                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            DEC 5 2003
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

 JANET DOUGLAS and JANET
 DOUGLAS as guardian ad litem for
 JESSICA DOUGLAS,

           Petitioners - Appellants,

 v.                                                       No. 03-4004
                                                  (D.C. No. 2:01-CV-816-DAK)
 BEAVER COUNTY SCHOOL                                       (D. Utah)
 DISTRICT BOARD; RICHARD
 DEARMITT, official capacity;
 SHANE ERICKSON, official and
 individual capacity,

           Respondents - Appellees.


                              ORDER AND JUDGMENT           *




Before KELLY, BRISCOE, LUCERO,               Circuit Judges.



          Janet Douglas, individually and as guardian ad litem for her daughter

Jessica, brings claims against Shane Erickson, the principal of Jessica Douglas’




      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
school, Richard DeArmitt, the president of the Beaver County School Board, and

the Beaver County School District Board under 42 U.S.C. § 1983 for violations of

her daughter’s constitutional rights under the Fourth and Fourteenth Amendments.

Denying the plaintiffs’ motion to amend their complaint for a third time, the

district court granted the defendants’ motion to dismiss the suit; Douglas now

appeals. We review the district court’s order dismissing the case de novo, and we

note that “dismissal is inappropriate unless plaintiff can prove no set of facts in

support of his claim to entitle him to relief.”      Thatcher Enters. v. Cache County

Corp. , 902 F.2d 1472, 1473 (10th Cir. 1990) (citation omitted). We review the

district court’s denial of Douglas’ motion to amend for abuse of discretion.

Castleglen, Inc. v. Resolution Trust Corp.        , 984 F.2d 1571, 1585 (10th Cir. 1993).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

       On March 5, 2001, Beaver County police went to Douglas’ home and

arrested Mark Russell, who was living there at the time. Pursuant to the police

investigation, the officers went to Jessica’s school, took Jessica to a private room,

and questioned her in Erickson’s presence for a short time. Asking a total of

eight questions, the officers sought to determine: (1) whether Jessica was aware

of any of her family members or Russell using drugs at her house; and (2) whether

Russell or her family members had ever abused Jessica.




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       In an action under 42 U.S.C. § 1983 against Erickson, DeArmitt, and the

Beaver County School District Board, Douglas made three distinct claims: First,

that the Beaver County School District Board is liable for Erickson’s allowance of

the allegedly illegal police detention of Jessica; second, that Erickson’s

acquiescence renders him and DeArmitt liable in their official capacities; and

third, that Erickson is liable in his individual capacity for his role in the police

interview of Jessica. We address each claim.

       Although Utah school districts are not immune from § 1983 suits in federal

court, Ambus v. Granite Bd. of Educ. , 995 F.2d 992, 997 (10th Cir. 1993), they

are liable only if the violation of a plaintiff’s federal rights results from an action

taken under an official custom or policy.    See Monell v. Dep’t of Soc. Servs. , 436

U.S. 658, 690–91 (1978);    D.T. v. Indep. Sch. Dist. No. 16   , 894 F.2d 1176, 1187

(10th Cir. 1990). Neither Douglas’ Complaint, the Amended Complaint, nor the

Second Amended Complaint alleged that a custom or policy of the Beaver County

School District caused the alleged constitutional deprivation. Absent such

allegations, no cognizable claim against the school district exists. We therefore

affirm the dismissal of Douglas’ claims against the Beaver County School

District.

       Dismissing the claims against Erickson and DeArmitt in their official

capacities, the district court concluded that the official-capacity claims were


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identical to the claims against the school district and thus superfluous. On

appeal, Douglas argues that unlike the suit against the school district, the suit

against Erickson and DeArmitt in their official capacities does not require proof

of an official custom or policy. The Supreme Court has explained that in an

official-capacity suit, however, the real party in interest is not the named official

but rather the governmental entity itself.      Monell , 436 U.S. at 691. As such, in an

official-capacity suit we require “the entity’s ‘policy or custom’ [to have] played

a part in the violation of federal law.”     Kentucky v. Graham , 473 U.S. 159, 166

(quoting Monell , 436 U.S. at 694). Thus, Douglas’ failure to allege an official

custom or policy of the Beaver County School District Board is equally fatal to

her claims against Erickson and DeArmitt in their official capacities.

