#73, Drano Series
Decision of an Appeal When I filed this appeal, I had absolutely no hope of winning it. I hoped only that I would get one or two sentences which would crack open a wee bit the door locked tight by immunity.
Fighting Immunity:* Sovereign Immunity
for the State* Absolute, Quasijudicial Immunity
for so-called mental-health workers
appointed by the court* Qualified Immunity
for public officials and certain private parties
I think I succeeded. See below: if judges are people, they are accountable -- according to Article V of the Massachusetts Declaration of Rights. This one might be appealed to the U.S. Supreme Court on that question. It might also be used for the appeal in my judge case.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 01-2410 Theodore S. Brown
James Linnehan
Plaintiff/Appellantsv.
Eli Newberger
Children's Hospital
Amy C. Tishelman
Brockton Division of the
District Court Department
of the Trial Court of Massachusetts
Mass. Dept. of Social Services
Eileen Kern
Sandra Fyfe
Christopher Salt
Jack McCarthy, Jr.
Defendant/Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.Barbara C. Johnson on brief for appellants Brown and Linnehan.
J. Walter Freiberg, III, Heather Dauler and Weston, Patrick, Willard
& Redding on brief for appellee Kern.Thomas F. Reilly, Attorney General, Patrick J. Cassidy, Assistant
Attorney General, on brief for appellees Trial Court of Massachusetts
and Department of Social Services.William P. Hurley and Cogavin & Waystack on brief for appellee
McCarthy.Rebecca J. Wilson, Sandra P. Criss and Peabody & Arnold LLP,
on brief for appellee Fyfe.Alexander G. Gray on brief for appellee Salt.
John J. Reardon, Kim S. Gainsboro and Hassan & Reardon, P.C., on
brief for appellees Newberger, Tischelman and Children's Hospital,
Inc.May 30, 2002
COFFIN, Senior Circuit Judge. These consolidated appeals follow on
the efforts of plaintiffs-appellants, Theodore Brown and James
Linnehan, to acquire rights to visit their children. The children had
been taken by their mothers during pending divorce and custody
proceedings from Maine to Massachusetts, where the mothers obtained
court orders barring the fathers from visitation on the basis of
findings of sexual abuse.Brown and Linnehan joined in filing a suit in the United States
District Court for the District of Massachusetts against a dozen
defendants, including the Trial Court of Massachusetts, the
Massachusetts Department of Social Services (DSS), Children's
Hospital, several doctors, and mental health and social workers.The complaint asserted twelve claims against various defendants. Six
invoke federal law: Count Two (Fourteenth Amendment, interference
with parental rights); Counts Three and Four (Civil Rights Act, 42
U.S.C. § 1983); Count Eight (Civil RICO, 42 U.S.C. §§ 1961-68); and
Counts Five and Six (unspecified federal and civil rights laws). Six
claims assert violations of state laws: Count One (negligence); Count
Seven (defamation); Count Nine (breach of contract); Counts Ten and
Eleven (negligent and intentional infliction of emotional distress);
and Count Twelve (Chapter 93A). The district court dismissed the
federal-law claims with prejudice and the state-law claims without
prejudice.
