
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1954                                   WARREN L. BROWN,                                Plaintiff, Appellant,                                          v.                                 ROLAND IVES, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Gibson,* Senior Circuit Judge,                                     ____________________                         and Pollak,** Senior District Judge.                                       _____________________                                 ____________________            Paula  House McFaul  with  whom John  J.  Eisenhart and  McFaul  &            ___________________             ___________________      _________        Eisenhart were on brief for appellant.        _________            James D.  Williams, III,  Assistant  Attorney  General, with  whom            _______________________        Andrew  Ketterer,  Attorney  General, and  Peter  J.  Brann, Assistant        ________________                           ________________        Attorney General, were on brief for appellees.                                 ____________________                                   November 7, 1997                                 ____________________        ___________________        *Hon. John R. Gibson, of the Eighth Circuit, sitting by designation.        **Of the Eastern District of Pennsylvania, sitting by designation.                 BOUDIN,  Circuit Judge.   Warren Brown appeals  from the                          _____________            dismissal of  his civil  rights claims  for damages  under 42            U.S.C.   1983.  The claims trace back  to an affidavit, filed            by  a  caseworker  in  connection  with  a  child  protection            proceeding, that labeled  Brown an "untreated  sex offender."            As  usual, where  a motion  to dismiss  has been  granted, we            assume the  truth  of the  allegations in  the complaint  and            construe it  in the light  most favorable to the  opponent of            the motion, here Warren Brown.  See Harper v. Cserr, 544 F.2d                                            ___ ______    _____            1121, 1122 (1st Cir. 1976).                 Warren  Brown is the  paternal grandfather of  two minor            children, Thomas and Me'chelle Brown, born in 1986 and  1988,            respectively.   From 1989 to  1993, Brown often  looked after            the  children, sometimes  overnight, at  the  request of  the            children's  mother, Kathi Duncan.   In November  1989, Thomas            Brown  allegedly  told  his  mother  that  Warren  Brown  had            sexually abused him.                 Kathi Duncan reported the charge to the Maine Department            of   Human  Services  ("the  Department").    Apparently  the            Department investigated  the charge,  but no official  action            was  taken, and  Warren Brown continued  to baby-sit  for the            children regularly  at Kathi  Duncan's request.   But  in May            1993, Duncan reported to the Department that Warren Brown had            endangered  Me'chelle  Brown,   through  faulty  supervision,            allegedly because  he was  drunk.   A Department  caseworker,                                         -2-                                         -2-            Donna  Niemi, later  interviewed  Thomas  Brown who  referred            again to the alleged 1989 sexual abuse.                 At  a hearing  on June  10,  1993, in  the state  court,            Duncan consented to a child protection order requiring her to            keep the  children away from  Warren Brown  and granting  the            Department access to the children.   See 22 M.R.S.A.    4031,                                                 ___            4036.  In support of  the order Niemi filed an  affidavit, in            which  she   described  Warren   Brown's  alleged   negligent            supervision  of  Me'chelle  Brown.   Niemi's  affidavit  also            described briefly Thomas Brown's November 1989  allegation of            sexual abuse and  said that the child had  confirmed to Niemi            that  the incident  had occurred.    The affidavit  described            Warren Brown as "an untreated sex offender."                   Niemi, and  perhaps  other  Department  officials,  then            arranged  for Warren Brown to be professionally evaluated for            his alleged  behavior  and also  for alcohol  abuse.   Warren            Brown cooperated  in the hope  of regaining contact  with his            grandchildren.  Thereafter, according to Warren Brown, he was            told  by Department officials that he had missed appointments            and  no further  treatment or  evaluation  would be  offered.            Warren Brown claims that he did not miss any appointments.                   In  July 1993,  the Department  obtained  a court  order            under  the  same  child  protection  provisions  granting  it            temporary custody of the children based on charges that Kathi            Duncan had  abused  them.   The Department  then sought  full                                         -3-                                         -3-            custody of the  children.  Warren Brown sought  to intervene,            was  rejected and  then renewed  his motion,  invoking a  new            state  statute  that  allowed  judges  to grant  grandparents            intervenor status in child protection proceedings where  this            would serve  the interests of  the child and the  purposes of            the  statute.  22 M.R.S.A.    4005-B.  The renewed motion was            denied after a  hearing, and a later appeal  by Brown through            the state appellate courts was fruitless.                 