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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 2, 2011

                                     No. 10-10405                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



LORENZO ALLEN THOMAS; HEATHER D. SHOUGH,

                                                   Plaintiffs–Appellants
v.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; and
Jane/John Does 1–10; THOMAS CHAPMOND; CARNESHA COLLINS;
PAULA PIETZ; JOYCE COLEMAN-ALFORD; CRYSTAL MARTIN;
TARRANT COUNTY; TARRANT COUNTY DISTRICT ATTORNEY’S
OFFICE; LISA HAINES; SAFE HAVEN MISSION; JOE SHANNON, JR.,

                                                   Defendants–Appellants




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-193


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Lorenzo Allen Thomas and Heather D. Slough, both proceeding pro se and
in forma pauperis (“IFP”), challenge the district court’s dismissal of their claims
without prejudice against the Texas Department of Family and Protective



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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Services (“TDFPS”), Tarrant County, the Tarrant County District Attorney’s
Office, Safe Haven Mission, and several employees of these entities in their
individual and official capacities.   On appeal, Appellants contend that the
district court improperly dismissed their Fourth and Fourteenth Amendment
unreasonable search-and-seizure claim that Defendants entered their home
without consent and removed their child without a warrant, court order, or
exigent circumstances. While the district court correctly dismissed the claims
as to all defendants other than Carnesha Collins, we find that the district court
erred in dismissing Appellants’ unreasonable search-and-seizure claim against
Collins. Therefore, we affirm in part, and reverse and remand in part.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On or about June 15, 2009, Plaintiffs Lorenzo Allen Thomas and Heather
D. Shough got into an argument. The two lived together at the time with their
young daughter. As a result of the argument, Shough left the home late one
night and relocated to a shelter, where she informed the counselors that Thomas
had choked her and that she was a victim of domestic violence. Both Shough
and Thomas now claim that Thomas did not abuse Shough, but that Shough
manufactured the allegations because she was angry at Thomas for continuing
to smoke marijuana. Regardless, Appellants’ complaint alleges that a call was
placed to TDFPS, and that Defendant Carnesha Collins, an employee of TDFPS,
told Shough that if she left the shelter she would not be allowed to take her
daughter with her. Collins also allegedly informed Shough that if TDFPS found
out that she had contact with Thomas, TDFPS would remove their child from the
home. Shough then called Thomas, who agreed to leave the house so that
Shough and their child could return home.
      After Shough returned home with the child, on or about June 23, 2009,
Collins paid a visit to Shough’s residence. It is unclear from the complaint
whether or not this visit was scheduled. The complaint alleges that Collins

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knocked on Shough’s door, which Shough opened, and that Collins then walked
into the house uninvited and began questioning Shough about why she left the
shelter, whether she had been using drugs, and whether she had been seeing
Thomas. Shough admitted to smoking marijuana on June 19, and denied having
contact with Thomas except once when she turned him away when he tried to
collect personal items from the house. Collins then allegedly drafted a “safety
plan,” whereby TDFPS would remove the child if Shough used drugs or had
contact with Thomas in the future. The complaint states that later the same
day, Shough took her daughter to the doctor for a physical and her daughter was
given a “healthy report.”
      On June 25, 2009, Collins and three unidentified women allegedly
awakened Shough by knocking at her door. The complaint states that Collins
and the women told Shough that she must move back to Ohio to live with her
parents if she wanted to retain custody of the child. After initially refusing,
Shough called her parents on the phone to discuss arrangements. After hanging
up, Collins claimed that Shough had told Shough’s mother on the phone that she
had been in contact with Thomas, which Shough denied. Collins then convinced
Shough to take a drug test, and while taking the test, one of the women allegedly
grabbed Shough’s daughter and ran out the door. The complaint alleges that
Collins then gave Shough a “notice of removal of child” and told Shough: “Now
you can be with [Thomas] all you want.”
      Because Appellants only contest the district court’s dismissal of their
illegal search-and-seizure claim on appeal, the rest of the allegations in the
complaint are not relevant to this appeal.       In summary, after numerous
proceedings concerning custody of the child and parental rights, on February 10,
2010, Shough received a letter from TDFPS stating that it had ruled out
allegations of abuse and neglect for lack of evidence and had closed the case.
Although the complaint states that Shough and Thomas’s daughter was in

