Appendix — Meyers v. Contra Costa County Department of Social Services

Supreme Court brief1987

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

DAVID GLEN MEYERS, et al., Petitioners,

CONTRA COSTA COUNTY DEPARTMENT OF

SOCIAL SERVICES, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

sie FOR THE NINTH CIRCUIT

APPENDIX

LINSEY J. FREEMAN, ESQ.

219 Broadway

Richmond, CA 94804

(415) 235-5651

Counsel of Record

VAUGHN E. SPUNAUGLE, ESQ.

207 - 37th Street

Richmond, CA 94805

(415) 620-0398

Counsel for Petitioners

June 10, 1987

APPENDIX

TABLE OF CONTENTS

Opinion and Judgment

OF DOuUrt OF Reese «. «+ « ss ww ~ = ©

Memorandum Decision of

District Court oe Cat ee oe oe ae ee ae 27a

David Glen MEYERS, et al.,

Plaintiffs-Appellants

Vv. :

CONTRA COSTA COUNTY DEPARTMENT

OF SOCIAL SERVICES, et al.,

Defendant-Appellees.

No. 85-2127

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 11, 1986.

Decided March 16, 1987.

Father, his children and his parents

brought civil rights action against various

parties, including social service workers,

court employees and county department of

social services based on their actions dur-

ing dependency proceeding. The United

States District Court for the Northern Dis-

trict of California, Marilyn H. Patel, J.,

granted defendants' motion to dismiss, and

plaintiffs appealed. The Court of Appeals,

Schroeder, Circuit Judge, held that: (1) so-

cial services worker was entitled to prose-

cutorial immunity for his role in initiation

of dependency proceedings; (2) employees

of conciliation court who allegedly refused

to allow father visitation rights and at-

tempted to bias foster parents were enti-

tled to quasi-judicial immunity; and (3)

county department of social services could

not be held liable for unauthorized activi-

ties of its employees.

Affirmed.

1. Social Security and Public Welfare -5

Social services worker was entitled to

prosecutorial immunity for his role in initi-

ating dependency proceedings against fa-

ther. 42 U.S.C.A. § 1983.

2. Social Security and Public Welfare «5

Social workers are entitled to absolute

immunity in performing quasi-prosecutorial

functions connected with initiation and pur-

suit of child dependency proceedings.

3. Social Security and Public Welfare #5

Social services worker was entitled to

qualified immunity for ordering father to

stay away from his home before dependen-

cy hearing. 42 U.S.C.A. § 1983; West's

Ann.Cal.Welf. & Inst.Code § 16501.

4. Courts <55

Employees of conciliation court who

allegedly refused to allow father visitation

rights and attempted to bias foster parents

were entitled to quasi-judicial immunity;

employees were performing judicial func-

tion at direction of court, controversy in-

volved pending case to which they had been

assigned, and events at issue arose directly

and immediately out of confrontation be-

tween employees and parties in that case.

42 U.6.C.A. § i963.

5. Civil Rights -13.7

County department of social services

could not be held liable for unauthorized

activities of its employees during child de-

pendency proceeding. 42 U.S.C.A. § 1983.

Vaughn E. Spunaugle, Richmond, Cal.,

for plaintiffs-appellants.

Jeffrey G. Nevin, San Francisco, Cal.,

and Thomas A. Watrous, Martinez, Cal.,

for defendants-appellees.

Appeal from the United States District

Court for the Northern District of Califor-

nia.

Before SCHROEDER, CANBY and

BOOCHEVER, Circuit Judges.

SCHROEDER, Circuit Judge:

In this appeal we must decide whether a

social service worker performing duties re-

lated to the filing of child custody and

abuse proceedings has absolute prosecuto-

rial immunity. We must also decide wheth-

er principles of quasi-judicial immunity ap-

ply to court employees participating under

court directives in the resolution of family

disputes.

The plaintiffs are David Meyers, his

children and i parents. They brought this

Civil rights action under 42 U.S.C. § 1983

against David's former wife Amy, and nu-

merous individual and governmental de-

fendants. They claimed that the defend-

ants conspired, under color of state law and

without due process of law, to prevent the

adult plaintiffs from associating with the

minor plaintiffs in deprivation of a liberty

interest. The district court dismissed as

to all defendants. The plaintiffs appeal

only the dismissals as to appellees Haaland,

a social worker, Allison and Crossley, em-

ployees of the Family Conciliation Court,

and the Contra Costa County Department

of Social Services (DSS). We hold, first,

that Haaland was entitled to absolute pros-

ecutorial immunity for all of his actions

except those which preceded the institution

of judicial proceedings and as to those ac-

tions, qualified immunity applies; second,

that Allison and Crossley were entitled to

quasi-judicial immunity for their actions;

and, third that the plaintiffs never demon-

strated that the acts complained of were

pursuant to a policy or practice of the DSS.

We affirm the district court in all respects.

Haaland

Haaland was a social casework specialist

employed by the DSS in its Children's Pro-

tective Services Unit. Among his numer-

ous responsibilities were the initiation and

pursuit of dependency petitions in cases of

Suspected child neglect and abuse. His

bilateral

alleged conduct about which plaintiffs com-

plain in this appeal was directly related to

those functions.

Plaintiffs claim that, beginning on Octo-

ber 9, 1981, Haaland conspired with Amy

Meyers to deprive David Meyers of custody

of their children. According to the com-

plaint, after being told by Amy that David

had molested their son Paul, Haaland on

barked on a course of conduct designed to

separate Paul from his family by supervis-

ing an investigation and filing verified de-

pendency petitions with the juvenile court

of the Contra Costa County Superior Court

requesting that the minor children be de-

clared dependents of the juvenile court and

removed from the custody of their father.

In this appeal plaintiffs place particu-

lar emphasis on the ailegation that on Octo-

ber 23, 1981, Haaland ordered David to stay

away from his home until after a judicial

hearing could take place on October 26,

altheugh Haaland knew that the police de-

partment had terminated its investigation

for lack of evidence. At the October 26

hearing, Haaland stated that he would ar-

range for supervised visitation between

David and his children. Accordina to the

complaint, Haaland permitted David only

one opportunity to visit with his children

between the date the petition was filed,

October 26, and the date it was dismissed

pursuant to Haaland's recommendation,

November 17.

The complaint also states that in a Janu-

ary 19, 1982 custody hearing, Haaland in

furtherance of his conspiracy with Amy to

deprive David of custody, testified to his

conclusion that David had molested Paul.

