Cordatos v . Skerry CV-95-214-M 09/26/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Peter Cordatos and Jennie Cordatos, Plaintiffs, v. Civil N o . 95-214-M
David Skerry, Bennington Police Department, and Town of Bennington, Defendants.
O R D E R
Peter and Jennie Cordatos bring this action pursuant to 42
U.S.C. § 1983, to redress alleged violations of their Fourth and
Fifth Amendments rights. They also seek compensation from
defendants for alleged violations of the New Hampshire
Constitution, The New Hampshire Child Protection Act (N.H. Rev.
Stat. Ann. ("RSA") ch. 169-C), and New Hampshire common law.
Presently before the court is defendants' motion for summary
judgment.
Standard of Review
Summary judgment is proper "if pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). A material
fact "is one `that might affect the outcome of the suit under the
governing law.'" United States v . One Parcel of Real Property
with Bldgs., 960 F.2d 2 0 0 , 204 (1st Cir. 1992) (quoting Anderson
v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 248 (1986)). The moving
party has the burden of demonstrating the absence of a genuine
issue of material fact for trial. Anderson, 477 U.S. at 256.
The party opposing the motion must set forth specific facts
showing that there remains a genuine issue for trial,
demonstrating "some factual disagreement sufficient to deflect
brevis disposition." Mesnick v . General Electric Co., 950 F.2d
816, 822 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).
That burden is discharged only if the cited disagreement relates
to a genuine issue of material fact. Wynne v . Tufts University
School of Medicine, 976 F.2d 7 9 1 , 794 (1st Cir. 1992), cert.
denied, 507 U.S. 1030 (1993).
Facts
In March of 1992, Dianne McClintock, the nurse at ConVal
High School, received an anonymous telephone call from a woman
expressing concern for Julie Cordatos, plaintiffs' 16 year-old
2 daughter and a student at ConVal. Upon learning of that report,
Ronald Crowe, a guidance counsellor at ConVal High School, spoke
with Julie and suggested that she consider receiving counseling.
Julie agreed and met with Crowe and Connie Lester, another
employee of ConVal High School.
On Saturday, March 2 8 , 1992, Lester contacted Crowe and said that she was concerned for Julie's safety. She explained that Julie was depressed and recently attempted to cut her wrists; Julie had twice tried to kill herself, first on February 14 and again on March 2 6 . Lester told Crowe that it was imperative that someone intervene on Julie's behalf. Crowe immediately contacted Bennington Police Officer David Skerry and explained the situation. Skerry said that he would go to Julie's house to investigate.
When Officer Skerry arrived at the Cordatos' home, he spoke
with plaintiff, Peter Cordatos. Skerry explained that
representatives of ConVal High School had contacted him and
expressed concern about Julie. Skerry explained that Julie had
tried to hurt herself on two occasions by cutting her wrists.
Julie admitted to her father that she had cut her wrists and
3 showed him and Skerry the scars. Officer Skerry then asked if he
could speak with Julie privately outside. M r . Cordatos agreed.
Julie and Officer Skerry spoke in his police cruiser. Julie said that she was afraid and did not want to go back into the house. She explained that when she was younger, a man (her step- grandfather, Ted Holbrook) had sexually abused her. She told Skerry that her parents were again permitting Holbrook to visit their home and she was concerned that he might abuse her again. Julie also explained that one of her parents' friends, Larry Ogden, had been making sexual advances toward her and her parents had done nothing to stop i t . Apparently, Ogden had been indicted for sexual abuse of a child and plaintiffs provided his bail and were permitting him to reside with their family while he awaited trial.
Skerry went back to tell M r . Cordatos that he wanted to take
Julie to the police station to speak with her. Again, Cordatos
agreed.
When Skerry and Julie arrived at the police station, Skerry
contacted the Help Line, an after-hours emergency placement
4 service available to law enforcement officers when
representatives from the New Hampshire Division for Youth,
Children and Families ("DCYF") are unavailable. Skerry asked if
Julie could be put into an emergency placement. He learned,
however, that the two homes providing such services in the area
were full. Skerry then spoke with M s . Lester, who suggested that
Julie might stay with her friend and employer, Milicent H o .
Julie also asked Skerry if she might stay with M s . H o . Accordingly, Skerry made arrangements with M s . H o , drove Julie to her home, and returned to explain the situation to plaintiffs. He stated that Julie had been temporarily placed until Monday, March 30th, at which time DCYF could provide assistance. He told plaintiffs that he would do his best to keep them informed of the situation.
