___________ No. 95-4056

___________ JOEL WHISMAN, a minor, through * his next friend Michelle * Whisman; MICHELLE WHISMAN; * MICHAEL WHISMAN; LYNN WHISMAN, * * Plaintiffs-Appellees, * * v. * * CHUCK RINEHART, in his * individual capacity as Chief * Deputy Juvenile Officer of the * Thirty-ninth Judicial Circuit * of the State of Missouri; MARLA * PURSLEY, in her individual * capacity as social worker for * the Lawrence County Office of * Appeal from the United States the Missouri Division of Family * District Court for the Western Services; RUTH COX, in her * District of Missouri. individual capacity and * officially as social worker * supervisor of the Lawrence * County Office of the Missouri * Division of Family services; * ALFRED BLAIR, in his * individual capacity and * officially as County Director * of the Lawrence County Office * of the Missouri Division of * Family Services; BILL JINES, in * his individual capacity and * officially as Chief Juvenile * Officer of the Thirty-ninth * Judicial Circuit of the * State of Missouri, * * Defendants-Appellants. *

___________ Submitted: June 12, 1996 Filed: July 23, 1997

___________

### The HONORABLE CHARLES B. KORNMANN, District Judge, Unite d * 

### States District Court for the District of South Dakota, sitting by designation.
The Honorab le Joseph E. Stevens, Jr., United States District 1 

### Judge for the Western District of Missouri.
-2- Before A RNOLD, Chief Judge, F. GIBSON, Circuit Judge, and KORNMANN, * District Judge.

___________ KORNMANN, District Judge.
Rinehart, Pursley, Cox, Blair, and Jines appeal the district court's 1 denial of their motio n to dismiss this 42 U.S.C. § 1983 action. Whismans filed this action against defendants, juvenile officers and social workers , clai ming that defendants violated plaintiffs' constitutional rights o f familial association, denying plaintiffs due process of law. Defendants filed a motion to dismiss, contending that plaintiffs' claims were i n
essence based upon claims of violation of state laws and, therefore, are not actionable under 42 U.S.C. § 1983, and that defendants Rinehart an d Jines are entitled to absolute immunity. Defendants further contend that the claims against Jines, Cox and Blair are based upon respondeat superior , an insufficient basis for liability for suit und er 42 U.S. C. § 1983, that the grandparents, Michael and Lynn Whisman, are not real parties i n interes t and should be dismissed, that plaintiffs have failed to sho w deprivation of a constitutional right in violation of due process, and tha t defendants are entitl ed to absolute and qualified immunity. The District Court denied the motion to dismiss. We affirm. I. BACKGROUND We set fo rth the facts, construing the complaint liberally. Frey v. City o f Herculaneum , 44 F.3d 667, 671 (8th Cir. 1995). Joel Whisma n (“Joel”) is the sixteen month old son of Michelle

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Whisman (“Michelle”). Michelle left Joel with ababysitter on the evening of February 16, 1995, near her home in Aurora, Missouri. On the morning of Feb ruary 17, 1995, the babysitter contacted the Lawrence County , Missou ri, Division of Family Services and spoke with Marla Pursle y (“Pursley”), a social worker. The babysitter reported to Pursley tha t Michelle had not picked up Joel as agreed and that Michelle's boyfriend ha d told the babysitter that Michelle was at home "passed out drunk." Chuck Rinehart (“Rinehart”), Chief Deputy Juvenile Officer, contacted the police

. An officer went to Mi chelle's home at approximately 10:00 a.m. but failed to make contact with Michelle. Michelle contend s she did not fail, at the agreed time, to pick up Joel and was not "passed out drunk". Pursley w ent to the babysitter's home, examined Joel, and found him to be in good health. At that time, the babysitter told Pursley she had contacted Lynn Whisman (“Lynn”), Michelle's moth er and Joel's grandmother, and that Lynn had agr eed to pick up Joel from the babysitter around noon. Pursl ey, after consulting with Rinehart, directed the babysitter t o immediatelydeliver Joel into Rinehart's custody. The babysitter did so at app roximately 11:45 a.m., driving Joel to Monett, Missouri, fourtee n miles away. Rinehart examined Joel and drove him to Mt. Vernon, Missouri, l eaving him at the Tri-County Shelter Home. Rinehart then returned to his office in Moneta. Before Rinehart returned, Lynn arrived at Rinehart’s office in Moneta and m et with Bill Jines (“Jines”), the Chief Juvenile Officer an d Rinehar t's supervisor. Lynn requested that Joel be delivered to her

