* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 21 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

LISA RANSOM, an individual and natural mother and next friend for AMBER RANSOM, a minor child,

Plaintiffs-Appellants,

v. WAGONER COUNTY BOARD OF COUNTY COMMISSIONERS, a political subdivision of the State of Oklahoma; LANCE CHISUM, individually and as an officer and employee of Wagoner County, State of Oklahoma; ELMER SHEPHERD, an officer and employee of Wagoner County, State of Oklahoma; WAGONER COUNTY, State of Oklahoma; RUDY BRIGGS, as an officer and employee of Wagoner County, Defendants-Appellees, BRIAN SCOTT GORDON, an Individual, Defendant. No. 99-5087 (D.C. No. 97-CV-718-E) (N.D. Okla.)

ORDER AND JUDGMENT ** (...continued)

generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiffs Lisa Ransom and her daughter Amber Ranso m filed this action under 42 U.S.C. § 1983 against defendants the Boardof County Commissioners of the County of Wagoner, State of Oklahoma (county ), Lance Chisum, a Wagoner County Sheriff’s Office deputy, Elmer She perd, the former Wagoner County Sheriff, and Rudy Briggs, the current Wagone r County Sheriff. Plaintiffs alleged that defendants violated their constitution al right to freedom of intimate association (familial relations) without due proces s of law. In addition, plaintiffs claimed intentional infliction of emotional distres s under Oklahoma law, and asserted additional claims against defendant Brian Scott Gordon for assault, battery, and false imprisonment. With the exceptio n of Mr. Gordon, defendants moved for summary judgment which the district courtgranted. Thereafter, the1 In his deposition, Deputy Chisum stated Mr. Gordon told him that

Ms. Ransom had denied him visitation of Amber and h e had removed Amber from Ms. Ransom’s vehicle and driven to the Sheriff’s Office. See Appellant’s App. at 210. Deputy Chisum testified that Ms. Rans om did not tell him that Mr. Gordon forced her off the road. See id. at 214-15. -3- district court granted plaintiffs’ motion for an or der pursuant to Fed. R. Civ. P. 54(b)--despite the remaining unresolved claims agai nst Mr. Gordon--and entered final judgment in favor of all defendants except Mr . Gordon. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affi rm the district court’s grant of summary judgment. Ms. Ransom asserts that on the night of December 2, 1995, she was on a rural Oklahoma highway when Mr. Gordon, Amber’s n atural father, forced Ms. Ransom’s vehicle off the highway with his truck , took then two-year old Amber from Ms. Ransom’s vehicle, and drove away with Amber. After the incident, Ms. Ransom went to the Wagoner County She riff’s Office (Sheriff’s Office) to file a report. Mr. Gordon was already t here, speaking to Deputy Lance Chisum. 1 According to Ms. Ransom, Deputy Chisum would not let her speak, did not run a criminal history check on Mr. Gordon, andcalled her a liar. Deputy Chisum ultimately left Amber in Mr. Gordon’s custody pursuant to the Sheriff’s Office policy and procedure at the time “that a dep uty, without some form of Court action or an order from the Court, could not take a child from one person and give it to another without evidence of physical abuse.” Appellant’s App.-4-

at 125. Amber remained in Mr. Gordon’s custody unt il January 18, 1996, when, per a state court order, she was returned to Ms. Ra nsom’s custody. Thereafter, plaintiffs initiated this action. On summary judgment, the district court found that: Deputy Chisum was protected by the doctrine of qualified immunity; De puty Chisum did not intentionally interfere with Ms. Ransom and Amber’s constitutional right of familial association; the Sheriff’s Office policy w as constitutional; and there was no basis for liability on the part of either the Sh eriffs or the county. Plaintiffs raise eight issues on appeal, arguing that: (1) De puty Chisum is not shielded by the doctrine of qualified immunity; (2) there is pr oof of intent by Deputy Chisum to interfere in the relationship between Ms. Ransom and Amber giving rise to a claim of intimate associational rights; (3) the W agoner County Sheriff’s Office policy is unconstitutional; (4) there is a failure to train on the part off the Sheriff’s Office; (5) there is a basis for liability on the part of the county; (6) genuine issues of fact exist pertaining to plai ntiffs’ claims against defendants; (7) the district court erred in granting summary ju dgment; and (8) the district court erred in failing to distinguish between a nat ural parent and one who has established parental rights. We review de novo the district court’s decision granting summary judgment and apply the same legal standards as the district court. See Bullington v. United-5-

