# In Re Scott County Master Docket

> District Court, D. Minnesota · October 2, 1985 · 618 F. Supp. 1534

URL: https://www.frixlaw.com/law-library/cases/1793661

## Case

- **Full name:** In Re SCOTT COUNTY MASTER DOCKET. Greg MYERS and Jane Myers, Individually and as Parents and Natural Guardians of Andy Myers, Amy Myers and Brian Myers, Minors, Plaintiffs, v. SCOTT COUNTY and R. Kathleen Morris, Scott County Attorney, Scott County Human Services, and Peg Subby, Its Director of Human Services, Thomas Price, and Phipps-Yonas & Price, P.A., Paul Thomsen, Guardian Ad Litem, Doris Wilker Social Worker, and Other Employees of Scott County Human Services Whose Names and Titles Are Unknown, and Douglas Tietz, Scott County Sheriff, Deputy Sheriffs Norm Pint, Patrick Morgan and Michael Busch, and City Council of Jordan, Minnesota, and Alvin Erickson, Jordan Chief of Police, Defendants; Duane RANK and Dee Rank, Plaintiffs, v. R. Kathleen MORRIS, Individually and as Scott County Attorney, Anthony Worm, Dick Mertz, Mark Stromwall, Roland Boegeman and William Knoiarski, Individually and as Scott County Commissioners and John Doe Numbers 1-15, Individually and as Employees and Agents of Scott County a Political Subdivision of the State of Minnesota, and Scott County, Defendants; Charles LALLAK and Carol Lallak, Husband and Wife; And Jeffrey Lallak and Jennifer Lallak, Minors, by Charles Lallak and Carol Lallak, Their Parents and Natural Guardians, Plaintiffs, v. SCOTT COUNTY; Scott County Board of Commissioners; Scott County Attorney’s Office; R. Kathleen Morris, Scott County Attorney; Scott County Sheriff’s Department; Douglas Tietz, Scott County Sheriff; Michael M. Bush, Scott County Deputy Sheriff; Patrick Morgan, Scott County Deputy Sheriff; David Einertson, Scott County Deputy Sheriff; Norman Pint, Scott County Deputy Sheriff; Other Employees of Scott County Sheriff’s Department Whose Names and Titles Are Unknown; Scott County Human Services Department; Rachel Paff, Social Worker With Scott County Human Services Department; Other Employees of Scott County Human Services Department Whose Names and Titles Are Unknown; City of Jordan; Jordan City Council; Gail Anderson, Former Mayor of Jordan; Donald Tillman, Mayor of Jordan; Jordan Police Department; Alvin Erickson, Jordan Police Chief; Larry Norling, Officer With Jordan Police Department; Other Employees of Jordan Police Department Whose Names and Titles Are Unknown; Thomas L. Price, and Phipps-Yonas & Price, P.A., Defendants; Donald BUCHAN, Cindy Buchan, Individually and as Parents and Natural Guardians of Courtney B. Buchan, Melissa Ellen Buchan and William Donald Buchan, Minors, Plaintiffs, v. SCOTT COUNTY and R. Kathleen Morris, Scott County Attorney, Scott County Human Services, and Peg Subby, Its Director of Human Services, Thomas Price, and Phipps-Yonas & Price, P.A., Michael Shea, and Shea & Associates, P.Á., Diane Johnson, Guardian Ad Litem, John Manahan, Guardian Ad Litem, Doris Wilker, Social Worker, Mary Tafs, Social Worker, Judy Dean, Social Worker, Susan Devreis, Psychologist, and Other Employees of Scott County Human Services Whose Names and Titles Are Unknown, and Douglas Tietz, Scott County Sheriff, and Deputy Sheriffs Norm Pint, Patrick Morgan, and Michael Busch, Defendants; Daniel J. MEGER and Wanda Lou Meger, Individually and as Parents and Natural Guardians of Brian Meger and Chad Meger, Minors, Plaintiffs, v. SCOTT COUNTY, a Political Subdivision of the State of Minnesota; R. Kathleen Morris, Individually and in Her Official Capacity as Attorney for Scott County; Scott County Board of Commissioners; Scott County Welfare Department and Margaret Subby, It’s Director of Human Services; Scott County Sheriff’s Department and It’s Deputies, Patrick Morgan and Michael Bush; Doris Wilker, Social Worker, Scott County Welfare Department; Joel Kaufmann, Psychologist, Scott County Welfare Department; Jane McNaught, and Center for Child and Family Therapy; B.A. Bershow, M.D., and Burnsville Family Physicians, P.A.; John Doe and Mary Doe and Other Employees of Scott County Whose Names and Titles Are Unknown, Defendants; Robert BENTZ and Lois Bentz, Individually and as Parents and Natural Guardians of Marlin Bentz, William Bentz and Anthony Bentz, Minors, Plaintiffs, v. SCOTT COUNTY; R. Kathleen Morris, Scott County Attorney; Margaret Subby, Scott County Welfare Department/Director of Human Services; Doris Wilker, Social Worker, Scott County Welfare Department; Paul Thomsen, Guardian Ad Litem; Michael Bush, Patrick Morgan and Norman Pint, Scott County Deputy Sheriffs; Michael Shea, Leslie Faricy, Michael Shea and Associates; Earl Barrett; Cindy Christ; And John Doe and Mary Roe; And Other Employees of Scott County Human Services Whose Names and Titles Are Unknown, Defendants; Thomas and Helen BROWN, Individually and as Parents and Natural Guardians of Brandy Brown and Jeff Brown, Plaintiffs, v. SCOTT COUNTY and R. Kathleen Morris, Scott County Attorney, Scott County Welfare Department and Peg Subby, Its Director of Human Services, Susan Phipps-Yonas and Phipps-Yonas & Price, P.A., John Manahan and Diane K. Johnson, Guardian Ad Litems, Doris Wilker Social Worker, and Other Employees of Scott County Human Services Whose Names and Titles Are Unknown, Defendants; George B. GOULD, Plaintiff, v. COUNTY OF SCOTT, STATE OF MINNESOTA; R. Kathleen Morris, Individually, and as Scott County Attorney; City of Jordan, Minnesota, and City of Jordan Police Department; Sheriff of Scott County, State of Minnesota, Defendants
- **Court:** District Court, D. Minnesota
- **Decided:** October 2, 1985
- **Citations:** 618 F. Supp. 1534; 1985 U.S. Dist. LEXIS 15337
- **Precedential status:** Published
- **Opinion:** Opinion by MacLAUGHLIN
- **Judges:** MacLAUGHLIN
- **Cited by:** 21 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM OPINION
MacLAUGHLIN, District Judge.
Virtually all of the defendants in the eight above captioned cases (hereafter Scott County cases) moved for dismissal and/or summary judgment. The Court heard these motions early in the litigation, either prior to or shortly after the commencement of discovery depositions. The Court quickly announced its rulings in terse orders to enable successfully moving defendants to avoid the burdens of discovery. This Memorandum Opinion sets forth the rationale for those rulings, but it does not deal with
Gould v. County of Scott
(CIVIL 3-85-506). The Court’s Memorandum and Order of June 26, 1985 fully explains why the Court granted summary judgment in favor of all the defendants in
Gould.
1
I. OVERVIEW
On September 26,1983, Chris Brown contacted the City of Jordan Police Department because she feared that James Rud had sexually abused her ten-year-old daughter and her eight-year-old son. Jordan Police arrested Rud that same evening on charges of sexually abusing children. The arrest and questioning of Rud set into motion what became known as the “Jordan sex ring investigation.” The initial interview with Chris Brown’s children led investigators to additional purported victims of sexual abuse. The number of suspects also continued to expand as the investigation proceeded. From the date of Rud’s arrest until June 6, 1984, an additional 23 individuals from the Jordan area in Scott County, Minnesota were criminally charged with sexually abusing children. Once charged with sexually abusing children, most parents had their children taken away from them by Scott County officials.
Plaintiffs in the present actions were arrested during a period from January 11, to June 4, 1984. Thomas and Helen Brown were arrested on January 11, 1984; Robert and Lois Bentz were arrested on January 20,1984; Greg Myers was arrested on February 6, 1984; Jane Myers, Charles and Carol Lallak, and Duane and Dee Rank all were arrested on May 23, 1984; and Donald and Cindy Buchan were arrested on June 4, 1984. At the time of their arrests, these plaintiffs, except for the Lallaks and the Ranks, had their children taken away from them. (The Ranks have no children and the Lallaks removed their children
*1544
from Scott County prior to their arrests.) Two other plaintiffs, Daniel and Wanda Meger, were never arrested. The Meger children were separated from their parents on June 5, 1984. Defendants state that this separation was the result of Wanda Meger consenting to voluntary placement of the children with the County, while Wanda Meger contends that she was pressured and misled into signing the placement agreement.
See
Morris aff. 11XXXIII, and exh. U; Wilker aff. 11XXXVII; Meger aff. 1147-51.
Of all the criminal cases involving the Jordan sex ring, only the Bentz case went to trial.
2
In September of 1984, the jury acquitted the Bentzes of all counts. On October 15, 1984, Scott County Attorney R. Kathleen Morris dismissed the charges against the remaining Jordan sex ring defendants. Morris explained the dismissal of these allegations as necessary to avoid prejudicing an investigation of great magnitude, which was a reference to an investigation of alleged homicides in Scott County. Morris also noted that further criminal trials would harm the children who had to appear as witnesses. Subsequently, state and federal authorities assumed control over further investigations and legal proceedings involving alleged Scott County child abusers. These authorities did not reinstate criminal actions against any of the 21 individuals who had their charges dismissed.
After dismissal of the criminal allegations, the plaintiffs filed the present actions in federal court under 42 U.S.C. § 1983 and various state laws. Plaintiffs who have children also are suing on. behalf of their children. The list of defendants varies slightly from case to case, but most defendants are present in more than one lawsuit. All plaintiffs have named Morris and Scott County as defendants. The other defendants in these actions are the Sheriff of Scott County, Douglas Tietz; four Scott County deputy sheriffs; therapists who had contact with the children; a therapist who conducted an adverse examination of two plaintiffs who were criminal defendants; guardians ad litem appointed by the Scott County Family Court to protect the interests of children; the Scott County Department of Human Services and individual employees of the department; the Scott County Board of Commissioners; the City of Jordan; the Jordan City Council; the former and current mayor of the City of Jordan; the Jordan Police Department; Jordan Police Chief Alvin Erickson; a Jordan police officer; a foster parent of one of the children; the director of a halfway house in which one of the children stayed; and a doctor who examined some of the children.
II. VIABILITY OF PLAINTIFFS’ CLAIMS
The major theme of plaintiffs’ allegations against the defendants is that the arrests of various plaintiffs and the separation of parents from their children were improper. Plaintiffs assert that the various defendants acted in concert to bring about the arrests and separations of parents and children, and that the actions of the defendants prolonged the separation of parents and children. Plaintiffs further assert that by repeatedly questioning child witnesses, defendants were able to wear down or brainwash the children into making accusations against adults. In effect, plaintiffs allege that defendants coerced the children to give the responses defendants desired. The thrust of plaintiffs’ charges can be further gleaned from the following paragraph, because each complaint, except the Ranks’, contains a virtually identical paragraph.
The aforesaid actions by Defendants were acts in furtherance of a conspiracy. Defendants, and specifically R. Kathleen Morris and her office, were engaged in a publicity campaign against child abuse and incest. Part of this campaign involved the invention by Defendant Morris and others of a “sex ring” in Jordan,
*1545
Minnesota. Defendants attempted to legitimize this invented “sex ring” by producing a large number of arrests and prosecutions in Jordan for sexual abuse of children. In furtherance of this conspiracy, Defendants recklessly sought out the [plaintiffs] as candidates for prosecution. These arrests were thus made without making any adequate substantiated inquiries regarding the welfare of the Plaintiffs’ minor children and without probable cause and in willful disregard of Plaintiffs’ rights, privileges and immunities secured by the United States Constitution and the law and Constitution of the State of Minnesota.
Lallak complaint ¶29.
Plaintiffs have brought their lawsuits in federal court because they maintain that defendants’ conduct is actionable under 42 U.S.C. § 1983 . In order to state a claim under section 1983, a plaintiff must allege that a person acting under color of state law violated a federally protected right.
Parratt v. Taylor,
451 U.S. 527, 535 , 101 S.Ct. 1908, 1912 , 68 L.Ed.2d 420 (1981). Individual defendants, in addition to raising the defenses of absolute and qualified immunity, argue that plaintiffs’ allegations do not state a claim under section 1983 against them. Before examining the arguments of specific defendants, the Court will determine whether plaintiffs’ allegations state a claim for relief in a general sense. Not all of plaintiffs’ accusations apply to each defendant, but the following section essentially treats defendants generieally to see if plaintiffs’ claims contain a viable cause of action against any defendant. The Court will then discuss the arguments unique to specific defendants.
A. Fourth Amendment
Plaintiffs clearly do have a fourth amendment right not to be arrested unless probable cause justifies the arrest.
E.g., United States v. Watson,
423 U.S. 411, 417-18 , 96 S.Ct. 820, 824-25 , 46 L.Ed.2d 598 (1976);
Carroll v. United States,
267 U.S. 132, 156 , 45 S.Ct. 280, 286 , 69 L.Ed. 543 (1925). A person arrested without probable cause, moreover, can seek redress under section 1983.
E.g., Herrera v. Valentine,
653 F.2d 1220, 1229 (8th Cir.1981);
Wheeler v. Cosden Oil and Chemical Co.,
734 F.2d 254, 260 (5th Cir.),
mod. on other grounds,
744 F.2d 1131 (1984);
Clark v. Lutcher,
436 F.Supp. 1266, 1268, 1272-73 (M.D.Pa.1977). The mere fact that a person arrested is later acquitted or the charges against him or her are dropped, however, does not by itself subject the arresting officials to section 1983 liability.
Pierson v. Ray,
386 U.S. 547, 555 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 (1967). Neither should arresting officials be liable to arrestees if the officials reasonably believed probable cause did exist.