In February 1995,  the state court granted  full custody            of the children to the Department, with visitation rights for            the  parents.  The  order provided that  family reunification            efforts would continue.   But in  October 1995, Kathi  Duncan            consented to an order terminating her parental rights under a            separate  subchapter of  the Maine  statute,  and in  January            1996,  the state court terminated  the parental rights of the            child's  father--Warren Brown's son--who did not appeal.  See                                                                      ___            22 M.R.S.A.    4050-4058.                 In  the meantime, in November 1995, Warren Brown brought            the present section 1983 action in the federal district court            in Maine.   The  now pertinent  portion of  Brown's complaint            charged that  Niemi, and  several other  Department employees            connected  to the  case,  had  violated  Warren  Brown's  due            process rights  under the 14th  Amendment by libeling  him in            the Niemi affidavit, interfering with his access to the child            protection  proceedings,  and  ultimately  depriving  him  of                                         -4-                                         -4-            contact with his grandchildren.  Brown sought damages of $1.2            million  and asked  the court  to enjoin  the proceedings  to            terminate his son's parental rights.                 In July 1996, the district court granted the defendants'            motion to dismiss.   On the claim for  injunctive relief, the            district  court held that the  state proceedings sought to be            enjoined  had concluded and  that the request  for relief was            now  moot.     The  court  also  eliminated  certain  of  the            defendants--primarily higher-level  officials--on the  ground            that  no sufficient connection between them and the events in            dispute was adequately alleged.                 As for the  claims against Niemi and  other Departmental            employees associated with the case, the dismissals were based            on qualified immunity.  The district court held  that neither            the reputational nor associational  rights asserted by Warren            Brown  were "clearly  established" to  the  extent needed  to            overcome qualified  immunity, and  the court  also held  that            there  was  no  clearly  established  law to  show  that  the            Department's  actions violated  his  substantive due  process            rights under a "shock the conscience" test.                 Brown  now  appeals  from the  dismissal  of  his damage            claims.  Our review is plenary.  Providence School Department                                             ____________________________            v. Ana  C., 108 F.3d  1, 2 (1st  Cir. 1997). Because  we find               _______            that Niemi was herself protected by qualified immunity, there            is no reason to discussthose who were less directly involved.                                         -5-                                         -5-                 1.   "[G]overnment  officials  performing  discretionary            functions,  generally are  shielded  [by qualified  immunity]            from 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)                       ______     __________            (emphasis added).  The test is objective; claims of malice do            not overcome  qualified immunity. See Anderson  v. Creighton,                                              ___ ________     _________            483 U.S. 635,  641 (1987).  Nor  is it enough that  the right            claimed to  have  been violated  has  been recognized  at  an            abstract level:   existing case law has to  give the official            reason to know that the specific conduct was prohibited.  See                                                                      ___            id. at 640.            ___                 A thumbnail  version of Brown's constitutional  claim is            as  follows.    Niemi's  charge  that  Warren  Brown  was  an            untreated   sex   offender  was   made  without   a  thorough            investigation; it  foreseeably    frustrated  Warren  Brown's            efforts  to  maintain  contact  with  his  grandchildren; and            because  the charge somehow  became public it  injured Warren            Brown's public reputation.  Thus, Brown says, Niemi's actions            violated  his  due  process rights  of  family  integrity and            freedom from  governmental falsehood,  and her  conduct as  a                                         -6-                                         -6-            whole  "shocks the conscience"   under Rochin  v. California,                                                   ______     __________            342 U.S. 165, 172 (1952).1                 Starting with family integrity, a few cases suggest that            grandparents   may,   in   some  circumstances,   have   some            constitutionally  protected  rights  in  relation  to   their            association  with  their  grandchildren.   We  spoke  of this            possibility in Watterson v. Page, 987 F.2d 1, 8 n.6 (1st Cir.                           _________    ____            1993), limiting our remarks to grandparents who were residing            with  the grandchildren.   See  also  Moore v.  City of  East                                       _________  _____     _____________            Cleveland,  431 U.S. 494  (1977).  Protection  of nonresident            _________            grandparents--like Warren Brown--has an even slimmer pedigree            in the  case law.   