Alwyn v. Duval, (1st Cir. 2001)

Text

---

[Not for Publication - Not to be Cited as Precedent]

United States Court of Appeals

For the First Circuit

No. 01-1270

SIMONE-ALYS ALWYN, INDIVIDUALLY AND AS PARENT AND NEXT FRIEND,

B/N/F PERIELL ALWYN, B/N/F SIDANNEN ALWYN, B/N/F CERRIDWEN

ALWYN; MICHAEL ALWYN, INDIVIDUALLY AND AS PARENT AND NEXT

FRIEND OF PERIELL ALWYN, SIDANNEN ALWYN AND CERRIDWEN ALWYN,

Plaintiffs, Appellants,

v.

JOHN DUVAL; MICHAEL RUSSELL, LT.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Stahl, Senior Circuit Judge.

Paula J. Werme for appellant.

Charles P. Bauer, with whom John T. Alexander and Ransmeier

& Spellman Professional Corporation were on brief, for appellee.

November 5, 2001

STAHL, Senior Circuit Judge. Michael and Simone-Alys

Alwyn appeal from the dismissal of their civil rights action

against two Concord police officers, filed in June of 1999

pursuant to 42 U.S.C. § 1983. The appellants first claimed that

Officer John Duval and Lieutenant Michael Russell violated their

constitutional rights by making misrepresentations about the

condition of their apartment, which resulted in the appellants

temporarily losing custody of their children. The district

court dismissed this claim for lack of subject matter

jurisdiction pursuant to the Rooker-Feldman doctrine. Second,

the appellants alleged that the officers violated their Fourth

and Fourteenth Amendment constitutional rights by conducting a

warrantless search of their home. This claim was dismissed by

the district court on defendants' motion for summary judgment

after finding that there were no genuine issues of material fact

in dispute. The Alwyns appeal these adverse rulings. We

affirm.

I.

On June 12, 1996, Mrs. Alwyn reported to the Concord

Police Department that two of her children were missing.

Officer Duval was dispatched to the Alwyns' home, and upon his

arrival, asked the Alwyns whether he could search the house

because "missing" children are frequently found to have been

hiding inside their own home. Duval became suspicious when

appellants insisted that they had already searched the house and

refused to allow him to enter. Duval asked Mrs. Alwyn if there

was any reason why they would not want the police to enter the

apartment. She responded that the apartment merely was not

"very well kept inside." Officer Duval was then joined by a

canine officer of the New Hampshire State Police. The officers

explained to the Alwyns that, in order for the police dog to

search for the children, it needed to obtain the girls' scent.

Notwithstanding this advice, appellants continued to refuse to

allow the officers entry to the apartment. Instead, they

brought out articles of the children's clothing for the police

to use. Officer Duval informed them that it was still necessary

for the canine officer and search dog to enter the apartment

because the search dog needed to sniff the clothing without any

other person having touched it, so that only the children's

scent would be present on the garment. Duval then told the

Alwyns that he did not think they were giving their full

cooperation and that precious time was slipping away. Finally,

Mr. Alwyn agreed to let the police enter the apartment.

However, the parties disagree as to the scope of the consent

ultimately given, with the appellants insisting that they

consented only to the canine officer entering the premises

solely for the purpose of obtaining articles of their daughters'

clothing, and with the appellees, on the other hand, maintaining

that Mr. Alwyn stated "I don't care, go in the apartment,"

signifying unrestricted consent to enter and search for the

children as well.

Mr. Alwyn went into the apartment with the canine

officer, and Duval followed. The canine officer found what he

needed near the door and left. Upon entering, Officer Duval

observed an extremely unkempt and dirty apartment,(1) and summoned

his supervisor, Lieutenant Russell, to assist him in searching

the premises until they were satisfied that the missing children

were not there. Shortly thereafter, the girls were discovered

in the neighborhood and were taken to the Concord Police

Station.

When the Alwyns were notified by the police that their

missing daughters had been located, they were instructed to

bring their other children to the station house. Based on

Duval's and Russell's observations about the conditions in the

Alwyn home, all of the children were taken into protective

custody and placed in foster homes.(2) On June 14, 1996, the New

Hampshire Division of Children, Youth and Families ("DCYF")

filed child neglect petitions in Concord District Court. On

February 13, 1997, after a full evidentiary hearing, the Concord

District Court entered a finding of neglect. On April 10, 1997,

the Concord District Court issued a dispositional order,

authorizing the DCYF to continue its legal supervision over the

children. In May 1997, the Alwyns appealed the dispositional

order to the Merrimack County Superior Court. However, because

the conditions described in the complaint had been corrected,

DCYF agreed to terminate the neglect petitions if the Alwyns

agreed to terminate their appeal of the February order. The

Alwyns agreed and DCYF filed a "Withdrawal of Petitions" on June

11, 1997, and the appeal was terminated.(3)

Appellants raise two issues in this appeal: first, that

the district court erred in ruling that the Rooker-Feldman

doctrine mandated the dismissal of their misrepresentation claim

against the officers; and second, that summary judgment on the

unlawful search claim was inappropriate. We turn first to the

Rooker-Feldman issue.