See Smiddy v. Varney,
665 F.2d 261, 266 (9th Cir.1981),
cert. denied,
459 U.S. 829 , 103 S.Ct. 65 , 74 L.Ed.2d 66 (1982). Yet a police officer cannot claim he or she simply made a mistake if the officer knew that no probable cause existed, or if the officer was reckless in concluding that probable cause existed. Plaintiffs here assert that the defendants recklessly disregarded the truth in concluding that probable cause existed for plaintiffs’ arrests.
Defendants respond that plaintiffs do not have a viable section 1983 claim based on the fourth amendment under any circumstances because independent judicial officers concluded that probable cause did exist for plaintiffs’ arrests.
3
The argument runs that even if defendants committed transgressions prior to the judicial officer’s probable cause determinations, the judicial officer’s findings of probable cause insulate defendants from liability.
Citing Baker v. McCollan,
443 U.S. 137 , 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979). The Court cannot accept this contention. In
Ames v. United States,
600 F.2d 183, 185 (8th Cir.1979), the court did state that a grand jury indictment breaks the chain of causation between in
*1546
vestigatory activities and resulting harm to a plaintiff, thus insulating the investigators from liability. The court noted, however, that the indictment would not break the chain of causation if the plaintiff alleged acts such as the presentation of false evidence to, or the withholding of truthful evidence from the grand jury.
Ames,
600 F.2d at 185 ;
see also Rodriguez v. Ritchey,
556 F.2d 1185, 1195 (5th Cir.1977) (en banc) (Hill, J. concurring),
4
cert. denied,
434 U.S. 1047 , 98 S.Ct. 894 , 54 L.Ed.2d 799 (1978) (officer who maliciously seeks an indictment is not shielded from liability simply by obtaining it).
Ames
dealt with presenting information to a grand jury, but its reasoning should also apply to presenting tainted information to a judicial officer who has to decide whether or not to issue an arrest warrant.
See Dick v. Watonwan County,
551 F.Supp. 983, 993 (D.Minn.1982) (section 1983 action could lie against welfare workers who presented information to county attorney where welfare workers failed to corroborate evidence, fabricated evidence, and misleadingly presented information).
Dick v. Watonwan County,
562 F.Supp. 1083, 1097-98 (D.Minn.1983) (officials can be subject to section 1983 liability for conduct in procuring court orders) (citing cases),
rev’d in part on other grounds,
738 F.2d 939 (8th Cir.1984).
In the Scott County cases, the plaintiffs are arguing that defendants knew or should have known the information presented to judicial officers was false. Such accusations may or may not be true, but they do state a claim under section 1983.
B. Liberty Interest
The other major constitutional violation plaintiffs assert is based on the separation of the parents from their children. Undoubtedly, plaintiffs have a protected liberty interest under the fourteenth amendment in keeping their family unit together.
E.g., Santosky v. Kramer,
455 U.S. 745, 753 , 102 S.Ct. 1388, 1394 , 71 L.Ed.2d 599 (1982);
Stanley v. Illinois,
405 U.S. 645, 651 , 92 S.Ct. 1208, 212 , 31 L.Ed.2d 551 (1972);
Duchesne v. Sugarman,
566 F.2d 817, 825 (2d Cir.1977). The United States Court of Appeals for the Eighth Circuit has recently emphasized that “[t]he privacy and autonomy of familial relationships ... are unarguably among the protectible interests which due process protects. We can conceive of no more important relationship, no more basic bond in American society, than the tie between parent and child.”
Bohn v. County of Dakota,
772 F.2d 1433, 1435 (8th Cir.1985). Plaintiffs claim that the false accusations defendants created caused the separation of children from parents. Defendants do not dispute that plaintiffs have a protected liberty interest in their family relationships.
5
Nevertheless, defendants contend that even accepting plaintiffs’ allegations as true, plaintiffs still do not have a viable section 1983 action for infringement of their liberty interests. Defendants reason that plaintiffs received all the process that was due through the procedures of the Scott County Family Court and the Minnesota Rules of Procedure for Juvenile Court (Minn.R. Juv.P.). Defendants point out that after children were separated from their parents,
*1547
the parents were entitled to a hearing within 72 hours to determine if probable cause justified the separation.
See
Minn.Stat. § 260.171, subd. 2, Minn.R.Juv.P. 52.04. All parent plaintiffs who had children taken away from them either received or waived these hearings. Parent plaintiffs were also entitled to informal court review of the placement of their children every eight days. Minn.R.Juv.P., 52.07, subd. 1. Again, the parent plaintiffs either received or waived these informal reviews. In addition, parent plaintiffs had a variety of other procedural rights under the rules.
E.g.,
Minn.R.Juv.P. 52.04, subd. 4(d) (right to counsel) 52.07, subd. 2 (right to request formal placement review by the court), 57.01-.09 (right to conduct discovery); 59.02 (right to trial on allegations of child abuse within 90 days of denial of the allegations).
Defendants conclude that plaintiffs’ rights under state law and procedural rules were sufficient to protect plaintiffs’ liberty interest in their families. Relying on
Parratt,
451 U.S. at 537 , 101 S.Ct. at 1914 , defendants argue that because state law provided adequate remedies after plaintiffs’ children were removed,
(i.e.,
post-deprivation remedies), the separations of the families were accomplished with due process. Although
Parratt
involved a property right, defendants point to cases which have applied the
Parratt
adequate state remedies analysis to liberty interests.
E.g., Thibodeaux v. Bordelon,
740 F.2d 329, 337 (5th Cir.1984). In fact, a court in the District of Minnesota recently applied
Parratt
to an intentional deprivation of a liberty interest.
Hanson v. Larkin, 605
F.Supp. 1020 (D.Minn.1985) (plaintiff could not sue police officer who allegedly assaulted plaintiff, because state tort action provided adequate state remedies).
But see Quaschnick v. State of Minnesota,
106 F.R.D. 587 (D.Minn.1985) (Murphy, J.);
Spell v. McDaniel,
591 F.Supp. 1090, 1103-07 (E.D.N.C.1984).
Defendants further draw upon
Ellis v. Hamilton,
669 F.2d 510 (7th Cir.) (Posner, J.),
cert. denied,
459 U.S. 1069 , 103 S.Ct. 488 , 74 L.Ed.2d 631 (1982).
Ellis
held that due process is not violated “if the state provides reasonable remedies for preventing families from being arbitrarily broken up by local domestic relations officers”.
Ellis,
669 F.2d at 515 .
Ellis
does state that due process is not violated if state procedures exist to correct “inevitable errors” or “blunder[s]” of local officials regarding custody matters.
Ellis,
669 F.2d at 514 . Here, however, plaintiffs allege that defendants fabricated sexual abuse charges in reckless disregard for the truth and in willful indifference for plaintiffs’ rights. If these allegations are true, defendants’ conduct would be more culpable than simple errors or blunders.
Another reason for rejecting defendants’ adequate state remedies argument concerns the nature of the liberty interest involved. Plaintiffs’ liberty interest in their families being together involves a right protected not only by procedural due process, but also by substantive due process. In
Moore v. City of East Cleveland,
431 U.S. 494 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) the Supreme Court struck down a zoning ordinance which had the effect of prohibiting a grandparent from living with one of her grandsons. The plurality stated that substantive due process protected the right of an extended family to live together.
Moore,
431 U.S. 502 -03, 97 S.Ct. at 1937 . The grandparent in
Moore
was not challenging any procedures
(e.g.,
the method by which the ordinance was adopted or the method by which the grandparent was fined for violating the ordinance). Rather, the grandparent attacked the result of the ordinance, and the Supreme Court agreed that the result was improper.
The ability of plaintiffs to assert violations of substantive due process is not affected by the availability of adequate state remedies. The
Parratt
analysis of available adequate state remedies applies to only violations of procedural due process
*1548
and not to violations of substantive constitutional proscriptions.
L & H Sanitation, Inc. v. Lake City Sanitation, Inc.,
769 F.2d 517, 523-24 (8th Cir.1985);
Lavicky v. Burnett,
758 F.2d 468 , 472 n. 1 (10th Cir. 1985);
Spell,
591 F.Supp. at 1106-07 . Accordingly, plaintiffs’ claim that defendants violated plaintiffs’ liberty interest in maintaining their family units is a viable claim under section 1983.
In sum, plaintiffs’ allegations do in a general sense state claims upon which relief can be granted under section 1983. If plaintiffs’ complaints had failed this initial hurdle, then all defendants would have been entitled to summary judgment. Plaintiffs’ passing this threshold does not mean, however, that all defendants’ summary judgment motions should be denied.
III. PROCEDURAL POSTURE
A. Summary Judgment
Nearly every defendant in the Scott County cases has moved for dismissal (under either Fed.R.Civ.P. 12(b)(6) or 12(c)) or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56.
6
Numerous parties submitted affidavits and other materials outside the pleadings. Although nearly all defendants did technically move for dismissal as well as summary judgment, defendants typically relied heavily on matters outside the pleadings and spoke only in terms of summary judgment in their arguments. Because the Court did not exclude from its consideration these matters outside the pleadings, the Court must treat defendants’ motions as motions for summary judgment. Fed.R.Civ.P. 12(b);
Carter v. Stanton,
405 U.S. 669, 671 , 92 S.Ct. 1232, 1234 , 31 L.Ed.2d 569 (1972) (per curiam);
Court v. Hall County, Nebraska,
725 F.2d 1170, 1172 (8th Cir. 1984).
A defendant is not entitled to summary judgment unless the defendant can show that no genuine issue exists as to any material fact. Fed.R.Civ.P. 56(e). Summary judgment is an extreme remedy that should not be granted unless the moving party has established a right to judgment with such clarity as to leave no room for doubt and unless the nonmoving party is not entitled to recover under any discernible circumstances.
E.g., Vette Co. v. Aetna Casualty & Surety Co.,
612 F.2d 1076, 1077 (8th Cir.1980). In considering a summary judgment motion, a court must view the facts most favorably to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts.
E.g., Hartford Accident & Indemnity Co. v. Stauffer Chemical Co.,
741 F.2d 1142, 1144-45 (8th Cir.1984). The non-moving party may not merely rest upon the allegations or denials of the party’s pleading, but must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial.
Salinas v. School District of Kansas City,
751 F.2d 288, 289 (8th Cir.1984).
In most cases, a motion for summary judgment at this early stage of the litigation would be premature. Summary judgment is inappropriate in complex litigation where the party resisting summary judgment has not had the opportunity to conduct and complete discovery.
See Willmar Poultry Co. v. Morton-Norwich Products, Inc.,
520 F.2d 289, 293 (8th Cir.1975),
cert. denied,
424 U.S. 915 , 96 S.Ct. 1116 , 47 L.Ed.2d 320 (1976); Fed.R.Civ.P. 56(f). Providing a party opposing summary judgment ample opportunity to conduct discovery is especially important when relevant knowledge and facts are exclusively or largely within control of the party moving for summary judgment.
See Willmar Poultry Co.,
520 F.2d at 294 ; 10A C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure
§ 2741, at 545 (1983).
Defendants respond that even though discovery was just commencing when they made their motions, the Court should still require plaintiffs to meet, at this juncture defendants’ affidavits sufficiently to create
*1549
genuine issues of material fact. Defendants reason that other sources have provided plaintiffs with adequate access to information regarding the Scott County cases. These sources include the Minnesota Attorney General’s investigation and report,
see Report on Scott County Investigations,
February 12, 1985; criminal discovery associated with the Bentz trial, and other criminal trials which were to take place; and proceedings in Scott County Family Court. Defendants conclude that if information exists to respond to their affidavits, plaintiffs should have already discovered that information.
While defendants are correct that some plaintiffs have had access to relevant information prior to the commencement of discovery in these civil suits, the Court cannot accept defendants’ contention that these outside sources preclude plaintiffs from conducting the normal discovery associated with a civil lawsuit in order to rebut defendants’ affidavits.
Cf. Marrese v. American Academy of Orthopaedic Surgeons,
726 F.2d 1150, 1161 (7th Cir.1984) (en banc) (party opposing summary judgment must be allowed to conduct discovery to resist summary judgment),
rev’d on other grounds,
— U.S. -, 105 S.Ct. 1327 , 84 L.Ed.2d 274 (1985). The other sources of information to which defendants point, moreover, have not provided plaintiffs with the opportunity to take depositions of the many witnesses plaintiffs wish to depose.
B. Qualified Immunity
All defendants who are individuals (in contrast to political entities or agencies) claim to be entitled to summary judgment at this stage in the proceedings on the basis of qualified immunity under
Harlow v. Fitzgerald,
457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). Governmental officials do enjoy a qualified (or good faith) immunity defense in section 1983 actions.
See Harlow,
457 U.S. at 806 , 102 S.Ct. at 2732 . In
Harlow ,
the Supreme Court redefined the qualified immunity defense in order to strengthen it. Previously, the qualified immunity defense had a subjective, as well as an objective, component. In order to prevail on the basis of qualified immunity, defendants had to satisfy both aspects. Defendants would meet the objective prong by showing that they did not know, and should not reasonably have known, that their conduct violated the constitutional rights of plaintiffs. Defendants would meet the subjective prong by establishing that they did not act with malicious intent to deprive the constitutional rights of, or otherwise injure, plaintiffs.
Harlow,
457 U.S. at 815 , 102 S.Ct. at 2736 ,
citing Wood v. Strickland,
420 U.S. 308, 322 , 95 S.Ct. 992, 1000 , 43 L.Ed.2d 214 (1975). Under this formulation of qualified immunity, plaintiffs could escape summary judgment even in situations where no dispute existed that the defendants’ actions were objectively reasonable.
See Harlow,
457 U.S. at 815 , 102 S.Ct. at 2736 . Plaintiffs argued that even if defendants’ conduct was objectively reasonable, the defendants’ acted with malicious intent.
Harlow, 457
U.S. at 815, 102 S.Ct. at 2736. The determination of the defendants’ intent was a subjective issue normally for a jury to resolve, and thus summary judgment would often be inappropriate. The
Harlow
Court accordingly eliminated the subjective component of the qualified immunity defense in order to reduce the number of trials governmental officials had to face.
Harlow,
457 U.S. at 816-17 , 102 S.Ct. at 2737 .
See also Davis v. Scherer,
— U.S. -, 104 S.Ct. 3012, 3018 , 82 L.Ed.2d 139 (1984).