. After Rinehart returned, Lynn requested both Rin ehart and Jines to deliver Joel to her . They refused to do so or to advise Lynn of Joel' s whe reabouts. Rinehart advised Lynn to obtain a lawyer and file a n application for custody. Rinehart and Pursley were notified on the afternoon of February 17, 199 5, that Michelle was willing to sign over custody of Joel to Lynn

. Michelle and Lynn made repeated requests for

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Joel's return and the termination of his detenti on between February 17 and March 1, 1995. On Ma rch 1, 1995, Michelle received in the mail copies of
a petition and Order of Temporary Legal Custody, with a letter notifying her a heari ng was planned for March 15, 1995. The letter was date d February 27, 1995, postmarked on February 28, 1995. The order granting temporary custody to the Division of Famil y Services was ostensibly signed on February 17, 1995. Plaintiffs contend the order was backdated and that this was a common practice used b y defendants. The petition and order were not filed until March 1, 1995, th e day M ichelle received a copy of the petition and order in the mail. O n March 2, 1995, Whismans filed a request for an immediate hearing. Over th e objection of defendants, the hearing was held on March 6, 1995. Joel' s physical custody was restored to his family on March 6, 1995, seventee n days after he was taken into custody by defendants. II. DISCUSSION De fendants appeal the denial of the motion to dismiss, claimin g absolute and qualified immunity. Only these issu es in the present case are appealabl e as a matter of right prior to a final judgment. Hafley v

. Lohma n , 90 F.3d 264, 266 (8th Cir. 1996). We review de novo a distric t court's denial of a motion to dismiss on the ground of immunity. Hafley

v. Lohm an , 90 F.3d at 264; Brown v. Griesenauer , 970 F.2d 431, 434 (8t h Cir. 1992). When considering a motion to dismiss , we must construe the complaint liberally and assume all factual allegations to be true. Goss v. City of Little Rock , 90 F.3d 306, 308 (8th Cir. 1996). We may order dismissal onl y if it appears beyond a reasonable doubt that the plaintiffs can prove no set o f facts which would entitle them to relief. Goss , 90 F.3d at 308 ; Frey v. City of Hercu laneum , 44 F.3d at 671. "A motion to dismiss should be granted 'as a prac tical matter . . . only in the unusual case in which
a

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plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.'" Frey v. City of Herculaneum , 44 F. 3d at 671 (quoting Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)). A. Absolute Immunity Defen dants allege they are entitled to absolute quasi-judicial o r quasi-prosecutorial immunity. The United States Supreme Court ha s emphasized that “the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns v. Reed , 500 U.S. 478, 486, 111 S. Ct. 193 4, 1939, 114 L. Ed. 2d 547 (1991). “The presump tion is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of thei r duties” and, therefore, the Supreme Court has b een “quite sparing” in its recognition of absolu te immunity. Burns v. Reed , 500 U.S. at 486-87, 111 S. Ct. at 1939. The United States Supreme Court, in Imbler v. Pachtman , 424 U.S . 409, 431, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128 (1976) , established the absolute immunityof a prosecutor from a civil suit for damages under 42 U.S.C. § 1983 "in initiating a prosecution and in present ing the State's case." To the ex tent that defendants are sued for initiating state judicia l proceedings seeking t emporary protective custody of Joel, their "role was functionally comparable to that of prosecutor." Thomason v. SCAN Voluntee r Services, Inc. , 85 F.3d 1365, 1373 (8th Cir. 1996). The gravamen, however , of Whismans' complaint is not based upon the institution of state cour t proceedings, but upondefendants' failure to investigate, their detaining Joel, and the claimedinordinate delay in filing state court proceedings. Under a liberal reading of the Whismans’ complaint, defendants’ actions di d not aid in the presentation of a case to the juvenile court; they wer e intentionally designed to

