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,
_______________________
Andrew Ketterer,
________________

Attorney

Assistant
General, and

Attorney

General, with

Peter J. Brann, Assist

________________

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.
_____________

dismissal of

U.S.C.

by

his civil

1983.

rights claims

The claims trace back

caseworker

in

connection

proceeding, that labeled

As

usual, where

assume the

for damages

with

of the

in the light

to dismiss

child

under 42

protection

sex offender."

has been

allegations in

granted, we

the complaint

most favorable to the

the motion, here Warren Brown.

from the

to an affidavit, filed

Brown an "untreated

a motion

truth

construe it

Warren Brown appeals

and

opponent of

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

respectively.

From 1989 to

1993, Brown often

1988,

looked after

the

children, sometimes

children's

Brown

overnight, at

mother, Kathi Duncan.

allegedly

told

his

mother

the

request of

In November

that

Warren

the

1989, Thomas

Brown

had

sexually abused him.

Kathi Duncan reported the charge to the Maine Department

of

Human

Services

("the

Department investigated

was

taken, and

Department").

the charge,

but no official

Warren Brown continued

children regularly

at Kathi

Apparently

to baby-sit

Duncan's request.

But

the

action

for the

in May

1993, Duncan reported to the Department that Warren Brown had

endangered

Me'chelle

allegedly because

Brown,

he was

through

drunk.

-2-2-

faulty

A Department

supervision,

caseworker,

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

Department access to the children.

and granting

See 22 M.R.S.A.
___

the

4031,

4036.

In support of

which

she

the order Niemi filed an

described

supervision

of

Warren

Me'chelle

Brown's

Brown.

alleged

Niemi's

that

said that the child had

the incident

had occurred.

negligent

affidavit

described briefly Thomas Brown's November 1989

sexual abuse and

affidavit, in

also

allegation of

confirmed to Niemi

The affidavit

described

Warren Brown as "an untreated sex offender."

Niemi, and

arranged

behavior

Brown cooperated

grandchildren.

and

other

Department

officials,

then

for Warren Brown to be professionally evaluated for

his alleged

told

perhaps

and also

in the hope

for alcohol

abuse.

of regaining contact

Warren

with his

Thereafter, according to Warren Brown, he was

by Department officials that he had missed appointments

no further

treatment or

evaluation

would be

offered.

Warren Brown claims that he did not miss any appointments.

In

under

July 1993,

the

same

the Department

child

protection

obtained

provisions

a court

order

granting

it

temporary custody of the children based on charges that Kathi

Duncan had

abused

them.

The Department

-3-3-

then sought

full

custody of the

was

state

children.

Warren Brown sought

rejected and

then renewed

statute

allowed

that

his motion,

judges

to intervene,

invoking a

to grant

grandparents

intervenor status in child protection proceedings where

would serve

the

the interests of

statute.

denied after a

22 M.R.S.A.

the child and the

4005-B.

new

this

purposes of

The renewed motion was

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

efforts would continue.

But in

family reunification

October 1995, Kathi

Duncan

consented to an order terminating her parental rights under a

separate

1996,

subchapter of

the Maine

the state court terminated

child's

and in

January

the parental rights of the

father--Warren Brown's son--who did not appeal.

22 M.R.S.A.

In

statute,

See
___

4050-4058.

the meantime, in November 1995, Warren Brown brought

the present section 1983 action in the federal district court

in Maine.

The

charged that

connected

now pertinent

Niemi, and

to the

process rights

case,

portion of

Brown's complaint

several other

Department employees

had

Warren

under the 14th

violated

Brown's

Amendment by libeling

due

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.

million

and asked

the court

Brown sought damages of $1.2

to enjoin

the proceedings

to

terminate his son's parental rights.

In July 1996, the district court granted the defendants'

motion to dismiss.

district

On the claim for

court held that the

injunctive relief, the

state proceedings sought to be

enjoined

now

had concluded and

moot.

