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Hunter v. South Dakota Dept. of Social Services

United States District Court, D. South Dakota, Central Division

March 25, 2019

KIRSTEN HUNTER, AS GUARDIAN AD LITEM OF HER MINOR CHILD, A.Q., AND ON HER OWN BEHALF, Plaintiff,
v.
SOUTH DAKOTA DEPT. OF SOCIAL SERVICES, LYNN VALENTI, IN HER PERSONAL AND OFFICIAL CAPACITY; VIRGENA WEISELER, IN HER PERSONAL AND OFFICIAL CAPACITY; MATT OPBROECK, IN HIS PERSONAL AND OFFICIAL CAPACITY; KATIE ROCHELLE, IN HER PERSONAL AND OFFICIAL CAPACITY; TERESA CASS, IN HER PERSONAL AND OFFICIAL CAPACITY; DOE DEFENDANTS 1-4, AVERA ST. MARY'S HOSPITAL, Defendants.

          OPINION AND ORDER GRANTING DSS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AVERA DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         Plaintiff Kristen Hunter, [1] individually and as guardian ad litem for her minor son A.Q., filed this action under 42 U.S.C. §§ 1983 and 1985 alleging that the Defendants-the South Dakota Department of Social Services, Lynne Valenti, Virgena Wieseler, and Matt Opbroek (collectively DSS Defendants) and Avera St. Mary's Hospital, Teresa Cass, Katie Rochelle, and Doe Defendants 1-4 (collectively Avera Defendants)-violated her and her son's rights under the Fourth Amendment, Fifth Amendment, and Due Process Clause of the Fourteenth Amendment. Doc. 12 at ¶ 1. The DSS Defendants have filed a motion for summary judgment based upon the merits and on qualified immunity. Doc. 25. The Avera Defendants have filed a motion for summary judgment based upon the claim that they are not state actors. Doc. 29. This Court held oral argument on the motions on February 20, 2019. Doc. 66. For the reasons explained below, this Court grants DSS Defendants' motion for summary judgment and grants in part and denies in part Avera Defendants' motion for summary judgment.

         I. Summary Judgment Standard

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56(a) places the burden initially on the moving party to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Com, v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party has met that burden, the nonmoving party must establish that a material fact is genuinely disputed either by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence ... of a genuine dispute." Fed.R.Civ.P. 56(c)(1)(A), (B); Gacek v. Owens & Minor Distribution. Inc., 666 F.3d 1142, 1145-46 (8th Cir. 2012); see also Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (stating that nonmovant may not merely rely on allegations or denials). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Gacek, 666 F.3d at 1145. In ruling on a motion for summary judgment, the facts and inferences fairly drawn from those facts are "viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

         II. Fact Not Subject to Genuine Dispute[2]

         During February 2017, Hunter, her three-year-old son, A.Q., her five-year-old daughter, and her boyfriend, Jeffry Stanley (Stanley), lived together in Pierre, South Dakota. Doc, 27 at ¶ 11; Doc. 42 at ¶ 11, Doc. 31 at ¶¶ 1-2; Doc. 39 at ¶¶ 1-2. Stanley was on state probation and, as part of conditions of probation, he was required to submit to urinalysis tests. Doc. 27 at ¶ 11; Doc. 42 at ¶ 11; Doc. 31 at ¶ 4; Doc. 39 at ¶ 4. Stanley failed to show up to a meeting with his probation officer Mina Bonhorst (Bonhorst) to provide a urine sample, so on February 22, 2017, Bonhorst went to Stanley's home. Doc. 31 at ¶ 4; Doc. 39 at ¶ 4. Stanley answered the door and admitted to having smoked methamphetamine and marijuana with Hunter the prior morning. Doc. 31 at ¶ 5; Doc. 39 at ¶ 5. Stanley stated that Hunter was not feeling well after using. Doc. 31 at ¶ 6; Doc. 39 at ¶ 6. When law enforcement arrived at Stanley's home, Hunter appeared disheveled and would not make eye contact. Doc. 31 at ¶ 7; Doc. 39 at ¶ 7. As a result of law enforcement's observations and Stanley's admissions, law enforcement suspected Hunter of being under the influence of methamphetamine "or something else during that time." Doc. 31 at ¶ 8; Doc. 39 at ¶ 8. Later that day, Stanley provided a urinalysis that tested positive for marijuana and was arrested. Doc. 27 at ¶ 11; Doc. 42 at ¶ 11. Hunter learned that Stanley was going to be placed in jail for a probation violation. Doc. 31 at ¶ 9; Doc. 39 at ¶ 9; Doc. 28-2 at 3.