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avoi d or unreasonably delay judicial process. These actions are no t prosecutor ial in nature and do not form the basis for absolute quasi

prosecutorial immunity. “Jud ges performing judicial functions enjoy absolute immunity fro m § 1983 liability.” R obinson v. Freeze , 15 F.3d 107, 108 (8th Cir. 1994). Judicial immunity is extended to officials other than judges when “their duties are functional ly comparable to those of judges -- that is, because they, too, exercise a discretionary judgment as part of their function.” Robinsonv. Freeze , 15 F.3d at 108 (quoting Antoine v. Byers & Anderson, Inc. , 508 U.S. 429, 436, 113 S. Ct. 2167, 2171, 124 L. Ed. 2d 391 (1993)). Defendants’ claimed actions in the present case do not fall within thi s category. B. Qualified Immunity Government officials performing disc retionary functions are entitled to qualified immunity unless they violate clearl y established statutory or consti tutional rights of which a reasonable person would have known

. Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, (1982). We have held that "qualified immunity is an affirmative defense, "which will be upheld on a 12(b)(6) mot ion only when the immunity is established on the face of the complaint." Hafley v. Lohman , 90 F.3d at 266 (quoting Weaver v. Clarke , 45 F.3d 1253, 1255 (8th Cir. 1995)). The q ualified immunity analysis is a two-step process. Weaver v
. Clark , 45 F.3d at 1255. The threshold question is whether the plaintiff has alleged the violation of a constitutional ri ght. Ebmeier v. Stump , 70 F.3d 1012, 1013 (8th Cir. 1995) (quoting Cole v. Bone , 993 F.2d 1328, 1332 (8th Cir. 1993)). If plaintiffs meet this standard, we next determin e "whether that right was 'clearly established' at the time of the alleged violation ." Weaver v. Clark , 45 F.3d at 1255. “A right is ‘clearl y established’ when the

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con tours of the right are sufficiently clear that a reasonable officia l would understand that what he is doing violates that right.” Birkenholz v. Sluyter , 857 F.2d 1214, 1216 (8th Cir. 1988). “In determining whether the legal right at issue is clearly established, this circuit applies a flexible standard, re quiring some, but not precise factual correspondence with precedent, and demanding that officials app ly general, well-developed legal principles.” J.H.H. v. O’Hara , 878 F.2d 240, 243 (8th Cir. 1989). Qualified immunity is usually raised by a motion for summary ju dgment after a limited amount of discovery has been conducted to determine whethe r defend ants acted objectively in a reasonable manner and whether a plaintiff’s rights were clearly established at the time of the allege d deprivation. See Murphy v. Morris , 849 F.2d 1101, 1103 (8th Cir. 1988). This is an o bjective standard. The standard is to be applied to a particular defendant’s conduct as a question of law and is to be decided bythe court prior to trial. Swenson v. Trickey , 995 F.2d 132, 133 (8th Cir. 1993). We review the inquiry on a motion t o dismiss by accepting all well pleaded facts in the complaint as true. 1. MICHELLE AND JOEL WHISMAN’S CLAIMS Mic helle has alleged that defendants' actions violated he r constitutional right to not be deprived of the custody of her son without due process of law. Parents have a recognized liberty interest in th e care, custody, and management of their children. Myers v. Morris , 810 F.2 d 143 7, 1462 (8th Cir. 1987). Both parents and children have a libert y interest in the care and companionship of each other. See Lehr v

. Rob ertson , 463 U.S. 248, 258, 103 S. Ct. 2985, 2991, 77 L. Ed. 2d 61 4 (1983). ("[T]he relat ionship of love and duty in a recognized family unit is an interest in lib erty entitled to constitutional protection."). Myers
v. Morri s , 810 F.2d at 1462. That liberty interest "is limited by th e compel ling governmental interest in protection of minor children , particularly

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incircumstances where the protection is considered necessary as against the parents themselves." Id

. We take a broad view of what constit utes "clearly established" under the qualified immunity analysis. Munz v. Michael , 28 F.3d 795, 799 (8th Cir

