Opinion
Civil No. 03-2504 ADM/JSM
April 19, 2004
John Remington Graham, Esq., St-Agapit, Quebec, for Plaintiffs
Jason J. Kuboushek, Esq., Iverson Reuvers, L.L.C., Bloomington, MN, for Defendants Douglas Moe, John Holtz, Daniel Kunz, Patrick Hammerud and Anthony Fauglid.
Thomas P. Carlson, Esq., Carlson Soldo, P.P.L.P., St. Paul, MN, for Defendants Amy Hedner, Lorri Pederson and Swift County.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Motions for Summary Judgment of Defendants Douglas Moe, John Holtz, Daniel Kunz, Patrick Hammerud and Anthony Fauglid [Docket No. 30] and Defendants Amy Hedner, Lorri Pederson and Swift County [Docket No. 24] (collectively, "Defendants") were argued before the undersigned United States District Judge on March 24, 2004. Because Plaintiffs Carl Ware and Sue Ellen Ware (collectively, "Plaintiffs") stipulated to dismissing counts two and three from the Second Amended Complaint at oral argument, this Order addresses count one only. Additionally, Plaintiffs moved to file a third amended complaint. [Docket No. 34]. For the reasons explained below, Defendants' Motions for Summary Judgment are granted and Plaintiffs' Motion to Amend is denied.
II. BACKGROUND
Plaintiffs allege that Defendants violated their Fourth Amendment rights on March 22, 2000, while executing warrants that authorized removal of Plaintiffs' three minor children from their home. The warrants ordered that each child be placed in temporary custody, and specified that they be observed and examined at a medical facility.See Order for Immediate Custody for Jeremy-Lee K. Granda, Koby A. Ware, and Katie L. Ware ("Custody Orders") (Carlson Aff. Exs. A-C). Plaintiffs do not contest the validity of the warrants, but claim that Defendants' actions during execution exceeded the warrants' scope. Pls' Mem. in Opp. at 8.
For purposes of the instant Summary Judgment Motions, the facts are viewed in the light most favorable to Plaintiffs, the nonmoving partySee Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
Plaintiff Sue Ellen Ware ("Mrs. Ware") is the biological mother of all three children. Plaintiff Carl Ware is the biological father of the two youngest children and the step-father of the third child. See S. Ware Dep. at 10 (Kuboushek Aff. Ex. A). Mrs. Ware claims that the children have a variety of medical and emotional concerns including Lennox-Gastaut syndrome, seizures, rage attacks, and other ailments.See In re the Welfare of Jeremy-Lee Granda, Koby A. Ware, and Katie L. Ware, Findings of Fact, Conclusions of Law, and Order, File Nos. 76-J9-00-50011, 76-J9-00-50012, 76-J9-00-50013 at 6-10 (Kuboushek Aff. Ex. C). The children took numerous medications for these health problems.Id. Additionally, a Vagal Nerve Stimulator, a device which sends electrical signals through the body, was implanted in one child to control his seizures.Id. at 7.
Swift County Human Services ("Human Services") filed petitions for child protection on March 22, 2000, after receiving reports that Plaintiff's were abusing their children. See Pet. for Child in Need of Protective Services for Jeremy-Lee K. Granda, Koby A. Ware, and Katie L. Ware ("Petitions") (Carlson Aff. Exs. A-C). Specifically, Human Services suspected that Mrs. Ware exhibited Munchausen Syndrome by Proxy, and that the children were not actually sick and were being improperly medicated. Id. Swift County District Court Judge Jon Stafsholt granted the Petitions and issued three orders for immediate custody of the children. See Custody Orders.