Two days later, on Monday, March 3 0 , 1992, Help Line staff
member Kim Hemeon contacted DCYF to report Officer Skerry's
contact with Help Line over the weekend. The Bennington Police
Department also reported Julie's case to DCYF. DCYF then
prepared an Intake Report. Based upon information provided by
Officer Skerry, including the fact that Julie had already been
removed from plaintiffs' home, DCYF assessed Julie's situation as
5 presenting a "mild" risk. After reviewing the Intake Report,
Cheryl Myers, a DCYF Supervisor, assigned Child Protective
Service Worker Betsy Wilder to Julie's case.
Later that day, M s . Ho brought Julie to meet with M s . Wilder. As before, plaintiffs were informed of how defendants
and DCYF planned to proceed. And, once again, they agreed to the
proposed plan. Specifically, M s . Cordatos gave written
permission for Julie to participate in an emergency psychological
evaluation by Monadnock Family Services. See Letter of Jennie
Cordatos dated March 3 0 , 1992. Betsy Wilder immediately arranged
the emergency evaluation. Nancy Rappaport of Monadnock Family
Services reported that Julie appeared to be suffering from post
traumatic stress disorder. She told M s . Wilder that, in her
professional opinion, if Julie were returned to her home, it was
very likely that she would again attempt suicide. Affidavit of
Betsy Wilder, at paras. 1-4.
On Tuesday, March 3 1 , 1992, M s . Wilder met with Julie and
her half-sister, Sheri Paquette (who no longer lived with
plaintiffs), at the Bennington police station. Both girls stated
that when they were younger they had been sexually abused by
6 Sheri's grandfather, Ted Holbrook. They also said that Holbrook
had recently begun visiting their home again. The girls also
spoke of Ogden's presence at plaintiffs' home and Julie said that
he had been making sexual advances toward her. Julie told M s .
Wilder that she could not deal with the situation and asked that
she not be forced to return home.
After her meeting with the girls, M s . Wilder contacted
Hillsborough District Court Judge Hatfield and explained her
concern. Judge Hatfield said that he would accept an ex parte
petition (presumably under RSA 169-C) if Julie's parents refused
to permit Julie's placement with a neutral party until Monadnock
Family Services could complete its evaluation of Julie. See RSA
169-C:6, V .
M s . Wilder then met with plaintiffs and attempted to explain
the results of Julie's initial evaluation. Wilder reported that
plaintiffs "made statements that led [her] to believe that they
[did] not believe that Julie [had] a problem." Wilder affidavit,
at para. 8 . M s . Wilder then explained her conversation with
Judge Hatfield and suggested that Julie be temporarily placed
with a neutral party. Again, plaintiffs agreed and permitted
7 Julie to be temporarily placed with her maternal grandmother.
Because plaintiffs agreed to Julie's temporary placement outside
of their home, neither DCYF nor the defendants sought a
protective custody hearing pursuant to RSA 169-C:6.
On April 2 3 , 1992, DCYF filed a Petition for Abuse or
Neglect on Julie's behalf. See RSA 169-C:7. Plaintiffs were
notified o f , and participated in proceedings in the Hillsborough
District Court and Henniker District Court. District Court Judge
Ellen Arnold ultimately held that Julie was a neglected child.
Additionally, Judge Arnold decreed that Julie live with Milicent
Ho and her husband, who had obtained a temporary foster care
license and were taking the necessary steps to obtain a permanent
license.
On December 1 0 , 1992, plaintiffs appealed Judge Arnold's
neglect finding to the Merrimack County Superior Court. However,
about two months earlier, Julie turned 1 8 . And, after speaking
with representatives of DCYF, Julie decided that she did not want
to pursue the matter any further, primarily because she no longer
lived with her parents and did not want to have to testify again
about the abuse she had suffered. In response to Julie's
8 request, DCYF withdrew the Abuse or Neglect Petition which it had
filed on her behalf.
Julie presently lives with M r . and Mrs. H o . She has assumed
the Ho's last name and severed all ties with her family.
Discussion
Although plaintiffs generally invoke the Fourth and Fifth
Amendments to the Constitution, the precise nature of their
claims is far from clear. What is clear is that they believe
that Officer Skerry's "warrantless seizure" of Julie from their
home violated their constitutionally protected right to "family
integrity."
In light of the uncontested facts of record, plaintiffs'
complaint lacks merit. First, and perhaps most fundamentally,
the undisputed facts do not support plaintiffs assertion that an
unlawful "seizure" occurred. At each step of the process,
beginning with Officer Skerry's initial interview of Julie,
plaintiffs were consulted and consented to the proposed conduct.
To the extent that this matter is properly addressed in Fourth
Amendment terms, it is unclear how a consensual "seizure" of the
9 sort alleged could be deemed "unreasonable" within the meaning of
the Fourth Amendment.
