F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

MAR 21 2000

PATRICK FISHER
Clerk

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,

No. 99-5087
(D.C. No. 97-CV-718-E)
(N.D. Okla.)

Defendants-Appellees,
BRIAN SCOTT GORDON, an
Individual,
Defendant.
ORDER AND JUDGMENT

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
(continued...)

Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiffs Lisa Ransom and her daughter Amber Ransom filed this action
under 42 U.S.C. 1983 against defendants the Board of County Commissioners
of the County of Wagoner, State of Oklahoma (county), Lance Chisum,
a Wagoner County Sheriffs Office deputy, Elmer Sheperd, the former Wagoner
County Sheriff, and Rudy Briggs, the current Wagoner County Sheriff. Plaintiffs
alleged that defendants violated their constitutional right to freedom of intimate
association (familial relations) without due process of law. In addition, plaintiffs
claimed intentional infliction of emotional distress under Oklahoma law, and
asserted additional claims against defendant Brian Scott Gordon for assault,
battery, and false imprisonment. With the exception of Mr. Gordon, defendants
moved for summary judgment which the district court granted. Thereafter, the

(...continued)
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.
*

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district court granted plaintiffs motion for an order pursuant to Fed. R. Civ. P.
54(b)--despite the remaining unresolved claims against 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 affirm the district courts 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, Ambers natural father, forced
Ms. Ransoms vehicle off the highway with his truck, took then two-year old
Amber from Ms. Ransoms vehicle, and drove away with Amber. After the
incident, Ms. Ransom went to the Wagoner County Sheriffs Office (Sheriffs
Office) to file a report. Mr. Gordon was already there, 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, and called her a liar. Deputy
Chisum ultimately left Amber in Mr. Gordons custody pursuant to the Sheriffs
Office policy and procedure at the time that a deputy, 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. Appellants App.
In his deposition, Deputy Chisum stated Mr. Gordon told him that
Ms. Ransom had denied him visitation of Amber and he had removed Amber
from Ms. Ransoms vehicle and driven to the Sheriffs Office.
See Appellants
App. at 210. Deputy Chisum testified that Ms. Ransom did not tell him that
Mr. Gordon forced her off the road.
See id. at 214-15.
1

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at 125. Amber remained in Mr. Gordons custody until January 18, 1996, when,
per a state court order, she was returned to Ms. Ransoms custody. Thereafter,
plaintiffs initiated this action.
On summary judgment, the district court found that: Deputy Chisum was
protected by the doctrine of qualified immunity; Deputy Chisum did not
intentionally interfere with Ms. Ransom and Ambers constitutional right of
familial association; the Sheriffs Office policy was constitutional; and there was
no basis for liability on the part of either the Sheriffs or the county. Plaintiffs
raise eight issues on appeal, arguing that: (1) Deputy Chisum is not shielded by
the doctrine of qualified immunity; (2) there is proof 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 Wagoner County Sheriffs Office
policy is unconstitutional; (4) there is a failure to train on the part off the
Sheriffs Office; (5) there is a basis for liability on the part of the county;
(6) genuine issues of fact exist pertaining to plaintiffs claims against defendants;
(7) the district court erred in granting summary judgment; and (8) the district
court erred in failing to distinguish between a natural parent and one who has
established parental rights.
We review de novo the district courts decision granting summary judgment
and apply the same legal standards as the district court.
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See Bullington v. United

Air Lines, Inc. , 186 F.3d 1301, 1313 (10th Cir. 1999). Summary judgment is
appropriate on a record demonstrating that there is 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 partys case,
48 F.3d 478, 484 (10th Cir. 1995) (quotation omitted

Thomas v. IBM ,

), it is the nonmoving partys

burden to identify specific facts that show the existence of a genuine issue of
material fact.

Id. The party opposing the motion must present sufficient

evidence in specific, factual form for a jury to return a verdict in that partys
favor. Id. (quotation omitted).
The doctrine of qualified immunity provides that when government
officials are performing discretionary functions, they 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 Dept 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 constitutional right at all, and then assess
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whether that right was clearly established at the time of a defendants actions.
Gehl Group v. Koby , 63 F.3d 1528, 1533 (10th Cir. 1995). It is the plaintiffs
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 violation, 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 from the Fourteenth

Amendments liberty interest.

