Petition for Writ of Certiorari — Ellis v. Mississippi Department of Health (No. 09-645)

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09 645 NOV 30 708

OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

DEBORAH ELLIS,

JENNIFER BROWN, SINDIE HOUSE,

Petitioners,

VS.

MISSISSIPPI DEPARTMENT OF HEALTH,

THERESA PATTON, CYNTHIA LESURE, TINA MOORE,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

PRESTON RIDEOUT, MSB No. 5346

ABRAHAM & RIDEOUT

305 West Market Street (38930)

Post Office Box 8407

Greenwood, MS 38935-8407

tel: (662) 453-3000

fax: (662) 453-3059

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Was St. George Tucker correct when he told his

William & Mary law students in circa 1803 that

all searches and seizures were considered general

warrants and thus unconstitutional under the Fourth

Amendment unless based on probabie cause, sup-

ported by oath or affirmation and particularly de-

scribing the place to be searched and things to be

seized; or, in the alternative, whether this Court cor-

rectly interpreted the Fourth Amendment when it

decided that businesses in a “pervasively regulated”

industry may be searched without a warrant; and, if

St. George Tucker was correct, whether this Court

should overrule its decision in New York v. Burger,

482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987)?

LIST OF PARTIES

All parties appear in the caption of the case on

the cover page.

TABLE OF CONTENTS

Page

EE BION vscsscsnecinsseccmcpscnccnanaseenavereniens 1

TE BEN ix ch vecneadisctaccdncssxnsnenceeons saubtonaas ]

CONSTITUTIONAL AND STATUTORY PRO-

Vee BEG BY Boas chscscecccsceteccnsnsaccionissnacese 2

STATEMENT OF THE CASE...................c2ceeeceeees 2

REASONS FOR GRANTING THE WRIT ........... 4

CF aittsn svscdincadunseusecaneeavueeateiomes 10

INDEX TO APPENDICES

Deborah Ellis, et al. v. Mississippi Department

of Health et al., unpublished, Summary Cal-

endar No. 09-60170, 2009 WL 2776644 (5th

2 |. | Rn aE EP ERD Ia Cre er Se |

Deborah Ellis, et al. v. Mississippi Department

of Health, et al., Order On Motion For Re-

consideration, Case 4:07-cv-00081-SA-EMB,

2009 WL 279105, Slip Copy (N.D. Miss.

PRMD iniincinsedcstidinwassecseebOetaeeelr omnia App. 6

Deborah Ellis, et al. v. Mississippi Department

of Health, et al., Opinion On Motion To Dis-

miss, Case 4:07-cv-00081, unpublished, 2008

WL 2007153 (N.D. Miss. 2008)..................068 App. 14

Deborah Ellis, et al. v. Mississippi Department

of Health, et al., Order Granting Motion To

Dismiss, Case 4:07-cv-00081, unpublished

CINE), BRSGG: BOOG? snc ciikcxccsietscacammueae App. 38

TABLE OF AUTHORITIES

Page

CASES

District of Columbia v. Heller, ___. U.S. ___, 128

S. Ct. 2783, 171 L. Ed. 2d 637 (2008)................... 5,6

Marshall v. The Texoline Co., 612 F.2d 935 (5th

Th SRR eee er ea RA CARES STD Oe 11

New York v. Burger, 482 U.S. 691, 107 S. Ct.

2636, 96 L. Ed. 2d 601 (1987)..................... 3, 6, 8, 12

Rush v. Obledo, 517 F. Supp. 905 (N.D. Cal.

ee a ll

United States v. Castelo, 415 F.3d 407 (5th Cir.

a ae 11

Virginia v. Moore, __ U.S. ___, 128 S. Ct. 1598,

De a Be te I dase euicccivacsstssiscassvicsersmaes O

STATUTES

es cuivasbuasinnauaabueraseupensenaaannl 2

rap eatlaneeenansnabeina 3

§43-20-15 Miss. Code Ann. (1972 as amended)........... 2

$97-5-39 Miss. Code Ann. (1972 as amended)............. 3

RULES

I 20 tr LT al agueesmna erate meneaieiaia: 4

UI or 2 ae eer ae eee 4

I ants cadscnnssitataacausissaonsecaieciaseaao smarts 4

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

i saa Jap ea REE 4,5

Py FAMINE oes sescisivcscesscestisssccccssscscccsacseves passim

BOOKS AND ARTICLES

Hardy, The Lecture Notes of St. George Tucker:

A Framing of The Bill of Rights, 103 Nw. U.

La, HOV. COMOGUY B7F (ZOOS) nccceccceccscversensrcenccerseses 6, 7

EDWARD MAYES, LUCIUS Q.C. LAMAR,

HIS LIFE, TIMES AND SPEECHES, Pub-

lishing House of The Methodist Episcopal

Church, South (2d ed. 1896) at 334........................ 12

Newman, Against That Powerful Engine of

Despotism — The Fourth Amendment And

General Warrants At the Founding And

Today, Univ. Press of America (2007) at x

NNT ridssccccssaaanscetianticptaie catevuaceaecteemanieiseebiaaee 10

INTERNET RESOURCES

Brief filed on behalf of the National Association

of Criminal Defense Lawyers in Arizona uv.

Johnson, Supreme Court No. 07-1122; on the

web as a PDF document at American Bar

Association, http://www.supremecourtpreview.

vi

TABLE OF AUTHORITIES — Continued

Page

CHARLES FRANCIS ADAMS, THE WORKS

OF JOHN ADAMS, SECOND PRESIDENT

OF THE UNITED STATES: WITH A LIFE

OF THE AUTHOR, NOTES AND ILLUS-

TRATIONS, VOL. II, Little & Brown (1850),

as reprinted in http://www. Questia.com

1

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of cer-

tiorari issue to review the judgment below.

¢

OPINIONS BELOW

The opinion of the United States Court of

Appeals appears at App. 1 to the petition and is un-

published.

The opinion of the United States District Court

denying Motion For Reconsideration appears at App.

6 to the petition and is unpublished.

The opinion of the United States District Court

dismissing the case appears at App. 14 to the petition

and is unpublished.

The Order of the United States District Court

dismissing the case appears at App. 38 to the petition

and is unpublished.

JURISDICTION

The date on which the United States Court of

Appeals decided this case was September 2, 2009.

No petition for rehearing was filed.

No extension of time to file the petition for a writ

of certiorari has been requested nor one granted.

>

4

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Amendment IV to the Constitution of the United

States:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath

or affirmation, and particularly describing

the place to be searched, and the persons or

things to be seized.

Miss. Code Ann. §43-20-15:

The licensing agency |Mississippi Depart-

ment of Health] shall make or cause to be

made inspections relative to the compliance

with the laws and regulations governing the

licensure of child care facilities. Such inspec-

tions shall be made at least once a year but

additional inspections may be made as often

as deemed necessary by the licensing agency.

(emphasis added)

STATEMENT OF THE CASE

This is a federal question case seeking money

damages from the defendants in their individual

capacities under 42 U.S.C. §1983 based on Fourth

Amendment claims arising out of three warrantless

searches made at Petitioner’s facility, the Susie M.

Brooks Child Care Center in Greenwood, Mississippi.

The searches occurred on January 29, 2004; May 14,

2004; and, December 14, 2005.

The legal issue presented is whether the “perva-

sively regulated” industry warrantless search excep-

tion carved out of the Fourth Amendment by this

Court in New York v. Burger, 482 U.S. 691, 107 S. Ct.

2636, 96 L. Ed. 2d 601 (1987) is consistent with the

original intent of the Framers of the Constitution

which was that all searches and seizures were con-

sidered general warrants and thus unconstitutional

unless based on probable cause, supported by oath or

affirmation and particularly describing the place to

be searched and the things to be seized.

The relevant regulatory context is the extent of

the right of the Mississippi Department of Health to

search a child care provider’s facility on the basis of

an “anonymous” complaint of child abuse which vio-

lates both the applicable child care regulations and is

also a crime under Mississippi statutory law. Miss.

Code Ann. §97-5-39 (1972).