The

court

that the request

also

eliminated

defendants--primarily higher-level

that

for relief was

certain

of

officials--on the

the

ground

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

the reputational nor associational

Brown

were "clearly

overcome qualified

there

was

Department's

no

rights asserted by Warren

established" to

immunity, and

clearly

his

the

the court

established

actions violated

that neither

law to

extent needed

also held

show

substantive due

rights under a "shock the conscience" test.

that

to

that

the

process

Brown

claims.

now

appeals

from the

Our review is plenary.

v. Ana C., 108 F.3d

_______

1, 2 (1st

dismissal

of

his damage

Providence School Department

____________________________

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

functions,

generally are

from liability

does

officials

not

for civil

violate

performing

shielded

discretionary

[by qualified

damages insofar

immunity]

as their

clearly
established
_____________________

conduct

statutory

or

constitutional rights of which a reasonable person would have

known."

Harlow v.
______

(emphasis added).

not overcome

457 U.S.

800,

641 (1987).

have

abstract level:

818 (1982)

The test is objective; claims of malice do

qualified immunity. See Anderson

___ ________

483 U.S. 635,

claimed to

Fitzgerald,
__________

Nor

been violated

v. Creighton,
_________

is it enough that

has

the right

been recognized

existing case law has to

at

an

give the official

reason to know that the specific conduct was prohibited.

See

___

id. at 640.
___

A thumbnail

as

follows.

untreated

version of Brown's constitutional

Niemi's

sex

charge

offender

investigation; it

to

because

the charge somehow

maintain

contact

Brown's public reputation.

his

freedom from

due

was

made

foreseeably

efforts

violated

that

Warren

without

frustrated

with

Brown

his

Warren

claim is

was

an

thorough

Brown's

grandchildren; and

became public it

injured Warren

Thus, Brown says, Niemi's actions

process rights

of

governmental falsehood,

family

and her

integrity and

conduct as

-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

association

protected

with

their

rights

in

relation

grandchildren.

We

to

spoke

their

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.

Cleveland,
_________

431 U.S. 494

See also
_________

(1977).

Moore v.
_____

Protection

City of East
_____________

of nonresident

grandparents--like Warren Brown--has an even slimmer pedigree

in the

case law.

1220, 1227 n.6

Compare Drollinger v. Milligan,

_______ __________
________

(7th Cir. 1977), with Ellis

____ _____

552 F.2d

v. Hamilton, 669
________

F.2d 510, 513 (7th Cir.), cert. denied, 459 U.S. 1069 (1982).
____________

Similarly,

protected

due

in one case

process

right

the Supreme Court

against

false

recognized a

government

designation

made with

no opportunity

for

challenge.

Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

_________
_____________

See
___

But in

Paul v. Davis, 424 U.S. 693, 711-12 (1976), the Supreme Court
____
_____

ruled that the designation itself

legal status and

had to change the victim's

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
was in fact

closed to the public, and Warren Brown

able to file and pursue his motion to intervene,

albeit without success.

-7-7-

v. Gilley, 500 U.S. 226,

______

233-34 (1991).

legal status was not changed

Here Warren Brown's

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

against reputational harm, he has

the

circumstances of

his

case

no precedent to show

come even

close

to a

or

that

due

process violation.

The state

repeatedly recognized,

abuse, whether by

very strong

the protection

390 U.S. 629,

interest,

of children

their parents or anyone else.

Ginsberg v. New York,

________
________

responsibility

in

has a

from

See, e.g.,
___ ____

640 (1968).

special

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,

charge that

Thomas Brown

had

his grandfather

conduct; Warren

apparently twice

had engaged

Brown does not

made by his grandson.

repeated the

in abusive

dispute that the

sexual

charge was

The child's mother also reported that,

due to

Because

children

drunkenness, Warren

Brown had

the children's mother

endangered Me'chelle.

had continued to

entrust the

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

proceeding and to tell the court what she had

it

became the court's

next.

responsibility to

Of course, Niemi

investigation

into

the

alleged

constitutional obligation.

and begin

abuse.

sexual

decide what

Then

to do

abuse

claim,

now

but the precedents impose no such

On the

wide latitude to

proceedings based

See Frazier
___ _______

learned.

court

might first have conducted a further

several years in the past,

the Department have

contrary, agencies

like

pursue investigations,

on colorable

v. Bailey, 957 F.2d

______

charges of

child

920, 931 n.12 (1st

Cir. 1992).

