                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     August 25, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    ANGELA SUASNAVAS;
    M AR GA RET LUETH JE; AR NO LD
    LU ETH JE; EV IE BURR IS,

                Plaintiffs-Appellees,

    v.                                                  No. 05-5171
                                              (D.C. No. 04-CV-540-TCK-SAJ)
    V A LED A STO V ER ; V O N TR EVA                   (N.D. Okla.)
    CA RLTO N; RU SSELL JONES,

                Defendants-Appellants.



                             OR D ER AND JUDGM ENT *


Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
      In this civil rights action brought pursuant to 42 U.S.C. § 1983,

defendants-appellants Valeda Stover, Vontreva Carlton, and Russell Jones appeal

from the denial of their motion to dismiss plaintiffs’ federal constitutional claims

under Fed. R. Civ. P. 12(b)(6). Because a portion of this appeal raises legal

issues pertaining to defendants’ qualified immunity defense, we conclude that w e

have appellate jurisdiction over that part of this interlocutory appeal, and we

affirm the district court’s denial of qualified immunity. W e also conclude,

however, that we do not have appellate jurisdiction to review the district court’s

rulings with regard to defendants’ Rooker-Feldman and collateral estoppel

defenses. W e therefore dismiss the portions of this appeal that pertain to those

rulings for lack of jurisdiction.

                                          I.

      Plaintiff Angela Suasnavas (Suasnavas) is the natural mother of Shari Kay

Phillips (Phillips). Plaintiffs M argaret Luethje and Arnold Luethje (the Luethjes)

are married, and they are Suasnavas’s mother and step-father. Plaintiff Evie

Burris (Burris) is Suasnavas’s half-sister, and she is the daughter of M argaret

Luethje and Arnold Luethje. Burris also has children of her own, and the

Luethjes are the natural grandparents of Burris’s children. Defendants Stover,

Carlton, and Jones are or were child welfare social workers employed by the

Oklahoma Department of Human Services.




                                         -2-
      Plaintiffs filed a civil rights action against defendants under 42 U.S.C.

§ 1983, alleging, among other things, that defendants violated their familial

association rights under the Due Process Clause of the Fourteenth Amendment in

connection with a series of Oklahoma state-court child welfare proceedings

concerning Suasnavas and Phillips. Specifically, according to plaintiffs’

complaint, in the state-court proceedings, which apparently span a four-year time

frame from 2000 to 2004, defendants: (1) falsely accused Arnold Luethje of

having sexually molested Suasnavas when she was a child; (2) removed Phillips

from Suasnavas’s custody based on false accusations that Suasnavas had

endangered Phillips by leaving her in the Luethjes’ home; (3) threatened

Suasnavas that Phillips w ould never be returned to her if she continued to

associate with the Luethjes, which threats caused Suasnavas not to associate with

the Luethjes for over a year; and (4) threatened Burris that her children would be

taken into state custody if she left them at the Luethjes’ home, which threats

caused Burris to stop leaving her children at the Luethjes’ home and made her

“afraid to associate and visit [the Luethjes] freely,” A plts. App. at 21.

      Based on these allegations, plaintiffs claim that defendants have violated

their constitutional right to associate with other members of their family. First,

Suasnavas alleges that she has a constitutionally protected liberty interest in the

care, custody, and control of her daughter, Phillips, and she alleges that

defendants violated her procedural and substantive due process rights when they

                                          -3-
constructively terminated her parental rights w ith regard to Phillips w ithout a

hearing and placed Phillips in the permanent custody of her paternal grandfather

in Florida. Second, the Luethjes allege that they have a constitutionally protected

liberty interest in associating with their adult children, Suasnavas and Burris, and

their grandchildren, Phillips and Burris’s children, and they allege that defendants

have violated their familial association rights with regard to those relationships. 1