       As to the claims against Erickson in his individual capacity, the doctrine of

qualified immunity shields government officials from individual liability for civil

damages “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”         Harlow v.

Fitzgerald , 457 U.S. 800, 818 (1982);       Ramirez v. Oklahoma Dep't of Mental

Health , 41 F.3d 584, 592 (10th Cir. 1994). Thus, the touchstone of the inquiry is

the “‘objective reasonableness’ of the official’s conduct in light of the legal rules

that were ‘clearly established’ at the time the action was taken.”     Melton v. City




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of Okla. City , 879 F.2d 706, 727 (10th Cir. 1989) (quoting   Harlow , 457 U.S. at

818).

        Douglas alleges that Erickson’s acquiescence in the police interview

violated Jessica’s clearly established rights under the Fourth and Fourteenth

Amendments. With respect to the Fourth Amendment claim, to overcome

qualified immunity and prevail under 42 U.S.C. § 1983, Douglas must

demonstrate that Erickson’s conduct in acquiescing to the police’s brief interview

of one of his students violated Jessica’s clearly established statutory or

constitutional rights, and that a reasonable person would have known of those

rights. Melton , 879 F.2d at 727. Because we conclude that Erickson’s role in the

brief police interview of Jessica did not violate clearly established rights of which

a reasonable person would have known, we affirm the district court’s dismissal of

Douglas’ Fourth Amendment claim.

        Douglas also contends that Erickson violated Jessica’s clearly established

privacy rights under the Fourteenth Amendment. Two separate privacy claims are

at issue: (1) privacy claims based on the disclosure of personal matters, and (2)

claims based on violations of the right to familial association. To plead a

cognizable privacy claim based on the disclosure of personal matters, a plaintiff

must demonstrate: (1) the disclosure of personal information in which he or she

had a legitimate expectation of privacy, (2) that the disclosure serves no


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compelling state interest, and (3) that it was not made in the least intrusive

manner. See Stidham v. Peace Officer Standards and Training         , 265 F.3d 1144,

1155 (10th Cir. 2001). Because Douglas has not alleged        disclosure of personal

matters, we turn to the privacy claims based on violations of the right to familial

association.

       With respect to such claims, we balance the state’s interest in investigation

with the plaintiff’s interest in the familial right of association to determine

whether the state’s conduct constitutes an undue burden.       Griffin v. Strong , 983

F.2d 1544, 1547 (10th Cir. 1993). Moreover, plaintiff must demonstrate that the

state “direct[ed] [its] statements or conduct at the intimate relationship with

knowledge that the statement or conduct will adversely affect that relationship     .”

Id. , 983 F.2d at 1548. Our balancing of the interests in the instant case leads us

to conclude that Erickson’s conduct did not result in an undue burden on Douglas’

familial association. Moreover, Douglas fails to allege that Erickson directed his

conduct at her familial relationship. Therefore, we affirm the district court’s

dismissal of the privacy claims.

       Finally, Douglas contests the district court’s denial of her Motion for Leave

of Court to File an Amended Complaint; we review the denial for abuse of

discretion. Castleglen, Inc. , 984 F.2d at 1585. Although leave to amend “shall be

freely given when justice so requires,” Fed. R. Civ. P. 15(a), district courts may


                                            -6-
refuse it “upon a showing of undue delay, undue prejudice to the opposing party,

bad faith or dilatory motive, failure to cure deficiencies by amendments

previously allowed, or futility of amendment.”   Frank v. U.S. West, Inc. , 3 F.3d

1357, 1365 (10th Cir. 1993).

      Prior to the instant motion, Douglas had already amended the complaint

twice; moreover, she brought this motion more than a month after the district

court dismissed the case. Finally, the district court noted that even with an

amendment, Douglas’ underlying constitutional claims were futile. In light of

these circumstances, we cannot conclude that the district court’s denial of the

motion to amend represents an abuse of discretion. Accordingly, we     AFFIRM .

      The mandate shall issue forthwith.

                                         ENTERED FOR THE COURT


                                         Carlos F. Lucero
                                         Circuit Judge




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