For the same reasons, there is no

conduct can be described as

due process

test.

it

is

so outrageous as to constitute a

violation under Rochin's

______

That standard does

confined

to

situations

See Souza
___ _____

(1st

In the

accusation

mistaken

1995).

incident

to

"shock the conscience"

have vitality in this circuit, but

outrageous behavior.

Cir.

prospect that Niemi's

of

brutal

or

otherwise

v. Pina, 53 F.3d 423, 424-27

____

present

judicial

case,

caseworker's

proceeding--possibly

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

here is not

different character.

is mainly

the caseworker's charge or the

adequate prior investigation,

it

What

troubling

supposed lack of

but something quite different:

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

of

the named Departmental defendants.

Niemi or any other

They were entitled to

begin the proceedings, and they did not issue the orders that

denied

Warren Brown's

access

to his

questions about

denying

intervention requests or

grandchildren.

Rather,

the outcome

the procedural fairness of

intervention and--to the

limited his

raises

judicial actions

extent that they

did so--

cutting off Warren Brown's access to his grandchildren.

Maine's judges are absolutely immune from

based on their

judicial decisions.

U.S. 547, 553-54 (1967).

Maine

Nor

See Pierson
___ _______

damage claims

v. Ray, 386
___

can we review decisions of the

courts even for constitutional error; only the Supreme

Court can

do that.

See Rooker
___ ______

U.S. 413,

416 (1923).

v. Fidelity Trust Co., 263

___________________

This leaves open the

possibility of

injunctive relief against ongoing state proceedings, although

it too might face

obstacles short of the merits.

-10-10-

See, e.g.,
_________

Trainor
_______

v. Hernandez, 431
_________

U.S. 434, 444

(1977) (abstention

doctrine).

Warren Brown did seek such an injunction in the district

court

but has

claim as moot.

obviously has an

not appealed

that court's

dismissal of

And the merits are far from clear:

the

the state

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

concerned with their welfare, usually the parents.

statute

has struck a

to seek

intervention but

immediately

The Maine

compromise, permitting the grandfather

only with

the court's

based on the best interests of the child.

permission

The

possibility remains

statute

in an

of unfair

individual case,

but

error would give rise to a federal

So long as

higher

does

claim.

courts--even a

not automatically

See Parratt v.
___ _______

But this

whether an

subject is

of the

individual

remedy is another matter.

state law provides an avenue

appeal to

rights

application

of relief--here, an

deprivation

give rise

Taylor, 451
______

U.S.

of

protected

to a

due process

527,

544 (1981).

fraught with difficulty

and we

do not

pursue it here.

As it

some

happens, state law

opportunity

for

may still offer

relief if

foster care

or are

otherwise not

The initial

protection order

the

Warren Brown

grandchildren

yet placed for

did effectively

are in

adoption.

bar him

from

-11-11-

contact; but it

consent of

the children's mother

the children

contact.

was only an interim order,

could

herself have

Subsequent

Department and

orders

then terminated,

entered with the

who during her

custody of

restricted Warren

transferred

custody

successively, the

Brown's

to

the

parental

rights of the children's mother and father, but none of those

orders was directed at Warren Brown.

The state's

is

no

counsel told us at oral argument that there

currently

effective

order barring

Warren Brown and his grandchildren,

of such an order in the record.

not been

placed for adoption

least possible under Maine law

apply

for standing and

proceeding that

the

granted,

he

could

22

M.R.S.A.

So long as the children have

or formally adopted, it

M.R.S.A.

the protection

grandchildren to

4005-B(2).

also "request

4005-B(6).2

is at

that Warren Brown could still

intervenor status in

grandparent reasonable rights

between

and we can find no trace

transferred custody of his

Department.

contact

the

court

If

to

it

were

grant the

of visitation or access."

22

Family issues,

including abuse

and custody, are

the most difficult for the law to resolve.

among

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

M.R.S.A.

4005-B(6).

-12-12-

child and grandparent.

22

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

the authorities.

at 515-16.

See generally Ellis v.

_____________ _____

There may

among them.

Affirmed.
_________

be exceptions,

with

Hamilton, 669 F.2d

________

but this case

is not

-13-13-