SMITH v. ELEY
675 F.Supp. 1301 (1987)
United States District Court, D. Utah, C.D.
December 29, 1987.
Defendants next contend that summary judgment in favor of Sheriff Eley is appropriate because he was not present at the scene, and the plaintiffs cannot establish any "affirmative link," between Eley's conduct and the plaintiff's claimed deprivation. The law of the Tenth Circuit in this regard is clear. A supervisor may be liable under § 1983 for "causing" a deprivation of a constitutional right. To be so liable, however, there must be an affirmative link between the conduct of the supervisor and the deprivation alleged. Rizzo v. Goode,423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976); McClelland v. Facteau,610 F.2d 693, 695-96 (10th Cir.1979). This requirement may be met in a number of ways, for instance, by evidence that the supervisor directly participated in the deprivation, McKay v. Hammock,730 F.2d 1367, 1374 (10th Cir.1984), or by evidence that the supervisor was grossly negligent in training and supervising employees, Rock v. McCoy,763 F.2d 394, 397 (10th Cir.1985). See generally Schaefer v. Wilcock,676 F.Supp. 1092, 1104-1106 (D.Utah 1987).5 In this case plaintiffs have alleged that this affirmative link is met in two ways: First, plaintiff alleges that in response to the deputies' telephone call, Eley actually directed that the officers assist Peggy Smith in obtaining custody of Shannon. Second, plaintiffs allege Eley failed properly to train and supervise the officers. As noted above, on a motion for summary judgment the court views the facts in the light most favorable to the nonmoving party. From this perspective it is clear that material issues of fact exist with respect to Eley's conduct under the first theory. Plaintiff has presented evidence tending to show that Eley directed the officers to assist in the removal of Shannon Smith. Deposition of Shannon Marie Smith, at 16-17. Plaintiff's position under the second theory is more difficult. In Oklahoma City v. Tuttle,471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) the Supreme Court held that a supervisor could not be held liable for inadequate training of police officers based exclusively on one incident of police misconduct. Id. at 821, 831, 105 S.Ct. at 2435, 2440. That is apparently just what plaintiff attempts to do here. In his Memorandum in Opposition, plaintiff cites no facts supporting his claim of inadequate training, independent of the alleged misconduct of Offret and Yates on this occasion. Since adequate time for discovery has passed, and since independent evidence of inadequate training is an essential element of this theory of proof, summary judgment holding the second theory inadequate as a matter of law is appropriate. See Celotex Corp. v. Catrett,477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
4. Qualified Immunity
Finally, defendants claim summary judgment should be granted in this case because the defendant sheriffs are entitled to qualified immunity as a matter of law under Harlow v. Fitzgerald,457 U.S. 800,
102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In Malley v. Briggs,475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the Supreme Court held that the affirmative defense of qualified immunity is available to law enforcement officers in a proper case. The defense of qualified immunity extends only to prevent suits for damages and does not prevent injunctive relief. Pulliam v. Allen,466 U.S. 522, 536-43, 104 S.Ct. 1970, 1977-81, 80 L.Ed.2d 565 (1984); Supreme Court v. Consumers Union,446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Mitchum v. Foster,407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Thus, the defense, if granted as a matter of law, would not completely dispose of this case, since an injunction6 and declaratory judgment are also requested.
In Schaefer v. Wilcock,676 F.Supp. 1092, 1107 (D.Utah 1987) this court noted that,
[a]nalysis of the availability of immunity under Harlow and Creighton involves two steps: (1) the court must determine whether the right allegedly violated was "clearly established at the time [the] action occurred." Harlow, 457 U.S. at 818 [102 S.Ct. at 2738]; and (2) the court must make a more particularized determination that "the contours of the right [were] sufficiently clear that a reasonable official would understand [his conduct in a particular case] violates that right." Creighton, 107 S.Ct. at 3039.
In this case, plaintiff asserts that the actions of Eley, Offret and Yates violated his clearly established liberty interest in maintaining a parent-child relationship and his right to procedural due process. In support of this assertion plaintiff cites Wise v. Bravo,666 F.2d 1328, 1331-32 (10th Cir.1981) and a long line of Supreme Court cases7 recognizing that the relationship between parent and child is constitutionally protected. It is beyond doubt that "the relationship between a parent and child is constitutionally protected." Wise, 666 F.2d at 1331. It is further clear that, at a minimum, such protected relationship may not be interfered with, without due process.