McMahon, Christopher v. Kindlarski, John ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4274
CHRISTOPHER MCMAHON,
Plaintiff-Appellant,
v.
JOHN KINDLARSKI, JOHN NIEBUHR,,
RONALD DEBRUYNE, SR., et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 C 285—John C. Shabaz, Judge.
____________
ARGUED NOVEMBER 5, 2007—DECIDED JANUARY 15, 2008
____________
Before POSNER, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. In this suit, brought under 42
U.S.C. §§ 1983 and 1985, Christopher J. McMahon
claims that Vilas County (Wisconsin) Sheriff John
Niebuhr and Deputy Sheriff John Kindlarski conspired
with Kristen DeBruyne and her parents, Ronald and
Judith DeBruyne, to violate his rights under the Four-
teenth Amendment to the Constitution. He also alleges
various violations of state law. The district court granted
the defendants’ motions for summary judgment and
McMahon appeals.
The rules regarding our review of summary judgment
decisions are well-known and need not be repeated here.
2 No. 06-4274
But suffice to say that this case presents multiple varia-
tions on the details, on which we defer to McMahon’s
version as he was the nonmoving party on the summary
judgment proceedings in the district court. But that
said, we note that no one is really covered in glory in the
case, and the tragedy is that the young child at the
center of the controversy has been badly used by people
who should be protecting her. Were it not for her, this
case would be grist for an awful soap opera on daytime
network television.
Our story begins in April 2001 when McMahon, then
26 years old, had a sexual fling with Kristen DeBruyne.
Not only was DeBruyne 17 years old, she has, at some
point, been diagnosed with bipolar disorder, post-trau-
matic stress disorder, and a personality disorder. There
is a dispute about how long the McMahon/DeBruyne
relationship lasted. McMahon says it was about a week.
Whatever its length, it caused years of trouble. By May,
DeBruyne told McMahon that she was pregnant. By
September, McMahon was showing interest in the preg-
nancy, and DeBruyne and her family started a vicious
campaign to prevent him from ever having anything to
do with the baby. Kristen informed McMahon that the
baby was hers and he should go out and get one of his
own. McMahon told her he was going to file a paternity
action. In November, Kristen’s mother, Judith, made a
harassment complaint against McMahon, who very soon
heard, for the first of many times, from Deputy Kindlarski.
When Kristen DeBruyne’s parents took action, it was
Judith who took the lead. Ron DeBruyne, Kristen’s father,
was on the county board in Vilas County and on its Law
Enforcement Committee. That committee had oversight
over the sheriff ’s budget. Some years later, Ron said he
stayed in the background because he was concerned about
appearances. He acknowledged discussing matters with
his wife and generally agreeing with what she was doing
No. 06-4274 3
as this mess played out. He told a therapist who inter-
viewed him for a custody action that if he were not con-
cerned about appearances he would go sit on the desks
of the Oneida and Vilas County police and find out why
they were not doing enough about the case. To others,
it might seem like the authorities were overly eager to
do Judith DeBruyne’s bidding.
But back to the story. Also in November, Kristen
DeBruyne, now apparently 18 years of age, married
another man, Michael Ervin. The baby, named Kathy,1 was
born in January. In that same month, McMahon had
Kristen served with papers in a paternity action. Soon
thereafter, in February of 2002, DeBruyne and her hus-
band moved to Libertyville, Illinois. In March, Natalie
Tyler was appointed guardian ad litem for Kathy in the
paternity case. Tyler told McMahon that DeBruyne
was calling him a rapist, which would make it hard for
the court to let him see the baby. But, in June, a judge
in Oneida County, Wisconsin, where the paternity suit
was pending, ruled that there would be genetic testing
done to determine paternity; the testing proved that
McMahon was Kathy’s father.
Allegations of child abuse and rape began swirling
around. In November 2002, McMahon filed a complaint
with the social services agency in Libertyville, based on
information he obtained from an Internet chat site. On
the site, which McMahon stayed on for many months
assuming a false female identity—“bluekellylilly,” a single
mother—he chatted with DeBruyne. Finally, after 9
months, Kristen acknowledged slapping Kathy. McMahon
used the admission against Kristen. He also told
1
“Kathy” is not the baby’s real name. We decline to name her
because we hope, when she grows up, she will never read about
this horrible case.
4 No. 06-4274
Libertyville officials that he had saved the e-mails, and on
December 13, 2002, he turned his computer over to a
neighboring police department so that an investigator
could check it out. Unfortunately for him, the investigator
found 12 images of what he considered child pornography.
Suspiciously, however, the images were downloaded to
the computer on December 11, at a time when McMahon
was not home.
During this time, DeBruyne and her mother were
interviewed by a social worker with the Vilas County
Social Services Agency. They accused McMahon of being
a stalker and a rapist. In January 2003, Judith DeBruyne
told Kindlarski that McMahon raped her daughter.
Kindlarski interviewed Kristen DeBruyne’s therapist,
who said that Kristen had told her some time earlier that
McMahon had sexually assaulted her. Kindlarski also
interviewed Ervin and told him that Kristen had been
sexually assaulted by both McMahon and his brother.
