United States District Court, D. South Dakota, Central Division
KIRSTEN HUNTER, AS GUARDIAN AD LITEM OF HER MINOR CHILD, A.Q., AND ON HER OWN BEHALF, Plaintiff,
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.
Kristen Hunter,  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 Standard
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)).
Fact Not Subject to Genuine Dispute
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.
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. 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. Doc. 27 at ¶ 17; Doc. 42 at ¶
17; Doc. 31 at ¶ 11; Doc. 39 at ¶ 11.
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. Doc. 27 at ¶ 20; Doc. 42 at
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. 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.
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 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.
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. Doc 42 at ¶ 28; Doc 32-1 at
called the Avera Clinic and tried to make the appointments
for urinalysis for her two children. 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,  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
someoneat 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
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.
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.
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. 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 ¶
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. 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. 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.
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.
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.
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.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.
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.
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.
Avera Defendants as State Actors
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
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.
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.
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).
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
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 ...