Third, Burris alleges that she has a constitutionally protected liberty interest in

associating with her parents, the Luethjes, and she alleges that defendants have

violated her right to associate with her parents. 2

      Defendants Stover, Carlton, and Jones filed a motion to dismiss plaintiffs’

federal constitutional claims under Fed. R. Civ. P. 12(b)(6), arguing that: (1) the

Luethjes and Burris lacked standing; (2) defendants w ere immune from liability

under § 1983 based on the doctrine of qualified immunity; (3) plaintiffs claims

were barred by the Rooker-Feldman doctrine; and (4) Suasnavas’s claims were



1
       Based on the allegations in plaintiffs’ complaint, it appears that the
Luethjes are also alleging that defendants have violated their right to associate
with one of their other daughters, Christie Luethje, and her children. The
allegations regarding Christie Luethje do not raise any separate or unique legal
issues that must be addressed to resolve the qualified immunity issues raised by
this appeal, however, and we therefore do not need to address them.
2
       Based on the allegations in plaintiffs’ complaint, it appears that Burris is
also alleging that defendants have violated her children’s right to associate with
their grandparents, the Luethjes. Burris’s children have not been named as
plaintiffs in this case, however. As a result, we do not need to address Burris’s
allegations regarding her children.

                                          -4-
barred by the doctrine of collateral estoppel. The district court denied

defendants’ motion to dismiss, and this appeal followed. In this appeal,

defendants are attempting to appeal the district court’s rulings w ith regard to their

defenses under the doctrines of qualified immunity, Rooker-Feldman, and

collateral estoppel.

                                          II.

      A. Appellate Jurisdiction.

      Because this appeal presents the purely legal question of whether the facts

alleged in plaintiffs’ complaint support a violation of clearly established federal

law, this court has appellate jurisdiction to review the district court’s denial of

qualified immunity. As we recently explained:

      This court has appellate jurisdiction over “final decisions” of district
      courts. 28 U.S.C. § 1291. Under the “collateral order” doctrine,
      however, some district court orders are considered “final” even
      though they are entered before a case has ended. Cohen v. Beneficial
      Indus. Loan Corp., 337 U.S. 541, 546-47 . . . (1949). One such
      collateral order permitting interlocutory appeal is a denial of
      qualified immunity. M itchell [v. Forsyth] , 472 U.S. [511, 530
      (1985)]. A denial of qualified immunity is only immediately
      appealable, however, to the extent the district court’s decision turns
      on an abstract issue of law. Id. at 530 . . . ; Johnson v. Jones, 515
      U.S. 304, 313-14, 317 . . . (1995). Thus, an appellate court may
      examine on interlocutory appeal the purely legal question of whether
      the facts alleged by plaintiff support a claim of violation of clearly
      established law. M itchell, 472 U.S. at 528 n. 9. . . .

Robbins v. Wilkie, 433 F.3d 755, 761 (10th Cir. 2006).




                                          -5-
      This does not end our jurisdictional inquiry, however, because the parties

have either overlooked or chosen not to address the question of whether the

collateral order doctrine provides this court with appellate jurisdiction to review

the district court’s interlocutory rulings with regard to defendants’

Rooker-Feldman and collateral estoppel defenses. W e conclude that it does not.

      There are three conditions that must be met for collateral order review.

The order being appealed must: “[1] conclusively determine the disputed

question, [2] resolve an important issue completely separate from the merits of

the action, and [3] be effectively unreviewable on appeal from a final judgment.”

Will v. Hallock, __ U.S. __, 126 S. Ct. 952, 957 (2006) (internal quotation marks

omitted; alteration in original). As we recently recognized, there are only a few

types of cases that can satisfy all of these requirements.

      In Will, the Supreme Court’s most recent pronouncement on the
      collateral order doctrine, the Court stressed that only a very few
      types of interlocutory orders can qualify as immediately appealable
      collateral orders. The requirements are “stringent and unless they are
      kept so, the underlying doctrine will overpower the substantial
      finality interests . . . § 1291 is meant to further.” [Will, 126 S. Ct. at
      957] (cites and quotes omitted). Will noted the four kinds of
      interlocutory orders which may be immediately appealed: those
      rejecting claims of absolute immunity, qualified immunity, and
      Eleventh Amendment immunity, and those issuing an adverse ruling
      on a double jeopardy defense. Id. at 958.

