Gray, William v. Poole, Theisha

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided March 27, 2001

No. 00-7130

William T. Gray, III,

Appellant

v.

Theisha Poole, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 99cv02233)

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On Motions for Summary Affirmance

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Robert Rigsby, Corporation Counsel, Charles Reischel,

Deputy Corporation Counsel, and Mary L. Wilson, Assistant

Corporation Counsel, were on the motion for summary affir-

mance filed by appellees Theisha Poole, et al.

Kevin C. Newsom and Kurt G. Calia were on the motion

for summary affirmance filed by appellee Lisa M. Farabee.

William T. Gray, III, appearing pro se, was on the opposi-

tions to appellees' motions for summary affirmance.

Before: Ginsburg, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: This case poses the question

whether attorneys of the District of Columbia's Office of

Corporation Counsel are absolutely immune from damages

under 42 U.S.C. s 1983 for their conduct in initiating and

prosecuting a child neglect action. We conclude that they are

and summarily affirm the district court's dismissal of a dam-

ages suit brought by a custodian charged with neglect.

I

Appellant William Thomas Gray, III was the custodian of

his minor brother and the legal guardian of his brother's

estate. In April 1998, the Probate Division of the District of

Columbia Superior Court removed Gray as legal guardian,

finding him to be "mentally ill and in need of relief from his

duties." Robertson v. Gray, GDN 12-97, Admin. No.

0057-97, slip op. at 4 (D.C. Super. Ct., Prob. Div. Apr. 30,

1998). In March of the following year, the District of Colum-

bia instituted a separate child neglect action, charging that

Gray, who was still serving as his brother's custodian, was not

providing his brother with adequate care. Pet., In re P.G.,

No. N-363-99, S.F. No. 211453 (D.C. Super. Ct., Family Div.,

Neglect Branch Mar. 27, 1999). Two months later, citing the

decision of the Probate Division, the District amended its

neglect petition to add as an additional ground that Gray

lacked the mental capacity to care for his brother.

Appellee Lisa M. Farabee filed and prosecuted the neglect

action against Gray as part of her duties as Special Assistant

Corporation Counsel for the District of Columbia.1 At the

time the neglect suit was filed, appellee Jo Anne Robinson

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1 Farabee served in this capacity from December 1998 to June

1999, while on temporary assignment as part of the pro bono

program of Covington & Burling, a District of Columbia law firm.

was Acting Corporation Counsel for the District of Columbia.

Appellee Theisha Poole was the social worker assigned to the

neglect case by the District's Child and Family Services

Agency.

In August 1999, while the neglect proceeding was pending,

Gray sued Farabee, Robinson, and Poole in the United States

District Court for the District of Columbia, asserting a cause

of action under 42 U.S.C. s 1983.2 Gray alleged that the

defendants filed the neglect action with knowledge that it was

"without a basis or cause," and that they subsequently

amended the action based on "unreliable and unverified"

statements of the judge in the Superior Court probate case.

Compl. at 2. Gray sought $10 million in damages for uncon-

stitutional "harassment, defamation of character, [and] libel-

ous and slanderous statements, created by Defendants." Id.

at 4.

In January 2000, Farabee filed a motion to dismiss pursu-

ant to Federal Rule of Civil Procedure 12(b)(6), contending

that she was absolutely immune from liability because of her

role as the government prosecutor of the neglect action.

Robinson filed a similar motion to dismiss in March 2000. In

an order dated April 27, 2000, the district court granted

defendants' motions, holding that "[g]overnment attorneys

are absolutely immune from liability for their actions in

initiating and prosecuting civil child welfare cases." Gray v.

Poole, No. 99-cv-2233, slip op. at 2 (D.D.C. Apr. 27, 2000).

Because Gray "d[id] not allege that Farabee injured him in

any manner outside the scope of the neglect proceedings," the

district court found that absolute immunity covered Farabee.

Id. at 3. The court also found Robinson "entitled to absolute

immunity[,] for the same reasons as the attorney she super-

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2 Section 1983 provides that every person who, under color of

law "of any State or Territory or the District of Columbia," deprives

another of a constitutional right "shall be liable to the party

injured." 42 U.S.C. s 1983. Although Gray's complaint did not

expressly state that it was based on s 1983, the district court

construed it as such, and all parties have adopted that construction.

vised, defendant Farabee." Id. at 4.

