Alwyn v. Duval

[Not for Publication - Not to be Cited as Precedent]
United States Court of Appeals
For the First Circuit
No. 01-1270
SIMONE-ALYS ALWYN, INDIVIDUALLY AND AS PARENT AND NEXT FRIEND,
B/N/F PERIELL ALWYN, B/N/F SIDANNEN ALWYN, B/N/F CERRIDWEN
ALWYN; MICHAEL ALWYN, INDIVIDUALLY AND AS PARENT AND NEXT
FRIEND OF PERIELL ALWYN, SIDANNEN ALWYN AND CERRIDWEN ALWYN,
Plaintiffs, Appellants,
v.
JOHN DUVAL; MICHAEL RUSSELL, LT.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
Paula J. Werme for appellant.
Charles P. Bauer, with whom John T. Alexander and Ransmeier
& Spellman Professional Corporation were on brief, for appellee.
November 5, 2001
STAHL, Senior Circuit Judge. Michael and Simone-Alys
Alwyn appeal from the dismissal of their civil rights action
against two Concord police officers, filed in June of 1999
pursuant to 42 U.S.C. § 1983. The appellants first claimed that
Officer John Duval and Lieutenant Michael Russell violated their
constitutional rights by making misrepresentations about the
condition of their apartment, which resulted in the appellants
temporarily losing custody of their children. The district
court dismissed this claim for lack of subject matter
jurisdiction pursuant to the Rooker-Feldman doctrine. Second,
the appellants alleged that the officers violated their Fourth
and Fourteenth Amendment constitutional rights by conducting a
warrantless search of their home. This claim was dismissed by
the district court on defendants' motion for summary judgment
after finding that there were no genuine issues of material fact
in dispute. The Alwyns appeal these adverse rulings. We
affirm.
I.
On June 12, 1996, Mrs. Alwyn reported to the Concord
Police Department that two of her children were missing.
Officer Duval was dispatched to the Alwyns' home, and upon his
arrival, asked the Alwyns whether he could search the house
because “missing” children are frequently found to have been
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hiding inside their own home. Duval became suspicious when
appellants insisted that they had already searched the house and
refused to allow him to enter. Duval asked Mrs. Alwyn if there
was any reason why they would not want the police to enter the
apartment. She responded that the apartment merely was not
“very well kept inside.” Officer Duval was then joined by a
canine officer of the New Hampshire State Police. The officers
explained to the Alwyns that, in order for the police dog to
search for the children, it needed to obtain the girls' scent.
Notwithstanding this advice, appellants continued to refuse to
allow the officers entry to the apartment. Instead, they
brought out articles of the children's clothing for the police
to use. Officer Duval informed them that it was still necessary
for the canine officer and search dog to enter the apartment
because the search dog needed to sniff the clothing without any
other person having touched it, so that only the children's
scent would be present on the garment. Duval then told the
Alwyns that he did not think they were giving their full
cooperation and that precious time was slipping away. Finally,
Mr. Alwyn agreed to let the police enter the apartment.
However, the parties disagree as to the scope of the consent
ultimately given, with the appellants insisting that they
consented only to the canine officer entering the premises
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solely for the purpose of obtaining articles of their daughters'
clothing, and with the appellees, on the other hand, maintaining
that Mr. Alwyn stated "I don't care, go in the apartment,"
signifying unrestricted consent to enter and search for the
children as well.
Mr. Alwyn went into the apartment with the canine
officer, and Duval followed. The canine officer found what he
needed near the door and left. Upon entering, Officer Duval
observed an extremely unkempt and dirty apartment,1 and summoned
his supervisor, Lieutenant Russell, to assist him in searching
the premises until they were satisfied that the missing children
were not there. Shortly thereafter, the girls were discovered
in the neighborhood and were taken to the Concord Police
Station.
When the Alwyns were notified by the police that their
missing daughters had been located, they were instructed to
bring their other children to the station house. Based on
1
According to the affidavit of Officer Duval, “[t]he entire
apartment floor, including living room, kitchen, bathroom and
bedrooms were [sic] covered with piles of trash, garbage and
spoiled food, which was mixed up with piles of clothing. The
odor in the house was consistent with rotting food.” Officer
Duval also claims to have observed “the kitchen counters
completely covered with meals which appeared to be several days
old. . . [and] a foil pan containing the carcass of cooked
turkey which appeared to be several days old.” Lieutenant
Russell's affidavit offers a description consistent with that
provided by Officer Duval.