See J.B. v. Washington County , 127 F.3d 919, 927

(10th Cir. 1997). At the time of this incident, it was 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 Dept 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 Chisums actions, as well
as the policy pursuant to which he acted, are consonant with, rather than violative
of, these principles.
Nevertheless, plaintiffs argue that, although Mr. Gordon is Ambers
biological father, he should not be protected by these constitutional principles
because he did not undertake any parental responsibilities. In the main, plaintiffs
arguments on appeal hinge on the proposed distinction between a natural parent
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and a parent who has established parental rights. Appellants 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 father who did not sign
New York States putative father registry, and who did not undertake any parental
responsibilities, should have been notified of his childs pending adoption
proceedings. The Court found no such obligation, stating instead, the mere
existence of a biological link does not merit [the] equivalent constitutional
protection accorded to an unwed father [who] demonstrates 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 garners his interest in personal

contact with his child [ ] substantial protection under the due process clause).
The district court here applied the appropriate analysis, finding no
constitutional violation. In doing so, the district court relied on our decision in
Hollingsworth , 110 F.3d 733, in which we set forth general principles applying
to the doctrine of qualified immunity in the context of a claimed deprivation of
familial association. The district court stated:
Even assuming that plaintiffs right to the care, custody and
management of her child was violated, Hollingsworth does not
support Plaintiffs assertion that Deputy Chisum should have known
that his conduct violated that right. In
Hollingsworth , it is clearly
established that the removal of a child from the custody of a parent
without notice or a meaningful opportunity to be heard violates the
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constitutional rights of that parent. Deputy Chisum did not remove

Plaintiffs child from her custody. Rather, Deputy Chisum left the
child in the custody of the natural parent with which she came to the
police station. Moreover, Deputy Chisum had to weigh the interest
of the admitted natural father of the child, who had her with him
when he came to the station.
Appellants App. at 385.
Based on Mr. Gordons conceded parental status (Ms. Ransom told Deputy
Chisum that Mr. Gordon was Ambers father), Deputy Chisums decision--to
leave Amber in Mr. Gordons care--was constitutionally reasonable. Nor have
plaintiffs raised any material issues of fact that undermine this conclusion and,
consequently, Deputy Chisums actions are shielded by the doctrine of qualified
immunity.

Given this conclusion, there is no proof of intent on Deputy Chisums

The district court noted earlier in its decision that neither side seriously
argues that there was any evidence to support [ ] a finding that Ambers safety
was under immediate threat (one of the exceptions laid out in
Hollingsworth ).
Appellants 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 defendants summary judgment
motion showing that Ambers safety was under immediate threat, based on Mr.
Gordons actions in running Ms. Ransom off the road and grabbing Amber out of
Ms. Ransoms vehicle, and based on Mr. Gordons police record. While
troubling, this evidence does not create triable issues of material fact relating to
the application of the qualified immunity doctrine to Deputy Chisums
determination that Ambers safety was not in danger. Even if the district court
erred in finding no material issues of fact concerning Deputy Chisums 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 Sheriffs Office policy or that Deputy Chisums failure to follow up on
such suspicion was tied to the inadequate training alleged by plaintiffs.

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part to deprive Amber and Ms. Ransom of their rights to familial relations.
See Trujillo v. Board of County Commrs

, 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 distinction between
a natural parent and a parent who has undertaken parental responsibilities,
that the Sheriffs Office policy was unconstitutional. Rather, we agree with the
district courts characterization of the policy--which prevents officers from
supplanting the role of the court to make custody determinations--as designed to
protect all parties. Appellants App. at 387. The greater constitutional danger
lies in taking a child away from a parent without parental consent or court order.
We have held that such governmental conduct is constitutionally defensible only
when a childs safety is in danger.

See J.B. , 127 F.3d at 925; Hollingsworth ,

110 F.3d at 739. Placing the burden on the Sheriffs Office to disentangle
custody issues is not only untenable but may also be 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 constitutional violations of their
subordinates for failing to adopt or implement policy or training of subordinates
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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, because Deputy Chisums
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, plaintiffs 1983 claims against
the county, assuming such claims have been properly asserted, also fail.
Monell v. Department of Social Servs.

See

, 436 U.S. 658, 691-92 (1978) (holding

that municipal liability for 1983 claims is limited to deprivation of federally

protected rights caused by actions taken pursuant to official municipal policy).
Plaintiffs also allege on appeal that the district court erred in granting
summary judgment to the county on their state law claim of intentional infliction
of emotional distress. We find plaintiffs argument 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 fire protection. Okla. Stat.
Ann. tit. 51, 155(6); see also Myers v. Oklahoma County Bd. of County
Commrs , 151 F.3d 1313, 1320-21 (10th Cir. 1998);
943 P.2d 595, 597-98 (Okla. 1997).

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Schmidt v. Grady County ,

Accordingly, for the foregoing reasons, we affirm.

Entered for the Court

Wade Brorby
Circuit Judge

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