         That same day, based on comments by Stanley, Bonhorst made a report to Child Protective Services (CPS), a division of the South Dakota Department of Social Services (DSS), of possible neglect concerning Hunter's two children. Doc 27 at¶ 12; Doc 42 at ¶ 12; Doc 28-1 at 1. Family service specialist Mat Opbroek (Opbroek) was assigned to investigate Bonhorst's report. Doc. 27 at ¶ 13; Doc. 42 at ¶ 13; Doc. 31 at ¶ 3; Doc. 39 at ¶ 3. At approximately 4:30 p.m., Opbroek and a CPS supervisor Iyvonne Jewett met with Pierre police officers to perform a welfare check at Hunter's residence. Doc. 27 at ¶ 14; Doc. 42 at ¶ 14; Doc. 31 at ¶ 10; Doc. 39 at ¶ 10. During the welfare check, Hunter admitted that she had used drugs while her children were present in the home but said she did not use drugs while in the same room as the children.[3] Doc. 27 at ¶ 15; Doc. 42 at ¶ 15. Hunter admitted to using memamphetarnine four days before the welfare check and showed law enforcement where she injected methamphetamine into her arm. Doc. 27 at ¶ 16; Doc. 42 at ¶ 16. Hunter voluntarily provided a urine sample which field tested positive for methamphetamine and marijuana.[4] Doc. 27 at ¶ 17; Doc. 42 at ¶ 17; Doc. 31 at ¶ 11; Doc. 39 at ¶ 11.

         While at Hunter's residence, Opbroek observed drug paraphernalia where the children could get to it, and law enforcement informed Opbroek that there were drugs in the house. Doc. 27 at ¶ 18; Doc. 42 at ¶ 18; Doc. 31 at ¶ 19; Doc. 39 at ¶ 19. Opbroek determined that Hunter was still under the influence of drugs and thus unable to care for her children by herself, which constituted a present danger to the children. Doc. 27 at ¶ 19; Doc. 42 at ¶ 19; Doc. 31 at ¶ 13; Doc. 39 at ¶ 13. Opbroek also noted the presence of a knife impaled in the door frame when he first walked into Hunter's residence, which gave him further concerns for the children's safety. Doc 31 at ¶ 20; Doc. 39 at ¶ 20. Opbroek did not believe that the potential danger from exposure to methamphetamine was sufficient to have the children screened the night of February 22, 2017. Doc. 27 at ¶ 21; Doc 42 at ¶ 21. Hunter and Opbroek agreed to a present danger plan involving a neighbor named Margaret Rogers (Rogers). Doc. 27 at ¶ 20; Doc 42 at ¶ 20. Rogers agreed to help monitor Hunter thereafter.[5] Doc. 27 at ¶ 20; Doc. 42 at ¶ 20.

         On February 23, 2017, Opbroek ordered Hunter to get her children drug tested, and if she refused, Hunter "couldn't keep them." Doc. 39 at ¶ 15.[6] Opbroek's expressed rationale for the drug screen was his concern that Hunter's children might have been exposed to drugs at some level, including possible ingestion. Doc 27 at ¶ 23; Doc 42 at ¶ 23. Opbroek believed that the children could have been exposed to the drugs due to their ability to access to areas where drugs were kept. Doc. 31 at ¶ 17; Doc. 39 at ¶ 17. Depending on the situation, DSS wants to know if children are in danger of actual exposure to drugs and whether their parents' drug use is directly affecting the children. Doc. 31 at ¶ 16; Doc 39 at ¶ 16.