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TDFPS custody for approximately nine months, it is unclear whether she was
ultimately returned to Shough’s care.
      On March 23, 2010, Appellants filed suit pro se in the U.S. District Court
for the Northern District of Texas, asserting nine claims against Defendants
under 42 U.S.C. §§ 1983 and 1988.             Appellants also filed motions for
appointment of counsel and to proceed IFP, the latter of which the district court
granted on April 12, 2010. On April 15, 2010, the district court sua sponte
reviewed whether it should dismiss Appellants’ complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Section 1915(e)(2)(B) allows the district court to sua sponte
dismiss any IFP complaint that it finds “frivolous or malicious,” that “fails to
state a claim on which relief may be granted,” or that “seeks monetary relief
against a defendant who is immune from such relief.”             The district court
dismissed Appellants’ complaint without prejudice on two grounds. First, it held
that TDFPS and its officials sued in their official capacities are immune from
liability under the Eleventh Amendment, and that neither the agency nor
officials have waived that immunity. Second, the district court held that it
lacked subject-matter jurisdiction over all of the claims, because “[t]his is strictly
a suit affecting the parent-child relationship that is currently being litigated in
the Texas family courts, and Plaintiffs’ attempts to cast it as a civil rights
complaint are unavailing.” Based upon the dismissals, the district court denied
Appellants’ motion for appointment of counsel. Appellants timely appealed.
                          II. STANDARD OF REVIEW
      Because the district court’s dismissed Appellants’s claim on immunity
grounds and impliedly because Appellants failed to state a claim on which relief
can be granted, we review the dismissal de novo. See, e.g., Black v. Warren, 134
F.3d 732, 734 (5th Cir. 1998) (“We . . . employ the same de novo standard to
review the § 1915(e)(B)(ii) dismissal as we use to review dismissal pursuant to



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12(b)(6).”). We review the district court’s denial of Appellants’ motion to appoint
counsel for abuse of discretion. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
                               III. DISCUSSION
      On appeal, Appellants’ brief challenges only the district court’s dismissal
of its Fourth and Fourteenth Amendment unreasonable search-and-seizure
claim and the denial of appointment of counsel. Additionally, the arguments in
Appellants’ brief address only why dismissal was improper as to Defendant
Collins, Safe Haven Mission, and perhaps TDFPS as an entity. The brief makes
no mention of the roles of the other Defendants relevant to the unreasonable
search-and-seizure claim. Therefore, arguments as to the dismissal of all other
Defendants are waived. Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922,
926 (5th Cir. 2008) (“A party waives an issue if he fails to adequately brief it on
appeal.”). Further, Appellants failed to make any allegation in their complaint
regarding the role of Safe Haven or its employees in the illegal search-and-
seizure. While Appellants’ brief implies that Safe Haven employees entered
Shough’s residence without consent along with TDFPS employees, they fail to
make any such claim in their complaint. Therefore, we affirm the dismissal of
the claims against Safe Haven for failure to state a claim upon which relief can
be granted.
A.    Eleventh Amendment Immunity
      To the extent that Appellants preserved any arguments against TDFPS
as an entity, the district court correctly dismissed claims against TDFPS
pursuant to the Eleventh Amendment. As this Court and the Supreme Court
have held, “The eleventh amendment generally divests federal courts of
jurisdiction to entertain citizen suits directed against states.” Stem v. Ahearn,
908 F.2d 1, 3 (5th Cir. 1990) (citing Port Auth. Trans–Hudson Corp. v. Feeney,
495 U.S. 299 (1990); Edelman v. Jordan, 415 U.S. 651, 662–63 (1974)).
Similarly, suits against employees of state entities in their official capacity run

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afoul of the Eleventh Amendment. Id. (citing Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 101–02 (1984); Ford Motor Co. v. Dep’t of Treasury, 323
U.S. 459, 464 (1945)).      Although the Ex Parte Young doctrine creates an
exception to this rule concerning suits for prospective relief against individual
state actors, Ex Parte Young “has no application in suits against . . . States and
their agencies.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 146 (1993). TDFPS is undisputedly a state entity that has not waived its
immunity. See Stem, 908 F.2d at 4 (“Texas has not consented to be sued in
federal court by resident or nonresident citizens regarding its activities to
protect the welfare of children.”).       Therefore, the district court properly
dismissed all claims against TDFPS and all official capacity claims against
TDFPS employees.
B.     Qualified Immunity
      The only remaining issue, therefore, is whether the district court properly
dismissed Appellants’ individual capacity unreasonable search-and-seizure claim
against Defendant Collins. As a first matter, we cannot accept the district
court’s justification for dismissal of all the claims: that Appellants’ suit is merely
an attempt to shoehorn a parent–child relations dispute that is pending in state
court into a civil rights complaint. The district court’s citation in support of its
dismissal on these grounds refers to a case where the district court remanded a
complaint to state court in part because the complaint “consisted of purely state
law claims concerning the State's protection of children.” Tex. Dep’t of Protective
& Regulatory Servs. v. Mitchell-Davis, No. 3:07-CV-1726-D, 2007 WL 4334016,
at *4 (N.D. Tex. Dec. 11, 2007). Here, Appellants have made claims asserting
federal constitutional violations, and seek monetary relief and injunctive relief
to prevent further allegedly unconstitutional searches and seizures. The mere
fact that the underlying dispute arose from an issue concerning a parent–child
relationship does not destroy a federal court’s jurisdiction over a properly

