Katz v. NH DCYS

Katz v . NH DCYS CV-93-211-M 11/20/96

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Elena Katz and Arnold D. Grodman,

Individually and as Parents and Next

Friends of Eleonora Rose Grodman,

Plaintiffs,

v. Civil N o . 93-211-M

N.H. Division of Children and Youth Services;

N.H. Department of Health & Human Resources;

Beth Anne Sargent Enriquez; Pamela Shaw; Gayle

Richards; Robert Doty; Christopher T . Regan,

Defendants.

O R D E R

Elena Katz and Arnold Grodman, on behalf of themselves and

their daughter, Eleonora Grodman, assert a number of civil rights

claims under 42 U.S.C.A. § 1983 and state tort claims arising

from the state's having taken Eleonora into protective custody.

The parties' pending motions raise significant jurisdictional

questions in addition to substantive legal issues. For the

reasons that follow, those causes of action remaining after

ruling on the parties' motions shall be remanded to the state

court for further proceedings.

FACT SUMMARY1

Elena Katz and her infant daughter, Eleonora Grodman, were

living in "My Friend's Place," a shelter for temporarily homeless

people, in Dover, New Hampshire, in November of 1991. Eleonora

was five months old at that time. They had previously lived with

Arnold Grodman, Eleonora's father, in Danville, New Hampshire.

On November 2 1 , 1991, the Salem District Office of the New

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

received a report of suspected neglect of Eleonora. The source

of the report was a therapist in Massachusetts whose patient,

Arnold Grodman's brother, told her about possible neglect. The

report was assigned a "moderate risk" level and was referred to

DCYF social worker Gayle Richards. On November 25th, Richards

called Lee Rollo, the program director at "My Friend's Place," to

gather information about Katz's care of her baby. Rollo reported

that Katz was "nuts" and was having problems caring for her

daughter. Richards visited "My Friend's Place" with another

social worker, Beth Anne Sargent, on November 26 to interview

Katz about the reports of neglect. They met with Katz, who

reluctantly brought Eleonora downstairs for the meeting, and

1

The facts summarized here are taken from the parties'

pleadings and are provided for purposes of background only.

2

Katz gave Richards Eleonora's pediatrician's name, address, and

telephone number. Katz refused to discuss whether she was

receiving psychological therapy.

Arnold Grodman arrived during the meeting and identified

himself as Eleonora's father. Grodman explained that his

brother, who was the source of the neglect report, was manic

depressive and had gotten into verbal fights with Katz when the

brother was living with them. He also explained that he visited

Eleonora twice a week and had no concerns about Katz's ability to

care for their daughter. Grodman gave Richards the name,

address, and telephone number of Katz's former psychiatrist and

asked the social workers to contact the psychiatrist about Katz's

mental health. Grodman also provided his own home and business

addresses and telephone numbers and asked that the social workers

contact him if they had further concerns about Eleonora.

Richards contacted Eleonora's pediatrician on December 3 .

The pediatrician said that she had seen the baby at birth and

then for a two-week visit in June 1991 when she found a diaper

rash and yeast infection. She described Katz as "strange" but

had not had contact with her since June.

On December 2 0 , 1991, Rollo, of "My Friend's Place," called

the DCYF office to report on Katz's activities. Richards was not

3

in the office, and the call was taken by Sargent. Rollo reported

that Katz had taken a turn for the worse and was having more

difficulty with herself and the baby. She reported that Eleonora

was not on a schedule, that she was awake all night screaming,

and that Katz was feeding the baby during the night to quiet her.

Rollo also said that Katz was at the point of breaking down from

the stress of taking care of the baby. Rollo reported that Katz

had been heard making bizarre statements and had not brought the

baby downstairs for a day and a half. Rollo also reported that

when she suggested that Katz get counselling Katz responded that

she did not need help, that she was sleep deprived, and was

considering giving her baby up for adoption.

Sargent first discussed Rollo's reports with a supervisor,

Pamela Shaw, and then began to investigate the situation.

Sargent talked to people at the Visiting Nurse Association, who

had been providing follow-up care for Eleonora. They reported

that Katz had been complaining recently of her lack of sleep and

that she was uncooperative, demanding, and antagonistic. Sargent

learned that Katz was receiving aid due to a mental disability

based on a 1987 diagnosis of major affective disorder. Sargent

then called the Strafford County Guidance Center for advice. She

advised the Guidance Center of Rollo's reports and the diagnosis

4

of major affective disorder. An intake worker at the Center who

had never met Katz advised DCYF to take the baby into protective

custody.