The
Harlow
Court held “that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow,
457 U.S. at 818 , 102 S.Ct. at 2738 . The
Harlow
Court stated that under its new definition, many insubstantial claims against government officials could be resolved on summary judgment motions.
Harlow,
457 U.S. at 818-19 , 102 S.Ct. at 2738 . This procedure would spare government officials from unjustifiably being subjected to trials and broad-reaching dis
*1550
covery.
Harlow,
457 U.S. at 817-18 , 102 S.Ct. at 2737-38 . The Supreme Court elaborated:
Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment____ If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.
Harlow,
457 U.S. at 818-19 , 102 S.Ct. at 2738 .
Defendants point to the language in
Harlow ,
which states that a court should not allow discovery until it resolves the threshold immunity question, and conclude that they are presently entitled to summary judgment.
Harlow,
457 U.S. at 818 , 102 S.Ct. at 2738 .
Harlow ,
however, provides for defendants obtaining summary judgment
prior
to discovery only in certain situations.
Harlow
states that prior to allowing discovery, a court should determine if the plaintiff is claiming that the defendant violated “clearly established” law.
Harlow,
457 U.S. at 818 , 102 S.Ct. at 2738 . If the law a plaintiff claims a defendant violated was not clearly established at the time of the alleged violation, the defendant is entitled to summary judgment prior to discovery.
Harlow,
457 U.S. at 818 , 102 S.Ct. at 2738 . On the other hand, if the law which plaintiff claims defendant violated was clearly established, a defendant is not entitled to summary judgment prior to discovery.
Harlow,
457 U.S. at 818-19 , 102 S.Ct. at 2738 ;
Hobson v. Wilson,
737 F.2d 1, 26-27 (D.C.Cir.1984),
cert. denied,
— U.S. -, 105 S.Ct. 1843 , 85 L.Ed.2d 142 (1985);
Finch v. Wemlinger,
361 N.W.2d 865, 868-69 (Minn.1985). Therefore, the only situation in which summary judgment is appropriate prior to discovery, is where the court concludes that even if the defendant committed the alleged violation of plaintiff’s rights, those rights were not well established at the time of the violation.
See Hobson,
737 F.2d at 26-27 ;
Finch,
361 N.W.2d at 868-69 .
7
The rights the Scott County plaintiffs claim were violated, however, are clearly established. Plaintiffs assert that they were arrested without probable cause, and this right is beyond question.
See, e.g., Carroll,
267 U.S. at 156 , 45 S.Ct. at 286 (1925). Plaintiffs additionally claim that their liberty interests in maintaining their family units were violated, and the right of the family to remain together is also firmly established.
See, e.g., Moore,
431 U.S. at 502-03 , 97 S.Ct. at 1937 (1977);
Stanley,
405 U.S. at 651 , 92 S.Ct. at 1212 (1972);
Dennison v. Vietch,
560 F.Supp. 435, 442 (D.Minn.1983).
8
Plaintiffs maintain that defendants violated these well founded
*1551
rights by fabricating accusations against plaintiffs in reckless disregard of the truth. Fabrication of criminal charges is conduct which is definitely actionable under section 1983.
See, e.g., Beard v. Udall,
648 F.2d 1264 (9th Cir.1981) (per curiam).
Cf. Losch v. Borough of Parkesburg,
736 F.2d 903 , 907 (3d Cir.1984) (filing charges without probable cause and for reasons of personal animosity
clearly
actionable under § 1983). Plaintiffs further assert that defendants coerced witnesses to make the desired accusations. Coercing individuals to give false testimony in order to obtain criminal convictions is conduct clearly actionable under section 1983.
See, e.g., Robichaud v. Ronan,
351 F.2d 533, 536-37 (9th Cir.1965);
Lewis v. Brautigam,
227 F.2d 124, 128-29 (5th Cir.1955) (both cited in
Imbler v. Pachtman,
424 U.S. 409 , 430 n. 31, 96 S.Ct. 984 , 995 n. 31, 47 L.Ed.2d 128 (1976)).
Defendants, moreover, have not argued that fabricating accusations against individuals and coercing testimony cannot implicate clearly established rights.
9
Defendants do state that they never engaged in such conduct and that the actions they took cannot be equated with such conduct. In support of their assertions, defendants submit numerous affidavits delineating their involvement in the Scott County cases. Defendants conclude that these affidavits, and plaintiffs’ failure to rebut them, entitle defendants to summary judgment prior to discovery.
This argument misconstrues what the Court’s inquiry should be at this juncture. In a recent pronouncement on the qualified immunity defense, the Supreme Court no longer speaks in terms of “summary judgment” prior to discovery based on
Harlow ;
instead, the Supreme Court states that “dismissal” prior to discovery is appropriate if plaintiff’s complaint fails to state a claim of violations of clearly established law.
Mitchell v. Forsyth,
— U.S. -, 105 S.Ct. 2806, 2816 , 86 L.Ed.2d 411 (1985).
Mitchell
indicates, therefore, that the issue present in evaluating a qualified immunity defense raised prior to discovery is not whether plaintiffs have adequately responded to defendants’ affidavits, but rather whether plaintiffs have asserted violations of clearly established rights. Here, plaintiffs have asserted violations of clearly established rights, and thus the existence of defendants’ affidavits does not entitle defendants to summary judgment at this time.
Of course, at the close of discovery if plaintiffs cannot rebut defendants’ affidavits and evidence sufficiently to create a genuine issue of fact as to whether defendants actually committed the alleged transgressions, then defendants may be entitled to summary judgment.
See Mitchell,
105 S.Ct. at 2816 . In evaluating defendants’ summary judgment motions made at the close of discovery, if any, the Court will look to the objective reasonableness of defendants’ conduct. At this point if no genuine factual issues exist regarding whether defendants’ actions were objectively reasonable, then defendants will be entitled to summary judgment.
Mitchell,
105 S.Ct. at 2816 .
IV. SPECIFIC DEFENDANTS
A. County Attorney Morris
All plaintiffs have named R. Kathleen Morris as a defendant. Defendant Morris is the duly elected Scott County Attorney. As Scott County Attorney, Morris (with the aid of her staff) prepared and signed the criminal complaints against the plaintiffs who were arrested. Children of the arrested plaintiffs
10
were separated from their parents as the result of neglect petitions brought by the Scott County Human Services Department (HSD).
See
Minn.Stat.
*1552
§ 260.133. Morris reviewed, approved, and signed these neglect petitions.
Morris states that in the early stages of the Jordan sex ring investigation
(i.e.,
fall and early winter of 1983) her involvement was limited to drafting criminal complaints, making court appearances, and contacting law enforcement personnel regarding new information in previously charged criminal cases. Morris aff. 11VII. Morris acknowledges that she occasionally met child witnesses, but maintains that she did not conduct substantive interviews with child witnesses until she began preparing for upcoming criminal trials. These trial preparation interviews commenced after February, 1984. Morris aff. 11VII. Morris subsequently conducted the prosecution of the Bentzes in August and September of 1984. The jury acquitted the Bentzes on September 19, 1984. On October 15, 1984, Morris announced her decision to dismiss the charges against the 21 remaining Scott County residents facing sexual abuse allegations.
Morris portrays her role in the Jordan sex ring cases as only that of a prosecutor. She states that she had minimal involvement with the investigation and that she had substantive contact with child witnesses only in the context of preparing for upcoming trials. Plaintiffs strongly contest Morris’ characterization of her role in these cases. Plaintiffs contend that Morris assumed control of the investigation, and they argue she was thus performing duties outside of prosecutorial functions. Plaintiffs claim that Morris, acting in concert with the other defendants, used the investigation to fabricate accusations of child sexual abuse against the adult plaintiffs. Purportedly, Morris directed an investigation which recklessly sought out plaintiffs as candidates for prosecution in willful disregard of plaintiffs’ rights. Specific transgressions include repeated interviews of child witnesses in order to coerce them into making accusations, destruction of evidence, and withholding of exculpatory evidence. Apparently, plaintiffs claim that Morris personally performed some of these acts, and that she directed other defendants to commit other acts.
Defendant Morris denies all of plaintiffs’ allegations. Morris argues, moreover, that even assuming the truth of plaintiffs’ allegations, she is absolutely immune from suit under section 1983 because all of her alleged transgressions involve acts within her role as a prosecutor. Morris adds that the defense of qualified immunity also entitles her to summary judgment at this juncture.
1. Prosecutorial Immunity
While all governmental officials enjoy the defense of qualified immunity in section 1983 actions, only a limited number of officials can rely on absolute immunity.
See Ray v. Pickett,
734 F.2d 370, 371-72 (8th Cir.1984). Prosecutors are one of the select few governmental officials who may be able to assert absolute immunity.
Imbler v. Pachtman,
424 U.S. 409, 427 , 96 S.Ct. 984, 993 , 47 L.Ed.2d 128 (1976). Prosecutors, however, do not enjoy absolute immunity for every action they undertake. In
Imbler ,
the Supreme Court held only that a prosecutor was absolutely immune in initiating a prosecution and presenting the state’s case.
Imbler,
424 U.S. at 431 , 96 S.Ct. at 995 . The Supreme Court reasoned that these prosecutorial functions were “intimately associated with the judicial phase of the criminal process” and thus warranted absolute immunity.
Imbler,
424 U.S. at 430 , 96 S.Ct. at 995 . The
Imbler
Court, while granting absolute immunity to the prosecutor as an advocate, declined to decide whether the prosecutor acting as an administrator or an investigator was entitled to absolute immunity.
Imbler,
424 U.S. 430 -31, 96 S.Ct. at 994-95 ;
Ray,
734 F.2d at 374 .
In the Eighth Circuit, the rule regarding prosecutorial immunity is clear. Prosecutors enjoy absolute immunity only for actions within the scope of their prosecutorial duties.
Smith v. Updegraff,
744
*1553
F.2d 1354, 1364 (8th Cir.1984).
11
Thus, prosecutors can assert absolute immunity for their prosecutorial functions, but not for their administrative or investigative duties.
Dick v. Watonwan County,
551 F.Supp. 983, 992 (D.Minn.1982). For actions taken in these latter roles, prosecutors still can assert the defense of qualified immunity, just like any other public official.
See Imbler,
424 U.S. at 430 , 96 S.Ct. at 994 .
Accordingly, the central issue in determining whether Morris is entitled to absolute immunity involves classifying her alleged transgressions as prosecutorial, administrative, or investigative. The
Imbler
Court recognized that “[d]rawing a proper line between these functions may present difficult questions.....”
Imbler,
424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33;
accord Wilkinson v. Ellis,
484 F.Supp. 1072, 1083 (E.D.Pa.1980). The determination of whether a prosecutor’s actions were prosecutorial or investigatory sometimes requires a limited factual inquiry.
Forsyth v. Kleindienst,
599 F.2d 1203, 1215 (3d Cir.1979),
cert. denied,
453 U.S. 913 , 101 S.Ct. 3147 , 69 L.Ed.2d 997 (1981);
see also Bushouse v. County of Kalamazoo,
93 F.R.D. 881, 884 (W.D.Mich.1982). Of course, permitting a factual inquiry on the issue of whether actions were prosecutorial or investigatory dilutes somewhat the protection of prosecutorial immunity, but this dilution may be necessary in some cases.
Forsyth,
599 F.2d at 1215 .
a. General Allegations that Morris Acted as an Investigator
Plaintiffs assert that defendant Morris is not entitled to absolute immunity because many of her alleged transgressions involved her acting in an investigative role. For instance, Morris and others supposedly used suggestive and coercive interviewing techniques to elicit the desired responses from children,
i.e.,
that adults had sexually abused them. Plaintiffs claim that children often stated that they were not sexually abused, but that interviewers suggested, cajoled, rewarded, and simply wore down the children until they emitted the correct response.
If Morris’ interviews of children were in fact investigatory (as opposed to in preparation for trial) then absolute immunity may not cloak Morris for her actions during the interviews. In
Imbler,
the Supreme Court “recognized that the duties of the prosecutor in [her] role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.”
Imbler,
424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. The Court further noted that “[preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence.”
Imbler,
424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. The Court acknowledged, however, that at some point a prosecutor begins to function in roles other than as an officer of the court.
Imbler,
424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33.
Preliminary evidence gathering which may blossom into potential prosecutions is investigatory activity outside the scope of absolute immunity.
Rex v. Teeples,
753 F.2d 840, 844 (10th Cir.1985),
citing McSurely v. McClellan,
697 F.2d 309, 320 (D.C.Cir.1982) (per curiam) and
Marrero v. City of Hialeah,
625 F.2d 499, 505 (5th Cir.1980),
cert. denied,
450 U.S. 913 , 101 S.Ct. 1353 , 67 L.Ed.2d 337 (1981). The
Rex
court held that a prosecutor’s interrogation of a general suspect was police-type or investigatory work not entitled to absolute immunity.
Rex,
753 F.2d at 844 . The
Marrero
court reasoned that a prosecutor who assists, directs, or participates with police in gathering evidence prior to an indictment acts as an investigator rather than a prosecutor.
Marrero,
625 F.2d at 505 .
12
*1554
Here, plaintiffs assert that Morris was acting in an investigatory role, and they have provided indications that defendant Morris actually took over the Jordan sex ring investigation at an early stage. In support of this assertion, a number of plaintiffs point to the December 28, 1984 rough notes of Minnesota Bureau of Criminal Apprehension (BCA) agent Ray Perron (hereafter Perron notes). Scott County deputy sheriff Menden allegedly told Perron that Morris had “actually usurped [Scott County Sheriff Tietz’] power by transferring [children’s] interviews to her office.” Perron aff., Perron notes at 4. Supposedly, Menden further stated that Morris “took charge of calling the children in for interviews” and that the “bulk of the interviewing” of children would take place in Morris’ office. Perron aff., Perron notes at 2. Menden concluded that Morris’ work in conducting interviews “was more in the investigative area than prosecutorial area.” Perron aff., Perron notes at 4.
Deputy Menden did not provide a time frame for when Morris allegedly began conducting child interviews, but Jordan police officer Larry Norring did.