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pleaded constitutional claim. Therefore, we must proceed to consider whether
the district court erred in dismissing Appellants’ individual capacity claim
against Collins.
      We have previously held that social workers employed by state agencies
may assert a qualified immunity defense when sued under 42 U.S.C. § 1983. See
Roe v. Texas Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 400 (5th Cir.
2002). The district court had not yet requested that Defendants respond to the
complaint in this suit, and therefore Collins has not had an opportunity to assert
a qualified immunity       defense.     Nonetheless, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(iii), we may affirm the district court’s dismissal of the claim
against Collins if we find that she is entitled to qualified immunity. We find
that based on the complaint alone, Collins is not entitled to qualified immunity
at this time, and therefore the district court erred in dismissing Appellants’
individual capacity unreasonable search-and-seizure claim against her. We
emphasize that this does not preclude the district court from finding that Collins
is entitled to qualified immunity at any time upon remand, including after the
filing of responsive pleadings or at the summary judgment stage.
      Qualified immunity protects state officials from civil damages liability
“insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson
v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). As the Supreme Court established in
Saucier v. Katz, 533 U.S. 194 (2001), we must undertake a two-step inquiry to
determine whether the official is entitled to immunity, asking: (1) whether the
plaintiffs have alleged facts sufficient to establish a violation of a constitutional
right; and (2) whether that right was “clearly established” at the time of the
defendant’s alleged misconduct. Pearson, 129 S. Ct. at 815–16 (citing Saucier,
533 U.S. at 201). As the Pearson Court established, we may address these two

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prongs in either order. Id. at 818. In determining whether Collins violated a
constitutional right, “we employ currently applicable constitutional standards.”
Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009) (quoting Kinney v. Weaver,
367 F.3d 337, 350 (5th Cir.2004) (en banc)) (internal quotation marks omitted).
On the “clearly established” inquiry, we have noted that “[o]fficials should
receive the protection of qualified immunity ‘unless the law is clear in the more
particularized sense that reasonable officials should be “on notice that their
conduct is unlawful.”’” Wernecke, 591 F.3d at 393 (quoting Kinney, 367 F.3d at
350 (quoting Saucier, 533 U.S. at 206)).
      Appellants allege that Collins violated their constitutional right to be free
from unreasonable search-and-seizure in several respects. First, they maintain
that Collins entered Shough’s home without a warrant or court order and
without Shough’s consent, any exigent circumstances, or justification under the
special needs doctrine. Second, they contend that Collins remained in the house
after Shough asked her to leave. Third, they allege that by seizing the child
without a court order and absent exigent circumstances or special needs, Collins
also violated their Fourth and Fourteenth Amendment rights.
      We first inquire whether any of the alleged violations, as stated, would
represent a violation of Appellants’ Fourth and Fourteenth Amendment rights.
In this Circuit, it is “well established . . . that the Fourth Amendment regulates
social workers’ civil investigations.”       Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 420 (5th Cir. 2008) (citing Roe, 299 F.3d at 401).
We have further noted that “[w]arrantless searches of a person’s home are
presumptively unreasonable unless the person consents, or unless probable
cause and exigent circumstances justify the search.” Id. (quoting United States
v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007)) (alteration in Gates).
Therefore, based on the allegations in the complaint, Collins violated



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Appellants’s constitutional rights unless we find that consent, exigent
circumstances, or special needs existed.
      We can quickly dispose with the issue of consent. On this basis of the
complaint, Shough did not consent to Collins’s entry into the home, although she
did not verbally object. We have previously held that “[s]ilence or passivity
cannot form the basis for consent to enter,” Roe, 299 F.3d at 402, and that “a
defendant’s mere acquiescence to a show of lawful authority is insufficient to
establish voluntary consent.” Gates, 537 F.3d at 420–21 (quoting United States
v. Jaras, 86 F.3d 383, 390 (5th Cir. 1996)). Therefore, on the basis of the
complaint alone, Shough did not consent to Collins’s entry into the home.
      We can similarly dispose of the possibility of a special needs exception
based on the facts alleged. Under similar circumstances, we recently concluded
that a home visit to investigate possible child abuse “was not separate from
general law enforcement,” and therefore “the special needs doctrine cannot be
used to justify the warrantless entry.” Id. at 424. Because Collins’s visit to
Shough’s home was also to investigate the possibility of child abuse and the
safety of Shough and Thomas’s daughter, we conclude that the special needs
exception does not apply on the basis of the facts alleged in the complaint.
      Concerning exigent circumstances, the Supreme Court has held that “law
enforcement officers may enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant from imminent
injury.”   Brigham City v. Stuart, 547 U.S. 398, 403 (2006).      In Gates, we
addressed whether exigent circumstances existed for TDFPS officials to enter a
home without a warrant or court order when the father had “pushed and kicked
[his son] that morning, had handcuffed [his son] to his bed at some point, and
used unusual discipline methods.” 537 F.3d at 422. We held that exigent
circumstances were not present, because (1) at the time of entry, the allegedly
abusive father was not at home; (2) there were no allegations he had abused his

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other children, his “unusual discipline methods” aside; and (3) the interviews
conducted at the home were “routine, non-emergency interviews.” Id. at 422–23.
      Because the district court has not yet ordered Defendants to respond in
this case, it is unclear what information Collins may have had at the time of the
allegedly unlawful entry. The complaint alleges that Thomas was not at home
or even living at the house at the time. While the complaint notes that Collins
presented an affidavit at a later removal hearing averring that Shough told her
that (1) Thomas had picked up their daughter by the limbs and thrown her into
a playpen; (2) Thomas had grabbed their daughter by the neck; and (3) the child
had been sexually assaulted, the complaint contends that these allegations were
all fabricated. Although Collins’s belief that these allegations were true at the
time of the unlawful entry may have sufficed to create exigent circumstances,
the complaint does not establish whether or not this information was known to
Collins at the time of the entry. Therefore, the complaint alone does not support
the application of the exigent circumstances exception.
      Having found that the complaint alleges a constitutional violation, we
must decide whether the law supporting such a finding was clearly established
at the time of the allegedly unconstitutional conduct. In Gates, we held under
similar factual circumstances that the law of consent and exigent circumstances
in this area “has been clearly established for some time.” Id. at 424. While in
Gates we held that the law regarding special needs was not clearly established
at that time, we find that Gates sufficiently established the law for purposes of
this case. As we noted above, we held in Gates that the “purpose of TDPRS’s
entry into the Gateses’ home—the investigation of possible child abuse—was
closely tied with law enforcement,” and that “because the need to enter the
Gateses’ home was not divorced from the state’s general interest in law
enforcement, there was no special need that justified the entry.” Id. Because



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the rationale behind the entry here was likely the same, we hold that the law
was clearly established at the time of the conduct at issue.
C.    Denial of Motion to Appoint Counsel
      The district court denied Appellants’ motion for appointment of counsel
because it had already dismissed all of their claims. We have held that “[t]here
is no automatic right to the appointment of counsel in a section 1983 case,” and
that “a district court is not required to appoint counsel in the absence of
‘exceptional circumstances.’” Cupit, 835 F.2d at 86. “In evaluating whether the
appointment of counsel is proper, the district court considers the type and
complexity of the case, the litigant’s ability to investigate and present the case,
and the level of skill required to present the evidence.” Baranowski v. Hart, 486
F.3d 112, 126 (5th Cir. 2007) (quoting Castro Romero v. Becken, 256 F.3d 349,
354 (5th Cir.2001)).
      Appellants allege that the district court abused its discretion in failing to
appoint counsel because “the issues in the complaint are factually and legally
complex,” and because they generally lack resources to expend on the case. At
this juncture of the case, Appellants have failed to show the presence of
exceptional circumstances. Only one party remains in Appellants’ suit, and
responsive pleadings have not yet been filed. While Appellants may have limited
resources at their disposal, this constraint applies to all litigants proceeding IFP
and thus is not one of the above factors evaluated under the “exceptional
circumstances” inquiry. Therefore, Appellants have failed to show that the
district court abused its discretion in denying their motion for counsel.
                               IV. CONCLUSION
      Because we are unable to grant qualified immunity to Collins on the basis
of the complaint alone, we REVERSE AND REMAND the district court’s
dismissal of Thomas and Shough’s Fourth and Fourteenth Amendment
individual capacity claim against Collins. We emphasize, again, that the district

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court may find that Collins is entitled to qualified immunity at another stage in
this case, and that this decision rests solely on the basis of the complaint, as
Defendants have not yet been ordered to respond. We AFFIRM on all other
grounds.
      AFFIRMED in part, REVERSED AND REMANDED in part.




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