Haaland's role appears to have ceased at

this point. David was eventually reunited

with his children when a superior court

ieee

awarded him custody on January 23, 1984.

All of Haaland's challenged actions ex-

cept for the January 1982 testimony took

place within a short period of time--be-

tween October 9, 1981, and November 17,

1981. All revolve around Haaland's initi-

ation of dependency proceedings against

David. They include his instructions to

David before proceedings were instituted

to stay away from the children until custo-

dy had been resolved, and his subsequent

testimony against David in the dependency

proceedings. The district court held that

Haaland was entitled to absolute immunity

for these actions. We agree as to all ex-

cept actions which were taken before the

institution of judicial proceedings.

It is beyond question that Haaland is

entitled to absolute immunity for the testi-

mony he gave during the dependency pro-

ceedings and the custody hearing because

witnesses, including government witnesses,

are immune from liability for their testimo-

ny. Briscoe v. LaHue, 460 U.S. 325, 103

S.Ct. 1108, 75 L.Ed.2d 96 (1983).

[1] Haaland should be accorded prose-

cutorial immunity for his role in the initi-

ation of dependency proceedings against

Meyers. The Supreme Court has held that

prosecutorial immunity derives from a need

for the exercise of independent judgment in

the conduct of public duties. MImbler v.

Pachtman, 424 U.S. 409, 423, 96 S.Ct. 984,

991, 47 L.Ed.2d 128 (1976). Prosecutorial

immunity is absolute, rather than qualified,

in order to permit prosecutors to perform

vedic duties without fear of even the threat

of section 1983 litigation. If the prosecu-

tor were only gualifiedly immune,

the threat of § 1983 suits would under-

mine performance of his duties no less

than would the threat of common-law

10a

rE EE om

suits for malicious prosecution. A prose-

cutor is duty bound to exercise his best

judgment both in deciding which suits to

bring and in conducting them in court.

The public trust of the prosecutor's of-

fice would suffer if he were constrained

in making every decision by the conse-

quences in terms of his own potential

liability in a suit for damages.... Fur-

ther, if the prosecutor could be tints to

answer in court each time ... a person

charged him with wrongdoing, his ener~

gy and attention would be diverted from

the pressing duty of enforcing the crimi-

nal law.

Frequently acting under serious

constraints of time and even information,

a prosecutor inevitably makes many deci-

sions that could engender colorable

claims of constitutional deprivation. De-

fending these decisions, often years after

lla

owl

they were made, could impose unique

and intolerable burdens upon a prosecu-

tor responsible annually for hundreds of

indictments and trials.

Id. at 424-26, 96 S.Ct. at 992-93; see also

Butz v. Economou, 438 U.S. 478, 512, 98

S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978)

("{a]bsolute immunity is ... necessary to

assure that judges, advocates, and witness-

es can perform their respective functions

without harassment or intimidation").

{2} Although child services workers do

not initiate criminal proceedings, their re-

sponsibility for bringing dependency pro-

ceedings, and their responsibility to exer-

cise independent judgment in determining

when to bring such proceedings, is not very

different from the responsibility of a crimi-

nal prosecutor. The social worker must

make a quick decision based on perhaps

incomplete information as to whether to

12a

commence investigations and initiate pro-

ceedings against parents who may have

abused their children. The social worker's

independence, like that of a prosecutor,

would be compromised were the social

worker constantly in fear that a mistake

could result in a time-consuming and finan-

cially devastating Civil suit. We therefore

hold that social workers are entitled to

absolute immunity in performing quasi-

prosecutorial functions connected with the

initiation and pursuit of child dependency

proceedings. Such a holding is consistent

with the holdings of other courts. See,

-, Kurzawa v. Mueller, 732 F.2d 1456,

1458 (6th Cir.1984); Pepper v. Alexander,

599 F.Supp. 523, 526-27 (D.N.M.1984) ;

Whelehan v. County of Monroe, 558

F.Supp. 1093, 1098-99 (W.D.N.Y.1983).

[3] We do not agree, however, that all

of Haaland's alleged conduct falls within -

l3a

the scope of quasi-prosecutorial activities.

On October 23, Haaland allegedly ordered

Meyers to stay away from his home until

after the hearing before the: juvenile court.

At that time, Haaland had not yet initiated

dependency proceedings. Haaland is not

entitled to absolute immunity for this act.

In Ashelman v. Pope, 793 F.2d 1072 (9th

Cir.1986) (en banc), we examined the con-

tours of both judicial and prosecutorial im-

munity. We stated:

Prosecutorial immunity has developed

along much the same lines as judicial

immunity. Immunity extends to protect

a prosecutor who acts within his or her

authority and in a quasi-judicial capaci-

ty.... Where a prosecutor acts as an

advocate "in initiating the prosecution

and in presenting the state's case," abso-

lute immunity applies.

Id. at 1076 (quoting Imbler, 424 U.S. at

l4a

431, 96 S.Ct. at 995). Haaland's ordering

of Meyers away from his home can be

characterized neither as advocatory or qua-

si-judicial. Haaland's action did not aid

him in the preparation or presentation of

his case to the juvenile court. Compare

Walden v. Wishengrad, 745 F.2d 149 (2d

Cir.1984) (absolute immunity for social ser-

vices attorney who requested warrant to

insure testimony of witnesses.). Rather

than contributing to an informed judgment

by an impartial decisionmaker as an advo-

cate, Haaland acted unilaterally prior to the

Operation of the judicial process. We do

not suggest that Haaland's alleged action

was necessarily improper; it was merely

not that of an advocate.

Furthermore, the policy considerations

that support quasi-judicial immunity do not

apply to Haaland's action. In Sellars v.

Procunier, 641 F.2d 1295 (9th Cir.), cert.

15a

denied, 454 U.S. 1102, 102 S.Ct. 678, 70

L.Ed.2d 644 (1981), we considered the justi-

fication for the doctrine of quasi-judicial

immunity. After examining the benefits of

absolute immunity for certain decisionmak-

ers, we stated:

Nevertheless, the balance might not be

struck in favor of absolute immunity

were it not for the presence of safe-

guards built into the judicial process that

tend to reduce the need for private dam-

age actions as a means of controlling

unconstitutional conduct.

Id. at 1300. We then quoted a portion of

the following passage from Butz.

