Opposition Brief — Cornejo v. Monn

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No. 09-1488 Ta

ET t

IN THE

SUPREME COURT OF THE UNITED STATES

SALLY CORNEJO, individually and on behalf of

her minor son Kevin Salas,

Petitioner,

FREDDA MONN, JODI KAPLAN, and DAWN

SCHWARTZ,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

== =

MICHAEL A. CARDOZO

Corporation Counsel! of the

City of New York

Attorney for Respondents

100 Church Street

New York, New York 10007

(212) 788-1020 or 1072

LEONARD J. KOERNER,”

KRISTIN M. HELMERS,

JANET LYN ZALEON,

of Counsel.

*(Counsel of Record

QUESTION PRESENTED

Did the Circuit Court of Appeals correctly

affirm the District Court’s holding that the

municipal attorneys who initiated and pursued the

underlying child-abuse proceedings were entitled to

absolute immunity from liability under 42 U.S.C.

§ 1983, because their function was analogous to

that of a prosecutor in a criminal proceeding?

TABLE OF CONTENTS

Page

STATEMENT OF FACTS

REASONS FOR DENYING THE WRI]

| C orm jo s Fact Based Claim Doc Not

Warrant [This Court’s Review

[| Phe Courts Below Correctly Applied Absolut

immunity IO

I1] Cornejo Has Not Shown a Contlict in the Case

Law or Identified an Important [ederal

Question to Support Her Petition — for

( ertiorari i6

CONCLUSION 20

TABLE OF AUTHORITIES

Cases Page

Barrett v. ULS.,

798 F.2d 565 (2d Cir. 1986) "

Buckley v. Fitzsimmons,

309 U.S. 259 (1993)............ avaduuaantniwccaxess eee ae

Burns v. Reed,

er te, Ae © I es noe cnahnennacceabaxpessvnisdacnened 15

Briscoe v. LaHtue,

BED EIFS. She © BS Pinnccncccaccccsccess eecaes ada aundiadawes ©

Butz v. Economou,

8 BORO m File | y |) eee 6-7, 11, 12, 17

Cullinan v. Abramson,

128 F.3d 301 (6th Cir. 1997),

cerl. denied, 523 U.S. 1094 (1998)........... ee

Gray U. Poole,

Cee © AME Ee CEPA. SAP. DOE) visicsnccsnsensevanesan 16-17

Harlow v. Fitzgerald,

Pe RP ee CHE 8 BED avncinvccconssacsinccscsanssansnens ere 1]

Imbler v. Pachtman,

424 U.S. 409 (1976)........ Serene fal fk Sy

Kalina v. Fletcher,

ee ee Ue AME Dice cucckccaceckunksaserwenecessnacares naan 14

Lassiter v. Dept of Social Serus.,

452 U.S. 18 (1981)

PJ vo. Wagner,

603 F.3d 1182 (10th Cir. 2010)

Walden v. Wishengrad,

449 F.2d 149 (24 Cir. 1984) .o.cccccccccss:

Wyatt v. Cole,

504 U.S. 158 (1992)

Statutes and Rules

42 U.S.C. § 1983....

Sue. Ce ES...

passim

OPINIONS BELOW

The decision of the United States Court of

Appeals for the Second Circuit is reported sub nom.

Cornejo v. Bell.at 592 F.3d 121 (2d Cir. 2010), and

is reproduced in the Appendix to the Petition for

Writ of Certiorari at pages Pet. App. 1 through Pet.

App. 18.

The memorandum and order of the United

States District Court for the Eastern District of

New York, sub nom. Cornejo v. Bell, No. CV-04-

0341, is dated May 19, 2008 and is unpublished. It

is available at 2008 U.S. Dist. LEXIS 89597 and is

reproduced in the Appendix to the Petition for Writ

of Certiorari at pages Pet. App. 19 through Pet.

App. 65.

No. 09-1488

IN THE

SUPREME COURT OF THE UNITED STATES

SALLY CORNEJO, individually and on behalf of

her minor son Kevin Salas,

Petitioner,

FREDDA MONN, JODI KAPLAN, and DAWN

SCHWARTZ,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

STATEMENT OF FACTS

On October 31, 2002, New York City’s

Administration for Children’s Services (“ACS”)

received two reports alleging child abuse with

regard to six-month-old Kenny Salas. These

reports indicated that Kenny had been hospitalized

the day before with life-threatening injuries that

appeared to have been caused by extremely violent

shaking (“Shaken Baby Syndrome”), and_ that

Kenny had apparently sustained a rib fracture

several weeks earlier.