Several individuals assisted in executing the warrants to remove Plaintiffs' children from the home. They include Defendants Amy Hedner ("Hedner") and Lorri Pederson ("Pederson"), child protection social workers for Swift County, and Defendants Douglas Moe, John Holtz, Daniel Kunz, Patrick Hammerud and Anthony Fauglid, police officers employed by the City of Appleton, Minnesota (collectively, "Appleton Defendants"). See Second Am. Compl. ¶¶ 3-4. Defendants arrived at the Ware home and were allowed entry by Mrs. Ware. See S. Ware Dep. at 20. Hedner and Pederson entered the home first, followed by the police officers. Mrs. Ware recognized Hedner and greeted her. Id. at 20-21. Pederson introduced herself, handed Mrs. Ware the warrants, informed her that they were taking the children, and explained that their conversation was being recorded. Id. at 21. 38. Pederson also requested Mrs. Ware's cooperation Id. at 21.
Defendants next instructed Mrs. Ware to gather the children's belongings. Id. In response, she walked upstairs to her children's bedroom and was followed by Hedner, Pederson and two or three officers. Id. at 22. While Mrs. Ware opened the children's dresser drawers, Hedner and Pederson opened additional drawers and a closet to help Mrs. Ware find the children's clothing. Pederson put a pair of pants on Katie Ware, the youngest child, who was wearing only a t-shirt and diaper, and all three women removed clothing from the dressers. Id. at 22-23.
Mrs. Ware next left the children's bedroom to locate bags for the clothing. Id. at 23. As she was leaving, Mrs. Ware noticed one officer closing the closet door in her bedroom and saw a second officer exiting her bedroom. Mrs. Ware then collapsed on the floor, crying, and was told by an officer to stand up and cooperate. Id. at 23-24. After Mrs. Ware said she could not find any bags, Hedner went downstairs to look for plastic, Wal-Mart-type bags to use on Mrs. Ware's suggestion.Id. at 23-24, 35. Hedner returned with three bags, and Hedner and Pederson helped Mrs. Ware pack the children's clothing. Complying with Pederson's request, Mrs. Ware added a favorite stuffed animal for each child Id. at 23-24.
The three women then went downstairs with the children's bags and entered the kitchen. Id. at 24-25. Mrs. Ware claims that at this point she saw officers searching other areas of her home including the foyer closet, the front porch, and her mother's bedroom, but acknowledges that she did not ask them to stop. Id. at 29. After Pederson asked Mrs. Ware to find the children's medications and diapers, Mrs. Ware gave them to Pederson and Hedner and included written instructions from the children's doctor. Id. at 25.
Sue Ellen Ware's mother lives with her and was present when the children were removed on March 22, 2000. See S. Ware Dep. at 12, 81.
Having packed the children's clothing and medications, Hedner and Pederson told Mrs. Ware that they needed to move the children into the county-owned van. Mrs. Ware brought the children to
the kitchen and said goodbye. Id. at 26. Pederson then led them outside and into the van, and asked Mrs. Ware if Katie had a car seat. In response to this request, Mrs. Ware went into the garage to get the car seat which was in her van. Id. She noticed two officers exiting the garage, and saw that the all the van's doors were open. When Mrs. Ware attempted to retrieve the car seat, an officer stopped her and said he would do it. The officer opened a door to the Ware's van and removed the car seat, and a second officer and Pederson put the car seat into the county van. Id. at 27. Hedner told Mrs. Ware that she needed to appear in court the following day, and that she should read the warrants to more fully understand why her children were taken.Id. at 27-28. The children were then placed in the county van and all Defendants left Mrs. Ware's home. Id. at 28. Along with the children, Defendants took the children's clothing, stuffed animals, medications with their instructions, and Katie Ware's diapers and car seat. Id. at 24, 30-32.
