Peters v. Lowrey

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-30680
Summary Calendar
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LISA ALACK PETERS; MICHELLE WINTERSTEIN, Through her next friend,
Lisa Alack Peters; JOSEPH WINTERSTEIN

Plaintiffs-Appellees

v.

CONNIE LOWREY; ET AL

Defendants

CRAIG ANDREWS, Office of Community Services Worker, Individually
and in his Official Capacity; DALE FRAZIER, Office of Community
Services Supervisor, Individually and in his Official Capacity;
THOMAS HALL, Office of Community Services Supervisor, Individually
and in his Official Capacity

Defendants-Appellants

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-2738-J-4)
_________________________________________________________________
May 6, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

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 Lisa Alack Peters, Michelle Winterstein, and Joseph

Winterstein brought a suit under 42 U.S.C. § 1983, claiming that

their Fourth, Eighth, and Fourteenth Amendment rights had been

violated by various state employees during a child abuse

investigation. Craig Andrews, Dale Frazier, and Thomas Hall,

employees of the Office of Community Services, asserted the

defense of qualified immunity in their answer and in a motion for

summary judgment. They now appeal the district court’s

interlocutory order denying their motion to stay discovery and

denying their motion for review of the magistrate judge’s order

requiring them to comply with discovery. We vacate the district

court’s denial of the defendants’ motion to stay discovery and

remand for further proceedings.

I. BACKGROUND

A. Statement of Facts

On August 24, 1992, Peters and Winterstein discovered that

Michael Alack, their eight-month old child, had a skull injury.

He had recently returned home from the house of Evelyn McKnight,

one of two babysitters used by the family. The parents took

Michael to the hospital and learned that he had a fractured

skull. The parents believed the injury must have occurred in

their home. Approximately one month later, Michael returned home

from the same babysitter with another injury to his skull.

Multiple skull fractures were diagnosed at the hospital.

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 At that point, a child abuse investigation was opened by the

Tangipahoa Parish Sheriff’s Department and the Office of

Community Services (“OCS”) of Tangipahoa Parish. Peters alleges

that Connie Lowery, an investigator for the Sheriff’s Department,

made a series of false, intimidating, and malicious statements

and threatened to put her in jail and that the defendants relied

upon false and misleading information, ignored pertinent and

crucial facts, and failed to conduct a competent investigation.

Peters alleges that Lowery and Craig Andrews, a social worker at

OCS, told her that she was required to use McKnight as a

babysitter, and that she should not let her neighbor and friend,

Sandra Morgan, babysit Michael.

On Christmas day, Peters and her family attended a party at

her sister’s house. A videotape taken at that time and witness

testimony confirm that Michael was healthy and playing normally

that day. That evening, Peters allowed Michael and her eighteen-

month old daughter Michelle to visit Morgan’s house and stay

overnight.

On December 26, McKnight picked up Michelle and Michael from

Morgan’s house, with Peters’ permission, and took them to her

house to stay overnight. Peters called McKnight the next morning

to see how the children were doing. McKnight told Peters that

Michelle was playing, but Michael was still asleep. Peters

became alarmed because Michael usually did not sleep past 7:00

a.m., so she instructed McKnight to bring both children home

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immediately. Instead, McKnight took Michael to the hospital,

where he was diagnosed as being brain dead. Michael died on

December 29.

An investigation ensued, and Michelle was removed from her

parents and placed in foster care for sixteen months. In spite

of the existence of the video tape, witness testimony, and the

parents’ request that they be given lie detector tests, Peters

and Winterstein were arrested and imprisoned on charges of

cruelty to a juvenile and second degree murder. They were not

allowed to visit their son in the hospital before his death, and

they were denied access to information regarding his medical

condition. They remained in prison for approximately eight

months, until they were released by the issuance of a “No True

Bill” by the Tangipahoa Parish Grand Jury.

Following the death of another infant, who had reportedly

been kidnapped, McKnight was arrested on July 21, 1994, for

obstruction of justice and being an accessory after the fact.

Peters claims that the death of the other child led to the

revelation that McKnight caused Michael’s head injuries and gave

false statements regarding his death.

