Date: 05-31-2002

Case Style: Theodore S. Brown and James Linnehan, et al. v. Eli Newberger, et al.

Case Number: 01-2410

Judge: Coffin

Court: United States Court of Appeals for the Tenth Circuit

Plaintiff's Attorney: Barbara C. Johnson on brief for appellants Brown and Linnehan.

Defendant's Attorney: 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.

Description: 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.

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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).

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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)

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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.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None