United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1862

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Sha'va Porter, mother of decedent; *

Herbert Murray, father of decedent; *

*

Plaintiffs-Appellants, *

*

Constance Porter, *

*

Plaintiff, *

*

v. *

* Appeal from the United States

Sharee L. Williams; * District Court for the

* Western District of Missouri.

Defendant, *

*

Julie Coffman; Augustin Torres; *

*

Defendants-Appellees, *

*

Tricia Rothweiler; John Doe, Unknown *

personnel of the Missouri Division of *

Family Services; James T. Clayton; *

Tina Clayton; Dept. of Social Services, *

Children's Division, *

*

Defendants. *

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Submitted: November 14, 2005

Filed: February 6, 2006

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Before SMITH, HEANEY, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Constance Porter, a two-and-a-half year old, died from abuse after being placed

in a foster home by the Missouri Division of Family Services. The district court

granted summary judgment to Julie Coffman, a DFS social worker, and Augustin

Torres, her immediate supervisor, based on official immunity. Having jurisdiction

under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

On December 18, 2000, Sha'va L. Porter voluntarily placed her two daughters,

Constance and Shebria, in the temporary care of DFS. With the approval of

supervisor Augustin Torres, DFS immediately placed the children with James Thomas

and Tina Clayton, licensed foster parents. Julie N. Coffman was then assigned as the

social service worker for the case.

During a visit in early January 2001, Coffman noticed Constance had a "tiny

scratch" on her left cheek. Tina Clayton explained she had scratched herself. After

examining the child, Coffman noticed no other injuries and reported "[n]o concerns

for the safety and welfare of Constance." Sometime later, Tina Clayton telephoned

Coffman about bruises around Constance's eyes, saying the child hit her nose on a

coffee table while playing. On January 11, Constance was treated for a contusion on

her forehead. The medical report notes "reassurance given that she probably just hit

her head during sleeping." The report also states that Constance was "very alert,"

"cheerful," "very positive," and "very well adjusted."
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On February 13, Constance died from a subarachnoid hemotoma and bilateral

retinal hemorrhage caused by "non accidental trauma." A subsequent medical

examination also revealed a bruise with abrasions in the center of her back.

Tina Clayton pled guilty to first degree involuntary manslaughter. Porter and

Herbert Murray, Constance's father, then sued for wrongful death and civil rights

violations. On the wrongful death claim, the district court granted summary judgment

to Coffman and Torres based on official immunity. 

II.

First, this court must address its jurisdiction. Generally, partial summary

judgments are not final and not immediately appealable. See Royal Ins. Co. of

Am. v. Kirksville Coll. of Osteopathic Med., Inc., 304 F.3d 804, 808 (8th Cir.

2002). However, partial summary judgment is immediately appealable if the

district court issues it under Federal Rule of Civil Procedure 54(b), or certifies it as

an interlocutory appeal under 28 U.S.C. § 1292(b). See Reinholdson v.

Minnesota, 346 F.3d 847, 859 (8th Cir. 2003).

In this case, on March 8, 2005, the district court granted summary judgment

to Coffman and Torres on the 42 U.S.C. § 1983 claim and the wrongful death

claim. The court invoked neither Rule 54(b) nor § 1292(b). On March 24, the

district court remanded the remaining state-law claims against the Claytons to state

court. On March 30, plaintiffs Porter and Murray filed their notice of appeal from

the summary judgment order.

Coffman and Torres argue that this court does not have jurisdiction because

the summary judgment was not immediately appealable, and Porter and Murray

waived an appeal when the district court remanded the case to state court. 

Coffman and Torres primarily rely on the remand order's language: "The above
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captioned case is remanded." Thus, they claim, Porter and Murray waived their

right to appeal the summary judgment.

In Johnson v. Cartwright, this court explained that the dismissal of one

plaintiff effectively became a final order after a voluntary dismissal of the

remaining defendants. Johnson v. Cartwright, 344 F.2d 773, 774 (8th Cir. 1965). 

Thus, a partial summary judgment becomes a final judgment once the remaining

parts of the case are dismissed or otherwise resolved. See Chrysler Motors Corp.

v. Thomas Auto Co., 939 F.2d 538, 540 (8th Cir. 1991); see also 15B Charles

Alan Wright et al., Federal Practice and Procedure § 3914.28 (2d ed. 1992). 

