Abbott v. Concannon, Civ. No. 00-0059-B-C (D. Me. 3/31/2000), Civ. No. 00-0059-B-C.

• Decision Date: 31 March 2000
• Docket Number: Civ. No. 00-0059-B-C.
• Parties: TRACY ABBOTT, As Mother and Next Friend of Katrinia Fitzsimmons plaintiff LEWIS ABBOTT, plaintiff, VONNE JONES, plaintiff, v. KEVIN CONCANNON, Individually, and in his capacity as Commissioner of the Maine Department of Human Services defendant. JENNIFER K. MOSCA, Individually, and in her capacity as a case worker with the Maine Department of Human Services defendant, JANE DOE, As Judge of the Maine District Court, District Five, Division of Central.
• Court: U.S. District Court — District of Maine

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TRACY ABBOTT, As Mother and Next Friend of Katrinia Fitzsimmons plaintiff LEWIS ABBOTT, plaintiff, VONNE JONES, plaintiff, v. KEVIN CONCANNON, Individually, and in his capacity as Commissioner of the Maine Department of Human Services defendant. JENNIFER K. MOSCA, Individually, and in her capacity as a case worker with the Maine Department of Human Services defendant, JANE DOE, As Judge of the Maine District Court, District Five, Division of Central.

Civ. No. 00-0059-B-C.

United States District Court, D. Maine, Bangor Division.

March 31, 2000.

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND RECOMMENDED DECISION TO DISMISS COMPLAINT

MARGARET J. KRAVCHUK, Magistrate Judge.

Plaintiffs Tracy Abbott, her husband Lewis Abbott, her daughter Katrina Fitzsimmons, and Lewis Abbott's sister Yvonne Jones, bring this action against the Commissioner of the Maine Department of Human Services, Kevin Concannon, one of the Department's caseworkers, Jennifer Mosca, and an unnamed Maine District Court Judge. The basis for the Complaint is a state child protection action brought by the Department that resulted in an award of custody to Defendant Lewis Abbott was convicted in 1991 of an offense involving sexual contact with a seven year old child, and that there are new allegations of sexual contact between Lewis Abbott and Katrina Fitzsimmons. [Comp. at ¶ 23, 24]. Plaintiffs nonetheless argue that Concannon and Mosca's conduct in initiating the child protection action and forcing Plaintiff Tracy Abbott to choose between her child and her husband violated various of the Plaintiffs' rights under the constitution. [Comp. at ¶ 26-28]. They further argue that the statute under which the action was maintained is unconstitutional, and that the Maine District Court Judge violated Plaintiffs' rights by denying Plaintiff Jones's motion to intervene in the child protection action, and by placing custody of Katrina with the Department. [Comp. at ¶ 29-32]. They seek injunctive and monetary relief.

All Plaintiffs have filed Motions to Proceed In Forma Pauperis in this action. Plaintiffs Tracy Abbott's and Yvonne Jones's Motions are hereby GRANTED.¹ For the reasons that follow, however, I recommend that the action be DISMISSED.

The absolute immunity afforded judges in the performance of their judicial duties is well-settled. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (citing Stump v. Sparkman, 435 U.S. 349 (1978)). It has also long been the case that prosecutors benefit from absolute immunity. Id. (citing Butz v. Economou, 438 U.S. 478, 508-12 (1978)). Those courts that have addressed the issue have extended that immunity to social workers performing quasi-prosecutorial functions with respect to child protection proceedings. Eg., Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989); Vosburg v. Department of Soc. Serv., 884 F.2d 133 (4th Cir. 1989); Meyers v. Contra Costa County Dept. of Soc. Serv., 812 F.2d 1154 (9th Cir.), cert. denied, 484 U.S. 829 (1987). Accordingly, the Complaint is properly dismissed to the extent it seeks monetary damages against Defendants Maine District Court Judge and Mosca. 28 U.S.C. § 1915(e)(2)(B)(iii) (permitting summary dismissal of in forma pauperis proceedings that seek monetary damages from a defendant who is immune from such relief).

Plaintiffs' claims against Defendant Concannon are clearly an attempt to impose liability solely by virtue of his supervisory position within the Department of Human Services. There is no respondeat superior liability under section 1983. Monell v. Department of Soc. Serv., 436 U.S. 658, 691 (1978). "Liability in damages can only be imposed upon officials who were involved personally in the deprivation of constitutional rights." Ramirez v. Colon, 21 F. Supp.2d 96, 98 (D.P.R. 1997) (citing Pinto v. Nettleship, 737 F.2d 130, 132 (1st Cir. 1984)). There is no allegation in this case that Defendant Concannon had any personal involvement in the child protection action relative to Katrina Fitzsimmons. Accordingly, Plaintiffs have failed to state a claim against Defendant Concannon upon which relief may be granted, and the Complaint is therefore properly dismissed as to this Defendant. 28 U.S.C. § 1915(e...