Thomas, Debra L. v. Starks, Shirley ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 28, 2005*
Decided September 28, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1956
Appeal from the United States
DEBRA L. THOMAS, District Court for the Southern
Plaintiff-Appellant, District of Indiana, Evansville
Division
v.
No. EV 02-33-C-Y/H
SHIRLEY STARKS, et al.,
Defendants-Appellees. Richard L. Young,
Judge.
ORDER
Over the course of two years, the school that Debra Thomas’s daughter
attended in Evansville, Indiana, submitted eight referrals of child abuse and one of
neglect to the county office of child protective services. Records show that
caseworkers substantiated two of the referrals after interviewing Thomas. The
caseworkers, however, never removed Thomas’s daughter, or took any action other
than simply advising her that she should seek counseling for her disciplinary
methods. Thomas acknowledges that a caseworker interviewed her on one occasion,
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-1956 Page 2
and that during that interview she admitted the allegations that prompted the
specific referral. But she has always maintained that there were no other
interviews, and that a caseworker’s report confirming a different referral is false.
Thomas eventually filed this lawsuit against two caseworkers and a supervisor
claiming they violated her rights under the federal Constitution and state tort law
by fabricating investigative reports. The district court granted summary judgment
for the defendants on both claims, reasoning that Thomas failed to establish a
constitutional violation and that she could not pursue a tort suit under Indiana law
because she had not given the county prior notice of her intention to sue.
Although Thomas filed her complaint pro se, she was at times represented by
retained and appointed attorneys. Her burden on appeal is to demonstrate to us
that a genuine issue of material fact exists. Fed. R. Civ. Proc. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Thomas directs us to no flaw in the
district court’s analysis or to any issue of material fact, and our review reveals none.
To the extent Thomas argues a substantive due process claim arising under
42 U.S.C. § 1983 for interfering with her relationship with her daughter, the district
court’s analysis is correct. It is undisputed that the defendants acted under color of
law, but Thomas cannot establish that their actions deprived her of a right secured
by the Constitution or laws of the United States. See Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999); Case v. Milewski, 327 F.3d 564, 566 (7th Cir.
2003). The Supreme Court has long held that a parent’s liberty interest in family
integrity is a component of substantive due process, see, e.g., Troxel v. Granville,
530 U.S. 57, 65 (2000) (collecting cases), yet the right to family integrity is not
absolute, Berman v. Young, 291 F.3d 976, 983 (7th Cir. 2002), and does not include
the right to be free from child abuse investigations, Doe v. Heck, 327 F.3d 492, 520
(7th Cir. 2003). Such investigations must be based on definite and articulable
evidence giving rise to a reasonable suspicion that a child has been abused or is
endangered, Brokaw v. Mercer County, 235 F.3d 1000, 1019 (7th Cir. 2000), but
Thomas has never disputed that the defendants acted on referrals from her
daughter’s school, nor has she contended that those referrals were themselves
fabricated.
Moreover, as the district court noted, the right to family integrity could not
have been violated merely by the defendants misrepresenting the content of their
investigations or the conclusions they drew; those actions did not interfere with the
parent-child relationship. Caseworkers did not remove Thomas’s daughter even
temporarily. Compare Tenenbaum v. Williams, 193 F.3d 581, 601 (2d Cir. 1999)
(holding that removal of child for several hours to conduct medical exam was not
“severe enough” interference to violate substantive due process), with Brokaw, 235
F.3d at 1019 (holding that child’s four-month separation from his parents could be
challenged as denial of substantive due process). Neither did they deny Thomas the
No. 05-1956 Page 3
opportunity to spend time with her daughter. See Terry, 346 F.3d at 787 (holding
that denying non-custodial parent one day of visitation did not interfere with family
rights). Nor did Thomas ever contend that she feared her daughter would be taken
away. See Doe, 327 F.3d at 524 (holding that child welfare caseworkers violated
due process by making baseless threats that led plaintiffs to fear that removal of
their children was imminent). Indeed, the very premise of her complaint is that
Thomas was interviewed just one time, and that whatever else the defendants say
they did to investigate the referrals is untrue.
And that contention is really what her lawsuit is about. The recurring theme
in Thomas’s submissions is that the conduct of the defendants has injured her
reputation in the community, a result that Thomas characterizes as a violation of
her right to procedural due process. But the Supreme Court has held that
procedural due process does not protect against injury to reputation alone because
reputation is neither “liberty” nor “property.” Paul v. Davis, 424 U.S. 693, 712
(1976); Atwell v. Lisle Park Dist., 286 F.3d 987, 992-93 (7th Cir. 2002). An injury to
reputation may be a viable theory under state law, but a procedural due process
claim is the wrong vehicle for seeking redress. Pleva v. Norquist, 195 F.3d 905, 916
(7th Cir. 1999).
Finally, the district court was correct to dismiss Thomas’s state-law tort
claim. Indiana law requires that a party injured by a government employee must
give the employing entity or the attorney general notice of tort claims within 270
days of the loss or else the suit will be barred, even against the employee in his
individual capacity. See Ind. Code § 34-13-3-6 (2005); Bushong v. Williamson, 790
N.E.2d 467, 471 (Ind. 2003); Poole v. Clase, 476 N.E.2d 828, 831 (Ind. 1985).
Thomas admittedly filed her notice of tort claim almost two years after she found
out about the substantiated referrals against her, and it is not even clear that she
disputes the dismissal of her supplemental claim under Indiana law. Rather, she
appears to misunderstand the effect of her failure to file the notice because her only
argument on appeal is that § 1983 does not require such notice. What the district
court said, however, was that her failure to file a notice of tort claims bars her state
claim.
Accordingly, the judgment of the district court is AFFIRMED.