The facts of the case are simple. The Mississippi

Department of Health searched Petitioner’s child care

facility, without a warrant and without probable

cause, three times — twice based on “anonymous”

phone calls complaining of child abuse. In the case of

at least one of these calls, there is strong circumstan-

tial evidence that it was a fabrication by a Department

of Health official. The third warrantless search was

based on an “anonymous” complaint of child abuse.

In none of the three instances was child abuse

ever formally charged or pursued. In fact, except for

the warrantless general searches, the Health De-

partment never took any formal steps as to child

abuse. However, once on the premises, the investi-

gators also performed administrative inspections and

fined Petitioner for minor regulatory violations to-

tally unrelated to any claim of child abuse.

The case was originally filed on April 13, 2007, in

the Circuit Court of Leflore County, Mississippi and

removed on May 14, 2007, by the defendants to the

United States District Court for the Northern District

of Mississippi.

The District Court entered its 12(b)(6) Order dis-

missing the Plaintiffs’ complaint on May 8, 2008. A

Rule 59/60 reconsideration motion was filed on May

21, 2008. The Court entered its Order denying recon-

sideration on February 5, 2009. A notice of appeal

was filed on March 4, 2009. The Fifth Circuit Court of

Appeals on September 2, 2009, upheld the District

Court’s dismissal.

REASONS FOR GRANTING THE WRIT

As Justice Scalia said last term about the Second

and Fourth Amendments:

5

Putting all of these textual elements to-

gether, we find that they guarantee the

individual mght to possess and carry wea-

pons in case of confrontation. This meaning

is strongly confirmed by the historical back-

ground of the Second Amendment. We look to

this because it has always been widely un-

derstood that the Second Amendment, like

the First and Fourth Amendments, codified

a pre-existing right.... “[t]his is not a right

granted by the Constitution. Neither is it

in any manner dependent upon that in-

strument for its existence. The Second

Amendment declares that it shall not be

infringed... .”

In determining whether a search is “unreasona-

ble” within the meaning of the Fourth Amendment,

“we begin with history. We look to the statutes and

common law of the founding era to determine the

norms that the Fourth Amendment was meant to

preserve.” Virginia v. Moore, __ U.S. __, 128 S. Ct.

1598, 1602, 170 L. Ed. 2d 559 (2008). Only when

history fails to provide a conclusive answer, do we

then analyze a search or seizure in light of traditional

standards of reasonableness, “by assessing, on the

one hand, the degree to which it intrudes upon an

individual’s privacy and, on the other, the degree to

which it is needed for the promotion of legitimate

governmental interests.” Virginia v. Moore, supra,

' District of Columbia v. Heller, _ US. , 128 S.Ct.

2783, 2797-98, 171 L. Ed. 2d 637 (2008).

6

128 S.Ct. at 1604. In fact we know that “The

immediate object of the Fourth Amendment was to

prohibit the general warrants and writs of assistance

that English judges had employed against the colo-

nists.” /d.

The history of the Fourth Amendment is un-

mistakably clear. Its purpose was to prevent the

issuance of general warrants. CHARLES FRANCIS

ADAMS, THE WORKS OF JOHN ADAMS, SECOND

PRESIDENT OF THE UNITED STATES: WITH A

LIFE OF THE AUTHOR, NOTES AND ILLUS-

TRATIONS, VOL. II, at 124-25, 521-25, Little &

Brown (1850), as reprinted in http://www.Questia.

com. The “pervasively regulated” exception carved out

in Burger is nothing more than a general warrant.

Burger must therefore be reversed as bad law.

St. George Tucker was a law professor at the

College of William and Mary in Williamsburg, Vir-

ginia from 1790 until his appointment to the bench in

1804. While at the college he authored an edition of

Blackstone’s Commentaries, annotated with American

law. Hardy, The Lecture Notes of St. George Tucker: A

Framing of The Bill of Rights, 103 Nw. U. L. Rev.

Colloquy 272 (2008). During the last term, in District

of Columbia vu. Heller, supra, both the majority’ and

the dissent’ cited Tucker’s annotated Commentaries

* Heller, supra, 1288S. Ct. at 2805.

’ Heller, supra, 128 S. Ct. at 2839, at fn. 32

as authoritative proof of the original intent of the Sec-

ond Amendment.

Tucker also included his understanding of the

Fourth Amendment in his lecture notes. It was his

conclusion that general warrants were always

“unreasonable” and no search comported with the

Amendment unless conducted pursuant to a warrant

based on probable cause:

“The right of the people to be secure in their

persons, houses, papers & effects, against

unreasonable searches and seizures, shall

not be violated — What shall be deemed

unreasonable searches and seizures. The

same article informs us, by declaring, ‘that

no warrant shall issue,’ but first, upon

probable cause — which cause secondly, must

be supplied by oath or affirmation; thirdly

the warrant must particularly describe the

place to be searched; and fourthly — the

persons, or things to be seized. All other

searches or seizures, except such as are

thus authorized, are therefore unrea-

sonable and unconstitutional... . The case

of general warrants, under which term all

warrants except such as are above described

are included, was warmly agitated in England

about thirty years age — and after much

altercation they were finally pronounced to be

illegal by the common law — see .. . Money v.

Leach, 3 Burrow 1748. 1 Bl. Rep. 555... .”

Hardy, The Lecture Notes of St. George Tucker, supra,

103 Nw. U. L. Rev. Colloquy, at 280 (emphasis added)

8

Petitioners contend that their position is analo-

gous to that of the Boston Merchants who, in 1761,

opposed the granting of a general warrant to the

crown. Allowing Health Department inspectors the

luxury of hiding behind Health Department regula-

tions to legitimize a right to inspect and/or search

Petitioners’ child care center whenever they want, for

no apparent reason other than a regularly occurring

ostensibly “anonymous” report, with neither Peti-

tioners nor any court having a right to question their

motives, is nothing more than a general search

warrant such as was condemned by the Founding

Fathers when they drafted the Fourth Amendment.*

Lest the Court should think Petitioners are a

lone voice crying out in the wilderness, in a book

published long after this case began the author made

the same argument to overrule Burger saying:

In this book, I argue that the original un-

derstanding of the Fourth Amendment

differentiated between searches on property

and searches in public areas, generally re-

quiring warrants to search property, while

allowing warrantless searches in_ public

areas if there was cause for the search. How-

ever, in the twentieth century this intent has

* There is a wonderfully done amicus brief on the web

which catalogs numerous other authorities on writs of assis-

tance. See the brief filed on behalf of the National Association of

Criminal Defense Lawyers in Arizona v. Johnson, Supreme

Court No. 07-1122; on the web as a PDF document at American

Bar Association, http://www.supremecourtpreview.org.

9

been subverted. The government has weak-

ened protections against searches of prop-

erty, specifically commercial property, while

expanding protections against searches in

public areas.

This development arises from a change in

the conception of justice among many po-

litical and legal thinkers. In the twentieth

century these thinkers saw a need for an

administrative state to control and regulate

a vast economy that seemed to benefit only

the wealthy.

The idea that government must increase the

regulation of business led to a change in the

judiciary’s (and other government agencies)

approach to commercial searches. The public

interest, as defined by government agencies,

began tc take preference over businessmen’s

Fourth Amendment rights. So, for example,

we got the administrative warrant, which is

a warrant that does not require probable

cause.

In the case of searches in public areas, the

judiciary in the twentieth century has ap-

plied a much stricter standard than the

Founding generation. The modern judiciary,

with some retreat since the 1990’s, has re-

quired warrants to search in public areas,

while early jurists required only probable

cause. This development is also due to a

changed conception of justice, in which the

modern judiciary has embraced a notion of

liberty that emphasizes freedom divorced

10

from morality. Furthermore, criminals come

to be seen as the victims of society, in need of

protection from the judiciary and other

elites.

I argue that the Founder’s understanding of

justice and the importance of protecting

property rights serve society better than the

modern understanding of justice and our

Fourth Amendment jurisprudence would be

more just if we returned to the original un-

derstanding.”