13
FBI special agent Erwin interviewed Norring on December 19,1984 and Erwin later summarized the interview in a report dated December 27, 1984 (hereafter Erwin Report). Norring purportedly stated that Morris “got actively involved in the investigation around November 1983.”
14
Erwin Report at 2. Norring further indicated that Morris or members of her staff personally began interviewing children in the spring. Erwin Report at 2. The reference to spring must have been the spring of 1984, because the spring of 1983 was prior to James Rud’s September, 1983 arrest.
Deputy Menden has, however, submitted an affidavit in which he denies having made the statements concerning Morris’ usurpation of power which Perron attributes to him. Menden aff. ¶ 6. In addition, Morris claims that she was not conducting interviews of children in the fall and early winter of 1983. Morris aff. tí VII. She states that during that period law enforcement officers used her offices for interviews because of space limitations elsewhere.
See
Morris aff. ¶ VII. Morris notes that she would meet the children at these interviews, but she maintains that she did not conduct any substantive interviews of the children. According to Morris, she began meeting and interviewing child witnesses in preparation for upcoming trials after February of 1984. Morris aff. If VIL
The Court cannot, however, simply accept defendant Morris’ version of the facts at this juncture.
See Hartford Accident & Indemnity Co. v. Stauffer Chemical Co.,
741 F.2d 1142, 1144-45 (8th Cir. 1984). Plaintiffs have alleged that Morris acted in an investigatory role, and plaintiffs do provide some support for their contentions. If Morris were directing the Jordan sex ring investigation, and she instructed others to engage in improper acts, Morris would not be entitled to absolute immunity. A prosecutor who directs illegal investigatory activities is not cloaked by absolute immunity even if the prosecutor did not personally perform the improper acts.
See Robichaud v. Ronan,
351 F.2d 533, 537 (9th Cir.1965);
cf. Butz v. Economou,
438 U.S. 478, 505-06 , 98 S.Ct. 2894, 2910-11 , 57 L.Ed.2d 895 (1978). Accordingly, the Court cannot conclude at this time that all of Morris’ alleged transgressions involved activities within her prosecutorial role.
b. Conspiracy
Another allegation which could constitute a transgression outside of Morris’ prosecutorial duties involves a charge of conspiracy. Plaintiffs allege that Morris was engaged in a publicity campaign against child abuse and incest. Morris purportedly invented the Jordan sex ring in
*1555
order to further the publicity campaign. Morris supposedly attempted to legitimize the existence of the sex ring by producing a large number of arrests and prosecutions for child sexual abuse. Plaintiffs claim that Morris recklessly sought out plaintiffs for arrest in full disregard of plaintiffs’ rights.
See, e.g., Lallak
Complaint ¶ 29.
If Morris was directing a conspiracy to recklessly seek out plaintiffs for arrest, she would not be entitled to absolute immunity. In
Smith,
744 F.2d 1354 (8th Cir.1984), a prosecutor had hired an individual to “get [the plaintiff] no matter what,” including illegal means and through framing the plaintiff.
Smith,
744 F.2d at 1364 . The prosecutor also threatened the plaintiff, a deputy sheriff, with prosecution if the plaintiff attacked the sheriff’s office during the plaintiff’s discharge hearing.
Smith,
744 F.2d at 1364 . The Eighth Circuit concluded that these examples of the prosecutor’s conduct were “more than sufficient” to establish that the prosecutor was acting beyond the scope of his prosecutorial duties.
Smith,
744 F.2d at 1364 .
Other cases indicate that a prosecutor’s involvement in a conspiracy to coerce guilty pleas are actions outside the scope of prosecutorial duties.
Robichaud,
351 F.2d at 537 ;
Lewis v. Brautigam,
227 F.2d 124, 128-29 (5th Cir.1955). (The
Imbler
Court cited both
Robichaud
and
Lewis
as examples of acts of a prosecutor not entitled to absolute immunity.
Imbler,
424 U.S. at 430 n. 30, 96 S.Ct. at 994 n. 30.) In
Lewis ,
the prosecutor had allegedly ordered police officers to extort a guilty plea, which the police officers did through threats, intimidation, and promises of rewards directed at the plaintiff. The court concluded that if the prosecutor had in fact directed the police officers to conduct such activity, the prosecutor would not be entitled to absolute immunity. The
Robichaud
court similarly held that if a prosecutor directed police officers to intimidate a suspect into confessing, the prosecutor was acting as a police officer
(i.e.,
an investigator) and not in a prosecutorial capacity.
Robichaud,
351 F.2d at 534, 537 .
By contrast, if Morris simply did a bad job in deciding to charge plaintiffs, she is entitled to absolute immunity. Courts uniformly agree that a prosecutor is entitled to absolute immunity for failing to adequately investigate accusations against a defendant before charging the defendant.
Dick,
551 F.Supp. at 992 ;
see also Henzel v. Gerstein,
608 F.2d 654, 657 (5th Cir.1979). Morris would also be protected by absolute immunity for basing her decision on whether or not to initiate charges against the plaintiffs on improper motives.
Jennings v. Shuman,
567 F.2d 1213, 1221-22 (3d Cir.1977);
see also Imbler,
424 U.S. at 422, 430-34 , 96 S.Ct. at 991, 994-97 (decision to initiate proceedings is absolutely immune).
Yet,
Smith, Robichaud,
and
Lewis
involved something more than a prosecutor doing a bad job, making an improperly motivated decision to file charges, or presenting false evidence at trial. Those cases all involved prosecutors taking affirmative steps to fabricate a case against someone. Nevertheless, defendant Morris points to
Rose v. Koch,
465 F.Supp. 1157, 1159-60 (E.D.N.Y.1979) for the proposition that a prosecutor’s fabricating evidence is absolutely immune. The
Rose
court acknowledged that a prosecutor is absolutely immune for presenting false evidence at trial.
Rose,
465 F.Supp. at 1159 ;
see also Butz,
438 U.S. at 517 , 98 S.Ct. at 2916 . As far as the allegation that the defendants in
Rose
concocted and fabricated evidence by suborning perjury and otherwise, the
Rose
court simply stated that the plaintiff had not specifically alleged that the prosecutor defendants took part in those activities.
Rose,
465 F.Supp. at 1160 . The court indicated that such activities by prosecutors might have constituted investigative acts.
Rose,
465 F.Supp. at 1160 .
Rose ,
therefore, does not stand for the proposition that a prosecutor is absolutely immune from charges of fabricating a case. Even if
Rose
stood for that proposition, the Eighth Circuit’s decision in
Smith
would negate Rose’s precedential value.
*1556
If Morris really did orchestrate the fabrications of cases, she would have been acting in an investigatory role. Such allegations involve more than simply preparing witnesses for trial or doing the necessary investigation upon which to base a decision to file charges.
Smith, Robichaud,
and
Lewis
further indicate that if Morris directed police officers to fabricate evidence, then she would have been acting in an investigatory role.
c. Destruction of Evidence
Plaintiffs additionally allege that Morris ordered the destruction of evidence in the criminal cases and that she personally destroyed evidence herself. Such acts, contend plaintiffs, are not protected by absolute immunity. No dispute exists that detective (and defendant) Norm Pint video taped an interview of the two oldest Myers children on May 22, 1984 at the scene of alleged child sexual abuse, the Quarry Camp Grounds, and that video tape was later erased. Defendant Morris points to four affidavits which state that the video tape contained nothing exculpatory in relation to charges against the Lallaks, Ranks, or Myerses.
E.g.,
Pint aff. TI VII; Morris aff. 11XXIII. Yet deputy sheriff (and plaintiff) Donald Buchan also viewed this tape and he concluded that the tape contained inconsistencies in allegations and a denial of certain accusations by the Myerses' eldest son. Buchan aff. 117. Thus, plaintiffs refer to this tape as exculpatory evidence.
Defendant Morris argues that she was never aware of the existence of this tape and that she never ordered its erasure.
See
Pint aff. 11VII. Defendant Morris asserts that assistant county attorney Gehl Tucker advised Pint that the tape would be of no value as evidence and thus Pint simply taped over portions of the tape. Pint aff. 11VII.
Another incident which plaintiffs label as the destruction of evidence surrounds Morris’ 1984 appointment calendar. Morris’ appointment calendar indicated when she interviewed child witnesses. Because Morris frequently did not make notes or reports of each interview, the calendar would have provided the only method to more accurately approximate how frequently Morris interviewed the children. Since plaintiffs claim that Morris interviewed the children an excessive number of times in order to brainwash or break the children, the number of interviews may be an important fact.
Morris admits that she discarded the 1984 calendar at the end of November, 1984. She states that this act was perfectly innocent because she always discards her calendar when she receives the calendar for the new year. Morris uses a calendar which contains the month of December for the current year as well as the twelve months of the upcoming year
(e.g.,
the 1985 calendar contains December of 1984). Thus, Morris concludes that her custom of discarding her calendar prior to the close of the year is not unusual. Morris aff. U XXIV. Morris adds that it was not until after she had thrown her calendar away that she received a subpoena for it in connection with family court matters in December of 1984. Morris aff. 11XXIV.
Plaintiffs respond that destroying an appointment calendar instead of preserving it is quite unusual. Plaintiffs also reason that Morris logically would not have thrown away the calendar until the very end of November, or else she would not have had a calendar for a period of time. On November 20, 1984, the Lallaks served Morris with their complaint, a notice of motion for a nondestruct order, and a proposed nondestruct order. The proposed order forbade the destruction of relevant “documents” and the order explicitly defined “document” to include “calendars.” The United States Magistrate did not sign this proposed order until December 10, 1984, but Morris should have been on notice from at least November 20, 1984 that plaintiffs wanted the calendar preserved. This date precedes the time when Morris would have, under her own rationale, logically discarded the calendar
(i.e.,
before her new calendar commenced in December).
At this juncture of the litigation, the Court cannot accept either defendant Mor
*1557
ris’ characterization of the video tape as nonexculpatory or her assertion that she did not order its destruction.
See Hartford Accident & Indemnity Co.,
741 F.2d at 1144-45 . Neither can the Court accept at this time, Morris’ claim that she innocently discarded her calendar.
See Pfizer, Inc. v. International Rectifier Corp.,
538 F.2d 180, 185 (8th Cir.1976),
cert. denied,
429 U.S. 1040 , 97 S.Ct. 738 , 50 L.Ed.2d 751 (1977) (summary judgment is notoriously inappropriate when issue of intent is central).
While maintaining that the destruction of the tape and the calendar were both totally innocent, defendant Morris asserts that taken at their worst, these acts are still cloaked by absolute immunity. Defendant Morris relies on two Seventh Circuit cases for the proposition that the destruction of evidence is within the scope of prosecutorial duties and thus enjoys absolute immunity.
Hampton v. Hanrahan,
600 F.2d 600, 633 (7th Cir.1979),
rev’d in part on other grounds,
446 U.S. 754 , 100 S.Ct. 1987 , 64 L.Ed.2d 670 (1980) (per curiam);
Heidelberg v. Hammer,
577 F.2d 429, 432 (7th Cir.1978). Defendant Morris acknowledges cases to the contrary exist, but she implies that they are poorly reasoned.
Hampton
and
Heidelberg ,
however, do not analyze the issue of whether absolute immunity extends to the destruction of evidence, rather, they merely state a conclusion.
Wilkinson,
484 F.Supp. at 1085 n. 31 (E.D.Pa.1980).
Wilkinson
is a very thoughtful opinion. The court points out that the destruction of evidence warrants different treatment from a prosecutor’s decision not to turn over exculpatory evidence to the defense, or from a prosecutor not truthfully responding to a court’s inquiry concerning the existence of exculpatory evidence. These latter two acts are protected by absolute immunity. These latter two acts, though, involve prosecutors making discretionary judgments, and absolute immunity prevents lawsuits challenging a prosecutor’s judgments. They also involve the prosecutor’s role as an advocate and are intimately involved in the judicial process.
Wilkinson,
484 F.Supp. 1083 -84.
By contrast, destroying evidence is not closely related to the judicial process, because it keeps evidence away from judicial scrutiny altogether. Unlike withholding evidence, destroying evidence forever eliminates the corrective process of judicial review based on the evidence.
Wilkinson,
484 F.Supp. at 1083-84 . Further, the destruction of evidence does not involve a prosecutor making discretionary decisions as an advocate. A lack of absolute immunity for prosecutors destroying evidence would not hinder prosecutors in making discretionary decisions because prosecutors could merely retain evidence for a reasonable time.
Wilkinson,
484 F.Supp. at 1083-84 .
The decision in
Henderson v. Fisher,
631 F.2d 1115, 1120 (3d Cir.1980) (per curiam), also supports the conclusion that the destruction of evidence is not entitled to absolute immunity. In
Henderson ,
the plaintiff alleged that the prosecutor knew a police officer had removed exculpatory evidence from a police evidence locker on the day of trial. As a result, the plaintiff did not have access to the evidence while presenting his criminal defense. The plaintiff did not allege that the prosecutor personally destroyed evidence, but only that the prosecutor failed to direct police officers to correct their action.
Henderson,
631 F.2d at 1117 . The court concluded that such action by the prosecutor was not entitled to absolute immunity.
Henderson,
631 F.2d at 1120 . The case law stating that the destruction of evidence is not entitled to absolute immunity has considerable persuasive force. Hence, Morris, at least at this juncture, cannot use absolute immunity to defeat such allegations.
In sum, a number of Morris’ alleged transgressions involve acts which may be outside of her prosecutorial duties. Morris, therefore, cannot rely on absolute immunity at this time to defeat plaintiffs’ lawsuits.
2. Qualified Immunity
If defendant Morris is not entitled to absolute prosecutorial immunity,
*1558
she can still assert the defense of qualified immunity.
See Imbler,
424 U.S. at 430 , 96 S.Ct. at 994 . Even under the doctrine of qualified immunity, argues Morris, she is entitled to summary judgment before plaintiffs conduct discovery. Yet a defendant’s assertion of qualified immunity can defeat a section 1983 action prior to discovery only if the plaintiff has not alleged that the defendant violated clearly established rights. The Court has previously determined that plaintiffs’ allegations do involve violations of clearly established rights. No question exists, moreover, that plaintiffs’ allegations assert that Morris herself violated their rights. Thus, qualified immunity does not entitle Morris to summary judgment at this stage of the litigation.
