Hodorowski v. Ray

• Decision Date: 18 May 1988
• Docket Number: No. 87-1696,87-1696
• Citation: 844 F.2d 1210
• Parties: John HODOROWSKI and Jeraldine Hodorowski, et al., Plaintiffs-Appellees, v. Ann RAY, Mary Ellen Burns and Texas Department of Human Resources, Defendants- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1210

844 F.2d 1210

John HODOROWSKI and Jeraldine Hodorowski, et al., Plaintiffs-Appellees, v. Ann RAY, Mary Ellen Burns and Texas Department of Human Resources, Defendants- Appellants.

No. 87-1696.

United States Court of Appeals, Fifth Circuit.

May 18, 1988.

Rehearing Denied June 14, 1988.

Robert Ozer, Asst. Atty. Gen., Austin, Tex., for defendants-appellants.

Frederic M. Wolfram, Amarillo, Tex., for Hodorowski, et al.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, WILLIAMS, and DAVIS, Circuit Judges.

THORNBERRY, Circuit Judge:

The question presented by this appeal is whether and to what extent Texas child protective service workers are immune from liability under 42 U.S.C. Sec. 1983 for their decision to remove children from the home of their parents without a prior court order. The district court held that the workers could claim neither absolute nor qualified immunity. We reverse, holding that the workers may claim qualified, but not absolute, immunity.

I.

The following facts are not in dispute. On Thursday, November 4, 1982, at 4:15 p.m., an anonymous informant told the Texas Department of Human Services (TDHS) that John Hodorowski was chasing his two seven-year-old daughters with a chain in the front yard of their Amarillo, Texas home. The TDHS classified the information as a "type II complaint," not requiring immediate response. As a result, nothing was done until 9:00 a.m. the next day, when two TDHS investigators arrived at the Hodorowski home to investigate the complaint. The two children, who were alone, let in the investigators. The investigators saw bruises on exposed parts of one child's body, and one child told them that there were more severe bruises. Nevertheless, an investigator conceded that neither child showed an obvious need of emergency medical care. The investigators took the children to the TDHS offices, where their bruises were photographed. Later in the morning, another TDHS worker took the children to the hospital, where a doctor examined them and a policeman photographed more bruises. John Hodorowski now admits that he caused the children's bruises.

The TDHS workers never obtained a court order authorizing the removal of the Hodorowski children. The TDHS says that it attempted to obtain an emergency ex parte court order under Tex.Fam.Code Ann. Sec. 17.02 on Friday, the day it took possession of the children, but claims that the court could not schedule a hearing. The children consequently remained in the possession of the TDHS without court order until Monday, November 8, when the TDHS filed a Suit Affecting the Parent-Child Relationship. Tex.Fam.Code.Ann. Sec. 17.03(b). After a court hearing that day, the parties agreed that the children would return home, but that for thirty days the TDHS would be Managing Conservator of the children and the parents would obtain counseling and refrain from corporal punishment.

The Hodorowskis, individually and as next friends and parents of their children, filed this suit against several TDHS officials, the informant, several City of Amarillo officials, the Amarillo Police Department, and the Amarillo Hospital District. They asserted claims under 42 U.S.C. Sec. 1983 and related statutes for interference with family integrity in violation of the fourteenth amendment. All defendants filed motions to dismiss based on a stipulated statement of facts. The motion of appellants Ray and Burns, the TDHS workers, asserted the defenses of absolute and qualified immunity. The district court in a written order granted the other defendants' motions, but denied the motion of Ray and Burns. Ray and Burns immediately brought this appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (holding that a denial of a claim of qualified immunity is an appealable "final decision"). The district court has stayed proceedings during the pendency of this appeal.

II.

Although 42 U.S.C. Sec. 1983 ostensibly imposes liability on "every person" who, under color of state law, deprives another of a constitutional right, the courts have long recognized that certain individuals, as a consequence of their function, merit absolute immunity to section 1983 for actions within the scope of that function. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (state legislators); Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) (judges); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutors); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (the President); Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (witnesses). Absolute immunity is much broader than the more common qualified immunity. "Qualified immunity shields only that conduct not violative of clearly established constitutional rights of which a reasonable person would have known. Absolute immunity, in contrast, precludes any action for damages, so long as the challenged conduct falls within the scope of the immunity." Austin v. Borel, 830 F.2d 1356, 1358 (5th Cir.1987) (footnote omitted). If applied in this case, therefore, absolute immunity would preclude section 1983 liability even if the TDHS workers knew or should have known that they were violating the children's rights when they took possession of the children.

The Supreme Court's inquiry in the absolute immunity cases "was predicated upon 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, 96 S.Ct. at 990. The reason for this historical inquiry was the Court's desire to read section 1983 "in harmony with general principles of tort immunities and defenses rather than in derogation of them." Id. at 418; 96 S.Ct. at 989. Prosecutors, for example, were absolutely immune from tort liability at common law. See id. at 421-22, 96 S.Ct. at 990-91. The reasons for that common-law immunity "include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Id. at 423, 96 S.Ct. at 991. Because the Court thought that exposure to section 1983 liability raised the same concerns for prosecutors as exposure to common-law tort liability, it held that, "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under Sec. 1983." Id. at 431, 96 S.Ct. at 995. The Court was careful to note, however, that its analysis focused on the prosecutor's function, not on the prosecutor's mere status: "We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." Id. at 430-431, 96 S.Ct. at 995.

A. Prosecutorial Immunity

Officials with functions analogous to those of prosecutors have been accorded absolute immunity. In Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978), for example, the Court extended prosecutorial immunity to executive branch officials charged with initiating and conducting administrative proceedings against individuals or corporations. Because these functions were sufficiently similar to the functions of prosecutors, the officials exercising them deserved absolute liability. Id. Appellants argue first that, like such administrative officials, TDHS child protective service workers are similar enough in function to prosecutors that they should be given absolute immunity.

At least three other circuits have applied an Economou-like analysis in according absolute immunity to state child care social workers. Meyers v. Contra Costa County Department of Social Services, 812 F.2d 1154 (9th Cir.1987) held that a California social worker was absolutely immune from section 1983 liability for his actions in initiating dependency proceedings against a parent suspected of abusing his child. The court reasoned:

Although child services workers do not initiate criminal proceedings, their responsibility for bringing dependency proceedings, and their responsibility to exercise independent judgment in determining when to bring such proceedings, is not very different from the responsibility of a criminal prosecutor. The social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children. The social worker's independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit.

Id. at 1157. Also, Malachowski v. City of Keene, 787 F.2d 704 (1st Cir.1986) accorded absolute immunity to a city juvenile officer accused of filing an allegedly false delinquency petition. The court held that the "filing of the petition ... was not an 'investigative' activity, but rather an activity 'intimately associated with the judicial phase of the criminal process ... to which the reasons for absolute immunity apply with full force.' " Id. at 712 (citing Imbler, 424 U.S. at 430, 96 S.Ct. at 995). Finally, Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984) accorded absolute immunity to state social workers, state psychologists and psychiatrists, and an appointed guardian ad litem, charged with improperly beginning court proceedings in an effort to remove a child from the custody of his parents. Citing Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), the court held that the defendants, like prosecutors, were integral parts of the judicial process, and...