CONCLUSION

Certiorari should be granted not simply because

this case is important to the parties but because of its

importance to the public at large. “Pervasively regu-

lated” industries include, among others: commercial

trucking; firearms; liquor; all types of mining, surface

and sub-surface; commercial fishing; shipping; plea-

sure boating; food and drug dealers; government

contractors supplying food to the mulitary; plant

separating burnable coal residue out of material

dredged from riverbed; rock quarries, even a family-

operated decorative rock quarry; licensed automobile

dismantlers, used parts dealers, and second-hand

goods dealers; auto diagnostic and repair clinics;

* Newman, Against That Powerful Engine of Despotism -

The Fourth Amendment And General Warrants At the Founding

And Today, Univ. Press of America (2007) at x (preface).

11

taverns; and, institutions giving medical care to the

aged and infirm, skilled nursing homes, hospitals and

similar institutions. United States v. Castelo, 415 F.3d

407, 410 (5th Cir. 2005); Marshall v. The Texoline Co.,

612 F.2d 935, 937 (5th Cir. 1980); Rush v. Obledo, 517

F. Supp. 905, 911 (N.D. Cal. 1981) (and all the cases

cited therein).

The history of the Amendment is clear. It makes

no provision for a warrantless search in a “perva-

sively regulated” industry. There is therefore no

reason or need to engage in a balancing of interests.

In 1878 L.Q.C. Lamar, United States Senator

from Mississippi, and later a Justice of this Court,

acted contrary to the specific instructions of the

Mississippi legislature and voted against the Bland

Thus, voting, against increasing the money supply

which would have made much needed capital avail-

able to Mississippi businessmen and farmers.

Before casting his vote Lamar made his now

famous speech, “Today, I must be true or false,” which

was lauded by all the major newspapers, in both the

North and South, as a masterful statement of prin-

ciple. Lamar said:

“Mr. PRESIDENT: Between these resolu-

tions and my convictions there is a great

gulf. I cannot pass it... . Upon the youth of

my state whom it has been my privilege to

assist in education I have always endeavored

to impress the belief that truth was better

12

than falsehood, honesty better than policy,

courage better than cowardice. Today my

lessons confront me. Today I must be true or

false, honest or cunning, faithful or unfaith-

ful to my people. Even in this hour of their

legislative displeasure and disapprobation, I

cannot vote as these resolutions direct. I

cannot and will not shirk the responsibility

which my position imposes. My duty, as I see

it, I will do; and I will vote against this bill.”

Like Lamar, this Court faces a great gulf. Today

this Court must either be true to St. George Tucker’s

correct interpretation of the Fourth Amendment that

all searches require a warrant supported by probable

cause or it must be false and continue to support the

Burger holding. Today, the Court’s lessons confront it.

The proper course is clear. There is no “pervasively

regulated” exception to the Fourth Amendment.

Clearly Burger was wrongly decided. Just as

clearly the determination of this issue vitally affects a

large segment of the country’s economy, in every one

of the fifty states. Determination of this issue is

therefore important enough to occupy the time and

* EDWARD MAYES, LUCIUS Q. C. LAMAR, HIS LIFE,

TIMES AND SPEECHES, Publishing House of The Methodist

Episcopal Church, South (2d ed. 1896) at 334.

13

attention of this Court. Therefore, the petition for

writ of certiorari should be granted.

Respectfully submitted,

PRESTON RIDEOUT, MSB No. 5346

ABRAHAM & RIDEOUT

305 West Market Street (38930)

Post Office Box 8407

Greenwood, MS 38935-8407

(662) 453-3000

Date: November 30, 2009

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60170

Summary Calendar

DEBORAH ELLIS, ET AL

Plaintiffs-Appellants

v.

MISSISSIPPI DEPARTMENT OF HEALTH, ET AL

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:07-CV-81

(Filed Sep. 2, 2009)

Before HIGGINBOTHAM, CLEMENT, and SOUTH-

WICK, Circuit Judges.

PER CURIAM::*

* Pursuant to 5TH Cir. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH Cir. R.

47.5.4.

App. 2

Plaintiffs brought suit against the Mississippi

Department of Health and thirteen of its employees

in their official and individual capacities alleging con-

stitutional violations stemming from three separate

warrantless searches of the Susie M. Brooks Child

Care Facility by the Mississippi Department of

Health (MSDH). The searches were conducted pursu-

ant to Mississippi statute permitting inspections of

child care facilities.' The district court granted the

defendants’ motion to dismiss under Rule 12(b)(6) on

the grounds of qualified immunity and denied the

plaintiffs’ motion for reconsideration. The plaintiffs

appeal the district court’s ruling dismissing the

claims against the defendants in their individual

capacities only. For the reasons set forth below, we

agree with the district court and affirm.

We review a district court’s decision on a 12(b)(6)

motion to dismiss de novo, “accepting all well-pleaded

facts as true and viewing those facts in the light most

favorable to the plaintiff.” Likewise, the review of a

motion to alter or amend judgment under Rule 59(e)

is reviewed de novo to the extent that the ruling was

a reconsideration of a question of law.”

When, as in this case, a defendant raises the

defense of qualified immunity the plaintiff must

' Miss. CODE ANN. § 43-20-15.

* Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007).

* DeCarlo v. Bonus Stores, Inc., 512 F.3d 173, 175 (5th Cir.

2007).

App. 3

satisfy a two-prong test: “First, he must claim that

the defendants committed a constitutional violation

under current law. Second he must claim that the

defendants’ actions were objectively unreasonable in

light of the law that was clearly established at the

time of the actions complained of.” The district court

rightfully found that the searches were permitted

under New York v. Burger, which permitted adminis-

trative searches of pervasively regulated industries if

they met certain criteria.” Thus there was not a

constitutional violation under current law.

Plaintiffs first ask us to overrule Burger. We

recognize this argument is made to preserve the issue

for appeal as this court is bound by Supreme Court

precedent.’

In the alternative, plaintiffs claim that the li-

censing laws do not meet the standards of Burger as

they do not provide an adequate substitute for a

warrant. Under Burger, a warrantless administrative

search of a_ pervasively regulated business is

constitutionally permitted if: 1) there is a substantial

government interest that informs the regulatory

scheme pursuant to which the inspection is made;

2) the inspection is necessary to further the regulatory

‘ Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir.

2009) (citations omitted).

* 482 U.S. 691 (1987).

° Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 US. 477, 484 (1989)

App. 4

scheme; and 3) the statutory or regulatory scheme

provides a constitutionally adequate substitute for a

warrant.’ The plaintiffs claim the third prong of this

test is not met as the statute permits inspections by

the agency “as often as deemed necessary.” The

district court’s analysis on this issue is thorough and

correct. The statutes provided notice to licensed fa-

cilities of possible inspections and the agency officials

were limited to searches within the scope of their

narrowly defined duties.’ Under Burger and this

court’s subsequent applications, the searches were

constitutionally adequate.”

Additionally, even if this were a close case, the

district court was correct in finding that the plaintiffs

had not carried the burden of proof in demonstrating

"U.S. v. Castelo, 415 F.3d 407, 409-10 (5th Cir. 2005) (citing

Burger, 482 U.S. at 702-03).

* Miss. CODE ANN. § 43-20-15.

* Td.

° See United States v. Castelo, 415 F.3d at 411 (discussing

limitations on searches by Mississippi Department of Transpor-

tation officials); see also Beck v. Texas State Bd. of Dental Ex-

aminers, 204 F.3d 629 (5th Cir. 2000). The plaintiffs’ claim that

the holding of Beck turned on the fact that language stating

searches were permitted “on demand” had not yet been added to

the statute at issue. The plaintiffs misread the opinion. Rather,

the opinion was merely careful to point out which language

would be considered as there had been subsequent amendments.

It did not suggest that the later addition of “on demand” would

have led to a different outcome

App. 5

that the agency employees’ actions were objectively

unreasonable.

The district court’s rulings are AFFIRMED

App. 6

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

DEBORAH ELLIS, et al. PLAINTIFFS

Vv. CIVIL ACTION NO.: 4:07CV81-SA

MISSISSIPPI DEPARTMENT

OF HEALTH, et al. DEFENDANTS

ORDER ON MOTION FOR RECONSIDERATION

(Filed Feb. 5, 2009)

Comes now before this Court, Plaintiff’s Motion

for Reconsideration [18].' After reviewing the mo-

tions, responses, rules, and authorities, the Court

makes the following findings:

Factual Background

The Court issued an opinion and order granting

the Defendants’ Motion to Dismiss [16]. Specifically,

this Court held that the Mississippi Department of

Health (“MDH”) is not subject to suit under 42 U.S.C.

