                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 10, 2008
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                 Clerk of Court



    JOHN WILLIAM TURNER,

                Plaintiff-Appellee,

    v.                                                  No. 07-6108
                                                  (D.C. No. CIV-07-268-R)
    CAROL HOUSEMAN, individually,                       (W.D. Okla.)

                Defendant-Appellant,

          and

    MICHAEL E. KLIKA, individually;
    TOM GRUBER, individually; CITY
    OF OKLAHOMA CITY, a political
    subdivision of the State of Oklahoma;
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA, The State
    of Oklahoma ex rel., a state agency
    (sued as The Office of the Attorney
    General); JOHN DOES 1-5,

                Defendants.


                              ORDER AND JUDGMENT *




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before TACHA, EBEL, and MURPHY, Circuit Judges.



      Carol Houseman appeals the district court’s denial of her motion to dismiss

plaintiff John William Turner’s 42 U.S.C. § 1983 civil rights claims on the basis

of qualified immunity. In his petition, Turner alleged that Houseman, acting in

her individual capacity, violated his Fourth, Fifth, and Fourteenth Amendment

rights by participating in or facilitating an unreasonable seizure of his person,

without due process of law, and an unreasonable search of his home. The district

court denied qualified immunity to Houseman because it determined that Turner

had alleged sufficient facts to show that the search and seizure were unreasonable

and that the rights asserted were clearly established prior to Houseman’s alleged

actions. We affirm the challenged order of the district court.

                                 BACKGROUND

      Turner is the father of minor child H.M.T. He was formerly employed as

an attorney by the Oklahoma Attorney General’s office. In his petition, he

alleged that in March 2005, he had an altercation with his former girlfriend. In

the course of an investigation of the altercation by the Oklahoma City Police

Department (OCPD), the girlfriend accused Turner of sexually abusing her minor

child. Houseman, a caseworker for the Oklahoma Department of Human Services

(DHS), became involved because of the abuse allegation and began to suspect that

Turner had sexually abused H.M.T. as well.

                                         -2-
      On April 20, 2005, Turner’s supervisor called him into the supervisor’s

office. The supervisor informed Turner that the OCPD had requested his

cooperation in detaining Turner while police officers conducted a warrantless

search of Turner’s home. Turner was not told the reason for the search. An

armed investigator from the Attorney General’s office frisked Turner, and Turner

was taken to the investigator’s office, where he was ordered not to use his

computer or telephone until several hours later, when he was returned to his

office.

      Turner was confronted in his office by defendant Michael E. Klika, an

OCPD officer, who told him that his house had been searched. Turner then

consented to a search of his car, allegedly under duress. Officer Klika told

Turner that he was under investigation for child abuse. After the vehicle search

was completed, he allowed Turner to go home.

      At home, Turner discovered that his back door had been destroyed and his

house had been left in extreme disarray from the warrantless search. Two days

later, the Attorney General’s office terminated his employment without a hearing.

The OCPD seized H.M.T. from her school, and Turner was denied contact with

her for two months. Turner was never prosecuted for child sexual abuse, and the

DHS later reversed its finding that he had sexually abused H.M.T.

      Turner filed his petition in state court, later removed to federal court,

alleging that Houseman engaged in a “joint venture” with the other defendants

                                         -3-
and that “Defendants Klika and Houseman assisted each other in performing the

actions described and lent their physical presence and support, as well as the

authority of their offices to each other” during the events in question. Aplt. App.

at 15. He asserted that the defendants, including Houseman, wrongfully arrested

and detained him without informing him of the nature and cause of the

accusation, and searched his home without a search warrant, in violation of his

Fourth and Fourteenth Amendment rights. He further asserted that they deprived

him of his liberty without due process of law in violation of the Fifth and

Fourteenth Amendments. The district court denied qualified immunity to

Houseman, reasoning that the allegations of Turner’s petition showed that she

participated in an unlawful search and seizure, and that the law was clearly

established at the time fo the events in question that her acts were illegal.

                                     ANALYSIS

      “An order denying qualified immunity that raises purely legal issues is

immediately appealable.” Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006).

Our review is de novo, and we accept all well-pleaded allegations of the

plaintiff’s complaint as true, considering them in the light most favorable to the

plaintiff. Id. To overcome Houseman’s assertion of the qualified immunity

defense, Turner must show that the acts complained of violated a constitutional or

statutory right, and that the right allegedly violated was clearly established at the

time of the conduct at issue. Id.

                                          -4-
      1. Proper Constitutional Standard

      Houseman contends that Turner has failed to make the required showing

because the facts alleged are not “conscience shocking” and therefore cannot rise

to the level of a constitutional violation. Aplt. Opening Br. at 11-12. The

“shock-the-conscience” test applies when the plaintiff asserts a substantive due

process violation based on executive action that does not implicate a fundamental

right. County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998); Dubbs v.

Head Start, Inc., 336 F.3d 1194, 1203 (10th Cir. 2003). As we read his petition,

Turner does not bring his claims against Houseman on the basis of substantive

due process, 1 but avers instead specific violations of the Fourth, Fifth, and

Fourteenth Amendments, including unlawful search and seizure and a deprivation

of procedural due process. “Where a particular Amendment provides an explicit

textual source of constitutional protection against a particular sort of government

behavior, that Amendment, not the more generalized notion of ‘substantive due

process,’ must be the guide for analyzing these claims.” Albright v. Oliver,

510 U.S. 266, 273 (1994) (quotation omitted).




1
       In his response brief in this court, Turner asserts that Houseman violated
his “liberty interest in his familial association” with H.M.T. Aplee Br. at 7. As
we read his petition, however, he has not pleaded such a claim against Houseman
in her individual capacity. See Aplt. App. at 17-21.

