in a child abuse investigation. Likewise, this Court should not decide whether probable cause is the requisite standard for the issuance of a warrant or order in such an investigation. Rather, the Court should focus its attention and issue its ruling based only upon the factual allegations that Judge Brown's Order was obtained through the use of false information. This sort of conduct -- intentionally providing false and misleading information to a judicial officer for the purpose of securing a warrant or order authorizing entry into a home -- 93 APP. 2 violates the fourth amendment in any official investigative context. No court has ever declared otherwisc. The defendants do not contend, nor could they contend, that the child pornography and prostitution allegations contained ‘a paragraph 1 of the August 26, 1987 DHS Application were true. Indeed, counsel for defendants at oral argument on October 24, 1988 candidly acknowledged that paragraph one of the Application was false. Moreover, defendant Padley, who prepared the Application, has testified that she had no idea whether the information set forth in the Application was true or false. Counsel for defendants nevertheless suggested at the hearing on October 24, 1988 that there was insufficient evidence of intent to send the case to trial, urging that the false information presented to 94 APP. 2 Judge Brown was the result of "miscommunication", and was not the product of intentional unlawful conduct. While this may be true, it is, however, a well established maxim that the Court may not weigh evidence at the summary judgment stage. Moreover, issues of intent are rarely resolved at the summary judgment stage, especially in civil rights cases, where district judges are repeatedly warned by appellate courts to proceed with caution. Here, viewing the evidence in the light most favorable to the plaintiffs, defendants Padley, Sieck, Levingston and Swepston embarked on a course of conduct on August 26, 1987 which involved the intentional presentation of false information to the Presiding Judge of the Juvenile Division of the District Court for the purpose of obtaining entry into the Snell _ home. 95 APP. 2 Moreover, the evidence before the Court at this time clearly suggests that the prostitution and pornography allegations were the determinative factor in obtaining the order from Judge Brown. Although it is now clear that the Snells were never the subject of such an investigation, Padley's Application nevertheless led Judge Brown to believe that such improprieties were occurring at the Snell's household. Moreover, the defendants involved in the events of August 26, 1987 arguably had every reason to believe that the alleged licensing violations did not afford a basis for seizure of the children, because DHS had previously (and unsuccessfully) sought to pick up the children on this ground. As a direct result of the false information presented, defendants Levingston and Sieck obtained entry into the Snell home 96 variety of standing DHS procedures, providing further arguable indicia improper intent. Finally, DHS' complete failure to justify the allegations in paragraph one of the Application at the hearings held in the Juvenile Division of the District Court on August 27, 28 and 3l, 1987 further underscores the inadequacy of defendants' fourth amendment qualified immunity defense at the summary judgment Stage. The defense of qualified immunity 1S 4 1 a Ve Bhalla f b 1eEcT tie re —e Hie ess JI O in S p| Up ni Vi/7 JUN 4 i aSOnavoicnecss. Here, if plaintiffs' evidence is believed, false allegations were presented to a judge 97 APP. 2 for the specific purpose of obtaining entry into the Snell home, such entry the defendants be lieved could not be accomplished without the presentation of the pornography and prostitution allegations to a judicial officer. The parties responsible for presenting these allegations were unable to substantiate them, not only at the state court hearings held after the August 26, 1987, search but even now. Regardless of whether the Court utilizes a probable cause standard or something less, official intrusions by social workers must comply with the reasonableness requirement of the fourth amendment. To place the label of “objective reasonableness" on the deliberate or reckless presentation of false information to a judicial officer for the purpose of obtaining entry into one's home defies reason, and would destroy the 98 vs" : . + ’ T’) . = ] . — os ' " “* ame nament. wel JUaLllricda immunity cr? In summary, the Cour finds that a Section 1983 action can lie against social workers under the fourth amendment where false information is either deliberately or recklessly presented to a judicial officer for the purpose of obtaining entry into a home under the circumstances of this case. Plaintiffs have met the burden of 1. © Malley v. Briggs, 475 U.S. 335 (1986); Franks v. Delaware, 438 U.S. 154 (1978); Franks v. Smith, 717 F.2d 183 (5th Cir. 1983); United States v. Strauss, 678 F.2d 886, 893 (10th Cir. 1982). Even administrative searches, for which probable cause 1S not required, necessitate a showing of reasonableness. Camara v. Municipal Court, 387 U.S. 523 (1967) (“reasonableness is still the ultimate standard"); Wyman v. James, 400 U.S. 309, 316-17 (1971). 