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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