Crossman v. DCYS CV-93-574 06/18/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Diane Crossman, et al.
v. Civil No. 93-574-B
State of NH Division of Children, Youth and Families, et al.
O R D E R
Diane Crossman's two children were removed from her home
pursuant to an ex parte order issued by a judge of the Lebanon
District Court on November 20, 1990. The court based its order
on allegations made against Crossman and her boyfriend by
employees of the New Hampshire Division of Children, Youth and
Families ("DCYF").1 Crossman unsuccessfully attempted to regain
custody of the children at preliminary and adjudicatory hearings
before the district court. She then appealed the district
court's decisions to the state superior court, but later signed a
consent agreement in which she acknowledged that the children had
been neglected. Pursuant to the agreement. Crossman regained
custody of her son in June 1991 and her daughter in February
1993.
1 Formerly called the Division of Children and Youth Services ("DCYS"). Crossman currently asserts claims against DCYF and several
DCYF employees.2 Her claims fall into three broad categories.
First, she contends that defendants provided false testimony to
the state courts during the abuse and neglect proceedings.
Second, she alleges that defendants withheld important documents
that she was entitled to inspect pursuant to state law. Finally,
she alleges that one of the DCYF employees improperly tape
recorded a conversation she had with her children during a
supervised visit. As a result, she contends that defendants,
individually and as a part of a conspiracy, violated her rights
under the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments.3 She also asserts various state law claims.
Defendants move for summary judgment on all of Crossman's
I dismissed the claims Crossman brought on behalf of her children without prejudice in a prior order. Further, I previously granted another defendant's motion for summary judgment and plaintiffs settled with other defendants. Finally, Crossman abandoned her claims against defendant, Adella Dominigue, at the June 13, 1996 status conference.
3 Crossman has sued the individual defendants in both their official and individual capacities. However her claims for damages against the DCYS and her official capacity claims against the individual defendants are barred by the Eleventh Amendment. See Will v. Michigan D e o 't of State Police, 491 U.S. 58, 70-71 n.10 (1989); Johnson v. Rodriquez, 943 F.2d 104, 108-09 (1st Cir. 1991), cert, denied, 112 S.Ct. 948 (1992).
2 claims.4
I. Allegations that the individual defendants provided false testimony
The First Circuit Court of Appeals has held that
All witnesses at judicial proceedings have an absolute immunity from damages liability based on their testimony. This immunity applies even to public officials who knowingly give false testimony.
Watterson v. Page, 987 F.2d 1 , 8 (1st Cir. 1993) (citations
omitted). Therefore, Crossman cannot succeed with her claims
that defendants violated her constitutional rights by offering
false testimony during the abuse and neglect proceedings. I
reach a similar conclusion with respect to her claim that
defendants are liable because they participated in a conspiracy
to offer false testimony.5 See Miller v. Glanz, 948 F.2d 1562,
Summary judgment is appropriate if the facts, taken in the light most favorable to the nonmoving party, show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); F.D.I.C. v. Anchor Properties, 13 F.3d 27, 30 (1st Cir. 1994) .
5 I do not construe Crossman's complaint to assert that the defendants are liable for conducting an unconstitutional child abuse investigation. Nor do I understand her to assert a claim based upon the defendants' decision to commence the abuse and neglect proceedings. The First Circuit has declined to recognize a constitutional right to be free from child abuse investigations. Watterson, 987 F.2d at 8. Moreover, the defendants' actions in commencing and prosecuting the abuse and neglect petitions are protected by absolute prosecutorial
3 1571 (10th Cir. 1991); House v. Bolford, 956 F.2d 711, 720 (7th
Cir. 1992).
II. Allegations that the individual defendants withheld documents
Crossman alleges that defendants violated her constitutional
rights by withholding certain documents during the abuse and
neglect proceedings that she needed to respond to the DC Y F 's
charges. Even if Crossman has sufficiently stated and supported
a constitutional claim based on these allegations, disputed
issues I need not resolve, her claims based on this theory are
barred the doctrine of absolute prosecutorial immunity.
The Supreme Court employs a functional approach when
evaluating claims of absolute prosecutorial immunity. See Butz
v. Economou, 438 U.S. 478, 515 (1978). Accordingly, the First
Circuit Court of Appeals has determined that a police officer is
entitled to absolute immunity with respect to claims based on the
officer's instigation of juvenile delinguency proceedings.