99 APP. 2 identifying the clearly established law: the right under the fourth amendment to be secure in one's home from unreasonable searches and seizures premised on falsified information presented to judicial officers. The “unreasonableness" in this case is not. evaluated by whether probable cause is required (or even whether it existed since the information from which to determine probable cause was allegedly false), but by whether the evidence provided to obtain the Order was true, or reasonably thought to be true or was knowingly and intentionally false or provided in reckless disregard of whether it was true or false. On this point, the Court finds there are substantial questions of fact which must be resolved by a jury. Accordingly, the defendants who participated in the events of August 26, 100 APP. 1987 (Padlecy, Levingston, Sieck and Swepston) are not entitied to qualified immunity.** ‘As set forth in more detail in the conspiracy discussion below, there is **Defendant Swepston did noi participate personally in the “search" of the Snell home on August 26, 1987. Nevertheless, summary judgment on behalf of Swepston is denied because Swepston, viewing the evidence in the light most favorable to the plaintiffs (1) met with Padley, Levingston and Sieck on August 26, 1987 to discuss the filing of the Application with Judge Brown; (2) allegedly threatened Snell with retaliation for complaining about a breach of DHS confidentiality; (2) signed an allegedly altered report of David McLain which had previously been submitted to Assistant District Attorney McNeese; (4) allegedly provided Detective Einhorn with false information concerning the Snells' involvement with pornography; (5) was aware of the ongoing attempt by DHS to get the children out of the Snell home; and (6) met with defendants Levingston and Sieck to review Judge Brown's Order prior to the search on August 26, 1987. Swepston, aS a Supervisor who was allegedly aware of the false accusations which were being presented to Judge Brown, arguably "participated or acquiesced" in the constitutional deprivation alleged. Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988). 101 APP. 2 no evidence defendant Asbury either directed, approved or agreed to the course of action undertaken by the other defendants on August 26, 1987 and accordingly, defendants’ summary judgment motion is GRANTED on plaintiffs’ fourth amendment claims as to defendant Asbury only. C. PLAINTIFFS' CONSPIRACY THEORY Plaintiffs contend that defendants conspired to deprive them of constitutionally protected rights in violation of Title 42 U.S.C. § 1983. Plaintiffs do not set out a specific count alleging a conspiracy in violation of Section 1983, and nowhere in their Amended Complaint are there any allegations of a conspiracy in violation of Section 1983. The only allegation of conspiracy in plaintiffs' Amended Complaint (other than Count II, paragraphs 16-17, alleging a 102 APP. 2 violation of Section 1985, which plaintiffs dismissed with prejudice on September 20, 1988) is contained in paragraph 13 and reads as follows: Plaintiffs allege on information and belief that the defendants DHS and DHS employees, conspired to discredit plaintiffs, used the alleged “investigation” as a ploy, and held the children hostage while they tried to unearth even a shred of evidence to support their spurious allegations. Plaintiffs‘ Amended Complaint at 8, ¢ 13. There is a serious question as to whether plaintiffs have properly preserved a Section 1983 conspiracy claim for trial. Plaintiffs filed an Amended Complaint on February 25, 1988, but did not amend their Complaint as it related to the alleged conspiracy. Amended Complaint, February 25, 1988, ¢ 13 and Count II. Plaintiffs did not amend or attempt to amend their Complaint on 103 a APP. 2 or before Junc 1, 1988, the last day for amendment of pleadings under the Court's Scheduling Order of January 29, 1988. In plaintiffs’ final contentions, gencral non- conspiratorial assertions of violations of efourth, fifth and fourteenth amendment rights were stated in terms similar to those of the Amended Complaint. Plaintiffs' Final Contentions, 1, 2, 21-23; Plaintiffs’ Amended Complaint, Counts III-VI, pp. 12-13. On July 20, 1988, plaintiffs filed their Objection to Defendants’ Motion for Summary Judgment and Brief in Support (a Revised Bricf was filed July 29, 1988). In their Objection, plaintiffs described this case as one in which “plaintiffs claim that defendants violated their rights under Articles [sic) I, IV, Mi and XIV of the Constitution of the United States." The defendants contend after review af the 104 a APP. 2 pleadings to date that plaintiffs abandoncd their conspiracy claim. Defendants’ Brict In Reply to Plaintiffs' Objection to Defendants’ Motion for Summary Judgment at pp. Il-2. Plaintiffs, however, resurrected their conspiracy theory again in supplemental filings to the summary judgment motions. In the Final Pretrial Order in this case, submitted October 4, 1988, plaintiffs