That day, ACS’s Child Protective Services

division assigned a caseworker, Kathleen Cerrito,

to investigate. Cerrito interviewed the physician at

Long Island Jewish Hospital (“the Hospital”) and

Kennys mother, petitioner Sally Cornejo

(“Cornejo”). At that preliminary point in_ her

investigation, Cerrito could not verify Cornejo’s

claim that she was not home when Kenny was

apparently shaken. ACS also could not rule out

Cornejo’s responsibility for the prior rib fracture.

After consulting her supervisors, Cerrito

removed Kenny’s 18-month-old brother, Kevin

Salas, from his parents’ custody on an ex parte

emergency basis, as authorized by N.Y. Fam. Ct.

Act § 1024. Kevin was placed in foster care with a

relative.

‘The next day, November 1, 2002, attorneys

in ACS’s Division of Legal Services prepared and

filed child-abuse petitions against the parents,

Cornejo and Rothman Salas (“Salas”), under Article

10 of the Family Court Act. Kenny remained

hospitalized, and he died on November 7, 2002.

ACS’s continued investigation substantiated

Cornejo’s assertion that she was not home when

Kenny was allegedly shaken. The investigation

indicated that Salas was the only adult caring for

Kenny at that time. On November 14, 2002, the

Medical Examiner advised an ACS attorney that

she could not yet determine whether Kenny had

died from Shaken Baby Syndrome, but she had

found during the autopsy that the condition of

Kenny’s rib was a congenital malformation, not a

fracture.

The next day, November 15, 2002, only two

weeks after Kevin’s removal, ACS moved by order

to show cause for Kevin’s immediate return to

Cornejo. ACS asked that the return. be under

ACS’s supervision while the — child-abuse

proceedings were pending, a status known as

“parole” (Joint Appendix (“A”) at A-534-535).

At a hearing on November 19, 2002, ACS

presented testimony from Kenny’s physician at the

H{ospital, who discussed her diagnosis of Shaken

Baby Syndrome, but also explained why she

believed that Cornejo was not at home when Kenny

was Shaken. Despite the physician’s testimony in

support of ACS’s application to return Kevin to

Cornejo’s custody, the Family Court ordered that

Kevin remain with his aunt (A-535-539, A-541, A-

544).

On the next court date, December 11, 2002,

ACS reiterated its request for Kevin to be returned

to Cornejo. ‘The Family Court questioned why ACS

had not sought to withdraw the abuse petitions

against Cornejo (A-550, A-557, A-568).! After the

ACS attorney consulted her supervisors, she did

move to withdraw the petitions against Cornejo

(which would leave them pending against Salas).

However, the Family Court denied ACS’s

application, explaining that the Court was not

1 Respondents have cited pages of the Family Court transcript

as they appear in the Joint Appendix. Respondents do not

concede that the excerpt presented with the Petition, at Pet.

App. 68-71, is an accurate reproduction.

“comfortable entertaining an application for an

outright parole to the mother” in light of the

medical uncertainty as to why Kenny died (A-561-

562; Pet. App. 29-30).

The cause of Kenny’s death was called into

question when the Medical IExaminer’s autopsy

report of January 22, 2003, concluded that Kenny

had died from a heart defect, not from being

shaken. Kenny’s doctors at the Hospital adamantly

disagreed with that conclusion, and reiterated their

diagnosis of Shaken Baby Syndrome.

Consequently, a meeting was convened,

attended by the physicians from the Hospital and

from the Medical Examiner’s Office, as well as

members of the Queens County District Attorney’s

Office, ACS’s attorneys, Cornejo’s attorney, and

Kevin’s law guardian (A-212; A-582; A-817). The

physicians from the Hospital and the Medical

¢xaminer’s Office maintained their divergent

beliefs about the cause of death, but they did agree

to consult an independent expert, Dr. Paul M.