II.

A federal district court is without subject matter

jurisdiction to review the final decisions of a state court of

competent jurisdiction. Rooker v. Fidelity Trust Co., 263 U.S.

413 (1923). A district court also may not hear federal claims

that are "inextricably intertwined" with the state court's

denial of a claim in a judicial proceeding. District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).(4)

Even when a party does not actually raise the federal claims in

the state court proceeding, "Rooker-Feldman forecloses lower

federal court jurisdiction over claims that are 'inextricably

intertwined' with the claims adjudicated in state court."

Sheehan v. Marr, 207 F.3d 35, 40 (1st Cir. 2000). A federal

claim is inextricably intertwined with the state court claims

"if the federal claim succeeds only to the extent that the state

court wrongly decided the issues before it." Hill v. Town of

Conway, 193 F.3d 33, 39 (1st Cir. 1999). This court reviews de

novo a dismissal for lack of subject matter jurisdiction

pursuant to the Rooker-Feldman doctrine. Wilson v. Shumway, 264

F.3d 120, 123 (1st Cir. 2001).

In the present case, the U.S. District Court held that,

pursuant to the Rooker-Feldman doctrine, it had no subject

matter jurisdiction to hear the Alwyns' misrepresentation claim

in light of the Concord District Court's February 13, 1997

finding of neglect. The district court reasoned that, in order

for appellants' claim to succeed, the fact-finder would have to

reject the officers' testimony regarding the condition of the

Alwyns' home, which would directly contradict the determination

already made by the state tribunal. Consequently, the district

court dismissed the count.

Appellants maintain that there is no final state

judgment that would trigger the Rooker-Feldman doctrine in this

case. Citing State v. Anderson, 142 N.H. 918 (1998),

appellants argue that once they filed their appeal to the

Merrimack County Superior Court, the Concord District Court's

finding of neglect was vacated and rendered a legal nullity.

Anderson held that the state does not violate a guarantee

against double jeopardy when it honors a defendant's request for

a second de novo trial after the first proceeding has resulted

in a conviction. See 142 N.H. at 922. Anderson does not

suggest, however, that the filing of an appeal renders all prior

proceedings a legal nullity, regardless of what transpires

thereafter. In child welfare proceedings, absent a specific

directive by the court, a dispositional order remains in effect

unless and until the superior court overrules the decision after

conducting a second de novo hearing. See N.H. R.S.A. § 169-C:28

("An appeal under this chapter may be taken to the superior

court by the child or the child's authorized representative or

any party having an interest, including the state, or any person

subject to any administrative decision pursuant to this chapter,

within 30 days of the final dispositional order; but an appeal

shall not suspend the order or decision of the court unless the

court so orders."). Therefore, even though the Alwyns would

have been entitled to a de novo rehearing on the issue of

neglect, the mere filing of their appeal did not vacate the

finding of the Concord District Court.

Furthermore, the Alwyns chose not to appeal the initial

finding of neglect in exchange for the termination of state

supervision, which, as they conceded at oral argument, makes

this case indistinguishable from a nonsuit. The New Hampshire

Supreme Court has explicitly held that "the effect of a nonsuit

taken after an appeal is to let the judgment of the court below

'stand as if no appeal had been taken.'" Appeal of Nolan, 134

N.H. 723, 730 (1991) (quoting Simpson v. Gafney, 66 N.H. 477,

477 (1891)). Consequently, the finding of neglect qualifies as

a final judgment of a state court, from which no appeal can be

heard in federal district court under the Rooker-Feldman

doctrine.(5) Accordingly, this count of the Alwyns' complaint was

properly dismissed.(6)

III.

The Alwyns also appeal the decision of the district

court granting summary judgment for the defendants on their

claim that the officers violated their Fourth and Fourteenth

Amendment rights by conducting a warrantless search of their

apartment. Summary judgment is appropriate where there are no

issues of material fact in dispute and "the moving party is

entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). This Court reviews a grant of summary judgment de novo,

examining the record in the light most favorable to the non-moving party. Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d

866, 869 (1st Cir. 1998).

