                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1862
                                  ___________

Sha'va Porter, mother of decedent;       *
Herbert Murray, father of decedent;      *
                                         *
             Plaintiffs-Appellants,      *
                                         *
Constance Porter,                        *
                                         *
             Plaintiff,                  *
                                         *
       v.                                *
                                         * Appeal from the United States
Sharee L. Williams;                      * District Court for the
                                         * Western District of Missouri.
             Defendant,                  *
                                         *
Julie Coffman; Augustin Torres;          *
                                         *
             Defendants-Appellees,       *
                                         *
Tricia Rothweiler; John Doe, Unknown *
personnel of the Missouri Division of *
Family Services; James T. Clayton;       *
Tina Clayton; Dept. of Social Services, *
Children's Division,                     *
                                         *
             Defendants.                 *
                                    ___________

                            Submitted: November 14, 2005
                               Filed: February 6, 2006
                                ___________
Before SMITH, HEANEY, and BENTON, Circuit Judges.
                            ___________
BENTON, Circuit Judge.

       Constance Porter, a two-and-a-half year old, died from abuse after being placed
in a foster home by the Missouri Division of Family Services. The district court
granted summary judgment to Julie Coffman, a DFS social worker, and Augustin
Torres, her immediate supervisor, based on official immunity. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

                                          I.

       On December 18, 2000, Sha'va L. Porter voluntarily placed her two daughters,
Constance and Shebria, in the temporary care of DFS. With the approval of
supervisor Augustin Torres, DFS immediately placed the children with James Thomas
and Tina Clayton, licensed foster parents. Julie N. Coffman was then assigned as the
social service worker for the case.

       During a visit in early January 2001, Coffman noticed Constance had a "tiny
scratch" on her left cheek. Tina Clayton explained she had scratched herself. After
examining the child, Coffman noticed no other injuries and reported "[n]o concerns
for the safety and welfare of Constance." Sometime later, Tina Clayton telephoned
Coffman about bruises around Constance's eyes, saying the child hit her nose on a
coffee table while playing. On January 11, Constance was treated for a contusion on
her forehead. The medical report notes "reassurance given that she probably just hit
her head during sleeping." The report also states that Constance was "very alert,"
"cheerful," "very positive," and "very well adjusted."




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       On February 13, Constance died from a subarachnoid hemotoma and bilateral
retinal hemorrhage caused by "non accidental trauma." A subsequent medical
examination also revealed a bruise with abrasions in the center of her back.

       Tina Clayton pled guilty to first degree involuntary manslaughter. Porter and
Herbert Murray, Constance's father, then sued for wrongful death and civil rights
violations. On the wrongful death claim, the district court granted summary judgment
to Coffman and Torres based on official immunity.

                                           II.

       First, this court must address its jurisdiction. Generally, partial summary
judgments are not final and not immediately appealable. See Royal Ins. Co. of
Am. v. Kirksville Coll. of Osteopathic Med., Inc., 304 F.3d 804, 808 (8th Cir.
2002). However, partial summary judgment is immediately appealable if the
district court issues it under Federal Rule of Civil Procedure 54(b), or certifies it as
an interlocutory appeal under 28 U.S.C. § 1292(b). See Reinholdson v.
Minnesota, 346 F.3d 847, 859 (8th Cir. 2003).

       In this case, on March 8, 2005, the district court granted summary judgment
to Coffman and Torres on the 42 U.S.C. § 1983 claim and the wrongful death
claim. The court invoked neither Rule 54(b) nor § 1292(b). On March 24, the
district court remanded the remaining state-law claims against the Claytons to state
court. On March 30, plaintiffs Porter and Murray filed their notice of appeal from
the summary judgment order.

      Coffman and Torres argue that this court does not have jurisdiction because
the summary judgment was not immediately appealable, and Porter and Murray
waived an appeal when the district court remanded the case to state court.
Coffman and Torres primarily rely on the remand order's language: "The above

                                          -3-
captioned case is remanded." Thus, they claim, Porter and Murray waived their
right to appeal the summary judgment.

       In Johnson v. Cartwright, this court explained that the dismissal of one
plaintiff effectively became a final order after a voluntary dismissal of the
remaining defendants. Johnson v. Cartwright, 344 F.2d 773, 774 (8th Cir. 1965).
Thus, a partial summary judgment becomes a final judgment once the remaining
parts of the case are dismissed or otherwise resolved. See Chrysler Motors Corp.
v. Thomas Auto Co., 939 F.2d 538, 540 (8th Cir. 1991); see also 15B Charles
Alan Wright et al., Federal Practice and Procedure § 3914.28 (2d ed. 1992).
Remanding the remaining state-law claims, after the federal claims are resolved,
has the same effect: It makes the partial summary judgment a final order because
there is nothing left for the district court to resolve.