The Appleton Police Department was familiar with the Ware family when its officers executed the warrants removing Plaintiffs' children on March 22, 2000. Approximately a week earlier, Mrs. Ware called the Department to report a domestic dispute that she had with her husband. Id. at 68. The Wares were separated at the time and Mr. Ware was staying at a local hotel. Id.; see also C. Ware Dep. at 50 (Kuboushek Aff. Ex. B). After Mrs. Ware went to the hotel to visit her husband, he became upset, threatened to kill himself, and pointed a 9mm handgun at his head. He also momentarily pointed the gun at Mrs. Ware. S. Ware Dep. at 69, 134; see also C. Ware Dep. at 31-32. Mrs. Ware left and called the police who arrived at the hotel and confronted Mr. Ware. S. Ware Dep. at 134; see also C. Ware Dep. at 50. Police confiscated the 9mm handgun and learned that Mr. Ware had additional guns at the family home, including a .22 rifle and three shotguns, all of which he stored in the back of his bedroom closet. Carl Ware Dep. at 51-52, 60. Following this incident, Mr. Ware voluntarily committed himself to the Woodland Crisis Center in Willmar, Minnesota. Id. at 10-11, 65-66.
On March 16, 2000, Mrs. Ware applied for an order for protection based on this incident. In her petition, she claimed that Mr. Ware was mentally unstable, and requested that police officers accompany him when he picked up his belongings from their home. See Aff. Pet. for Order for Protection of Sue Ellen Ware (Kuboushek Aff. Ex. D.). Based on Mrs. Ware's petition, an order for protection was issued on March 17, 2000. See Emergency (Ex Parte) Order for Protection of March 17, 2000 (Kuboushek Aff. Ex. E). Mrs. Ware petitioned to have the order dismissed on March 23, 2000. See Aff. and Order for Dismissal of March 23, 2000 (Kuboushek Aff. Ex. E).
Plaintiffs initiated this litigation on March 20, 2003, and amended their Complaint twice, most recently on November 4, 2003. See Stipulation and Order of 11/04/03. The Pretrial Scheduling Order of June 6, 2003, established a deadline of September 1, 2003, for filing an amended complaint. See Pretrial Scheduling Order of 06/06/03 at 1 ("Scheduling Order").
III. DISCUSSION
Plaintiffs' now move to amend their Complaint for a third time, and Defendants move for summary judgment
A. Plaintiffs' Motion for Leave to File a Third Amended Complaint
Plaintiffs ask the Court for permission to file a Third Amended Complaint, reflecting their decision to abandon claims two and three from the Second Amended Complaint. Plaintiffs' proposed Third Amended Complaint eliminates these claims, but unlike their current Complaint, also specifically asserts individual capacity claims against Defendants.See Third Am. Compl. ¶¶ 3-4. Under the Federal Rules of Civil Procedure, a party may amend its complaint once as a matter of course before a responsive pleading has been filed It may amend pleadings further with leave from the court "when justice so requires."See Fed.R.Civ.P. 15.
Justice does not require granting Plaintiffs' Motion. First, Plaintiffs' professed reason for altering their Complaint is unconvincing because the proposed Third Amended Complaint includes individual capacity claims against Defendants. In their Motions for Summary Judgment, Defendants argue that the current Complaint states official capacity claims only, and move for summary judgment on this basis. See Appleton Defs' Mem. in Supp. at 7-10; Defs Hedner, Pederson Swift Cty's Mem. in Supp. at 12-14. Adding individual capacity claims to the proposed complaint suggests that Plaintiffs now seek to remedy this flaw. However, Plaintiffs cannot alter their Complaint in an effort to avoid summary judgment, especially since they have previously twice amended their Complaint and have been given ample opportunity to correct mistakes. See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 620 (8th Cir. 1995). Second, if Plaintiffs' sole goal is to remove counts two and three from the Complaint, they can stipulate to dismissal rather than amending their Complaint. Dismissal does not require Defendants to file responsive pleadings. Third, Plaintiffs' Motion comes extremely late in this litigation and violates the September 1, 2003 deadline for amending pleadings by several months. Further, Plaintiffs have not moved to extend the September deadline or shown good cause justifying any changes. See Scheduling Order at 1;see also D. Minn. LR 16.3. Therefore, Plaintiffs' Motion to amend their Complaint for a third time is denied.