I. Factual Background
Brown's complaint alleged that in 1996 his ex-wife hired defendant
Eli Newberger, M.D., a pediatrician and Director of the Family
Development Program of Children's Hospital, to conduct a sexual abuse
evaluation of her children. This took place over a period in excess
of seven months. Newberger's team included defendant Amy Tischelman, M.D., who interviewed Brown's children. Their joint report was submitted to Brown's ex-wife and was ultimately given to the court,
which then denied visitation rights to Brown.Linnehan's case presents a more complex series of events. In 1988,
defendant Kern, a social worker employed by New Bedford Child and
Family Services, met with the mother of Linnehan's child Brenden, and
with Brenden. Developing a concern over the possibility of child
abuse, Kern deemed herself a "mandatory reporter" under Massachusetts
law, and submitted a report to DSS. This led to a court-ordered
sexual abuse evaluation of Brenden by the Collis Center. Defendant
Sandra Fyfe, a Collis Center employee, performed the evaluation. A
second court-ordered evaluation was also done in 1988 by defendant
Christopher Salt, who submitted a written report to the court and
updated it in 1992. Also in 1992, at the suggestion of Brenden's
mother's attorney, defendant Newberger conducted an assessment
spanning several months, and ultimately submitted his report to the
court. In 1993, both Linnehan and Brenden's mother agreed that
defendant McCarthy would serve as Brenden's therapist and would
submit reports to the Probation Department of the court every six
months. The period of such evaluation extended into 1999. During all
this time, Linnehan continued to be denied visitation rights.II. Discussion
As we review the three voluminous volumes of appendices containing
some but not all of the submissions by all the parties, the
thirty-seven page opinion of the district court, and the multiple
appellate briefs, we cannot escape the conclusion that all has been
said that can be said. At the present juncture, this litigation has
reached the point where dedication and commitment have outrun legal
merit. Without intending any disrespect, therefore, we shall briefly
indicate our reasons for affirming, without implying that they are
the only grounds available.A. Claims against the Massachusetts Trial Court and DSS
The claims under 42 U.S.C. § 1983 fail because a state and its
agencies are not "persons." Will v. Mich. Dept. of State Police, 491
U.S. 58, 71 (1989). The claims based on the Fourteenth Amendment fail
because there has been no unequivocal abrogation of the
Commonwealth's Eleventh Amendment immunity. See Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 55-56 (1996); Alabama v. Pugh, 438 U.S.
781, 782 (1978). Appellants having sued only state agencies, not
officials, there is no basis for invoking Ex parte Young, 209 U.S.
123 (1908). Nor is there any basis for claims that the state agencies
violated state law. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 119-21 (1984).On appeal, appellants launch a strenuous argument that
Massachusetts has, from its beginning, waived its immunity
from citizen suits through Articles 5 and 11 of its Declaration of
Rights. Article 5 reads in part that "the several magistrates and
officers of government . . . are at all times accountable to [the
people]." Article 11 proclaims merely that individuals "ought
to find a certain remedy" for all injuries or wrongs.We are not certain that this argument, although raised in plaintiffs'
opposition to the state defendants' motion for judgment on the
pleadings, continued to be pursued. Appellees Fyfe and Salt contend
that it was not raised before the district court. The court in its
opinion did not allude to it. In any event, the argument is
transparently flawed. Article 5 does not speak of either the
Commonwealth or its agencies as entities; the reference is to
individuals. The language is so far removed from unequivocally
indicating that citizens have a right to sue the state in state or
federal court that it is not surprising that appellants have found
no reference to the claim in any reported cases and concede
that Article 5 is "alive, albeit ignored." The argument fails.
NOTE: The text in this color is what is fascinating and could be brought to the United States Supreme Court. It is true that Article V of the Massachusetts Declaration of Rights refers to people:All power residing in the people, and being deried from them, the several magistrates [meaning judges] and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them. --The two question raised are (1) whether the Sovereign Government of Massachusetts is included in that Article and (2) whether judges, who have all the strengths and flaws of ordinary people, MUST be accountable.
B. Civil RICO claims against all defendantsThese claims were not argued in appellants' main brief on appeal,
appearing only in a reply brief. As we have held in the past, an
issue raised only in a reply brief is forfeited. See, e.g., County
Motors v. Gen. Motors Corp., 278 F.3d 40, 43 (1st Cir. 2002); N. Am.
Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45 (1st Cir. 2001). In
any event, as the district court noted, the references to telephone
conversations and uses of the mails fail to meet the particularity
requirements of Fed. R. Civ. P. 9(b). See Ahmed v. Rosenblatt, 118
F.3d 886 (1st Cir. 1997).C. Claims against Children's Hospital, Newberger,
Tischelman, Kern, and McCarthyWe dispose of these claims with a common holding that because all of
these defendants were private actors, they cannot be subjected to
Section 1983 liability as having acted under color of state law. We
apply the familiar test first articulated in Ponce v. Basketball
Fed'n of Puerto Rico, 760 F.2d 375 (1st Cir. 1985), to determine if
one can be considered a state actor: "(1) whether there was an
elaborate financial or regulatory nexus between appellants and the
government . . . which compelled appellants to act as they did, (2)
an assumption by appellants of a traditionally public function, or
(3) a symbiotic relationship involving the sharing of profits." Id.
at 377.Appellants concede that the court did not ask Children's Hospital and
Dr. Newberger to do anything. Instead, appellants claim that state
action stemmed from the fact that Dr. Newberger knew that his reports
would be used by the court. Clearly, the district court was correct
in holding that mere knowledge of probable future use met none of the
three tests. Likewise, Dr. Tischelman must also be accorded private
actor status, because her involvement was merely that of a member of
Newberger's team and the interviewer of Brown's younger children.Defendant Kern's liability as a state actor is pressed on the basis
that she filed a report of suspected sexual abuse of Brenden Linnehan
with DSS. Mass. Gen. Laws ch. 119, § 51A, requires a wide variety of
social and health workers to file such reports if they have
reasonable cause to believe a child is suffering from sexual abuse.
Both the failure to file reports and frivolous filings are punishable
by fine. One required to file such a report is protected from
criminal or civil liability. Within sixty days from receipt of such a
report, DSS must notify the reporter of its determination of the
nature, extent, and causes of injuries and the social services it
intends to provide. While this kind of "mandatory reporting" goes
somewhat beyond the cases dealing with the voluntary furnishing of
information to the police, which we have considered in Rivera-Ramos
v. Roman, 156 F.3d 276, 282 (1st Cir. 1998), and Roche v. John
Hancock Mutual Life Insurance Co., 81 F.3d 249, 254 n.2 (1st Cir.
1996), we conclude that the reporting requirement under section 51A
does not create the kind of regulatory nexus that could justify
treating Kern as a state actor.The specific action of Kern was merely to signal the need for DSS to
look into the matter and decide for itself whether there was a
problem and what to do about it. Nothing seems more counterintuitive
to us than to reason that a statute which protects one who complies
from civil or criminal actions under state law should be the vehicle
for subjecting the actor to liability under federal law. Although
this issue has, understandably, arisen only rarely in decided cases,
we agree with the holdings in Thomas v. Beth Israel Hospital Inc.,
710 F. Supp. 935 (S.D.N.Y. 1989), and Haag v. Cuyahoga County, 619 F.
Supp. 262, 283 (N.D. Oh. 1985), aff'd, 798 F.2d 1414 (6th Cir. 1986)
(filing a mandatory child abuse report does not constitute state
action). (1)
Footnote 1.
Indeed, under 42 U.S.C. § 5106a(b)(iv) and its 1974 predecessor,
42 U.S.C. § 5106a(b)(1)(B), federal grants to states for child abuse
programs require a state to include provisions for immunity from
prosecution under state and local laws, such as Mass. Gen. Laws ch.
119, § 51A. At least one court has ruled that Congress itself has
impliedly created an immunity from section 1983 liability through
this legislation. Thomas v. Chadwick, 274 Cal. Rptr. 128, 136-37, 224
Cal. App. 3d 813, 824 (App. 1990).
