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May 22, 1979


The opinion of the court was delivered by: HUYETT


Plaintiff brought this civil rights action alleging deprivation, under color of state law, of rights secured to him by the United States Constitution, the Social Security Act, and regulations of the Pennsylvania Department of Public Welfare. Defendants William Schlacter, individually and in his official capacity as Executive Director of Montgomery County Child Welfare Service, A. Russell Parkhouse, Frank W. Jenkins, and Lawrence H. Curry, individually and in their official capacities as County Commissioners of Montgomery County, and Beverly Levine, Theodore Goldfleece, and Peggy Miro, individually and in their official capacities as caseworkers with the Montgomery County Child Welfare Service, have moved for summary judgment. The defendants' motion is based on judicial or quasi-judicial immunity and a qualified good faith immunity.

 As the Supreme Court held in Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), the common law immunity of judges was not abrogated by 42 U.S.C. § 1983. Defendants in this case, however, do not hold positions which can be classified as "judicial" in any ordinary sense of the word. Nor are they court officials. Cf. Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir.), Cert. denied, 396 U.S. 941, 90 S. Ct. 378, 24 L. Ed. 2d 244 (1969) (prothonotary acting pursuant to court order is immune to suit under § 1983). Therefore, in order to prevail on this theory, defendants must establish that they were acting pursuant to a court directive. Id. at 460. Many courts have recognized that persons in non-judicial positions may be cloaked with immunity when performing ministerial functions under a court directive. See, e.g., Waits v. McGowan, 516 F.2d 203, 206-07 n. 6 (3d Cir. 1975) (collecting cases); Dunn v. Gazzola, 216 F.2d 709 (1st Cir. 1954).

 Defendants state that they "received custody of the plaintiff, Allen Cameron, pursuant to a Court Order dated July 3, 1974 and subsequent Orders dated September 16, 1974, December 20, 1974 and February 20, 1975 and that therefore (they) are entitled to the same or similar immunities enjoyed by judicial and quasi-judicial officials." Defendants' motion for summary judgment at P 1. If plaintiff's complaint were concerned solely with the fact that defendants maintained custody of him, defendants' position would be analogous to that of the sheriff and jailer in Fowler v. Alexander, 478 F.2d 694 (4th Cir. 1973). In that case the sheriff and jailer confined the plaintiff temporarily in conformity with a court order. The Fourth Circuit held that they were therefore absolutely immune from damages. In the instant action, however, plaintiff's complaint goes far beyond the mere fact that he was maintained in custody by the defendants. Plaintiff's complaint is not restricted to the fact of his confinement, but alleges that he was confined without "adequate care, treatment, and services to enable him to return home to his mother," complaint P 47, that he was prohibited from visiting with his mother, Id. P 49, that he was advised of neither his right to counsel nor his right to have his placement reviewed by a court, Id. P 50, that defendants failed to confine him in the least restrictive alternative, Id. P 51, and that defendants acted wantonly and negligently in disregard of his mental and physical health, Id. P 52.

 These acts and omissions that plaintiff has alleged on the part of defendants are not the type of ministerial acts to which a quasi-judicial immunity has been held to attach. See Waits v. McGowan, supra, 516 F.2d at 206; Lockhart v. Hoenstine, supra, 411 F.2d at 460. They are, rather, more closely analogous to the types of issues that arise in connection with the management of a juvenile detention center. See Santiago v. City of Philadelphia, 435 F. Supp. 136, 146-47 (E.D.Pa.1977); Thompson v. Montemuro, 383 F. Supp. 1200, 1206-07 (E.D.Pa.1974). In those cases, judicial or quasi-judicial immunity was denied for discretionary or administrative functions, even though the plaintiffs' custody was pursuant to a court order.

 In Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), the Supreme Court stated that


a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.

 Id. at 247-48, 94 S. Ct. at 1692. Because of the nature of defendants' duties, and the allegations of the complaint, we believe that the immunity of which defendants may avail themselves is a qualified good-faith immunity rather than an absolute judicial or quasi-judicial immunity. Their actions in administering the custody of plaintiff required them to exercise discretion unlike an official performing a purely ministerial function such as execution of a writ in connection with an eminent domain proceeding. See Gigliotti v. Redevelopment Authority of New Castle, 362 F. Supp. 764 (W.D.Pa.1973), Aff'd, 492 F.2d 1238 (3d Cir. 1974). On this motion for summary judgment, any doubt as to the nature of defendants' duties must be resolved in favor of plaintiff. Harold Friedman, Inc. v. Thorofare Markets Inc., 587 F.2d 127 at 131 (3d Cir. 1978). We therefore hold that summary judgment may not be granted in this case in favor of defendants based upon their theory of judicial or quasi-judicial immunity.

 We therefore turn to defendants' argument that they are entitled to summary judgment based on a qualified good-faith immunity. Summary judgment on this basis may be granted if there was no established right that has allegedly been violated. Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978). We agree with Judge Luongo, however, that when defendants seek summary judgment based on this aspect of immunity, they bear the burden of showing, by sustained argument, that they are entitled to judgment as a matter of law. See Smith v. Robinson, 456 F. Supp. 449, 456-57 (E.D.Pa.1978). We do not believe that defendants have met their burden in this respect. This failure is due, in part, to the fact that defendants have not subjected plaintiff's claims and theories to rigorous analysis. Instead, defendants have approached this case with broad-brushed theories, such as legislative immunity, judicial immunity, and good faith immunity, without discussing point by point plaintiff's theories, the legal authority in support thereof (or the lack of that authority), whether a claim has been stated by a specific count, and whether a specific right was or was not clearly established. We believe that this type of careful examination of the issues in this case should occur before trial, but we do not believe that it has occurred to date. Defendants' motion based on good-faith immunity is a step in this direction, but, for the most part, it is a general argument that fails to meet the burden of a party moving for summary judgment. We therefore deny the motion based on good-faith immunity without prejudice. Defendants may, if they so desire, renew their motion in this respect. That motion should be accompanied by a memorandum of law that addresses seriatim the rights that plaintiff asserts, and whether or not those rights were established at the relevant times, so that the question whether defendants are entitled to summary judgment on that ground can be squarely confronted.


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