§ 1983 as an arm of the state, the MDH employees in

their official capacities were entitled to that same

' The docket also notes that Plaintiffs filed a second Motion

for Reconsideration [27]. However, after reviewing that docu-

ment, it is clear to this Court that Plaintiffs were not requesting

an additional reconsideration but misfiled their Rebuttal Memo-

randum as a motion for reconsideration. Therefore, this “motion”

is moot

App. 7

defense, and those employees in their individual ca-

pacities were entitled to qualified immunity. There-

fore, this Court dismissed the Plaintiffs’ claims.

The Plaintiffs have filed a Motion for Reconsider-

ation pursuant to Federal Rule of Civil Procedure

59(e). Particularly, Plaintiffs’ seek to have this Court

revisit whether the MDH employees are entitled to

qualified immunity in their individual capacities.

Reconsideration Standard

The Federal Rules of Civil Procedure do not

recognize a motion for reconsideration in those words.

Lavespere v. Niagra Mach. & Tool Works, Inc., 910

F.2d 167, 173 (5th Cir. 1990); Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en

banc). However, the Fifth Circuit has held that such a

motion may be entertained by a court and should be

treated either as a motion to alter or amend pursuant

to Rule 59(e), or a motion for relief from judgment

pursuant to Rule 60(b). Shepherd v. Int'l Paper Co.,

372 F.3d 326, 328 n.1 (5th Cir. 2004). Specifically, if

the motion for reconsideration is filed and served

within ten days of the rendition of judgment, the

motion falls under Rule 59(e). Hamilton Plaintiffs v.

Williams Plaintiffs, 147 F.3d 367, 371 n.10 (5th Cir.

1998). Because the current motion was filed within

ten days of the judgment, the Court will consider it

under Rule 59(e). See, e.g., Neely v. Regions Bank,

Inc., 2007 U.S. Dist. LEXIS 11775, 2007 WL 571111

(N.D. Miss. Feb. 20, 2007).

App. 8

Rule 59(e) “servels] the narrow purpose of

allowing a party to correct manifest errors of law or

fact or to present newly discovered evidence.” Simon

v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990).

Under Rule 59(e), there are three possible grounds for

granting a motion for reconsideration: (1) an inter-

vening change in controlling law; (2) the availability

of new evidence not previously available; or (3) the

need to correct a clear error of law or prevent

manifest injustice. Jn re Benjamin Moore & Co., 318

F.3d 626, 629 (5th Cir. 2002). The motion to amend a

judgment under Rule 59(e) “must clearly establish

either a manifest error of law or fact or must present

newly discovered evidence and cannot be used to

raise arguments which could, and should, have been

made before the judgment issued.” Rosenzweig uv.

Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003).

Application and Analysis

Turning to the instant case, Plaintiffs assert that

this Court’s holding that the Plaintiffs had no

reasonable expectation of privacy because day care

facilities are a pervasively regulated industry is

contrary to the history and meaning of the Fourth

Amendment. Moreover, Plaintiffs argue that New

York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96

L. Ed. 2d 601 (1987), and its progeny were wrongly

decided by the United States Supreme Court. Al-

ternatively, the Plaintiffs argue that the MDH in-

spection program does not provide a constitutionally

App. 9

adequate substitute for a warrant and is uncon-

stitutional under the Fourth Amendment.

In a forty-five page brief, the Plaintiffs outline

the history of this country’s concern with protecting

citizens’ property from interference by the govern-

ment. Citing the Magna Carta, Adam Smith, Alexis

de Tocqueville, and Sherlock Holmes, Plaintiffs argue

that the United States Supreme Court’s interpre-

tation of the Fourth Amendment is not in line with

the intentions of our Constitutional forefathers.

This Court is bound to follow prior case law

established by the Fifth Circuit and the United States

Supreme Court. See Loumar, Inc. v. Smith, 698 F.2d

759, 762 (5th Cir. 1983). Thus, this Court will not

challenge those rulings consistently handed down by

its’ [sic] appellate courts. Plaintiffs readily admit that

these arguments were made in their original oppo-

sition to the Defendants’ Motion to Dismiss.

In the memorandum opinion on May 8, 2008, this

Court laid out the standard for establishing qualified

immunity:

A public official performing a discretionary

function enjoys qualified immunity in a civil

action for damages, provided his or her

conduct does not violate clearly established

federal statutory or constitutional rights of

which a reasonable person would have

known. Harlow v. Fitzgerald, 457 U.S. 800,

818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).

App. 10

After an extensive analysis of the Fourth

Amendment and United States Supreme Court

precedent, this Court determined that due to the

extensive regulations promulgated by the State and

the necessity of open access granted to parents of

children enrolled in a daycare, child care business

owners have a lower subjective expectation of privacy

because that industry is pervasively regulated. See

United States v. Blocker, 104 F.3d 720, 728 (5th Cir.

1997). Child care business owners are aware at the

time of their licensure that they are subject to search

at any time and must freely permit parents of those

children cared for in their facility open access at all

times to the facility. Thus, the three searches per-

formed by MDH were not clearly established con-

stitutional violations of the Fourth Amendment, and

the individuals were entitled to qualified immunity.

As the Plaintiffs have not presented an

intervening change in controlling law; the availability

of new evidence not previously available; or the need

to correct a clear error of law or prevent manifest

injustice as to this point of law, the Motion for

Reconsideration is denied.

Plaintiffs also attached to their Motion for

Reconsideration several affidavits alleging that the

search decisions were based on false information.

Plaintiffs allege that the individual defendants are

not entitled to qualified immunity because it was not

objectively reasonable to knowingly base a search

decision on false information. These allegations were

not presented to the district court in the briefing on

App. 11

the Motion to Dismiss. However, the Court notes that

the information could have been presented to the

Court prior to dismissal. Plaintiffs have failed to show

that this evidence was previously unavailable and

thus, cause for this Court to reconsider its’ [sic] prior

ruling. Defendants have filed a Motion to Strike [26]

these affidavits because they were not presented to

the Court for consideration on the motion to dismiss.

Because Plaintiffs had knowledge and the ability to

bring forth these facts and chose not to assert them

prior to the dismissal, these affidavits are hereby

struck. Defendants Motion to Strike [26] is granted.

Regardless of Plaintiffs failure to bring this in-

formation to the Court’s attention, qualified im-

munity would still be available to the individual

defendants because Plaintiffs have failed to show that

they violated a clearly established constitutional

right. In its memorandum opinion, this Court noted

the step-by-step analysis for qualified immunity:

Although qualified immunity is an _ affir-

mative defense, see Gomez v. Toledo, 446 U.S.

635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572

(1980), once the defendant pleads qualified

immunity, the burden shifts to the plaintiff

to show that the right allegedly violated was

clearly established at the time of the chal-

lenged conduct. See Pierce v. Smith, 117 F.3d

866, 871 (5th Cir. 1997) (where § 1983 de-

fendant pleads qualified immunity and

shows he is a government official whose

position involves the exercise of discretion,

plaintiff has the burden to rebut qualified

App. 12

immunity defense by establishing the vio-

lation of clearly established law).

Thus, because Plaintiffs have failed to show that the

right allegedly violated was clearly established at the

time of the searches, the Court does not have to reach

the “objectively reasonable” analysis.

Plaintiffs also argue that if the Court affirms its

prior finding that there was no clearly established

constitutional right violated in this case, this Court

should deem the statutory scheme of MDH regulatory

inspections unconstitutional as an inadequate sub-

stitute for a warrant.

This Court, in its memorandum opinion, spe-

cifically held that MDH’s regulations were a con-

stitutionally adequate substitute for a warrant. In

particular, the Court noted that upon applying for

and receiving a state-issued license, the statute

provides notice to the licensee that regular and

unannounced inspections will occur. Moreover, the

statutes provide notice of how to comply with the

regulations. Therefore, inspectors are sufficiently

limited in the scope of their searches to those

violations of the enumerated regulations.

As Plaintiffs have failed to bring forth any

intervening change in controlling law; the availability

of new evidence not previously available; or the need

to correct a clear error of law or prevent manifest

injustice, the Motion for Reconsideration is denied.