The cluster of immunities protecting

the various participants in judge-super-

vised trials stems from the characteris-

tics of the judicial process rather than

its location....

l6a

...- [T]he safeguards built into the ju-

dicial process tend to reduce the need for

private damages actions as a means of

controlling unconstitutional conduct.

The insulation of the judge from political

influence, the importance of precedent in

resolving controversies, the adversary

nature of the process, and the correcta-

bility of error on appeal are just a few of

the many checks on malicious action by

judges.... Because these features of

the judicial process tend to enhance the

reliability of information and the impar-

tiality of the decisionmaking process,

there is a less pressing need for individu-

al suits to correct censtitutional error.

438 U.S. at 512, 98 S.Ct. at 2913-14.

Haaland's alleged decision to order Mey-

ers away from his house was made in the

absence of such "safeguards built into the

judicial process." Haaland himself was not

l7a

subject to the checks operating on judicial

decisionmakers, nor was his decision part

of or ancillary to pending judicial proceed-

ings supervised by a judge.

Although absolute freedom from the

threat of unfounded lawsuits is an ideal

condition for decisionmaking, such freedom

is the rare exception to the rule. See id.

at 508, 98 S.Ct. at 2911-12. We conclude

that, like the decisions of other officials

acting in a non-judicial role, it is the

qualified immunity standard which must govern

Haaland's immunity defense for the al-

leged action of ordering Meyers from his

house. See Davis v. Scherer, 468 U.S. 183,

104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Har-

low v. Fitzgerald, 457 U.S. 800, iG2 3.Ct.

2727, 73 L.Ed.2d 396 (1982). See also Du-

chesne v. Sugarman, 506 F.2d S17 (2a Cir.

1977) (applying qualified immunity doctrine

to conduct of social worker when no court

18a

proceedings had been filed). Haaland's de-

q cision to order Meyers away from his house

is sufficiently protected by that doctrine.

In Duchesne, the social worker actually

| took custody of the children, instituted no

' court proceedinas, and for many months

refused the parent's demands for a hear-

ing. 566 F.2d at 822-24. The Second Cir-

cuit held that the parent's rights had been

violated and that triable issues were raised

as to the applicability of the qualified im-

munity defense. Id. at $33. We have

found no cases Similar to this one, however,

in which the social worker acted promptly

to institute vroceedings after unilaterally

attempting to influence a parent-child rela-

tionship. Under the doctrine of qualified

immunity, executive officers are shielded

from liability where "their conduct does not

violate clearly established statutory or con-

stitutional rights of which a reasonable per-

19a

son would have known." Harlow, 457 U.S.

at 818, 102 S.Ct. at 2738. Under California

law, social workers are given broad general

authority to protect and promote the wel-

fare of all children; to prevent or remedy

problems which may result in the neglect

or abuse of children. Cal.Welf. & Inst.

Code § 16501 (West Supp.1987). The rele-

vant pre-1982 section provided that a

"child protective services program ... shall

take such actions as are considered neces-

Sary to protect the child and correct the

Situation....” Cal.Welf. & Inst. Code

§ 16501 (West 1980). Haaland's conduct

On October 23, which indisputably involved

no physical interference with parental cus-

tody, cannot be said to have violated clearly

‘

2 Pa RR SRNR Gh BIRR PAC GR TO Nag hn RR Bae NTR ih ei aaa a ca a

er ahs.

en ae

established statutory or constitutional

rights.

She mAL TOG

Allison and Crossley

[4] Crossley is a "Supervising counselor"

20a

StS Ree UOT Ae OE ene

and Allison is an "associate counselor"

of the Family Conciliation Court. Their

positions were created by the Family Con-

ciliation Court Act and they are employees

of the court. Their duties, as described by

Cal.Civ.Proc.Code § 1744, encompass medi-

ation of custody and visitation disputes,

investigating matters pertaining to such

disputes, and providing reports to the

courts.

During the fall of 1977, the parents, Amy

and David Meyers, together with the pater-

nal grandparents, participated ina series of

voluntary counseling sessions conducted by

Allison under the auspices of the Family

Conciliation Court. The adult plaintiffs al-

lege that during these sessions Allison be-

came biased against them. They further

allege that at some point during the latter

half of 1981, but before October 8, 1981,

Amy made allegations of child abuse to

2la

Se. TRAPP Le Rela Re Si 6 Se : Laas Meee full PR hes SR cote eta at es PE lee RIN ee ve ee 4 f

Allison who willfully failed to discuss them

with David or to otherwise investigate

them. The complaint alleges that on No-

vember 16, 1981, David and Amy attended

a mandatory conciliation session with a

counselor from the Family Conciliation

Court, and that upon learning of the ses-

sion, Allison induced Crossley to reassign

the case to her in spite of her bias against

David. ‘

The complaint further alleges that from

November 19, 1981, through January 21,

1982, Allison refused to arrange for visita-

tion between David and his children in will-

ful violation of a court order requiring her

to arrarge such visits. The complaint con-

tinues that on or about April 7, 1982, Cross-

ley and Allison visited the foster parents in

whose care the court had placed the chil-

dren and attempted to induce them to re-

fuse David and his parents the right to see

22a

the children.

The district court held that Allison and

Crossley, as officers of the court, were

entitled to quasi-judicial immunity. We

have granted quasi-judicial immunity to

various officers of the court. See, e.g.,

Sharma v. Stevas, 790 F.2d 1486, 1486 (9th

Cir.1986) (clerk of the United States Su-

preme Court); Demoran v. Witt, 781 F.2d

‘@

3 ;

Z. J

155, 158 (9th Cir.1985) (probation officers) ;

Sellars, 641 F.2d at 1303 (parole officers).

face oS ete

2 Based on these precedents, we agree

- with the district court that as officers of

4 the court Allison and Crossley have abso-

lute immunity in the performance of duties

authorized by the statute. Although the

plaintiffs allege that certain actions taken

by Allison and Crossley constituted viola-

tions of court orders, absolute immunity is

lost only if these actions were "clearly and

completely outside the scope of [Allison's

23a

and Crossley's] jurisdiction." Demoran,

781 F.2d at 158. Their actions were not

outside that scope.

Allison and Crossley were performing a

judicial function at the direction of a court.