         Hunter and Opbroek discussed having the drug screening performed at the Avera Clinic where Hunter had previously obtained healthcare. Doc. 27 at ¶ 26; Doc 42 at ¶ 26. Hunter testified that she did not know of any other option besides having the children drug tested at the Avera Clinic[7] Doc. 42 at ¶ 25; Doc. 43-3 at 2; Doc 31 at ¶ 24; Doc 39 at ¶ 24. Opbroek told Hunter that he assumed the drug screens would involve urinalysis, but Opbroek did not discuss with Hunter how the medical provider would collect the samples used for the drug screens. Doc 27 at ¶¶ 24, 32; Doc 42 at ¶¶ 24, 32.

         On February 24, 2017, Hunter contacted Opbroek to inform him that she wanted to go to Huron for Stanley's court hearing. Doc. 27 at ¶ 28; Doc. 42 at ¶ 28; Doc. 31 at ¶ 30; Doc 39 at ¶ 30. Opbroek told Hunter to have the drug screens for the children completed before she left Pierre. Doc 27 at ¶ 28; Doc. 42 at ¶ 28. Opbroek wanted the drug screening completed before Hunter traveled to Huron to help him determine if there were any medical or health threats to Hunter's children, including exposure to drugs. Doc. 27 at ¶ 29; Doc. 42 at ¶ 29; Doc 31 at ¶ 31; Doc 39 at ¶ 31. Hunter only agreed to have the drug screenings done because Opbroek said she would not be able to keep her children unless she had her children submit to urinalysis.[8] Doc 42 at ¶ 28; Doc 32-1 at 2.

         Hunter called the Avera Clinic and tried to make the appointments for urinalysis for her two children.[9] Doc 33-1 at 6. Hunter told the lady who answered the phone at the clinic that she was requesting a urinalysis because CPS wanted one done. Doc. 33-1 at 6. The lady at the Avera Clinic "didn't have any knowledge of it." Doc. 33-1 at 6. Hunter called Opbroek and recounted her call to the Avera Clinic. Doc. 33-1 at 6. Opbroek called the Avera Clinic, [10] and then called Hunter back and told her that he made the appointment and dropped off some papers at the clinic. Doc. 33-1 at 6. The papers Opbroek dropped off were some blank versions of DSS's methamphetamine medical charting form. Doc. 27 at ¶ 31; Doc. 42 at ¶ 31; Doc. 31 at ¶ 32; Doc. 39 at ¶ 32. Opbroek did not give any other documents to Avera and did not fill out any part of the form. Doc. 27 at ¶ 31; Doc. 42 at ¶ 31. Opbroek verbally told someone[11]at the Avera Clinic that CPS was requesting "a toxicology or a drug screening" of Hunter's children because they might have been exposed to drugs. Doc. 27 at ¶ 32; Doc. 42 at ¶ 32. Opbroek requested that the results be sent to DSS via fax. Doc. 39 at ¶ 75; Doc. 33-5 at 3. Opbroek had no further contact with anyone from Avera Clinic or with Hunter before the drug screening was performed. Doc. 27 at ¶ 33; Doc. 42 at ¶ 33.

         Around 11:00 a.m. on February 24, Katie Rochelle (Rochelle), a registered nurse in Avera Clinic's pediatric department, called Teresa Cass (Cass), a pediatric nurse practitioner, about drug screening Hunter's children. Doc. 31 at ¶ 36; Doc. 39 at ¶ 36; Doc. 32-5 at 5, 8. Rochelle informed Cass that Opbroek had told Hunter to get her children drug screened. Doc. 39 at ¶ 37; Doc. 33-6 at 2. Cass then ordered the drug screen of Hunter's children. Doc. 31 at ¶ 36; Doc. 39 at ¶ 36. Cass did not speak to Opbroek or anyone at DSS about Hunter's situation. Doc. 31 at ¶ 37; Doc. 39 at ¶ 37. Cass was not present at the clinic at the time, Doc. 39 at ¶ 36; Doc. 33-6 at 2, 6, and indeed was not scheduled to work that day and was out of town. Doc. 32-6 at 2. There were two other pediatricians working that day, but they did not order the tests. Doc. 40-5 at 7.