again refer to a “conspiracy to discredit Clark and Sharon Snell", Final Pretrial Order at Pp. 2, and contend that “[djefendants met in one or more groups and conspired together to put pressure on the Snells to submit to the control of DHS." Final Pretrial Order at p. 21. Plaintiffs added the gencral conclusion that the defendants “conspired to violate the plaintiffs’ constitutional rights." Id. 105 APP. 2 Plaintiffs did not identify their conspiracy claim with any specific constitutional claim or with any specific constitutional right and made no reference to the first or fourth amendments in their final contentions. On October 11, 1988, the Court issued an Order directing plaintiffs to file a supplemental response clarifying plaintiffs’ conspiracy theory. As indicated carlicr, the plaintiffs’ submission on October 18, 1988 did little to clarify the conspiracy theory. The plaintiffs’ October 18, 1988 filing could arguably be interpreted to claim a conspiracy to discredit the Snells, as well as a conspiracy to violate plaintiffs’ first and fourth amendment rights. But for the abundance of case law which urges caution in the dismissal of civil rights conspiracy claims, the Court would not hesitate to dismiss this claim of 106 plaintiffs, which can only be described a “moving target”. At oral arqument on Octobe: ,i, and October 24, 1988 plaintiffs’ counse! again Gescribed the Section 1983 allegation as a “conspiracy to discredit plairtiffs." This casc, however, is not a state defamation lawsuit. To the contrary, it is a Section 1983 action alleging deprivation of clearly established constitutional rights. Plaintiffs have totally failed to persuade the Court that their alleged "conspiracy to @iscredit” is a viable civil rights action under Section 198}. If a legitimate comspiracy count can be inferred from the broad language in plaintiffs’ Amended Complaint, the only such right arguably established by plaintiffs involves their fourth amendment claims. APP. 2 To survive a motion for summary judgment on a conspiracy allegation, plaintiffs must show the existence of a conspiratorial agreement among the various defendants. Hammond v. Bales, 843 F.2d 1320, 1324 (10th Cir. 1988). Viewing the evidence in the light most favorable to the plaintiffs, their fourth amendment conspiracy claim in this case can only go forward against defendants Padley, Levingston, Swepston and Sieck. These are the only remaining defendants who cither participated or acquiesced in the events of August 26, 1987, the date of the alleged fourth amendment violation. As set forth below, however, plaintiffs have failed to demonstrate a triable issue on their fourth amendment claims as to defendant Asbury. Defendant Asbury, in her motion for summary judgment, came forward with 108 APP. 2 affirmative evidence that she was not involved in the events of August 26, 1987, nor was she even aware that an Application was going to be filed with the Court by DHS until well after the removal of the children from the Snell home. Plaintiffs have come forward with no evidence rebutting these allegations or establishing in any way Asbury's personal participation in the events of August 26, 1987. Instead, viewing the evidence in the light most favorable to the plaintiffs, plaintiffs have established that Asbury was clearly exploring a varicty of possible avenues of intervention by DHS, and that she assisted in creating an atmosphere of rumor and innuendo that ultimately found its way into paragraph onc of the DHS’ August 26, 1987 Application to Judge Brown. 109 APP. 2 However, there is no showing that Asbury participated in obtaining the August 26, 1987 Order from Judge Brown, or that she agreed with anyone to pursue the course of action undertaken by the other defendants on August 26, 1987. Asbury did not direct Einhorn to talk to Judge Brown on August 26, 1987 nor did Asbury direct anyone to submit an Application to the Court. Moreover, contrary to plaintiffs' suggestions, there is no doctrine of respondeat-superior in civil rights cases. Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1998). The piaintiffs’ contention that defendants aabury and Tunnell “quarterbacked" the events of August 26, 1987 is transparent speculation. During the hearing on October 24, 1988 piainciffs’ counsel made reference to tne “Br.ggs case" for the proposition that 1.0 APP. 2 defendant Asbury had a duty to act to prevent misconduct on the part ef, DHS employees under her supervision, thus arguing that even though Asbury didn't participate in the events of August 26, 1987, supervisory liability should be imposed upon her for failing to prevent those events. The Court's review of the Briggs case, Malley v. Briggs, 475 U.S. 335 (1986), aff'g 748 F.2d 715 (1st Cir. 1984), reveals that it does not address the issue of supervisory liability. Rather, it addresses absolute and qualified immunity. Plaintiffs’ attorney may have meant to refer to the "Grubbs case" instead of “the Briggs casc". Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988) docs address Supervisory liability. Id. at 1527-28. Meade held that to be liable under Section 1983, a supervisor must have “participated 111 APP. 2 or acquiesced in the constitutional deprivations” alleged. Id. at 1528. Here, there is unrefuted evidence that Asbury neither participated in nor acquiesced in the events of August 26, 1987. the date of the alleged fourth amendment violation. Meade also held that a supervisor may be liable “where there is essentially a complete failure to train, or training that is so reckless or grossly negligent that future misconduct is almost inevitable." Id. Here, there is not even an allegation that Asbury had a duty to train the other defendants, much less that she failed to adequately train thom. Finally, Meade held that “unless a supervisor has cstablished or utilized an unconstitutional policy or custom [which is not alleged in the instant case), a plaintiff must show that the supervisory ll2 APP. 2 defendant breached a duty imposed by state or local law which caused the [alleged] constitutional violation." Id. Here, plaintiffs have made no showing Asbury violated any state or local law that any reasonable jury could find “caused" the events of August 26, 1987. Asbury's pre-August 26, 1987 conduct, while arguably unprofessional, cannot be said to be in violation of any Clearly established constitutional fights of plaintiffs. Nor did Asbury participate in the alleged fourth amendment violation. Absent an ecvidéntiary showing from which Asbury's conspiratorial agreement in the allegedly unlawful search of August 26, 1987 can be inferred, summary judgment is mandated. Hammond v. Bales, 843 F.2d at 1324. Accordingly, defendant Asbury's 113 APP. 2 mot ion for summary judgment aS to plaintiffs’ conspiracy claim is GRANTED. On the other hand, the same cvidence which supports the denial of defendants Padley, Levingston, Swepston. and Sicck's motion for summary judgment on plaintiffs’ fourth amendment claim, also supports an inference that these defendants undertook this course of conduct in furtherance of an agreement to violate plaintiffs' clearly established fourth amendment rights. Accordingly, defendants’ motion for summary judgment on the plaintiffs’ fourth amendment conspiracy claim is DENIED as to defendants Padley, Levingston, Swepston and Sicck. VII. CONCLUSION For the above stated reasons, defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART. Absent a stay of this matter, jury selection on the 114 APP. 2 remaining fourth amendment claim and conspiracy claim against defendants Padicy, Swepston, Sicck, and Levingston will begin November 2, 1988 at 9:00 o'clock a.m. IT IS SO ORDERED THIS 2ND DAY OF NOVEMBER, 1988. /s/ La R. Phillips Layn R. Phillips United States District Judge 115 APPENDIX 3 OKLAHOMA STATUTES 1987 SUPPLEMENT TITLE 21. CRIMES AND PUNISHMENTS CHAPTER 30. MISCELLANEOUS OFFENSES AGAINST THE PERSON RIGHT OF PRIVACY APP. 3 OKLAHOMA STATUTES 1987 SUPPLEMENT TITLE 21. CRIMES AND PUNISHMENTS CHAPTER 30. MISCELLANEOUS OFFENSES AGAINST THE PERSON RIGHT OF PRIVACY § 845. Public policy - Protection of child - Definitions. A. It is the policy of this state to provide for the protection of children who have had physical injury inflicted upon them and who, in the absence of appropriate reports concerning their condition and circumstances, may be further threatened by the conduct of those responsible for their care and protection. B. As used in Section 846 through 848 of this title: l. “Abuse and neglect" means harm or threatencd harm to a child's health or welfare by a person responsible for the Child's health or welfare. Harm or threatened harm to a child's health or APP. 3 welfare can occur through: Nonaccidental physical or mental injury; sexual abuse, as defined by state law; scxual cxpioitation or negligent treatment or maltreatment, including the failure to provide adequatc food, clothing, shelter, or medical care except as provided for in Section 846 of this title; 2. “Child” means a person under the age of eighteen (18) years. A person responsible for child's health or welfare includes the child's parent, guardian, or other person responsible for the child's health or welfare, whether in the same home as the child, a relative's home, a foster care home, or a residential institution; Be "Sexual abuse” includes rape, incest and lewd oor indecent acts oF proposals, as defined by law, by 4 person responsible for the child's welfare; and > . APP. 3 4. “Sexual exploitation" includes allowing, permitting, or enccuraging a child to engage in prostitution, as defined by law, by a person responsible for the child's welfare or allowing, permitting, encouraging, or engaging in the lewd, obscene, or pornographic photographing, filming, or depicting of a child in those acts as defined by the state law, by a person responsible for the child's welfare. § 846. Mandatory reporting of physical abuse or birth of chemically-dependent child- Investigations-Spiritual treatment exemption-Appointment of attorney for child. A. Every physician or _ surgeon, imcluding doctors of medicine and dentistry, licensed osteopathic physicians, residents and interns, examining, attending or treating a child under the age of cightcen (18) years and every registered nurse APP. 3 