Compare Drollinger v. Milligan,  552 F.2d                                _______ __________    ________            1220, 1227 n.6  (7th Cir. 1977), with Ellis  v. Hamilton, 669                                             ____ _____     ________            F.2d 510, 513 (7th Cir.), cert. denied, 459 U.S. 1069 (1982).                                      ____________                 Similarly,  in one case  the Supreme Court  recognized a            protected  due  process  right  against  a  false  government            designation  made with  no opportunity  for  challenge.   See                                                                      ___            Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).  But in            _________    _____________            Paul v. Davis, 424 U.S. 693, 711-12 (1976), the Supreme Court            ____    _____            ruled that the designation itself  had to change the victim's            legal status and  that mere damage to  reputational interests            did not rise to a constitutional violation.  See also Siegert                                                         ________ _______                                            ____________________                 1The  complaint also alleged in general terms that Niemi            or others barred Warren Brown from the courtroom; but custody            proceedings are often  closed to the public, and Warren Brown            was in fact  able to file and pursue his motion to intervene,            albeit without success.                                         -7-                                         -7-            v. Gilley, 500 U.S. 226,  233-34 (1991).  Here Warren Brown's               ______            legal status was not changed  by Niemi's charge:  he remained            a grandparent entitled to whatever rights a grandparent might            have under Maine law.                 But  even if Warren Brown had constitutionally protected            interests in  visitation with  non-resident grandchildren  or            against reputational harm, he has  no precedent to show  that            the  circumstances of  his  case  come even  close  to a  due            process violation.   The state  has a  very strong  interest,            repeatedly recognized,  in  the protection  of children  from            abuse, whether by  their parents or anyone else.   See, e.g.,                                                               ___  ____            Ginsberg v. New York,  390 U.S. 629,  640 (1968).  A  special            ________    ________            responsibility  rests on agencies like the Department, and on            caseworkers like Niemi, to investigate colorable charges that            come to their attention and institute appropriate proceedings            where  warranted.  Often,  the only  witness, other  than the            charged offender, is the child itself.                 Here,  Thomas Brown  had  apparently twice  repeated the            charge that  his grandfather  had engaged  in abusive  sexual            conduct; Warren  Brown does not  dispute that the  charge was            made by his grandson.  The child's mother also reported that,            due to  drunkenness, Warren  Brown had  endangered Me'chelle.            Because  the children's mother  had continued to  entrust the            children  to Warren Brown, Niemi could certainly have thought                                         -8-                                         -8-            that an initial  protection order was important and  ought to            be sought immediately.                 Niemi herself had no authority to bar Warren Brown  from            contact with his grandchildren while they were still in their            mother's  care.    Niemi's  remedy  was  to  begin   a  court            proceeding and to tell the court what she had  learned.  Then            it  became the court's  responsibility to  decide what  to do            next.  Of course, Niemi  might first have conducted a further            investigation  into  the  alleged  sexual  abuse  claim,  now            several years in the past,  but the precedents impose no such            constitutional obligation.   On the  contrary, agencies  like            the Department have  wide latitude to  pursue investigations,            and begin  proceedings based  on colorable  charges of  child            abuse.   See Frazier  v. Bailey, 957 F.2d  920, 931 n.12 (1st                     ___ _______     ______            Cir. 1992).                 For the same reasons, there is no  prospect that Niemi's            conduct can be described as  so outrageous as to constitute a            due process  violation under Rochin's  "shock the conscience"                                         ______            test.  That standard does  have vitality in this circuit, but            it  is  confined   to  situations  of  brutal   or  otherwise            outrageous behavior.  See Souza  v. Pina, 53 F.3d 423, 424-27                                  ___ _____     ____            (1st  Cir.  1995).    In the  present  case,  a  caseworker's            accusation  incident   to  a   judicial  proceeding--possibly            mistaken  but made with colorable basis--is not even wrongful            conduct, let alone outrageously so.                                         -9-                                         -9-                 2.  There is lurking in this case a due process claim of            a somewhat  different character.   What  is mainly  troubling            here is not  the caseworker's charge or the  supposed lack of            adequate prior investigation,  but something quite different:            it  is Warren Brown's apparent inability  thus far to contest            in court the allegations that (quite apart from any damage to            his public reputation)  may effectively have led  to judicial            relief that cut him off from contact with his grandchildren.                 