Bastien v. Office of Senator Ben Nighthorse Campbell, 454 F.3d 1072, 1074

(10th Cir. 2006) (per curiam).




                                          -6-
      W e conclude that the district court’s denial of defendants’ Rooker-Feldman

defense 3 is not immediately appealable under the collateral order doctrine, and, in

reaching this conclusion, we adopt the reasoning of the Third Circuit in Bryant v.

Sylvester, 57 F.3d 308, 312-16 (3d Cir. 1995), vacated on other grounds by

Sylvester v. Bryant, 516 U.S. 1105 (1996). Specifically, we agree with the Third

Circuit that a district court’s denial of a Rooker-Feldman defense is not

“effectively unreviewable” on appeal from a final judgment. Bryant, 57 F.3d at

312. As explained by the Third Circuit, “as a general rule, an order is effectively

unreviewable only where the order at issue involves an asserted right the legal

and practical value of w hich w ould be destroyed if it were not vindicated before

trial.” Id. at 313 (internal quotation marks omitted). A Rooker-Feldman defense

is not such a legal right, however, because “[t]he Rooker-Feldman doctrine’s

value as a protector of state courts is not irreparably undermined by district court

review of state court adjudications.” Id. at 314. To the contrary, “so long as

district court review of a state court adjudication is followed by the proper




3
        The Rooker-Feldman doctrine is derived from 28 U.S.C. § 1257(a), and it
“provides that only the Supreme Court has jurisdiction to hear appeals from final
state court judgments.” Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006). As
recently explained by the Supreme Court, however, the doctrine “is confined to
. . . cases brought by state-court losers complaining of injuries caused by state
court judgments rendered before the district court proceedings comm enced and
inviting district court review and rejection of those judgments.” Exxon M obile
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

                                         -7-
application of the [Rooker-Feldman] doctrine at the court of appeals level, the

interests that Rooker-Feldman seeks to further will be secured.” Id.

      W e likewise conclude that defendants’ collateral estoppel defense does not

“involve[] an asserted right the legal and practical value of which would be

destroyed if it were not vindicated before trial.” Id. at 313 (internal quotation

marks omitted). Consequently, we have no difficulty concluding that “[t]he

denial of [a] collateral estoppel motion to dismiss is not a collateral order

appealable under 28 U.S.C. § 1291.” Unger v. Consol. Foods Corp., 693 F.2d

703, 705 (7th Cir. 1982). As a result, we do not have jurisdiction to review the

district court’s collateral estoppel ruling.

      Finally, we decline to exercise our discretion to assert pendent appellate

jurisdiction over the Rooker-Feldman and collateral estoppel issues. The issues

are not inextricably intertwined with defendants’ qualified immunity defense, and

it is not necessary for us to decide the issues in order to resolve the qualified

immunity question. 4 See Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 970

(10th Cir. 2006) (stating that “[t]he exercise of pendent [appellate] jurisdiction




4
       W e also note that 28 U.S.C. § 1292(b) is not applicable here, as defendants
have not availed themselves of § 1292(b)’s certification procedures for
interlocutory appeals. See ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1182,
1186 (10th Cir. 1998) (exercising appellate jurisdiction over Rooker-Feldman
issue where issue was certified for an interlocutory appeal under 28 U.S.C.
§ 1292(b)).

                                           -8-
. . . is generally disfavored,” and that it is only “appropriate to exercise pendent

appellate jurisdiction where the otherwise nonappealable decision is inextricably

intertwined with the appealable decision, or where review of the nonappealable

decision is necessary to ensure meaningful review of the appealable one”)

(internal quotation marks omitted); see also Gubitosi v. Kapica, 154 F.3d 30, 32

n.3, 34 (2d Cir. 1998) (declining to exercise pendent appellate jurisdiction over

portions of district court’s order that denied defendants’ motion for summary

judgment based on Rooker-Feldman and collateral estoppel defenses).

