MARK W. BENNETT, District Judge.
In this case pursuant to 42 U.S.C. § 1983, filed May 2, 2014, plaintiff Jason Meyer claims that defendant Jerry Birkey, a Deputy Sheriff for Lyon County, Iowa, violated his constitutional rights. Meyer bases his claims on Birkey's removal of Meyer's two daughters from his home on May 31, 2012, and placement of them in their mother's custody, and on Birkey's alleged failure to follow the procedures for removal set forth in IOWA CODE § 232.79 in doing so. See Complaint (docket no. 1). On May 29, 2015, Birkey filed a Motion For Summary Judgment (docket no. 14) in which he argues, inter alia, that he is entitled to qualified immunity to Meyer's claims. By Order (docket no. 15), filed May 29, 2015, I referred this action, and all motions pending herein, to United States Magistrate Judge Leonard T. Strand, pursuant to 28 U.S.C. § 636(b)(1)(B), for review of the record and the pleadings, the conduct of any necessary evidentiary hearings, the hearing of any oral argument that may be necessary, and the submission to me of a report and recommended disposition of the case.
Judge Strand filed his Report And Recommendation On Defendant's Motion For Summary Judgment (docket no. 21) on September 17, 2015. In his Report And Recommendation, Judge Strand found that qualified immunity applies and that summary judgment should, therefore, be entered in Birkey's favor. Somewhat more specifically, Judge Strand set forth the relevant facts, most of which were not in dispute, see Report And Recommendation at 2-4, and the standards for summary judgment and qualified immunity, id. at 4-8. He then considered, in turn, whether Birkey was entitled to qualified immunity for (1) the removal of Meyer's two daughters from Meyer's home based on allegations that Meyer's two sons (who have a different mother from his daughters and who are older than his daughters) were sexually molesting them; and (2) events after the removal, arising from an alleged violation of IOWA CODE § 232.79, which allegedly deprived Meyer of a hearing on whether the removal of his daughters was appropriate. Judge Strand concluded, "Birkey's act of taking the Girls from Meyer's home and turning them over to their mother is protected by qualified immunity." Report And Recommendation at 10. He also concluded, "Birkey's actions relating to . . . his failure to follow the procedures described in Iowa Code § 232.79 are subject to the doctrine of qualified immunity." Id. at 14. Judge Strand determined that these conclusions made it unnecessary to address Birkey's other arguments for summary judgment, which concerned the merits of Meyer's claims, because even if those claims might otherwise have merit, Birkey cannot be held liable for any alleged harm. Id. Thus, Judge Strand recommended that summary judgment be granted as to all of Meyer's claims. Id.
On October 1, 2015, Meyer filed his Objections To Report And Recommendation (docket no. 25), challenging Judge Strand's conclusions that Birkey is entitled to qualified immunity as to his actions before and after the removal of Meyer's daughters. On October 12, 2015, Birkey filed his Response To The Objections Plaintiff Has Raised To The Magistrate's Report & Recommendation On Summary Judgment (docket no. 26). I must now review Judge Strand's Report And Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Where, as here, a party has filed objections to a magistrate judge's report and recommendation, the applicable statute provides for de novo review by the district judge, as follows:
28 U.S.C. § 636(b)(1) (2006); see FED. R. CIV. P. 72(b) (stating identical requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge's report and recommendation). Thus, "[a]ny party that desires plenary consideration by the Article III judge of any issue need only ask." Thomas v. Arn, 474 U.S. 140, 154 (1985).
If a party files an objection to a magistrate judge's report and recommendation, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) (emphasis added). In most cases, at least where the objecting party is represented by counsel, to trigger de novo review, "objections must be timely and specific." Thompson v. Nix, 897 F.2d 356, 358-59 (8th Cir. 1990); but see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (suggesting that "general" objections by a pro se party may be sufficient to trigger de novo review). When objections have been made, and the magistrate judge's report is based upon an evidentiary hearing, "`the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing.'" United States v. Azure, 539 F.3d 904, 910 (8th Cir. 2008) (quoting Jones v. Pillow, 47 F.3d 251, 252 (8th Cir. 1995), in turn quoting Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989)). Judge Strand did not hold an evidentiary hearing in this case, however, nor did he consider oral arguments. Instead, he considered only the parties' written submissions on Birkey's Motion For Summary Judgment, and I have done the same.