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Duval's and Russell's observations about the conditions in the
Alwyn home, all of the children were taken into protective
custody and placed in foster homes.2 On June 14, 1996, the New
Hampshire Division of Children, Youth and Families ("DCYF")
filed child neglect petitions in Concord District Court. On
February 13, 1997, after a full evidentiary hearing, the Concord
District Court entered a finding of neglect. On April 10, 1997,
the Concord District Court issued a dispositional order,
authorizing the DCYF to continue its legal supervision over the
children. In May 1997, the Alwyns appealed the dispositional
order to the Merrimack County Superior Court. However, because
the conditions described in the complaint had been corrected,
DCYF agreed to terminate the neglect petitions if the Alwyns
agreed to terminate their appeal of the February order. The
Alwyns agreed and DCYF filed a “Withdrawal of Petitions” on June
11, 1997, and the appeal was terminated.3
Appellants raise two issues in this appeal: first, that
the district court erred in ruling that the Rooker-Feldman
2
Although the child welfare proceedings continued for almost
a year, the children were returned to the custody of their
parents within days of their removal from the Alwyn home.
3
As the district court noted, “the parties have not
explained the process that ended the superior court proceeding,”
and no further information about the termination of the state
court litigation has been provided to this Court.
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doctrine mandated the dismissal of their misrepresentation claim
against the officers; and second, that summary judgment on the
unlawful search claim was inappropriate. We turn first to the
Rooker-Feldman issue.
II.
A federal district court is without subject matter
jurisdiction to review the final decisions of a state court of
competent jurisdiction. Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923). A district court also may not hear federal claims
that are “inextricably intertwined” with the state court's
denial of a claim in a judicial proceeding. District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).4
Even when a party does not actually raise the federal claims in
the state court proceeding, “Rooker-Feldman forecloses lower
federal court jurisdiction over claims that are 'inextricably
intertwined' with the claims adjudicated in state court.”
Sheehan v. Marr, 207 F.3d 35, 40 (1st Cir. 2000). A federal
claim is inextricably intertwined with the state court claims
"if the federal claim succeeds only to the extent that the state
court wrongly decided the issues before it." Hill v. Town of
4
For a more detailed discussion of the origin of the Rooker-
Feldman doctrine, see Wilson v. Shumway, 264 F.3d 120, 123-24
(1st Cir. 2001), and Hill v. Town of Conway, 193 F.3d 33, 34 n.1
(1st Cir. 1999).
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Conway, 193 F.3d 33, 39 (1st Cir. 1999). This court reviews de
novo a dismissal for lack of subject matter jurisdiction
pursuant to the Rooker-Feldman doctrine. Wilson v. Shumway, 264
F.3d 120, 123 (1st Cir. 2001).
In the present case, the U.S. District Court held that,
pursuant to the Rooker-Feldman doctrine, it had no subject
matter jurisdiction to hear the Alwyns' misrepresentation claim
in light of the Concord District Court's February 13, 1997
finding of neglect. The district court reasoned that, in order
for appellants' claim to succeed, the fact-finder would have to
reject the officers' testimony regarding the condition of the
Alwyns' home, which would directly contradict the determination
already made by the state tribunal. Consequently, the district
court dismissed the count.
Appellants maintain that there is no final state
judgment that would trigger the Rooker-Feldman doctrine in this
case. Citing State v. Anderson, 142 N.H. 918 (1998),
appellants argue that once they filed their appeal to the
Merrimack County Superior Court, the Concord District Court's
finding of neglect was vacated and rendered a legal nullity.
Anderson held that the state does not violate a guarantee
against double jeopardy when it honors a defendant's request for
a second de novo trial after the first proceeding has resulted
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in a conviction. See 142 N.H. at 922. Anderson does not
suggest, however, that the filing of an appeal renders all prior
proceedings a legal nullity, regardless of what transpires
thereafter. In child welfare proceedings, absent a specific
directive by the court, a dispositional order remains in effect
unless and until the superior court overrules the decision after
conducting a second de novo hearing. See N.H. R.S.A. § 169-C:28
(“An appeal under this chapter may be taken to the superior
court by the child or the child's authorized representative or
any party having an interest, including the state, or any person
subject to any administrative decision pursuant to this chapter,
within 30 days of the final dispositional order; but an appeal
shall not suspend the order or decision of the court unless the
court so orders.”). Therefore, even though the Alwyns would
have been entitled to a de novo rehearing on the issue of
neglect, the mere filing of their appeal did not vacate the
finding of the Concord District Court.