      B. Standard of Review .

      “Although summary judgment provides the typical vehicle for asserting a

qualified immunity defense, we will also review this defense on a motion to

dismiss.” Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004). “Asserting a

qualified immunity defense via a Rule 12(b)(6) motion, however, subjects the

defendant to a more challenging standard of review than would apply on summary

judgment.” Id. (citing Lone Star Indus., Inc. v. Horman Fam ily Trust, 960 F.2d

917, 920 (10th Cir. 1992) (“A motion to dismiss for failure to state a claim is

viewed with disfavor, and is rarely granted.”) (internal quotation marks omitted)).

      “W e review the district court’s denial of a motion to dismiss based on

qualified immunity de novo.” Butler v. Rio Rancho Pub. Sch. Bd. of Educ.,

341 F.3d 1197, 1199 (10th Cir. 2003). “W e accept all well-pleaded allegations of

the complaint as true and consider them in the light most favorable to the

                                          -9-
nonmoving party.” Id. (internal quotation marks omitted). Further, “[w]e will

not dismiss a complaint unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief.” Id.

(internal quotation marks omitted).

      C. Q ualified Immunity A nalysis.

      “Qualified immunity generally shields from liability for civil damages

government officials performing discretionary functions . . . insofar as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Gomes v. Wood, 451 F.3d 1122,

1134 (10th Cir. 2006) (internal quotation marks omitted; alteration in original).

To analyze a qualified immunity defense, this court has adopted a three-part

inquiry.

      First, we ask whether the plaintiffs’ allegations, if true, establish a
      constitutional violation. Lawrence v. Reed, 406 F.3d 1224, 1230
      (10th C ir. 2005). If the allegations do not meet that standard, we
      must dismiss the claim.

             Second, if the plaintiffs have alleged a constitutional violation,
      we examine “whether the law was clearly established at the time the
      alleged violations occurred.” Roska [ex rel. Roska v. Peterson, 328
      F.3d 1230, 1247 (10th Cir. 2003) (Roska II)]. The law is clearly
      established if a reasonable official in the defendant’s circumstances
      would understand that her conduct violated the plaintiff’s
      constitutional right. M oore v. Guthrie, 438 F.3d 1036, 1042 (10th
      Cir. 2006). Recently, the Supreme Court has “shifted the qualified
      immunity analysis from a scavenger hunt for prior cases w ith
      precisely the same facts toward the more relevant inquiry of whether
      the law put officials on fair notice that the described conduct was
      unconstitutional.” Pierce v. Gilchrist, 359 F.3d 1279, 1298

                                         -10-
      (10th Cir. 2004) (discussing Hope v. Pelzer, 536 U.S. 730 . . .
      (2002)). Thus, government officials must make “reasonable
      applications of the prevailing law to their own circumstances,”
      Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001) (internal
      quotation marks omitted), and they “can still be on notice that their
      conduct violates established law even in novel factual
      circumstances.” Hope, 536 U.S. at 741. . . .

             Finally, if the law was clearly established, we proceed to the
      third part of the inquiry. W e ask whether, in spite of the fact that the
      law was clearly established, “extraordinary circumstances”–such as
      reliance on the advice of counsel or on a statute–“‘so prevented [the
      official] from knowing that [her] actions were unconstitutional that
      [she] should not be imputed with knowledge of a clearly established
      right.” Roska II, 328 F.3d at 1251 (internal quotation marks
      omitted). “[W]here the right is clearly established, a defendant
      should only rarely be able to succeed with a qualified immunity
      defense.” Id. (internal quotation marks omitted).

Gomes, 451 F.3d at 1134-35.

