Opinion
No. CV 03-0585 JB/LFG
June 4, 2004
Jeff Romero, Albuquerque, New Mexico, for the Plaintiffs
Elizabeth L. German, Daniel J. Macke, BROWN GERMAN, Albuquerque, New Mexico, for the Defendants
ORDER
THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment, filed March 26, 2004 (Doc. 75). The Court held a hearing on this motion on May 18, 2004, and a follow-up telephonic hearing on June 3, 2004. The primary issue is whether the Defendants are entitled to absolute or qualified immunity such that the Court should grant summary judgment on all claims, or, more specifically, whether: (i) the Defendants acted pursuant to a court order in removing the Plaintiffs, minor children E.M., L.M., and S.M., from their foster parent, Plaintiff Verlace Lee Hunt; (ii) the Defendants violated the Plaintiffs' clearly established constitutional right to procedural due process; and (iii) whether the Defendants' actions shock the conscience of the Court and, thus, violated the Plaintiffs' clearly established substantive due process rights. Based on the reasoning given on the record at the two hearings, and consistent therewith, the Court finds as follows:
1. Count I — Fourth Amendment:
A. Removal of S.M.: The Court finds that the Defendants are entitled to absolute immunity with respect to the removal of S.M., the youngest child. The record establishes that the Honorable Geraldine Rivera, State District Judge, ordered the Defendants to remove S.M. from Hunt's custody. "[A]n official charged with the duty of executing a facially valid court order enjoys absolute immunity from liability for damages in a suit challenging conduct prescribed by that order." Valdez v. City County of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989) (Baldock J.).
B. Removal of E.M. and L.M.: The Court finds that the Defendants are not entitled to absolute immunity or qualified immunity for their actions with regard to the removal of E.M. and L.M. The Court believes that there is evidence in the May 11, 2000 hearing that Judge Rivera did not order the Defendants to remove E.M. and L.M. The Defendants are thus not entitled to absolute immunity.
A seizure without a warrant or court order, absent exigent circumstances, implicates the Fourth Amendment right to be free from unreasonable search or seizure. It is clearly established that a search or seizure requires a warrant or court order, in the absence of exigent circumstances or another exception to this requirement. See United States v. Karo, 468 U.S. 705, 717 (1984)("Warrantless searches are presumptively unreasonable, though the Court has recognized a few limited exceptions to this general rule."). The Plaintiffs have presented evidence that during the May 11, 2000 state court proceeding — in which E.M. and L.M. were not actually before Judge Rivera — Judge Rivera did not order the removal of E.M. and L.M. Thus, there is a genuine issue of material fact whether the Defendants acted pursuant to a court order in removing E.M. and L.M., or reasonably believed that they were acting pursuant to a court order. The Court will, therefore, deny the Defendants' motion for summary judgment with regard to the Plaintiffs' claims for Fourth Amendment violations under Count I as to the Defendants' removal of E.M. and L.M.
2. Count II — Procedural Due Process: The Court finds that the Defendants are entitled to qualified immunity with regard to the Plaintiffs' procedural due process claims. "The essence of procedural due process is that the parties be given notice and opportunity for a hearing." Jones v. Nuclear Pharm., Inc., 741 F.2d 322, 325 (10th Cir. 1984). Hunt received the requisite ten days of notice with regard to the Defendants' removal of S.M. See § 32A-4-14(A) (providing for ten days notice before removal of children from a foster parent). As to notice of the Defendants' removal of E.M. and L.M., while Hunt was entitled to ten days notice, there is a factual dispute as to how much notice she actually received. The record establishes that these Defendants, however, were not responsible for providing Hunt with notice and she may not, therefore, pursue claims against Defendants Virginia K. Green or R. Michael Westbay based on a lack of notice. See Martinez v. Mafchir, 35 F.3d 1486, 1491-93 (10th Cir. 1994) (agreeing with the district court: "[W]e find it shocking that the hearing on the Neglect Petition proceeded in Ms. Martinez' absence. However, we are called upon to decide only whether these defendants . . . were responsible for serving Ms. Martinez with notice. . . . [T]he children's court attorney retained responsibility for ensuring Ms. Martinez actually received notice. . . . [N]o statute charges social workers with the responsibility for providing notice.").
With regard to the procedural due process requirement of an opportunity to be heard, the Court notes that the relevant New Mexico statute does not on its face contemplate a hearing with the foster parent. See § 32A-4-14(A). The record is undisputed that Hunt received ten days notice with regard to S.M. and at no point during the ten days before removal did Hunt voice an objection or indicate a desire to be heard for the purpose of making an objection. See Deposition of Elizabeth Kathleen DeWitt at 125:24-126:9 (taken February 21, 2004)("Q: What is the purpose of that ten days? A: To provide time for all the parties to be aware of what is going on, to have time for any of the parties who disagree with this to be able to assert their — their — Q: Objections? A: — objections to that[.]"). Thus, the Defendants did not deny Hunt an opportunity to be heard. The Court, therefore, finds that there is no genuine issue of material fact whether these Defendants violated the Plaintiffs' procedural due process rights.
3. Counts III, IV, V, VI, and VI — Substantive Due Process: The Court finds that the Defendants are entitled to qualified immunity with regard to the Plaintiffs' substantive due process claims. The Plaintiffs assert various substantive due process violations in Counts III (Familial Relations), IV (Duty to Protect), V (Duty to Protect), VI (Danger Creation), and VII (Supervisory Liability). The threshold question in substantive due process challenges is whether the behavior of the governmental official is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. See County of Sacramento v. Lewis, 523 U.S. 833. 846-47(1998). While the Plaintiffs have brought their substantive due process claims under several different theories, the claims all involve the same operative facts and the same threshold standard — whether the Defendants' actions may fairly be said to shock the contemporary conscience. See Clerk's Minutes at 3, filed May 26, 2004 (Doc. 105) (noting that the parties agree that the Court should apply the analysis in County of Sacramento v. Lewis to all substantive due process claims). Although the Court finds that there is an issue of fact whether the Defendants' actions violated the Plaintiffs' Fourth Amendment rights such that the Defendants are not entitled to qualified immunity under Count I as to E.M. and L.M., the Court cannot fairly say that the Defendants' actions were so egregious or outrageous as to shock the Court's conscience. The Court will, therefore, grant the motion as to the Plaintiffs' substantive due process claims. IT IS ORDERED that the Defendants' Motion for Summary Judgment is granted in part and denied in part. The motion is granted, and summary judgment will be entered in favor of the Defendants, Virginia K. Green and R. Michael Westbay, on the Plaintiffs' claims in Counts II, III, IV, V, VI and VII. The motion is also granted with respect to the Plaintiffs' claims based on S.M.'s Fourth Amendment rights in Count I. The motion is denied as to the Plaintiffs' claims with regard to E.M.'s and L.M.'s Fourth Amendment rights.
This Order disposes of the motion at issue. The Court will, however, at a later date issue an opinion more fully detailing its rationale for this decision.