Wilkinson by and through Wilkinson v. Russell

Citation973 F.Supp. 437
Decision Date31 July 1997
Docket NumberNo. 2:94-CV-175.,2:94-CV-175.
PartiesThomas WILKINSON and Benjamin Wilkinson, By and Through his father and guardian, Thomas WILKINSON, and Jonathan Weigand, by and through Thomas Wilkinson, his legal guardian Plaintiffs, v. Caroline S. RUSSELL, James Adams, Gerald Jeffords, Defendants.
CourtU.S. District Court — District of Vermont

Harold B. Stevens, III, Stevens Law Office, Stowe, VT, for Thomas Wilkinson, Benjamin Wilkinson, Jonathan Wiegand.

Ritchie E. Berger, Shapleigh Smith, Jr., Dinse, Erdmann, Knapp & McAndrew, Burlington, VT, for Stephen Balsam, M.D.

Jeffrey L. Amestoy, Atty. Gen., Vermont Attorney General's Office, Montpelier, VT, Harrison Bruce Lebowitz, Vermont Attorney General's Office, Dept. of Social & Rehab. Services, Waterbury, VT, for Carolyn S. Russell, James Adams.

Harrison Bruce Lebowitz, Vermont Attorney General's Office, Dept. of Social & Rehab. Services, Waterbury, VT, for Vermont Dept. of Social and Rehabilation Services, Gerald Jeffords.

OPINION AND ORDER

SESSIONS, District Judge.

This matter is before the Court on Defendants' Russell, Adams, and Jeffords Motion for Summary Judgment on Count I (Libel and Slander), Count II (Negligence), Count V (Deprivation of Civil Rights), Count VI (Denial of Due Process), Count VII (Conspiracy), Count VIII (Infliction of Emotional Distress), and Count IX (Negligence Per Se). This opinion concerns only the allegations set forth in Count I (Libel and Slander), Count VII (Conspiracy), and Count IX (Negligence Per Se). The Court has already ruled on the remaining counts. For the reasons that follow, Defendants' Motion for Summary Judgment in relation to Counts I, VII, and IX is granted.

BACKGROUND

The following facts are either not in dispute or are supported by the affidavits and accompanying evidentiary material submitted by the Plaintiffs, as required by Fed.R.Civ.P. 56(e).1 Plaintiff Thomas Wilkinson claims the Defendants, employees at Vermont Social and Rehabilitative Services ("SRS"), failed to investigate properly allegations that he sexually abused his son, Benjamin Wilkinson (Ben), and his step-son, Jonathan Weigand. Consequently, he was falsely accused of being a sex offender. He further contends they improperly communicated their findings to others.

On June 30, 1993 Judge Herbert Barall, the presiding judge in the child custody dispute between Wilkinson and his former wife Linda Weigand ("Weigand") in Connecticut, ordered that the Connecticut Department of Children and Families ("DCF") communicate with Vermont SRS regarding Wilkinson's children.2 The Attorney for DCF cited the Uniform Child Custody Jurisdiction Act,3 the statute which provides uniform requirements for the exchange of information and mutual assistance between different state courts concerned with the same child. Wilkinson's attorney, who was present in the courtroom, did not object to the Judge's order. On July 13th Caroline Russell, SRS District Director in the Morrisville office, returned a phone call from Paul Shanley of Connecticut DCF. Shanley told her he had been ordered by the Connecticut court to contact SRS to obtain information to answer the Judge's concerns regarding the welfare of the children. He specifically asked for some documentation that he could provide to the court. According to Shanley's report to Judge Barall, Russell provided him with information about the case over the phone, including the substantiation of abuse charges against Wilkinson. Russell then contacted an attorney at the Deputy Attorney General's office, who advised her that SRS had a responsibility to provide DCF with information about SRS's involvement in the case.

On July 15, 1993, in response to Shanley's request, Russell wrote to the Connecticut DCF. She began the letter by writing:

It is my understanding that there is a question in the Family Court in Connecticut about which parent should have custody of these boys. In the interest of protecting Jon and Ben from further harm and abuse, I have been advised by our department's attorney that I am able to disclose the outcome of our investigations to you.

She went on to state again that SRS had "made a substantiation of sexual abuse perpetrated on Ben by Thomas Wilkinson" and had also "made a determination that sexual abuse was perpetrated on Jonathan by Tom Wilkinson." Russell provided this information despite a written consent agreement that had been entered into on May 3, 1993 between Wilkinson and SRS in which SRS had consented to "stay" an appeal process Wilkinson had begun to the Human Services Board pending the outcome of criminal and divorce litigation. The agreement provided, "In the interim, SRS will remove Wilkinson's name from its central registry as well as its substantiation of sexual abuse against him." Wilkinson claims he was slandered by Russell's remarks in the phone call and libeled by the content of the letter.

DISCUSSION
I. LIBEL AND SLANDER

To establish a cause of action in defamation in Vermont, a plaintiff must prove that a defendant 1) made a false and defamatory statement concerning the plaintiff, 2) acted with some negligence or greater fault in publishing the statement, 3) published the statement to at least one third person, 4) was not privileged in the publication of the statement, 5) caused plaintiff to suffer special damages, and 6) caused plaintiff actual harm to warrant compensatory damages. Crump v. P & C Food Markets, Inc., 154 Vt. 284, 291, 576 A.2d 441.