Gray appealed the district court's ruling, and Robinson and

Farabee now move for summary affirmance.3

II

We review the dismissal of plaintiff's complaint de novo,

and accept its factual allegations as true. See Buckley v.

Fitzsimmons, 509 U.S. 259, 261 (1993); Sloan v. United

States Dep't of Hous. and Urban Dev., 236 F.3d 756, 759

(D.C. Cir. 2001). We will grant summary affirmance only

when the merits of the parties' positions are so clear that

expedited action is justified and further briefing unnecessary.

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-98

(D.C. Cir. 1987). In this case, because the merits are so

clear, we summarily affirm the dismissal of Gray's complaint

against Farabee and Robinson.

A

The Supreme Court has recognized two kinds of immunity

applicable to public officials sued for damages under s 1983.

Most officials receive only qualified immunity, which protects

them from liability for the performance of discretionary func-

tions when "their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable per-

son would have known." Buckley, 509 U.S. at 268 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Court

has also determined, however, that "some officials perform

'special functions' which ... deserve absolute protection from

damages liability." Id. at 268-69 (quoting Butz v. Economou,

438 U.S. 478, 508 (1978)). Where absolute immunity is

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3 The district court dismissed the complaint against Poole as

well, stating that it "agree[d] with those courts that have extended

absolute immunity to social workers who assist with the prosecution

of child neglect cases." Gray v. Poole, slip op. at 4-5. Without

commenting on the merits of that decision, we conclude that it does

not meet the stringent standards for summary affirmance. We

have therefore, by separate order, directed full briefing and argu-

ment for Gray's appeal of Poole's dismissal.

deemed appropriate, an official is protected from all suits

attacking conduct within the scope of the immunity, even if

the official is alleged to have acted in bad faith. See Moore v.

Valder, 65 F.3d 189, 194 (D.C. Cir. 1995).

The Court has recognized as "special functions" deserving

of absolute immunity those that are similar "to functions that

would have been immune when Congress enacted s 1983."

Buckley, 509 U.S. at 268-69. Even where there is a common-

law tradition of absolute immunity for a given function, the

Court further considers "whether s 1983's history or pur-

poses nonetheless counsel against recognizing the same im-

munity in s 1983 actions." Id. at 269 (quoting Tower v.

Glover, 467 U.S. 914, 920 (1984)). In making these determi-

nations, the Court applies a "functional approach," looking to

"the nature of the function performed, not the identity of the

actor who performed it." Id. (quoting, respectively, Burns v.

Reed, 500 U.S. 478, 486 (1991) and Forrester v. White, 484

U.S. 219, 229 (1988)).

In Imbler v. Pachtman, the Supreme Court followed this

general approach in holding that a criminal prosecutor is

immune from damages under s 1983 for "initiating a prosecu-

tion" and "presenting the State's case." Imbler v. Pachtman,

424 U.S. 409, 431 (1976). The Court first found the common-

law immunity of prosecutors for such functions to be "well

settled," and then concluded that "the same considerations of

public policy that underlie the common-law rule likewise

countenance absolute immunity under s 1983." Id. at 424.

These considerations included the "concern that harassment

by unfounded litigation would cause a deflection of the prose-

cutor's energies from his public duties, and the possibility

that he would shade his decisions instead of exercising the

independence of judgment required by his public trust." Id.

at 423. Such unfounded litigation, the Court feared, "could

be expected with some frequency, for a defendant often will

transform his resentment at being prosecuted into the ascrip-

tion of improper and malicious actions to the State's advo-

cate." Id. at 425; see also Buckley, 509 U.S. at 270 n.4;

Burns, 500 U.S. at 485-86.

The Supreme Court extended Imbler beyond the context of

criminal prosecutions in Butz v. Economou, holding absolute

immunity applicable to agency attorneys in administrative

enforcement proceedings. Butz, 438 U.S. at 516-17. Butz

concerned a plaintiff who controlled a company registered

with the Department of Agriculture as a commodity futures

commission merchant. The Department sought to revoke or

suspend the company's registration by filing an administra-

tive complaint and conducting administrative proceedings be-

fore an agency hearing examiner. Plaintiff responded by

suing senior Department officials and the Department attor-

ney who had prosecuted the proceeding. Id. at 481-82.