Malachowski, 787 F.2d at 712. In the same opinion, the court
immunity. Salver v. Patrick, 874 F.2d 374 (6th Cir. 1989) Coverdell v. Department of Social and Health Servs., 834 F.2d 758, 759 (9th Cir. 1987); see also Malachowski v. City of Keene, 787 F.2d 704 (1st Cir. 1986), cert, denied, 479 U.S. 828 (1986) (police officer who filed a delinguency petition is entitled to absolute immunity). Therefore, even if she were attempting to base her claims on either theory, she would not be successful.
4 cited with favor a decision from the Sixth Circuit Court of
Appeals applying prosecutorial immunity to social workers. Id.
citing Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) .
Thus, even though the defendants are not prosecutors, they will
be entitled to claim prosecutorial immunity to the extent that
the actions for which they have been sued are actions taken as
"advocate[s] for the state." Guzman-Rivera v. Rivera-Cruz, 55
F.3d 26, 29 (1st Cir. 1995) (guoting Burns v. Reed, 500 U.S. 478,
491 (1991)).
In Reid v. State of New Hampshire, 56 F.3d 332, 337 (1st
Cir.
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Crossman v. DCYS CV-93-574 06/18/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Diane Crossman, et al.
v. Civil No. 93-574-B
State of NH Division of Children, Youth and Families, et al.
O R D E R
Diane Crossman's two children were removed from her home
pursuant to an ex parte order issued by a judge of the Lebanon
District Court on November 20, 1990. The court based its order
on allegations made against Crossman and her boyfriend by
employees of the New Hampshire Division of Children, Youth and
Families ("DCYF").1 Crossman unsuccessfully attempted to regain
custody of the children at preliminary and adjudicatory hearings
before the district court. She then appealed the district
court's decisions to the state superior court, but later signed a
consent agreement in which she acknowledged that the children had
been neglected. Pursuant to the agreement. Crossman regained
custody of her son in June 1991 and her daughter in February
1993.
1 Formerly called the Division of Children and Youth Services ("DCYS"). Crossman currently asserts claims against DCYF and several
DCYF employees.2 Her claims fall into three broad categories.
First, she contends that defendants provided false testimony to
the state courts during the abuse and neglect proceedings.
Second, she alleges that defendants withheld important documents
that she was entitled to inspect pursuant to state law. Finally,
she alleges that one of the DCYF employees improperly tape
recorded a conversation she had with her children during a
supervised visit. As a result, she contends that defendants,
individually and as a part of a conspiracy, violated her rights
under the First, Fourth, Fifth, Ninth, and Fourteenth
Amendments.3 She also asserts various state law claims.
Defendants move for summary judgment on all of Crossman's
I dismissed the claims Crossman brought on behalf of her children without prejudice in a prior order. Further, I previously granted another defendant's motion for summary judgment and plaintiffs settled with other defendants. Finally, Crossman abandoned her claims against defendant, Adella Dominigue, at the June 13, 1996 status conference.
3 Crossman has sued the individual defendants in both their official and individual capacities. However her claims for damages against the DCYS and her official capacity claims against the individual defendants are barred by the Eleventh Amendment. See Will v. Michigan D e o 't of State Police, 491 U.S. 58, 70-71 n.10 (1989); Johnson v. Rodriquez, 943 F.2d 104, 108-09 (1st Cir. 1991), cert, denied, 112 S.Ct. 948 (1992).
2 claims.4
I. Allegations that the individual defendants provided false testimony
The First Circuit Court of Appeals has held that
All witnesses at judicial proceedings have an absolute immunity from damages liability based on their testimony. This immunity applies even to public officials who knowingly give false testimony.
Watterson v. Page, 987 F.2d 1 , 8 (1st Cir. 1993) (citations
omitted). Therefore, Crossman cannot succeed with her claims
that defendants violated her constitutional rights by offering
false testimony during the abuse and neglect proceedings. I
reach a similar conclusion with respect to her claim that
defendants are liable because they participated in a conspiracy
to offer false testimony.5 See Miller v. Glanz, 948 F.2d 1562,
Summary judgment is appropriate if the facts, taken in the light most favorable to the nonmoving party, show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); F.D.I.C. v. Anchor Properties, 13 F.3d 27, 30 (1st Cir. 1994) .
