Brown v. Ives

• Court: Court of Appeals for the First Circuit
• Decided: November 10, 1997
• Docket: 96-1954
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1954



                                   WARREN L. BROWN,



                                Plaintiff, Appellant,



                                          v.



                                 ROLAND IVES, ET AL.,



                                Defendants, Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
                                        _____________



                            Gibson,* Senior Circuit Judge,
                                     ____________________



                         and Pollak,** Senior District Judge.
                                       _____________________



                                 ____________________



            Paula  House McFaul  with  whom John  J.  Eisenhart and  McFaul  &
            ___________________             ___________________      _________

        Eisenhart were on brief for appellant.
        _________

            James D.  Williams, III,  Assistant  Attorney  General, with  whom
            _______________________

        Andrew  Ketterer,  Attorney  General, and  Peter  J.  Brann, Assistant
        ________________                           ________________

        Attorney General, were on brief for appellees.


____________________



                                   November 7, 1997

                                 ____________________



        ___________________



        *Hon. John R. Gibson, of the Eighth Circuit, sitting by designation.

        **Of the Eastern District of Pennsylvania, sitting by designation.



BOUDIN,  Circuit Judge.   Warren Brown appeals  from the
                          _____________



            dismissal of  his civil  rights claims  for damages  under 42



            U.S.C.   1983.  The claims trace back  to an affidavit, filed



            by  a  caseworker  in  connection  with  a  child  protection



            proceeding, that labeled  Brown an "untreated  sex offender."



            As  usual, where  a motion  to dismiss  has been  granted, we



            assume the  truth  of the  allegations in  the complaint  and



            construe it  in the light  most favorable to the  opponent of



            the motion, here Warren Brown.  See Harper v. Cserr, 544 F.2d
                                            ___ ______    _____



            1121, 1122 (1st Cir. 1976).



                 Warren  Brown is the  paternal grandfather of  two minor



            children, Thomas and Me'chelle Brown, born in 1986 and  1988,



            respectively.   From 1989 to  1993, Brown often  looked after



            the  children, sometimes  overnight, at  the  request of  the



            children's  mother, Kathi Duncan.   In November  1989, Thomas



            Brown  allegedly  told  his  mother  that  Warren  Brown  had



            sexually abused him.



                 Kathi Duncan reported the charge to the Maine Department



            of   Human  Services  ("the  Department").    Apparently  the



            Department investigated  the charge,  but no official  action



            was  taken, and  Warren Brown continued  to baby-sit  for the



            children regularly  at Kathi  Duncan's request.   But  in May



            1993, Duncan reported to the Department that Warren Brown had



            endangered  Me'chelle  Brown,   through  faulty  supervision,



            allegedly because  he was  drunk.   A Department  caseworker,


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Donna  Niemi, later  interviewed  Thomas  Brown who  referred



            again to the alleged 1989 sexual abuse.



                 At  a hearing  on June  10,  1993, in  the state  court,



            Duncan consented to a child protection order requiring her to



            keep the  children away from  Warren Brown  and granting  the



            Department access to the children.   See 22 M.R.S.A.    4031,
                                                 ___



            4036.  In support of  the order Niemi filed an  affidavit, in



            which  she   described  Warren   Brown's  alleged   negligent



            supervision  of  Me'chelle  Brown.   Niemi's  affidavit  also



            described briefly Thomas Brown's November 1989  allegation of



            sexual abuse and  said that the child had  confirmed to Niemi



            that  the incident  had occurred.    The affidavit  described



            Warren Brown as "an untreated sex offender."  



                 Niemi, and  perhaps  other  Department  officials,  then



            arranged  for Warren Brown to be professionally evaluated for



            his alleged  behavior  and also  for alcohol  abuse.   Warren



            Brown cooperated  in the hope  of regaining contact  with his



            grandchildren.  Thereafter, according to Warren Brown, he was



            told  by Department officials that he had missed appointments



            and  no further  treatment or  evaluation  would be  offered.



            Warren Brown claims that he did not miss any appointments.  



                 In  July 1993,  the Department  obtained  a court  order



            under  the  same  child  protection  provisions  granting  it



            temporary custody of the children based on charges that Kathi



            Duncan had  abused  them.   The Department  then sought  full


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custody of the  children.  Warren Brown sought  to intervene,



            was  rejected and  then renewed  his motion,  invoking a  new



            state  statute  that  allowed  judges  to grant  grandparents



            intervenor status in child protection proceedings where  this



            would serve  the interests of  the child and the  purposes of



            the  statute.  22 M.R.S.A.    4005-B.  The renewed motion was



            denied after a  hearing, and a later appeal  by Brown through



            the state appellate courts was fruitless.