In analyzing the defendants' immunity claims, Butz first

recounted the historical immunity of prosecutors previously

discussed in Imbler, and particularly noted "the common-law

precedents extending absolute immunity to parties participat-

ing in the judicial process: judges, grand jurors, petit jurors,

advocates, and witnesses." Id. at 509 (emphasis added); see

also Burns, 500 U.S. at 489-90 ("Like witnesses, prosecutors

and other lawyers were absolutely immune from damages

liability at common law for making false or defamatory state-

ments in judicial proceedings...." (emphasis added)). Em-

ploying the functional approach described above, the Court

declared that "agency officials performing certain functions

analogous to those of a prosecutor should be able to claim

absolute immunity with respect to such acts." Butz, 438 U.S.

at 515.

The Butz Court then turned its attention to two classes of

defendants. Considering first those officials "responsible for

the decision to initiate or continue a proceeding subject to

agency adjudication," id. at 516, the Court held: "The deci-

sion to initiate administrative proceedings against an individu-

al or corporation is very much like the prosecutor's decision

to initiate or move forward with a criminal prosecution," id. at

515. As with prosecutors, the Court explained, "[t]he discre-

tion which executive officials exercise with respect to the

initiation of administrative proceedings might be distorted if

their immunity from damages arising from that decision was

less than complete." Id. And as with the decision to prose-

cute, there is "a serious danger that the decision to authorize

proceedings will provoke a retaliatory response," and that

"[a]n individual targeted by an administrative proceeding will

react angrily and may seek vengeance in the courts." Id.

Furthermore, the Court noted, "[t]he defendant in an en-

forcement proceeding has ample opportunity to challenge the

legality of the proceeding," id., and to have "[h]is claims that

the proceeding is unconstitutional ... heard by the courts,"

id. at 516. Accordingly, the Court held that those officials

who are responsible for the decision to initiate or continue

administrative proceedings are "entitled to absolute immunity

from damages liability for their parts in that decision." Id.

Focusing next on the role of an agency attorney who

"present[s] evidence in an agency hearing," the Court de-

clared that it could "see no substantial difference between the

function" of such an attorney "and the function of the prose-

cutor who brings evidence before a court." Id. If agency

attorneys were held personally liable for damages, the Court

reasoned, they, like prosecutors, "might hesitate to bring

forward some witnesses or documents." Id. at 517. More-

over, because the evidence submitted by agency attorneys,

like that submitted by prosecutors, is "subject to attack

through cross-examination, rebuttal, or reinterpretation by

opposing counsel," defendants' interests are adequately pro-

tected. Id. Thus, the Court concluded, "an agency attorney

who arranges for the presentation of evidence on the record

in the course of an adjudication is absolutely immune from

suits based on the introduction of such evidence." Id.4

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4 Although Butz involved a suit brought against federal officials

directly under the Constitution pursuant to Bivens v. Six Unknown

Fed. Narcotics Agents, 403 U.S. 388 (1971), Butz held that there is

no distinction for purposes of immunity between such a suit and one

brought against state officials under s 1983. Butz, 438 U.S. at 504;

see also Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 n.5

(1993).

B

Neither the Supreme Court nor this court has yet ad-

dressed the specific question raised in this case: whether

absolute immunity extends to government attorneys for their

conduct in initiating and prosecuting civil child neglect ac-

tions. Butz, however, is indistinguishable from the situation

before us. We "can see no substantial difference" between

the function of agency attorneys in bringing enforcement

actions before administrative tribunals and that of District

attorneys in bringing neglect actions in Superior Court.

Butz, 438 U.S. at 516. In both contexts, government attor-

neys "must make the decision to move forward ... free from

intimidation or harassment." Id. The prospect of angry,

retaliatory litigation by targets of the attorneys' actions is at

least as likely in child neglect cases as in efforts to suspend

the registration of commodities merchants. Moreover, as was

true in Butz, "the legal remedies already available" to those

involved in child neglect proceedings "provide sufficient

checks on agency zeal." Id. Gray may challenge the legality

of the District's actions directly in those proceedings and may

raise claims of unconstitutional conduct both there and on

appeal.

