Watterson v. Page, No. 92-1224

Decision Date09 February 1993
Docket NumberNo. 92-1224
PartiesValerie WATTERSON, et al., Plaintiffs, Appellants, v. Eileen PAGE, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Charles E. Dibble with whom Charles E. Dibble, P.C., Contoocook, NH, was on brief, for plaintiffs-appellants.

Mark H. Gardner with whom Craig F. Evans and Evans & Hermann, Manchester, NH, were on brief, for defendants-appellees Janet Seymour and Roland Smith.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The mother and grandparents of two minor children brought this action in the district court under 42 U.S.C. § 1983 and state law against a social worker and two psychologists who were involved in the State of New Hampshire's investigation into reports that the children had been sexually abused. The two psychologists moved to dismiss the complaint against themselves, and the court allowed their motion. It ruled that they had absolute immunity from suit under 42 U.S.C. § 1983 and state statutory immunity from the pendent state law claims. We affirm, although on somewhat different grounds as to the § 1983 claims.


In considering a motion to dismiss, a court must take the allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiffs. Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 988 (1st Cir.1992). Here the district court also took into account certain facts set out in public documents plaintiffs attached to an opposition they filed to the motion to dismiss. Ordinarily, of course, any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden, unless the proceeding is properly converted into one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b)(6). However, courts have made narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint. See, e.g., Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n. 3 (1st Cir.1991) (considering offering documents submitted by defendants with motion to dismiss claim of securities fraud); Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1014-15 (1st Cir.) (considering allegedly libelous article submitted by defendants with motion to dismiss), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988); Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th Cir.1986) ("[O]n a motion to dismiss a court may properly look beyond the complaint to matters of public record and doing so does not convert a Rule 12(b)(6) motion to one for summary judgment."); see also In re Wade, 969 F.2d 241, 249 & n. 12 (7th Cir.1992).

Here, all or most of the above-mentioned elements are present. Plaintiffs, moreover, introduced the documents themselves, in order to bolster their argument against defendants' motions to dismiss. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) ("[T]he problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff.... Where plaintiff has actual notice ... and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated."), cert. denied, --- U.S. ----, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); Berk v. Ascott Inv. Corp., 759 F.Supp. 245, 249 (E.D.Pa.1991) ("[W]hen a plaintiff has admitted the authenticity of a document ..., a court may consider that document in ruling on a motion under Fed.R.Civ.P. 12(b)(6).").

Like the court below, therefore, we treat the documents submitted by plaintiffs--the Abuse and Neglect Petitions, the Pittsfield District Court orders, defendant Seymour's written report to defendant Page, and Seymour's affidavit--as part of the pleadings. The facts that emerge are as follows:

Plaintiff-appellant Valerie Watterson is the natural mother of two minor girls born in 1979 and 1984 respectively ("the older child" and "the young child"; collectively "the children" or "the girls"). Plaintiff-appellant Violet Bruillard is the natural mother of Valerie and grandmother of the children. Plaintiff-appellant Paul Bruillard is Violet's husband, and stepgrandfather to the children. The girls lived with all three appellants in a house belonging to Violet and Paul in New Hampshire. The girls' natural father, who separated from Valerie in 1981, is not a party to this action.

Since birth, the older child has had only partial hearing and partial speech abilities. Beginning in 1985, when she was six years old, the child attended the Green Acres School in Manchester, New Hampshire, as part of a program for the hearing impaired. In January 1986, school officials reported unusual behavior by the child to the New Hampshire Division for Children and Youth Services (DCYS), including symptoms of neglect and possible sexual abuse. DCYS officials investigated the case and identified a fourteen-year-old boy who rode to school on the child's school bus as the probable abuser. Steps were taken to remedy the situation and the case was closed.

In March 1987, however, school officials again wrote to DCYS to report continuing symptoms of sexual abuse. Defendant Eileen Page (who is not an appellee), a state social worker assigned to the case by DCYS, filed a Petition for Neglect in the Pittsfield District Court, State of New Hampshire, on May 18, 1987. See N.H.Rev.Stat.Ann. § 169-C:7. The petition alleged that the older child was subject to neglect by Valerie Watterson, citing the reports of the Green Acres School officials that the child was describing sexual matters in detail to other children and her teacher, fondling herself and other children, and complaining about pains in her stomach and lower abdomen. The petition also alleged that the child wore dirty clothing to school, was unkempt and unwashed, and appeared to be making her own lunch of mayonnaise sandwiches.

On May 28, 1987, the Pittsfield District Court conducted a preliminary hearing and ordered that the child, then eight years of age, be referred to Concord Psychological Associates for counseling. See N.H.Rev.Stat.Ann. §§ 169-C:15, 16. The court also granted legal supervision of the child to DCYS, left placement of the child with Valerie Watterson, and ordered DCYS to facilitate the counseling sessions and "to conduct an appropriate investigation, including, but not limited to home environment study." Beginning June 11, 1987, the child attended weekly counseling sessions at Concord Psychological Associates with defendant-appellee Janet Seymour, a psychologist who was not yet certified. Seymour was supervised by defendant-appellee Roland Smith, a board-certified psychologist and director of Concord Psychological Associates.

On June 22, in lieu of a scheduled adjudicatory hearing and without a finding of neglect, DCYS and appellant Valerie Watterson entered an agreement for issuance of a consent order. See N.H.Rev.Stat.Ann. § 169-C:17. The consent order mandated that, "[The child] shall continue counselling at Concord Psychological Associates, with a report from Concord Psychological Associates filed with this court not later than forty-five days from the date of this agreement." The order also stated that DCYS would assist Valerie in transporting the child to the counseling sessions, that Valerie would submit to psychological evaluation, that DCYS would complete a home study with Valerie's cooperation, and that the court retained jurisdiction over the case.

Seymour with the aid of a sign-language interpreter conducted a total of seven psychotherapy sessions with the child from June 11 to July 22, 1987. On Seymour's initiative, the younger child, then three years old, also attended one of the sessions. On July 24, 1987, Seymour reported her findings in writing to social worker Page, stating that the older child revealed during therapy that her grandmother and mother (appellants Violet Bruillard and Valerie Watterson) repeatedly took the girls against their will to a house where the older child was required to sleep in close proximity with boys and a grown man. On one occasion, one male allegedly fondled the older child. The younger child was allegedly threatened with a large knife and subjected to fondling by a young boy while Valerie and the older child watched. The older child also reported being paid for visiting the house, being told not to reveal the visits to anyone, and eventually being informed by her mother in July 1987 (during the period of the counseling sessions) that she would no longer take the girls to the house.

On the basis of these findings, Seymour concluded that the girls' grandmother, Violet, may have been "prostituting [the older child] and probably [the young child] to a group of people, likely a sex ring." Seymour stated that Valerie, the mother, was only partially aware of the events at the house but failed to protect the children from the abuse. Seymour concluded her report by recommending that DCYS initially confront Valerie Watterson with the accusations and then, if necessary, remove the girls from appellants' home.

The same day Seymour issued her report, Page sought and obtained an ex parte order from the Pittsfield District Court for the immediate removal of both children from appellants' home, citing the information gathered by Seymour. See N.H.Rev.Stat.Ann. § 169-C:6. That evening law enforcement officials took the two girls from appellants' home and placed them in separate foster homes. On July 27, 1987, Page filed new Abuse and Neglect Petitions with regard to the two children, alleging that they were subject to sexual abuse by Valerie Watterson and Violet Bruillard. See N.H.Rev.Stat.Ann. § 169-C:7.

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