The controversy involved a pending case to

which they had been assigned, and the

events at issue arose directly and immedi-

ately out of a confrontation between the

defendants and parties in that case. The

allegations that Allison and Crossley re-

fused to aliow David visitation rights and

attempted to bias the foster parents are

not materially different from the allegation

that a judge and prosecutor conspired to

deprive a prisoner of effective counsel and

access to legal materials. In Ashelman,

we held the latter allegation insufficient

to overcome judicial and prosecutorial immu-

nity. 793 F.2d at 1078.

24a

The County Department of Social Services

[5] The district court held that the

plaintiffs had made an insufficient showing

that the acts complained of in this case

were pursuant to an established policy or

practice as required by Monell v. Depart-

ment of Social Services, 436 U.S. 658, 691,

98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).

We agree with the district court that

a close reading of the first count of the

complaint indicates that it is not the poli-

cies themselves that are alleged to give

rise to the constitutional deprivations of

which plaintiffs complain. Rather, the

complaint states that various unautho-

rized actions were committed by the

named defendants in furtherance of an

alleged conspiracy to deprive plaintiffs of

custody of the children.

Because municipalities are not liable for

the unauthorized activities of their employ-

25a

ees, the district court correctly dismissed

the claim as to DSS.

Affirmed.

BOOCHEVER, Circuit Judge, dissenting

in part:

I believe that the Meyers have stated -

sufficient allegations of deprivation of stat-

utory and constitutional parental rights by

alleging that Haaland ordered David Meyers

to stay away from his home. I would

remand for resolution of the factual issues

involved in a qualified immunity defense.

26a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DAVID GLEN MEYERS, GEORGE)

ALBERT MEYERS, GEORGIA )

ANN MEYERS, PAUL DAVID )

MEYERS, a minor, MATTHEW )

CHRISTOPHER MEYERS, a )

minor, ANGELA JENNIFER )

MEYERS, a minor, by their)

next friend, )

DAVID GLEN MEYERS.

Plaintiffs,

Vs.

DEPARTMENT OF SOCIAL

SERVICES, AMY GARCIA

MEYERS, NANCY BOWMAN,

HAROLD HAALAND, also

known aS HAROLD BUEIDE,

FAMILY CONCILIATION COURT)

OF THE SUPERIOR COURT OF )

CONTRA COSTA COUNTY, KAY )

CROSSLEY, AGNES H. )

ALLISON, JAMES PALMER, )

and FAMILIES UNITED )

RESOURCE DEVELOPMENT )

BOARD, INC., a corpora- )

)

CONTRA COSTA COUNTY )

)

tion,

Defendants.

NO. C-84-6381-MHP

MEMORANDUM AND ORDER

Plaintiffs bring this action pursuant

to 42 U.S.C. §1983 for alleged violations

27a

of their constitutional rights resultin

from state proceedings removing the minor

plaintiffs (Matthew, Angela and Paul Meyers)

from the custody of their father (David

Meyers) and paternal grandparents (George

and Georgia Meyers). Named as defendants in

their official and individual capacities are

the children's mother Amy Meyers, the Contra

Costa County Department of Social Services

("DDS"), DDS social worker Haaland, the

Family Conciliation Court of the Suverior

Court of Contra Costa County ("FCC"), FCC

Director Crossley, FCC Counselor Allison,

Families United Resource Development Board

("FU"), FU psychologist Palmer, and FU em-

ployee Bowman.

The gravamen of the civil rights claim

is that the various defendants conspired to

deprive the adult plaintiffs of contact with

the children. Plaintiffs also bring pendent

state claims for intentional infliction of

28a

emotional distress, negligent infliction of

emotional distress, libel, and slander. They

seek $16 million in damages for each alleged

constitutional violation and $20 million for

each pendent claim.

Defendants have moved to dismiss or for

summary judgment. Having considered the

parties' papers and heard oral argument the

court grants defendants' motions and dis-

misses the §1983 and vendent state claims.

Background

The facts as presented in the complaint

and the parties' supporting papers are as

follows: On October 8, 1981 Amy Meyers

("Amy") and Haaland allegedly entered into a

conspiracy to deprive Davis Meyers ("David")

of the custody of his children. Amy told

Haaland that David had sexually molested

one of the children (Paul), and a Haaland's

instruction brought Paul to the DSS Chil-

dren's Protective Service facility the next

29a

day. Haaland "interrogated" Paul at that

time, and summoned Richmond and San Pablo

police officers who again "interrogated"

Paul about the charges. Complaint at 4 42.

When David arrived at the DSS facility to

look for Paul he too was detained and inter-

rogated by the police officers. Paul was

taken to Brookside Hospital for a medical

examination. +/

On October 23 the San Pablo Police De-

partment informed David it had terminated its

investigation of the child molestation

charges for lack of evidence. David communi-

cated this fact to Haaland and informed

Haaland he was going home to see his chil-

dren. Haaland allegedly ordered David to

Stay away from his home pending a hearing on

October 26 regarding a dependency petition

filed by Haaland pursuant to Cal. Welf. &

See Haaland Dec. at

Inst. Code §300(a)

«5. David claims that Haaland knew or should

30a

have known the statements in the petition

were false. Complaint at 6 46.

David, his attorney, Amy and Haaland

appeared before a Juvenile Court Referee on

October 26. The Referee detained Pail in

Amy's custody due to "immediate and urgent

necessity for [his] protection. See Find-

ings and Order of Referee on Detention

(Reply Brief of Harold Haaland, Exh. A).

Plaintiffs claim that as a result of this

hearing Haaland unlawfully assumed control of

visitation over the children. Complaint at

7 17.2/

The hearing on the dependency petition

was continued until November 17, David, his

parents, and his attorney attended the hear-_

ing, at which time the petition was dis-

missed pursuant to Haaland's recommendation.

Haaland states that he so recommended

"because the mother was doing everything she

3la

could to protect the child and had agreed to

continue protective services on a voluntary

basis . . ." Haaland Dec. at #7. Plaintiffs

claim that this dismissal denied them an

opportunity to be heard regarding the allega-

tions against them. Complaint at 8 #8. How-

ever, plaintiffs' attorney withdrew his ob-

jection to the dismissal. Haaland Dec. at

q7.

Meanwhile, Amy had initiated divorce

proceedings and had obtained a temporary re-

straining order forbidding David from oc-

cupying or approaching the family residence.

On November 16 David and Amy attended a man-

datory conciliation session with an FCC

counselor. Plaintiffs claim that defendant

Allison, who had developed an "aversion to

and bias against" the plaintiffs following

voluntary counseling sessions in 1977, in-

duced defendant Crossley to assign the Meyers

case to her. Plaintiffs allege that Allison

32a

acted pursuant to a conspiracy with Amy.

