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December 29, 1988


The opinion of the court was delivered by: POLLAK

 Plaintiffs, Jack and Carol Fanning, brought suit under 42 U.S.C. § 1983 and § 1985 alleging that the defendants, Kevin Mason and Montgomery County Children and Youth Services ("CYS"), maliciously, negligently, and recklessly removed the Fanning's child, Nancy Fanning, from the Fanning home. In particular, plaintiffs allege that the defendants' decision to remove Nancy from her parents' custody prior to court proceedings as well as their failure to investigate adequately charges of child abuse prior to the initiation of such proceedings deprived the Fannings of their liberty without due process of law, in violation of the Fourteenth Amendment of the United States Constitution. In addition, plaintiffs allege that defendants violated their constitutional due process rights by refusing to permit Nancy to communicate with them once she had been placed in foster care.

 The case is presently before the court on defendants' motion to dismiss. *fn1" Defendant Kevin Mason, a caseworker for CYS, seeks dismissal on the ground that he is entitled to absolute immunity in his performance of the activities on which plaintiffs base their constitutional claims. In the alternative, Mr. Mason argues that he violated no clearly established right of the plaintiffs, and is therefore free from liability even under the less protective cloak of qualified immunity.

 Defendant CYS argues that the plaintiffs fail to allege a pattern or practice of unconstitutional conduct on the part of CYS. Accordingly, CYS moves to dismiss on the ground that plaintiffs seek recovery under a theory of respondeat superior, which is noncognizable under § 1983. Further, CYS contends that punitive damages are not recoverable as a matter of law against CYS.

 The Facts Alleged in the Complaint

 Plaintiffs base their claims on the following factual allegations: On April 15, 1987, Nancy Fanning, then ten years old, spoke with a minister at school and expressed a fear of going home. The minister contacted Mr. Mason at CYS for guidance in handling the child's fears. Mr. Mason, suspecting child abuse, advised the minister that he would pick up Nancy from school that day. Mr. Mason then called the Fannings, advised them of his suspicion of abuse, and stated that he would speak with Nancy and return her home by 5:00 p.m. Later, a dispatcher at CYS informed the Fannings, by phone, that CYS was going to keep Nancy overnight and that a hearing was scheduled for the following morning in the Court of Common Pleas. The Fannings informed CYS that they would be unable to attend the hearing because they did not have a lawyer or transportation to the courthouse. CYS failed to communicate this information to the court. At the hearing the next day, the minister asked for a continuance on the plaintiffs' behalf, but the court denied the continuance and placed Nancy in a foster home. During her stay in the foster home, Nancy was not permitted to contact her parents. When a teacher at school allowed Nancy to call home, Mr. Mason strongly reprimanded the teacher and advised her that Nancy was not to speak with her parents. Because Nancy's teacher allowed Nancy to contact her mother, the defendants placed Nancy in a new foster home and she was not permitted to attend school for the remainder of the week. At no time while Nancy was held in the foster home did the defendants conduct an investigation. On April 23, 1987, a detention hearing was held at which the judge ordered a psychiatric evaluation of the plaintiffs. That evaluation fully exculpated the plaintiffs, and Nancy was thereafter returned home.

 Plaintiffs' Claims Against Kevin Mason

 Plaintiffs present two claims against Kevin Mason. Their first claim relates to Mr. Mason's choice to initiate proceedings to have Nancy removed from plaintiffs' custody. Plaintiffs contend that Mr. Mason failed to investigate fully the suspected abuse of Nancy prior to initiating those proceedings. In the plaintiffs' view, minimum investigation before the custody hearing would have revealed that the charges of abuse were unfounded and would have prevented the family's physical separation and emotional trauma. Plaintiffs' second claim relates to Mr. Mason's decisions to separate Nancy from her parents prior to the custody hearing and to prevent her from contacting her parents after she had been placed in foster care. They maintain that Mr. Mason did not have sufficient reason to believe that Nancy was in imminent danger so as to justify these actions.

 Mr. Mason's Immunity Defenses

 1. Absolute Immunity

 Whether a public official can successfully plead immunity -- absolute or qualified -- in defense against a law suit arising out of the performance of official duties depends on the nature of those duties. Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976) (state prosecuting attorney acting within the scope of duties in initiating and pursuing a criminal prosecution is not amenable to suit under 42 U.S.C. § 1983). Following this functional approach to immunity, courts have held that officials acting in prosecutorial roles are absolutely immune from suit under 42 U.S.C. § 1983. See, e.g., Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978) (officials in the Department of Agriculture are absolutely immune from suits based on their decision to initiate administrative proceedings).

 Courts have generally, although not uniformly, extended this rationale to social workers, finding them absolutely immune from suit in the performance of prosecutorial functions. Compare Meyers v. Contra Costa County Dept. of Social Services, 812 F.2d 1154, 1157 (9th Cir.) (child service worker is entitled to absolute immunity in performing quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings), cert. denied, 484 U.S. 828, 108 S. Ct. 98, 98 L. Ed. 2d 59 (1987), and Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) (state employees charged with presenting neglect and delinquency petitions to state courts are absolutely immune from suit) with Doe v. County of Suffolk, 494 F. Supp. 179 (E.D.N.Y. 1980) (analogizing social welfare worker's function to that of policeman rather than prosecutor and limiting such worker's immunity to qualified rather than absolute immunity) and Rinderer v. Delaware County Children and Youth Services, 703 F. Supp. 358, 361 (E.D. Pa. 1987) (holding that "social workers, unlike prosecutors, do not enjoy absolute immunity").

 On balance, I conclude that absolute immunity should cloak social workers with respect to their initiation of child abuse proceedings. That critical official function is "sufficiently analogous" to the role of prosecutors in initiating criminal proceedings to warrant the same treatment. Mazor v. Shelton, 637 F. Supp. 330, 334 (N.D. Cal. 1986). There may indeed be instances in which incompetent or overzealous social workers could subject innocent individuals to the difficulties and trauma of unwarranted court proceedings. But the potential cost to society of policing such errors through damage actions directed against the offending social workers would be very high. If social workers, in deciding whether to file a petition charging child abuse or neglect, "'were forced to execute their duties with one eye constantly regarding the possibility of incurring liability for their conduct,'" the broad "public interest in protecting abused or neglected children" would be disserved. Mazor, 637 F. Supp. at 335 (quoting Whelehan v. County of Monroe, 558 F. Supp. 1093, 1098 (W.D.N.Y. 1983)). Certainly, society's interest in having social workers perform their prosecutorial functions independently is no less than society's interest in preserving the independence of criminal prosecutors. Accordingly, the same shield of absolute immunity extended to prosecutors in Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), should be available to social workers acting in their prosecutorial capacity.

 Based on the foregoing analysis, I find Mr. Mason to be absolutely immune from suit for his decision to initiate dependency hearings on behalf of Nancy Fanning. Plaintiffs' claims against Mr. Mason, insofar as they allege insufficient investigation prior to ...

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