724 F.3d 687 (6th Cir. 2013), 11-4002, Kovacic v. Cuyahoga County Dep't of Children & Family Servs.

Docket Nº:11-4002
Citation:724 F.3d 687
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:NANCY KOVACIC, Plaintiff, KATHERINE KOVACIC and DANIEL KOVACIC, Plaintiffs-Appellees, v. CUYAHOGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendant, PATRICIA CAMPBELL-PONSTINGLE, PAM CAMERON, and VIKKI L. CSORNOK, Defendants-Appellants
Attorney:Steven W. Ritz, CUYAHOGA COUNTY PROSECUTOR'S OFFICE, Cleveland, Ohio, for Appellants. Jay F. Crook, SHRYOCK, CROOK & ASSOCIATES L.L.P., Wickliffe, Ohio, for Appellees. Steven W. Ritz, CUYAHOGA COUNTY PROSECUTOR'S OFFICE, Cleveland, Ohio, for Appellants. Jay F. Crook, SHRYOCK, CROOK & ASSOCIATES L...
Judge Panel:Before: BOGGS, MOORE, and SUTTON, Circuit Judges. MOORE, J., delivered the opinion of the court in which BOGGS, J., joined. SUTTON, J., delivered a separate dissent. SUTTON, J., dissenting.
Case Date:July 31, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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724 F.3d 687 (6th Cir. 2013)

NANCY KOVACIC, Plaintiff, KATHERINE KOVACIC and DANIEL KOVACIC, Plaintiffs-Appellees,

v.

CUYAHOGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendant,

PATRICIA CAMPBELL-PONSTINGLE, PAM CAMERON, and VIKKI L. CSORNOK, Defendants-Appellants

No. 11-4002

United States Court of Appeals, Sixth Circuit

July 31, 2013

Argued March 6, 2013.

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Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:05-CV-2746--Sara E. Lioi, District Judge.

ARGUED:

Steven W. Ritz, CUYAHOGA COUNTY PROSECUTOR'S OFFICE, Cleveland, Ohio, for Appellants.

Jay F. Crook, SHRYOCK, CROOK & ASSOCIATES L.L.P., Wickliffe, Ohio, for Appellees.

ON BRIEF:

Steven W. Ritz, CUYAHOGA COUNTY PROSECUTOR'S OFFICE, Cleveland, Ohio, for Appellants.

Jay F. Crook, SHRYOCK, CROOK & ASSOCIATES L.L.P., Wickliffe, Ohio, for Appellees.

Before: BOGGS, MOORE, and SUTTON, Circuit Judges. MOORE, J., delivered the opinion of the court in which BOGGS, J., joined. SUTTON, J., delivered a separate dissent.

OPINION

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KAREN NELSON MOORE, Circuit Judge.

In 2002, Plaintiffs-Appellees Daniel Kovacic and Katherine Kovacic (collectively, " the children" ) were temporarily removed from the custody of their mother Plaintiff Nancy Kovacic (" Nancy" ) by Defendant Cuyahoga County Department of Children and Family Services (" CCDCFS" ). Defendant-Appellant

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Patricia Campbell-Ponstingle, a social worker involved with the case, determined that exigent circumstances existed and, with the assistance of North Olmsted police officers, removed the children from Nancy's home. Campbell-Ponstingle and Defendants-Appellants Vikki Csornok and Pam Cameron (collectively, " the social workers" ), moved for summary judgment on the Fourth and Fourteenth Amendment claims relating to the seizure of the children, arguing that they were entitled to absolute and qualified immunity. The district court denied the absolute-immunity motion in part and the qualified-immunity motion in its entirety. The social workers filed an interlocutory appeal challenging each of these rulings. For the reasons stated below, we AFFIRM the district court's denial in part of the social workers' absolute-immunity motion and its denial of the social workers' qualified-immunity motion and REMAND for further proceedings.

I. BACKGROUND

Filed in 2005, this case has developed a long and complicated history. The following background is relevant to this appeal. At the time of the children's removal, a Cuyahoga County Juvenile Court standing order was in effect providing that " all direct service social workers employed by the Cuyahoga County Department of Children and Family Services, who are responsible for the investigation of child abuse, neglect, or dependency matters, are hereby reappointed as Duly Authorized Officers of the Court in accordance with Section 2151.31 of the Ohio Revised Code and Ohio Juvenile Rule 6." R. 125-2 (Juvenile Court Order at 1) (Page ID #386). Pursuant to this order, " said social workers shall have the authority to remove and provide temporary emergency care and shelter for children who are at imminent risk of serious physical or emotional harm." Id. Social workers were also permitted to " request the assistance of appropriate law enforcement officers, including but not limited to municipal police officers and county deputy sheriffs." Id.