. 1994). The balance favors the plaintiffs when the test is base d solely on the allegat ions in the complaint. Hafley v. Lohman , 90 F.3d at 267 (b alancing an employee's First Amendment rights against a publi c employer's interests) . We have held that “when a state official pursuing
a chil d abuse investigation takes an action which would otherwis e
uncons titutionallydisrupt familial integrity, he or she is entitled t o qualified immunity, if such action is properly founded upon a reasonable suspicionof child abuse.” Thomason v. SCAN Volunteer Services , 85 F.3d at 1371. This does not appear to be a case of balancing the parent’s liberty interest against the state's interest in protecting the child. Before Joe l
was re moved to defendants’ custody, defendants were advised that Lynn , Joel's grandmother, had agreed to pick up Joel by noon. The babysitter had contacted Lynn and thus, arguably, was entirely comfortable with Lynn’ s pro mpt response and plan to pick up Joel. Defendants blocked thi s reasonable arrangement, which arrangement might have been authorized o r directed by Michelle. Defendants apparently had no information to th e contrary. Defendants knew there was no indicati on of any physical neglect of Joe l, no indication of any immediate threat to his welfare and n o indication of any cri minal activity by Michelle or anyone else. All they apparentlyhad was third hand hearsay as to Michelle being intoxicate d while the child was being cared for by a babysit ter. There was not, under the allegations of th e complaint, any reasonable suspicion of child abuse suchas was present in Thomason v. SCAN Volunteer Services, Inc. , supra. As we have already observed, rights of parents and children, in such a relationship, are not absolute. “The intangible fibers that

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connect parent and child have infinite variety. . . . It is self-evident that t hey are sufficiently vital to merit constitutional protection i n appropriate cases .” Lehr v. Robertson , 463 U.S. at 256, 103 S. Ct. at 229 0 (emphasis added). We are unwilling to conclude that the case before us is not such an appropriate case. The allegations here as to Michelle and Joe l are totally unlike th e allegations and the factual scenario in Ebmeier v. Stump , supra, where w e agreed with the district court that the actions of the defendants were objectively reasonable and where there was no violatio n of a constitutionally protected liberty interest. As in Thomason , ou r holding i s limited to the claimed facts of this case. Despite repeate d attempts to retrieve Joel from defendants' custody, defendants refused to return Jo el. No investigation was done to determine whether it wa s necessaryor even advisable to take Joel into custody in the first place and no investigation was ever done as to the pos sibility of returning Joel to his mot her, grandmother or anyone else designated by Michelle. W e accept as true, for the purposes of a motion to dismiss, that the state ha d
no compelling governmental interest in taking custody of Joel and there wa s no reasonable suspicion of child abuse or neglect. Defendant s contend they were acting under a state court order. Yet
no state court order was filed until 13 days after defendants had take n Joel into custody. Orders of this type are not effective until filed. Se e Nance v Nance , 880 S. W.2d 341, 345 (Mo. App. 1994). Defendants attempted to delay the hearing and Joel's return to his mother, in clea r contraventionof Michelle's and Joel's rights. Michelle, on her own o r acting through her mother, had a clearly established right to custody of Joel, of which right defendants reasonably should have known. Joel had a corresponding clearly established right to familial association with his mother. Defendants have not overcome the threshold inquiry with respect to

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Michelle’s and Joel’s claims. To the contrary, the threshold question is answered in favor of Michelle and Joel. Even if defendants had a right to take temporary custody of Joel , defendants had a corresponding obligation to afford Michelle and Joel an adequate post-deprivation hearing. Doe v. Henne pin County , 858 F.2d 1325, 1329 (8th Cir. 1988). The right to an adequate post-deprivation hearing
was clearly established in February of 1995. Defendants scheduled th e hearing for March 15, 1995, nearly a month after taking Joel into custody. Further, defendants objected to an earlier hearing, claiming administrativ e inconvenience. Miche lle’s and Joel’s first opportunity for a due process hearing was seventeen days after Joel was taken into custody. Under the facts of this case, seventeen days was not a prompt hearing. Defendant s contend that plaintiffs could have obtained a lawyer and availed themselves of certain procedural remedie s at an earlier time, thus satisfying their righ t to due process. We cannot accept this contention. The re may be some analogy in observing that any person whose clea r constitutional rights are violated has the right to later employ counsel. Whenthe state deprives parents and children of their right to familia l integrity, even in an emergency situation, without a prior due proces s hearing, the state ha s the burden to initiate prompt judicial proceedings to provide a post deprivation hearing. Weller v . Dep’t. of Soc. Serv. for Baltimore , 901 F.2d 387, 396 (4th Cir. 1990). The Second Circuit held, in Duchesne v. Sugarman , 566 F.2d 817, 828 (2nd Cir. 1977):