App. 13

SO ORDERED, this the 5th day of February,

2009.

/s/ Sharion Aycock

U.S. DISTRICT JUDGE

App. 14

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

DEBORAH ELLIS, et al. PLAINTIFFS

Vv. CIVIL ACTION

NO.: 4:07CV81

MISSISSIPPI DEPARTMENT DEFENDANTS

OF HEALTH, et al.

OPINION ON MOTION TO DISMISS

(Filed May 8, 2008)

Plaintiffs Deborah Ellis, Jennifer Brown, M.T.

Person III, and Sindie House filed suit in Leflore

County Circuit Court alleging various constitutional

violations as grounds for a claim under 42 U.S.C.

§ 1983. They allege that the Mississippi Department

of Health (“MDH”) and their employees conducted

three illegal searches of the Susie M. Brooks Child

Care Facility. Specifically, the Plaintiffs allege that

the agents had no probable cause to suspect child

abuse was occurring in their facility, other than

anonymous phone calls, and that their searches were

thus illegal. Named as defendants are MDH, Theresa

Patton, Cynthia Lesure, Tina Moore, and John Does

1-10, brought in their official capacity, as well as their

individual capacity.

Defendants brought this Motion to Dismiss on

the basis that a state agency is not liable under 42

U.S.C. § 1983, and as officials acting within the

course and scope of their governmental duties, the

App. 15

individuals are shielded by qualified immunity.

Therefore, they aver, no action can be maintained

against these defendants. After reviewing all plead-

ings, motions, and upon due consideration, the Court

finds that this motion is well taken and should be

granted.

A. Factual Background

The Plaintiffs’ complaint alleges violations of

their First, Fourth, Fifth, and Fourteenth Amend-

ment rights for three supposed unconstitutional

searches of the Susie M. Brooks Child Care Facility.

Plaintiffs first contend that on January 29, 2004,

Theresa Patton and Cynthia Lesure, acting in their

capacity as MDH child care licensing officials, came

to the Susie M. Brooks Child Care Facility in re-

sponse to an “anonymous phone call” that the Di-

rector, Sindie House, had within the previous several

days allegedly abused two children enrolled at the

facility. Pursuant to gaining entry onto the premises,

the child abuse charge was allegedly investigated “by

search and seizure and interrogation.” Complaint,

{ 6. The Plaintiffs allege that during that initial child

abuse investigation, Sindie House was unlawfully

taken into custody for interrogation and other Plain-

tiffs were threatened with jail time unless they

agreed to testify against Sindie House. The Plaintiffs

maintain that after the child abuse investigation was

complete, the licensing officials then engaged in a

general regulatory inspection. The final result of the

regulatory inspection was a $350 fine for improper

App. 16

discipline for having a child under the age of three

years in “time out.” No formal abuse charges were

ever made stemming from this investigation.

The second incident complained of by the Plain-

tiffs involved Alfred Dean King, a private investigator

hired by Plaintiff Deborah Ellis. On May 13, 2004,

King called Theresa Patton at the MDH to inquire as

to how a citizen would make a complaint of child

abuse against a day care provider. She allegedly in-

formed him that a complaint could be made anony-

mously or by giving a name. King additionally asked

whether MDH had any current complaints against

any child care providers in Leflore County, to which

Ms. Patton replied that MDH was in the process of

investigating the Susie M. Brooks Child Care Facility.

The next day, Patton, along with three other agency

employees (Does 1, 2, 3) arrived at the Susie M.

Brooks Child Care Facility to investigate an anony-

mous child abuse complaint received the day before.

The Plaintiffs contend that MDH and its officers

illegally investigated the Susie M. Brooks Child Care

Facility based on the telephone call from their private

investigator who did not made any allegation of child

abuse at that facility. Patton charged the Susie M.

Brooks Child Care Facility with an administrative

violation during that incident.

The third incident occurred on December 14, 2005,

when Tina Moore appeared at the Susie M. Brooks

Child Care Facility with two other MDH employees

(Does 4 and 5). She announced she was there to in-

vestigate a child abuse charge that a care giver had

App. 17

struck a child. She stated the complainant parent

asked to remain anonymous. She further requested

the personnel file of the alleged abuser, Sandifer, the

personnel file of Deborah Ellis and the facility’s file

on the child allegedly abused. After a brief interro-

gation of the alleged abuser, Deborah Ellis asked the

investigators to leave, and they complied with this

request. No formal child abuse charges were ever

made.

The Plaintiffs specifically allege that the three

searches were unconstitutional or unlawful for the

following reasons: (1) the defendants had no statutory

authority to conduct a search or investigation into an

allegation of child abuse unless and until a referral is

made to MDH by the Mississippi Department of

Human Services; (2) no search warrant was obtained

for the criminal charge of “child abuse” against the

Plaintiffs; and (3) an “anonymous” phone call is not

probable cause for the issuance of a criminal search

warrant. Moreover, the Plaintiffs contend that the

MDH regulations and any administrative search

pursuant thereto violate the Fourth Amendment of

the United States Constitution, made applicable to

the states by the Fourteenth Amendment, in the fol-

lowing particulars: the regulation does not carefully

limit the time, place, and scope of the search and,

therefore, does not limit the discretion of the in-

specting officers.

App. 18

B. Discussion and Analysis

I. Standard for a Motion to Dismiss

“A Rule 12(b)(6) motion is disfavored, and it is

rarely granted. Clark v. Amoco Prod. Co., 794 F.2d

967, 970 (5th Cir. 1986); Sosa v. Coleman, 646 F.2d

991, 993 (5th Cir. 1981). Dismissal is never war-

ranted because the court believes the plaintiff is un-

likely to prevail on the merits. Scheuer v. Rhodes, 416

U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).

Even if it appears an almost certainty that the facts

alleged cannot be proved to support the claim, the

complaint cannot be dismissed so long as the com-

plaint states a claim. Clark, 794 F.2d at 970;

Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d

759, 762 (5th Cir. 1984). “To qualify for dismissal un-

der Rule 12(b)(6), a complaint must on its face show a

bar to relief.” Clark, 794 F.2d at 970; see also Mahone

v. Addicks Util. Dist., 836 F.2d 921, 926 (5th Cir.

1988); United States v. Uvalde Consol. Indep. Sch.

Dist., 625 F.2d 547, 549 (5th Cir. 1980), cert. denied,

451 U.S. 1002, 68 L. Ed. 2d 858, 101 S.Ct. 2341

(1981). Dismissal is appropriate only when the court

accepts as true all well-pled allegations of fact and, “it

appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle

him to relief.” Thomas v. Smith, 897 F.2d 154, 156

(5th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41,

45-6, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)); see Mahone,

836 F.2d at 926; McLean v. International Harvester,

817 F.2d 1214, 1217 n.3 (5th Cir. 1987); Jones uv.

United States, 729 F.2d 326, 330 (5th Cir. 1984).

App. 19

While dismissal under Rule 12(b)(6) ordinarily is

determined by whether the facts alleged, if true, give

rise to a cause of action, a claim may also be dis-

missed if a successful affirmative defense appears

clearly on the face of the pleadings. Clark, 794 F.2d at

970; Kaiser Aluminum & Chem. Sales, Inc. v. Avon-

dale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.

1982), cert. denied, 459 U.S. 1105, 103 S. Ct. 729, 74

L. Ed. 2d 953 (1983).

II. Immunity under Section 1983

The Plaintiffs bring their claims pursuant to 42

U.S.C. § 1983 which states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, causes to be subjected,

any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or im-

munities secured by the Constitution and

laws, shall be liable to the party injured in

an action at law, suit in equity, or other

proper proceeding for redress.

(a) Mississippi Department of Health

The Mississippi Department of Health asserts it

is immune from suit based on its relation as an arm

of the State. Indeed, the United States Supreme

Court has recognized that a federal court § 1983 suit

against a state for any type of relief is precluded as

App. 20

that entity is not a “person” as required by the stat-

ute, a ruling that has been extended to state agencies

as well. Alabama v. Pugh, 438 U.S. 781, 782, 98S. Ct.

3057, 57 L. Ed. 2d 1114 (1978). Moreover, in Will v.