                 In February 1995,  the state court granted  full custody



            of the children to the Department, with visitation rights for



            the  parents.  The  order provided that  family reunification



            efforts would continue.   But in  October 1995, Kathi  Duncan



            consented to an order terminating her parental rights under a



            separate  subchapter of  the Maine  statute,  and in  January



            1996,  the state court terminated  the parental rights of the



            child's  father--Warren Brown's son--who did not appeal.  See
                                                                      ___



            22 M.R.S.A.    4050-4058.



                 In  the meantime, in November 1995, Warren Brown brought



            the present section 1983 action in the federal district court



            in Maine.   The  now pertinent  portion of  Brown's complaint



            charged that  Niemi, and  several other  Department employees



            connected  to the  case,  had  violated  Warren  Brown's  due



            process rights  under the 14th  Amendment by libeling  him in



            the Niemi affidavit, interfering with his access to the child



            protection  proceedings,  and  ultimately  depriving  him  of


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contact with his grandchildren.  Brown sought damages of $1.2



            million  and asked  the court  to enjoin  the proceedings  to



            terminate his son's parental rights.



                 In July 1996, the district court granted the defendants'



            motion to dismiss.   On the claim for  injunctive relief, the



            district  court held that the  state proceedings sought to be



            enjoined  had concluded and  that the request  for relief was



            now  moot.     The  court  also  eliminated  certain  of  the



            defendants--primarily higher-level  officials--on the  ground



            that  no sufficient connection between them and the events in



            dispute was adequately alleged.



                 As for the  claims against Niemi and  other Departmental



            employees associated with the case, the dismissals were based



            on qualified immunity.  The district court held  that neither



            the reputational nor associational  rights asserted by Warren



            Brown  were "clearly  established" to  the  extent needed  to



            overcome qualified  immunity, and  the court  also held  that



            there  was  no  clearly  established  law to  show  that  the



            Department's  actions violated  his  substantive due  process



            rights under a "shock the conscience" test.



                 Brown  now  appeals  from the  dismissal  of  his damage



            claims.  Our review is plenary.  Providence School Department
                                             ____________________________



            v. Ana  C., 108 F.3d  1, 2 (1st  Cir. 1997). Because  we find
               _______



            that Niemi was herself protected by qualified immunity, there



            is no reason to discussthose who were less directly involved.


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1.   "[G]overnment  officials  performing  discretionary



            functions,  generally are  shielded  [by qualified  immunity]



            from liability  for civil  damages insofar  as their  conduct



            does   not   violate   clearly   established   statutory   or
                                   _____________________



            constitutional rights of which a reasonable person would have



            known."    Harlow v.  Fitzgerald,  457 U.S.  800,  818 (1982)
                       ______     __________



            (emphasis added).  The test is objective; claims of malice do



            not overcome  qualified immunity. See Anderson  v. Creighton,
                                              ___ ________     _________



            483 U.S. 635,  641 (1987).  Nor  is it enough that  the right



            claimed to  have  been violated  has  been recognized  at  an



            abstract level:   existing case law has to  give the official



            reason to know that the specific conduct was prohibited.  See
                                                                      ___



            id. at 640.
            ___



                 A thumbnail  version of Brown's constitutional  claim is



            as  follows.    Niemi's  charge  that  Warren  Brown  was  an



            untreated   sex   offender  was   made  without   a  thorough



            investigation; it  foreseeably    frustrated  Warren  Brown's



            efforts  to  maintain  contact  with  his  grandchildren; and



            because  the charge somehow  became public it  injured Warren



            Brown's public reputation.  Thus, Brown says, Niemi's actions



            violated  his  due  process rights  of  family  integrity and



            freedom from  governmental falsehood,  and her  conduct as  a


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whole  "shocks the conscience"   under Rochin  v. California,
                                                   ______     __________



            342 U.S. 165, 172 (1952).1



                 Starting with family integrity, a few cases suggest that



            grandparents   may,   in   some  circumstances,   have   some



            constitutionally  protected  rights  in  relation  to   their



            association  with  their  grandchildren.   We  spoke  of this



            possibility in Watterson v. Page, 987 F.2d 1, 8 n.6 (1st Cir.
                           _________    ____



            1993), limiting our remarks to grandparents who were residing



            with  the grandchildren.   See  also  Moore v.  City of  East
                                       _________  _____     _____________