Weinberg, a pediatric cardiologist at Philadelphia

Children’s Hospital (A772-773). In addition, ACS

contacted pediatric pathologist Dr. Janice Ophoven

of the Crackleberry Group in Indiana (A-130).

Until these experts weighed in, ACS was

reluctant to withdraw the abuse petitions against

Salas. Nonetheless, even while recognizing the

complexity of the medical issues, the Family Court

denied ACS’s requests to withdraw the petitions

against Cornejo unless ACS also agreed to

withdraw them against Salas (A-625).

At last, on February 4, 2003, the Family

Court granted ACS’s request to parole Kevin to

Cornejo under ACS’s supervision. The Family

Court directed Cornejo to keep Kevin within New

York State while the proceedings were pending,

and not to allow any contact between Kevin and

Salas (A-124-125).

On April 29, 2003, Dr. Weinberg completed

his report and, like the Medical Examiner,

diagnosed a myocardial infarction of unknown

cause (A772-773). Dr. Ophoven also could not

conclude that Kenny died from being shaken. On

ay 20, 2003; Cornejo joined ACS in seeking

dismissal of the petitions against her (A-760-771).

On June 10, 2003, ACS requested, and the

Family Court finally granted, permission to

withdraw the petitions as to both Cornejo and

Salas (A-133-134, A-136). ACS explained that it

now had “no basis to dispute the findings of the

Medical Examiner,” and “d[{id] not believe that any

evidence currently exists which could prove this

Petition by a preponderance of the evidence”

(A-644).

Cornejo, for herself and Kevin, sued the City

of New York, the then-ACS Commissioner, and

several ACS attorneys, | caseworkers and

supervisors. The United States District Court

granted defendants’ motions for summary

judgment dismissing the complaint (Pet. App. at

64). The Court held, in relevant part, that the ACS

attorneys were entitled to absolute immunity from

liability under 42 U.S.C. § 1983 (Pet. App. 56-57).

The Court followed the holding of the Second

Circuit Court of Appeals in Walden v. Wishengrad,

745 F.2d 149, 152 (2d Cir. 1984), that an attorney

representing a County Department of Special

Services in child-protective proceedings “was

entitled to absolute immunity, because her duties

in initiating and litigating those proceedings were

‘similar to those of a prosecuting attorney” (Pet.

App. at 56).

The District Court) emphasized — that

prosecutorial immunity covered all the “activities

that can fairly be characterized as_ closely

associated with the conduct of litigation” (Pet. App.

at 56, quoting Barrett v. U.S., 798 F.2d 565, 571-72

(2d Cir. 1986)). Furthermore, the District Court

held that the ACS attorneys’ absolute immunity

from § 1983 liability encompassed Cornejo’s

contention that “the attorneys disregarded the

instructions from the ACS caseworkers to withdraw

the petition against Cornejo” (Pet. App. 56-57).

The Court of Appeals for the Second Circuit

affirmed. The Second Circuit explained, in relevant

part, that the question of whether an employee of

the executive branch of government is entitled to

absolute or qualified immunity turns on what this

Court has called a “functional’ analysis” (Pet. App.

at 10, citing Briscoe v. LaHue, 460 U.S. 325, 342

(1983)). Like the District Court, the Second Circuit

held that, under this analysis, absolute immunity

applied to “prosecutorial activities” that were

“intimately associated with the judicial phase of

the criminal process, and thus [are] functions to

which the reasons for absolute immunity apply

with full force” (Pet. App. at 10, quoting Imbler v.

Pachtman, 424 U.S. 409, 430 (1976)). The Second

Circuit reasoned that “absolute immunity also

extends to non-prosecutor officials when they are

performing ‘functions analogous to those of a

prosecutor” (Pet. App. at 10, quoting Butz ov.

HMconomou, 438 U.S. 478, 515 (1978)). The Second

Circuit explained that “[wlhile any = analogy

between two kinds of executive employees is never

perfect, such reasoning by analogy is at the heart of

judicial thinking: things that are essentially alike

should be treated essentially the same” (Pet. App.

at 10). Thus, the Second Circuit pointed out that,

in Butz, this Court had applied absolute immunity

to an agency official’s decision to institute an

administrative proceeding (Pet. App. at 10).