B. Procedural History

In August 1994, Peters, Michelle Winterstein, and Joseph

Winterstein (collectively “the Peters family”) filed a civil

rights action under 42 U.S.C. § 1983 against Sheriff J. Edward

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Layrisson, Connie Lowery, an investigator for cases involving

juveniles for the Tangipahoa Parish Sheriff’s Department, Craig

Andrews, a social worker investigating child abuse for the Office

of Community Services of Tangipahoa Parish, and Dale Frazier and

Thomas Hall, OCS supervisors with responsibility for child abuse

investigations and foster care placements. The Peters family

alleged that the defendants violated the Fourth, Eighth, and

Fourteenth Amendments and the laws of Louisiana. Their

complaints include malicious prosecution, wrongful arrest and

imprisonment, wrongful placement in foster care and with

McKnight, harassment, and intimidation, which resulted in pain,

anguish, and the wrongful death of Michael Alack. They also

alleged that Layrisson, Frazier, and Hall were responsible under

a theory of respondeat superior because they had a policy,

custom, practice, and procedure of negligently and inadequately

hiring, training, supervising, and retaining employees,

particularly Lowery and Hall, and because they had condoned

Lowery and Hall’s handling of the case.

Layrisson and Lowery filed a Fed. R. Civ. P. 12(b)(6) motion

to dismiss in March 1995, asserting that there is no vicarious

liability under the Civil Rights Act, the plaintiffs did not

allege that they were arrested without probable cause, Layrisson

and Lowery were entitled to qualified and absolute immunity, they

were protected by sovereign immunity, the plaintiffs claims were

time-barred, and the district court lacked subject matter

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jurisdiction. Andrews, Hall, and Frazier also filed a Rule

12(b)(6) motion to dismiss, asserting that the action against

them was time-barred and that it was barred by the Eleventh

Amendment.

In September 1995, the district court, Judge Okla Jones II,

ruled that the state law claims were time-barred and granted the

motion to dismiss them; however, the district court denied the

motion to dismiss the remaining claims, ordered that they be

pleaded with specificity in an amended complaint, and ordered

limited discovery on the issue of immunity. The court set a

discovery deadline of July 5, 1996, and set a pretrial conference

for August 5, 1996.

Layrisson and Lowery filed an answer in November 1995.

Andrews, Frazier, and Hall filed an answer in January 1996 and a

motion for summary judgment in June 1996, asserting the defense

of qualified immunity in both.

Also in June 1996, Andrews, Frazier, and Hall filed a motion

to quash the plaintiffs’ “Notice of Deposition” and a motion for

a protective order on the grounds that the assertion of qualified

immunity entitled them not to be burdened with avoidable or

overly broad discovery and that the plaintiffs had failed to

allege a constitutional violation. The magistrate judge denied

the motion to quash and the motion for a protective order because

the defendants’ motion for summary judgment was not set for

hearing until after the discovery deadline. The judge also noted

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that Andrews, Frazier, and Hall had not raised their qualified

immunity defense in their motion to dismiss filed in March 1995

and had waited until June 1996 to file a motion for summary

judgment on the issue.

Andrews, Frazier, and Hall filed a motion to set aside the

magistrate judge’s order, a request for an expedited hearing, and

a motion to stay discovery. The district court, Judge Patrick

Carr,1 denied their motions on the grounds that similar immunity

defenses had already been presented by these defendants and had

been denied by Judge Jones. Andrews, Frazier, and Hall filed a

timely notice of appeal. This court denied a motion for a stay

of discovery pending appeal.

II. DISCUSSION

A. Jurisdiction

The Peters family alleges that this court does not have

jurisdiction to hear this “very premature interlocutory appeal.”

We disagree. While orders compelling limited discovery are

interlocutory and not appealable under the final judgment rule in

most circumstances, Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th

Cir. 1987), the Supreme Court has held that orders denying

substantial claims of qualified immunity are immediately

appealable under the collateral order doctrine. Mitchell v.

Forsyth, 472 U.S. 511, 526-27 (1985). Thus, when a discovery

1
After Judge Jones’ death, the case was reassigned to Judge
Carr.

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order denies a state employee the benefits of the qualified

immunity defense, we have jurisdiction to review the order.

Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 994

(5th Cir.), cert. denied, 115 S. Ct. 2555 (1995).

In Lion Boulos, we held that a party asserting the defense

of qualified immunity is not immune from all discovery, but is

only immune from that discovery which is “avoidable or overly

broad.” 834 F.2d at 507. Thus, an order for limited discovery

in the appropriate circumstances is not immediately appealable.

Wicks, 41 F.3d at 994. Before even limited discovery begins,

however, the district court must find that the plaintiff’s

pleadings assert facts which, if true, would overcome the defense

of qualified immunity. Id. To overcome the qualified immunity

defense, the plaintiff must allege specific facts which, if true,

would demonstrate that the defendant violated clearly established

statutory or constitutional rights. Id. at 995.

In their motion to dismiss for failure to state a claim,

Andrews, Frazier, and Hall did not raise the defense of qualified

immunity. The district court denied their motion on the ground

that the Eleventh Amendment did not apply to them, but did not

make any determination as to whether the Peters family’s

allegations, if true, would overcome any qualified immunity

defense the defendants might raise.

Andrews, Frazier, and Hall raised the defense of qualified

immunity in their answer and motion for summary judgment. They

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also filed a motion to quash a notice of deposition, which was

denied by the magistrate judge without a determination as to

whether Peters had asserted specific facts to overcome a

qualified immunity defense.

The district court denied motions to review the magistrate

judge’s order and to stay discovery because Andrews, Frazier, and

Hall had presented similar issues to Judge Jones, who denied the

motion to dismiss. In fact, Judge Jones only addressed Layrisson

and Lowery’s qualified immunity defense because Andrews, Frazier,

and Hall had not raised a qualified immunity defense at that

time.

The district court has never determined that the Peters

family has asserted facts that would overcome a qualified

immunity defense. “The allowance of discovery without this

threshold showing is immediately appealable as a denial of the

true measure of protection of qualified immunity.” Wicks, 41

F.3d at 995. Therefore, we have jurisdiction to hear this

appeal.

B. Analysis

Our inquiry must focus on whether the allegations in the

Peters family’s complaint negate the defendants’ defense of

qualified immunity. The Peters family alleges that the

defendants failed to conduct a competent investigation because

they relied on false and misleading information, ignored and

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failed to investigate crucial facts, did not administer lie

detector tests, and failed to determine the identity of the

perpetrator of the child abuse. As a result of the investigation

into Michael’s death, Michelle was placed in foster care. The

Peters family also alleges that Andrews told her not to allow

Morgan to babysit Michael and to leave him only with McKnight.

The Peters family claims that Frazier and Hall were responsible

for the harm because OCS has a policy, custom, practice, and

procedure of inadequately hiring, training, supervising, and

retaining employees, and condoning the malicious handling of

cases.

The Peters family’s complaint against these defendants does

not implicate the constitutional guarantees at issue. There is

no clear allegation against the social workers of a violation of

either the Fourth or the Eighth Amendment.2 As to the Fourteenth

Amendment, the Peters family does not indicate whether they are

alleging a procedural or substantive due process violation. To

the extent that the Peters family is asserting a liberty interest

in family integrity, see generally, Doe v. Louisiana, 2 F.3d 1412

(5th Cir. 1993)(recognizing a constitutional right of family

integrity), they do not allege that they were deprived of a

2
The Fourth and Eighth Amendment claims make more sense in the
context of the allegations against Sheriff Layrisson and Lowery.
We note that the district court found that the Peters family had
met the threshold showing in their allegations against Layrisson
and Lowery and allowed limited discovery to address their immunity
defense.

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liberty interest without procedural due process. Moreover,

although a substantive due process right to family integrity has

been recognized, the contours of the right are nebulous and not

clearly established in the context of the state taking temporary

custody of a child. See Kiser v. Garrett, 67 F.3d 1166, 1171-73

(5th Cir. 1995). Thus, the Peters family has not alleged facts

with sufficient specificity to negate the defense of qualified

immunity.

III. CONCLUSION

For the foregoing reasons, we VACATE the denial of the

motion to stay discovery and REMAND the case for further

proceedings.

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