Seeing no substantial difference between the function of

prosecutors and that of agency attorneys in initiating pro-

ceedings and presenting evidence, the Butz Court extended

the historical immunity of the former to the latter. If

anything, the function of an attorney who litigates a Superior

Court neglect action is closer to that of the prosecutor in

Imbler than was the function of the agency attorney who

litigated administrative hearings in Butz itself: Although

neither this case nor Butz involved a criminal prosecution, all

of the conduct here was "intimately associated with the

judicial phase," Imbler, 424 U.S. at 430 (emphasis added),

rather than the administrative phase, of the enforcement

process. Accordingly, we hold that government attorneys

who prosecute child neglect actions perform "functions analo-

gous to those of a prosecutor [and] should be able to claim

absolute immunity with respect to such acts." Butz, 438 U.S.

at 515. In so doing, we join every circuit that has addressed

the question. See Snell v. Tunnell, 920 F.2d 673, 692-94

(10th Cir. 1990); Weller v. Dep't of Soc. Servs., 901 F.2d 387,

397 n.11 (4th Cir. 1990); Myers v. Morris, 810 F.2d 1437,

1452 (8th Cir. 1987), overruled on other grounds by Burns,

500 U.S. at 496; Walden v. Wishegrad, 745 F.2d 149, 152 (2d

Cir. 1984).

The only remaining question is whether the conduct of the

District of Columbia attorneys at issue here falls within the

scope of the immunity. At a minimum, it is clear that

absolute immunity extends to "initiating a prosecution" and to

"presenting the State's case." Imbler, 424 U.S. at 431; see

Buckley, 509 U.S. at 269; Moore, 65 F.3d at 193; cf. Buckley,

509 U.S. at 273 (holding that absolute immunity does not

apply "[w]hen a prosecutor performs the investigative func-

tions normally performed by a detective or police officer").

This precludes us from assessing s 1983 liability against

defendants for "making false or defamatory statements dur-

ing, and related to, judicial proceedings." Buckley, 509 U.S.

at 270; see Burns, 500 U.S. at 489-90; Moore, 65 F.3d at 194.

The district court found that Gray's complaint "does not

allege that Farabee injured him in any manner outside the

scope of the neglect proceedings." Gray v. Poole, slip op. at

3. That finding is correct. The complaint alleges that Fara-

bee "filed [the] neglect action without a basis or cause," and

that she then proceeded to amend the action with "unreliable

and unverified probate matters." Compl. at 2. It further

alleges that the materials she filed were "libelous and slan-

derous." Id. All of these allegations against Farabee involve

statements she made to the court and thus fall well within the

scope of her absolute immunity.5

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5 Gray's complaint also asserts that the D.C. Superior Court did

not have jurisdiction over the neglect action because Gray had not

been properly served. Compl. at 2. Federal district courts, howev-

er, "lack jurisdiction to review judicial decisions by state and

District of Columbia courts." Richardson v. Dist. of Columbia

Court of Appeals, 83 F.3d 1513, 1514 (D.C. Cir. 1996) (citing Rooker

v. Fidelity Trust Co., 263 U.S. 413, 415 (1923) and Dist. of Columbia

v. Feldman, 460 U.S. 462, 476 (1983)). Other than the D.C. Court

Although the caption of Gray's complaint also names then-

Acting Corporation Counsel Robinson as a defendant, the

body of the complaint does not mention any specific action

taken by her; indeed, it does not mention her at all. Gray's

papers in this court describe Robinson as "Farabee's supervi-

sor," and assert only that she "should have never allowed

Defendant Farabee to proceed with an unlawful case." Opp'n

to Defs.' Mot. for Summ. Affirm. at 3-4. At most, this would

make Robinson "responsible for the decision to initiate or

continue [the] proceeding"--a function Butz clearly held to be

within the scope of absolute immunity. Butz, 438 U.S. at 516.

III

We conclude that attorneys for the District of Columbia are

absolutely immune from damages under 42 U.S.C. s 1983 for

their conduct in initiating and prosecuting child neglect ac-

tions. As this conclusion follows necessarily from the Su-

preme Court's decision in Butz, as well as from the holdings

of all the circuits to have addressed the question, this case is

appropriate for summary disposition. The decision of the

district court dismissing Gray's complaint against Farabee

and Robinson is

Affirmed.

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of Appeals, the United States Supreme Court is the only court with

jurisdiction to review this aspect of Gray's complaint. Id. We

note, moreover, that this is the second time Gray has sought review

of the neglect action in federal court on this ground. In 1999, he

attempted to remove the case from Superior Court to the United

States District Court for the District of Columbia. That case was

dismissed and no appeal was taken. In re: Patrick Gray, No.

99-cv-2230 (D.D.C. Aug. 19, 1999).