Sargent then called the Dover Police Department. Two police

officers were assigned to accompany Sargent to "My Friend's

Place." Katz came downstairs but refused to talk to Sargent, on

advice of her attorney. Eleonora was brought downstairs and

placed in Sargent's car.

A preliminary hearing was held on the neglect petition at

the Dover (New Hampshire) District Court on December 2 1 . Elena

Katz and Arnold Grodman were present and were represented by

counsel. Sargent was also present. The district judge did not

hear testimony, but instead relied solely on the affidavit

submitted by Sargent in support of her neglect petition to find

that the circumstances presented an imminent danger to Eleonora.

The court issued an order finding reasonable cause to believe

Eleonora was neglected and granting DCYF temporary legal custody.

Although the order allowed DCYF to give physical custody of

Eleonora to her father, Eleonora was placed in foster care. The

order allowed liberal visitation. Following the court's

preliminary findings and order, Katz returned to live with Arnold

Grodman, agreed to undergo psychological evaluation, and complied

5

with other conditions required by DCYF. Eleonora was returned to

live with her parents on January 6, 1992, for an extended visit,

and was not again removed.

Christopher Regan represented DCYF at the adjudicatory

hearing on the neglect petition held on January 1 0 , but presented

only one witness. The court suspended the proceedings, and the

parties entered into a consent agreement in which the parents and

DCYF agreed that the neglect proceedings would be suspended; that

Eleonora was not then at risk; that DCYF would continue to

monitor Eleonora's care and the parents would cooperate; that

Katz would resume counselling; and that DCYF would submit a

status report to the court within four months.

Katz did not agree to a subsequent offer by DCYF, conveyed

on May 2 0 , 1992, to the effect that if Katz allowed visits on

DCYF's behalf and promised not to sue DCYF, then DCYF would end

the neglect proceeding against her. The earlier consent decree

continued in effect until July 3 1 , 1992, when a state superior

court judge stayed the consent decree and ordered Regan not to

prosecute the neglect petition unless DCYF obtained more

substantial proof of neglect.

6

In May 1992, Richards completed a DCYF form used for

reporting child neglect to DCYF's central registry.2 The

completed form listed Katz's alleged neglect of Eleonora as

"founded." On June 1 , the neglect form was received and stamped

at the central registry. Katz was not notified until September

that DCYF had completed a founded report of neglect and filed it

with the central registry. Katz administratively appealed the

founded report of neglect, and a hearing was held on July 1 2 ,

1993. The administrative panel determined that as of May 2 6 ,

1992, when Richards completed and filed the founded report of

neglect, probable cause did not exist to support that conclusion.

Accordingly, the hearing panel reversed the DCYF "founded"

determination and ordered it changed to "unfounded."

PROCEDURAL BACKGROUND

Katz, appearing pro se and as next friend of her daughter,

Eleonora, originally brought suit in Strafford County (New

Hampshire) Superior Court in March of 1993. At that time, the

complaint named a large group of state, institutional, municipal,

and individual defendants, including the Division for Children

2

The central registry is a consolidated record of all

founded abuse and neglect reports made under New Hampshire's

Child Protection Act.

7

and Youth Services (now "DCYF"), the Department of Health and

Human Services ("HHS"), "My Friend's Place," the Dover Police

Department, the individual police officers, Attorney Regan,

Richards, Sargent, Rollo, and others. Katz alleged civil rights

claims under 42 U.S.C.A. § 1983 as well as several state law

claims. The police defendants removed the case to this court on

April 2 0 , 1993. Katz's motion to remand was opposed by

defendants and was denied. Plaintiffs were represented by legal

counsel from November 1993, and engaged present counsel in May

1996.

During the course of this litigation, the complaint has been

amended three times and several claims and defendants have been

dismissed. As the case now stands, plaintiffs are Elena Katz,

Eleonora Grodman, and Arnold Grodman. The defendants named in

the third amended complaint are: DCYF; HHS; DCYF employees

Pamela Shaw, Gayle Richards, Mary Beth Sargent Enriquez,3 and

Robert Doty, all of whom are sued in both their official and

individual capacities; and DCYF contract attorney Christopher

Regan, who is also sued in both his official and individual

capacity.

3

Despite her change of name, Mary Beth Sargent Enriquez is

referred to consistently as "Sargent" in this order.