At a March 26, 2002 meeting, the social workers determined that exigent circumstances required immediate removal of the children from Nancy's home. That same day, Campbell-Ponstingle effectuated a Temporary Emergency Care Order (" TEC Order" ), a document completed by social workers when removing children without a warrant. R. 121-9 (TEC Order at 1) (Page ID #330). The TEC Order required consultation with an assistant prosecuting attorney and a supervisor. Id. Upon completion of the TEC Order, Campbell-Ponstingle, accompanied by police officers, went to Nancy's home and took the children into temporary custody of the county. The following day, Campbell-Ponstingle filed a complaint for abuse, neglect, and temporary custody with the Cuyahoga County Juvenile Court, which included a notarized document detailing her recommendation of removal and the supporting reasons. R. 121-11 (Compl. at 1) (Page ID #332). After a hearing on March 29, 2002, the family court magistrate found that probable cause existed to support the removal and ordered the children " committed to the emergency care and custody of the Agency pending further hearing." R. 121-14 (Magistrate Order at 1-2) (Page ID #340-41).

On November 28, 2005, Nancy and the children filed a civil action in the U.S. District Court for the Northern District of Ohio against the CCDCFS, the social workers, and ten others. R. 1 (Compl. at 1-3) (Page ID #1-3). In 2010, the parties filed cross-motions for summary judgment on the Fourth and Fourteenth Amendment claims relating to the seizure of the children. R. 120 (Pls.' Mot. for Summ. J.) (Page ID #182); R. 121 (Defs.' Mot. for

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Summ. J.) (Page ID #206). The district court granted in part and denied in part the social workers' motion for summary judgment on the basis of absolute immunity, denied the social workers' motion for summary judgment on the basis of qualified immunity, and granted in part the children's motion for summary judgment on their remaining Fourth and Fourteenth Amendment claims. R. 132 (Order at 55-56) (Page ID #555-56). The social workers filed an interlocutory appeal challenging the district court's denial of absolute and qualified immunity. R. 135 (Notice of Interlocutory Appeal at 1) (Page ID #560) (" The Memorandum and Order and Judgment Entry issued by the District Court denied the above listed defendants' claims of both absolute and qualified immunity." ). The merits of the children's motion for summary judgment is not before us.

II. JURISDICTION

" Jurisdiction in this matter arises under 28 U.S.C. § 1291, granting jurisdiction to hear appeals from final judgments of district courts." Summers v. Leis, 368 F.3d 881, 886 (6th Cir. 2004). " Generally, a denial of summary judgment is not a final judgment for purposes of appeal." Id. Judgments " where assessment of damages or awarding of other relief remains to be resolved have never been considered to be 'final' within the meaning of 28 U.S.C. § 1291." Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). Because assessment of damages has yet to be resolved in this case, the district court's summary-judgment order does not constitute a final judgment. R. 132 (Order at 55-56) (Page ID #555-56).

The Supreme Court, however, has carved out an exception to this general rule for denials of immunity to public officials. Mitchell v. Forsyth, 472 U.S. 511, 524-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Under this exception, " district court denials of qualified immunity may be appealed as collateral orders where (1) the defendant is a public official asserting the defense of qualified immunity, and (2) the issue appealed concerns not which facts the parties might be able to prove, but whether certain alleged facts reflect a violation of clearly established law." Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir. 2002). In other words, " a denial of summary judgment based on a legal determination that qualified immunity is inappropriate is immediately appealable as a collateral order." Crockett v. Cumberland Coll., 316 F.3d 571, 578 (6th Cir. 2003).

Similarly, " [t]he denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action." Leech v. DeWeese, 689 F.3d 538, 541 (6th Cir. 2012) (internal quotation marks omitted). We therefore have jurisdiction to review the district court's denial in part of absolute immunity and its denial of qualified immunity.

III. STANDARD OF REVIEW

" Whether a defendant is entitled to absolute or qualified immunity from liability under 42 U.S.C. § 1983 is a legal question that this Court reviews de novo." Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009).

IV. ABSOLUTE IMMUNITY

The district court granted absolute immunity to the social workers for effectuating the TEC Order, initiating formal removal proceedings, and testifying in court. R. 132 (Order at 44) (Page ID #544). The district court did not extend absolute immunity, however, to the act of removing

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the children from Nancy's home, determining that this was analogous to a police function rather than a prosecutorial or judicial function. Id. at 42-44 (Page ID #542-44). The social workers challenge this distinction, arguing that they acted in conformity with precisely that which was contemplated by the TEC Order--taking custody of the children. Appellants Br. at 29. The children rejoin that " [w]hile the workers were in possession of the order, their decision on when, and how to execute it were not 'intimately related' to the judicial process, but were in fact the actions of a[n] individual exercising police type powers." Appellees Br. at 18. The children further argue that the social workers' " decision to . . . take the children in the manner that they did cannot [b]e said to be the function of an advocate." Id.

We have recognized that social workers are entitled to absolute immunity when they engage in conduct " intimately associated with the judicial phase of the criminal process." Pittman v. Cuyahoga Cnty. Dep't of Children & Fam. Servs...

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