Tarpley v. McClain

Case: 19-20259    Document: 00515735000       Page: 1     Date Filed: 02/05/2021




          United States Court of Appeals
               for the Fifth Circuit                               United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                   February 5, 2021
                               No. 19-20259                          Lyle W. Cayce
                             Summary Calendar                             Clerk


   John Tarpley; Nicole Tarpley; L. T. S.; N. L. T.; J. W. T.,
   Jr.; D. A. T.,

                                                        Plaintiffs—Appellants,

                                    versus

   Pamela McClain; Patricia Manning; Crystal Etuk; Does
   1-10,

                                                     Defendants—Appellees.


                 Appeal from the United States District Court
                     for the Southern District of Texas
                           USDC No. 4:18-CV-359


   Before Clement, Higginson, and Engelhardt, Circuit Judges.
Case: 19-20259        Document: 00515735000             Page: 2      Date Filed: 02/05/2021

                                         No. 19-20259


   Per Curiam:*
           John and Nicole Tarpley appeal the district court’s dismissal of their
   42 U.S.C. § 1983 action. 1 The district court dismissed the suit because it
   found that the claims against social workers Pamela McClain and Crystal
   Etuk were barred by qualified and absolute immunity, respectively.
           We review a district court’s grant of a motion to dismiss de novo.
   Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). When a defendant asserts
   qualified immunity, the plaintiff has the burden of proving that the defense is
   inapplicable. Waganfeald v. Gusman, 674 F.3d 475, 483 (5th Cir. 2012). To
   do so, the plaintiff must demonstrate that the defendant violated the
   plaintiff’s constitutional rights and that the defendant’s actions were
   objectively unreasonable in light of clearly established law at the time of the
   violation. Id. Based upon the factual admissions in the First Amended
   Complaint, the district court found that McClain’s conduct was objectively
   reasonable. As a result, it concluded that the Tarpleys failed to overcome
   McClain’s qualified immunity defense.
           The First Amended Complaint states that John Tarpley was twice
   transported to the hospital for mental evaluations and inpatient treatment.
   Both incidents involved alcohol and threats to commit suicide. The First


           *
            Pursuant to 5th Circuit 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 5th Circuit Rule 47.5.4.
           1
             There appears to be some confusion as to precisely who appealed the district
   court’s decision. Initially, only Nicole Tarpley’s name appears on the briefs. But John
   Tarpley’s name appears, with Nicole’s, on the signature pages. Neither of them can
   represent their children on appeal because, even if both John and Nicole Tarpley appealed,
   each of them would be proceeding pro se. See Morgan v. Texas, 251 F. App’x 894, 896 n.2
   (5th Cir. 2007) (per curiam); Johnson v. Lufkin Daily News, 48 F. App’x 917, 917 (5th Cir.
   2002) (per curiam). Similarly, Nicole Tarpley cannot represent John Tarpley pro se on
   appeal. See Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978). However, the court will
   address the merits of the appeal in the event that John Tarpley also appealed the lower
   court’s decision on his own behalf.




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                                    No. 19-20259


   Amended Complaint next alleges that, following the second incident,
   McClain opened an investigation into the welfare of the Tarpley children,
   which resulted in a “demand” that John Tarpley enroll in a 90-day alcohol
   treatment program before he returned home to his family. Allegedly,
   McClain further “threatened” him by insisting that he sign a safety plan if
   he did not want his children to be removed from his household, and also sent
   officers to the Tarpleys’ home to conduct a “welfare check.” Finally, the
   First Amended Complaint states that McClain submitted a sworn affidavit in
   support of an emergency motion to remove John Tarpley’s children from his
   home.
           John Tarpley fails to provide this court with any reason to believe
   McClain’s conduct was objectively unreasonable. By his own admissions,
   John Tarpley twice threatened suicide while drinking. His wife, Nicole,
   “took him to a psychiatric hospital where” she “convinced a police officer to
   have him admitted for evaluation.” His only contention as to why McClain’s
   behavior was unreasonable is that his children did not know of these incidents
   at the time. This is insufficient to carry his burden. See Burns-Toole v. Byrne,
   11 F.3d 1270, 1274 (5th Cir. 1994) (“[Appellants] cannot prevail with mere
   conclusory statements evidencing only a personal belief that the defendants
   were motivated by an impermissible animus.”). Therefore, the district court
   was correct in concluding that the Tarpleys failed to overcome McClain’s
   qualified immunity defense.
           Additionally, the district court found that Etuk was protected by
   absolute immunity. Because all of Tarpley’s claims against Etuk arise out of
   Etuk’s witness testimony at a child-custody hearing, we agree. See Stem v.
   Ahearn, 908 F.2d 1, 6 (5th Cir. 1990) (“[O]ffering adverse judicial testimony
   at a child-custody hearing does not implicate due process concerns and,
   further, it constitutes witness testimony that is absolutely immune from




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   section 1983 liability.” (citing Briscoe v. LaHue, 460 U.S. 325, 342–47
   (1960))).
          AFFIRMED.




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