Moreover, plaintiffs' standing to assert a Fourth Amendment
violation stemming from the alleged "seizure" of their 16 year- old daughter is doubtful. Importantly, plaintiffs alone bring
this action; Julie is not a plaintiff and, to the extent that any
of her rights may have been violated by her "seizure," plaintiffs
have not shown how, or why they should have standing to assert
her claims.
Nevertheless, even if the court assumes that plaintiffs have standing, and even if it assumes a Fourth Amendment violation for the purposes of this discussion, plaintiffs still would not be entitled to recover under 42 U.S.C. § 1983.
I. Qualified Immunity
Liberally construed in plaintiffs' favor, the complaint
alleges that Officer Skerry "seized" Julie from their home
without probable cause and, in the process violated their
constitutionally protected right to "family integrity." Based
10 upon the undisputed facts of record, however, Officer Skerry is
entitled to qualified immunity from suit and from liability.
Public officials performing discretionary functions are
entitled to qualified immunity from suit for violations of federal law "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. 8 0 0 , 818 (1982). The qualified immunity analysis in this
circuit has two components: (1) "whether the constitutional right
asserted by the plaintiff was `clearly established' at the time
of the alleged violation," and (2) "whether `a reasonable
official situated in the same circumstances should have
understood that the challenged conduct violated that established
right.'" S t . Hilaire v . City of Laconia, 71 F.3d 2 0 , 24 (1st
Cir. 1995) (quoting Burns v . Loranger, 907 F.2d 233, 236 (1st
Cir. 1990)), cert. denied, 116 S . C t . 2548 (1996). To be clearly
established, the right asserted must be articulated at an
appropriate level of particularity so that "`[t]he contours of
the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right,'"
although the same action need not previously have been ruled
11 unconstitutional. S t . Hilaire, 71 F.3d at 24-25 (quoting
Anderson v . Creighton, 483 U.S. 635, 640 (1987)). "The ultimate
question of whether a defendant is entitled, on a given set of
facts, to the protection of qualified immunity is a question of
law for the court to decide." Wood v . Clemons, 89 F.3d 9 2 2 , 927
(1st Cir. 1996).
Turning to the first element of the qualified immunity
analysis, it is apparent that the contours of plaintiffs' right
to family integrity were insufficiently defined to put Skerry on
notice that, by taking Julie under the facts presented in this
case, he was likely violating that right. To be sure, the
Supreme Court has recognized an amorphous constitutionally
protected right to "family integrity." See, e.g., Stanley v .
Illinois, 405 U.S. 645 (1972). Plainly, however, that right is
not absolute. Watterson v . Page, 987 F.2d 1 , 8 (1st Cir. 1993).
In fact, as plaintiffs themselves concede, the New Hampshire
Supreme Court has held that:
[T]he parental interest in raising children without State intervention is not without limitation. Rather, the parental right of family autonomy is subject to a corresponding duty on the part of parents to adequately care for their children, and child-rearing rights are secured by the law only to the extent that parents discharge their obligation. The State has a competing
12 interest in the welfare of children within its jurisdiction, and may, as parens patriae, intervene in the family milieu if a child's welfare is at stake. Accordingly, parental rights are not absolute, but are subordinate to the State's parens patriae power, and must yield to the welfare of the child.
Preston v . Mercieri, 133 N.H. 3 6 , 40 (1990) (citations omitted). See also, Stanley v . Illinois, 405 U.S. at 652 ("We do not
question the assertion that neglectful parents may be separated
from their children.").
S o , whatever the precise contours of the right to family
integrity may have been when Julie was removed from the
plaintiffs' home, it is clear that no parent enjoys a clearly
established constitutional right to be free from child abuse or
neglect investigations, or to maintain control over a child
within the family unit when the child's own welfare requires
removal. The foregoing is particularly true when, as here: (1)
an objectively reasonable police officer possessing the same
information Skerry had could have concluded that there was
probable cause to believe that a child was being neglected and/or
abused (as defined by state l a w ) ; and (2) that an objectively
reasonable police officer could have believed that, by failing to
13 intervene, the child would be exposed to a substantial risk of
harm (or in this case, possibly death by suicide).
Here, Skerry was acting under the provisions of RSA 169-C,
which provides, in pertinent part, that:
A police or juvenile services officer may take a child into protective custody without the consent of the parents or other person legally responsible for the child's care if the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life unless immediate action is taken and there is not enough time to petition for a court order.