Consequently, the Second Circuit held, as it

had in Walden v. Wishengrad, 745 F.2d at 152,

that, given the importance of child protection

activities, as well as “the need to pursue protective

child litigation vigorously and the potential for

subsequent colorable claims” arising from those

activities, the ACS attorneys “must be accorded

absolute immunity from § 1983 claims arising out

of the performance of [their] duties” (Pet. App. at

11).

REASONS FOR DENYING THE WRIT

I. Cornejo’s Fact-Based Claim Does Not

Warrant This Court’s Review.

The question raised by Cornejo does not

present any “compelling reasons” for granting the

petition. See Sup. Ct. R. 10. Indeed, the District

Court and the Second Circuit properly applied this

Court’s functional analysis in determining that the

ACS attorneys were entitled to absolute immunity

in this case. Moreover, Cornejo’s challenge to the

holding of the Courts below is based on_ her

particular interpretation of the facts of this case.

The decisions below explained why — that

interpretation does not undercut the application of

absolute immunity, and the Courts’ resolution of

that issue does not warrant review by this Court.

Cornejo asserts that the — child-abuse

petitions brought against her had “no merit,” when

in fact the petitions were based on Kenny’s death

from what appeared to be an intentional and

violent shaking, as well as his apparent prior rib

fracture. ACS reasonably inferred that Kevin was

in danger of being abused unless he was removed

from his parents’ care.

Cornejo also alleges that the ACS

caseworkers were somehow the “clients” of the ACS

attorneys, and that the attorneys had

“contravened” the caseworkers’ “instructions.”

Even assuming for the sake of argument that the

caseworkers were the attorneys’ clients, the factual

record in this case does not support Cornejo’s

assertion of liability based on the attorneys’

supposed disobedience of the caseworkers’

instructions.

Kevin was placed in foster care with a

relative on October 31, 2002. Cornejo contends

that, in mid-November, 2002, the caseworkers

instructed the attorneys to “withdraw the case

against Ms. Cornejo and return Kevin to her” (Pet.

at 3). Cornejo relies on the deposition testimony of

Child Protective Manager Joyce De Nicholson, who

could not recall when she spoke to an attorney

during that period, to whom she spoke, or what she

said (A-377-379).

In fact, the ACS attorneys promptly sought

to have Kevin returned to Cornejo’s custody as soon

as they verified that she was not at home when

Kenny was allevedly shaken, and that the condition

of Kenny’s rib was not a fracture resulting from

child abuse. ACS made this application in a

November 15, 2002 order to show cause, only about

two weeks after Kevin had been removed, and only

one day after learning from the Medical Examiner

that Kenny’s suspected prior rib injury was, in fact,

a congenital condition.

ACS asked that Kevin be “paroled” to

Cornejo under ACS’s supervision, to ensure that

Kevin remained in New York City, and away from

Salas, while the proceedings were pending. The

Family Court denied that application, as well as

the application made on December 11, 2002.

Furthermore, at the hearing on December

11, 2002, the Family Court urged ACS to move to

withdraw the petitions against Cornejo, and ACS

made that motion. Nonetheless, the Family Court

denied the motion, even as it recognized that ACS

could not withdraw the petitions without judicial

approval (A-671-672). Subsequently, the Family

Court refused ACS’s repeated motions to withdraw

the petitions against Cornejo. Thus, the Family

Court, rather than the ACS attorneys, prolonged

Kevin’s separation from Cornejo.

After the Medical Examiner issued her

report on January 22, 2003, the ACS attorneys

were able to get the Family Court, at last, to parole

Kevin to Cornejo, on February 4, 2003.

Nevertheless, the Family Court refused to

allow ACS to withdraw the petitions against

Cornejo without withdrawing them against Salas.

ACS was faced with different medical opinions

concerning the cause of Kenny’s death, and

«7

whether Salas was responsible for that death.

Thus, the ACS attorneys sought to mediate the

medical dispute before withdrawing the petitions

against Salas (A-120-121, A-586, A-815-816). That

judgment call is understandable, because Kenny

wus in Salas’s care when he lost consciousness, and

ACS needed to take the safer course of action and

ensure that Salas presented no risk to Kevin.