         On the Avera St. Mary's campus in Pierre, South Dakota, there are different departments with different buildings. Doc. 40-5 at 3. The Child Assessment Center (CAC) is one department located in a south building on the campus. Doc. 40-5 at 3. The CAC is a private agency funded through grants, the National Children's Alliance, and other organizations. Doc. 40-5 at 5. The CAC has an interagency agreement with DSS. Doc. 40-5 at 6. Every month, the CAC has a multi-disciplinary meeting involving the Department of Criminal Investigation, the Federal Bureau of Investigation, the state's attorney's office, and a patient advocate. Doc 40-5 at 6. Cass works both for the CAC where she provides medical screening of children about 50 to 100 hours per year and for Avera Clinic where she is a full time pediatric nurse practitioner. Doc 32-6 at 3; Doc 40-5 at 6. Doc 40-4 at 2.

         On the afternoon of February 24, 2017, Hunter went to Avera Clinic with her children in order to have both of them drug screened. Doc. 31 at ¶ 35; Doc. 39 at ¶ 35; Doc. 31 at ¶ 38; Doc. 39 at ¶ 38. According to Avera's Informed Consent Policy, "[a] written informed consent must be obtained prior to any medical treatment being performed." Doc. 40-7 at 2. There is no evidence that Hunter signed an informed consent document that day. Doc. 42 at ¶ T. Hunter took her children to the lab area of Avera Clinic. Doc. 27 at ¶ 34; Doc. 42 at ¶ 34; Doc. 31 at ¶ 38; Doc. 39 at ¶ 38. Hunter, her children, and a lab tech went into a private bathroom. Doc. 27 at ¶ 35; Doc. 42 at ¶ 35. Hunter's daughter provided a urine sample by urinating into a specimen container shaped like a hat.[12] Doc. 27 at ¶ 35; Doc. 42 at ¶ 35; Doc. 31 at ¶ 38; Doc. 39 at ¶ 38. Hunter's son, A.Q., was not potty-trained. Doc. 27 at ¶ 36; Doc. 42 at ¶ 36. A laboratory technician tried to have A.Q. urinate into a specimen container shaped like a hat, but A.Q. would not urinate. Doc. 27 at ¶ 36; Doc. 42 at ¶ 36; Doc. 31 at ¶ 38; Doc. 39 at ¶ 38.

         After A.Q. could not voluntarily produce a urine sample, the laboratory technician called Rochelle, and Rochelle took Hunter and her children to the pediatrics department to perform a catheterization on A.Q.[13] Doc. 27 at ¶ 38; Doc. 42 at ¶ 38; Doc. 31 at ¶ 53; Doc. 39 at ¶ 53; Doc. 28-4 at 3-4. Hunter felt like they were "rushed over across the room to the other." Doc. 29 at ¶ 46; Doc. 40-2 at 3. Hunter helped hold down A.Q. while Rochelle performed the catheterization procedure. Doc. 27 at ¶¶ 38-39; Doc. 42 at ¶¶ 38-39; Doc. 31 at ¶ 55; Doc. 39 at ¶ 55. The procedure took a few minutes.[14] Doc. 31 at ¶ 57; Doc. 39 at ¶ 57. Upon completion of both children's drug screenings, Hunter stopped by the DSS office to inform Opbroek that the children's drug screens had been completed and to complete paperwork related to setting up a present danger plan involving Hunter's mother. Doc. 31 at ¶ 58; Doc. 39 at ¶ 58.

         DSS has no official policy requiring catheterization to obtain a urine sample from a child. Doc. 27 at ¶ 52; Doc. 42 at ¶ 52. Opbroek did not know a catheter had been used to obtain a urine sample from A.Q. until Hunter told him after the catheterization had already occurred. Doc. 27 at ¶ 49; Doc. 42 at ¶ 49; Doc. 31 at ¶ 60; Doc. 39 at ¶ 60. Opbroek testified that the situation involving Hunter and her children was the only case Opbroek had ever been involved with where Avera Clinic conducted and processed the drug screening of children. Doc. 31 at ¶ 62; Doc. 39 at ¶ 62. DSS considers how urine samples are obtained to be a decision best determined by the medical provider. Doc. 27 at ¶ 52; Doc. 42 at ¶ 52. CPS is not aware of any other child being catheterized as a result of a drug screening or health assessment requested by CPS. Doc. 27 at ¶ 51; Doc. 42 at ¶5l.