      D. The Right of Familial Association and the Trujillo Decision.

      Plaintiffs claim that defendants have violated their right of familial

association under the Due Process Clause of the Fourteenth Amendment. The

right of familial association is a substantive due process right, Griffin v. Strong,

983 F.2d 1544, 1547 (10th Cir. 1993) (“The freedom of intimate association is a

substantive due process right, as is its subset, the familial right of association.”),

and “[t]his court first recognized the right in Trujillo v. Board of County

Com missioners, 768 F.2d 1186, 1188-89 (10th Cir. 1985),” id. at 1546.




                                         -11-
      In Trujillo, “[w]e read the [plaintiffs’] allegation of a right of familial

association as an assertion of the liberty interest discussed in Roberts v. United

States Jaycees, 468 U.S. 609, 104 S. Ct. 3244 . . . (1984).” 768 F.2d at 1188 n.4.

As w e further explained:

      In Roberts . . ., the Court held that application of the M innesota
      Human Rights Act to compel the Jaycees to accept women as regular
      members did not infringe members’ freedom of intimate association
      or their freedom of expressive association. W hile the Court anchored
      the freedom of expressive association in the First Amendment, id.
      104 S. Ct. at 3252, it identified the freedom of intimate association
      as “an intrinsic element of personal liberty,” id. at 3251. . . .

             In describing this constitutionally protected liberty, the C ourt
      recognized that “choices to enter into and maintain certain intimate
      human relationships must be secured against undue intrusion by the
      State. . . .” Id. at 3249. Included in that category are “[f]amily
      relationships, [which] by their nature, involve deep attachments and
      commitments to the necessarily few other individuals with whom one
      shares not only a special community of thoughts, experiences, and
      beliefs but also distinctly personal aspects of one’s life.” Id. at 3250.

Trujillo, 768 F.2d at 1188.

      In Trujillo, the plaintiffs were a mother and her adult daughter, and they

“allege[d] that the w rongful death of their [adult] son and brother, Richard

Trujillo, while incarcerated at the Santa Fe County Jail, deprived them of their

constitutional right of familial association.” Id. at 1187. In analyzing the

asserted right of familial association, we focused mainly on the question of

whether the right existed beyond the context of a parent/child relationship, and

our reasoning and conclusions were as follows:



                                         -12-
             M any courts have recognized liberty interests in familial
      relationships other than strictly parental ones. See, e.g., M oore v.
      City of East Cleveland, 431 U.S. 494 . . . (1977) (plurality opinion)
      (zoning ordinance could not prohibit grandmother from living with
      her grandsons w ho were cousins); Smith v. Organization of Foster
      Families, 431 U.S. 816 . . . (1977) (foster parents have liberty
      interest in relationship with foster children) (dicta); Wilson v. Taylor,
      733 F.2d 1539 (11th Cir. 1984) (interference with dating relationship
      actionable under § 1983); Rivera v. M arcus, 696 F.2d 1016, 1024-25
      (2d Cir. 1982) (half-sister who was also foster mother had protected
      interest in siblings); Drollinger v. M illigan, 552 F.2d 1220, 1226-27
      (7th Cir. 1977) (deprivation of grandfather’s relationship with
      grandchild actionable under § 1983). . . .

             ....

            Although the parental relationship may warrant the greatest
      degree of protection and require the state to demonstrate a more
      compelling interest to justify an intrusion on that relationship, we
      cannot agree that other intimate relationships are unprotected and
      consequently excluded from the remedy established by section 1983.
      W e therefore hold that Rose and Patricia Trujillo had constitutionally
      protected interests in their relationship w ith their son and brother,
      Richard Trujillo.

Trujillo, 768 F.2d at 1188-89 (footnote omitted).