            Cleveland,  431 U.S. 494  (1977).  Protection  of nonresident
            _________



            grandparents--like Warren Brown--has an even slimmer pedigree



            in the  case law.   Compare Drollinger v. Milligan,  552 F.2d
                                _______ __________    ________



            1220, 1227 n.6  (7th Cir. 1977), with Ellis  v. Hamilton, 669
                                             ____ _____     ________



            F.2d 510, 513 (7th Cir.), cert. denied, 459 U.S. 1069 (1982).
                                      ____________



                 Similarly,  in one case  the Supreme Court  recognized a



            protected  due  process  right  against  a  false  government



            designation  made with  no opportunity  for  challenge.   See
                                                                      ___



            Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).  But in
            _________    _____________



            Paul v. Davis, 424 U.S. 693, 711-12 (1976), the Supreme Court
            ____    _____



            ruled that the designation itself  had to change the victim's



            legal status and  that mere damage to  reputational interests



            did not rise to a constitutional violation.  See also Siegert
                                                         ________ _______



                                
            ____________________



                 1The  complaint also alleged in general terms that Niemi

            or others barred Warren Brown from the courtroom; but custody

            proceedings are often  closed to the public, and Warren Brown

            was in fact  able to file and pursue his motion to intervene,

            albeit without success.



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v. Gilley, 500 U.S. 226,  233-34 (1991).  Here Warren Brown's
               ______



            legal status was not changed  by Niemi's charge:  he remained



            a grandparent entitled to whatever rights a grandparent might



            have under Maine law.



                 But  even if Warren Brown had constitutionally protected



            interests in  visitation with  non-resident grandchildren  or



            against reputational harm, he has  no precedent to show  that



            the  circumstances of  his  case  come even  close  to a  due



            process violation.   The state  has a  very strong  interest,



            repeatedly recognized,  in  the protection  of children  from



            abuse, whether by  their parents or anyone else.   See, e.g.,
                                                               ___  ____



            Ginsberg v. New York,  390 U.S. 629,  640 (1968).  A  special
            ________    ________



            responsibility  rests on agencies like the Department, and on



            caseworkers like Niemi, to investigate colorable charges that



            come to their attention and institute appropriate proceedings



            where  warranted.  Often,  the only  witness, other  than the



            charged offender, is the child itself.



                 Here,  Thomas Brown  had  apparently twice  repeated the



            charge that  his grandfather  had engaged  in abusive  sexual



            conduct; Warren  Brown does not  dispute that the  charge was



            made by his grandson.  The child's mother also reported that,



            due to  drunkenness, Warren  Brown had  endangered Me'chelle.



            Because  the children's mother  had continued to  entrust the



            children  to Warren Brown, Niemi could certainly have thought


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that an initial  protection order was important and  ought to



            be sought immediately.



                 Niemi herself had no authority to bar Warren Brown  from



            contact with his grandchildren while they were still in their



            mother's  care.    Niemi's  remedy  was  to  begin   a  court



            proceeding and to tell the court what she had  learned.  Then



            it  became the court's  responsibility to  decide what  to do



            next.  Of course, Niemi  might first have conducted a further



            investigation  into  the  alleged  sexual  abuse  claim,  now



            several years in the past,  but the precedents impose no such



            constitutional obligation.   On the  contrary, agencies  like



            the Department have  wide latitude to  pursue investigations,



            and begin  proceedings based  on colorable  charges of  child



            abuse.   See Frazier  v. Bailey, 957 F.2d  920, 931 n.12 (1st
                     ___ _______     ______



            Cir. 1992).



                 For the same reasons, there is no  prospect that Niemi's



            conduct can be described as  so outrageous as to constitute a



            due process  violation under Rochin's  "shock the conscience"
                                         ______



            test.  That standard does  have vitality in this circuit, but



            it  is  confined   to  situations  of  brutal   or  otherwise



            outrageous behavior.  See Souza  v. Pina, 53 F.3d 423, 424-27
                                  ___ _____     ____



            (1st  Cir.  1995).    In the  present  case,  a  caseworker's



            accusation  incident   to  a   judicial  proceeding--possibly



            mistaken  but made with colorable basis--is not even wrongful



            conduct, let alone outrageously so.


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2.  There is lurking in this case a due process claim of



            a somewhat  different character.   What  is mainly  troubling



            here is not  the caseworker's charge or the  supposed lack of



            adequate prior investigation,  but something quite different:



            it  is Warren Brown's apparent inability  thus far to contest



            in court the allegations that (quite apart from any damage to



            his public reputation)  may effectively have led  to judicial



            relief that cut him off from contact with his grandchildren.