         Rochelle testified that the catheterization was a medical procedure. Doc. 27 at ¶ 40; Doc. 42 at ¶ 40. Rochelle had catheterized many children before the procedure on A.Q. Doc. 27 at ¶ 39; Doc. 42 at ¶ 39; Doc. 31 at ¶ 49; Doc. 39 at ¶ 49. A.Q.'s urine was subject to a drug screen for an array of intoxicating substances. Doc. 27 at ¶ 45; Doc. 42 at ¶ 45. Rochelle was not aware of a way to limit the drug screen to one substance such as methamphetamine. Doc. 27 at ¶ 45; Doc. 42 at ¶ 45.

         Rochelle understood Hunter to be the person who could make medical decisions for A.Q. Doc. 27 at ¶ 41; Doc. 42 at ¶ 41. Opbroek was not consulted about how to collect urine samples from Hunter's children at Avera Clinic and did not direct anyone to have A.Q. catheterized. Doc. 27 at ¶ 44; Doc. 42 at ¶ 44. Rochelle testified that she made the decision to obtain the urine sample by catheterization and did so because Hunter wanted to use that method of obtaining the sample.[15]Doc. 27 at ¶ 41; Doc. 42 at ¶ 41. However, Hunter testified that she was given no other option to avoid losing her children than to get them drug tested at Avera Clinic and that once A.Q. could not produce voluntarily a urine sample, catheterization was presented as the lone option. Doc. 42 at ¶ 25; Doc. 43-3 at 2; Doc. 31 at ¶ 24; Doc. 39 at ¶ 24.

         On February 27, 2017, Cass learned that the results from the screening were in and called Opbroek (and not Hunter) to inform CPS that the drug screens for both children were negative concerning any intoxicating substances. Doc. 27 at ¶ 46; Doc. 42 at ¶ 46; Doc 31 at ¶ 59; Doc. 39 at ¶ 59; Doc. 33-6 at 7. On March 1, 2017, Cass faxed to Opbroek (and not Hunter) a copy of the medical toxicology results. Doc. 39 at ¶ 59; Doc. 33-6 at 8. Avera did not use the DSS methamphetamine medical charting form Opbroek dropped off and reported the results to CPS on Avera's own form. Doc. 27 at ¶ 46; Doc. 42 at ¶ 46; Doc. 31 at ¶ 33; Doc. 39 at ¶ 33. Hunter agreed to release her children's medical records to CPS. Doc. 27 at ¶ 27; Doc. 42 at ¶ 27. Hunter signed the medical release form authorizing DSS to access A.Q.'s medical records on April 6, 2017. Doc. 42 at ¶ CC; Doc. 43-11. Opbroek used the results as part of his initial family assessment. Doc. 27 at ¶ 47; Doc. 42 at ¶ 47. Opbroek did not provide the drug screen results to anyone else. Doc. 27 at ¶ 47; Doc. 42 at ¶ 47. Hunter stated that she did not learn the results of the drug screening until September of 2017. Doc. 28-2 at 27.

         Plaintiffs complaint contains four separate counts alleging violations of the Fourth Amendment, Fifth Amendment, and Due Process Clause of the Fourteenth Amendment. Doc. 13 at ¶ 1. Hunter seeks an order permanently enjoining the Defendants from catheterizing children for any non-medical purpose, compensatory and general damages, as well as attorney fees and costs. Doc. 12 at ¶¶ 56-58. DSS Defendants and Avera Defendants have moved for summary judgment on all claims. Docs. 25, 29.