Complaint at 9 42, 10 43, 11 45.

At a Superior Court hearing on November

19 the court awarded temporary custody to Amy

pursnant to the following stipulation re-

garding visitation: "Visitation shall take

place under the supervision of the Concilia-

tion Court and in the presence of a neutral

adult to be selected by the Conciliation

Court." Complaint at 11 #6. Plaintiffs

allege that defendant Allison refused to ar-

range for visitation between November 19,

1981 and January 29, 1982 in violation of

court order.

Haaland referred the Meyers case to FU

for psychological examination in November

1981. In January 1982 defendant Palmer

issued a report concluding that David had

sexually molested Paul and recommending no

contact between Paul and his father or

grandparents. Plaintiffs claim that Palmer

33a

was acting in concert with Haaland and Amy

and knew or should have known that the al#

legations were false. Complaint at 12 48.

On January 29, 1982 a second custody/

visitation hearing commenced before the

Superior Court. Haaland and Palmer testified

at the hearing. Plaintiffs allege that the

defendants knew or should have known their

testimony was false. Complaint at 12 49.

The hearing was continued until February 5,

at which time the court awarded custody to

Amy and found that visitation between David

and the children should commence as soon as

an appropriate "neutral" monitor was ap-

pointed. The court expressed concern re-

garding Amy's attitude towards reestablish-

ment of contact between the father and the

children and stated that without a signifi-

cant change in this attitude the court would

remove the children from her custody and

place them with the father or a third party.

34a

Myers v. Myers, No. 228557, slip op. at 2

(Sup. Ct. February 5, 1982) (FU Motion to

Dismiss, Exh. A).

Foster care parents (the Richardsons)

took custody of the Meyers children on March

29 pursuant to court order. The court or-

dered Crossley to make a home visit to the

Richardsons and make a written report.

Plaintiffs allege that Crossley and Allison

visited the Richardsons' home on March 29,

1982 and attempted to influence the Richard-

sons against David and his parents. Com-

plaint at 12 412. Plaintiffs further allege

that Amy so harassed the Richardsons in

furtherance of her conspiracy with Haaland

that on April 9 the Richardsons surrendered

custody of the children to Amy. Complaint

at 14-15 413. David eventually was awarded

custody in January 1984. Myers v. Myers,

No. 228557, slip op. at 2 (Sup. Ct. January

23, 1984) (FU Motion to Dismiss Exh. B).

35a

Discussion

. + Counts One and Two

Counts one and two of the instant com-

plaint attempt to state claims under 42 U.S.C.

§1983. The first count pertains to those

activities prior to the dismissal of the

dependency petition on November 17, 1981,

i.e., the initial removal of the minor

plaintiffs from the custody of the father.

The second count addresses alleged violations

relating to the custody proceeding before the

Superior Court. For the reasons set forth

below, the complaint fails in the first

instance because the constitutional viola-

tions alleged do not state claims under 42

U.S.C. §1983. Even were the alleged viola- ;

tions sufficient, the complaint would fail

because plaintiffs may not proceed under

that statute against any of the named defen-

dants.

36a

A. Failure to State a Claim

Section 1983 provides a cause of action

for the "deprivation of any right, privilege

or immunities secured by the Constitution

and laws" of the United States. 42 U.S.C.

§1983. Defendants do not dispute that the

right of both parents and children to remain

together without the "coercive interference

of the awesome power of the state" is a

liberty interest protected by the constitu-

tion. Duchesne v. Sugarman, 566 F.2d 817,

825 (2nd Cir. 1977). However, the existence

of a protected right alone does not suffice

to state a claim under 42 U.S.C. §1983. In

order to survive a motion to dismiss, plain-

tiffs must also allege that they were de-

privec of their liberty interests under color

of state law without due process. Parratt v.

Taylor, 451 U.S. 527, 537 (1981) (distinguish-

ing between the existence of a protected

37a

interest and the deprivation of that interest

without due process). This plaintiffs have

failed to do.

In Parratt v. Taylor, the Court ruled

that when an individual is deprived of

property by the unauthorized, negligent con-

duct of state officials there is no due

process violation as long as the state pro-

vides meaningful post-deprivation remedies.

The Court reasoned that pre-deprivation

remedies are not feasible when,a state em-

ployee acts ina random and unauthorized man-

ner rather than pursuant to state procedures

because the state cannot predict when such

actions will occur. The Court found its

decision consistent with prior rulings that

either the necessity of

quick action by the State

or the impracticality of

providing any meaningful

predeprivation process,

4 when coupled with the

availability of some mean-

ingful means by-which to

38a

assess the propriety of

the State's action at some

time after the initial

taking, can satisfy the

requirements of procedural

due process.

451 U.S. at 539 (footnote omitted). The

Supreme Court applied this reasoning to un-

authorized intentional deprivation of

property in Hudson v. Palmer, __U.S. __,

104 S. Ct. 3194 (1984). The Ninth Circuit

has extended Parratt to deprivations of

liberty interests. Haygood v. Younger, 718

F.2d 1472, 1480 (9th Cir. 1983), rehearing

granted en banc, 729 F.2d 613 (9th Cir. 1984);

Bretz v. Kelman, 722 F.2d 503 (9th Cir.

1983); Rutledge v. Arizona Board of Regents,

* 660 F.2d 1345 (9th Cir. 1981), aff'd sub nom

4 cara eanensNR UaE

Parratt and its progeny do not apply

when state policies and procedures are

claimed to violate constitutional rights.

Plaintiffs allege that the DSS regulations as

: 39a

carried out by Haaland, including its policy

of “crediting all allegations of child sexual

abuse regardless of circumstances," violated

their constitutional rights. Complaint at

8 49. The complaint is no more specific as

to the particular policies at issue. However,

the policy articulated by plaintiffs, the

actions of Haaland as alleged, and the pro-

visions of Cal. Welf. & Inst. Code §300

et seq. convince the court that the purpose

of the policies of which plaintiffs complain

is to provide immediate relief to children

in an emergency situation. Accordingly,

policies allowing for immediate removal of a

child from the custody of a parent charged

with sexual abuse do not violate due process

as long as the parent may be heard on the

action at a subsequent proceeding. Ewing

v. Mytinger & Casselberry, 339 U.S. 594, 598

(1950) ("no hearing at the preliminary stage

[of an administrative proceeding] is required

40a

‘

< ake ——

> .