      Importantly, we also noted “that the familial relationships in [Trujillo] do

not form the outer limits of protected intimate relationships. . . . ‘[A] broad range

of human relationships . . . may make greater or lessor claims to constitutional

protection.’” Id. at 1189 n.5 (quoting Jaycees, 104 S. Ct. at 3251). In fact, we

specifically rejected the position taken by the Seventh Circuit in Bell v. City of

M ilwaukee, 746 F.2d 1205 (7th Cir. 1984), overruled by Russ v. Watts, 414 F.3d

783 (7th Cir. 2005), that “a deliberate deprivation of any intimate associational



                                         -13-
relationship other than that of a parent, spouse, or child would not be actionable

under section 1983.” Trujillo, 768 F.2d at 1190. As we explained:

      W e believe that this [position] is irreconcilable with the analysis of
      intimate associational rights in Jaycees. The Court recognized there
      that these rights extend to intimacy in a variety of contexts. Section
      1983 accordingly provides a remedy for improperly motivated state
      conduct in all of these contexts.

Id.

      Trujillo also placed an important limitation on the right of familial

association, however, because “we conclude[d] that an allegation of intent to

interfere with a particular relationship protected by the freedom of intimate

association is required to state a claim under section 1983.” Id. This limitation

was fatal to the plaintiffs’ claims in Trujillo, because “the Trujillos’ complaint

[did] not allege intent on the part of defendants to deprive them of their protected

relationship with their son and brother.” Id. As a result, we held that “their

complaint was properly dismissed for failure to state a constitutional claim.” Id.

      Finally, even if a plaintiff asserts a cognizable right of familial association

in a given case, the determination of whether the plaintiff’s rights were violated

“requires a balancing of liberty interests against the relevant state interests.”

Griffin, 983 F.2d at 1547 (brackets and internal quotation marks omitted).

Specifically, “[w ]e weigh these interests to determine w hether [the state actor’s]

conduct . . . constituted an undue burden on [the plaintiff’s] associational rights.”

Id.; see also id. (“To determine whether a person’s familial association rights

                                          -14-
have been violated . . ., we must w eigh two factors: the state’s interests in

investigating reports of child abuse, . . . and [the person’s] interests in [his or her]

familial right of association.”); Trujillo, 768 F.2d at 1190 (noting that the

freedom of intimate association “protect[s] interpersonal relationships from

unwarranted intrusion by the state”) (emphasis added).

      E. Analysis of the District Court’s Decision.

      In its cogent and well-reasoned order, the district court found that

Suasnavas, the Luethjes, and Burris alleged sufficient facts in support of their

claims to overcome defendants’ qualified immunity defense. The court

summarized its reasoning as follow s:

             Unquestionably there is a constitutional right to custody of
      one’s children. See Stanley [v. Illinois] , 405 U.S. [645, 652 (1972)].
      Parents have a due process right to a hearing before their parental
      rights are terminated. Santosky v. Kramer, 455 U.S. 745 (1982).
      M oreover, as previously discussed, there is a clearly established right
      to familial association. Trujillo, 768 F.2d at 1188-89. These rights
      have been clearly established in the Tenth Circuit for many years.
      On the face of their Complaint, Plaintiffs have alleged violations of
      clearly established federal constitutional rights by DHS Defendants.

Aplts. App. at 107.

      Confining our review to the allegations set forth in plaintiffs’ complaint,

and accepting all well-pleaded allegations as true, we agree with the district court

that defendants are not entitled to a Rule 12(b)(6) dismissal of plaintiffs’

complaint based on their qualified immunity defense. First, as the district court

recognized, “parents have a protected liberty interest in the care, custody and

                                          -15-
control of their children,” Gomes, 451 F.3d at 1127, and “[t]hat interest is perhaps

the oldest of the fundamental liberty interests recognized by the Supreme Court,”

id. (brackets and internal quotation marks omitted). Accordingly, we agree with

the district court that Suasnavas has stated a claim for relief under the Due

Process Clause of the Fourteenth Amendment, as she has alleged that:

(1) defendants constructively terminated her clearly established parental rights

with regard to Phillips without a hearing and without proper justification; and

(2) defendants acted with the intent to interfere with her relationship with

Phillips. See Aplts. App. at 17-20. That said, we also note that defendants have

alleged in their opening brief that “the movement of [Phillips] to Florida to an

approved [Interstate C ompact for the Placement of Children] home was properly

authorized by an Oklahoma state court after a hearing on the constitutional

objection filed by Plaintiffs-A ppellees.” Aplts. Opening Br. at 8. Defendants

have offered no evidence to support this allegation, however, and it is beyond the

scope of our limited appellate review under Rule 12(b)(6).

