J.T.H. v. Spring Cook

United States Court of Appeals

For the Eighth Circuit

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No. 21-2433

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J.T.H.; H.D.H.

Plaintiffs - Appellees

v.

Missouri Department of Social Services Children’s Division

Defendant

Spring Cook

Defendant - Appellant

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Appeal from United States District Court

for the Eastern District of Missouri - Cape Girardeau

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Submitted: January 13, 2022

Filed: July 1, 2022

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Before BENTON, SHEPHERD, and STRAS, Circuit Judges.

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STRAS, Circuit Judge.

Two parents sued a child-welfare investigator for allegedly retaliating against

them for exercising their First Amendment rights. The magistrate judge, acting by

consent of the parties, concluded that neither absolute nor qualified immunity

applied. We reverse.

I.

A sheriff’s deputy sexually abused J.T.H.’s 15-year-old son. J.T.H., who also

worked in law enforcement, threatened to sue for the abuse. Before long, Spring

Cook, a child-welfare investigator, showed up at his door after someone had

apparently called the child-abuse hotline and accused him (and his wife) of neglect.

The parents asked for the case to be reassigned to an investigator from another

county, but Cook kept it for herself.

From there, the investigation took several twists and turns. After conducting

several home visits, Cook allegedly told J.T.H. that she would “get[]” his peace-

officer’s license, which led the family to “refuse[] further home visits.” Not long

after, Cook issued a preliminary written finding of neglect. See Mo. Rev. Stat.

§ 210.152.2(1). She relied on two incidents of sexual abuse: the one involving the

sheriff’s deputy and another involving a martial-arts instructor. Cook additionally

noted that the parents had permitted their son to go on a date in another state with a

teenage boy. If the finding had become final, the parents would have been placed

on Missouri’s Child Abuse and Neglect Registry. See Mo. Rev. Stat. § 210.109.3(1),

210.110(3).

Unsatisfied with the outcome, the parents requested a formal administrative

review. See Mo. Rev. Stat. § 210.152.4 (providing that “[a]ny person named in an

investigation as a perpetrator . . . may seek an administrative review by the child

abuse and neglect review board”). At the first step, the circuit manager decides

whether to uphold the preliminary finding. See Mo. Code Regs. Ann. tit. 13, § 35-

31.025(2)(B) (2008). As it happens, Cook was the circuit manager, so she reviewed

and upheld her own finding. The second step required Cook, the parents, and their

attorney to appear before Missouri’s Child Abuse and Neglect Review Board. Id.

§ 35-31.025(2)(C). Following that meeting, the Board concluded that Cook’s

findings of “neglect were unsubstantiated.”

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After clearing their name, the parents sued Cook on a First Amendment

retaliation theory. See 42 U.S.C. § 1983. According to them, the investigation and

its aftermath were a direct response to their earlier threat to sue. Cook filed a motion

to dismiss on both absolute- and qualified-immunity grounds, but the magistrate

judge concluded that neither was available.

II.

Questions about absolute and qualified immunity at the motion-to-dismiss

stage are reviewed de novo. See Sandknop v. Mo. Dep’t of Corr., 932 F.3d 739, 742

(8th Cir. 2019). Our review “is limited to the facts alleged in the . . . [c]omplaint,

which we accept as true and view most favorably to the plaintiffs.” Stanley v.

Finnegan, 899 F.3d 623, 625 (8th Cir. 2018); see also Sandknop, 932 F.3d at 742.

Absolute immunity, the “strong[er] medicine,” is available only in limited

circumstances. Forrester v. White, 484 U.S. 219, 230 (1988) (quotation marks

omitted). It covers “judicial or adjudicative” acts, id. at 229; legislative acts coming

within the Speech and Debate Clause, see id. at 224; and, as relevant here,

prosecutorial acts, see Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976). If absolute

immunity existed for a particular government function in 1871, when Congress

passed 42 U.S.C. § 1983, then it still does today. See Forrester, 484 U.S. at 225–

26; see also Imbler, 424 U.S. at 417–18. As its name suggests, absolute immunity

applies absolutely and without qualification.

Qualified immunity is different. On the one hand, it covers a vast array of

actions, from split-second judgment calls to carefully crafted decisions. See Goffin

v. Ashcraft, 977 F.3d 687, 691 (8th Cir. 2020); Turning Point USA at Ark. State Univ.

v. Rhodes, 973 F.3d 868, 873–74, 881 (8th Cir. 2020). In other ways, it is narrower:

government actors only benefit from it if their actions did not violate a clearly

established right. See McManemy v. Tierney, 970 F.3d 1034, 1038 (8th Cir. 2020).

As the Supreme Court has put it, “the right’s contours [must have been] sufficiently

definite that any reasonable official in the defendant’s shoes would have understood

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that he was violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting

Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014)).

A.

Differentiating between the two can be tricky. Determining which applies

depends on “‘the nature of the function performed, not the identity of the actor who

performed it.’” Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (quoting

Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).

Applying the “functional approach,” our starting point is the investigation

itself, which involved interviewing witnesses and collecting evidence. See

Forrester, 484 U.S. at 224 (noting that “[r]unning through our cases, with fair

consistency, is a functional approach to immunity questions” (internal quotation

marks omitted)). Purely investigative activities, even those conducted by a social

worker, “do not qualify for absolute immunity.” Schenk, 461 F.3d at 1046; see also

Beltran v. Santa Clara Cnty., 514 F.3d 906, 908–09 (9th Cir. 2008) (en banc) (per

curiam) (“[S]ocial workers conducting investigations have no [absolute]

immunity.”); Achterhof v. Selvaggio, 886 F.2d 826, 830 (6th Cir. 1989) (holding that

a social worker’s “decision to ‘open a case’ was not entitled to absolute immunity”

because the “decision was only investigatory or administrative in nature”).

