UNITED STATES COURT OF APPEALS

Filed 12/9/96

FOR THE TENTH CIRCUIT

LINDA A. WATSON,

Plaintiff-Appellant,

v.

STATE OF UTAH; ROD BETIT,

individually and in his official

capacity as Executive Director of the

Department of Human Services;

MARY T. NOOMAN, individually and

in her official capacity as Director of

Division of Family Services; ANN

CHEVES, individually and in her

official capacity as a Regional

Director of Division of Family

Services; KATHY GRUMHAUSER,

DICK CALHOUN, CATHERINE

HARLIN, ROCHELLE PHILLIPS,

MAX PARKS, TANNIE ALKIN,

employees of Division of Family

Services; CAROL L.C. VERDOIA,

LINDA LUENSTRA, RIC ODDONE,

and ROBERT S. YEATES, Counsels

for State and its Departments and

Divisions; and JOHN and MARY

DOES 1-10,

Defendants-Appellees.

No. 95-4191

(D.C. No. 95-CV-700)

(D. Utah)
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** Honorable John W. Lungstrum, District Judge, United States District Court

for the District of Kansas, sitting by designation.

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ORDER AND JUDGMENT*

Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM,** District

Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff Linda A. Watson appeals from an order of the district court

granting defendants’ motion to dismiss her complaint. We affirm.

We review the district court's grant of a motion to dismiss de novo. Steele

v. United States, 19 F.3d 531, 532 (10th Cir. 1994). Further, because we are

reviewing the sufficiency of the complaint, we accept all of Ms. Watson’s

well-pleaded allegations as true and construe them in the light most favorable to

her. McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1487 n.9 (10th Cir. 1996). 
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While we review pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519, 520

(1972), we will uphold the dismissal of a pro se complaint if the facts alleged,

even if true, cannot provide a basis for relief, Coosewoon v. Meridian Oil Co., 25

F.3d 920, 924 (10th Cir. 1994).

Ms. Watson commenced this action after her parental rights were

terminated alleging violations of 42 U.S.C. § 1983; 28 U.S.C. § 1331(a); the

Rehabilitation Act, 29 U.S.C. §§ 791, 794; the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12131, 12132; and various state laws. She alleged the

termination occurred solely because she had had a sex change operation, was

included on the state registry as a substantiated child sex abuser, and because she

is blind. 

The district court properly dismissed Ms. Watson’s claims for damages

against the State of Utah and various state employees in their official capacity. 

The Eleventh Amendment provides the State and its employees absolute immunity

from suits for damages by its citizens. See Meade v. Grubbs, 841 F.2d 1512,

1525 (10th Cir. 1988).

Defendants Oddone and Yeates are deputy county attorneys who assisted in

the custody deprivation hearings. State prosecutors are entitled to qualified

immunity for investigative functions, Buckley v. Fitzsimmons, 509 U.S. 259, 274

(1993), and absolute immunity for activities "intimately associated with the
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judicial process," Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Ms. Watson

made no specific allegations against these two defendants. We conclude from

Ms. Watson’s complaint that she is asserting claims against these defendants for

actions they took in conjunction with the judicial process of terminating her

parental rights. The district court correctly held that defendants are immune from

suit. Further, any claim for injunctive or declaratory relief against these

defendants is moot. Utah Code Ann. § 78-3a-404 was amended in 1994 to permit

only the attorney general to file a petition for termination of parental rights on

behalf of the Division of Family Services. These defendants cannot be involved

in initiating any further actions against Ms. Watson on this issue.

Ms. Watson contends defendants violated her First Amendment liberty right

in her reputation. Injury to one's "reputation alone, apart from some more

tangible interests such as employment," is not subject to the requirements of due

process. Paul v. Davis, 424 U.S. 693, 701 (1976). To establish a claim of

deprivation of liberty interest in reputation under § 1983, a plaintiff must

establish: (1) defendant’s conduct stigmatized or otherwise damaged plaintiff's

reputation, and (2) the reputational damage was entangled with a tangible interest

such as employment. See Ewers v. Board of County Comm’rs, 802 F.2d 1242,

1247 (10th Cir. 1986), reh’g granted on other grounds by, 813 F.2d 1583 (1987). 

Ms. Watson has made no such showing.
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Ms. Watson alleges her liberty right to familial association was violated. 

See Trujillo v. Board of County Comm’rs, 768 F.2d 1186, 1188-89 (10th Cir.

1985). To determine whether a person's familial association rights have been

violated, we must balance Ms. Watson’s liberty interest against the State's interest

in investigating reports of child abuse. Griffin v. Strong, 983 F.2d 1544, 1547

(10th Cir. 1993). We examine these factors objectively in light of the facts of this

particular case. Id. While Ms. Watson’s right to familial association is very

substantial, “[t]he state has a traditional and transcendent interest in protecting

children from abuse and from situations where abuse might occur.” Id. at 1548

(quotations omitted). Absent any evidence in the record, aside from Ms.

Watson’s own self-serving remarks that no abuse occurred, we cannot say

defendants acted improperly in investigating the reports of abuse and in taking

action to prevent harm to the children.

Insofar as Ms. Watson is claiming that defendants failed to follow state

procedures in effecting the termination, these claims are not cognizable in § 1983

proceedings. See Gomez v. Toledo, 446 U.S. 635, 640 (1980)(to raise cognizable

§ 1983 claim, plaintiff must allege he was deprived of a federally protected right

by a defendant acting under color of state law). 

Ms. Watson appears to assert that the reports and the results of defendants’

investigation were erroneous. Ms. Watson should have presented these claims in
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state court at the deprivation hearing. We cannot overrule a state court’s

determination. See District of Columbia Ct. of Appeals v. Feldman, 460 U.S.

462, 482, 484 (1983)(federal review of state court judgments can only be obtained

in the United States Supreme Court, even if the plaintiff challenges the

constitutionality of the state court's action (citing Doe v. Pringle, 550 F.2d 596,

599 (10th Cir. 1976)). 

Ms. Watson alleged the State misuses the state registry of child abusers by

listing accused and unsubstantiated abusers on the list without giving them prior

notice and a hearing. However, she admits that she is a substantiated abuser. Ms.

Watson lacks standing to challenge this use of the registry. At a minimum,

standing requires: (1) that the plaintiff suffered an actual injury by the invasion

of a legally protected interest; (2) that the injury is fairly traceable to the 

defendant’s actions and not an independent action of some third party not before

the court; and (3) that it is likely that the injury will be redressed by a favorable

decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 

Here, even if we were to concede that Ms. Watson had met the first two

requirements, we could not redress the injury as she is now properly listed on the

registry as a substantiated child abuser.

Ms. Watson’s argument that the Rehabilitation Act and ADA were violated

as her children were removed from her care because she is blind are also without
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merit. The Rehabilitation Act was passed to prevent otherwise qualified

handicapped individuals from being excluded from participation in, denied the

benefits of, or subjected to discrimination under any program or activity solely by

reason of their handicaps. See 29 U.S.C. § 794(a). Title II of the ADA requires

public entities to provide physical access to programs and services offered as well

as to ensure that such services and activities are readily accessible to and usable

by qualified individuals with disabilities. See 42 U.S.C. §§ 12131(1), 12132,

12182. Ms. Watson was not denied access to any program, service, or facility.

Ms. Watson has failed to state any claim upon which the federal courts may

grant relief. The judgment of the United States District Court for the District of

Utah is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe 

Circuit Judge