Defendants contend that Russell's statements were privileged under the doctrines of judicial immunity and state qualified immunity. They further contend that the statements were not "published" as that term is used in an action for defamation.

a. Judicial Immunity

Vermont law has recognized the doctrine of judicial immunity which applies to judges, attorneys and witnesses since the cases of Torrey v. Field, 10 Vt. 353 (1838), and Mower v. Watson, 11 Vt. 536, 34 A.D. 704 (1839). (See also Banister v. Wakeman, 64 Vt. 203, 23 A. 585 (1891) and Laplaca v. Lowery, 134 Vt. 56, 349 A.2d 235 (1975)). In Torrey v. Field, the Vermont Supreme Court held:

This privilege, or immunity ... extends to parties, witnesses, jurors, judges and counsel, in courts of justice, in short, to anyone, who in the discharge of public duty or in pursuit of private rights, is compelled to participate in the administration of justice.

10 Vt. 353, at 414 (1838).

United States Supreme Court cases indicate that immunity analysis "rests on functional categories, not the status of the defendant." Briscoe v. LaHue, 460 U.S. 325, at 342, 103 S.Ct. 1108, at 1119, 75 L.Ed.2d 96 (1983). Absolute immunity flows not from rank or title, but from the nature of the responsibilities of the individual official. Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978). The Court in Briscoe further stated:

In short, the common law provided absolute immunity from subsequent damages liability for all persons governmental or otherwise-who were integral parts of the judicial process.

460 U.S. at 335, 103 S.Ct. at 1115.

Psychiatrists appointed by the court to conduct competency evaluations have been granted absolute immunity on the basis that they "perform functions essential to the judicial process." Moses v. Parwatikar, 813 F.2d 891, 892 (8th Cir.1987). The Eighth Circuit further stated that

Non-judicial persons who fulfill quasi-judicial functions intimately related to the judicial process have absolute immunity for damage claims arising from their performance of the delegated functions ... anything less than absolute immunity would defeat the requirement that the "paths which led to the ascertainment of truth ... be left as free and as unobstructed as possible."

Id., at 892, quoting Briscoe, 460 U.S. at 333, 103 S.Ct. at 1114.

In making the oral and written statements to Shanley, Russell was clearly responding to Judge Barall's order. Other Circuits have held that persons who faithfully execute valid court orders are absolutely immune from liability for damages in actions challenging conduct authorized by the order. Henry v. Farmer City State Bank, 808 F.2d 1228, 1238-39 (7th Cir.1986) (sheriff who acted pursuant to official court order enjoyed quasi-judicial absolute immunity); Tymiak v. Omodt, 676 F.2d 306, 308 (8th Cir.1982) (same); Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir.1980) ("Judicial immunity extends as well to those who carry out the orders of judges."); Kermit Constr. Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1,3 (1st Cir.1976) (receiver who faithfully and carefully executes a court order shares the judge's absolute immunity) See also Coverdell v. Dep't of Social and Health Services, 834 F.2d 758, 764-65 (9th Cir.1987) (child protective services worker was entitled to absolute quasi-judicial immunity from liability for damages stemming from worker's apprehension of newborn child at hospital pursuant to court order). The rationale for immunizing persons who execute court orders is apparent. Such persons are themselves "integral parts of the judicial process." Briscoe, 460 U.S. at 335, 103 S.Ct. at 1116. As the First Circuit has explained with respect to a receiver who acted pursuant to court directives:

To deny him this [absolute] immunity would seriously encroach on the judicial immunity already recognized by the Supreme Court.... It would make the receiver a lightning rod for harassing litigation aimed at judicial orders. In addition to the unfairness of sparing the judge who gives an order while punishing the receiver who obeys it, a fear of bringing down litigation on the receiver might color a court's judgment in some cases ...

Kermit Constr. Corp., 547 F.2d at 3.

Plaintiffs claim that Russell's statements were made maliciously. The U.S. Supreme Court has held that because the purpose of the rule of absolute judicial immunity is to protect the integrity of the judicial process, even malicious and corrupt acts...

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3 cases
  • Smalls v. Cnty. of Suffolk
    • United States
    • U.S. District Court — Eastern District of New York
    • 27 Agosto 2019
    ...orders are absolutely immune from liability for damages in actions challenging conduct authorized by the order." Wilkinson v. Russell, 973 F. Supp. 437, 440 (D. Vt. 1997) (citations omitted); see also Rolan v. Phillips, 19 F.3d 552, 556 (11th Cir. 1994) (sheriff entitled to quasi-judicial i......
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    • U.S. District Court — Northern District of New York
    • 23 Septiembre 2019
    ...absolute judicial immunity extends to "the Clerk's Office activities of filing and docketing legal documents"); Wilkinson v. Russell, 973 F. Supp. 437, 440-41 (D. Vt. 1997) (holding that "persons [including sheriffs] who faithfully execute valid court orders are absolutely immune from liabi......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 1 Agosto 1998
    ...31, 1997 grant of summary judgment, which dismissed plaintiffs' claims of libel and slander and negligence per se. Wilkinson v. Russell, 973 F.Supp. 437 (D. Vt. 1997). Second, plaintiffs appeal from the trial court's April 3, 1998 grant of defendants' Rule 50(a) motion for judgment as a mat......

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