B. Deputy Sheriffs
The following Scott County deputy sheriffs are defendants in the Scott County cases: Michael Busch and Patrick Morgan in
Myers, Lallak, Buchan, Meger,
and
Bentz;
Norman Pint in
Myers, Lallak, Buchan,
and
Bentz;
and David Einertson in
Lallak.
15
The Scott County Sheriff’s Department became involved in the Jordan sex abuse cases in the fall of 1983. Defendant David Einertson, a detective sergeant in the department, was a complaining witness against James Rud in late October and early November of 1983. Einertson states that he had general supervisory responsibility over defendants Busch, Morgan, and Pint from October, 1983 until the dismissal of the Jordan sex ring cases in October, 1984. Einertson aff. ¶ II. Defendants Busch, Morgan, and Pint were extensively involved in the Jordan sex ring investigation. They conducted numerous interviews of alleged child sexual abuse victims, and were involved in the initiation of criminal charges and the separation of children from their parents.
16
The deputy sheriffs’ interviews with suspected child victims frequently formed the basis of the sexual abuse allegations against the adult plaintiffs.
Plaintiffs allege that the deputy sheriffs participated in the fabrication of accusations against the adult plaintiffs. Purportedly, the deputy sheriffs conducted coercive interviews of the children in order to produce incriminating statements. Plaintiffs further claim that the deputy sheriffs, either personally or in concert with other defendants, caused the improper arrests of the adult plaintiffs and the separations of plaintiffs’ families.
The deputy sheriffs deny having committed any wrongdoing. They argue, moreover, that they could not be liable to plaintiffs even if plaintiffs’ allegations were true. The deputy sheriffs base this conclusion on two legal arguments which the Court has previously discussed. Initially, the deputy sheriffs reason that their actions did not cause the arrests or separations of families because independent judicial officers determined that probable cause existed for the arrests and the separations. These independent judicial determinations, according to the deputy sheriffs, broke the chain of causation between their conduct and the resulting arrests and separations. Probable cause determinations by independent judicial officers, however, do not insulate the deputy sheriffs from liability if the deputy sheriffs, as alleged, deceived the independent judicial officers. A law enforcement officer who intentionally misleads a judicial officer should not escape section 1983 liability simply because the deception was successful.
See Rodriguez v. Ritchey,
556 F.2d 1185, 1195 (5th Cir.1977) (en banc) (Hill, J., concurring);
see also Ames v. United States,
600 F.2d 183, 185 (8th Cir.1979).
The deputy sheriffs also argue that they are entitled to summary judg
*1559
ment on the basis of qualified immunity. Qualified immunity will protect these defendants from liability if they merely made a mistake in assessing whether probable cause existed,
see, e.g., Pierson v. Ray,
386 U.S. 547, 555 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 (1967);
Smiddy v. Varney,
665 F.2d 261, 266 (9th Cir.1981),
cert. denied,
459 U.S. 829 , 103 S.Ct. 65 , 74 L.Ed.2d 66 (1982), or if they merely acted in good faith reliance on court orders.
E.g., Tymiak v. Omodt,
676 F.2d 306, 308 (8th Cir.1982) (per curiam). Yet the deputy sheriffs’ purported transgressions go well beyond simple mistakes; plaintiffs accuse them of reckless disregard of plaintiffs’ rights. Furthermore, the deputy sheriffs’ alleged misconduct involves the violation of clearly established rights, and thus they cannot obtain summary judgment before plaintiffs have had the opportunity to conduct discovery.
See, e.g., Mitchell v. Forsyth,
— U.S. -, 105 S.Ct. 2806, 2816 , 86 L.Ed.2d 411 (1985);
Hobson v. Wilson,
737 F.2d 1, 26-27 (D.C.Cir.1984),
cert. denied,
— U.S. -, 105 S.Ct. 1843 , 85 L.Ed.2d 142 (1985). In sum, granting the deputy sheriffs summary judgment prior to determining precisely what their conduct was, would be inappropriate.
See Beard v. Udall,
648 F.2d 1264, 1272 (9th Cir.1981) (per curiam).
C. Sheriff Tietz
Scott County Sheriff Douglas Tietz is a defendant in
Myers, Lallak,
and
Buchan.
As chief law enforcement officer for the county,
see
Minn.Stat. § 387.03, a sheriff is responsible for the actions of the deputy sheriffs. Minn.Stat. § 387.14. The plaintiffs who name Tietz as a defendant do not accuse him of personally engaging in acts such as improperly interviewing witnesses, but they do claim that Tietz was grossly negligent in training and supervising the deputy sheriffs involved in the Jordan sex ring investigation. Plaintiffs allege, inter alia, that Tietz allowed the deputy sheriffs to work under the direction of Morris, and that he failed to prevent the deputy sheriffs from committing transgressions which he either knew or should have known were occurring.
Defendant Tietz argues that even if these allegations were true, he cannot be subjected to section 1983 liability because the allegations rely on the doctrine of respondeat superior. Under section 1983, a supervisory official cannot be vicariously liable for the acts of subordinates based on the doctrine of respondeat superior.
See Monell v. New York City Department of Social Services,
436 U.S. 658, 691 , 98 S.Ct. 2018, 2036 , 56 L.Ed.2d 611 (1978);
Jennings v. Davis,
476 F.2d 1271, 1274 (8th Cir.1973). Nevertheless, plaintiffs can still conceivably recover against defendant Tietz because their allegations that Tietz improperly trained and supervised the deputy sheriffs are not founded on respondeat superior. Rather, these accusations seek to hold Tietz directly liable for his own failures.
See Herrera v. Valentine,
653 F.2d 1220, 1224 (8th Cir.1981). Officials can be liable under section 1983 for improper training or supervision of subordinate - law enforcement officers.
See Herrera,
653 F.2d at 1224 ;
Pearl v. Dobbs,
649 F.2d 608, 609 (8th Cir.1981) (per curiam).
In order to prevail on a claim of improper training, a plaintiff must prove that a defendant deliberately chose a training program which would prove inadequate.
City of Oklahoma City v. Tuttle,
— U.S. -, 105 S.Ct. 2427, 2436 , 85 L.Ed.2d 791 (1985) (Rehnquist, J., plurality). A policy of inadequate training, however, cannot be inferred from a single incident of police misconduct.
Tuttle,
105 S.Ct. at 2436-37 (Rehnquist, J., plurality), 2440 (Brennan, J. concurring). Still, a plaintiff can establish a policy of inadequate training, as well as a policy of deficient supervision, by direct evidence regarding those practices.
See Tuttle,
105 S.Ct. at 2437-38, 2439-40 (Brennan, J., concurring). A plaintiff can also hold a defendant liable for deficient supervision by demonstrating that the defendant failed to respond to a known pattern of subordinate misconduct.
See Baker v. McCoy,
739 F.2d 381, 384 (8th Cir.1984);
Herrera,
653 F.2d at 1224 .
*1560
Here, plaintiffs are alleging that the deputy sheriffs were committing repeated acts of misconduct, and that Tietz should have rectified the situation. If the deputies were acting improperly, Tietz does have a statutory obligation to take corrective measures.
See
Minn.Stat. § 387.14 (sheriff responsible for actions of deputies). In addition, plaintiffs’ accusation that Tietz was aware of repeated transgressions is plausible considering the deputy sheriffs’ extensive involvement in the Jordan sex ring investigation. Plaintiffs, therefore, are entitled to attempt to develop evidence which would bear on the adequacy of defendant Tietz’ supervision and training of the deputy sheriffs.
17
Even if plaintiffs could prove that he had a policy of improperly training or supervising the deputy sheriffs, argues defendant Tietz, plaintiffs could not establish that such a policy caused the violations of plaintiffs’ rights. Tietz thus concludes that he is entitled to summary judgment at this juncture. Of course, plaintiffs will ultimately have to show “an affirmative link between” any Tietz policy and the violations of plaintiffs’ rights.
E.g., Tuttle,
105 S.Ct. at 2436 (Rehnquist, J., plurality). On a summary judgment motion, however, especially one made before discovery has commenced, the Court cannot conclude that a Tietz policy could not have caused violations of plaintiffs’ rights.
See, e.g., Hartford Accident & Indemnity Co. v. Stauffer Chemical Co.,
741 F.2d 1141, 1144-45 (8th Cir.1984) (court must view facts in light most favorable to party resisting summary judgment). The Court, therefore, denied defendant Tietz’ motion.
D. Human Services Department
The Scott County Human Services Department (HSD) (also referred to as the welfare department) is a defendant in
Myers, Lallak, Buchan, Meger, Bentz,
and
Brown.
Former director of HSD Margaret Subby, and social worker Doris Wilker are defendants in
Myers, Buchan, Meger, Bentz,
and
Brown.
Social workers Mary Tafs and Judy Dean are defendants in
Buchan;
social worker Rachel Paff is a defendant in
Lallak;
and Joel Kaufman, a psychologist formerly employed by HSD, is a defendant in Meger.
18
In October of 1983, shortly after the September 26, 1983 arrest of James Rud, County Attorney Morris approached HSD Director Subby to discuss suspected child abuse in Scott County. Subby aff. IIIV. Morris requested that HSD social workers be present during law enforcement officers’ interviews of suspected child abuse victims. Subby aff. ¶ V. During the ensuing Jordan sex ring investigation, various social workers would accompany officers to interviews of children. The HSD defendants state that the social worker’s role at an interview was to provide emotional support to the children. The HSD defendants admit, however, that the social workers would “on occasion” assist in the interviews. The HSD defendants state that social workers would provide such assistance when a police officer “faltered or became uncomfortable with the discussion.” Also, if a child had difficulty understanding a question, the social workers would assist in the interview. All HSD defendants in
*1561
volved in interviews stress that they did not coerce the child witnesses.
The interviews in which the social workers participated included at least some sessions prior to the arrest of adult plaintiffs and the removal of children. Wilker, for example, was present at interviews of the Brown children prior to the January 11, 1984 arrest of Thomas and Helen Brown. (The Brown children were also separated from their parents that day.)
See
Wilker aff. flXLII. In addition, Wilker participated in interviews of Chris Brown’s
19
three children on January 10 and 11, 1984. Hunter aff., exh. Brown 1-2. The interviews of Chris Brown’s children formed the basis for arresting Thomas and Helen Brown and removing their children from them. Norring April 30, 1985 aff. 1115.
Wilker states that she did not suggest, recommend, or even participate in the decision to arrest the Browns and separate them from their children. Wilker aff. UXLIV. The other HSD defendants similarly declare that they had no role in such decisions. Paff aff. ¶ XI, Tafs aff. 11VIII, Dean aff. 11XIX, Kaufman aff. If VI. Director Subby states that HSD itself did not make any recommendations or take any action in the process of charging adult plaintiffs or deciding to remove children from their parents. Subby aff. 11VII. Subby believes that all such decisions were made by the county attorney’s office and/or law enforcement officials. Subby aff. IIVII.
When law enforcement officers actually separated the children from their parents, a social worker was present to provide support to the children.
20
Following the separation, the social workers would arrange for temporary foster care of the children. In the meantime, the county attorney’s office would prepare a neglect petition for the family court. A social worker would, on behalf of HSD, sign the document as the petitioner.
21
Morris also signed each petition, indicating that the petition was prepared on her recommendation and approval.
All of the neglect hearings involving plaintiffs resulted in court orders finding probable cause of neglect and providing for family court custody of the children. Subsequently, the children were placed in foster homes. The social workers provided support to the foster parents, and monitored and supervised the foster parents’ relationships with the children. Social workers also continued to be present at various interviews in which law enforcement officers questioned the children.
Also, interviews following the separation of children and parents could have played a role in formulating accusations against some of the adult plaintiffs. For instance, defendant Wilker was not present at any interviews of the Myers children prior to Greg Myers’ arrest and the removal of the Myers children, both events occurring on February 6, 1984.
See
Wilker aff. ¶ XIX. Wilker was, however, present during interviews of the Myers children after this time.
See
Wilker aff. ¶ XXIII. Accusations made by the Myers children later formed the basis for, inter alia, the May 23,1985 arrest of Jane Myers and the arrests on June 4, 1984 of the Buchans. Wilker acknowledges that she was present at interviews of the Myers children prior to the arrests of Jane Myers and the Buchans, yet she claims she did not participate in the questioning of the Myers children. Wilker aff. ¶ XXIII. Plaintiffs point out, however, that in the family court proceeding regarding the Myers children, Wilker testified that on some occasions she had questioned children in order to develop evidence for trial.
In re Myers Children,
Family Court Transcript Excerpt, at 89. Wilker added
*1562
that she only asked questions at the request of the guardian at litem.
Id.
Defendant Wilker appears to be the social worker most heavily involved with purported child abuse victims. Wilker signed neglect petitions and was present during numerous interviews of child witnesses. Wilker also served as a liason between HSD and law enforcement officials and worked out of the county attorney’s office for a period of time. Wilker aff. ¶ XVI. Additionally, Wilker was involved with the supposed voluntary placement of the Meg-er children. Counsel for the HSD defendants conceded at oral argument that an issue of fact exists regarding the voluntariness of Wanda Meger’s assent to the placement.
Defendant Paffs seems to have played a less extensive role. The HSD defendants state that Paff, a defendant only in
Lallak,
participated in interviews on the same basis as Wilker. Paff acknowledges being present at a February, 1984 interview of the Lallaks’ daughter, but she states that this was her only contact with the Lallak children. Paff aff. IIVII, X. (The Lallaks were arrested on May 23, 1984, but county officials never obtained custody of the children because the children were out of the jurisdiction.)
Defendants Tafs and Dean are defendants only in
Buchan,
and they both state that all their contact with the Buchan children was in the context of monitoring and supervising foster care of the children. Tafs and Dean add that they performed their duties relating to foster care within family court guidelines and at the direction of guardians ad litem. Tafs aff. 11XXXVI; Dean aff. 11XX. Tafs acknowledges attending some child interviews, but Dean indicates that her only dealings with alleged victims related to monitoring foster care.
Finally, former HSD psychologist Kaufman is a defendant only in
Meger.
Defendant Kaufman acknowledges that he provided psychological services to the Meger children and to the parents prior to the separation of the Meger family.