Remanding the remaining state-law claims, after the federal claims are resolved,

has the same effect: It makes the partial summary judgment a final order because

there is nothing left for the district court to resolve.

In this case, the district court had original jurisdiction under 28 U.S.C. §

1331 over Porter and Murray's § 1983 claim. It had supplemental jurisdiction

under 28 U.S.C. § 1367 over the other claims. Once the district court granted

partial summary judgment to Coffman and Torres, it had the discretion either to

remand the remaining state-law claims or to keep them in federal court. See 28

U.S.C. § 1367(c)(3); Lindsey v. Dillard's, Inc., 306 F.3d 596, 598–99 (8th Cir.

2002). Even though all the remaining parties moved to remand "[t]he above

captioned case," the court could have remanded it sua sponte. Therefore, it does

not matter that the parties themselves jointly moved to remand.

Morever, the remand order states that it involves "Sha'va Porter and Herbert

Murray and the remaining defendants in this action, James and Tina Clayton." 

(emphasis added). The order continues: "Because the plaintiffs and the remaining

defendants support remand, this Court will grant the pending motion." The district

court intended to remand only the issues involving James and Tina Clayton.
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On October 4, 2005, the district court ruled it lacked jurisdiction to modify

the remand order. According to Coffman and Torres, that proves this court lacks

jurisdiction to hear the appeal. However, the district court notes only that it does

not have jurisdiction under 28 U.S.C. § 1447(d) to reconsider its remand order. 

But the present case is not about whether the remand was proper. Moreover, by

the time the district court issued its October 4 order, Porter and Murray had filed

their notice of appeal on the summary judgment issue. The combination of the

remand order and the notice of appeal divested the district court of all jurisdiction,

preempting the court from modifying its orders. See Hunter v. Underwood, 362,

F.3d 468, 475 (8th Cir. 2005) (filing notice of appeal divests district court of

jurisdiction). 

When the district court remanded the remaining state-law claims against the

other defendants, it had nothing left to resolve and the partial summary judgment

became final. Therefore, this court has jurisdiction of the appeal. 

III.

A.

This court reviews de novo a grant of summary judgment based on official

immunity, using the same standard as applied by the district court. See Murray v.

Leyshock, 915 F.2d 1196, 1199 (8th Cir. 1990). Summary judgment is appropriate

if the evidence, viewed in the light most favorable to the nonmovant, shows no

genuine issue of material fact and that the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). 

The district court granted summary judgment on the wrongful death claim

based on official immunity. According to the official immunity doctrine, public

officials "acting within the scope of their authority are not liable for injuries arising
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from their discretionary acts or omissions, but they may be held liable for torts

committed when acting in a ministerial capacity." Kanagawa v. State ex rel.

Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985); see also State ex rel.

Howenstine v. Roper, 155 S.W.3d 747, 752 (Mo. banc 2005), citing Charron v.

Thompson, 939 S.W.2d 885, 886 (Mo. banc 1996). Official immunity protects

those "who, in the face of imperfect information and limited resources, must daily

exercise their best judgment in conducting the public's business." Kanagawa, 685

S.W.2d at 836, citing Jackson v. Wilson, 581 S.W.2d 39, 42 (Mo. App. 1979). 

Whether an act is discretionary or ministerial "depends upon the degree of reason

and judgment required." Id. at 836. "[A] discretionary act requires 'the exercise of

reason in the adaption of means to an end and discretion in determining how or

whether an act should be done or course pursued.'" Edwards v. McNeill, 894

S.W.2d 678, 681 (Mo. banc 1995), quoting Rustici v. Weidemeyer, 673 S.W.2d

762, 769 (Mo. banc 1984). A ministerial act, on the other hand, is "of a clerical

nature which a public officer is required to perform upon a given state of facts, in a

prescribed manner, in obedience to the mandate of legal authority, without regard

to his own judgment or opinion concerning the propriety of the act to be

performed." Kanagawa, 685 S.W.2d at 836, quoting Rustici, 673 S.W.2d at 769.

B.

Julie Coffman was the Jackson County social worker assigned to Constance.

She was responsible for visiting Constance and the foster parents, as well as

overseeing the placement. 

Generally, a social worker's handling of the care of a child may be considered

inherently discretionary. This case is different. The Jackson County DFS is operating

under a consent decree that requires social workers to follow specific procedures in

placing and monitoring children in foster homes. See G.L. v. Stangler, 873 F.Supp.