8

Plaintiffs' civil rights claim alleges that the defendants'

actions violated their Fourth Amendment rights to be free from

unreasonable seizures. The plaintiffs also assert state tort

claims for negligence, defamation, and intentional infliction of

emotional distress. Plaintiffs seek injunctive relief as well as

money damages. The parties' pending motions are addressed as

follows.

DISCUSSION

The parties have filed motions raising a number of issues

related to jurisdiction and the merits of plaintiffs' claims. It

is appropriate to consider the latest motion for leave to amend

plaintiffs' complaint first, in order to clearly establish the

parties and causes of action asserted before examining the

remaining pending motions.

A. Leave to Amend

Plaintiffs, through counsel, move for leave to file a fourth

amended complaint, to add a civil rights claim asserting that

Katz's Fourteenth Amendment due process rights were violated by

the placing of her name in the DCYF central registry of persons

9

found to be perpetrators of abuse and neglect.4 Defendants

object, arguing that plaintiffs' amendment should not be allowed

because of delay, prejudice, and the futility of adding the

claim.

Under Federal Rule of Civil Procedure 15(a), leave to amend

"shall be freely given when justice so requires." The court may

exercise its discretion to deny leave to amend only if an

adequate reason such as undue delay, bad faith, dilatory motive

by the moving party, or the futility of the amendment exists to

justify denial. See Grant v . News Group Boston, Inc., 55 F.3d 1 ,

5 (1st Cir. 1995). In light of the impact of the jurisdictional

question on the posture of this case, which is discussed below,

the plaintiffs' amendment will neither cause undue delay nor

prejudice the defendants, and, the court is aware that plaintiffs

have only recently obtained the services of current legal

counsel.

The defendants also argue that the amendment should be

denied as futile. "'Futility' means that the complaint, as

amended, would fail to state a claim upon which relief could be

granted." Glassman v . Computervision Corp., 90 F.3d 6 1 7 , 623

4

Although the plaintiffs discuss two additional state law

claims in their motion for leave to amend, those claims do not

appear to be included in the proposed fourth amended complaint.

10

(1st Cir. 1996). As plaintiffs' motion to amend and defendants'

motion for summary judgment were filed on the same day, and the

amendment is not aimed at curing the deficiencies targeted in

defendants' motion, the heightened standard applied in Resolution

Trust Corp. v . Gold, 30 F.3d 2 5 1 , 253 (1st Cir. 1994), does not

apply in this case. See Glassman, 90 F.3d at 623.

Construing it in the light most favorable to plaintiffs,

plaintiffs' new claim alleges that DCYF social worker Richards

filed a form showing that charges of child neglect against Katz

were founded, when there was no basis for that determination.

Then, DCYF employees listed Katz's name on the central registry

as a perpetrator of child neglect without notifying her, and a

DCYF employee falsely told her that her name was not in the

registry. Without analyzing the merits of plaintiffs' Fourteenth

Amendment claim in detail, nevertheless, it seems apparent that

any substantive due process claim may run afoul of the

requirements of Albright v . Oliver, 114 S . C t . 8 0 7 , 812 (1994),

and any procedural due process claim may not state a

constitutional violation given the availability of post-

deprivation state remedies, see e.g., Reid v . New Hampshire, 56

F.3d 3 3 2 , 341 (1st Cir. 1995). However, defendants seem to

challenge only the factual bases for the added claims. They have

11

not raised the potential legal infirmities mentioned here. Any

such deficiencies in the claims would be better evaluated in the

context of a dispositive motion allowing the parties an

opportunity to fully address those substantive issues.

Accordingly, the amendment is not strictly "futile," and, there

being no other reason to deny the proposed amendment, it is

hereby allowed.

B. Eleventh Amendment Immunity and Jurisdiction

Plaintiffs assert federal civil rights claims against the

individual defendants in both their official and individual

capacities, as well as various state tort claims against DCYF and

HHS, and the individual defendants.5 Defendants have filed a

5

Claims against individuals in their official capacities

are the same as suits against the entity on whose behalf the

individual acts as agent. Hafer v . Melo, 502 U.S. 2 1 , 26 (1991);

Kentucky v . Graham, 473 U.S. 159, 165 (1985). In this case,

therefore, claims against the individuals in their official

capacities are in reality claims against either DCYF or HHS, both

of which are agencies of the state. In Will v . Michigan Dept. of

State Police, 491 U.S. 58 (1989), the Supreme Court held that

"neither a State nor its officials acting in their official

capacities are 'persons' under § 1983" relative to claims for

money damages. Id. at 7 1 . Accordingly, the § 1983 claims (for

money damages) against the defendants in their official

capacities do not state a claim under 42 U.S.C. § 1983, and are

dismissed. The result would not be different in New Hampshire's

courts. "A State may not, by statute or common law, create a

cause of action under § 1983 against an entity whom Congress has

not subjected to liability. . . . Since this Court has construed

12

"Motion in Limine Regarding Jurisdiction Over State Law Claims"

in which they assert Eleventh Amendment immunity on behalf DCYF,

HHS, and the individuals sued in their official capacities.

Defendants also assert sovereign immunity on behalf of the

individual defendants based on defendants' interpretation of

applicable state law. Defendants' immunity arguments raise

jurisdictional issues that compel the court to remand this case

to state court.

The Eleventh Amendment, as construed in Hans v . Louisiana,

134 U.S. 1 (1890), bars claims in federal court for money damages

against the state. See Will v . Michigan Dept. of State Police,

491 U.S. 5 8 , 66 (1989); Pennhurst State School and Hosp. v .

Halderman, 465 U.S. 8 9 , 99 (1984); Johnson v . Rodriguez, 943 F.2d

104, 108-09 (1st Cir. 1991), cert. denied, 502 U.S. 1063 (1992).

Unlike traditional jurisdictional bars, however, Eleventh

Amendment immunity may be waived if the state, acting through

those authorized to do s o , explicitly consents to suit in federal

court.6 Atascadero State Hospital v . Scanlon, 473 U.S. 2 3 4 , 238-

the word 'person' in § 1983 to exclude States, neither a federal

court nor a state court may entertain a § 1983 action against

such a defendant." Howlett by and through Howlett v . Rose, 496

U.S. 356, 376 (1990).

6

Before the Supreme Court clarified the means by which a

state could waive Eleventh Amendment immunity, the First Circuit

13

41 (1985); Estate of Porter by Nelson v . State of Ill., 36 F.3d

684, 690 (7th Cir. 1994). In New Hampshire, an effective waiver

of Eleventh Amendment immunity can only be accomplished by

legislative action. John H . v . Brunelle, 127 N.H. 4 0 , 43 (1985);

State Employees' Ass'n of N.H. v . Belknap County, 122 N.H. 6 1 4 ,

621 (1982). New Hampshire's consent to suit in its own courts,

see New Hampshire Revised Statutes Annotated ("RSA") 541-B, of

course, does not constitute consent to suit in federal court.

See State Employees' Ass'n of N.H., Inc. v . Lang, 682 F. Supp.

660, 663 (D.N.H. 1988). Accordingly, New Hampshire has not

waived its Eleventh Amendment immunity for purposes of this case,

notwithstanding the Attorney General's earlier acquiescence in

removal and opposition to remand.

When a suit is removed from state to federal court, as this

action was, claims that implicate Eleventh Amendment immunity

must be remanded to state court, not dismissed. See Roach v .

West Virginia RJA, 74 F.3d 4 6 , 49 (4th Cir. 1996) (interpreting

28 U.S.C.A. § 1447(c)). Plaintiffs' state law claims against

held that Eleventh Amendment immunity could be waived when state

defendants remove an action to federal court, see Newfield House

v . Massachusetts Dept. of Public Welfare, 651 F.2d 3 2 , 36 n.3

(1st C i r . ) , cert. denied, 454 U.S. 1114 (1981), and that New

Hampshire's implementation of district court orders showed

consent to federal court jurisdiction, see Garrity v . Sununu, 752

F.2d 7 2 7 , 738 (1st Cir. 1984).

14

DCYF, HHS, and various state employees in their official

capacities, seek money damages against the state. Therefore,

this court is without subject matter jurisdiction over those

claims, given the terms of the Eleventh Amendment. Accordingly,

those claims must be remanded to state court.

The circuits disagree as to whether the removal and remand

statutes, 28 U.S.C.A. §§ 1441 and 1447, allow claims from a

single case to be divided between state and federal court when a

federal court lacks jurisdiction as to some claims. Compare

Kruse v . State of Hawaii, 68 F.3d 3 3 1 , 334-35 (9th Cir. 1995)

(adopting Sixth Circuit rule that claims may be split, rejecting

Fifth and Seventh Circuit rules to the contrary); with Francis J.

v . Wright, 19 F.3d 3 3 7 , 341 (7th Cir.) (federal court cannot

split claims subject to Eleventh Amendment immunity from those

that permit jurisdiction), cert. denied, 115 S.Ct. 204 (1994);

see also Miles v . Kilgore, 928 F. Supp. 1071, 1082-84 (N.D. Ala.

1996) (discussing views of different courts); Ta v . Niemes, 927

F. Supp. 9 7 7 , 980-84 (W.D. Tex. 1996) (same); Flores v . Long, 926

F. Supp. 166, 168-70 (D.N.M. 1995) (same). The First Circuit has

not addressed the issue.

Several factors persuade the court that under the particular

circumstances presented here it is more appropriate to remand

15

what remains of the case on the grounds that removal was

improvidently granted. First, the state and federal claims arise

from the same basic facts. I f , for example, this court were to

follow the Ninth and Sixth Circuits, remanding the state tort

claims against DCYF and HHS while retaining the state tort claims

against the individuals, inconsistent verdicts becomes a

plausible risk. In addition, the state tort claims and the

federal § 1983 claims against the individual defendants depend

upon the same facts and will require the same proof. Thus, the

same evidence would be necessary to pursue essentially the same

litigation in both courts, amounting to a wasteful duplication of

effort and a waste of limited resources. While this court can

decide only some of the claims, the state court's jurisdiction

extends to all of the claims.

Third, the state has raised a somewhat novel interpretation

of state law to invoke sovereign immunity as to the state tort

claims. Defendants assert that a recent amendment to RSA ch.

541-B, § 541-B:9-a (Supp. 1995) (eff. Jan. 1 , 1995), requires

that the state be substituted for the individual state employee

defendants be the named defendants, relative at least to the

state tort claims. Then, defendants argue, because the state has

preserved its sovereign immunity (RSA § 99-D:1) except as

16

specifically waived in RSA ch. 541-B, the recovery limit set in

§ 541-B:14, I ($250,000 per claimant for a single incident)

controls plaintiffs' recovery here. Defendants may be correct,

or it may be that the Legislature intended the state to step into

the shoes of the individual defendants and assume whatever

liability they as individuals might have. In any event,

defendants' argument would require this federal court to

interpret a relatively new state statute as a matter of first

impression and to determine whether the statute was intended to

have, or even can have, retroactive effect in this case. That

legal analysis is better undertaken in state court, where the

matter can eventually be reviewed by the New Hampshire Supreme

Court.

For the reasons stated, the court determines that removal of

this case was improvidently granted, that this court is without

jurisdiction over the money damages claims against the state

agencies and DCYF employees sued in their official capacities,

and, therefore orders that the case be remanded to state court.

28 U.S.C.A. § 1447(c). The parties' motions related to state

tort causes of action and particular evidentiary or discovery

matters are denied without prejudice to refiling same in state

court. However, because the parties have raised issues pertinent

17

to the federal § 1983 causes of action over which the court does

have jurisdiction, those motions and issues are resolved as

follows.

C. Injunctive Relief

In addition to money damages, plaintiffs also seek

injunctive relief under § 1983 against the individual defendants

in their personal and official capacities. State officials sued

in their official capacities are subject to § 1983 liability for

purposes of injunctive relief. Will, 491 U.S. at 71 n.10. Based

on the pleadings and the record, it seems doubtful that

plaintiffs will be able to meet at least one requirement for

injunctive relief — showing likelihood of future injury

sufficient to constitute irreparable harm. City of Los Angeles

v . Lyons, 461 U.S. 9 5 , 111 (1983) (plaintiff seeking injunctive

relief cannot rely on past wrongs but must show "a sufficient

likelihood that he will again be wronged in a similar w a y " ) .

However, because the parties do not address the point in their

pleadings, and may wish to present relevant evidence, plaintiffs'

claim for injunctive relief is left for consideration by the

state court.

18

D. Absolute Immunity

Christopher Regan, who represented DCYF during the neglect

proceedings against Katz, and the individual DCYF defendants' who

participated in taking custody of Eleonora as well as the neglect

proceeding against Katz, seek dismissal of the § 1983 claims

against them on grounds that they are entitled to absolute

immunity. Absolute immunity protects defendants from claims for

money damages7 based on the defendants' actions "in initiating a

prosecution and in presenting the state's case." Imbler v .

Pachtman, 424 U.S. 409, 431 (1976). As prosecutorial immunity is

based on the quasi-judicial nature of the prosecutorial function,

only those actions intimately connected with the prosecutorial

function are absolutely immunized, while other actions by the

same defendant that are merely investigative or administrative

are not. See Buckley v . Fitzsimmons, 509 U.S. 259, 273-76

(1993); Burns v . Reed, 500 U.S. 4 7 8 , 489-92 (1991); Butz v .

Economou, 438 U.S. 4 7 8 , 515 (1978). Therefore, it is necessary

7

Absolute immunity does not protect defendants from claims

for prospective injunctive relief in § 1983 actions. Pulliam v .

Allen, 466 U.S. 5 2 2 , 541-42 (1984). Accordingly, as long as

plaintiffs' claims for injunctive relief survive, claims based on

the actions of defendants otherwise protected by absolute

immunity also survive.

19

to consider the pertinent function of each defendant asserting

absolute immunity.

1. Christopher Regan

In an order dated March 3 1 , 1994, this court determined that

Christopher Regan was entitled to absolute immunity against

plaintiffs' claims that were based on his prosecution of the

neglect petition against Katz, and those claims were dismissed.

The order specifically left undecided whether plaintiffs also

alleged claims against Regan based on functions outside of his

role as prosecutor that would not be protected by absolute

immunity. Defendant Regan now moves to dismiss all claims

against him, and plaintiffs move for reconsideration of the prior

order dismissing claims.8

Plaintiffs allege that Regan attended the adjudicatory

hearing on January 1 0 , 1992, on behalf of DCYF, and that his only

witness was an individual from "My Friend's Place" who could not

testify that he had observed any abuse or neglect of Eleonora by

8

In support of the motion for reconsideration, plaintiffs

argue that Regan should be held liable for his activities in

giving legal advice to DCYF staff. Plaintiffs' complaint,

however, does not include allegations that Regan gave legal

advice to DCYF staff which lead to violations of the plaintiffs'

Constitutional rights.

20

Katz. Plaintiffs also allege that Regan was aware of favorable

evaluations of Katz but refused to offer them at the hearing.

Plaintiffs further allege that Regan deliberately thwarted their

attempts to have a fair hearing and made repeated attempts to

seal the file of the case without justification. Plaintiffs also

allege that Regan attempted to force Katz and Grodman to sign a

consent agreement admitting neglect in order to regain custody of

their child.

All of Regan's actions, as alleged by plaintiffs in the

fourth amended complaint, are protected by absolute immunity. In

representing DCYF at the hearing and in subsequent proceedings,

Regan was acting as an advocate for the state. See Malachowski

v . City of Keene, 787 F.2d 7 0 4 , 712 (1st Cir. 1986); see also

Guzman-Rivera v . Rivera-Cruz, 55 F.3d 2 6 , 29 (1st Cir. 1995). In

addition, Regan cannot be held liable for withholding exculpatory

information. Reid v . New Hampshire, 56 F.3d 3 3 2 , 337 (1st Cir.

1995). Settlement negotiations, like plea bargains, are part of

the prosecutorial function, and a defendant is protected from

liability for those actions. See Mendenhall v . Goldsmith, 59

F.3d 685, 691 (7th C i r . ) , cert. denied, 116 S.Ct. 568 (1995).

Accordingly, all § 1983 claims for money damages against Regan

are dismissed.

21

2. Other defendants

Defendants invoke absolute immunity from plaintiffs' claims

that are based on the initiation and prosecution of neglect

proceedings against Katz. It is well established that actions by

social workers initiating and prosecuting child neglect

proceedings are protected by absolute immunity. See

Malachowski, 787 F.2d at 712; see also Frazier v . Bailey, 957

F.2d 9 2 0 , 931 n.12 (1st Cir. 1992); Salyer v . Patrick, 874 F.2d

374 (6th Cir. 1989). Participation in a proceeding for temporary

custody is also protected by absolute immunity, so that to the

extent plaintiffs assert constitutional claims based on Sargent's

affidavit, she is not liable. See Thomason v . SCAN Volunteer

Servs., Inc., 85 F.3d 1365, 1373 (8th Cir. 1996). However,

defendants generally are not protected by absolute immunity for

actions taken prior to or outside of the judicial process, such

as their investigation of neglect, their decision to remove

children from their home without a court order, or placement of a

parent's name in a central registry of founded abusers. See,

e.g., Snell v . Tunnell, 920 F.2d 673, 687-90 (10th Cir. 1990);

Achterhof v . Selvaggio, 886 F.2d 826, 829-31 (6th Cir. 1989);

Vosburg v . Department of Social Servs., 884 F.2d 133, 138 (4th

22

Cir. 1989); Hodorowski v . Ray, 844 F.2d 1210, 1214 (5th Cir.