In this situation, the state cannot con stitutionally “sit back and wait” for the parent to institute judicia l proceedings. It “cannot . . . [adopt] for itself an attitude of ‘if you don’t like it, sue.’” The burden of initiatin g judicial review must be shouldered by the government. We deal here with an uneven situation in which the governme nt has a far greater familiarity with the legal procedures available fo r testing its action.

### -11- In such a case, the state cannot be allowed to take actio n depriving individuals of a most basic and essential libert y inte rest which those uneducated and uninformed in lega l intricacies may allow to go unchallenged for a long period of time. We find Duchesne part icularly persuasive where defendants are alleged, in the present case, to have provided plaintiffs wi th false information as to how th ey should proceed. The fact that other remedies may have bee n available to plaintiffs to secure their constitutional rights to a postdepriv ationhearing does not relieve defendants of their obligation t o provide such a hearing. Of even more concern is the failure to provid e Joel his right to a prompt post-deprivation hear ing; he was clearly not in a position to secure that right for himself. Defendant s contend the supervisory officials, Jines, Cox and Blair, are immune from liability. Clearly, claims base d upon respondeat superior
are not cognizable under 42 U.S.C. § 1983. Frey v. City of Herculaneum , 44 F.3d at 672. The claims against the supervisory officials, however, ar e based upon failure to properly train and supervise as well as creating , encoura ging and following the unconstitutional custom and practice o f detaining children for thirty days without a due process hearing. Bot h these claims are cognizable under 42 U.S.C. § 19 83. Tilson v. Forest City Police Department , 28 F.3d 802, 806 (8th Cir. 1994); Weiler v. Purkett , 10 4 F.3d 149, 151 (8th Cir. 1997). 2. MICHAEL AND LYNN WHISMAN’S CLAIMS Def endants contend Lynn and Michael Whisman, Joel's grandparents , have fail ed to allege the violation of a constitutional right. Th e grandparents alleged in the complaint that they had the right to intervene inany juvenile court proceeding concerning Joel, which right defendants deprived them of without due process of law. Mo. Rev. Stat. § 211.177.1 provides: A grandparent shall have a right to intervene in any proceeding initiated pursuant to the provisions of this

### -12- chap ter, in which the custody of a grandchild is in issue , unless the juvenile judge decides after consideringa motion to intervene by the grandpa rent that such intervention is against the best interest of the child. Further, Rule 111.02(b) of the Missouri Juvenile Court Rules provides: Whe na juvenile is taken into judicial custody, the juvenil e shall no t remain in custody but shall be released at once t o the juvenile’s custodian or some other suitable per son, unless; (1) the court has ordered the juvenile to be in detention; or (2) tem porary detention has been ordered pursuant to Rul e 111.06; or (3) the juvenile was taken into protective custody and th e court determines the conditions requiring protective custod y continue to exist. The complaint alleges that at the time Lynn initially requested that Joel be returned to her, a request immediately joined in by Michelle, and durin g the next twelve days, there was no court order for detention. In fact, th e complaint alleges that Lynn was told on February 17, 1995, that a cour t order had to be signe d for the process to begin and that it would take 30 days to obtain a cour t order. The grandparents allege that these actions prevented them from exercising their statutory rights as grandparents to intervene in the juve nile proceeding and such actions constitute a denial of their rights without due process. The Missouri Court of Appeals held i n Ruth v. State of Missouri , 830 S.W.2d 528, 530 (Mo. App. 1992), that no statute confers upon a grandparen t
an unc onditional right to intervene in juvenile court proceeding s concerning the custody of a child. In 1993, the Missouri Legislatur e enacted Mo. Rev. Stat. § 211.177.1 which mandates the right to interventio n unless the juvenile judge decides, after considering the motion of th e grandp arents, that the requested intervention is contrary to the bes t interest of the child.