This outcome cannot be attributed to  Niemi or any other            of  the named Departmental defendants.  They were entitled to            begin the proceedings, and they did not issue the orders that            denied  Warren Brown's  intervention requests or  limited his            access  to his  grandchildren.   Rather,  the outcome  raises            questions about  the procedural fairness of  judicial actions            denying  intervention and--to the  extent that they  did so--            cutting off Warren Brown's access to his grandchildren.                 Maine's judges are absolutely immune from  damage claims            based on their  judicial decisions.  See Pierson  v. Ray, 386                                                 ___ _______     ___            U.S. 547, 553-54 (1967).  Nor  can we review decisions of the            Maine  courts even for constitutional error; only the Supreme            Court can  do that.   See Rooker  v. Fidelity Trust  Co., 263                                  ___ ______     ___________________            U.S. 413,  416 (1923).   This leaves open the  possibility of            injunctive relief against ongoing state proceedings, although            it too might face  obstacles short of the merits.  See, e.g.,                                                               _________                                         -10-                                         -10-            Trainor  v. Hernandez, 431  U.S. 434, 444  (1977) (abstention            _______     _________            doctrine).                 Warren Brown did seek such an injunction in the district            court  but has  not appealed  that court's  dismissal of  the            claim as moot.  And the merits are far from clear:  the state            obviously has an  interest in the conduct of child protection            proceedings and in narrowing the issues to the welfare of the            children  and   the  interests  of  those   most  immediately            concerned with their welfare, usually the parents.  The Maine            statute  has struck a  compromise, permitting the grandfather            to seek  intervention but  only with  the court's  permission            based on the best interests of the child.                 The  possibility remains  of unfair  application  of the            statute  in an  individual case,  but  whether an  individual            error would give rise to a federal  remedy is another matter.            So long as  state law provides an avenue  of relief--here, an            appeal to  higher  courts--even a  deprivation  of  protected            rights  does  not automatically  give rise  to a  due process            claim.   See Parratt v.  Taylor, 451  U.S.  527,  544 (1981).                     ___ _______     ______            But this  subject is  fraught with difficulty  and we  do not            pursue it here.                   As it  happens, state law  may still offer  Warren Brown            some  opportunity  for  relief if  the  grandchildren  are in            foster care  or are  otherwise not  yet placed for  adoption.            The initial  protection order  did effectively  bar him  from                                         -11-                                         -11-            contact; but it  was only an interim order,  entered with the            consent of  the children's mother  who during her  custody of            the children  could  herself have  restricted Warren  Brown's            contact.    Subsequent  orders  transferred  custody  to  the            Department and  then terminated,  successively, the  parental            rights of the children's mother and father, but none of those            orders was directed at Warren Brown.                   The state's  counsel told us at oral argument that there            is  no  currently  effective  order barring  contact  between            Warren Brown and his grandchildren,  and we can find no trace            of such an order in the record.  So long as the children have            not been  placed for adoption  or formally adopted, it  is at            least possible under Maine law  that Warren Brown could still            apply  for standing and  intervenor status in  the protection            proceeding that  transferred custody of his  grandchildren to            the  Department.   22  M.R.S.A.     4005-B(2).   If  it  were            granted,  he  could  also "request  the  court  to  grant the            grandparent reasonable rights  of visitation or access."   22            M.R.S.A.   4005-B(6).2                 Family issues,  including abuse  and custody, are  among            the most difficult for the law to resolve.  Standards tend to            be vague, situations may be wrenching, and the legal tools at                                            ____________________                 2Under Maine law,  adoption (or in some  cases placement            for  adoption) does cut off such statutory grandparent rights            but  does not prohibit prospective or actual adoptive parents            from permitting contact between a  child and grandparent.  22            M.R.S.A.   4005-B(6).                                         -12-                                         -12-            hand are  often clumsy.   But, especially  in the  family-law            realm, federal damage actions under section 1983 have usually            proved to be an ineffective means of adjusting disputes  with            the authorities.   See generally Ellis v.  Hamilton, 669 F.2d                               _____________ _____     ________            at 515-16.   There may  be exceptions,  but this case  is not            among them.                 Affirmed.                 _________                                         -13-                                         -13-