Later, Kristen said she had not been assaulted.
Adding fire, the Libertyville police told Kindlarski about
the child pornography and sent him copies of the images.
In investigating the allegations, Kindlarski prepared an
affidavit in support of a subpoena for McMahon’s records
from the University of Wisconsin-Eau Claire computer
network, a network that McMahon, a student at UW-Eau
Claire, frequently used. Kindlarski then met with Dean
Robert Shaw at UW-Eau Claire to serve the subpoena.
When Shaw was reluctant to produce the documents,
Kindlarski explained that he was investigating an al-
legation of sexual assault involving McMahon. In fact, at
some point, Kindlarski told UW-Eau Claire officials that
McMahon was a rapist. Kindlarski also investigated
McMahon’s run-ins with the university police.
Kindlarski interviewed McMahon at the Eau Claire
sheriff ’s department. Kindlarski first told McMahon the
No. 06-4274 5
interview would involve the rape allegations, but then he
also asked about the child pornography. This was the
first time McMahon learned that child pornography
was found on his computer. The Eau Claire County dis-
trict attorney declined to press charges involving the
possession of child pornography.
But that was not the end of the matter. In June 2003, at
a hearing in the paternity action, the attorney for Judith
and Ron DeBruyne attempted to introduce the images
into evidence. Kindlarski was present in court, images
in hand. Also, a year later, in an affidavit to be used on
the custody issue, Kindlarski stated that there was
probable cause to believe that McMahon was in possession
of child pornography and that the police investigation
was continuing.
Then, in December 2004, Judith DeBruyne told
Kindlarski that McMahon had sexually molested little
Kathy. Kindlarski told Judith to have Kathy examined. He
also informed the guardian ad litem about the abuse
allegations. Ultimately, the case was closed due to lack of
evidence. But again in 2005, Judith DeBruyne had Kathy
examined for sexual abuse a number of times, in fact so
many times that the state trial judge in the custody case
concluded that the examinations were harming the child.
As one can imagine, all of this caused McMahon prob-
lems. He says that after Kindlarski told officials at UW-
Eau Claire that he was a rapist and was being investi-
gated for possessing child pornography, the dean said he
should leave the school immediately. Furthermore,
McMahon was an intern in the Safe and Sound program
run through the Eau Claire police department. His in-
ternship was terminated. McMahon began attending the
University of Wisconsin-Stevens Point. He also obtained
an internship with the Lac du Flambeau Indian Welfare
Center, but when he arrived at the center one day in
6 No. 06-4274
June 2004, he was fired and physically escorted out of
the building. His supervisor said that Kindlarski told her
that McMahon was a rapist, child pornographer, stalker,
and harasser.
The state court custody proceedings went to trial in
December 2005. The judge’s findings and conclusions
clearly reveal his take on the situation. He set out the
three allegations he had to consider: that McMahon
sexually assaulted Kristen DeBruyne, that he possessed
child pornography, and that he sexually assaulted his
daughter. The judge found that the sexual encounters
between McMahon and DeBruyne were consensual. In
fact, at an earlier hearing, in October 2005, Kristen
DeBruyne stated that McMahon did not rape her and
that their sexual encounters were consensual. The judge
also found the allegations of abuse of the child unconvinc-
ing and, further, that the repeated examinations of her
instigated by Judith DeBruyne were not in the child’s
best interests. As to the child pornography, the judge
chastised McMahon for looking at images, but concluded
that 12 images did not make him a pedophile. Further,
he found it “suspicious how the sequence of events un-
folded in that Mr. McMahon had 12 images downloaded
onto his computer hours after the social worker spoke to
the DeBruyne’s concerning Mr. McMahon’s report of
Kristen being physically abusive to the child. The Court
finds that this is more than a little coincidental.” All in
all, though there was blame to go around, the judge
accepted the recommendation of the guardian ad litem
and granted full custody of Kathy to McMahon.
Finally, McMahon graduated from UW-Stevens Point
in the spring of 2005 with a degree in social work. He
obtained a position as a social worker with Forward
Service, where he remains employed. So, in short, he
gained custody of his daughter, graduated from college,
and obtained employment. The downside of these suc-
No. 06-4274 7
cesses is that they doom his case. Our de novo review of
the district court decision to grant summary judgment
convinces us that the case was properly dismissed.
McMahon claims that his due process rights, based on
a liberty interest in his occupation and his right to
familial association, were violated. He also presents a
substantive due process claim based on familial relations.
As to his liberty interest in his occupation, he claims
that the defendants’ conduct prevented him from work-
ing in the field of his choosing. There is also an implica-
tion that somehow he was prevented from finishing his
degree in education at UW-Eau Claire.
A procedural due process claim requires a two-fold
analysis. First, we must determine whether the plaintiff
was deprived of a property or a liberty interest. Brown v.
City of Michigan City, Indiana, 462 F.3d 720 (7th Cir.
2006). McMahon’s claim is for a liberty interest. If he
has such an interest, then we move to the second step,
a determination of what process is due. Id.