_ — *

—__

by due process as long as the requisite

hearing is held before the final administra-

tive order becomes effective"). See also

Duchesne v. Sugarman, 566 F.2d at 826 (find-

ing that "the initial removal of the children

without parental consent or a prior court

order was permissible" in response to an

emergency Situation); Williams v. Birzon,

576 F. Supp. 577, 579 (W.D.N.¥. 1983), aff'd

740 F.2d 955 (2nd Cir. 1984) ("the state's

obligation to protect the health and safety

of minor children authorizes an award of

temporary custody without a pre-deprivation

hearing”). The complaint itself indicates

that plaintiffs were present at hearings on

the matter within three weeks of the initial

deprivation. Thus, plaintiffs cannot claim

that the DSS policies themselves violated

their constitutional rights.2/

Moreover, a close reading of the first

count of the complaint indicates that it is

4la

not the policies themselves that are al-

leged to give rise to the constitutional

deprivations of which plaintiffs complain.

Rather, the complaint states that various un-

authorized actions were committed by the

named defendants in furtherance of an alleged

conspiracy to deprive plaintiffs of custody

of the children. For example, Haaland is

charged with detaining and interrogating

David, ordering him to stay away from his

home, and assuming control of visitation »

without lawful authority, and with filing a

false dependency petition. Such actions are

precisely the types of unauthorized conduct

which, for purposes of §1983, can be cor-

rected by the opportunity for post-depriva-

tion review.

As noted, the complaint itself makes

clear that plaintiffs were afforded an op-

portunity to be heard on the award of tempo-

rary custody to the mother shortly after the

42a

children were removed from the father: Paul

was first removed from David's custody on

October 9, 1982, and hearings on the matter

were held on October 26 and November 17. The

instant case thus differs significantly from

Duchesne v. Sugarman, where the court found

a due process violation when the state did

not seek to obtain ratification of its order

to retain custody of the children for 36

months after they were taken from the mother,

and only after the mother had initiated

habeas corpus proceedings. 566 F.2d at 826.

The court finds due process requirements

satisfied in this case. Accord Whelehan v.

County of Monroe, 558 F. Supp. 1093, 1102

(W.D.N.Y. 1983) (distinguishing Duchesne and

finding state remedies subsequent to removal

of child from parental custody adequate to

satisfy due process).

The complaint further alleges that

Haaland's dismissal of the dependency

43a

petition violated plaintiffs' rights because

it deprived them of the opportunity to be

heard regarding the allegations against them.

Even if the dismissal of the petition im-

pinged on protected liberty interest, the

complaint fails to state a claim for depri-

vation of constitutional rights in light of

state procedures designed to compel commence-

ment of juvenile court proceedings. See Cal.

Welf. & Inst. Code. §331.°/ Moreover, the

complaint itself makes clear that custody/

visitation hearings were commenced before

the Superior Court two days after Haaland

dismissed the petition.

Finally, count two of the complaint

charges various defendants with depriving

the adult plaintiffs of their constitutional

right of contact with the children by inter-

fering with the visitation agreement estab-

lished by the Superior Court. This count

also charges defendants with improperly

44a

a I NE the DMS NN iB

influencing the custody determination. The

actions of which plaintiffs complain, which

allegedly were "overt acts" in furtherance

of the alleged conspiracy, include Allison's

failure to arrange for visitation of the

children by the father, Palmer's filing of

a false report, Palmer's and Haaland's

giving of false testimony at custody hear-

ings, and Allison's and Crossley's attempt

to influence the Richardsons.

Again, these allegations fail to state

a claim because adequate state post-depriva-

tion remedies were available to redress the

alleged violations. For example, plaintiffs

had ample recourse to state contempt pro-

cedures to compel state officials to comply

with the orders of the Superior Court re-

garding visitation. Moreover, the facts as

alleged show that the custody proceedings be-

fore the Superior Court were ongoing after

the initial award of custody to Amy and that

45a -

the adult plaintiffs ultimately were awarded

custody of the children. The court finds the

continued opportunity to litigate the cus-

tody determination in this case satisfies

the requirement of due process. Accord

Williams v. Birzon, 576 F. Supp. at 579-80

(finding that the numerous opportunities to

challenge an award of temporary custody af-

forded plaintiff adequate due process of law).

In sum, the availability and, indeed,

the utilization of various state proceedings

in which the adult plaintiffs could litigate

custody and/or visitation of the children

precludes an action for deprivation of con-

stitutional rights under §1983. It is the

opportunity for a meaningful hearing that

determines the adequacy of procedural due

process, not the result of such a hearing.

"While it is conceivable that state judicial

machinery might be used to deprive a person

of his property without due process of law[,]

46a

in order to make out such a case under

the Civil rights act, a plaintiff must show

that federally protected rights were denied

in state proceedings whieh were so abused or

manipulated that they were in effect a nul-

Laity.” Gili v. Gill, 412 Pf. Supp. 1153, 11257

(E.D. Pa. 1976). The facts pleaded in the

instant complaint do not make such a showing.

B. Failure to Name Proper Defendants

Plaintiffs argue that their allegations

of conspiracy to deprive them of custody of

the children, coupled with the identification

of various "overt acts," suffice to survive

a motion to dismiss. However, the instant

complaint is wholly lacking in specific

facts showing that Amy, Haaland, the FCC em-

ployees, and the FU employees conspired to

deprive plaintiffs of their constitutional

rights. Conclusory allegations are insuf-

ficient to state claims under the civil

rights statutes. Hutchinson v. United

47a

States, 677 F.2d 1322, 1327 (9th Cir. 1982).

Moreover, many of the "overt acts," such as

the allegations regarding Crossley and

Allison's visit to the Richardsons, are not

the proximate cause of the alleged depriva-

tions.

Even if the overt acts alleged would

constitute acts in furtherance of conspiracy

to violate plaintiffs' civil rights, this

action must be dismissed because plaintiffs

may not proceed under 42 U.S.C. §1983 against

any of the named defendants.

1. The Family Conciliation Court

Cal. Civ. Pro. §1740 provides that

"{eJach superior court shall exercise the

jurisdiction conferred by this chapter, and

while sitting in the exercise of such juris-

diction shall be known and referred to as the

"family conciliation court." Thus, the FCC

is the same entity as the Superior Court.