Michigan Department of State Police, the United

States Supreme Court established that the State and

arms of the State, which have traditionally enjoyed

Eleventh Amendment immunity, are not subject to

suit under § 1983 in either federal or state court. 491

U.S. 58, 70, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).

Plaintiffs contend that the Defendants have

waived their Eleventh Amendment immunity by re-

moving the case from state to federal court and cite

Lapides v. Board of Regents as support for this

position. 535 U.S. 613, 122 S. Ct. 1640, 152 L. Ed. 2d

806 (2002). Indeed, the Supreme Court noted in

Lapides that a State, in removing a case from state to

federal does waive the protections of the Eleventh

Amendment. However, the issue here is not whether

the MDH is covered under Eleventh Amendment

immunity, but rather, are they able to be sued under

§ 1983. Therefore, the first inquiry is whether the

Mississippi Department of Health is considered an

arm of the State.

The Fifth Circuit has held that to determine

whether an entity is an arm of the state, the court

must consider the following: (1) the state law

characterization of the entity; (2) the source of the

entity's funding; (3) the degree of the entity’s local

autonomy; (4) whether the entity is concerned

primarily with state or local problems; (5) whether

App. 21

the entity has authority to sue and be sued in its own

name; and (6) whether the entity has a right to hold

and use the property. Skelton v. Camp, 234 F.3d 292,

297 (5th Cir. 2000) (citing Clark v. Tarrant County,

Texas, 798 F.2d 736, 744-45 (1986) (outlining factors

to determine whether an entity is an arm of state)).

This test is commonly referred to as the “Clark” test

and the Fifth Circuit has informed the lower courts

that “[t]he second factor is usually accorded the most

weight.” Skelton, 234 F.3d at 297-98 (citing Dela-

houssaye v. City of New Iberia, 937 F.2d 144, 147-48

(5th Cir. 1991)).

The statutory framework for the Mississippi De-

partment of Health is found at Mississippi Code

Section 43-3-15, et seg. (Rev. 2007). That statute rec-

ognizes that the Mississippi Department of Health is

an extension of the State Board of Health and is to be

the enforcement mechanism of the public health poli-

cies and programs instituted by the State Board of

Health. See Miss. Code Ann. § 43-3-15(5)(a). Indeed, a

statutory role of the State Board of Health is to for-

mulate the policy of the State Department of Health

regarding public health matters. Miss. Code Ann.

§ 43-3-15(1)(b)\(1). Section 43-3-15(5)(a) specifically

enumerates several areas in which the Mississippi

Department of Health administers programs for the

State Board of Health, including, but not limited to,

maternal and child health, control of communicable

diseases, and child care licensure. Therefore, the stat-

utory characterization of the Mississippi Department

of Health is as an administrative and implementation

App. 22

department working in conjunction with the State

Board of Health.

Section 43-20-12 notes that all fees and penalties

collected by MDH in their capacity as licensing

agents of child care facilities are deposited into a

“special fund” created in the State Treasury which is

used for the implementation and administration of

the licensing statutes. Therefore, the court finds that

MDH is funded through the State Treasury, the state

legislature, and by fees from those seeking to legally

operate child care facilities within the State.

The Child Care Licensing Law, found at Missis-

sippi Code § 43-20-1, et seqg., characterizes the MDH

as a licensing agency. As a licensing agency under the

Mississippi Code, MDH is authorized to promulgate

rules and regulations concerning the licensing and

regulation of child care facilities. Miss. Code Ann.

§ 43-20-8(1)(a). Moreover, MDH has the unfettered

authority to issue, deny, suspend or revoke licenses,

set and collect fees and penalties, and have “such

other powers as may be required to carry out the

provisions of [the Child Care Licensing Laws].”

The entity at issue here, a licensing agent of

child care facilities, is primarily concerned with state-

wide problems. As stated above, MDH has been

charged with promulgating regulations and rules for

the licensing and regulation of child care facilities.

Additionally, they wield state-wide power over the

licensees once they are issued. More generally, the

MDH is given wide latitude in the enforcement and

App. 23

administration of State Board of Health programs.

No statutory reference is made to the locality of those

programs, but since the State Board of Health is a

state-wide organization, factor four of the Clark test

is satisfied that MDH is concerned primarily with

state-wide problems.

Mississippi Code § 43-20-8(7) states that under

this statutory scheme for the licensing of child care

facilities, “[t]he licensing agency and its agents, offi-

cers, employees, attorneys and representatives shall

not be held civilly liable for any findings, recommen-

dations or actions taken under this section.” Clearly,

in their capacity as licensing agents, the Mississippi

State Legislature has precluded MDH from suit un-

der the Child Care Licensing Laws. Moreover, in its

role as investigator of child care facilities, the Legis-

lature has specifically precluded suit against the

MDH noting that “(t]he Department of Health shall

not be held civilly liable” for releasing information

obtained as a result of an investigation of abuse.

Miss. Code Ann. § 43-21-257(4). Therefore, statutory

limits on MDH’s liability have been established to

civilly protect that institution.

The Mississippi Department of Health’s authority

to hold and use property is not expressly addressed in

the statutes mentioned above. MDH is allowed to

charge and collect a fee and any necessary costs in-

curred by the licensing agency for criminal history

record checks. Licensing fees paid to the MDH under

§ 43-20-11 and all fees and penalties are deposited

into the State Treasury and are to be used for the

App. 24

“Implementation and administration” of the Child

Care Licensing Laws when appropriated by the Leg-

islature. Miss. Code Ann. § 43-20-12. We find that

MDH has abrogated its right to hold and use property

to the State Treasury.

MDH brings forth other case law holding other

entities as “arms of the State” and also alleges that

MDH has implicitly been recognized as an arm of the

State by a federal court. See O’Neal v. Miss. Board of

Nursing, 113 F.3d 62 (5th Cir. 1997) (Mississippi

Board of Nursing); Cooley v. Miss. Dep't of Transp., 96

F. Supp. 2d 565 (S.D. Miss, 2000) (Mississippi Depart-

ment of Transportation); Kinnison v. Miss. Dep't of

Wildlife, Fisheries, and Parks, 990 F. Supp. 481 (S.D.

Miss. 1998) (Mississippi Department of Wildlife,

Fisheries, and Parks); King v. Miss. Hwy. Patrol, 827

F. Supp. 402 (S.D. Miss. 1993) (Mississippi Highway

Patrol); Scanlon v. Dept of Mental Health, 828

F. Supp. 421 (S.D. Miss. 1993) (Mississippi Depart-

ment of Mental Health); Chrissy FP’ V. Miss. Dep't of

Public Welfare, 780 F. Supp. 1104 (S.D. Miss. 1991)

(Mississippi Department of Public Welfare); Davis v.

State Dep’t of Health, 744 F. Supp. 756, 758 n.1 (S.D.

Miss. 1990) (recognizing by admission of plaintiff that

claims against MDH and individuals in official capac-

ity were not viable under Section 1983).

This Court, therefore, finds as a result of the

Clark analysis undertaken above, and in recognition

of case authority approving same, that MDH is an

“arm of the State” for § 1983 immunity purposes.

App. 25

Because the Court finds here that the Mississippi

Department of Health is an “arm of the State” in

accord with Skelton, 234 F.3d 292, and Clark, 798

F.2d 736, the entity is not subject to suit under

§ 1983, and is therefore, dismissed from this suit.

(b) Official Capacity Claims against State

Employees

Next, we consider whether MDH employees are

equally entitled to this defense. In West v. Atkins, the

United States Supreme Court stated that “renerally,

a public employee acts under color of state law while

acting in his official capacity or while exercising his

responsibilities pursuant to state law.” 487 U.S. 42,

50, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). The

Plaintiffs in this action have brought suit against the

Defendanis in their individuai, as well as their

official capacity. In Kentucky v. Graham, the Supreme

Court explained the difference between individual

capacity claims and official capacity claims:

Personal-capacity suits seek to impose per-

sonal liability upon a government official for

actions he takes under color of state law.

Official-capacity suits, in contrast, “generally

represent only another way of pleading an

action against an entity of which an officer is

an agent.” As long as the government entity

receives notice and an opportunity to re-

spond, an Official-capacity suit is, in all

respects other than name, to be treated as a

suit against that entity. It is not a suit

against the official personally, for the real

App. 26

party in interest is the entity. Thus, while an

award of damages against an official in his

personal capacity can be executed only

against the official’s personal assets, a plain-

tiff seeking to recover on a damages judge-

ment in an official-capacity suit must look to

the government entity itself.

