United States District Court, D. Minnesota
TONYA UDOH and EMEM UDOH, individually, and on behalf of their minor children, K.K.W. and K.C.W., Plaintiffs,
MINNESOTA DEPARTMENT OF HUMAN SERVICES; CHARLES E. JOHNSON; DONOTHAN BARTLEY; ANN NORTON; DANIEL E. JOHNSON; CATRINA BLAIR; CITY OF MAPLE GROVE; CITY OF MAPLE GROVE POLICE DEPARTMENT; MELISSA PARKER; CITY OF PLYMOUTH; CITY OF PLYMOUTH POLICE DEPARTMENT; MOLLY LYNCH, KELVIN PREGLER; INDEPENDENT SCHOOL DISTRICT NO. 279; JOANNE WALLEN; KAREN WEGERSON; ANN MOCK; CORNERHOUSE; PATRICIA HARMON; BILL KONCAR; GRACE W. RAY; and LINDA THOMPSON, Defendants.
and Emem Udoh, pro se.
Frederick J. Argir, MINNESOTA ATTORNEY GENERAL'S OFFICE,
for defendants Minnesota Department of Human Services and
Charles E. Johnson.
Christiana M. Martenson and Daniel D. Kaczor, HENNEPIN COUNTY
ATTORNEY'S OFFICE, for defendants Donothan Bartley, Ann
Norton, Daniel E. Engstrom,  Catrina Blair, and Linda Thompson.
C. Midolo and Paul D. Reuvers, IVERSON REUVERS CONDON, for
defendants City of Maple Grove, City of Maple Grove Police
Department, Melissa Parker, City of Plymouth, City of
Plymouth Police Department, Molly Lynch, and Kelvin Pregler.
P. Edison and Michael J. Waldspurger, RUPP, ANDERSON, SQUIRES
& WALDSPURGER, P.A., for defendants Independent School
District No. 279, Joanne Wallen, Karen Wegerson, and Ann
R. Marti and Lauren O. Roso, DORSEY & WHITNEY LLP, for
defendants CornerHouse, Patricia Harmon, Bill Koncar, and
Patrick J. Schiltz United States District Judge
Emem Udoh was convicted by a jury of sexually abusing his
stepdaughters, K.K.W. and K.C.W. His conviction was upheld by
the Minnesota Court of Appeals, and the Minnesota Supreme
Court denied further review. State v. Udoh, No.
A14-2181, 2016 WL 687328 (Minn.Ct.App. Feb. 22, 2016),
review denied (Minn. Apr. 27, 2016). Udoh and his
wife, plaintiff Tonya Udoh (the biological mother of K.K.W.
and K.C.W.), then brought this lawsuit against just about
every teacher, principal, social worker, police officer,
forensic interviewer, and physician who was involved in
investigating the sexual-abuse allegations against Udoh.
matter is before the Court on the Udohs' objection to
Magistrate Judge Steven E. Rau's July 26, 2017 Report and
Recommendation (“R&R”). Judge Rau
recommends granting the defendants' motions to dismiss
and for judgment on the pleadings and denying the Udohs'
motions to amend their complaint. The Court has conducted a
de novo review. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(3). Based on that review, the Court
overrules the Udohs' objection and adopts Judge Rau's
R&R, except as modified below.
Udohs' objection largely consists of unexplained string
citations to inapposite cases. But the Court has reviewed
their voluminous filings, and thus the Court is familiar with
their arguments. Only a few matters merit comment:
because the Udohs are not attorneys, they “may not
litigate the claims of their minor children in federal
court.” Adams ex rel. D.J.W. v. Astrue, 659
F.3d 1297, 1300 (10th Cir. 2011) (citation omitted); see
also Myers v. Loudoun Cty. Pub. Sch., 418 F.3d 395, 401
(4th Cir. 2005) (collecting cases). The Udohs do not cite-and
the Court has not found-any case carving out an exception to
this rule for § 1983 claims or state tort claims.
Elustra v. Mineo, 595 F.3d 699, 705 (7th Cir.
2010). The Court therefore agrees with Judge Rau
that any claims belonging to the Udohs' daughters should
be dismissed. But contrary to Judge Rau's recommendation,
the Court finds that the dismissal of the children's
claims should be without prejudice. See Cheung v. Youth
Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 62 (2d
Cir. 1990) (remanding the case to allow for appointment of
counsel or dismissal without prejudice).
the Udohs claim that the defendants violated their
constitutional rights by interviewing and removing their
daughters without the Udohs' consent. Parents have a
“fundamental right . . . to make decisions concerning
the care, custody, and control of their children.”
Troxel v. Granville, 530 U.S. 57, 66 (2000). But the
state has a “compelling” interest in protecting
children from abuse. Globe Newspaper Co. v. Super. Ct.
for Norfolk Cty., 457 U.S. 596, 607 (1982). In light of
that compelling interest, the Eighth Circuit has
“repeatedly held that . . . a state official [who]
takes an action that would otherwise disrupt familial
integrity . . . is entitled to qualified immunity if the
action is properly founded upon a reasonable suspicion of
child abuse.” K.D. v. Cty. of Crow Wing, 434
F.3d 1051, 1056 (8th Cir. 2006).
the defendants did not act on the basis of something akin to
a “‘six-fold hearsay report by an anonymous
informant.'” Mammaro v. N.J. Div. of Child
Prot. & Permanency, 814 F.3d 164, 170 (3d Cir. 2016)
(quoting Croft v. Westmoreland Cty. Children & Youth
Servs., 103 F.3d 1123, 1126 (3d Cir. 1997)). Rather,
K.K.W. was initially interviewed after one of her friends
told a teacher that K.K.W. had been sexually abused. Compl.
¶ 57. During that interview-and during all subsequent
interviews- K.K.W. herself told various defendants that Emem
had sexually abused her and her younger sister. See,
e.g., Compl. Ex. A. at 5. Only after being told on
multiple occasions by K.K.W. that she and her sister had been
sexually abused did the defendants remove the girls from
their home and place them with their biological father.
Compl. ¶¶ 82-83; ECF No. 59-13 at 3-4. Under these
circumstances, the defendants' actions in interviewing
and removing both girls are clearly protected by qualified
the Udohs claim that Donothan Bartley, a child protection
services investigator, examined the “private
bodies” of their daughters for signs of sexual abuse.
Compl. ¶¶ 66, 72. The Court will assume that this
allegation is true, although it appears farfetched, and
although it is undermined by the transcripts that are
attached to the Udohs' complaint. Nelson v. Midland
Credit Mgmt., Inc., 828 F.3d 749, 751 (8th Cir. 2016).
But if this search actually occurred, the search would
implicate K.K.W.'s and K.C.W.'s Fourth Amendment
right to be free from unreasonable searches, not the
Udohs' Fourteenth Amendment right to family integrity.
Compare Michael C. v. Gresbach, 526 F.3d 1008,
1013-18 (7th Cir. 2008) (analyzing an under-the-clothes
examination of a private school student under the Fourth
Amendment), with Greene v. Camreta, 588 F.3d 1011,
1036-37 (9th Cir. 2009), vacated in part on other
grounds, 563 U.S. 692 (2011) (holding that the
Fourteenth Amendment may be violated ...