Air Lines, Inc. , 186 F.3d 1301, 1313 (10th Cir. 1999). Summary ju dgment is appropriate on a record demonstrating that “there i s no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). As always, “we view the factual record and inferences therefrom in the light most favorable to the nonmoving party.” Bullington , 186 F.3d at 1313. Once the moving party meets its “initial burden to show that there is an absence of evidence to support the nonmoving party’s case,” Thomas v. IBM , 48 F.3d 478, 484 (10th Cir. 1995) (quotation omitted ), it is the nonmoving party’s burden to “identify specific facts that show the ex istence of a genuine issue of material fact.” Id. “The party opposing the motion must present suffi cient evidence in specific, factual form for a jury to re turn a verdict in that party’s favor.” Id. (quotation omitted). “The doctrine of qualified immunity provides that w hen government officials are performing discretionary functions, t hey will not be held liable for their conduct unless their actions violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Makin v. Colorado Dep’t of Corrections , 183 F.3d 1205, 1209 (10th Cir. 1999) (quotations omitted). Hence, “[i]n analyzing qualified immunity claims, we first ask if a plaintiff has asserted the violation of a constitut ional right at all, and then assess-6-

whether that right was clearly established at the t ime of a defendant’s actions.” Gehl Group v. Koby , 63 F.3d 1528, 1533 (10th Cir. 1995). It is the p laintiff’s heavy burden to establish both these components in order to defeat a qualified immunity claim. See Albright v. Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995). If there is no constitutional or statutory violatio n, the court need not inquire if the law was clearly established. See Gehl Group , 63 F.3d at 1533. Plaintiffs’ right to familial association derives f rom the Fourteenth Amendment’s liberty interest. See J.B. v. Washington County , 127 F.3d 919, 927 (10th Cir. 1997). At the time of this incident, itwas already “clearly established law that, except in extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures.” Malik v. Arapahoe County Dep’t of Social Servs. , 191 F.3d 1306, 1315 (10th Cir. 1999); see also Hollingsworth v. Hill , 110 F.3d 733, 739 (10th Cir. 1997) . We conclude that Deputy Chisum’s actions, as we ll as the policy pursuant to which he acted, are conso nant with, rather than violative of, these principles. Nevertheless, plaintiffs argue that, although Mr. G ordon is Amber’s biological father, he should not be protected by th ese constitutional principles because he did not undertake any parental responsib ilities. In the main, plaintiffs’ arguments on appeal hinge on the proposed distincti on between a “natural parent”-7-

and a “parent who has established parental rights.” Appellant’s Br. at 7. For this distinction, plaintiffs rely on Lehr v. Robertson , 463 U.S. 248 (1983), in which the Supreme Court considered whether a biological f ather who did not sign New York State’s putative father registry, and who did not undertake any parental responsibilities, should have been notified of his child’s pending adoption proceedings. The Court found no such obligation, s tating instead, “the mere existence of a biological link does not merit [the] equivalent constitutional protection” accorded to “an unwed father [who] demo nstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child.” Id. , at 261 (quotation omitted) (explaining when an unwed father acts as a father, such a demonstration garne rs “his interest in personal contact with his child [ ] substantial protection u nder the due process clause”). The district court here applied the appropriate ana lysis, finding no constitutional violation. In doing so, the distric t court relied on our decision in Hollingsworth , 110 F.3d 733, in which we set forth general princ iples applying to the doctrine of qualified immunity in the context of a claimed deprivation of familial association. The district court stated: Even assuming that plaintiff’s right to the care, c ustody and management of her child was violated, Hollingsworth does not support Plaintiffs’ assertion that Deputy Chisum sh ould have known that his conduct violated that right. In Hollingsworth , it is clearly established that the removal of a child from the cu stody of a parent without notice or a meaningful opportunity to be he ard violates the2 The district court noted earlier in its decision th at “neither side seriously