Furthermore, the Alwyns chose not to appeal the initial
finding of neglect in exchange for the termination of state
supervision, which, as they conceded at oral argument, makes
this case indistinguishable from a nonsuit. The New Hampshire
Supreme Court has explicitly held that "the effect of a nonsuit
taken after an appeal is to let the judgment of the court below
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'stand as if no appeal had been taken.'" Appeal of Nolan, 134
N.H. 723, 730 (1991) (quoting Simpson v. Gafney, 66 N.H. 477,
477 (1891)). Consequently, the finding of neglect qualifies as
a final judgment of a state court, from which no appeal can be
heard in federal district court under the Rooker-Feldman
doctrine.5 Accordingly, this count of the Alwyns' complaint was
properly dismissed.6
III.
The Alwyns also appeal the decision of the district
court granting summary judgment for the defendants on their
claim that the officers violated their Fourth and Fourteenth
Amendment rights by conducting a warrantless search of their
apartment. Summary judgment is appropriate where there are no
issues of material fact in dispute and “the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). This Court reviews a grant of summary judgment de novo,
examining the record in the light most favorable to the non-
5
Appellants have conceded that the Rooker-Feldman doctrine
applies and dismissal was required if the Concord District
Court's finding of neglect was, in fact, a final state court
judgment.
6
In light of the disposition above, we need not address any
other obstacles that appellants would need to overcome in order
to sustain a section 1983 claim stemming from the officers'
alleged misrepresentations. See, e.g., Anderson v. Creighton,
483 U.S. 635 (1987) (qualified immunity); Briscoe v. LaHue, 460
U.S. 325 (1983) (absolute immunity).
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moving party. Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d
866, 869 (1st Cir. 1998).
A search conducted without a warrant is presumptively
unreasonable and violates the Fourth Amendment unless an
exception to the warrant requirement exists. Bilida v. McCleod,
211 F.3d 166, 171 (1st Cir. 2000). Valid consent overcomes this
presumption and renders the search constitutionally valid,
United States v. Perez-Montanez, 202 F.3d 434, 438 (1st Cir.
2000), but the search must not exceed the scope of the consent
given. United States v. Coraine, 198 F.3d 306, 310 (1st Cir.
1999). The appropriate inquiry for determining the scope of the
consent given asks, “what would the typical reasonable person
have understood by the exchange between the officer and the
suspect?” United States v. Turner, 169 F.3d 84, 87 (1st Cir.
1999).
In the affidavit filed in conjunction with their
opposition to the defendants' motion for summary judgment, the
appellants claim that Mr. Alwyn gave only the canine officer and
not Officer Duval permission to enter the home, and only for the
purpose of obtaining an article of clothing from the missing
children, so that the search dog could acquire the scent. 7
7The Alwyns have not argued that consent was given
involuntarily.
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However, at the state neglect hearing, Mr. Alwyn was explicitly
asked whether he told Officer Duval, “I don't care, go in the
apartment,” to which he responded “Yes, I did say that.” In
granting summary judgment, the district court relied upon Torres
v. E.I. Dupont De Nemours & Co., 219 F.3d 13 (1st Cir. 2000),
where this Court held that “[w]hen an interested witness has
given clear answers to unambiguous questions, he cannot create
a conflict and resist summary judgment with an affidavit that is
clearly contradictory, but does not give a satisfactory answer
of why the testimony is changed.” Id. at 20 (quoting Colantuoni
v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.
1994)).
The appellants have offered no adequate explanation as
to why the admission made by Mr. Alwyn during the state
adjudicatory proceedings should now be disregarded or called
into question.8 The transcript from the state adjudicatory
proceeding indicates that the officers asked the Alwyns multiple
8
The record belies the Alwyns' contention that they could
not adequately explain the inconsistency because they were
precluded by New Hampshire state law, see N.H. R.S.A. § 168-
C:25, from making reference to the state court neglect
proceedings, which were under seal. The state court record had
been released to the parties, pursuant to an order by the U.S.
District Court, prior to the district court's ruling. The
Alwyns had the ability to supplement their opposition to the
officers' motion for summary judgment with whatever information
from the state court proceedings that they believed would have
been helpful, but failed to do so.
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times what they were hiding and why they would not let the
police conduct a search of the apartment for the missing
children. The district court's determination that a reasonable
person would have understood Michael Alwyn's statement, “I don't
care, go in the apartment,” as his relenting to the repeated
request of the police officers to enter the home to search for
the children was appropriate. Accordingly, the district court
properly granted the officers' motion for summary judgment.
IV.
Having found no error in the proceedings below, the
decision of the district court is hereby affirmed.
Affirmed.
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