Defendant McCarthy, earlier alleged to have been a court-appointed
investigator by plaintiffs, was later emphatically characterized as a
private individual by plaintiffs, who asserted that Brenden's parents
had agreed that he was to be the child's therapist and report
periodically to the court's Department of Probation. Appellants
invoke state actor status, based on the action of McCarthy in filing
the reports. In McCarthy's case, there is not even a statutory
framework for such action, it being the product of agreement between
private parties. Nor are any of the other determinants of state
action implicated.D. Claims against Salt and Fyfe
Appellants pose several arguments concerning these claims. The first
is that neither Salt nor Fyfe was properly appointed. In the case of
Salt, who appellants alleged was appointed by the court as an
evaluator, the argument is that he was improperly appointed under
Mass. Gen. Laws ch. 119, §§ 21, 24, which require the appointee to be
qualified as an expert. Salt, the argument continues, was never so
qualified. In Fyfe's case, the argument is that it was her employer,
Collis Center, and not Fyfe, who was court appointed.The essential fact is that both defendants were operating at the
request of the court. They submitted their reports to the court,
which accepted them, and considered them in its actions. We agree
with the district court which found that "Salt was acting in close
association with the judicial process" and that "Fyfe was
indisputably acting to carry out a court order." In Watterson v.
Page, 987 F.2d 1, 8 (1st Cir. 1993), we refused to consider a claim
that a psychologist had investigated appellant's family "without
express court authority and direction to do so," observing that
"[t]he right to family integrity clearly does not include a
constitutional right to be free from child abuse investigations." Id.
Were collateral and retrospective attacks on technical defects of
court appointments permitted, the court's work in an already
difficult litigation field would often be undone, with consequent
uncertainty, delay, and frustration.Viewing the functions performed by Salt and Fyfe, as we are required
to do, Cleavenger v. Saxner, 474 U.S. 193, 201 (1985), we conclude
that the information gathering, reporting, and recommending tasks of
both are similar in nature and purpose to those of a guardian ad
litem and qualify to confer absolute quasi-judicial immunity. See Cok
v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989). Another argument made
against both defendants is that they sacrificed whatever immunity
they may have had by their actions violating plaintiffs'
constitutional rights. Here, too, however, Cok makes a relevant
comment about the nature of judicial immunity and therefore
quasi-judicial immunity. We stated there that the entitlement is to
"absolute immunity from civil liability for any normal and routine
judicial act. . . . This immunity applies no matter how erroneous
the act may have been, how injurious its consequences, how
informal the proceeding, or how malicious the motive." Id. at 2.
We therefore hold that Salt and Fyfe are entitled to the protective
cloak of absolute quasi-judicial immunity.E. Other Issues
A residue of other issues remains, as to which we have only the
briefest of comments. The district court conscientiously probed the
complaint and, giving plaintiffs-appellants the benefit of doubt,
reconstructed a conspiracy claim under 42 U.S.C. § 1985(3), which,
however, was defective, lacking any identification of a cognizable
class. This issue, however, has not been pursued on appeal and is
forfeited.Counts 5 and 6, as previously noted, seek to invoke unidentified
federal and state civil rights laws. They do not survive even
deferential analysis and are not pursued on appeal.Appellants take issue with the district court's having removed a
default judgment against defendant Newberger. We have reviewed the
reasons advanced in Newberger's motion to remove default and cannot
fault the district court's exercise of discretion in granting it. We
could see very little delay and no discernible prejudice. See Coon v.
Grenier, 867 F.2d 73, 78 (1st Cir. 1989).Finally, we further approve the dismissal of the state claims against
all defendants except the Trial Court and DSS, without prejudice. The
state claims against the Trial Court and DSS, as we have noted, must
be dismissed with prejudice.Affirmed.
drano-footer
A word about the Google ads being added to this site
Sooooo . . . not only can the few dollars from the ads pay for the expenses of this website, you, too, can also benefit: you can learn on your own which attorneys and which self-help groups in those areas of the law are available to help you.
Hoping that the ads will give you sufficient information to satisfy your requests for recommendations and referrals, I have been reformatting the files on this website to accommodate the maximum number of ads that Google's policy allows per file.
By the way, I have no control over which ads appear. They are chosen by Google according to the content -- I think -- in each file.
HELP: Any HTML programmer know how to get rid of the extra <> below the Google ads at the top of the files and the <> in the upper right-hand corners of the Google ads on the right-hand side of the screen? i've wasted hours, if not days, trying to figure out WHY they are there in some files and not in others . . . and how to get rid of them. THANKS!!
Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833