State courts are not subject to suit under

48a

42 U.S.C. §1983. O'Connor v. Nevada, 686

F.2d 749 (9th Cir.) cert. denied., 459 U.S.

1071 (1982) (dismissing civil rights action

against state court under Eleventh Amendment).

2. Allison and Crossley

Crossley is a "Supervising counselor"

and Allison is an "associate counselor" of

the FCC. Their positions are created by the

Family Conciliation Court Act; they are

hired and fired by the Court, and their

duties are described by statute. Cal. Civ.

Pro. §1744. These duties encompass those

described in the instant complaint: conduct-

ing mediation of custody and visitation dis-

putes, investigating matters pertaining to

such disputes, and providing reports to the

court. Inasmuch as Crossley and Allison are

officers of the court and the actions of

which plaintiffs complain were performed in

the course of their employment, they are en-

titled to "quasi-judicial" immunity, even for

49a

allegedly conspiratorial acts. Agnew v.

Moody, 330 F.2d 868, 869 (9th Cir.), cert.

denied, 379 U.S. 867 (1964).

Plaintiffs argue that immunity should

extend to officers of the court only if they

perform prosecutoral functions. Plaintiffs

ignore the developments in the doctrine of

immunity in civil rights cases, which extends

immunity to numerous officers of the court,

including those performing functions similar

to these defendants. See, e.g., Burkes v.

Callion, 433 F.2d 318 (9th Cir. 1970), cert.

denied, 403 U.S. 908 (1971) (quasi-judicial

immunity extended to probation officers. and

court-appointed psychiatrists).

3. Harold Haaland

Haaland is a social worker employed by

the Contra Costa County Department of Social

Services. Cal. Welf. & Inst. Code 300 et

seq. gives him the discretion to determine

whether to take a child into protective

50a

custody and whether to file a dependency

petition with the state in cases of suspected

child abuse. These duties resemble those of

a prosecutor with respect to child welfare

cases.

Haaland argues that he should be af-

forded absolute immunity for his actions in

this case. In Imbler v. Pachtman, 424 U.S.

409 (1976), the Court granted prosecutors

absolute immunity from liability under 42

U.S.C. §1983. The court reasoned the "pub-

lic trust" would suffer if prosecutors had

to make decisions regarding which cases to

initiate and pursue while contemplating per-

sonal liability for their actions. 424 U.S.

424-25. See also Butz v. Economou, 438 U.S.

478, 512 (1978) ("Absolute immunity is

necessary to assure that judges, advocates,

and witnesses can perform their respective

functions without harassment or intimida-

tion").

Plaintiffs appear to concede that

Haaland is immune from suit to the extent

that his actions are prosecutorial. How-

ever, they argue that he should not be af-

forded immunity for non-prosecutorial actions

taken after he dismissed the depnendency

petition. Plaintiffs cite Morrison v. Jones,

607 F.20 21269, igre (9th Cir. i973), cert.

denied, 445 U.S. 962 (1980), for the provosi-

tion that DSS employees should not be af-

forded immunity. This case is not on point.

The DSS employee at issue in Morrison was the

Director of the Department, who was afforded

qualified immunity in light of his position

aS an executive officer. The non-prosecu-

torial duties of a social worker such as

Haaland are far different from the duties

performed by a DSS Director and raise ques-

tions of policy not addressed by the Morrison

court.—

In Whelehan v. County of Monroe, 558 F.

52a

)

Supp. 1093 (W.D.N.Y. 1983) the court ex-

tended the immunity afforded prosecutors in

ees performing both prosecutorial and inves-

tigative functions in cases of child abuse.

Plaintiffs in Whelehan sued a county social

worker and other defendants for damages sus-

tained when their child was removed from

their custody’ pursuant to a lawful but er-

roneous charge of child sexual abuse. The

court wrote,

The great importance of the

child-protective function

served by these defendants

is beyond question. If

these defendants, and others

who serve like functions in

society, were forced to exe-

cute their duties with one

eye constantly regarding the

possibility of incurring

liability for their conduct,

the detriment to society and

the judicial system would be

at least as great as if they

were prosecutors of the kind

specifically protected by

Imbler.

Id. at 1098.

This court is persuaded by the reasoning

in Whelehan and grants Haaland absolute im-

munity for all actions in connection with his

employment with DSS. The court is particular-

ly impressed, as was the Whelehan court, with

the discretion afforded DSS employees such as

Haaland in performing their duties of

responding to, investigating, and acting upon

reports of suspected child abuse. The in-

stant case is distinguishable from Doe v.

County of Suffolk, 494 F. Supp. 179 (E.D.N.

Y. 1980) in this respect for the Doe court

based its refusal to grant absolute immunity

to a social worker on its finding that the

defendant had virtually no discretion in

performing her duties.

Finally, in addition to the immunity

afforded Haaland for actions taken in per-

forming his duties, he is entitled to abso-

lute immunity for his testimony at the

custody/visitation hearing. Briscoe v.

54a

LaHue, 460 U.S. 325 (1983) (police officer

and private party witnesses held absolutely

immune from liability for allegedly perjured

testimony at a criminal trial).

4. Department of Social Services

Plaintiffs name the Contra Costa County

Department of Social Services as a party to

this action. Essentially, a suit against the

' :

Department 1S a suit against the County.

) Municipalities are subject to suit under

$1983. Monell v. Department of Social Ser-

vices, 436 U.S. 658 (1978). However, they

may not be held liable under 42 U.S.C. §1983

for the actions of their employees under a

theory of respondeat superior. Id. at 691.

The gravamen of this complaint is that

Haaland's actions outside the scope of his

authority violated plaintiffs' rights. Under

Monell, plaintiffs may not hold the County

liable for the alleged misconduct of its

employee.

55a

In order to state a §1983 claim against

a municipality, plaintiffs must allege that

"under color of some official state policy

[the municipality] 'causes' an employee to

violate another's constitutional rights."

Monell, 436 U.S. at 692. As noted, plain-

tiffs do allege that Haaland acted pursuant

to an official policy that all allegations of

sexual abuse be credited regardless of cir-

cumstances. For the reasons set forth in

Part IA of this order, the court finds this

policy does not violate plaintiffs' consti-

tutional rights. Moreover, this court fails

to see how this policy itself "caused" the

deprivations plaintiffs claim they suffered.