473 U.S. 159, 165-66, 105 S. Ct. 3099, 87 L. Ed. 2d

114 (1985) (internal citations omitted). Therefore, a

suit against a governmental employee in their official

capacity is “no different from a suit against the State

itself.” Will, 491 U.S. at 71, 109 S. Ct. 2304.

Here, the Plaintiffs have sued Theresa Patton,

Cynthia Lesure, Tina Moore, and Does 1-10 in their

official capacities as employees of the Mississippi

Department of Health. Because these defendants are

sued in their official capacities as employees of the

Mississippi State Department of Health, they are

entitled to the same immunity under § 1983 available

to MDH. See Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct.

358, 116 L. Ed. 2d 301 (1991) (noting that “the only

immunities available to the defendant in an official-

capacity action are those that the government entity

possesses”). Therefore, suit cannot be maintained

against Patton, Lesure, Moore, and Does 1-10 in their

official capacity and they are hereby dismissed from

this suit.

App. 27

(c) Individual Capacity Claims of State

Employees

The parties, however, cannot hide behind sover-

eign immunity as defendants in their individual

capacities. In Hafer v. Melo, the Supreme Court

unanimously held that state officials sued for dam-

ages in their personal capacities are “persons” within

the meaning of § 1983, even when the claim is based

upon the carrying out of official responsibilities. 502

U.S. 21, 112 S.Ct. 358. The Court rejected the novel

proposition that the fact that the official acted un-

der public authority, which fulfills the color of law

requirement, insulates the official from personal

liability. However, officials sued under § 1983 in their

personal capacities may be able to assert a qualified

immunity defense.

A public official performing a discretionary func-

tion enjoys qualified immunity in a civil action for

damages, provided his or her conduct does not violate

clearly established federal statutory or constitutional

rights of which a reasonable person would have

known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Under this test,

an official who acted unconstitutionally, but did not

violate clearly established federal law will be found to

have acted in an objectively reasonable manner and

will be protected from personal liability by qualified

immunity. In Wyatt v. Cole, the Supreme Court held

that Harlow qualified immunity applies to govern-

mental officials “where it is necessary to preserve

their ability to serve the public good or to ensure that

App. 28

talented candidates were not deterred by the threat

of damage suits from entering public service.” 504

U.S. 158, 167, 112 S.Ct. 1827, 118 L. Ed. 2d 504

(1992). The Court further explained that the defense

is designed to “protect the public at large, not to

benefit its agents.” Jd. at 168.

Although qualified immunity is an affirmative

defense, see Gomez v. Toledo, 446 U.S. 635, 640, 100

S. Ct. 1920, 64 L. Ed. 2d 572 (1980), once the de-

fendant pleads qualified immunity, the burden shifts

to the plaintiff to show that the right allegedly

violated was clearly established at the time of the

challenged conduct. See Pierce v. Smith, 117 F.3d 866,

871 (5th Cir. 1997) (where § 1983 defendant pleads

qualified immunity and shows he is a government

official whose position involves the exercise of dis-

cretion, plaintiff has the burden to rebut qualified im-

munity defense by establishing the violation of clearly

established law). For a right to be clearly established,

“there does not have to be a prior case directly on

point, but the unlawfulness of the precipitating acts

must be apparent in light of the existing law.” Hassan

v. Lubbock Indep. Sch. Dist., 55 F.8d 1075, 1079 (5th

Cir. 1995). Indeed, “the determination whether a

right is ‘clearly established’ is a more particularized

inquiry” that focuses on whether a reasonable official

would know that the specific act in question was un-

lawful. Anderson v. Creighton, 483 U.S. 635, 639-40,

107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987).

Plaintiffs allege here that the Defendants have

violated their First, Fourth, Fifth, and Fourteenth

App. 29

Amendment rights. Specifically, the Plaintiffs assert

that the Defendants committed an unreasonable

search and seizure in violation of the Fourth Amend-

ment’s requirement of probable cause prior to search

and seizure. “Discretionary duties enjoying a quali-

fied immunity are duties positively imposed by law

but which are dependent upon an officer’s judgment

or discretion.” Bankston v. Pass Rd. Tire Center, Inc.,

611 So. 2d 998, 1008-09 (Miss. 1992). The Plaintiffs

assert that the actions taken by the Defendants were

not “duties positively imposed by law.” Indeed, they

contend that the MDH and its employees are not

statutorily authorized to investigate child abuse

allegations.

We note here that under Mississippi Code

Section 43-20-15, MDH is authorized to “make or

cause to be made inspections relative to compliance

with the laws and regulations governing the licensure

of child care facilities. Such inspections shall be made

at least once a year but additional inspections may be

made as often as deemed necessary by the licensing

agency.” However, the Plaintiffs contend that such

duties of inspection regarding child abuse are gov-

erned by § 43-21-353, which provides that reports are

to be made to the Department of Human Services,

who in turn makes a referral to MDH if the abuse

allegedly occurs in a licensed child care facility. There

have been no facts alleged or raised that MDH re-

ceived the chiid abuse tip from the Department of

Human Services. However, this misstep does not

App. 30

preclude the Defendants from asserting qualified im-

munity.

The Fourth Amendment protects individual’s

expectation of privacy, rather than specific places; if

there is no expectation of privacy, individual’s right to

privacy cannot be violated, and search of such place is

not unreasonable and not unconstitutional. A Fourth

Amendment search does not occur unless the indiv-

idual manifested a subjective expectation of privacy

in the object of the challenged search and society is

willing to recognize that expectation as reasonable.

See California v. Ciraolo, 476 U.S. 207, 213, 106

S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (outlining Katz v.

United States test for reasonable expectation of

privacy, found at 389 U.S. 347, 88 S.Ct. 507, 19

L. Ed. 2d 576 (1967)). The Fifth Circuit has consis-

tently held that “persons who engage in pervasively

regulated industries have a diminished expectation of

privacy” under the Fourth Amendment. See United

States v. Blocker, 104 F.3d 720, 728 (5th Cir. 1997);

Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S. Ct.

2534, 69 L.Ed.2d 262 (1981) (holding that an

expectation of privacy in commercial premises is dif-

ferent from, and indeed less than, a similar ex-

pectation in an individual’s home).

To determine whether an industry is “pervasively

regulated” such that a diminished expectation of priv-

acy in the workplace is assumed, the Supreme Court,

in New York v. Burger, set out the following factors to

be analyzed by the lower courts: whether the regula-

tions concerning the activity are extensive; whether

App. 31

an operator can engage in the industry without first

obtaining a license, meaning that he must meet the

registration requirements and must pay a fee; wheth-

er records must be maintained and made available

for inspection; whether registration number must be

displayed prominently; whether persons engaged in

activity are subject to criminal penalties, as well as to

the loss of license or civil fees for failure to comply

with provisions; whether other states have imposed

similarly extensive regulations; and the duration of

particular regulatory scheme and history of govern-

ment regulations. 482 U.S. 691, 703-04, 107 S. Ct.

2636, 96 L. Ed. 2d 601 (1987).

Section 43-20-8 of the Mississippi Code sets out

some of the duties imposed on child care facilities

operating within the State of Mississippi. Specifically,

the statute requires that child care facilities develop

and maintain accurate contact lists for each child at

the facility. Further, the statute mandates that

facilities check and update current criminal record

backgrounds checks and child abuse registry lists

often and allow the MDH to make regular investi-

gations of the facilities to make sure they are in

compliance with the statute. Other statutes regu-

lating child care facilities govern the procedures and

steps that must be taken in order to receive a license,

fees associated with licensure, and steps taken for

violating those regulations promulgated by MDH.

These regulations must be complied with if oper-

ators seek to establish and keep the license neces-

sary for its operation. According to Mississippi Code

App. 32

Section 43-20-9, “no person shall own, operate, con-

duct or maintain a child care facility in this state

without a license.” In order to obtain that license,

Section 43-20-11 states that the person seeking the

license must complete forms and provide required

information, shall pay a licensing fee not to exceed

$200, and present a certificate of inspection and

approval by a local fire department and the MDH.