B. Defendants' Motions for Summary Judgment
Defendants move for summary judgment. Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the 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); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
Defendants argue that summary judgment is proper because Plaintiffs assert § 1983 claims against them as officials only. Section 1983 authorizes civil suits against government employees whose actions deprive potential plaintiffs of "any rights, privileges or immunities secured by the Constitution and law. . . ." See 42 U.S.C. § 1983. Public employees may be sued under § 1983 in either their official or individual capacities, but official capacity suits are construed as claims against the employer only. See Johnson v. Outboard Marine Corp.. 172 F.3d 531, 535 (8th Cir. 1999); Nix v. Norman., 879 F.2d 429, 431 (8th Cir. 1989). To win an official capacity claim against an individual employee, plaintiffs must prove that the employer governmental entity's policies or customs violated their constitutional rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
The Eighth Circuit has established strict pleading requirements for § 1983 claims. To assert an individual capacity claim against a government employee, the plaintiff must "expressly and unambiguously state so in the pleadings."Johnson, 172 F.3d at 535; see also Egerdahl, 72 F.3d at 620 (holding that neither a cryptic hint in a plaintiff's complaint nor a response to a motion to dismiss sufficiently state an individual capacity claim). This requirement ensures that the defendant receives proper notice of the claims alleged against her. Johnson, 172 F.3d at 535. Courts assume that the defendant is only being sued in her official capacity if the complaint lacks the requisite specificity.Id.
Plaintiffs counter that "at least five features" of the Second Amended Complaint illustrate that they are asserting count one against Defendants as individuals. Pls' Mem. in Opp. at 5. For example, unlike counts two and three, count one does not discuss any municipal policies or customs, a requirement for alleging an official capacity claim. See Second Am. Compl. at 3-4; see also Monell, 436 U.S. at 694. Additionally, count one explains that Defendants "as individuals may not claim qualified immunity," and seeks punitive damages which are not available for Monell claims. See Second Am. Compl. at 4 ¶¶ 5-7; see also City of Newport v. Fact Concerts. Inc., 453 U.S. 247, 271 (1981). Finally, Plaintiffs stress that their prayer for relief requests damages from Defendants "jointly and severally," indicating that Defendants are individually liable.See Second Am. Compl. at 7.
Plaintiffs' argument fails because their Complaint never expressly and unambiguously asserts individual capacity claims against Defendants. The Second Amended Complaint does not explain whether Defendants are being sued as individuals or officials. The caption merely lists Defendants' names. Further, the Complaint itself states that certain Defendants "acted as peace officers employed by the City of Appleton," and others "acted as social workers employed by . . . Swift County," suggesting that Defendants are being sued in their official capacities.See Second Am. Compl. ¶¶ 3-4. Plaintiffs' assertion that its prayer for relief meets the requirement this Court discussed in Lopez-Buric v. Notch, 168 F. Supp.2d 1046 (D. Minn. 2001), misconstrues that case's holding and Eighth Circuit precedent. In Lopez-Buric, we explained that a § 1983 plaintiff can easily meet the Eighth Circuit's pleading requirement by indicating that she "sues each and all defendants in both their individual and official capacities." Id. at 1050 (quotingNix, 879 F.2d at 431). Simply adding "jointly and severally" to a damages request does not provide sufficient clarity to meet the pleading standard See Nix, 879 F.2d at 431 (holding that mentioning joint and several liability in the prayer for relief does not satisfy the individual capacity pleading requirement). Therefore, because Plaintiffs allege official capacity claims only against Defendants in count one, and have stipulated that count one does not state a Monell claim, Defendants' Motions for Summary Judgment are granted.