McMahon claims he was defamed by Kindlarski at the
behest of the DeBruynes. But it is well-established that
mere defamation, while it may be the basis for a solid
claim based on state law, does not deprive a person of
liberty protected by the Fourteenth Amendment. Paul v.
Davis, 424 U.S. 693 (1976). This is true even when the
defamation causes serious impairment of future employ-
ment opportunities. Hojnacki v. Klein-Acosta, 285 F.3d
544 (7th Cir. 2002). To find a violation of a constitu-
tionally protected liberty interest in a situation where
the state actor is the employer, a plaintiff-employee
would have to show that the defendants called into
question his “good name, reputation, honor or integrity” in
a way that made it “virtually impossible for the em-
ployee to find new employment in his chosen field.”
Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001).
8 No. 06-4274
Nothing less would be required in a situation like the one
we are dealing with here.
All McMahon contends is that he had to leave UW-Eau
Claire because Kindlarski told the dean bad things
about him. He also says, basically, that he did not think
he could get a job in education, so when he went to UW-
Stevens Point he changed majors. His claims are simply
too vague to establish the deprivation of a liberty interest.
He does not say he was expelled from UW-Eau Claire or
from its education department. He does not know for
certain that he could not get a job in education because
of what Kindlarski did. He did not try to study educa-
tion or to get a job in education. In addition, he obtained
employment in what can only be considered a related
field and, at least at the time of the briefing in this case,
he was still employed. He has simply failed to estab-
lish a deprivation of a liberty interest.
For that reason, we need not consider whether state
remedies available to him are adequate. But it must be
said that, from where we stand, it seems that the facts
he alleges fit best into a state claim for defamation.
McMahon may come closer to establishing a substan-
tive due process right or a procedural liberty interest
in familial associations, but even if he does, it is not
possible to find a violation of those rights. Kathy was
born while her mother was married to another man. In
such a situation, when the biological father and the
child have not been “treated as a protected family unit
under the historic practices of our society,” the Supreme
Court has said that there is no fundamental right to a
parental relationship. Michael H. v. Gerald D., 491 U.S.
110, 124 (1989). But the Supreme Court, while making
clear that biology is not enough to confer a constitutional
right on a putative father, has looked to other factors to
see whether there is a protectable right. In Lehr v. Robert-
son, 463 U.S. 248, 261 (1983), the Court said:
No. 06-4274 9
When an unwed father demonstrates a full commit-
ment to the responsibilities of parenthood by “com[ing]
forward to participate in the rearing of his child,”
Caban, 441 U.S. at 392 [Caban v. Mohammed, 441
U.S. 380 (1979)], his interest in personal contact
with his child acquires a substantial protection under
the Due Process Clause. At that point it may be
said that he “act[s] as a father toward his children.”
Id. at 389, n.7.
See also Stanley v. Illinois, 405 U.S. 645 (1972).
McMahon promptly and persistently attempted to
maintain a relationship with Kathy. As we said, in Novem-
ber 2001, before Kathy was born, he initiated a paternity
proceeding. It was in that same month that Kristen
married Ervin. Kathy was born on January 10, 2002.
In June 2003, McMahon was found to be the child’s
biological father. McMahon was awarded joint legal
custody in September 2004 and full custody following a
hearing in December 2005. It is hard to see what more
he could have done.
But suggesting that McMahon may have protectable
rights is not the same as saying that those rights were
violated. The law in Wisconsin seems fully in keeping
with constitutional requirements. Even though, in Wis-
consin, a “man is presumed to be the natural father of a
child” if he and the child’s mother “are or have been
married to each other and the child is conceived or born
after marriage . . . .”, § 891.41 Wis. Stat., the presump-
tion is rebuttable. An action for a determination of pater-
nity may be brought by a number of people, including a
“male alleged or alleging himself to be the father of the
child.” § 767.80 Wis. Stat. However, the judge may
refuse to order genetic testing if he finds that a deter-
mination that the man is the father is not in the best
interests of the child. § 767.458 Wis. Stat.; see Randy A.J.
10 No. 06-4274
v. Norma I.J., 270 Wis. 2d 384 (2004). The latter provi-
sion has no bearing in the present case because genetic
testing was ordered here.
Nevertheless, McMahon says the defendants inter-
fered with his relationship with his daughter and their
interference deprived him of procedural due process. What,
we wonder, was the custody and paternity proceeding
providing, if not due process? At which, we must add,
McMahon ultimately prevailed: his paternity was estab-
lished and he obtained custody of Kathy. “Deprivation”
does not seem to be a word that applies here. But
McMahon argues that the whole process took too long
and he was deprived of some time with Kathy. Unfortu-
nately, court procedures sometimes take long. But in
this case, we cannot resist the temptation to speculate
that the delay worked in McMahon’s favor. The longer
the proceedings lasted, the more outlandish Judith
DeBruyne’s behavior became. For instance, as we noted,
the judge determined that the repeated examinations of
Kathy for signs of sexual abuse, which found nothing, were
detrimental to the child. In addition, by the time of
the hearing Kristen DeBruyne had stated that McMahon
did not rape her. There is simply no due process violation.
Accordingly, the judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-15-08