A search conducted without a warrant is presumptively

unreasonable and violates the Fourth Amendment unless an

exception to the warrant requirement exists. Bilida v. McCleod,

211 F.3d 166, 171 (1st Cir. 2000). Valid consent overcomes this

presumption and renders the search constitutionally valid,

United States v. Perez-Montanez, 202 F.3d 434, 438 (1st Cir.

2000), but the search must not exceed the scope of the consent

given. United States v. Coraine, 198 F.3d 306, 310 (1st Cir.

1999). The appropriate inquiry for determining the scope of the

consent given asks, "what would the typical reasonable person

have understood by the exchange between the officer and the

suspect?" United States v. Turner, 169 F.3d 84, 87 (1st Cir.

1999).

In the affidavit filed in conjunction with their

opposition to the defendants' motion for summary judgment, the

appellants claim that Mr. Alwyn gave only the canine officer and

not Officer Duval permission to enter the home, and only for the

purpose of obtaining an article of clothing from the missing

children, so that the search dog could acquire the scent.(7)

However, at the state neglect hearing, Mr. Alwyn was explicitly

asked whether he told Officer Duval, "I don't care, go in the

apartment," to which he responded "Yes, I did say that." In

granting summary judgment, the district court relied upon Torres

v. E.I. Dupont De Nemours & Co., 219 F.3d 13 (1st Cir. 2000),

where this Court held that "[w]hen an interested witness has

given clear answers to unambiguous questions, he cannot create

a conflict and resist summary judgment with an affidavit that is

clearly contradictory, but does not give a satisfactory answer

of why the testimony is changed." Id. at 20 (quoting Colantuoni

v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.

1994)).

The appellants have offered no adequate explanation as

to why the admission made by Mr. Alwyn during the state

adjudicatory proceedings should now be disregarded or called

into question.(8) The transcript from the state adjudicatory

proceeding indicates that the officers asked the Alwyns multiple

times what they were hiding and why they would not let the

police conduct a search of the apartment for the missing

children. The district court's determination that a reasonable

person would have understood Michael Alwyn's statement, "I don't

care, go in the apartment," as his relenting to the repeated

request of the police officers to enter the home to search for

the children was appropriate. Accordingly, the district court

properly granted the officers' motion for summary judgment.IV.

Having found no error in the proceedings below, the

decision of the district court is hereby affirmed.

Affirmed.

1. According to the affidavit of Officer Duval, "[t]he entire

apartment floor, including living room, kitchen, bathroom and

bedrooms were [sic] covered with piles of trash, garbage and

spoiled food, which was mixed up with piles of clothing. The

odor in the house was consistent with rotting food." Officer

Duval also claims to have observed "the kitchen counters

completely covered with meals which appeared to be several days

old. . . [and] a foil pan containing the carcass of cooked

turkey which appeared to be several days old." Lieutenant

Russell's affidavit offers a description consistent with that

provided by Officer Duval.

2. Although the child welfare proceedings continued for almost

a year, the children were returned to the custody of their

parents within days of their removal from the Alwyn home.

3. As the district court noted, "the parties have not

explained the process that ended the superior court proceeding,"

and no further information about the termination of the state

court litigation has been provided to this Court.

4. For a more detailed discussion of the origin of the Rooker-Feldman doctrine, see Wilson v. Shumway, 264 F.3d 120, 123-24

(1st Cir. 2001), and Hill v. Town of Conway, 193 F.3d 33, 34 n.1

(1st Cir. 1999).

5. Appellants have conceded that the Rooker-Feldman doctrine

applies and dismissal was required if the Concord District

Court's finding of neglect was, in fact, a final state court

judgment.

6. In light of the disposition above, we need not address any

other obstacles that appellants would need to overcome in order

to sustain a section 1983 claim stemming from the officers'

alleged misrepresentations. See, e.g., Anderson v. Creighton,

483 U.S. 635 (1987) (qualified immunity); Briscoe v. LaHue, 460

U.S. 325 (1983) (absolute immunity).

7. The Alwyns have not argued that consent was given

involuntarily.

8. The record belies the Alwyns' contention that they could

not adequately explain the inconsistency because they were

precluded by New Hampshire state law, see N.H. R.S.A. § 168-C:25, from making reference to the state court neglect

proceedings, which were under seal. The state court record had

been released to the parties, pursuant to an order by the U.S.

District Court, prior to the district court's ruling. The

Alwyns had the ability to supplement their opposition to the

officers' motion for summary judgment with whatever information

from the state court proceedings that they believed would have

been helpful, but failed to do so.

---