### -13- Alleged violations of state laws, st ate-agency regulations, and even state court orders do not by themselves state a claim under 42 U.S.C. § 1983. Only federal rights are guarded and vindicated by such statute

. Ebmeier v. Stump , 70 F.3d at 1013. Constitution al significance may attach only to certain interests created by state law and it is clear that no t everytransgression of state law may do double duty as a constitutiona l violation. Id . We must be extremely careful in examining claimed violation s of state laws, regulations and court orders. Only in very limited an d obvious circumstances will federal constitutional significance attach in these matters. “There is a body of law, to be sure, holding that state la w may create a ‘liberty interest’ protected by the Fourteenth Amendment. If , for example, a state statute gives ‘specific directives to the decisio n maker that if the (statute’s) substantive predicates are present, a partic ular outcome must follow,’ a ‘liberty interest’ protected by th e Fourteenth Amendment is created.” Bagley v. Rogerson , 5 F.3d 325, 328 (8t h Cir. 1993) (quoting Kentucky Dept. of Corrections v. Thompson , 490 U.S. 454, 463, 109 S. Ct. 1904, 1910, 104 L. Ed. 2d 506 (1989)). Michae l and Lynn advance the argument that they have a libert y interest i n the custody of their grandchildren. “[W]e reach the mor e fundamental question whether . . . a natural gra ndparent’s interest in the societ yof her grandchildren, though an interest rooted in powerfu l
emo tions, is a liberty interest under the due process clause. If th e grandchildrenare in their parents’ custody, the answer is probably no .

. . A more difficult question is presented where, as here, th e grandchildrenare not in the parents’ custody.” Ellis v. Hamilton , 66 9 F.2 d 510, 513 (7th Cir. 1982). The Whismans allege the impacts of th e defendants’ conduct on each individual and on the family as a whole. Thes e
are significant allegations under the plurality opinion in Moore v. City of East Cleveland , 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), a case in which a zoning ordinance which prevented a

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grandmother from living with her grandson was struck down. The Court was there concerned with the interests of the child as well as the grandparent

. It is also significant that, in the present case, there was no contes t betweenthe mother and the grandparents. They were united in interest in attempting to restore the family unit. We are a lso “under a duty to examine the complaint to determine if the allegations provi de for relief on any possible theory,” even if it is

a theory not advanced by the grandparents. Harrison v. Springdale Water & Sew er Comm’n , 780 F.2d 1422, 1426 (8th Cir. 1986). We held over nin e years before Joel was taken into custody that “access to the courts is a fundamental right of every citizen.” Harrison , 780 F.2d at 1427. Th e Missouri Legislature, in 1993, provided grandparents guaranteed access to the courts by allowing grandparents to file a motion to intervene i n juvenile court proceedings. Mo. Rev. Stat. § 211.177.1. Thus, Michael an d Lyn nWhisman had a clearly established right in 1995 to petition th e Missouri juvenile court for custody of Joel. Grandparents who wish to see k to intervene should receive “whatever process is due in connection with th e determinationof whether” intervention is in the child’s best interests. Kentucky Dep’t. of Corrections v. Thompson , 490 U.S. 454, 463 (1989). Go vernment action designed to prevent an individual from utilizin g legal remedies may infringe upon the First Amendment right to petition the courts. In re Worker’s Compensation Refund , 46 F.3d 813, 822 (8th Cir

. 1995). The complaint alleges that defendants intentionally failed t o initiate juvenile cou rt proceedings until March 1, 1995. Defendants were
aware tha t the grandparents desired to obtain custody of Joel and tha t Michel le had authorized it. Instead of promptly initiating proceeding s wherein the grandparents could petition to inter vene, defendants told Lynn that they could do no thing until such proceedings were initiated and that it would take thirty days to initiate

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proceedings. Defendants’ alleged actions in preventing the grandparents from petitioning the court for custody of Joel s tate a cause of action for viola tion of their First Amendment rights to access to the courts. Th e Missou ri statute did not authorize grandparents to initiate any custod y proceeding. It autho rized intervention and defendants blocked such right by refusing to act to initiate the proceeding. P laintiffs have alleged the violat ionof a clearly established constitutional right of which a reasonable person wou ld have known. Defendants’ motion to dismiss on the grounds of qualified immunity was therefore properly denied.

Conclusion

For the foregoing reasons, the order of the District Court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT