Doe v. Chapman

30 F.4th 766

Jane DOE, BY NEXT FRIEND Anthony E. ROTHERT, Plaintiff - Appellee

v.Michelle CHAPMAN, in her official capacity as Circuit Clerk for Randolph County, Defendant - Appellant

No. 21-1692

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2022

Filed: April 7, 2022

Molly E. Carney, Anthony E. Rothert, Jessie M. Steffan, American Civil Liberties Union of Missouri, Saint Louis, MO, Gillian R. Wilcox, ACLU of Missouri Foundation, Kansas City, MO, for Plaintiff - Appellee.

Jesus Armando Osete, Justin D. Smith, Attorney General's Office, Jefferson City, MO, for Defendant - Appellant.

Before BENTON, SHEPHERD, and STRAS, Circuit Judges.

BENTON, Circuit Judge.

In Missouri, an abortion may not be performed on a woman under the age of 18 without, as relevant here, the informed written consent of one parent or guardian. § 188.028.1(1), RSMo 2016 . A minor may bypass this requirement by obtaining a court order granting the right to self-consent (for mature minors), or judicial consent (for "best interests" minors). §§ 188.028.1(3), 188.028.2(3) . The minor (or next friend) must apply to the juvenile court. § 188.028.2(1) . Within five days, the juvenile court must hold a hearing. § 188.028.2(2) . The juvenile court may then (a) find the minor is sufficiently mature and grant the right to self-consent, (b) find the abortion is in her best interests and give judicial consent, or (c) deny the petition. § 188.028.2(3) . The current text of § 188.028 neither requires nor prohibits pre-hearing parental notification.

Jane Doe, then 17 years old, discovered she was pregnant in December 2018. Seeking an abortion, she went to the Randolph County Courthouse to apply for a judicial bypass. An employee at the clerk's office hadn't heard of the judicial bypass procedure, said they would do some research, and told Doe to come back later. A few weeks later, Doe returned. An employee told her "they were pretty sure that [she] could not open the petition without notifying a parent." After this second visit, Doe received a call from the circuit clerk of Randolph County, Michelle A. Chapman. She offered to provide an application form but said that "our Judge requires that the parents will be notified of the hearing on this." Returning to the courthouse in mid-January, Doe was again told that a parent would be notified if she filed an application. She eventually traveled to Illinois in March 2019, obtained a judicial bypass, and had an abortion without parental consent or notification.

Doe sued Chapman in her individual and official capacities under 42 U.S.C. § 1983, alleging that Chapman's refusal to allow her to apply for a judicial bypass without parental notification violated her Fourteenth Amendment rights. Chapman moved for summary judgment, invoking quasi-judicial and qualified immunity. The district court¹ denied the motion. Chapman appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

This court reviews de novo the denial of summary judgment based on quasi-judicial and qualified immunity. VanHorn v. Oelschlager , 457 F.3d 844, 847 (8th Cir. 2006).

I.

Chapman asserts quasi-judicial immunity, claiming she acted at the direction of Associate Circuit Judge James Cooksey, the juvenile judge in Randolph County. Chapman testified she "chatted with James Cooksey" and "his ad-- his words were that he would require us to send notification to these parties." She added that Judge Cooksey "advised that he would not hear the case without giving notice to the parents," and that she was simply "following what he said he was going to require to hear the case." After her call with Doe, Chapman sent an email to a juvenile officer confirming that "I also let her know that our Judge requires that the parents will be notified of the hearing on this."

The district court agreed that, if Chapman acted at the direction of a judge, she would be shielded by quasi-judicial immunity. See Rogers v. Bruntrager , 841 F.2d 853, 856 (8th Cir. 1988) ; McCaw v. Winter , 745 F.2d 533, 534 (8th Cir. 1984). However, when Judge Cooksey was asked if he ever told Chapman not to accept an application without notifying Doe's parents, he testified, "Not to my recollection. I wouldn't have had any authority to do that unless something was filed and I looked at the law. It's not how I usually would operate." The district court, "[v]iewing this testimony in the light most favorable to plaintiff and drawing all reasonable inferences in her favor," found a genuine dispute of material fact whether Judge Cooksey gave Chapman a direction about Doe.

Chapman argues that Judge Cooksey's statements do not create a genuine dispute of material fact because a lack of memory, by itself, is insufficient.