See
Kaufman aff. ¶!¶ VIII-X. Kaufman, however, denies manipulating the children into giving false or misleading information. Kaufman IIXIV.
Plaintiffs assert that HSD employees acted in concert with the other defendants in developing accusations against the adult plaintiffs in reckless disregard of the truth. Plaintiffs further assert that the actions of the HSD defendants contributed to initial separation of the parents and children. Moreover, plaintiffs maintain that the actions of these defendants contributed to the continued separation of parents from their children. The HSD defendants purportedly accomplished this result by withholding exculpatory evidence
{e.g.,
children’s denials that adults sexually abused them) and participating in interviews which caused the children to make the accusations which the questioners sought. Plaintiffs further allege that the HSD defendants contravened various state statutes and regulations dealing with social workers and the handling of child sexual abuse accusations.
1. Viability of Claims
The HSD defendants assert that they are entitled to summary judgment because plaintiffs have not alleged that the HSD defendants deprived plaintiffs of federally protected rights. Of course, to state a claim under 42 U.S.C. § 1983 , a plaintiff must allege that the defendant’s conduct déprived plaintiff of a right, privilege, or immunity protected by the federal Constitution or federal law.
Parratt v. Taylor,
451 U.S. 527, 535 , 101 S.Ct. 1908, 1912 , 68 L.Ed.2d 420 (1981). The Court will next examine what federally protected rights the HSD defendants may have impinged.
a. Fourth Amendment
Plaintiffs have alleged that the social workers were part of a conspiracy to develop, in reckless disregard of the truth, accusations which led to the arrests of plaintiffs. A significant means for developing accusations, assert plaintiffs, was the interviews of children in which the interviewers would cause the children to give
*1563
the desired responses. The HSD defendants respond that even if plaintiffs’ fourth amendment rights were violated, the HSD defendants are not responsible. These defendants state that the investigation leading to the arrest of various plaintiffs was conducted by law enforcement officials and not HSD. The HSD defendants stress that the determinations to arrest adults were made by the county attorney’s office and law enforcement officers. According to the HSD defendants, the social workers did not make any recommendations or influence in any way the arrest decisions.
While the HSD defendants claim that they did not play a “major” role in the investigations leading up to the arrests of plaintiffs, they do not deny that they did play a role. The HSD defendants acknowledge that they aided in questioning children regarding possible sexual abuse, but they state that their participation was minimal.
The HSD defendants’ admitted presence and participation in at least some interviews prior to plaintiffs’ arrests, indicates that these defendants had the opportunity to commit the transgressions which plaintiffs allege. Defendants state that they did nothing improper and that they did not influence arrest decisions in any way. This could well be true. At this juncture, however, the Court should not simply accept defendants version of the facts,
e.g., Hartford Accident & Indemnity Co. v. Stauffer Chemical Co.,
741 F.2d 1142, 1144-45 (8th Cir.1984). If the HSD defendants participated in recklessly developing accusations against plaintiffs, then the HSD defendants could be liable even if the county attorney or a judicial officer made the determination to arrest plaintiffs.
Dick v. Watonwan County,
551 F.Supp. 983, 993 (D.Minn.1982);
see also Wheeler v. Cosden Oil and Chemical Co.,
734 F.2d, 254, 260 (5th Cir.) (discussing malicious prosecution),
mod. on other grounds,
744 F.2d 1131 (1984).
b. Liberty Interest
Defendants do not dispute that plaintiffs have a protected liberty interest under the fourteenth amendment in keeping their family units together.
E.g., Santosky v. Kramer,
455 U.S. 745, 753 , 102 S.Ct. 1388, 1394 , 71 L.Ed.2d 599 (1982);
Stanley v. Illinois,
405 U.S. 645, 651 , 92 S.Ct. 1208, 1212 , 31 L.Ed.2d 551 (1972);
Duchesne v. Sugarman,
566 F.2d 817, 825 (2d Cir.1977). The HSD defendants contend, however, that plaintiffs have not stated a cause of action against them for intruding on this liberty interest. The HSD defendants reason that the procedures in the family court provided plaintiffs all the process that was due in connection with the removal of plaintiffs’ children, but the Court has previously rejected this analysis.
The HSD defendants also assert that they are entitled to summary judgment because they took no part in the decision to remove the children from the parents. The Court does not accept this argument for reasons similar to the rationale for rejecting the HSD defendants’ claims that they had nothing to do with causing plaintiffs’ arrests. The HSD defendants acknowledge that they took part in at least some interviews prior to the children’s removal. In addition, a social worker was on the scene when law enforcement officials actually removed children. Social workers were also the complainants on the neglect petitions. Thus, the HSD defendants had the opportunity to influence and recommend removal of the children. The HSD defendants’ contention that they did not actually exercise any influence in the removal decisions, while it may well be true, should not be accepted by the Court at this point.
Even if the HSD defendants did not participate in the actual decision making process leading to the separation of children from their parents, they still could have contributed to the separations. The HSD defendants allegedly took part in fabricating accusations by the children, and these accusations ultimately led to the initial separation of the families. Thus, the HSD defendants’ alleged aiding in the creation of charges, by itself, could have contribut
*1564
ed to the separation of children from adults. HSD defendants also were involved in child interviews after the children were separated from their parents. Through such interviews, plaintiffs claim that the HSD defendants participated in further attempts to create accusations and suppression of exculpatory evidence. If true, such acts could have contributed to the continuing separation of the plaintiffs’ families. Thus, the HSD defendants could have impinged upon plaintiffs’ liberty interests.
c. State Statutes and Regulations
In addition to asserting that the HSD defendants infringed upon their fourth amendment rights and their liberty interests in family integrity, plaintiffs assert that defendants violated rights created by state statutes and regulations. For instance, plaintiffs claim the HSD defendants failed to give the plaintiffs Tennessen warnings. Minn.Stat. § 13.04, subd. 2. This warning is part of the Government Data Practices Act, Minn.Stat. §§ 13.-01-.88, and it requires social workers to, inter alia, inform interviewees whether they may refuse to answer questions and why information is being sought. Another statute allegedly violated was Minn.Stat. § 626.556, subd. 10(a) which directs the local welfare agency to immediately assess reports of child abuse. That statute further provides that in dealing with child abuse, the local welfare agency shall preserve the family whenever possible. The plaintiffs also claim that the HSD defendants contravened Minn.Rules § 9560.0280, subp. 2E which mandates that before children are removed from their parents, the parents must have an opportunity to voluntarily place the child in a safe setting
{e.g.,
with a relative).
The HSD defendants acknowledge that social workers traditionally attempt to resolve problems of child abuse with the entire family, but they state that the Jordan sex ring cases were not traditional. Most court orders and bail bonds, point out the HSD defendants, prohibited contact between parents and children. This prohibition, however, would not prevent social workers from providing parents the chance to voluntarily place their children, nor would it completely prevent social workers from working with parents.
Nevertheless, the HSD defendants maintain that even if they violated state statutes and regulations, such violations are not actionable under section 1983. The HSD defendants rely on
Baker v. McCollan,
443 U.S. 137, 146 , 99 S.Ct. 2689, 2695 , 61 L.Ed.2d 433 (1979), which held that because section 1983 imposes liability only for transgressions of rights protected by the Constitution, violations of state tort law are not actionable under the statute. Defendants reason that similarly, violations of state laws and regulations cannot form the basis for recovery under section 1983.
22
A cause of action exists under section 1983 only for violations of rights, privileges, or immunities protected by the federal Constitution or federal law.
E.g., Parratt,
451 U.S. at 535 , 101 S.Ct. at 1912 . Rights guaranteed by state statutes and regulations, however, can create constitutionally-protected interests which may not be denied without due process.
Joseph A. v. New Mexico Department of Human Services,
575 F.Supp. 346, 354 (D.N.M. 1983),
citing Fuentes v. Shevin,
407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972);
cf. Board of Regents v. Roth,
408 U.S. 564, 577 , 92 S.Ct. 2701, 2709 , 33 L.Ed.2d 548 (1972). In fact,
Doe v. Hennepin County,
Civ. 4-84-115, slip op. at 11-14 (D.Minn. June 26, 1984), found that alleged violations of some of the same state statutes and regulations involved in the Scott County cases were actionable under section 1983. The plaintiffs in
Doe
alleged that when the defendants removed plaintiffs’ children based on accusations of child abuse, the defendants disregarded the pro
*1565
visions of Minn.Stat. § 626.556, subd. 10 and its corresponding regulations. 12 M.C. A.R. § 2.207,
recodified as
Minn.Rules. § 9560.0280, subp. 2-4. In
Doe,
the social worker defendants moved for summary-judgment at an early stage in the litigation, but the court denied their motion. The court reasoned that factual disputes existed over issues such as whether the welfare agency immediately investigated the charges and whether it attempted to preserve the family as required by statute.
Doe,
slip op. at 13-14. Thus, the HSD defendants’ purported violations of state statutes and regulations is conduct actionable under section 1983.
23
2. Immunity Defenses
The HSD defendants also claim that they are entitled to dismissal on the basis of both absolute and qualified immunity.
a. Absolute Immunity
The HSD defendants assert that as social workers involved in the handling of sexual abuse cases, they are protected by absolute immunity from section 1983 liability. To support this contention, they rely on
Kurzawa v. Mueller,
732 F.2d 1456 (6th Cir.1984), and
Whelehan v. County of Monroe,
558 F.Supp. 1093 (W.D.N.Y.1983). Both of these cases held that social workers investigating sexual abuse allegations were absolutely immune. These courts reasoned that social workers should enjoy absolute immunity because otherwise they faced the constant threat of retaliatory lawsuits brought by .disgruntled parents.
Kurzawa,
732 F.2d at 1458 ;
Whelehan,
558 F.Supp. at 1098-99 .
24
This proposition, however, is contrary to the majority of case law.
25
Doe v. Hennepin County,
slip op. at 15,
citing Joseph
A., 575 F.Supp. 346 (D.N.M.1983);
Dick,
551 F.Supp. 983 (D.Minn.1982);
Mattson v. Bankole,
CIV. 4-83-113, slip op. (D.Minn. May 27, 1982);
Doe v. Suffolk,
494 F.Supp. 179 (E.D.N.Y.1980). The argument that social workers need protection from lawsuits can also be made on behalf of police officers, because police officers have a similar potential for becoming defendants in actions commenced by the individuals they arrest. Still, police officers are not cloaked by absolute immunity.
Pierson v. Ray,
386 U.S. 547, 555 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 (1967). The Supreme Court has declared, moreover, that courts cannot create new forms
26
of absolute immunity under section 1983 because certain officials need protection from the constant threat of retaliatory litigation.
See Tower v. Glover,
467 U.S. 914 , 104 S.Ct. 2820, 2826 , 81 L.Ed.2d 758 (1984). If sound policy reasons exist for establishing new forms of absolute immunity, Congress, not the courts, must do so.
Tower,
104 S.Ct. at 2826 .
The HSD defendants, however, also seek to invoke an established basis for absolute immunity under section 1983. They reason that because they were assisting a county attorney in determining whether or not to initiate prosecutions, they are entitled to prosecutorial immunity. The HSD defendants rely on
Lawyer v. Kernodle,
721 F.2d
*1566
632 (8th Cir.1983), which held that a doctor who was accused of negligently performing an autopsy was absolutely immune. Because the information the doctor generated was to be used by the prosecutor to determine whether or not to file charges, the doctor was entitled to the same immunity as a prosecutor.
Lawyer,
721 F.2d at 636. The HSD defendants state that they played a similar role in the Jordan sex ring cases. In
Lawyer,
the plaintiff had alleged only that the doctor was negligent in performing the autopsy, while here plaintiffs allege that defendants acted with reckless indifference to plaintiffs’ rights. More importantly, the Court has previously concluded that defendant Morris might have acted beyond her prosecutorial role. Thus, the HSD defendants will not be able to derive prosecutorial immunity from their assistance of Morris if Morris was acting beyond her prosecutorial functions. The HSD defendants, therefore cannot prevail on the basis of absolute immunity.
b. Qualified Immunity
The HSD defendants also contend that qualified immunity entitles them to summary judgment at this juncture. These defendants initially argue that their purported violations of state statutes and regulations cannot defeat their claim to qualified immunity. In
Davis v. Scherer,
— U.S. -, 104 S.Ct. 3012, 3020 , 82 L.Ed.2d 139 (1984), the Supreme Court held that “[ojfficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision.” If a defendant violates a statute or regulation irrelevant to the plaintiff’s underlying constitutional claim, the defendant will not forfeit the defense of qualified immunity.
See Davis,
104 S.Ct. at 3018 . On the other hand, when a defendant’s violation of a state statute or regulation is itself part of a plaintiff’s cause of action, the violation may strip a defendant of the qualified immunity defense.
27
See Davis,
104 S.Ct. at 3020 n. 12.
Here, the HSD defendants’ purported violations, if true, do give rise to a cause of action under section 1983. The state laws and regulations the HSD defendants allegedly contravened concerned proper steps associated with the removal of children from their parents, and these transgressions are central to plaintiffs’ constitutional claims. The
Davis
Court, in fact, indicated that if state law created procedural rules which govern what process is due under the fourteenth amendment, then violations of such rules would strip a defendant of qualified immunity.
See Davis,
104 S.Ct. at 3019 n. 11. Thus, if the HSD defendants actually violated Minnesota statutes and regulations dealing with child removal, they would not be entitled to qualified immunity.
28
Irrespective of violations of state statutes and regulations, the HSD defendants cannot prevail on the basis of qualified immunity. As the Court has previously stated, plaintiffs are asserting violations of clearly established rights, and they are thus entitled to conduct discovery. Some of the individual HSD defendants, though, appear to have played a minor role in the Jordan sex ring cases. For instance, social workers Tafs and Dean are defendants only in
Buchan,
and they state that their contact with the Buchan children was entirely in the context of monitoring and supervising foster care of the children. They stress that they performed their duties relating to foster care within family court guidelines and at the direction of guardians ad litem. The family court did direct HSD to place the Buchan children in foster homes,
In re Buchan Children,
June 7, 1984 Order, at 2;
see also In re Buchan Children,
Nov. 15, 1984 Order, at 2. If Tafs’ and Deans’ activities relating to
Buchan
were solely actions taken in good faith reliance on court orders, then these defendants will prevail on the basis of qual
*1567
ified immunity.