                                         -5-
      2. Fourth Amendment Claim

      Turner’s Fourth Amendment claim asserts that Houseman assisted in the

unlawful seizure of his person and the warrantless search of his home. The

Fourth Amendment, which prohibits the unreasonable seizure of persons and

searches of their homes, is applicable to the actions of state social workers. Jones

v. Hunt, 410 F.3d 1221, 1225 (10th Cir. 2005).

      Houseman asserts that the district court incorrectly applied the standard

relevant to actions by the police to determine whether she violated Turner’s

Fourth Amendment rights. 2 But as our cases indicate, the ultimate standard is the

same, whether police or social workers are involved: “With limited exceptions, a

search or seizure requires either a warrant or probable cause.” Id. at 1227. We

have applied these standards to the actions of social workers and police alike. See

Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240-42 (10th Cir. 2003)




2
       In the course of this argument, she asserts that she “is a child protective
services social worker for DHS and not a police officer. As such, she has no
power to effect an arrest or to execute a search of the Plaintiff’s residence or
office.” Aplt. Opening Br. at 12. We do not conclude from this language that
Houseman is seeking qualified immunity based on her lack of personal
participation in the search, seizure, or detention. She does not draw this
conclusion from the facts asserted, but instead follows them with an argument
that “[t]hus, the district court’s analysis of Defendant Houseman’s conduct for
qualified immunity purposes under standards applicable to police officers was in
error.” Id. In any event, Houseman did not make a “lack of personal
participation” argument to the district court.

                                        -6-
(applying Fourth Amendment to caseworkers and police who acted together to

conduct warrantless entry and seizure of child).

       Turning to the first element of Turner’s burden regarding the qualified

immunity defense, we conclude that his petition alleges facts sufficient to

establish a Fourth Amendment violation. “It is well-established that a warrantless

search is presumptively unreasonable under the Fourth Amendment and therefore

invalid unless it falls within a specific exception to the warrant requirement.” Id.

at 1240. Similarly, a warrantless seizure and detention of a person without

probable cause or exigent circumstances, as described in Turner’s petition, is

unreasonable. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.

2002). 3

       Houseman argues that she is entitled to qualified immunity because she had

a reasonable but mistaken belief that probable cause or exigent circumstances

existed to justify the search and seizure. Aplt. Opening Br. at 13. But at this

stage of the proceedings, we are limited to the allegations of Turner’s complaint.

His petition does not contain facts sufficient to justify a conclusion that

Houseman acted on a reasonable but mistaken belief that the seizure and detention




3
      We assume, for the purposes of this decision only, that Turner was seized
and detained for Fourth Amendment purposes during his detention at the Attorney
General’s Office.

                                         -7-
of Turner and search of his home was justified because of probable cause or

exigent circumstances.

      Turner has also met the second element of his burden, to show that the right

allegedly violated was clearly established. “The law is clearly established when a

Supreme Court or Tenth Circuit decision is on point, or if the clearly established

weight of authority from other courts shows that the right mst be as the plaintiff

maintains.” Roska, 328 F.3d at 1248. It was clearly established, at least two

years before the events in question, that absent probable cause and a warrant or

exigent circumstances, neither police nor social workers may enter a person’s

home without a valid consent, even for the purpose of taking a child into custody,

much less to conduct a search. Id. at 1248-50 & n.23. It was also established that

the warrantless seizure and detention of a person without probable cause or

exigent circumstances, as alleged in Turner’s petition, is unreasonable. See

Olsen, 312 F.3d at 1312. We therefore affirm the district court’s denial of

qualified immunity on Turner’s Fourth Amendment claim against Houseman.

      3. Due Process Claim

      Turner’s petition also includes a procedural due process claim under the

Fifth and Fourteenth Amendments against Houseman. He alleges that the arrest

violated his right “to be free from deprivation of one’s liberty without due process

of law.” Aplt. App. at 20. The district court did not specifically address this

claim in its order. Houseman’s only argument concerning this claim is that child

                                         -8-
protective services workers may remove a child from a home without prior notice

or a court order, Aplt. Opening Br. at 14. The argument has no relevance to this

case, however, since Turner does not allege that H.M.T. was present in his home

or removed from there during the search. We therefore need not consider whether

Houseman is entitled to qualified immunity as to Turner’s due process claim

resulting from the alleged wrongful arrest.

      It is worth pointing out, however, that “the Fourth Amendment protects a

person’s liberty interests under the constitution by ensuring that any arrest or

physical incarceration attendant to a criminal prosecution is reasonable . . . [t]he

more general [procedural and substantive] due process considerations of the

Fourteenth Amendment are not a fallback to protect interests more specifically

addressed by the Fourth Amendment in this context.” See Becker v. Kroll,

494 F.3d 904, 919 (10th Cir. 2007). Thus, the Fourth Amendment, and not Fifth

and Fourteenth Amendment due process considerations, appears to provide

Turner’s theory of liability.

      We note, however, that Turner further asserts that Houseman’s actions

resulted in “injury to his professional reputation.” Aplt. App. at 20. Turner may

have a separate procedural due process claim based on this injury, if state law did

not provide him with an adequate post-deprivation tort remedy. See Becker,

494 F.3d at 920-21.




                                          -9-
                         CONCLUSION

We AFFIRM the district court’s denial of qualified immunity to Houseman.



                                          Entered for the Court



                                          David M. Ebel
                                          Circuit Judge




                               -10-