                 This outcome cannot be attributed to  Niemi or any other



            of  the named Departmental defendants.  They were entitled to



            begin the proceedings, and they did not issue the orders that



            denied  Warren Brown's  intervention requests or  limited his



            access  to his  grandchildren.   Rather,  the outcome  raises



            questions about  the procedural fairness of  judicial actions



            denying  intervention and--to the  extent that they  did so--



            cutting off Warren Brown's access to his grandchildren.



                 Maine's judges are absolutely immune from  damage claims



            based on their  judicial decisions.  See Pierson  v. Ray, 386
                                                 ___ _______     ___



            U.S. 547, 553-54 (1967).  Nor  can we review decisions of the



            Maine  courts even for constitutional error; only the Supreme



            Court can  do that.   See Rooker  v. Fidelity Trust  Co., 263
                                  ___ ______     ___________________



            U.S. 413,  416 (1923).   This leaves open the  possibility of



            injunctive relief against ongoing state proceedings, although



            it too might face  obstacles short of the merits.  See, e.g.,
                                                               _________


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Trainor  v. Hernandez, 431  U.S. 434, 444  (1977) (abstention
            _______     _________



            doctrine).



                 Warren Brown did seek such an injunction in the district



            court  but has  not appealed  that court's  dismissal of  the



            claim as moot.  And the merits are far from clear:  the state



            obviously has an  interest in the conduct of child protection



            proceedings and in narrowing the issues to the welfare of the



            children  and   the  interests  of  those   most  immediately



            concerned with their welfare, usually the parents.  The Maine



            statute  has struck a  compromise, permitting the grandfather



            to seek  intervention but  only with  the court's  permission



            based on the best interests of the child.



                 The  possibility remains  of unfair  application  of the



            statute  in an  individual case,  but  whether an  individual



            error would give rise to a federal  remedy is another matter.



            So long as  state law provides an avenue  of relief--here, an



            appeal to  higher  courts--even a  deprivation  of  protected



            rights  does  not automatically  give rise  to a  due process



            claim.   See Parratt v.  Taylor, 451  U.S.  527,  544 (1981).
                     ___ _______     ______



            But this  subject is  fraught with difficulty  and we  do not



            pursue it here.  



                 As it  happens, state law  may still offer  Warren Brown



            some  opportunity  for  relief if  the  grandchildren  are in



            foster care  or are  otherwise not  yet placed for  adoption.



            The initial  protection order  did effectively  bar him  from


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contact; but it  was only an interim order,  entered with the



            consent of  the children's mother  who during her  custody of



            the children  could  herself have  restricted Warren  Brown's



            contact.    Subsequent  orders  transferred  custody  to  the



            Department and  then terminated,  successively, the  parental



            rights of the children's mother and father, but none of those



            orders was directed at Warren Brown.  



                 The state's  counsel told us at oral argument that there



            is  no  currently  effective  order barring  contact  between



            Warren Brown and his grandchildren,  and we can find no trace



            of such an order in the record.  So long as the children have



            not been  placed for adoption  or formally adopted, it  is at



            least possible under Maine law  that Warren Brown could still



            apply  for standing and  intervenor status in  the protection



            proceeding that  transferred custody of his  grandchildren to



            the  Department.   22  M.R.S.A.     4005-B(2).   If  it  were



            granted,  he  could  also "request  the  court  to  grant the



            grandparent reasonable rights  of visitation or access."   22



            M.R.S.A.   4005-B(6).2



                 Family issues,  including abuse  and custody, are  among



            the most difficult for the law to resolve.  Standards tend to



            be vague, situations may be wrenching, and the legal tools at



                                
            ____________________



                 2Under Maine law,  adoption (or in some  cases placement

            for  adoption) does cut off such statutory grandparent rights

            but  does not prohibit prospective or actual adoptive parents

            from permitting contact between a  child and grandparent.  22

            M.R.S.A.   4005-B(6).



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hand are  often clumsy.   But, especially  in the  family-law



            realm, federal damage actions under section 1983 have usually



            proved to be an ineffective means of adjusting disputes  with



            the authorities.   See generally Ellis v.  Hamilton, 669 F.2d
                               _____________ _____     ________



            at 515-16.   There may  be exceptions,  but this case  is not



            among them.



                 Affirmed.
                 _________


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