         III. Analysis

         A. Avera Defendants as State Actors

         Avera Defendants initially argue for summary judgment by asserting that they are not state actors and thus not subject to a § 1983 claim because the catheterization of A.Q. was for a medical purpose. Doc. 29 at 1. "Section 1983 imposes liability on anyone who, under color of state law, deprives a person 'of any rights, privileges, or immunities secured by the Constitution and laws.'" Blessing v. Freestone. 520 U.S. 329, 340 (1997) (citation omitted). "Private actors may incur section 1983 liability only if they are willing participants in a joint action with public servants acting under color of state law." Johnson v. Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir. 1999) see Dennis v. Sparks, 449 U.S. 24, 27 (1980) (stating that a private actor is considered a state actor if the private actor is a "willful participant in joint action with the State or its agents"). A person may fairly be said to be a state actor if they "'acted together with or . . . obtained significant aid from state officials' in furtherance of the challenged action." Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). To establish liability under § 1983, a plaintiff "must establish, at the very least, an agreement or meeting of the minds between the private and state actors, and a corresponding violation of the plaintiffs' rights under the Constitution or laws of the United States." Johnson, 172 F.3d at 536; see West v. Atkins, 487 U.S. 42, 49 (1988). State action exists "only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Pariser v. Christian Health Care Sys., Inc. 816 F.2d 1248, 1252 (8th Cir. 1987) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Parker v. Boyer, 93 F.3d 445, 447-48 (8th Cir. 1996) (quoting West. 487 U.S. at 49). Whether a defendant is a state actor is often a mixed question of law and fact. See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276 (11th Cir. 2003) (citing Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980) ("Although in certain cases, it is possible to determine the question whether a person acted under color of state law as a matter of law, there may remain in some instances 'unanswered questions of fact regarding the proper characterization of the actions' for the jury to decide.")).

         Hunter can show state action when a medical provider acts as an "investigative arm of the State." Thomas v. Nationwide Children's Hosp., 882 F.3d 608, 616 (6th Cir. 2018). This potential liability for acting as "an investigative arm of the state" must be based on the medical provider's own acts or failure to act and not based merely on respondeat superior. See Smith v. Insley's Inc. 499 F.3d 875, 880 (8th Cir. 2007) ("A corporation acting under color of state law will be held liable under section 1983 for unconstitutional policies, but will not be liable on a respondeat superior theory."). "A private corporation cannot be held liable under § 1983 for its employees' deprivation of another's rights." Id. However, a private corporation may be liable under § 1983 if the injury alleged is the result of the corporation's policy or practice or if the corporation knew of its employees' misconduct and failed to take steps to end the misconduct. Id., For example, in Kia P. v. Mcmtyre, 235 F.3d 749 (2d Cir. 2000), the Second Circuit held that a hospital, owned and administered by a private corporation, was a state actor when it was acting as a "reporting and enforcement machinery for ... a government agency charged with detection and prevention of child abuse and neglect." Id. at 756. In Kia P., on March 27, 1993, Kia went into labor and disclosed to the hospital that she had used crack cocaine in the past, was HIV-positive, and had a history of tuberculosis and syphilis. Id. at 752. When Kia's daughter was born later that day, the hospital was concerned about the absence of adequate prenatal care and tested the newborn's urine for drugs, which preliminarily tested positive for methadone. Id. The hospital, as required by statute, reported to the New York City Child Welfare Administration (CWA) that the newborn tested positive for methadone. Id. at 756. Kia was discharged from the hospital on March 29, 1993, but the hospital refused to discharge Kia's newborn daughter for two reasons. Id. at 752. First, the hospital believed the newborn had drugs in her system because of the positive test result and wanted to monitor her health for withdrawal. Id. Second, the hospital held the newborn in accordance with its own policy and CWA's "policies requiring that any child under investigation by CWA not be released from the [h]ospital without CWA permission." Id. at 752-53. After the initial test came back positive, the hospital sent the newborn's urine sample to an outside laboratory for confirmatory testing. Id. at 753. On April 6 or 7, the hospital learned that the confirmation test found no drugs in the newborn's urine. Id.. Subsequently, the hospital cleared the baby for discharge. Id. The Court held that all of these actions until April 6 or 7 were "taken by the [h]ospital in its capacity as a private provider of medical care and thus do not subject the [h]ospital to liability under § 1983." Id. at 756. However, the hospital did not release the newborn until April 8 solely because CWA did not give the hospital permission to release the baby until April 8 because CWA had concerns about child abuse and child welfare. Id., at 757. The Second Circuit reasoned that holding the newborn after she was medically cleared on April 6 or 7 until April 8 subjected the hospital to liability under § 1983 as state actors during that time because the baby was there "solely pending action by the CWA." Id.