252 (W.D. Mo. 1994). The stated purpose of the consent decree "is to provide all
1

On the facts of this case, the acts required in paragraphs 1) and 4) are

irrelevant, as no injuries occurred then.

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class members with the child welfare services required by the constitution and the

laws of the United States, including, but not limited to, protection from harm while

in the custody of Missouri's Division of Family Services." Id. at 254. 

Part II.E. of the consent decree, entitled "Pre-Placement Process and

Supervision of the Placement," states that the "social worker shall supervise and

monitor the child's placement" by 1) one face-to-face visit with the child and one

contact with the foster parent(s) within 24 hours of placement; 2) a minimum of one

face-to-face visit with the child and one contact with the foster parent(s) each week

during the first month (two of these visits must be with those in the foster home); 3)

in each of the next five months, a minimum of two face-to-face visits with the child

and two contacts with the foster parent(s) (one visit must be with all those in the foster

home); 4) during the remainder of a placement, a minimum of two contacts with the

child each month (one must be face-to-face with the foster parent(s) in the foster

home).1

 Id. at 258. Part II.F. states:

2. Any time a social worker becomes aware that a class member may have

been the subject of abuse, neglect or an inappropriate method of discipline,

the social worker shall:

a. Notify the Child Abuse/Neglect Central Hotline immediately.

b. Notify his/her supervisor promptly.

c. Notify the placement unit promptly.

d. Determine with his/her supervisor whether any child in the alternative

care placement is in imminent danger due to abuse, neglect, inappropriate

discipline, or dangerous environmental conditions, and should be removed

immediately.

e. Document the incident in writing in the child's record and the record of

the alternative care placement in which the child resides.

Id.
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Both parts II.E. and II.F. refer to what the social worker "shall" do, indicating

acts required without regard to the social worker's own judgment or opinion. Under

the consent decree, the acts a social worker shall take when a child is placed in a foster

home and may have been abused are ministerial, not discretionary. However, any

ultimate determination whether a child "may have been the subject of abuse, neglect

or an inappropriate method of discipline" or "is in imminent danger due to abuse,

neglect, inappropriate discipline, or dangerous environmental conditions, and should

be removed immediately" is discretionary. 

The purpose of the consent decree is to reduce these types of incidents. See id.

at 254. The consent decree requires regular visits to ensure that social workers gather

information about the child and the foster home. If a social worker does not conduct

these visits, she or he is less likely to determine whether a child may have been

abused, neglected, inappropriately disciplined, or subjected to dangerous

environmental conditions.

Of course, a social worker might not need to make every visit in order to

determine the foster child's situation. However, this is a question of causation – which

was not raised by Coffman in the district court. The official immunity doctrine is

concerned only with the nature of the act. See, e.g., Kanagawa, 685 S.W.2d at

835–36. But that is not to say an official who does not make the required visits – and

thus is not protected by official immunity – is automatically liable. The next step is

to determine causation: whether the social worker's failure to follow the consent

decree resulted in the injury. Cf. Jungerman v. City of Raytown, 925 S.W.2d 202,

206–07 (Mo. banc 1996) (if police officer had not left plaintiff's watch on desk

accessible to public, it would not have been stolen); Harris v. Munoz, 43 S.W.3d 384,

389 (Mo. App. 2001) (Stith, J.) (prisoner had negligence claim when prison officials

fail to follow policy and cause loss of headphones and tape player).
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In the present case, the district court notes that some visits were made to the

Claytons' home during Constance's placement, but "there is a factual dispute as to

whether the required visits were performed." This is a material fact necessary to

determine the defense of official immunity in this case. If the visits were made

according to the consent decree, then Coffman is protected by official immunity

because a social worker's determinations based on visits are discretionary acts.

However, if not all the visits were made, Coffman is not shielded by official

immunity. 

C.

Augustin Torres was Coffman's supervisor at DFS. As a supervisor, parts II.E.

and II.F. of the consent decree do not directly apply to him. See G.L., 873 F.Supp. at

256 (separately defining "social worker" and "supervisor"). Torres is not under the

same mandate of legal authority. His supervision of Coffman and management of

Constance's case required the exercise of reason and professional judgment. Thus,

Torres's acts were discretionary and he is entitled to official immunity.

IV.

The judgment of the district court is reversed in part, affirmed in part, and the

case remanded.

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