       In this case, the district court had original jurisdiction under 28 U.S.C. §
1331 over Porter and Murray's § 1983 claim. It had supplemental jurisdiction
under 28 U.S.C. § 1367 over the other claims. Once the district court granted
partial summary judgment to Coffman and Torres, it had the discretion either to
remand the remaining state-law claims or to keep them in federal court. See 28
U.S.C. § 1367(c)(3); Lindsey v. Dillard's, Inc., 306 F.3d 596, 598–99 (8th Cir.
2002). Even though all the remaining parties moved to remand "[t]he above
captioned case," the court could have remanded it sua sponte. Therefore, it does
not matter that the parties themselves jointly moved to remand.

       Morever, the remand order states that it involves "Sha'va Porter and Herbert
Murray and the remaining defendants in this action, James and Tina Clayton."
(emphasis added). The order continues: "Because the plaintiffs and the remaining
defendants support remand, this Court will grant the pending motion." The district
court intended to remand only the issues involving James and Tina Clayton.



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       On October 4, 2005, the district court ruled it lacked jurisdiction to modify
the remand order. According to Coffman and Torres, that proves this court lacks
jurisdiction to hear the appeal. However, the district court notes only that it does
not have jurisdiction under 28 U.S.C. § 1447(d) to reconsider its remand order.
But the present case is not about whether the remand was proper. Moreover, by
the time the district court issued its October 4 order, Porter and Murray had filed
their notice of appeal on the summary judgment issue. The combination of the
remand order and the notice of appeal divested the district court of all jurisdiction,
preempting the court from modifying its orders. See Hunter v. Underwood, 362,
F.3d 468, 475 (8th Cir. 2005) (filing notice of appeal divests district court of
jurisdiction).

       When the district court remanded the remaining state-law claims against the
other defendants, it had nothing left to resolve and the partial summary judgment
became final. Therefore, this court has jurisdiction of the appeal.

                                          III.

                                           A.

        This court reviews de novo a grant of summary judgment based on official
immunity, using the same standard as applied by the district court. See Murray v.
Leyshock, 915 F.2d 1196, 1199 (8th Cir. 1990). Summary judgment is appropriate
if the evidence, viewed in the light most favorable to the nonmovant, shows no
genuine issue of material fact and that the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c).

       The district court granted summary judgment on the wrongful death claim
based on official immunity. According to the official immunity doctrine, public
officials "acting within the scope of their authority are not liable for injuries arising

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from their discretionary acts or omissions, but they may be held liable for torts
committed when acting in a ministerial capacity." Kanagawa v. State ex rel.
Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985); see also State ex rel.
Howenstine v. Roper, 155 S.W.3d 747, 752 (Mo. banc 2005), citing Charron v.
Thompson, 939 S.W.2d 885, 886 (Mo. banc 1996). Official immunity protects
those "who, in the face of imperfect information and limited resources, must daily
exercise their best judgment in conducting the public's business." Kanagawa, 685
S.W.2d at 836, citing Jackson v. Wilson, 581 S.W.2d 39, 42 (Mo. App. 1979).
Whether an act is discretionary or ministerial "depends upon the degree of reason
and judgment required." Id. at 836. "[A] discretionary act requires 'the exercise of
reason in the adaption of means to an end and discretion in determining how or
whether an act should be done or course pursued.'" Edwards v. McNeill, 894
S.W.2d 678, 681 (Mo. banc 1995), quoting Rustici v. Weidemeyer, 673 S.W.2d
762, 769 (Mo. banc 1984). A ministerial act, on the other hand, is "of a clerical
nature which a public officer is required to perform upon a given state of facts, in a
prescribed manner, in obedience to the mandate of legal authority, without regard
to his own judgment or opinion concerning the propriety of the act to be
performed." Kanagawa, 685 S.W.2d at 836, quoting Rustici, 673 S.W.2d at 769.

                                          B.

      Julie Coffman was the Jackson County social worker assigned to Constance.
She was responsible for visiting Constance and the foster parents, as well as
overseeing the placement.