         Here, when viewing the evidence in the light most favorable to Hunter, Avera Clinic is not a state actor. Plaintiff argues that Avera's CAC policies and contracts apply to the Avera Clinic and constitute unconstitutional practice and procedure. This Court need not decided whether CAC's policies and practices are unconstitutional. Any policies and interagency contracts CAC has do not extend to Avera Clinic, nor is it Avera Clinic's practice to apply these policies. Unlike the hospital in Kia P. whose policy directed that children not be released under certain circumstances without the permission of CWA, Avera Clinic had no such policies related to catheterization of children and DSS. Additionally, there is no evidence Avera Clinic knew of any alleged employee misconduct and failed to correct the misconduct concerning catheterization of children for DSS. No. evidence has been presented that Avera Clinic had a policy or practice to collect evidence for a state investigation by forcefully catheterizing children without parental consent and without judicial approval. Summary judgment is granted for Avera Clinic on all claims because Avera Clinic is not a state actor and cannot be held to be a state actor based merely on respondeat superior principles.

         Hunter also alleges that Doe Defendants 1-4 who participated in the catheterization of A.Q. and were present at the hospital are state actors. Doc. 12 at ¶ 24. No. evidence has been presented that Doe Defendants 1-4 knew anything about the DSS investigation or knew the purpose of the urinalysis. There was no "meeting of the minds" between Doe Defendants 1-4 and DSS to collect evidence for the state, so Doe Defendants 1-4 are not state actors and any claims against Doe Defendants 1-4 are dismissed. See Doe v. Tsai, No. CIV.08-1198 (DWF/AJB), 2010 WL 2605970, at *13 (D. Minn. June 22, 2010) (holding that no reasonable juror could conclude that three nurses violated Plaintiffs' constitutional rights when they had limited involvement in the physical examinations of the children), aff'd sub nom. Doe ex rel. Thomas v. Tsai, 648 F.3d 584 (8th Cir. 2011).

         However, the same is not true for defendants Rochelle and Cass. Medical defendants can become "state actors when the rationale behind their [treatment of a child] ceased to be medical necessity and became solely the investigation of child abuse." Estiverne v. Esernio-Jenssen, 581 F.Supp.2d 335, 345-46 (E.D.N.Y. 2008). Rochelle was not acting as a medical provider for Hunter or A.Q. when retrieving a urine sample from A.Q. Hunter testified that she tried to schedule the urinalysis but was not able to without DSS's help. If the urinalysis was for a medical purpose, Hunter should have been able to schedule the appointment for her children to have the testing preformed. Indeed, Opbroek called Avera Clinic to successfully schedule the appointment, advised Hunter of the appointment being made, and dropped off the DSS memamphetarnine medical charting form at the clinic. Although this methamphetamine medical charting form was never used by Rochelle, Rochelle discussed the purpose of the appointment with Opbroek and carried through with Opbroek's request to obtain urine samples, albeit using a catheter on A.Q. without Opbroek's knowledge or direction.

         Rochelle argues that the catheterization was for a medical purpose and testified that the catheterization was a medical procedure. However, Rochelle evidently did not perform the test because A.Q. exhibited medical signs of drug ingestion. Rochelle did not check vitals or conduct any other evaluation of A.Q. See Doc. 40-4 at 9. Rochelle followed the directive from Opbroek and tested A.Q.'s urine. Simply because catheterization is a medical procedure does not mean it was done for medical reasons. See Tenenbaum v. Williams,193 F.3d 581, 599 (2d Cir. 1999) ("During the examination of [the child] 'to rule out [the possibility of] sexual abuse,' injuries might have been found, and if so we would surely expect them to have been treated. But that possibility did not turn an investigative examination into one that is ...


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