5 I do not construe Crossman's complaint to assert that the defendants are liable for conducting an unconstitutional child abuse investigation. Nor do I understand her to assert a claim based upon the defendants' decision to commence the abuse and neglect proceedings. The First Circuit has declined to recognize a constitutional right to be free from child abuse investigations. Watterson, 987 F.2d at 8. Moreover, the defendants' actions in commencing and prosecuting the abuse and neglect petitions are protected by absolute prosecutorial
3 1571 (10th Cir. 1991); House v. Bolford, 956 F.2d 711, 720 (7th
Cir. 1992).
II. Allegations that the individual defendants withheld documents
Crossman alleges that defendants violated her constitutional
rights by withholding certain documents during the abuse and
neglect proceedings that she needed to respond to the DC Y F 's
charges. Even if Crossman has sufficiently stated and supported
a constitutional claim based on these allegations, disputed
issues I need not resolve, her claims based on this theory are
barred the doctrine of absolute prosecutorial immunity.
The Supreme Court employs a functional approach when
evaluating claims of absolute prosecutorial immunity. See Butz
v. Economou, 438 U.S. 478, 515 (1978). Accordingly, the First
Circuit Court of Appeals has determined that a police officer is
entitled to absolute immunity with respect to claims based on the
officer's instigation of juvenile delinguency proceedings.
Malachowski, 787 F.2d at 712. In the same opinion, the court
immunity. Salver v. Patrick, 874 F.2d 374 (6th Cir. 1989) Coverdell v. Department of Social and Health Servs., 834 F.2d 758, 759 (9th Cir. 1987); see also Malachowski v. City of Keene, 787 F.2d 704 (1st Cir. 1986), cert, denied, 479 U.S. 828 (1986) (police officer who filed a delinguency petition is entitled to absolute immunity). Therefore, even if she were attempting to base her claims on either theory, she would not be successful.
4 cited with favor a decision from the Sixth Circuit Court of
Appeals applying prosecutorial immunity to social workers. Id.
citing Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) .
Thus, even though the defendants are not prosecutors, they will
be entitled to claim prosecutorial immunity to the extent that
the actions for which they have been sued are actions taken as
"advocate[s] for the state." Guzman-Rivera v. Rivera-Cruz, 55
F.3d 26, 29 (1st Cir. 1995) (guoting Burns v. Reed, 500 U.S. 478,
491 (1991)).
In Reid v. State of New Hampshire, 56 F.3d 332, 337 (1st
Cir. 1995), the First Circuit Court of Appeals noted that "it is
now [a] well settled rule that a prosecutor cannot be held
personally liable for the knowing suppression of exculpatory
information." I d . (guoting Robinson v. Volkswaqenwerk A G , 940
F.2d 1369, 1372-73 (10th Cir. 1991) (citations omitted), cert.
denied, 502 U.S. 1091 (1992). Further, the court recognized that
the rule applies even where the information has been specifically
reguested by the defense and the court has ordered the prosecutor
to produce the reguested materials. Reid, 56 F.3d at 337.
Applying the court's holdings in Malachowski and Reid, I conclude
that any federal claim against the defendants based upon the
defendants' failure to produce certain documents reguested during
5 the abuse and neglect proceedings is barred by the doctrine of
absolute prosecutorial immunity.
Ill. Allegations that defendants violated Crossman's constitutional rights by recording her conversations with her children
Crossman concedes that the DCYF worker who allegedly
recorded her conversations was lawfully present in the room with
her when the conversation occurred. Moreover, Crossman does not
contend that she reasonably believed that the DCYF worker would
not overhear her conversation. Under these circumstances, even
if the DCYF worker recorded Crossman's conversation without her
consent, she has no claim that the recording violated her
constitutional rights because she had no reasonable expectations
that the conversations would remain private. United States v.
Karo, 468 U.S. 705, 716 (1984); United States v. Caceres, 44 0
U.S. 741, 744 (1979).
CONCLUSION
For the foregoing reasons, I grant defendants' motion for
summary judgment (document no. 74) with respect to plaintiff's
federal law claims. I decline to exercise supplemental
6 jurisdiction over the remaining state law claims and I dismiss
these claims without prejudice.
SO ORDERED.
Paul Barbadoro United States District Judge
June 18, 1996
cc: Diane Crossman, pro se Nancy J. Smith, Esg. Thomas G. Cooper, Esg.