      Generally, a social worker's handling of the care of a child may be considered
inherently discretionary. This case is different. The Jackson County DFS is operating
under a consent decree that requires social workers to follow specific procedures in
placing and monitoring children in foster homes. See G.L. v. Stangler, 873 F.Supp.
252 (W.D. Mo. 1994). The stated purpose of the consent decree "is to provide all

                                         -6-
class members with the child welfare services required by the constitution and the
laws of the United States, including, but not limited to, protection from harm while
in the custody of Missouri's Division of Family Services." Id. at 254.

       Part II.E. of the consent decree, entitled "Pre-Placement Process and
Supervision of the Placement," states that the "social worker shall supervise and
monitor the child's placement" by 1) one face-to-face visit with the child and one
contact with the foster parent(s) within 24 hours of placement; 2) a minimum of one
face-to-face visit with the child and one contact with the foster parent(s) each week
during the first month (two of these visits must be with those in the foster home); 3)
in each of the next five months, a minimum of two face-to-face visits with the child
and two contacts with the foster parent(s) (one visit must be with all those in the foster
home); 4) during the remainder of a placement, a minimum of two contacts with the
child each month (one must be face-to-face with the foster parent(s) in the foster
home).1 Id. at 258. Part II.F. states:

      2. Any time a social worker becomes aware that a class member may have
      been the subject of abuse, neglect or an inappropriate method of discipline,
      the social worker shall:
      a. Notify the Child Abuse/Neglect Central Hotline immediately.
      b. Notify his/her supervisor promptly.
      c. Notify the placement unit promptly.
      d. Determine with his/her supervisor whether any child in the alternative
      care placement is in imminent danger due to abuse, neglect, inappropriate
      discipline, or dangerous environmental conditions, and should be removed
      immediately.
      e. Document the incident in writing in the child's record and the record of
      the alternative care placement in which the child resides.

Id.

      1
        On the facts of this case, the acts required in paragraphs 1) and 4) are
irrelevant, as no injuries occurred then.

                                           -7-
       Both parts II.E. and II.F. refer to what the social worker "shall" do, indicating
acts required without regard to the social worker's own judgment or opinion. Under
the consent decree, the acts a social worker shall take when a child is placed in a foster
home and may have been abused are ministerial, not discretionary. However, any
ultimate determination whether a child "may have been the subject of abuse, neglect
or an inappropriate method of discipline" or "is in imminent danger due to abuse,
neglect, inappropriate discipline, or dangerous environmental conditions, and should
be removed immediately" is discretionary.

       The purpose of the consent decree is to reduce these types of incidents. See id.
at 254. The consent decree requires regular visits to ensure that social workers gather
information about the child and the foster home. If a social worker does not conduct
these visits, she or he is less likely to determine whether a child may have been
abused, neglected, inappropriately disciplined, or subjected to dangerous
environmental conditions.

        Of course, a social worker might not need to make every visit in order to
determine the foster child's situation. However, this is a question of causation – which
was not raised by Coffman in the district court. The official immunity doctrine is
concerned only with the nature of the act. See, e.g., Kanagawa, 685 S.W.2d at
835–36. But that is not to say an official who does not make the required visits – and
thus is not protected by official immunity – is automatically liable. The next step is
to determine causation: whether the social worker's failure to follow the consent
decree resulted in the injury. Cf. Jungerman v. City of Raytown, 925 S.W.2d 202,
206–07 (Mo. banc 1996) (if police officer had not left plaintiff's watch on desk
accessible to public, it would not have been stolen); Harris v. Munoz, 43 S.W.3d 384,
389 (Mo. App. 2001) (Stith, J.) (prisoner had negligence claim when prison officials
fail to follow policy and cause loss of headphones and tape player).




                                           -8-
      In the present case, the district court notes that some visits were made to the
Claytons' home during Constance's placement, but "there is a factual dispute as to
whether the required visits were performed." This is a material fact necessary to
determine the defense of official immunity in this case. If the visits were made
according to the consent decree, then Coffman is protected by official immunity
because a social worker's determinations based on visits are discretionary acts.
However, if not all the visits were made, Coffman is not shielded by official
immunity.

                                          C.

       Augustin Torres was Coffman's supervisor at DFS. As a supervisor, parts II.E.
and II.F. of the consent decree do not directly apply to him. See G.L., 873 F.Supp. at
256 (separately defining "social worker" and "supervisor"). Torres is not under the
same mandate of legal authority. His supervision of Coffman and management of
Constance's case required the exercise of reason and professional judgment. Thus,
Torres's acts were discretionary and he is entitled to official immunity.

                                          IV.

       The judgment of the district court is reversed in part, affirmed in part, and the
case remanded.
                      ______________________________




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