In the absence of an objection, the district court is not required "to give any more consideration to the magistrate's report than the court considers appropriate." Thomas, 474 U.S. at 150; see also Peretz v. United States, 501 U.S. 923, 939 (1991) (stating that § 636(b)(1) "provide[s] for de novo review only when a party objected to the magistrate's findings or recommendations" (emphasis added)); United States v. Ewing, 632 F.3d 412, 415 (8th Cir. 2011) ("By failing to file objections, Ewing waived his right to de novo review [of a magistrate judge's report and recommendation on a suppression motion] by the district court."). The Eighth Circuit Court of Appeals has indicated, however, that, at a minimum, a district court should review the portions of a magistrate judge's report and recommendation to which no objections have been made under a "clearly erroneous" standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that, when no objections are filed and the time for filing objections has expired, "[the district court judge] would only have to review the findings of the magistrate judge for clear error"); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting that the advisory committee's note to FED. R. CIV. P. 72(b) indicates "when no timely objection is filed the court need only satisfy itself that there is no clear error on the face of the record"). Thus, "clearly erroneous" review applies to the portions of Judge Strand's Report And Recommendation to which no objections were made.
I will review Judge Strand's Report And Recommendations with these standards in mind.
As Judge Strand correctly observed, "Qualified immunity is an immunity from suit rather than a mere defense to liability." Report And Recommendation at 6 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). As the Supreme Court very recently explained,
Mullenix v. Luna, ___ U.S. ___, 2015 WL 6829329, *3 (Nov. 9, 2015). Thus, to determine whether a government official is entitled to qualified immunity, the court ordinarily engages in a twofold inquiry, asking (1) whether there was a deprivation of a constitutional right, and (2) whether the right was clearly established such that a reasonable official would understand that his conduct was unlawful in the situation that he confronted. Vaughn v. Green County, Ark., 438 F.3d 845, 850 (8th Cir. 2006).
The parties do not dispute Judge Strand's reliance on Swipies v. Kofka, 348 F.3d 701 703 (8th Cir. 2003) (Swipies I), in which the court found that a child had been removed in violation of a parent's constitutional rights, for the applicable standard for qualified immunity in this case. I do not believe that doing so involves an improper determination of "`clearly established law at a high level of generality,'" see Mullenix, 2015 WL 6829329 at *3 (quoting al-Kidd, 563 U.S. at 742), but properly relates to the particular conduct and specific context at issue, here. See id. Therefore, I will also rely on Swipies I for the applicable standard in this case.
In Swipies I, the Eighth Circuit Court of Appeals explained,
Manzano, 60 F.3d at 510-11. Swipies I, 348 F.3d at 703 (emphasis added).
I turn to application of this standard for qualified immunity in this case.
Again, Judge Strand considered, in turn, whether Birkey was entitled to qualified immunity for (1) the removal of Meyer's two daughters from Meyer's home based on allegations that Meyer's two sons were sexually molesting them; and (2) events after the removal, arising from an alleged violation of IOWA CODE § 232.79, which allegedly deprived Meyer of a hearing on whether the removal of his daughters was appropriate. Meyer objects to Judge Strand's conclusions on both parts of his claim. I will also consider Meyer's objections in light of these two parts of his claim.
As to the "removal," Judge Strand distinguished Swipies I, on which Meyer relied, on the ground that "[t]he situation here is significantly different":
Report And Recommendation at 9-11.
Meyer objects to Judge Strand's conclusion that Birkey had a "reasonable suspicion" of child abuse. He contends that Judge Strand (1) put undue weight on the prior abuse allegation from 2010, which was rejected by the Iowa Department Of Human Services (DHS); (2) the more current allegations of abuse were vague; and (3) while he might have agreed, in retrospect, that separation of the girls from the boys was appropriate, the DHS had rejected the allegation of child abuse when Birkey reported it before removing the girls. Meyer also objects to Judge Strand's resulting conclusion that Birkey's act of taking the girls from Meyer's home and turning them over to their mother, under these circumstances, was protected by qualified immunity. On de novo review, I find that Meyer's objections should be overruled.
First, Judge Strand did not put "undue weight" on the prior allegation of child abuse from 2010 that one of Meyer's sons was abusing one of his daughters. Rather, Judge Strand correctly observed "that historical information alone would not have supported an emergency removal on May 31, 2012." Report And Recommendation at 9. Judge Strand also correctly observed that the 2010 report was important, however, because, despite the finding that abuse could not be proved in 2010, the DHS had still advised Meyer that the alleged assailant should not be left alone in a room with the alleged victim, and Meyer had signed a "safety plan" with the DHS in which he agreed not to allow the two children involved to be alone together. See Report And Recommendation at 2, 9. This information about the 2010 report, which was known to Birkey on May 31, 2012, would reasonably have heightened his concern and suspicions about a new report of recent child abuse.
Second, Birkey had received reports from family members that the girls had reported to one of them that they had been abused by both boys the night before, raising a reasonable suspicion of current abuse, despite Meyer's prior agreement to keep one of the boys away from one of the girls. While the allegations of current abuse that Birkey was able to describe in his deposition were too vague to amount to proof of child abuse, Meyer improperly suggests that lack of proof of child abuse means that there was lack of "reasonable suspicion" of child abuse. As Judge Strand pointed out in his Report And Recommendation, however,
Report And Recommendation at 7. Upon de novo review, I believe that the circumstances known to Birkey were sufficient to mount this relatively low hurdle of "reasonable suspicion" of child abuse.
Third, Meyer suggests that the fact that the DHS "rejected" Birkey's first report of child abuse on May 31, 2012, "weighed heavily against an emergency removal." Meyer's Objection at 10. I conclude that Meyer overlooks the grounds on which the DHS actually rejected Birkey's first report. As Judge Strand explained, and review of the record shows beyond dispute, the first report was "rejected" for the following reasons:
Birkey's Summary Judgment Appendix at 57 (Iowa Department of Human Services Child Protective Service Intake, 05/31/2012); Report And Recommendation at 9. The refusal of the DHS to accept the report because the boys were not the caretakers for the girls does nothing to abate a reasonable suspicion that the boys were abusing the girls. Moreover, the DHS responder's suggestion that there was "no information that indicates that the father had prior knowledge of sexual acting out behavior" was plainly wrong— and Birkey knew that it was wrong—in light of the 2010 report of abuse by one of the boys of one of the girls and Meyer's entry into the "safety plan" with the DHS to keep the children in question in the earlier report from being alone together.
Upon de novo review, see 28 U.S.C. § 636(b)(1), I wholeheartedly agree with Judge Strand's conclusion that, under these circumstances, it would not have been clear to a reasonable officer that the removal of the girls would be unlawful in the situation that Birkey confronted. I also wholeheartedly agree with Judge Strand that, in these circumstances, Birkey's act of taking the girls from Meyer's home and turning them over to their mother is protected by qualified immunity. Meyer's objection to these conclusions is overruled. I also find nothing clearly erroneous in Judge Strand's other findings or conclusions concerning the "removal" to which Meyer has offered no objections. Grinder, 73 F.3d at 795.
As to the part of Meyer's claim based on "post-removal" conduct, Judge Strand rejected Meyer's claim of a constitutional violation based on IOWA CODE § 232.79. That state statute prescribes the circumstances in which a peace officer can take a child into custody without the consent of a parent, guardian, or custodian, and, further, prescribes certain procedures for providing notice of the removal to the parent, guardian, or custodian, and the court, so that further proceedings can occur. IOWA CODE § 232.79.
Judge Strand rejected Meyer's due process claim based on an alleged violation of this state statute, even though he cited Swipies v. Kofka, 419 F.3d 709 (8th Cir. 2005) (Swipies II), as recognizing that a right under the United States Constitution to due process, based on a parent's right to be heard within a meaningful time period after removal of a child, had been violated by a seventeen-day period between the removal of a child and the first hearing on the issue. Report And Recommendation 12 (citing Swipies II, 419 F.3d at 717). Judge Strand also recognized that the time between the removal at issue in this case and Meyer's first hearing had been even longer than the period in Swipies I. Judge Strand noted, however, that IOWA CODE § 232.79 is violated if an officer removes a child without the consent of a parent and that Birkey did not believe that compliance with that statute was required, where he had the mother's consent to removal of the girls from Meyer's custody into hers, and Meyer made no objection to the removal at the time. Id. at 11-13.
More specifically, Judge Strand explained,
Report And Recommendation 13-14. For these reasons, Judge Strand concluded that Birkey was also entitled to qualified immunity for his alleged failure to follow the procedures prescribed in IOWA CODE § 232.79.
Meyer objects to any findings that he consented to the removal, because he contends that Birkey admitted that Meyer contested the abuse allegations at the time of the removal, calling them unproven and "BS." Meyer contends that Birkey went to his home with the intent to remove the girls and that he was not required to formally object to Birkey making that removal, because his objections to the allegations of abuse were sufficient to invoke all the procedures required by IOWA CODE § 232.79. Meyer also points out that Birkey did not ask him whether or not he consented to removal of the girls, but simply informed him that he was going to remove the girls. Meyer objects to the conclusion that his "silence" could be construed as "consent."
Again, upon de novo review, I find that Birkey is entitled to qualified immunity concerning his alleged failure to comply with IOWA CODE § 232.79. Meyer seems to rely in his Objections, as he did in his resistance to summary judgment, on his contention that he did not consent to the removal or that there are, at least, genuine issues of material fact as to whether or not he consented. I agree with Judge Strand's conclusion, however, that Birkey reasonably believed, in light of undisputed facts, that Meyer was not objecting to removal of the girls. Although Meyer initially asserted that the allegations of abuse were "BS," nothing shows that he objected to keeping the girls separate from the boys, when Birkey said they should do so "until we get it figured out." Report And Recommendation at 13. Just as importantly, Meyer has not pointed to any construction of IOWA CODE § 232.79 by any court—and I have found none—that would have clearly established that Birkey was wrong or unreasonable in his belief that one parent's consent to the removal, even if the other parent objected, meant that compliance with the statute's procedural requirements was not required. See Mullenix, ___ U.S. at ___, 2015 WL 6829329 at *3 (explaining that, to be "clearly established," "`existing precedent must have placed the statutory or constitutional question beyond debate'" (quoting al-Kidd, 563 U.S. at 741)). Rather, as Judge Strand recognized, the Eighth Circuit Court of Appeals had held, as a matter of federal constitutional law, that it is not a constitutional deprivation for a law enforcement officer to transfer custody of a child from one parent to the other when the surrendering parent voluntarily cedes custody, even if that parent felt threatened at the time. See Report And Recommendation at 13-14 (citing Zakrzewski, 87 F.3d at 1015, in turn citing Wise, 666 F.2d at 1333).
Thus, once again, upon de novo review, see 28 U.S.C. § 636(b)(1), I wholeheartedly agree with Judge Strand's conclusion that, under these circumstances, Birkey is entitled to qualified immunity for his "post-removal" failure to comply with IOWA CODE § 232.79. I also find nothing clearly erroneous in Judge Strand's other findings or conclusions concerning the "post-removal" conduct to which Meyer has offered no objections. Grinder, 73 F.3d at 795.
Upon the foregoing,
1. Plaintiff Meyer's October 1, 2015, Objections To Report And Recommendation (docket no. 25) are
2. I
3. Pursuant to Judge Strand's recommendations and my review,