E.g., Tymiak v. Omodt,
676 F.2d 306, 308 (8th Cir.1982) (per curiam). The Court, however, is not at present in a position to conclude that Tafs and Dean’s role was limited to good faith reliance on court orders.
3. Human Services Department
The Human Services Department, as an agency of Scott County, cannot raise a qualified immunity defense.
See Owen v. City of Independence,
445 U.S. 622, 650 , 100 S.Ct. 1398, 1415 , 63 L.Ed.2d 673 (1980). On the other hand, the HSD is not liable for the acts of its employees under the doctrine of respondeat superior.
Monell v. New York City Department of Social Services,
436 U.S. 658, 691 , 98 S.Ct. 2018, 2036 , 56 L.Ed.2d 611 (1978). The HSD would be liable if an affirmative link existed between its policies or customs and the alleged violation of plaintiffs’ rights.
City of Oklahoma City v. Tuttle,
— U.S. -, 105 S.Ct. 2427, 2436 , 85 L.Ed.2d 791 (1985) (Rehnquist, J., plurality);
see also Monell,
436 U.S. at 694 , 98 S.Ct. at 2037 .
Plaintiffs do assert that policies and customs of the HSD caused violations of plaintiffs’ constitutional rights. For example, plaintiffs claim that HSD had a policy of not working to reunite the family, whenever possible, which would be in direct contravention of a stated statutory goal. Minn.Stat. § 626.556, subd. 10. The Court should not merely accept the HSD’s claim that it had no improper policies or customs because discovery could yield evidence to the contrary. Plaintiffs are also entitled to attempt to establish an affirmative link between an HSD policy or custom and violations of plaintiffs’ rights. Accordingly, the Court denied HSD’s motion for summary judgment.
E. Scott County Defendants
Scott County, the political entity, is a defendant in all Scott County cases, while the Scott County Board of Commissioners (hereafter Board) is a defendant in only
Lallak.
The Board was also a defendant in
Meger,
but the Megers dismissed their claims against the Board without prejudice. The sole case to name individual members of the Board as defendants was
Rank,
but the Ranks have dismissed without prejudice their claims against individual board members.
Under section 1983, respondeat superior is not a basis for holding the Board or Scott County liable.
See Monell v. New York City Department of Social Services,
436 U.S. 658, 691 , 98 S.Ct. 2018, 2036 , 56 L.Ed.2d 611 (1978). “Instead, it is when execution of a [local] government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”
Monell,
436 U.S. at 694 , 98 S.Ct. at 2037 . An affirmative link must exist between the policy or custom and the violation of constitutional rights.
City of Oklahoma City v. Tuttle,
— U.S. -, 105 S.Ct. 2427, 2436 , 85 L.Ed.2d 791 (1985) (Rehnquist, J., plurality). Unlike individual officials, the Board and Scott County cannot raise the defense of qualified immunity,
see Owen v. City of Independence,
445 U.S. 622, 650 , 100 S.Ct. 1398, 1415 , 63 L.Ed.2d 673 (1980);
Dick v. Watonwan County,
562 F.2d 1083 , 1103 (D.Minn.1983),
rev’d in part on other grounds,
738 F.2d 939 (8th Cir.1984), nor can they be liable for punitive damages.
Newport v. Fact Concerts, Inc.,
453 U.S. 247, 271 , 101 S.Ct. 2748, 2762 , 69 L.Ed.2d 616 (1981).
1. Board of Commissioners
Board chairman Dick Mertz indicates that the Board did not have any direct involvement in the Jordan sex ring investigation. Mertz acknowledges that the Board generally knew of various criminal arrests and family court proceedings regarding alleged child sex abuse. Mertz aff.' ¶ 8, 13. According to Mertz, though, the Board was not informed on any specific details of investigations, criminal charges, or family court proceedings. Mertz aff. 115, 14. In fact, Mertz states that the Board did not have direct or indirect in
*1568
volvement in the investigation or prosecution of criminal or family court matters. Mertz aff. 1111. At no time, claims Mertz, did the Board establish or attempt to establish any policy, procedure, practice, or custom for the county, the county attorney’s office, the county sheriff’s office, or the county human services department (HSD) regarding the sexual abuse cases. Mertz aff. H 12. In June of 1984, the Board did provide the county attorney’s office and the HSD with additional personnel and office space because of the increased demands associated with ensuing sexual abuse trials. Mertz aff. 11 5.
The Lallaks make much of the Board’s approval of these additional funds, stating that the amount far exceeded any previous allocations and included huge overtime costs. The Board’s approval of the increased funds, conclude the Lallaks, indicates that the Board was not completely oblivious to the investigatory techniques being employed. By providing these funds, the Board supposedly sanctioned and encouraged the county attorney and the sheriff. Thus, the Lallaks argue that the Board is liable to them because it created a policy of nonintervention and deliberate indifference toward the methods used by all the various Scott County departments involved in the investigation.
To support their contention, the Lallaks point to
Turpin v. Mailet,
619 F.2d 196, 200 (2d Cir.),
cert. denied,
449 U.S. 1016 , 101 S.Ct. 577 , 66 L.Ed.2d 475 (1980), which held that a municipality can promulgate an official policy within the meaning of
Monell ,
by implicitly or tacitly authorizing, approving, or encouraging misconduct.
See also Herrera v. Valentine,
653 F.2d 1220, 1224 (8th Cir.1981). The
Turpin
court gave the example of senior personnel having knowledge of their subordinates committing a pattern of unconstitutional acts, and doing nothing to correct the misconduct. If the senior personnel’s failure to take remedial measures constituted deliberate indifference or tacit approval of the misconduct, a municipality could be held liable for subsequently occurring misconduct.
Turpin,
619 F.2d at 201 .
See also Parnell v. Waldrep,
538 F.Supp. 1203, 1205 (W.D.N.C.1982) (county and its board liable under section 1983 because they were aware of unconstitutional prison conditions and failed to rectify them). Turpin’s rationale has been embraced by the Eighth Circuit.
See Herrera,
653 F.2d at 1224 ,
citing Turpin.
One incident of subordinate misconduct, however, is an insufficient basis for inferring a municipal policy.
Tuttle,
105 S.Ct. at 2436-37 (Rehnquist, J., plurality), 2440 (Brennan, J., concurring).
In the present actions, however, the Board was not in a position to correct patterns of misconduct in the county attorney’s office, the sheriff’s department, or the HSD. The Board cannot dictate the policies of the county attorney or the county sheriff because these two individuals are independently elected and derive their powers to conduct county affairs from state statutes.
See
Minn.Stat. §§ 388.01-22 (county attorney) and §§ 387.01-45 (sheriff). In addition, the Scott County Human Services Board, and not the County Board, established policies for HSD.
See
Mertz aff. ¶ 9; Human Services Act, Minn.Stat. §§ 402.01-10. Because the Board was not in a position to rectify transgressions of these three departments, the Board cannot be liable for failing to take corrective measures.
See Anderson v. Nosser,
438 F.2d 183, 199 (5th Cir.1971),
mod. on other grounds,
456 F.2d 835 (en banc),
cert. denied,
409 U.S. 848 , 93 S.Ct. 53 , 34 L.Ed.2d 89 (1972). Neither can the Board be subjected to liability for approving additional funding for the HSD and the county attorney’s office. Funding facially legitimate budgetary requests cannot constitute approval of unconstitutional policies. Thus, summary judgment is warranted for the Board.
29
2. Scott County
The Court’s conclusion that the Board is entitled to summary judgment
*1569
does not automatically lead to the same result for the summary judgment motion of Scott County (hereafter County) itself. In addition to measures taken by its board of commissioners, a county acts through its high level officials.
See, e.g., Bowen v. Watkins,
669 F.2d 979, 989 (5th Cir.1982);
Leite v. City of Providence,
463 F.Supp. 585, 589 (D.R.I.1978). In holding that a municipality could be held liable under section 1983 only on the basis of a municipal policy or custom, the
Monell
Court indicated that potential sources for such policies or customs were municipal “lawmakers or ... those whose edicts or acts may fairly be said to represent official policy.”
Monell,
436 U.S. at 694 , 98 S.Ct. at 2037 . A policy which can be attributed to a municipal policy maker constitutes a municipal policy under section 1983.
Tuttle,
105 S.Ct. at 2436 (Rehnquist, J., plurality).
In
Sanders v. St. Louis County,
724 F.2d 665, 668 (8th Cir.1983) (per curiam), the Eighth Circuit stated that “[i]t may be that one act of a senior county official is enough to establish the liability of the county, if that official was in a position to establish policy and if that official himself directly violated another’s constitutional rights.” The issue of when a governmental official’s actions constitute a municipal policy or custom is a hotly contested topic in this circuit.
See Williams v. Butler,
746 F.2d 431, 438 (8th Cir.1984),
aff'd by an equally divided court,
762 F.2d 73 (1985) (en banc). Two views of what constitutes a municipal policy appear to have developed, but both views acknowledge that individual officials can make policies or customs which can subject municipalities to section 1983 liability if the officials act pursuant to their policymaking authority.
See Williams,
746 F.2d at 444 (McMillian, J., dissenting).
Plaintiffs argue that Scott County itself should be liable based on the policies and customs promulgated by high ranking county officials such as the county attorney, the sheriff, and the director of HSD. Examples of the possible policies or customs include those relating to the manner of conducting the sex ring investigation, the training and supervision of county employees, and the purported failure of HSD to attempt to reunite families whenever possible. Plaintiffs state that the many criminal defendants in the sex ring investigation indicates the existence of a policy as opposed to mere isolated incidents, and plaintiffs assert that discovery will produce additional facts indicating various policies or customs.
The County responds that the actions of these high ranking county officials do not constitute county policies or customs. The County first points to
Spielman Motor Sales Company, Inc. v. Dodge,
295 U.S. 89, 92-94 , 55 S.Ct. 678, 679-80 , 79 L.Ed. 1322 (1935) which held that a district attorney for a New York county was, under New York law, acting as an officer of the state when enforcing state laws. The
Dodge
Court had to decide whether the district attorney was acting as a state official in order to determine whether a federal law allowing injunctions against state officials would apply.
Dodge
did not involve an action under section 1983, and thus it does not stand for the proposition that a county attorney cannot make county policy in terms of section 1983 law.
The County does point to two section 1983 cases which are relevant to this issue. In
Familias Unidas v. Briscoe,
619 F.2d 391, 404 (5th Cir.1980), the court held that in enforcing state law, a county judge was not acting as a county policy maker. The court observed that under Texas’ governmental structure, county judges do undertake many actions in governing counties which would amount to making county policy under
Monell .
While implementing a law which gave the judge only narrow discretion, however, the judge was acting like a county sheriff enforcing a state law. The judge’s implementation of the law, concluded the court, effectuated state policy and should not subject a particular county to liability under section 1983.
Familias Unidas,
619 F.2d at 404 .
Based on
Familias Unidas ,
a district court held that a county could not be liable
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for the policy a district attorney
30
established regarding the issuing of misdemean- or arrest warrants.
Crane v. State of Texas,
534 F.Supp. 1237 (N.D.Tex.1982),
rev’d in part,
759 F.2d 412 (5th Cir.),
aff'd on reh’g,
766 F.2d 193 (1985) (per curiam). The district attorney created a policy whereby the clerk of court would issue a misdemeanor arrest warrant on the basis of a district attorney’s affidavit. Thus, no neutral magistrate would make a probable cause determination before the arrest warrant issued. The district court declared the policy unconstitutional, but found that the county was not liable. The district court concluded that the policy was not a county policy because it was not created for the county, nor was it subject to the county’s control.
Crane,
534 Supp. at 1246. Like the judge in
Familias Unidas ,
reasoned the district court, the district attorney was a state actor carrying out state policy.
Crane,
534 F.Supp. at 1245-46 .
The Fifth Circuit, however, reversed
Crane’s,
holding that the county was immune.
Crane v. State of Texas,
759 F.2d 412 (5th Cir.),
aff'd on reh’g,
766 F.2d 193 (1985) (per curiam). The court observed that county voters had elected the district attorney to his office, and he was able to establish the misdemeanor arrest warrant policy by virtue of his office. The district attorney, therefore, was a policy making official for the county and the county was liable under
Monell
for the policy he created.
See Crane,
759 F.2d at 429-30 ; 766 F.2d at 194-95 .
Here, plaintiffs allege that defendants Morris, Tietz, and the HSD established policies and customs regarding the Jordan sex ring investigations which caused violations of plaintiffs’ rights. Morris and Tietz are two of the highest ranking elected officials in Scott County, and both are in positions to create county policies and customs. Similarly, the County is responsible for policies and customs of the HSD.
Dick,
562 F.Supp. at 1095-96 . Scott County, therefore, will be liable if Morris, Tietz, or the HSD established policies or customs which caused violations of plaintiffs’ rights. Thus granting Scott County’s motion for summary judgment prior to plaintiffs’ having the opportunity to conduct discovery would be inappropriate. Scott County is, however, entitled to partial summary judgment on the issue of punitive damages because punitive damages are not recoverable against municipalities under section 1983.
Newport,
453 U.S. at 271 , 101 S.Ct. at 2762 .
F. Guardians
After adult suspects were arrested on charges of sexually abusing children, the Scott County Department of Human Services (HSD) immediately initiated neglect proceedings in family court under Minn.Stat. § 260.133 in order to separate the children from their parents. Pursuant to Minn.Stat. § 260.155, subd. 4, the Scott County Family Court appointed guardians ad litem (guardians) for children whose parents had been charged in neglect proceedings. That statute requires a family court to appoint a guardian to protect the best interests of a minor in neglect proceedings.
Defendants Diane Johnson, John Manahan, and Paul Thomsen all served as court appointed guardians. Defendants Johnson and Manahan are defendants in
Buchan
and
Brown,
while defendant Thomsen is a defendant in
Myers
and
Bentz.
Defendant Thomsen became the guardian for the Bentz children in January of 1984. Thomsen made his first appearance in that capacity in family court on January 25, 1984.