Moreover, the section mandates that “[l]icenses shall

be posted in a conspicuous place on the licensed

premises.” Miss. Code Ann. § 43-20-11.

In order to remain licensed, each child care fa-

cility must maintain certain records and make them

available for MDH inspection. For example, all facili-

ties must maintain records for the children in the

facility, including medical and immunization records,

staff records, which include background checks and

personnel actions, and safety inspections.

Section 43-20-14 concerns the denial, suspension,

or revocation of licenses to child care facilities and

states that the licensing agency may suspend, revoke,

or restrict the license of any child care facility for

failure to comply with the provisions of the Act or

regulations governing the licensing and regulation of

child care facilities promulgated by the MDH. Miss.

Code Ann. § 43-20-14(3)(c). Indeed, the act states that

“[aJny conduct, or failure to act, that is found or deter-

mined by the licensing agency to threaten the health

or safety of children at the facility entitles MDH to

revoke the license.” Miss. Code Ann. § 43-20-14(3)(d).

This procedure is in keeping with the overall policy of

App. 33

the Mississippi Child Care Licensing Law that “a

child is not capable of protecting himself, and when

his parents for any reason have relinquished his care

to others, there arises the probability of exposure of

that child to certain risks to his health and safety

which require the offsetting statutory protection of

licensing.” Miss. Code Ann. § 43-20-3. Further, al-

though no particular criminal penalties are outlined

in the regulations for failure to comply with the pro-

visions, the Plaintiffs have highlighted that § 43-21-

353 imposes a criminal investigation where a licensed

facility is the site of alleged child abuse, and requires

MDH to provide information gathered to law enforce-

ment agencies and the district attorney’s office.

The Mississippi Child Care Licensing Law has

been present in the Mississippi Code since the publi-

cation of those statutes in 1942. A quick glance at

surrounding Fifth Circuit states and their child care

licensing laws shows equally extensive regulations

and time period for implementation. See Tennessee,

T.C.A. § 40-19-7465, et seq. (creating minimum stan-

dards for licensing of child care facilities similar to

Mississippi); Louisiana, R.S. 46:1401, et seq. (creating

two state licensing classes for child care facilities;

Class A, the more stringent qualification, closely re-

sembles the Mississippi regulations).

Moreover, by accepting a license from MDH, the

director has agreed to be subject to search and sei-

zure by licensing agents at any time, with or without

a search warrant, and with or without probable

cause. See Samson v. California, 547 U.S. 843, 126

App. 34

S. Ct. 2193, 165 L. Ed. 2d 250 (2006). Accordingly, the

court finds today that there is a lower expectation of

privacy in a child care facility due to the extensive

regulatory guidelines and open access granted to

parents of children enrolled there.

Pursuant to Burger,, warrantless searches are

reasonable, and thus, constitutional if three criteria

are met. 482 U.S. at 702-03, 107 S. Ct. 2636. First,

there must be a substantial government interest in

supporting the regulatory scheme. The government

interest in this instance is the regulation of child care

facilities and responding to allegations of child care

abuse. This interest is related to the health and

safety of children which is considered a substantial

government interest. Hill v. Colorado, 530 U.S. 703,

715, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).

Second, warrantless searches must be necessary to

further the regulatory scheme. In Donovan, the Su-

preme Court recognized the futility of warning mine

owners or operators of impending inspections. 452

U.S. at 600, 101 S. Ct. 2534 (1981). The Court noted

that warning of impending inspections would thereby

frustrate the purposes of the statute and prevent

deterrence of safety and health violations. Jd. at 603,

101 S. Ct. 2534. Likewise, here, warnings of impend-

ing inspections may prevent MDH from adequately

performing their duties and jobs in the securing

of health and safety standards for children i» child

care facilities. The third requirement for warrantless

searches to be held reasonable is that the inspec-

tion program provides a constitutionally adequate

App. 35

substitute for a warrant. Burger, 482 U.S. at 703, 107

S. Ct. 2636. The Court in Burger stated:

In other words, the regulatory statute must

perform the two basic functions of a warrant:

it must advise the owner of the commercial

premises that the search is being made pur-

suant to the law and has a properly defined

scope, and it must limit the discretion of the

inspecting officers.

Id. (citations omitted). The MDH is statutorily im-

bued with the authority to investigate reports of child

abuse at a licensed child care facility, as well as

compliance with the regulations promulgated for the

health and safety of the children in those facilities.

Miss. Code Ann. § 43-21-353(8). The Child Care Li-

censing Laws provides notice that regular and unan-

nounced inspections will occur as often as deemed

necessary by the licensing agency. Miss. Code Ann,

§ 43-20-15. Moreover, those statutes provide notice of

how to comply with the law by setting forth regula-

tions and rules which apply to all licensed child care

facilities. Miss. Code Ann. § 43-20-1, et seg. Accord-

ingly, the MDH officers were sufficiently limited in

scope in their search. The agents stated that they

were inspecting an allegation of child abuse — which

is within their statutory authority — and then searched

for licensure violations — which they are statutorily

authorized to do. Therefore, the warrantless searches

engaged in by the MDH employees were reasonable,

and thus constitutional.

App. 36

Regardless of whether the Defendants violated a

clearly established constitutional right or not, how-

ever, the Plaintiffs have not carried the burden of

proving that the MDH employees’ conduct was not

objectively unreasonable. Thus, even if the searches

were unconstitutional, the agents would be protected

from liability due to their objectively reasonable con-

duct in investigating child abuse allegations, which

they are statutorily authorized to do.

Therefore, because there is a lowered expectation

of privacy in child care facilities due to the per-

vasively regulated nature, Defendants’ searches were

constitutional. See, e.g., New York v. Burger, 482 U.S.

at 702-704, 107 S.Ct. 2636 (warrantless adminis-

trative inspection of premises of “closely regulated”

business deemed constitutional); Michigan v. Tyler,

436 U.S. 499, 507-509, 511-512, 98 S.Ct. 1942, 56

L. Ed. 2d 486 (1978) (administrative inspection of

fire-damaged premises to determine cause of blaze

held constitutional); Camara v. Municipal Court of

City and County of San Francisco, 387 U.S. 523, 534-

539, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967) (admin-

istrative inspection to ensure compliance with city

housing code deemed constitutional).

The Defendants are entitled to conduct adminis-

trative searches pursuant to Mississippi law, and no

notice or probable cause is needed to search such

establishments, the MDH and its employees in their

individual capacities are protected by qualified immu-

nity from suit. Because the Plaintiffs did not satisfy

their burden by putting forth any evidence that the

App. 37

Defendants violated their First, Fifth, and Four-

teenth Amendment rights, the Court finds those

claims waived.

C. Conclusion

The Plaintiffs have failed to state a claim upon

which relief can be granted. The actions on the part of

MDH and its employees do not rise to the level of

constitutional violations. Therefore, the allegations,

even if accepted as true, do not state a claim for a

violation of any rights secured to the Plaintiffs under

the United States Constitution. Moreover, Defen-

dants actions and conduct during the warrantless

searches were not objectively unreasonable.

Accordingly, the Plaintiffs’ cause of action is

hereby dismissed as no facts alleged entitle them to

relief.

A separate order shall this day be issued.

So ordered this the 8th day of May, 2008.

/s/ Sharion Aycock is

U.S. DISTRICT JUDGE

App. 38

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

DEBORAH ELLIS, et al. PLAINTIFFS

CIVIL ACTION

MISSISSIPPI DEPART- NO.: 4:07CV81

MENT OF HEALTH, et al. DEFENDANTS

ORDER GRANTING MOTION TO DISMISS

(Filed May 8, 2008)

Pursuant to an opinion issued this day, it is

hereby ORDERED that

(1) the Defendant’s Motion to Dismiss [4] is

GRANTED;

(2) the Plaintiff’s claims are dismissed; and

(3) this case is CLOSED.

All memoranda, depositions, declarations and

other materials considered by the court in ruling on

this motion are hereby incorporated into and made a

part of the record in this action.

SO ORDERED, this the 8th day of May.

/s/ Sharion Aycock

U.S. DISTRICT JUDGE