1988).

Accordingly, defendant Sargent is entitled to absolute

immunity from liability as to any § 1983 claims that are based

upon her participation in the probable cause hearing on December

2 1 , 1991, but not as to claims based upon her investigation of

the report of neglect, or her decision to remove Eleonora prior

to obtaining a court order. Similarly, other DCYF employees

(Shaw, Richards, and Doty) are entitled to absolute immunity as

to all claims based on their participation in neglect

proceedings, but not for claims based on their investigation of

possible neglect by Katz, or on performance of administrative

duties at DCYF.

E. The Fourth Amendment Claim

Defendants move for summary judgment in their favor on

plaintiffs' Fourth Amendment claim asserting both that plaintiffs

cannot properly support their claim and that defendants are

entitled to qualified immunity. Before addressing the merits of

defendants' motion, it is necessary first to clarify the Fourth

Amendment claim as it presently stands.

23

Plaintiffs' Fourth Amendment claim is confused, to some

extent, with their previously dismissed claim asserting a

violation of their rights to family integrity under the

Fourteenth Amendment. All individual defendants were held to be

entitled to qualified immunity as to the family integrity claims

on grounds that the constitutional right was not clearly

established in 1991, see Frazier, 957 F.2d at 931. Those

Fourteenth Amendment claims were dismissed in the court's Order

in this case dated March 3 1 , 1994. Plaintiffs' Fourth Amendment

claim was not dismissed at that time because the complaint

asserted that defendants knew they did not have probable cause to

support their actions.9

Currently, plaintiffs seem to assert two Fourth Amendment

claims: (1) that defendants subjected Eleonora to an unreasonable

seizure when they took her from her mother; and (2) that

defendants pressed child neglect charges against Katz without

probable cause. The claim that charges were pressed against Katz

does not implicate her Fourth Amendment right to be free of

9

Although defendants use language pertaining to a motion

to dismiss in addressing the Fourth Amendment claims, prompting

plaintiffs to argue that the court previously denied the motion

to dismiss, their motion is in fact one for summary judgment as

they rely on record evidence outside of the pleadings.

24

unreasonable searches and seizures.10 Also, as all defendants

are entitled to absolute immunity for initiating and pursuing

child neglect charges, to the extent the Fourth Amendment claim

is based on pressing neglect charges, it is dismissed.

Furthermore, because only Eleonora was "seized," not her

parents, only she has a Fourth Amendment claim. Fourth Amendment

claims by Katz and Grodman based on the removal of Eleonora from

her mother's custody are dismissed. Finally, based on the

allegations in the complaint, DCYF social worker Sargent is the

only remaining defendant implicated in "seizing" Eleonora.11

Eleonora's Fourth Amendment claim appears to be that Sargent

took her from her mother and placed her in protective custody

without probable cause to believe that she was in imminent danger

of harm, and kept her in foster care rather than placing her with

her father, without probable cause to believe that she was

neglected. A claim based on loss of liberty, or seizure, arising

10

Although Katz might also argue that she was "seized" in

that she suffered negative effects relative to having her name

listed in the central registry, to the extent she makes that

claim she must decide whether it is properly a Fourth Amendment

claim or a Fourteenth Amendment claim as it is now cast.

11

Although plaintiffs allege that Richards and Shaw were

involved in investigating the reports of neglect by Katz,

plaintiffs do not allege that either participated in the decision

to place Eleonora in protective custody or that Shaw's

supervision of Sargent was constitutionally deficient.

25

out of child abuse and neglect proceedings may raise issues that

are qualitatively different from those presented in typical

seizure cases. See, e.g., Snell v . Tunnell, 920 F.2d 673, 697

(10th Cir. 1990); Baker v . Racansky, 887 F.2d 183, 187-89 (9th

Cir. 1989); Dietz v . Damas, 932 F. Supp. 4 3 1 , 444-48 (E.D.N.Y.

1996); Tenenbaum v . Williams, 862 F. Supp. 9 6 2 , 973-76 (E.D.N.Y.

1994), reconsideration denied, 907 F.Supp. 606 (1995); see also

Jordan by Jordan v . Jackson, 15 F.3d 333, 349-351 (4th Cir. 1994)

(examining nature of protective custody in comparison to arrest

in context of Fourteenth Amendment requirements); Lossman v .