Moreover, as noted by the District Court, the

decision whether to seek judicial permission to

withdraw a petition is precisely the type of decision

“incident to the filing and litigation of the petition

in Family Court” that is “intimately ussociated”

with the judicial process and therefore should be

within the scope of absolute immunity (Pet. App. at

57). See Imbler, 424 U.S. at 430.

Therefore, Cornejo’s discussion of the roles of

clients and their privately-retained attorneys in the

settlement of civil cases in peneral (Pet. at 24-26) is

inapposite. For all these reasons, this is not an

appropriate case for this Court’s review.

II. The Courts Below Correctly Applied

Absolute Immunity.

A. Precedent Supports Application’ of

Absolute Immunity to ACS Attorneys.

This Court need not review the Second

Circuit’s logical application of absolute immunity in

this case. Cornejo’s challenge to that holding is

based on only a portion of this Court’s absolute

immunity analysis the scope of common-law

immunity in 1871, when § 1983 was enacted as § 1

of the Civil Rights Act.

In evaluating absolute immunity, this Court

does engage in “a considered inquiry into the

immunity historically accorded the relevant official

at common law and the interests behind it.”

Imbler, 424 U.S. at 421. Thus, the Court held in

Imbler that the historical common-law immunity of

prosecutors should translate into a _ prosecutor’s

absolute immunity from liability under § 1983 for

actions taken within the scope of the prosecutor’s

duties as an advocate. Jd. at 421-423.

Cornejo erroneously asserts, however, that

the scope of absolute immunity depends solely on

that historical analysis. According to Cornejo, in

1871, there was no mechanism to remove children

from parents who abused or neglected them and,

therefore, no governmental = attorneys were

employed to bring petitions to safeguard those

children (Pet. at 12-15).

Cornejo fails to appreciate that this Court

has applied absolute immunity, not just to

prosecutors, but also to attorneys whose duties are

analogous to those of a prosecutor, such as an

agency attorney who initiates an administrative

nroceeding, participates in the trial, and presents

evidence before the tribunal. Butz v. Economou,

438 U.S. 478, 515, 516 (1978); see Harlow ov.

Fitzgerald, 457 U.S. 800, 807 (1982) (citing the

holding in SHutz that absolute immunity

encompasses “prosecutors and similar officials” and

“executive officers engaged in adjudicative

functions”).

The policy considerations expressed by this

Court in both Jmbler and Butz support applying

absolute immunity to ACS attorneys, even though

their precise office did not exist in 1871. This

Court explained in Butz that an ayency attorney’s

exercise of independent judgment in bringing a

proceeding and presenting evidence could be

curtailed if the attorney risked being held liable in

damapes. 43% ULS. at 515-516 (citing the “serious

danger that the decision to authorize proceedings

will provoke a_=eretahatory response” through

litigation). Similarly, in Imbler, this Court pointed

out that:

A prosecutor 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 office would suffer if he

were constrained in making every

decision by the consequences in terms

of his own potential liability in a suit

for damages.

Imbler, 424 U.S. at 424-425. This Court has also

noted that an administrative proceeding gives a

defendant “ample opportunity to challenge the

legality of the proceeding,” without the need for a

§ 1983 action. Butz, 438 U.S. at 515.

In Walden v. Wishengrad, the Second Circuit

soundly applied the same analogy to a

governmental attorney charged with the

responsibility of protecting vulnerable children in

Family Court proceedings. Even assuming that

protection for children did not yet exist in 1871, a

strong public interest in providing such protection

has since been recognized.

Walden v. Wishengrad concerned a former

child-protective cuseworker’s false-arrest claim

against a Department of Social Services attorney

who allegedly got her arrested for failing to appear

in Family Court. 745 F.2d at 150-151. The Second

Circuit recognized that absolute immunity “should

be accorded only in exceptional cases.” I/d. at 152.

Nonetheless, the Court followed the absolute-

immunity analysis in /mbler because “lals a

Department attorney, Wishengrad initiates and

prosecutes child protective orders and represents

the interests of the Department and the County in

Family Court.. As such, her duties are similar to

those of a prosecutor, who acts ‘as an advocate for

the State’ in criminal matters.” /d. (internal

citation omitted). The Court emphasized that:

Given the importance of the

Department’s activities, the need to

pursue protective’ child — litigation

vigorously and the potential for

subsequent colorable claims,

Wishengrad — should be accorded

absolute immunity from claims arising

out of the performance of her duties.