examining, attending or treating such a child in the absence of a physician or surgeon, every teacher of any child under the age of eighteen (18) years, and every other person having reason to believe that child under the age of eighteen (18) years has had physical injury or injuries inflicted upon him or her by other than accidental means where the injury appears to have been caused as a result of physical abuse or neglect, shall report the matter promptly to the county office of the Department of Human Services in the county wherein the suspected injury occurred. Every physician or surgeon, including doctors of medicine, licensed ostcopathic physicians, residents and interns, or any other health care professional attending the birth of a child who appears to be a child born in a condition of dependence on a 4 OO — APP. 3 controlled dangerous substance shall promptly report the matter to the county office ot the Department of Human Services in the county in which such birth occurred. Provided it shall be a misdemeanor for any person to knowingly and willfully fail to promptly report any incident as provided - above. If the report is not made in writing in the first instance, it shall be reduced to writing by the maker thereof as soon as may be after it is initially made by telephone or otherwise and shall contain the names and addresses of the child and his or her parents or other persons responsible for his or her care, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, the nature and extent of the child's dependence on a controlled dangerous substance and any other information that the . — a APP. 3 maker of the report believes might be fielpful in establishing the cause of the injurics and the identity of the person or persons responsible therefor if such information or any part thereof is known to the person making the report. The county office receiving any report as herein provided shall investigate said report in accordance with priority guidelines established by the department of Human Services and if the county office finds evidence of abuse and neglect forward its findings to the district attorney's office in the county wherein the suspected injury occurred together with its recommendation as to disposition. In addition, a copy of the findings shall be sent to the Child Welfare Division of the Department of Human Services which shall be responsible for maintaining a permanent 6 APP. 3 central registry, suitably cross-indcxed, of all such reported findings. Any information contained in the central registry shall be available tu any county office and to any district a -torney's office or public law enforcement agency investigating a report of suspected child abuse or neglect. The Department of Human Services may promulgate rules and regulations in furtherance of the provisions of this section. All ‘ehinuie concerning child abuse shall be confidential and shall be open to inspection only to persons duly authorized by the state or United States in connection with the performance of their official duties. It shall be unlawful and a misdemeanor for the Commission, or any employee working under the direction of the Department of Human Services, any other public officer or employee, or any court- 7 APP. 3 appointed special advocate to furnish or permit to be taken off of the records any information therein containcd for commercial, political or any othe: unauthorized purposc. No provision of this section shall be construed to mean that a child has been abused or neglected because said child's parent, guardian or custodian in good faith selects and depends upon spiritual means or prayer for the treatment or cure of discasec or remedial care of such child. 8 APPENDIX 4 OKLAHOMA STATUTES 1987 SUPPLEMENT TITLE 19. CHILDREN CHAPTER 51. DELINQUENT, DEPENDENT AND NEGLECTED CHILDREN ARTICLE I. DEPENDENT AND DELINQUENT CHILDREN APP. 4 OKLAHOMA STATUTES 1987 SUPPLEMENT TITLE 10. CHILDREN CHAPTER 51. DELINQUENT, DEPENDENT AND NEGLECTED CHILDRFN ARTICLE I. DEPENDENT AND DELINQUENT CHILDREN §1104.1. Filing petition when child in custody-Time-Hearing-Order to remove child from home A. Where a child has been taken into custody under any provision of the Juvenile Code before a petition has been filed, a petition shall be filed and a summons issucd within five (5) judicial days from the date of such assumption of custody, or custody of the child shall be relinquished to his parent, guardian or other legal custodian, unless otherwise provided for herein. B. Where a child has been taken into custody and upon allegations of cruclty on the part of the parents, guardian or other person having custodial care of the child, the five-day limitation herein shall not cause the child to be relinquished to such l APP. 4 parent, guardian or other legal custodian. In all such cases, the court shall determinc whether the petition was filed within a reasonable time, except that a petition shall be filed within thirty (30) days of the child being taken into custody. c. Whenever a child is taken into custody as a deprived child, the parents or quardian of the child are entitled to a4 hearing within forty-eight (48) hours