Brown v. Ives

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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