argues that there was any evidence to support [ ] afinding” that Amber’s safety was under immediate threat (one of the exceptions laid out in Hollingsworth ). Appellant’s App. at 385; see also Hollingsworth , 110 F.3d at 739. Plaintiffs take issue with this characterization. They contend that the district court failed to consider evidence they submitted in opposition to d efendants’ summary judgment motion showing that Amber’s safety was under immedi ate threat, based on Mr. Gordon’s actions in running Ms. Ransom off the roadand grabbing Amber out of Ms. Ransom’s vehicle, and based on Mr. Gordon’s pol ice record. While troubling, this evidence does not create triable is sues of material fact relating to the application of the qualified immunity doctrine to Deputy Chisum’s determination that Amber’s safety was not in danger . Even if the district court erred in finding no material issues of fact concern ing Deputy Chisum’s possible knowledge or suspicion of the allegedly assaultive manner in which Mr. Gordon took Amber from Ms. Ransom, this fact fails to establish the unconstitutionality of the Sheriff’s Office policy or that Deputy Chisu m’s failure to follow up on such suspicion was tied to the inadequate training alleged by plaintiffs. -8- constitutional rights of that parent. Deputy Chisu m did not remove Plaintiff’s child from her custody. Rather, DeputyChisum left the child in the custody of the natural parent with whi ch she came to the police station. Moreover, Deputy Chisum had to wei gh the interest of the admitted natural father of the child, who ha d her with him when he came to the station. Appellant’s App. at 385. Based on Mr. Gordon’s conceded parental status (Ms. Ransom told Deputy Chisum that Mr. Gordon was Amber’s father), Deputy Chisum’s decision--to leave Amber in Mr. Gordon’s care--was constitutiona lly reasonable. Nor have plaintiffs raised any material issues of fact that undermine this conclusion and, consequently, Deputy Chisum’s actions are shielded by the doctrine of qualified immunity. 2 Given this conclusion, there is no proof of inten t on Deputy Chisum’s-9-

part to deprive Amber and Ms. Ransom of their right s to familial relations.
See Trujillo v. Board of County Comm’rs , 768 F.2d 1186, 1190 (10th Cir. 1985) (imposing a state of mind requirement for an allegation of intent to interfere with familial relationship under 42 U.S.C. § 1983). Nor are we persuaded, based on the plaintiffs’ dist inction between a “natural parent” and a “parent who has undertaken parental responsibilities,” that the Sheriff’s Office policy was unconstitution al. Rather, we agree with the district court’s characterization of the policy--wh ich prevents officers from supplanting the role of the court to make custody d eterminations--as “designed to protect all parties.” Appellant’s App. at 387. Th e greater constitutional danger lies in taking a child away from a parent without p arental consent or court order. We have held that such governmental conduct is cons titutionally defensible only when a child’s safety is in danger. See J.B. , 127 F.3d at 925; Hollingsworth , 110 F.3d at 739. Placing the burden on the Sheriff’s Office to disentangle custody issues is not only untenable but may also b e constitutionally suspect. For this reason, the Sheriffs cannot be held liable on the basis of an unconstitutional policy. Plaintiffs, however, also seek to hold the Sheriffs liable for their purported failure to adequately train or supervise Deputy Chisum. Supervisors may be individually liable for the cons titutional violations of their subordinates “for failing to adopt or implement pol icy or training of subordinates-10-

to prevent deprivations of constitutional rights.” Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1241 (10th Cir. 1999) (citing Meade v. Grubbs , 841 F.2d 1512, 1528 (10th Cir. 1988)). However, be cause Deputy Chisum’s actions were not constitutionally excessive, there is no basis for a finding of liability under this alternate theory. See Hinton v. City of Elwood , 997 F.2d 774, 782 (10th Cir. 1993). For these same reasons, plai ntiffs’ § 1983 claims against the county, assuming such claims have been properly asserted, also fail. See Monell v. Department of Social Servs. , 436 U.S. 658, 691-92 (1978) (holding that municipal liability for § 1983 claims is limit ed to deprivation of federally protected rights caused by actions taken pursuant t o official municipal policy). Plaintiffs also allege on appeal that the district court erred in granting summary judgment to the county on their state law c laim of intentional infliction of emotional distress. We find plaintiffs’ argumen t is negated by the Oklahoma Governmental Tort Claims Act, which shields the State and its political subdivisions from liability for losses arising from“the failure to provide, or the method of providing, police, law enforcement or fir e protection.” Okla. Stat. Ann. tit. 51, § 155(6); see also Myers v. Oklahoma County Bd. of County
Comm’rs , 151 F.3d 1313, 1320-21 (10th Cir. 1998); Schmidt v. Grady County , 943 P.2d 595, 597-98 (Okla. 1997).-11-

Accordingly, for the foregoing reasons, we affirm.

Entered for the Court

Wade Brorby Circuit Judge