RSA 169-C:6, I . The statute defines "imminent danger" as
"circumstances or surroundings causing immediate peril or risk to
a child's health or life." RSA 169-C:3, XV. Even if plaintiffs
had not consented to Skerry's removal of Julie, any reasonable
police officer could (and in fact probably should) have concluded
that intervention was not only justified but mandated. Stated
somewhat differently, an objectively reasonable police officer in
Skerry's position could certainly conclude that, under RSA 169-C,
probable cause existed to remove Julie from Plaintiffs' home,
even absent parental consent, as was given here.
14 The court need not recount in detail the reliable information upon which Skerry could justifiably have based his decision to intervene. It is sufficient to point out that even before completing his investigation or receiving Julie's psychological report, he knew that: (1) ConVal had received an anonymous call from someone who stated that Julie was in danger; (2) a ConVal employee familiar with Julie's situation reported that Julie was in immediate danger and recommended that someone intervene as soon as possible; (3) Julie admitted to Skerry (and her father) that she had tried, quite recently, to kill herself on two occasions; (4) Julie told Skerry about the sexual abuse which she had experienced in the past and said that two adult males in her household (one of whom had abused her in the past) were making sexual advances toward her; and (5) Julie explained that she was afraid to return to her parents' home.
Plaintiffs claim that absent more substantial physical
evidence of Julie's suicide attempts, Skerry lacked probable
cause to believe she was in "imminent danger." That assertion is
frivolous. Skerry might well have been derelict in his duties
(or, at a minimum, morally blameworthy) had he not assisted Julie
in her efforts to escape from plaintiffs' home. No reasonable
15 person could possibly conclude that, based upon the information
available to him at the time, Skerry acted without probable cause
or in any way violated plaintiffs' clearly established
constitutional rights. Accordingly, Officer Skerry is entitled
to qualified immunity.
II. Municipal and "Official Capacity" Liability
A municipality cannot be held vicariously liable under
§ 1983 for the wrongful acts of its employees. Collins v . City
of Harker Heights, 503 U.S. 115, 121 (1992). A municipality may
be liable, however, when one of its employees acts pursuant to a
municipal custom or policy and, in so doing, violates someone's
constitutional rights. Id. Municipal liability attaches under
§ 1983 only when the "action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation or decision officially adopted and
promulgated by the body's officers." Monell v . New York City
Department of Social Services, 436 U.S. 6 5 8 , 690 (1978). S o , in
order to prevail on their § 1983 claim against the Bennington
Police Department and the Town of Bennington, plaintiffs must
show a direct causal connection between municipal conduct and a
constitutional deprivation. See, e.g., Oklahoma City v . Tuttle,
16 471 U.S. 8 0 8 , 824-25 n.8 (1985) (requiring an "affirmative link"
between the municipal policy and the alleged constitutional
deprivation.).
To avoid summary judgment, however, plaintiffs must support their claims with something more than mere subjective
characterizations or unsubstantiated conclusions. Plaintiffs
have failed to carry that burden. In the absence of some
indication of municipal direction via a policy, practice, or
custom, and given that a respondeat superior cause of action is
not cognizable under § 1983, the police department and the Town
are entitled to summary judgment.
Moreover, Officer Skerry is not liable in his official
capacity for any alleged constitutional deprivations. Because
"official capacity suits generally represent only another way of
pleading an action against an entity for which an officer is an
agent," Brandon v . Holt, 469 U.S. 4 6 4 , 472 n.21 (1985), and
because plaintiffs have failed to show that their alleged
injuries are the product of any municipal custom or policy,
17 Officer Skerry is entitled to summary judgment in his official capacity.1
III. Plaintiffs' State Law Claims
Having held that Officer Skerry is entitled to qualified immunity and that plaintiffs have failed to state a viable claim
against the remaining defendants, the court declines to exercise
its supplemental jurisdiction over plaintiffs' state
constitutional, statutory, and common law claims.
Conclusion
For the foregoing reasons, defendants are entitled to summary judgment with regard to all of plaintiffs' federal claims. And, because the court declines to exercise its
supplemental jurisdiction over plaintiffs' state law claims, they are dismissed without prejudice. Defendants' motion for summary judgment (document n o . 11) is granted. The Clerk of the Court is instructed to enter judgment in favor of defendants in accordance with this order and close the case.
1 Plaintiffs do not allege that Officer Skerry possessed policy-making authority, nor do they claim that he acted as a municipal policy-maker when he removed Julie from their home. See generally, Penney v . Town of Middleton, 888 F.Supp. 3 3 2 , 340- 41 (D.N.H. 1994). 18 SO ORDERED.
Steven J. McAuliffe United States District Judge September 2 6 , 1996 cc: Stephen F. Queeney, Esq. Michael Lenehan, Esq.