She must be allowed to perform her

duties free from fear of potential

lawsuits by individuals allegedly

harmed by her actions.

745 F.2d at 152. Subsequently, in Cornejo, the

District Court and Second Circuit soundly applied

the same reasoning as in Butz and Walden.

Cornejo acknowledges’ that child-abuse

proceedings are brought to protect the child (Pet. at

19, 20-21). See Lassiter v. Dept of Social Seruvs.,

452 U.S. 18, 27 (1981) (noting that “the State has

an urgent interest in the welfare of the child”).

Cornejo does not appreciate, however, that this

societal interest should’ entitle child-welfare

attorneys to absolute immunity from liability that

might otherwise affect their pursuit of those

proceedings. For these reasons, this Court need not

revisit the Second Circuit’s holding.

B. The Attorneys Duties Gave Them

Absolute Immunity.

Cornejo also mistakenly asserts that the

attorneys were not entitled to absolute immunity

for the particular conduct that forms the basis for

her lawsuit (Pet. Br. at 14). This Court employs a

“functional” approach in deciding whether an

employee of the executive branch of government is

entitled to absolute or qualified immunity. Buckley

v. Fitzsimmons, 509 U.S. 259, 271 (1993). Indeed,

Justice Scalia cited some “curious” results

emanating from the Court’s functional analysis, but

explained that “both Jmbler and the ‘functional’

approach are so deeply embedded in our § 1983

jurisprudence that, for reasons of stare decisis, I

would not abandon them now.” Kalina v. Fletcher,

522 U.S. 118, 132, 1385 (1997) (Scalia, J

concurriny).

saa

In Imbler, this Court listed numerous

examples of duties encompassed within a

prosecuting attorney’s advocacy function, for which

the prosecutor is immune from § 1983 liability:

“whether to present a case to a grand jury, whether

to file an information, whether and when _ to

prosecute, whether to dismiss an_= indictment

against particular defendants, which witnesses to

call, and what other evidence to present.” Jmbler,

424 US. at 431 n.33.

The conduct cited by Cornejo in this petition

is the continuation of the child-abuse proceedings

(Pet. at 7). The decision whether to pursue or

withdraw a Family Court petition is manifestly the

function of an advocate. The District Court and

Second Circuit soundly held, consistent with the

reasoning of /mbler, that the ACS attorneys in this

case were entitled to absolute immunity for those

decisions (Pet. App. at 10-11, 56-57).

This Court has pointed out the breadth of

absolute immunity. As it explained in Buckley,

“the Imbler approach focuses on the conduct for

which immunity is claimed, not on the harm that

the conduct may have caused or the question

whether it was lawful.” Buckley, 509 U.S. at 271.

Thus, a prosecutor would be immune from lhability

for presenting evidence at a probable-cause hearing

even if, unlike this case, the attorney made or

elicited false statements during that hearing. See

Buckley, 509 U.S. at 270 (deseribing Burns v. Reed,

500 U.S. 478 (1991).

Here, by contrast, the conduct of the ACS

attorneys did not even remotely approach that level

of malfeasance. When the attorneys learned from

the medical experts that Cornejo could not have

been responsible for abusing Kenny, they

immediately and aggressively pursued Kevin’s

return to Cornejo. Soon, they also sought

withdrawal of the petition against her. Not only

was Cornejo not harmed by the ACS attorneys’

decisions, she would have benefited if the Family

Court had chosen to grant the relief sought by ACS.

However, even if she had been harmed by the

decision to continue the Family Court proceedings,

the ACS attorneys would be shielded from liability

by absolute immunity for their advocacy functions,

as held by the District Court, and Second Circuit.

In sum, the logical decisions reached by the Courts

below do not require review by this Court.

lil. Cornejo Has Not Shown a Conflict in

the Jase Law or = § Identified = an

Important Federal Question to Support

Her Petition for Certiorari.

Cornejo’s petition fails to establish a conflict

among the Circuit Courts of Appeals, or a conflict

with this Court’s prior cases, so as to justify her

petition for certiorari. Similarly, Cornejo’s

speculation about the reach of the Second Circuit’s

decision does not merit this Court’s attention.