      Second, we also agree with the district court that Burris has alleged

sufficient facts to support her claim that defendants have intentionally interfered

with her clearly established right to associate with her parents. Although

defendants argue in their opening brief that any threats made regarding the

removal of Burris’s children from her custody “are not compensable under

42 U.S.C. § 1983,” Aplts. Opening Br. at 13, the Eighth Circuit case that

                                         -16-
defendants cite to support this argument actually supports Burris’s position, as

Burris has unequivocally alleged that defendants’ threats have “deprived her . . .

of the association and companionship of her parents,” Aplts. App. at 21; see also

Aplts. Opening Br. at 13 (quoting King v. Olmsted County, 117 F.3d 1065, 1067

(8th Cir. 1997) (“[A] threat constitutes an actionable constitutional violation . . .

if the threat exerts coercive pressure on the plaintiff and the plaintiff suffers the

deprivation of a constitutional right.”)). As with Suasnavas’s claims, however,

we w ant to emphasize that a developed factual record may or may not support

Burris’s claims, and we are only determining the sufficiency of the allegations in

plaintiffs’ complaint.

      Lastly, we also agree with the district court that the Luethjes have alleged

sufficient facts to show a violation of a clearly established constitutional right.

Although Trujillo did not explicitly recognize a right of familial association

between grandparents and grandchildren, we made it clear in Trujillo that the

right of familial association extends beyond the context of “parent, spouse, or

child,” Trujillo, 768 F.2d at 1190, and we cited specific legal authority

recognizing the importance of the familial relationship between grandparents and

grandchildren, id. at 1188 (citing M oore v. City of East Cleveland, 431 U.S. 494

(1977) (plurality opinion) (zoning ordinance could not prohibit grandmother from

living with her grandsons who were cousins)), and Drollinger v. M illigan,

552 F.2d 1220, 1226-27 (7th Cir. 1977) (deprivation of grandfather’s relationship

                                          -17-
with grandchild actionable under § 1983)). In addition, Trujillo clearly

recognized the paramount importance of the parent/child relationship, even if the

child is an adult. W e therefore believe that Trujillo gave defendants “fair

warning that their [alleged] conduct was unconstitutional.” Gomes, 451 F.3d at

1136.

        Again, however, we want to stress that a developed factual record may or

may not support the Luethjes’ claim that defendants’ conduct resulted in an

intentional and unwarranted intrusion on their right to associate with their

children and grandchildren. In particular, the factual question of whether

defendants had a reasonable suspicion that Arnold Luethje posed a threat to his

grandchildren must be explored in depth, cf. Gomes, 451 F.3d at 1130 (concluding

“that state officials may remove a child from the home w ithout prior notice and a

hearing when they have a reasonable suspicion of an immediate threat to the

safety of the child”), as the merits of all of the claims in this case would appear to

be inextricably tied to that question. Likewise, we cannot determine from the

face of plaintiffs’ complaint whether any “extraordinary circumstances” justified

defendants’ actions in this case. Id. at 1134. Finally, neither the parties nor the

district court have addressed the question of w hether Arnold Luethje’s status as a

“step” parent and grandparent limits his right of familial association in any way,

and we leave that question open for the district court to address in subsequent

proceedings.

                                         -18-
      The district court’s denial of defendants’ qualified immunity defense under

Fed. R. Civ. P. 12(b)(6) is A FFIRM ED. The portions of this appeal pertaining to

the district court’s rulings regarding defendants’ Rooker-Feldman and collateral

estoppel defenses are DISM ISSED for lack of appellate jurisdiction.


                                                   Entered for the Court


                                                   John L. Kane
                                                   District Judge




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