See In re Bentz Children,
Feb. 3, 1984 Order, at 1. Thomsen became the guardian for the Myers children in February of 1984. Thomsen made his first family court appearance in that capacity on February 13, 1984.
See In re Myers Children,
Feb. 23, 1984 Order, at 1.
Defendant Johnson assumed the role of guardian for the Brown children on or about January 19, 1984.
See In re Brown Children,
Feb. 8, 1984 Order, at 1. John
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son became the guardian for the Buchan children on June 7, 1984.
See In re Buchan Children,
June 7, 1984 Order, at 1. In late 1984, defendant Manahan began to act as guardian for the Brown and Buchan children when Johnson was unavailable. Johnson was at times unavailable because she was in the latter stages of pregnancy during this period.
The following allegations of the Buchans against defendants Johnson and Manahan are virtually identical to all of the allegations against each guardian defendant.
Defendants Diane Johnson and John Manahan are the court appointed guardians ad litem for the Buchans’ children. Defendants Johnson and Manahan, in addition to the other acts alleged herein, also engaged in a pattern of activity which was coercive and abusive to the minors placed under their direction by the Court in violation of their legal duties, in that they also interrogated the Buchans’ children in an attempt to elicit additional accusatory responses from them as well as permitting defendant Morris and defendants Wilker, Tafs and Dean to question and interrogate the children under circumstances where it was apparent that their emotional and psychological well-being was threatened. Defendants Johnson and Manahan permitted and participated in the isolation and confinement of the Buchans’ children in an attempt to coerce them into making responses which would be favorable for the State’s case against their parents.
Buchan
Complaint ¶ 6. All plaintiffs who are suing guardians also allege that the guardians were part of the civil conspiracy in which defendant Morris recklessly sought arrests and convictions in order to legitimize the claims of a Jordan sex ring.
The guardian defendants argue that because they are court appointed officials, absolute judicial immunity shields them from all of plaintiffs’ allegations. The Court agrees. Persons, governmental or otherwise, who are integral parts of the judicial process are entitled to absolute immunity from damage liability under 42 U.S.C. § 1983 .
Briscoe v. LaHue,
460 U.S. 325, 335-36 , 103 S.Ct. 1108, 1115-16 , 75 L.Ed.2d 96 (1983).
Even before
Briscoe’s
pronouncements,
31
a number of courts had held that court appointed officials were entitled to absolute immunity.
E.g., T & W Investment Company, Inc. v. Kurtz,
588 F.2d 801, 802 (10th Cir.1978) (receivers);
Kermit Construction Corp. v. Banco Credito y Ahorro Ponceno,
547 F.2d 1, 3 (1st Cir.1976) (receivers); and
Ashbrook v. Hoffman,
617 F.2d 474, 476-77 (7th Cir.1970) (partition commissioners). The Eighth Circuit, moreover, has cited with approval two cases in which court appointed officials were afforded absolute immunity from section 1983 damages.
Lawyer v. Kernodle,
721 F.2d 632, 636 (8th Cir.1983),
citing Bartlett v. Weimer,
268 F.2d 860 (7th Cir.1959), ce
rt. denied,
361 U.S. 938 , 80 S.Ct. 380 , 4 L.Ed.2d 358 (1960); and
Burkes v. Callion,
433 F.2d 318 (9th Cir.1970) (per curiam),
cert. denied,
403 U.S. 908 , 91 S.Ct. 2217 , 29 L.Ed.2d 685 (1971). In
Bartlett ,
the court concluded that a physician appointed by the probate court to assess the mental health of the plaintiff was absolutely immune from a section 1983 action. The plaintiff alleged that the physician was part of a conspiracy to maliciously prosecute the plaintiff and to falsely commit plaintiff to a mental institution.
Bartlett,
268 F.2d at 861 . The court ruled that the probate court appointed the physician as an officer of the court to render a medical opinion, and that while acting in such capacity, the physician was protected by the absolute immunity enjoyed by judges and other judicial officers.
Bartlett,
268 F.2d at 862 . Similarly, the court in
Burkes,
433 F.2d at 319 , concluded that court appointed psychiatrists who gave medical reports to
*1572
the trial court were entitled to absolute immunity.
32
Subsequent to the Supreme Court's decision in
Briscoe,
the United States Court of Appeals for the Sixth Circuit applied
Briscoe
in holding that a court appointed guardian ad litem was entitled to absolute immunity in a section 1983 action.
Kurzawa v. Mueller,
732 F.2d 1456, 1458 (6th Cir.1984). The court stated that the individual
who functioned as guardian ad litem ... must act in the best interests of the child he represents. Such a position clearly places him squarely within the judicial process to accomplish that goal.
Kurzawa,
732 F.2d at 1458 .
While
Kurzawa
is authority precisely on point, all plaintiffs attack the soundness of this decision. In assailing
Kurzawa ,
some plaintiffs point to the Supreme Court’s statement in
Tower v. Glover,
— U.S. -, 104 S.Ct. 2820, 2826 , 81 L.Ed.2d 758 (1984), that Congress, and not the courts, is the body to establish new immunities for section 1983 actions. The
Tower
Court declined to grant absolute immunity to a public defender who allegedly conspired with state officials to convict the plaintiff. The Supreme Court reached this decision only after concluding that no immunity for public defenders existed at common law in 1871, and therefore the Congress which passed the Civil Rights Act could not have intended that such an immunity exist for section 1983 actions.
Tower,
104 S.Ct. at 2825 .
Based on
Tower ,
plaintiffs argue that a court granting the guardians absolute immunity would constitute improper judicial creation of a new section 1983 immunity. Yet, when the Supreme Court has found that Congress intended section 1983 to encompass common law immunities prevalent at the time of the act’s passage, the Supreme Court has recognized immunities under section 1983.
Tower,
104 S.Ct. at 2825 . The Supreme Court has recognized these immunities in spite of the fact that “[o]n its face § 1983 admits no immunities.”
Tower,
104 S.Ct. at 2825 . The Supreme Court has held, moreover, that the common law of 1871, and thus section 1983, provided absolute immunity for all persons who were integral parts of the judicial process.
Briscoe,
460 U.S. at 335 , 103 S.Ct. at 1115 .
Thus, to conclude that a guardian is entitled to absolute immunity would not be to establish a new type of immunity against the dictates of
Tower .
Rather, protecting guardians with absolute immunity would simply be an instance of determining the contours of the already established immunity for persons acting as integral parts of the judicial process.
Plaintiffs put forth-an additional argument challenging the validity of
Kurzawa ,
as they claim that
Kurzawa
reads
Briscoe
much too broadly.
Briscoe
held that a police officer testifying at a trial enjoyed absolute witness immunity for his testimony, but a number of circuit courts have limited the application of
Briscoe.
In
Wheeler v. Cosden Oil and Chemical Co.,
734 F.2d 254, 261 (5th Cir.),
mod. on other grounds,
744 F.2d 1131 (1984), the court ruled that Briscoe’s absolute immunity for a witness’ testimony at trial did not apply to one who knowingly gave false testimony at a probable cause hearing. Another court declared that Briscoe’s witness immunity did not extend to cover a witness engaged in an extra-judicial conspiracy with a prosecutor to give false testimony.
San Filippo v. U.S. Trust Co. of New York, Inc.,
737 F.2d 246, 255 (2d Cir.1984),
cert. denied,
— U.S. -, 105 S.Ct. 1408 , 84 L.Ed.2d 797 (1985). Finally,
Krohn v. United States,
742 F.2d 24, 31 (1st Cir.1984), stated that
Briscoe
did not call for the granting of absolute immunity to a law enforcement officer who allegedly made intentional misrepresentations in a search warrant affidavit.
The Court agrees with the decisions which hold that Briscoe’s witness immunity applies only to testimony at trial
*1573
and not testimony in other proceedings. Such a narrowing of the holding in
Briscoe,
however, does not negate Kurzawa’s reliance on
Briscoe. Kurzawa
concluded that guardians ad litem are entitled to absolute immunity because they are integral parts of the judicial process.
Kurzawa,
732 F.2d at 1458 . The determination of whether a guardian functions as an integral part of the judicial process does not depend on the scope of the witness immunity created in
Briscoe.
The conclusion that guardians are integral parts of the judicial process is sound. Minn.Stat. § 260.155, subd. 4(a) requires that the family court appoint a guardian ad litem to protect the interests of the children in neglect or dependency proceedings. In a similar context (guardians for minors in probate proceedings), the Minnesota Supreme Court stated that a guardian is a fiduciary and an officer of the appointing court, subject to the orders and directions of that court.
Hoverson v. Hoverson,
216 Minn. 237 , 12 N.W.2d 497, 500 (1943). Thus, the Court concurs with Kurzawa’s holding that court appointed guardians are entitled to absolute immunity.
Nevertheless, plaintiffs argue that even under
Kurzawa ,
the guardian defendants should not prevail on the basis of absolute immunity. The guardians purportedly acted as investigators by attempting to elicit incriminating responses from the children, and by facilitating other defendants’ attempts to elicit such responses. Plaintiffs reason that in acting as investigators, the guardians were acting beyond their duties as guardians, and that absolute immunity will therefore not protect them.
These allegations, however, are actually assertions that the guardians committed transgressions while performing their functions as guardians. Court orders directed guardians, or their designee, to be present at all interviews of the children.
E.g., In re Myers Children,
Feb. 23, 1984 Order, at 2. The family court also gave the guardians the right to participate in all interviews of the children, to the extent necessary to protect the children’s best interests.
In re Kath Children,
Jan. 23, 1984 Stipulation, at 2 (this stipulation applied to nine family court cases, including
In re Bentz Children ).
Thus, even if the guardian defendants committed these alleged acts, they would have done so while performing their duties as guardians.
The cases cited with approval by the Eighth Circuit in
Lawyer ,
moreover, indicate that absolute immunity protects the guardian defendants from plaintiffs’ accusations. In both
Bartlett
and
Burkes ,
the court appointed doctors allegedly lied. Yet the
Bartlett
court reasoned that because the physician was functioning in his capacity as a court appointed physician, he was entitled to absolute immunity.
Bartlett,
268 F.2d at 862 .
Accord Burkes,
433 F.2d at 319 . Obviously, the duties of these doctors did not include lying, but the courts granted them absolute immunity because their purported transgressions were part of their functions as court appointed officials.
Finally, plaintiffs argue that the guardian defendants cannot prevail on the basis of absolute immunity because the guardians conspired with other defendants. This reasoning is unpersuasive. In
Bartlett
the court granted the court appointed physician absolute immunity in spite of the plaintiff’s charge that the physician had conspired to maliciously prosecute and falsely commit the plaintiff.
Bartlett,
268 F.2d at 861 . Thus, plaintiffs’ allegations of conspiracy do not defeat the guardians’ defense of absolute immunity, and absolute immunity shields the guardian defendants from all of plaintiffs’ claims.
G. Therapists
A number of therapists who dealt with alleged child abuse victims,
33
are also named as defendants in various Scott County cases. Most of these therapists were appointed by the Scott County Family
*1574
Court; one therapist was not a court appointed official; and the record is unclear as to whether one therapist was court appointed.
1. Court Appointed Therapists
After the. children of accused sexual abusers were separated from their parents, the Scott County Family Court appointed therapists for the children. Minn.Stat. § 260.151, subd. 1, provides that a family court may appoint a duly qualified physician, psychiatrist, or psychologist to examine any minor under its jurisdiction. The following court appointed therapists are defendants in Scott County cases: Michael Shea, Leslie Faricy, Susan Phipps-Yonas, and Thomas Price.
Shea is a defendant in
Bentz
and
Buchan,
while Faricy is a defendant in
Bentz.
3
4
With regard to the Bentz children, the family court directed therapist Faricy to evaluate and determine the psychological needs of the children.
In re Bentz Children,
Feb. 3, 1984 Order, at 2. The order named only Faricy, but defendant Shea, who is Faricy’s partner, also had contact with the children. The family court was aware that both Faricy and Shea were dealing with the children.
See In re Bentz Children,
Memorandum accompanying Aug. 10, 1984 Order. In addition to his involvement with the Bentz children, Shea performed an adverse psychological interview of Donald and Cindy Buchan in preparation for the impending Buchan criminal trial.
In
Brown,
the sole therapist defendant is Phipps-Yonas.
35
The order in the Brown family court proceeding mandated that defendant Phipps-Yonas evaluate and give appropriate counseling to the Brown children.
In re Brown Children,
Feb. 8, 1984, Order, at 3.
Defendant Price
36
is a defendant in
Myers, Lallak,
and
Buchan.
Price was a court appointed official in the
Myers
family court matter, but he did not serve in such capacity with respect to the Lallak or Buchan children. Price states that he had no contact with the Lallak children, and that his only involvement with the Buchan children was one twenty-minute interview of one of the Buchans’ daughters. Price aff. ¶ 7-9. The family court directed defendant Price to evaluate the Myers children and to determine their counseling needs, and other issues which needed to be addressed.
In re Myers Children,
Feb. 23, 1984 Order, at 2. Subsequent to the commencement of the
Myers
family court proceeding, and subsequent to Price’s appointment, the Myers children implicated a variety of individuals as child sex abusers. The statements of the Myers children later formed the basis for the arrest of, inter alia, Jane Myers, the Lallaks, and the Buchans.
The plaintiffs allege that the therapist defendants provided Morris with psychological evaluations of the children of the plaintiffs. They further charge that the therapists interrogated the children, and psychologically manipulated them to transmit confirmation of allegations against the adult plaintiffs.
E.g., Bentz
Complaint ¶ 6;
Buchan
Complaint ¶ 7. Plaintiffs’ briefs elaborate on their theory against the therapists. Instead of providing therapy and independent counseling to the children, argue plaintiffs, the therapists became part of the investigatory team which sought to obtain convictions for child sexual abuse. The therapists purportedly agreed with other investigators to develop evidence against the adult plaintiffs in reckless disregard of the truth. Plaintiffs reason that the therapists isolated the children from their parents to make the children emotionally dependent upon Morris and other investigators. In this way, conclude plaintiffs, the children would be responsive to
*1575
their investigators and would thus provide the desired accusatory statements.
In support of their allegations that defendant Price acted as

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1793661. Public record. Not legal advice.