Nor does filing an “investigation report,” the final step in Cook’s

investigation. See Mo. Rev. Stat. § 210.152.1, 2(1). Like a probation officer who

files a violation report, Cook’s task was to make a preliminary “finding” on the issue

in front of her. Mo. Code Regs. Ann. tit. 13, § 35-31.025(2) (2008); see Ray v.

Pickett, 734 F.2d 370, 373–75 (8th Cir. 1984); Nelson v. Balazic, 802 F.2d 1077,

1079 (8th Cir. 1986). To be sure, the setting was different: a child-welfare

investigation rather than a criminal one. And the standard was different: a

preponderance of the evidence instead of probable cause. But the “function” was

more or less the same, meaning that neither is a “prosecutorial” act subject to

absolute immunity. See Ray, 734 F.2d at 373–75 (holding that there is no absolute

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immunity for filing a probation violation report); see also Millspaugh v. Cnty. Dep’t

of Pub. Welfare of Wabash Cnty., 937 F.2d 1172 (7th Cir. 1991) (explaining that a

social worker’s application for a child-custody order “was much like a police

officer’s affidavit seeking a search warrant, . . . which . . . falls outside the scope of

absolute immunity”); Austin v. Borel, 830 F.2d 1356, 1362 (5th Cir. 1987)

(concluding that the same act was “functionally comparable to a police officer

seeking an arrest warrant”).

B.

Qualified immunity is another story. It is available if the parents’ complaint

did not state “a plausible claim for violation of a constitutional or statutory right” or

the “right was [not] clearly established at the time of the alleged infraction.” Hager

v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).

Here, the complaint falls short of establishing that Cook violated a clearly

established right. See id. Even assuming that the facts in the complaint are true and

drawing all reasonable inferences in the parents’ favor, “existing precedent” does

not “place[] . . . the constitutional question beyond debate.” Kisela, 138 S. Ct. at

1152 (citation omitted). After all, we have never recognized a retaliatory-

investigation claim of this kind. Nor have other courts around the country, which

have either rejected the possibility outright or concluded, like we do today, that the

law is still in flux. 1 It is safe to say, in other words, that the law is anything but clear.

1

See Villarreal v. City of Laredo, Tex., 17 F.4th 532, 542 n.1 (5th Cir. 2021)

(holding that “this circuit does not recognize” a retaliatory-investigation claim);

Lincoln v. Maketa, 880 F.3d 533, 540 (10th Cir. 2018) (“The Supreme Court has

declined to consider whether a retaliatory criminal investigation entails a

constitutional violation. Other circuits disagree with one another on the issue.”

(citation omitted)); Archer v. Chisholm, 870 F.3d 603, 620 (7th Cir. 2017) (“There

is no clearly established rule of law under which an official pursuing a lawful

investigation, based on probable cause, has been found liable under the First

Amendment to a target.”); Rehberg v. Paulk, 611 F.3d 828, 850–51 (11th Cir. 2010)

(noting that “[t]he Supreme Court has never defined retaliatory investigation,

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It makes no difference that, “as a general matter, the First Amendment

prohibits government officials from subjecting an individual to retaliatory

actions . . . on the basis of . . . constitutionally protected speech.” Solomon v. Petray,

795 F.3d 777, 787–88 (8th Cir. 2015) (quotation marks and brackets omitted)

(emphasis added). The Supreme Court has instructed us “not to define clearly

established law at a high level of generality.” Kisela, 138 S. Ct. at 1152 (quotation

marks omitted). So even if there is a general right to be free of retaliation, the law

is not clearly established enough to cover the “specific context of the case”:

retaliatory investigation. Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (emphasis

added). Cook is entitled to qualified immunity for both investigative acts.

C.

By the time she reviewed her own finding as circuit manager, however, there

was no longer an open investigation. To the contrary, her job at that point was to

review the report and either “uphold or reverse” it. Mo. Code Regs. Ann. tit. 13,

§ 35-31.025(2)(B) (2008). Unsurprisingly, she stood by her own work.

We have already held that absolute immunity is available for functions like

this one. See Stanley v. Hutchinson, 12 F.4th 834 (8th Cir. 2021). In Stanley, two

parents sued after a child-welfare investigator made a “‘find[-]true’ determination,”

which had the effect of upholding the initial allegations of child abuse. Id. at 844.

We concluded, as relevant here, that “[t]he true findings may have initiated the

administrative hearings regarding child abuse, but this was a prosecutorial decision

meriting absolute immunity.” Id.; see also Barber v. Miller, 809 F.3d 840, 844 (6th

Cir. 2015) (“[S]ocial workers enjoy absolute immunity when acting in their

capacities as legal advocates,” which includes “initiating court proceedings” and

“filing child-abuse complaints.”).

standing alone, as a constitutional tort, and neither has this Court,” and holding that

the “right to be free from a retaliatory investigation is not clearly established”

(citation omitted)).

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Little separates Cook’s decision to uphold her own preliminary finding from

the find-true determination in Stanley. Elsewhere in their brief, the parents point out

that Stanley did not involve a First Amendment claim. But as we have explained,

the availability of absolute immunity depends on “the nature of the function

performed,” not the type of claim brought. Forrester, 484 U.S. at 229.

III.

We accordingly reverse the judgment and remand for dismissal of the parents’

First Amendment retaliation claim.

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