Assuming arguendo that Plaintiffs have somehow asserted individual capacity claims, Defendants are still entitled to summary judgment under the qualified immunity doctrine. Public officials like Defendants are immune from civil liability if their actions were objectively reasonable in light of established law. See Anderson v. Creighton, 483 U.S. 635, 638-39 (1985). The threshold question of the qualified immunity inquiry is whether "the facts alleged show the officer's conduct violated a constitutional right" Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, the court next assesses whether or not the particular right asserted was clearly established.Id. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640.
Starting with prong one of the qualified immunity analysis, Plaintiffs allege that Defendants infringed their Fourth Amendment rights by conducting an illegal search of their home when Defendants removed Plaintiffs' children on March 22, 2000. They argue additionally that Defendants improperly seized the children's belongings. Defendants, who admit conducting a protective search and taking the children's necessities, claim that both actions are constitutional.
The Fourth Amendment is violated when a government agent conducts an unreasonable search or seizure. U.S. Const. amend IV. A search occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed," while a seizure happens "when there is some meaningful interference with an individual's possessory interests in . . . [her] property." United States v. Jacobsen, 466 U.S. 109, 113 (1984). Thus, the threshold question is whether or not a search or seizure has taken place. See Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602. 616-19 (1989) Courts must then assess reasonableness based on the circumstances of the particular search or seizure. Id. at 619.
Defendants have not violated Plaintiffs' Fourth Amendment rights in this case. The parties agree that Defendants searched Plaintiffs' home during execution of the warrants, and that Defendants took the children's clothing, medicines and a car seat. See S. Ware Dep. at 30-31. Plaintiffs argue that Defendants' behavior exceeded the scope of the warrants authorizing removal of their children. However, Defendants' actions were reasonable given the circumstances. Defendant police officers conducted a protective search to ensure that they could safely take the children. From previous encounters with Plaintiffs, Defendants knew that Carl Ware had at least four guns stored in Plaintiffs' home, and that Mrs. Ware had recently received an order for protection against her husband. See C. Ware Dep. at 51-52, 60; see also Aff. Pet. for Order for Protection of Sue Ellen Ware. Further, Defendants were aware that Swift County was investigating Plaintiffs for child abuse, that Carl Ware had recently threatened suicide, and that he had threatened Mrs. Ware with a gun. Id.: see also Custody Orders. Thus, Defendants' search of Plaintiffs' home and garage was reasonable given these legitimate security concerns.
Defendants Hedner and Pederson's search for and seizure of the children's clothing and medicines was also reasonable. First, despite the characterizations in the Complaint, Mrs. Ware's deposition testimony reveals that Hedner and Pederson did not randomly rummage through Plaintiffs' belongings. Rather, they asked Mrs. Ware to locate specific items required for the children's well-being and assisted her with this process. See S. Ware Dep. at 21-26. Second, Defendants limited their alleged seizure to the children's necessities, taking only clothing, medicines, diapers, stuffed animals, and a car seat.Id. at 30-31. Further, Mrs. Ware gave Defendants these items and admitted that the children needed their medications. Id. at 21-27, 83. Hedner and Pederson's efforts to secure the children's belongings did not violate Plaintiffs' constitutional rights.
Finally, qualified immunity shields Defendants from liability even if their conduct was unconstitutional, because Defendants did not violate clearly established constitutional rights. No law prohibits police officers from conducting a protective search while executing a child custody order, especially where the officers possess evidence suggesting the children's safety is at risk Similarly, no clearly established law forbids government officials from taking children's necessities when removing children from their home. See Hawley v. Nelson, 968 F. Supp. 1372, 1391 (E.D. Mo. 1997) (holding that qualified immunity applies to actions of social worker who took a child's clothing after the child entered foster care). Therefore, Defendants' Motions for Summary Judgment are granted.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiffs' Motion for Leave to File a Third Amended Complaint [Docket No. 34] is DENIED,
2. Defendants' Motions for Summary Judgment [Docket Nos. 24, 30] are GRANTED,
3. Plaintiffs' Second Amended Complaint [Docket No. 23] is DISMISSED WITH PREJUDICE.