Pekarske, 707 F.2d 2 8 8 , 290 (7th Cir. 1983) (same). Because the

parties have not briefed these issues in context, however,

assessing the viability of Eleonora's Fourth Amendment claim

would be premature at this juncture.

Alternatively, even if Eleonora's Fourth Amendment claim is

viable, Sargent claims qualified immunity from liability. In

contrast to the fogginess of Fourth Amendment requirements in

this area, state law establishes a clear standard for removing a

child into protective custody:

A police or juvenile services officer may take a child

into protective custody without the consent of the

parents or the person legally responsible for the

child's care if the child is in such circumstances or

surroundings as would present an imminent danger to the

child's health or life unless immediate action is taken

26

and there is not enough time to petition for a court

order.

RSA 169-C:6, I . See also, Malachowski, 787 F.2d at 713-14

(compliance with state statute may provide qualified immunity).

Although the state district court found there was "reasonable

cause"12 to believe that Eleonora was neglected when it

temporarily resolved DCYF's petition to keep Eleonora in state

custody, Sargent can rely on that finding only if she did not

deliberately manufacture probable cause by knowingly providing

false facts in her affidavit which the court relied on for its

finding, and if the court's probable cause determination was not

deficient on its face. See Snell, 920 F.2d at 698 (citing Franks

v . Delaware, 438 U.S. 154 (1978)); see also Malley v . Briggs, 475

U.S. 335, 345 (1986). Also, there is some question whether

Sargent complied with the court order by keeping Eleonora in

foster care when the order allowed placement with her father.

Whether Sargent is entitled to qualified immunity, and she

may well b e , cannot be resolved in Sargent's favor on the record

presented here for summary judgment, because her entitlement may

be fact-driven, and the record is hardly clear as to whether

12

The court does not address the significance, if any, of

the district court's determination of "reasonable cause," rather

than "probable cause" that Eleonora was neglected.

27

material facts related to qualified immunity are or are not

genuinely disputed. See Anderson v . Liberty Lobby, 477 U.S. 2 4 2 ,

251-52 (1986) (evidence must be so one-sided that a reasonable

jury could only find one w a y ) . In addition, because the same

factual issues will be examined in the context of the state tort

claims upon remand, it is preferable to cede to the state court

resolution all claims based on the same findings of fact.

Accordingly, the motion for summary judgment is denied without

prejudice to refiling a well-supported motion in state court.

F. Summary

Plaintiffs' motion to amend is granted, and the action, as

pled in the fourth amended complaint, and as modified by this

Order, is remanded to Strafford County (New Hampshire) Superior

Court. Plaintiffs' current § 1983 claims are: (1) a Fourth

Amendment unreasonable seizure claim by Eleonora against Sargent

in her individual capacity; (2) Fourteenth Amendment due process

claims by Katz against named DCYF employees in their individual

capacities; and (3) a claim by Katz for injunctive relief to

prevent DCYF from acting in a similar manner in the future.

Plaintiffs' state law claims against DCYF, HHS, and the

individual defendants are: (1) negligence; (2) defamation; and

28

(3) intentional infliction of emotional distress. Plaintiffs

also seek an enhanced compensatory damages remedy under

applicable state law.

CONCLUSION

Plaintiffs' motion for leave to amend (document n o . 211) is

granted. Defendants' motion to dismiss state tort claims for

lack of jurisdiction (document n o . 195) is denied as described in

this order. Defendants' motions in limine (documents nos. 1 8 8 ,

189, 1 9 0 , 1 9 1 , 2 1 4 , 2 2 1 , 2 2 2 , 223) are denied without prejudice

to refiling same in state court. Plaintiffs' motions in limine

(documents nos. 179, 193, 1 9 4 , 225) are denied without prejudice

to refiling in state court. Plaintiffs' motion to reconsider

(document n o . 185) and motion to compel discovery (document n o .

184) are denied. Plaintiffs' motion for leave to file response

(document n o . 229) is denied as moot. Defendants' motions to

dismiss and for summary judgment (documents nos. 1 6 0 , 1 9 2 , 209)

are granted as to absolute immunity for defendant Regan and other

named defendants for initiating neglect proceedings and are

otherwise denied without prejudice.

This case i s , or ought to b e , ready for trial on the merits,

discovery having been completed.

29

SO ORDERED.

Steven J. McAuliffe

United States District Judge

November 2 0 , 1996

cc: Suzan M . Lehmann, Esq.

Charles G. Douglas, I I I , Esq.

30