of the child being taken into custody, and thereafter at such intervals as may be determined by the court, in order to show cause why such child has been taken into custody or whey custody should not be remanded to the parents. D. No order of the court providing for the removal of an alleged or adjudicated deprived child from his home shall be entered unless the court finds that the 2 APP. 4 continuation of the child in this home is contrary to the welfare of the child. Said order shall include cither: 1. a determination as to whether or not reasonable efforts have been made to prevent the need for the removal of the child from his home and, as appropriate, reasonable efforts have been made to provide for the return of the child to his home; or 2. a determination as to whether or not an absence of efforts to prevent the removal of the child from his home is reasonable under the circumstances, if such removal of the child from his home is due to an alleged emergency and is for the purpose of providing for the safcty of the child. §1107. Detention or release of child- Medical cxamination and treatment «+ APP. 4 A. Whenever a child is taken into custody as a delinguent child or a child in need or supervision, he shall be detained or be released to the custody of his parent, guardian, attorney or custodian, upon the written promise of such parent, guardian, attorney or custodian to bring the child to the court at the time fixed. If detained, such child shall be taken immediately before a judge of the district court in the county in which the child is sought to be detained, or to the place of detention or shelter designated by the court. If no judge be available locally, the person having the child in custody shall immediately report his detention of the child to the presiding judge of the judicial administrative district. If the latter judge cannot be reached, such detention shall be reported immediately to any judge regularly serving 4 APP. 4 within the judicial administrative district. If detained, a reasonable bond for release Shall be set. Pending further disposition of the case, a child whose custody has been assumed by the court may be released to the custody of a parent or other person appointed by the court, or be detained pursuant to the provisions of Section 18 of this act* in such place as shall be designated by the court, subject to further order. B. Whenever a child is taken into custody as a deprived child, he shall be taken to a shelter, hospital, foster home or other appropriate place as designated by the court, or he shall be taken immediately before a judge of the district court for the ‘Section 1107.1 of this title. 5 APP. 4 purpose of obtaining an order for protcctive custody. C. Nothing in Chapter 51 of this title’ shall be construed as forbidding any peace officer or any employee of the court from immediately taking into custo@y any child who is found violating any law or ordinance, or whose surroundings are such 4s to endanger his welfare, or who is willfully and voluntarily absent from his home without the consent of his parent or guardian or legal custodian for a substantial length of time or without intent to return. In every such case the officer or employce taking the child into custody shall immediately report the fact of his detention to a judge of the district court in the county in which the child was taken into custody. If no judge *Section 1101 et seq. of this title. 6 APP. 4 iS available locally, then the detention shall be reported immediately to the presiding judge of the judicial administrative district; but if the latter Cammot be reached, then to any judge regularly serving within the judicial administrative district, and the case shall then be proceeded with a provided in Chapter S51 of this title, provided that the child shall not be detained in custody beyond the mext judicial day unless the court shall so order after a detention hearing to determine if there exists probable cause to detain the child, as provided in Section 18 of this act. D. When any child is taken into custody pursuant to this title and it reasonably appears to the peace officer or employee of the court that the child is in need of medical treatment to preserve his 7 Llu APP. 4 calth, any peace officer or any cmploycc of the court shall have the authority to ithorize medical cxamination and medical! treatment for any child found to be in necd of medical treatment as diagnoscd by a competent medical authority in the absence of a parent or guardian who is compctent to authorize medical treatment. The officer or the employce of the court shall authorize said medical treatment only after exercising due diligence to locate the parent, guardian or other person legally competent to authorize said medical treatment. The parent, guardian or custodian of the child shall be responsible for such medical xpenses as ordered by the court. No peace fficecr or any employee of the court authorizing such treatment in accordancc © provisions of this section for any *hild found in need of such medica! --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1722%3A2. Public record. Not legal advice.