Plaintiffs have not shown an "affirmative

link" between the occurrence of misconduct

and the policy or custom at issue. Rizzo v.

Goode, 423 U.S. 362, 371 (1976).

.¥ Families United

FU is a state-licensed psychological]

56a

clinic which treats incest victims and

families. Section 1983 pertains only to

constitutional violations under color of

state law. Plaintiffs make no showing that

FU is a “state actor.”

Indeed, the complaint states no allega-

tions against this defendant. It states only

that Haaland referred the Meyers case to FU,

and FU employee Palmer conducted interviews

and testified at one of the custody hearings.

Apparently, plaintiffs seek to impose lia-

bility on FU for the alleged misconduct of

Palmer in concert with Haaland. Even if

Palmer were a state actor, plaintiffs could

not impose §1983 liability on FU for the

actions of its employee under a theory of

respondeat superior. Powell v. Shopco Laurel

cos, eee £40 506 (4th Cir. 1982).

6. James Palmer

A private party could be said to act

under color of state law if he or she jointly

57a

engages with state or local officials in

conduct prohibited by the constitution.

Adickes v. S. H. Kress and Co., 398 U.S.

144, 152 (1970). However, conclusory allega-

tions that Palmer conspired with Haaland to

deprive plaintiffs of their civil rights do

not suffice to state a claim that Palmer

acted under color of state law. Glaros v.

Perse, 628 F.2d 679, 685 (lst Cir. 1980)

(general allegations of cooperation between

private and state actors do not state a claim

of action under color of state law).

"[T]o determine whether [a private

party] acted under color of state law, the

circumstances surrounding the private

[action] must be examined in their totality."

Howerton v. Gabica, 708 F.2d 380, 384 (9th

Cir. 1983). In Howerton, the court found

that private landlords were state actors for

the purposes of an eviction when they "de-

liberately cloaked themselves with the

58a

authority of the state in effecting re-

possession of the trailer premises." Id. at

384-85. The private landlords repeatedly re-

quested the aid of the police, and the police

“intervened at every step." Id. at 385.

Plaintiffs herein merely allege that

Palmer conducted an interview of the Meyers

family and prepared a report at the behest

of a state official. Assuming arguendo that

such activities implicate constitutionally-

protected rights, they hardly rise to the

level of the actions attributed to the pri-

vate landlords in Howerton. Instead, this

case iS similar to Fonda v. Gray, 707 F.2d

435 (9th Cir. 1983), where the court de-

clined to find a conspiracy between two pri-

vate banks and government officials to vio-

late plaintiff's constitutional rights. The

there was no showing here

that the banks 'deliber-

ately' participated with

59a

the government with the

purpose of violating

[plaintiff's] civil rights,

or that they knew of the

alleged objective. In-

stead, the banks merely

acquiesced in what appeared

to them to be a proper FBI

investigation.

707 F.2d at 438.

For the reasons set forth above, the

court finds that Palmer was not a state actor

with respect to his activities in the instant

case. Further, even if he were a state actor

he would be entitled to absolute immunity for

his testimony as a witness in the January

1982 custody proceeding under Briscoe v.

LaHue, 460 U.S. 325 (1983).

7. Nancy Bowman

The complaint does not allege improper

conduct on the part of Bowman. Plaintiffs

acknowledge that the complaint is insuffi-

cient as to her and request an opportunity

to amend. In light of the court's rulings

above, the motion to amend is denied.

60a

8. Amy Meyers

Plaintiffs claim that Amy entered into a

conspiracy with Haaland and others to deny

them contact with the children. For the

reasons stated above, the allegations of con-

spiracy do not suffice to transform Amy into

a "state actor." Indeed, the complaint

states no specific facts as to "overt acts"-

performed by this defendant.

II. Counts Three through Sixteen

These counts state claims for the common

law torts of intentional infliction of emo-

tional distress, negligent infliction of emo-

tional distress, slander, and libel. They do

not state claims cognizable under 42 U.S.C.

$1983. See, e.g., Paul v. Davis, 424 U.S.

693 (1976) (common law defamation not action-

able under §1983). The Supreme Court con-

Sistently has ruled that the civil rights

acts should not render the Fourteenth Amend-

ment "a font-of tort law.” Id. at 7/01.

6la

In view of the court's dismissal of

the federal causes of action, the court de-

clines to assume jurisdiction over the pen-

dent claims. See United Mine Workers of

America v. Gibbs, 383 U.S. 715, 726 (1966).

Accordingly, they are dismissed as well.

IT IS SO ORDERED.

Dated: May 6 - 1985

/s/ Marilyn Hall Patel

MARILYN HALL PATEL >

United States District Judge

ts 62a

rUOQGQTR OTES

1/ Haaland's declaration sets forth a very

different version of the facts. However, for

purposes of this motion the court will view

the facts most favorably to the plaintiffs.

2/ A dependency petition initiates proceed-

ings in juvenile court to declare a minor a

ward or dependent child. Cal. Welf. & Inst.

Code. §325. Minors subject to physical abuse

in the home come under the jurisdiction of

the statute. Cal. Welf. & Inst. Code §300(d).

ay Haaland states in his declaration that

the court requested he supervise visitation.

Haaland Declaration at 45

4/ The Ninth Circuit has granted a rehear-

ing en banc of Haygood v. Younger, Bretz v.

Kelman, and Piatt v. MacDougall. Haygood v Vv.

Younger, 729 F.2d 613 (9th Cir. 1984). This

court will apply the extant law pending a

ruling by the en banc panel. In view of the

court's determination in Part II of this

order, a reversal of Haygood and related

cases will not affect the disposition of the

instant case.

./ The court notes that Cal. Welf. & Inst.

Code §334 provides for a hearing within 15 or

30 days of the filing of a dependency peti-.

tion. Plaintiffs do not allege that the

statutory procedures were not followed.

6/ As noted, Haaland's declaration indi-

cates that plaintiffs' counsel acceded to the

dismissal. Thus, the claim that plaintiffs

were denied a hearing on the petition is mis- |

leading.

7/ For example, under Cal. Welf. & Inst.

Code 4202.5 DSS workers are assigned the

duties of probation officers with respect to

victims of child abuse as described under

Cal. Welf. & Inst. Code §300 et seq. The

Ninth Circuit has afforded probation officers

quasi-judicial immunity. Burkes v. Callion,

403 U.S. 908 (1971).

DATE: June 10, 1987

LINSEY J. FREEMAN,