A. Cornejo Failed to Show a Conflict

Among the Circuit Courts.

The cases cited by Cornejo demonstrate

consistency, rather than conflict, among the Circuit

Courts of Appeals in granting absolute immunity to

fovernmental attorneys who initiate and pursue

child-protective proceedings (Pet. at 16-17). E.g.,

PJ v. Wagner, 603 F.3d 1182, 1195 (10th Cir. 2010)

(proceeding in juvenile court to take child into

protective custody because of parents’ fgilure to

obtain proper treatment for child’s cancer); Gray v.

Poole, 243 F.3d 572, 577 (D.C. Cir. 2001) (initiating

and prosecuting a child-neglect petition).

Indeed, in Gray v. Poole, the District of

Columbia Circuit eloquently explained the basis for

recognizing absolute immunity in these

circumstances. The Court held that, as in the

administrative proceeding described in Butz, the

governmental attorneys had to “make the decision

to move torward ... free from intimidation or

harassment.” Gray, 243 F.3d at 577 (quoting Butz,

438 U.S. at 516). The Gray court pointed out that

“(tlhe 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

repistration of commodities merchants” that were

at issue in Butz. Gray, 243 F.3d at 577. In

addition, the Gray court noted that both types of

proceedings enabled the respondents to challenge

the legality of the governmental actions. /d. The

Court. concluded: “If anything, the function of an

attorney who litigates a Superior Court neglect

action is closer to that of the prosecutor in /mbler

than was the function of the agency attorney who

litigated administrative hearings in Butz itself.”

Gray, 243 F.3d at 577. Accordingly the Court found

the attorney immune from § 1983 liability for

allegedly filing the neglect proceeding without

cause and making supposedly libelous statements

in the course of that proceeding. Jd. at 577-578.

Accordingly, Cornejo’s petition cannot be based on a

conflict in the case law.

B. The Second Circuit’s Decision Does Not

Apply Immunity in All Civil Litigation.

The application of absolute immunity to the

ACS attorneys in this case does not open the door

to an assertion of blanket immunity for all

attorneys in civil litigation, as Cornejo claims (Pet.

at 10-13, 16-17). Indeed, private attorneys are

generally not. subject to § 1983 lability because

they are not acting under color of state law.

Cornejo’s reliance on Wyatt v. Cole, 504 U.S.

158% (1992), is misplaced (Pet. at 11-12). In Wyatt,

this Court explicitly held that a private attorney

using a state replevin statute does not have the

kind of qualified immunity from § 1983 liability

that might be conferred upon a government official.

This Court explained that qualified immunity for

private actors was not supported by either a history

of immunity from common-law claims such as

malicious prosecution, nor by a policy justification

such as a need to preserve the officials’ “ability to

serve the public good or to ensure that talented

candidates were not deterred by the threat of

damages suits from entering public service.” 504

U.S. at 163-168.

Finally, the Second Circuit’s holding does not

alter or extend the reach of absolute immunity to

all the conduct of all the attorneys who may be

hired to assist governmental entities, as Cornejo

alleges (Pet. at 12). Indeed, the cases Cornejo cites

are distinguishable (Pet. at 22-23). In those cases,

this Court employed its functional approach to

determine that attorneys’ activities other than

advocacy, such as aiding a police investigation or

holding a press conference, were not entitled to the

protections of absolute immunity.

In contrast, Cullinan v. Abramson, 128 F.3d

301, 310 (6th Cir. 1997), cert. denied, 523 U.S. 1094

(1998) (Pet. at 12), held that a city’s outside counsel

might be entitled to qualified immunity for its

defense of a lawsuit against the city. In this case

as well, the Second Circuit’s holding concerned the

ACS attorneys’ core advocacy function.

or all the reasons stated, the Second Circuit

properly affirmed the District Court’s dismissal of

Cornejo’s action against the ACS attorneys based

upon absolute immunity. This case does not raise

any issues warranting further review by this Court

CONCLUSION

FOR THE REASONS STATED,

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE

DENIED.

Dated: New York, New York

July 6, 2010

Respectfully submitted,

MICHAEL A. CARDOZO

Corporation Counsel of the