True, a lack of memory does not, alone, create a genuine dispute of material fact. See, e.g., To v. U.S. Bancorp , 651 F.3d 888, 892 n.2, 893 (8th Cir. 2011) ("An assertion that a party does not recall an event does not itself create a question of material fact about whether the event did, in fact, occur .... To's lack of memory does not create a genuine factual dispute."), citing Elnashar v. Speedway SuperAmerica, LLC , 484 F.3d 1046, 1057 (8th Cir. 2007) ("Erickson's inability to recall the hours-reduction policy does not dispute Stehr and Schneider's testimony that the policy existed."). But Judge Cooksey's testimony does not convey only a lack of memory. It references a regular practice of declining to give pre-filing directions. The question is whether this practice evidence creates a genuine dispute of material fact whether Judge Cooksey gave Chapman a pre-filing direction.

Federal courts consider "all admissible evidence" on a motion for summary judgment. Jain v. CVS Pharmacy, Inc. , 779 F.3d 753, 759 (8th Cir. 2015) ; Gannon Int'l, Ltd. v. Blocker , 684 F.3d 785, 793 (8th Cir. 2012) ("[T]he standard is not whether the evidence at the summary judgment stage would be admissible at trial—it is whether it could be presented at trial in an admissible form."), citing Fed. R. Civ. P. 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.").

"Rule 406 provides that ‘[e]vidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine.’ " Burris v. Gulf Underwriters Ins. Co. , 787 F.3d 875, 881 (8th Cir. 2015), quoting Fed. R. Evid. 406 . The rule reflects "general agreement" that habit evidence "is highly persuasive as proof of conduct on a particular occasion." Fed. R. Evid. 406, Notes of Advisory Committee , ¶ 4 (1972). The notes define "habit" as "the person's regular practice of meeting a particular kind of situation with a specific type of conduct." Id. at ¶ 2.

Because all admissible evidence is considered on summary judgment, and because Rule 406 admits habit evidence, habit evidence is considered on summary judgment. "Courts may accept Rule 406 evidence at the summary judgment stage as providing an inference that a routine practice was actually carried out." Hancock v. Am. Tel. & Tel. Co. , 701 F.3d 1248, 1261-62 (10th Cir. 2012) (summary judgment declarations of employees about the standard practice for acceptance of contract terms were evidence that particular customers accepted the terms), citing Morris v. Travelers Indem. Co. of Am. , 518 F.3d 755, 761 (10th Cir. 2008) (reversing summary judgment where district court failed to consider testimony about insurance agent's regular sales practices); Gould v. Winstar Commc'ns, Inc. , 692 F.3d 148, 161 (2d Cir. 2012) (reversing summary judgment where an investment analyst was "unable to recall specifically" whether she reviewed an opinion letter endorsing a stock, but "there was evidence that she actively reviewed such letters as a matter of practice in deciding whether to recommend certain stocks" and explaining that "[a]t this stage of the proceedings, Asher's testimony is enough; from that evidence, a jury reasonably could infer that she actually reviewed and relied on the relevant statements in the documents"); Rogers v. Evans , 792 F.2d 1052, 1061 (11th Cir. 1986) (considering on summary judgment a prison doctor's testimony that she "would [not] normally describe a patient as faking," even though she did not recall what she said about a particular prisoner).

This court considers habit evidence on summary judgment. In Yellow Horse v. Pennington County , a prisoner's estate sued a corrections officer, alleging deliberative indifference to the prisoner's mental health needs and suicide risk. Yellow Horse v. Pennington Cty. , 225 F.3d 923, 925-26 (8th Cir. 2000). The officer moved for summary judgment. The officer could not "specifically recall taking Yellow Horse off suicide watch." Id. at 927. She did testify that her "routine practice for removing someone from suicide watch was that she would gather information by reviewing the contact journal, which contained information on the eating, sleeping and social habits of the inmate, and then interview and evaluate the inmate before removing him from suicide watch." Id. This court relied on habit evidence:

The estate makes much of Severson's failure to specifically recall taking Yellow Horse off suicide watch. However, Severson's .... failure to specifically remember taking Yellow Horse off suicide watch is hardly surprising in light of the intervening time between the suicide and the statements, and does not create a genuine issue of material fact. Severson testified that if she did, in fact, remove Yellow Horse from the watch, the aforementioned process would have been followed. The estate cannot show otherwise, and therefore cannot meet its burden of establishing a material fact which would preclude summary judgment in favor of Severson.

Id. at 927-28. See also McPherson v. O'Reilly Auto., Inc. , 491 F.3d 726, 729 (8th Cir. 2007)...