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July 14, 1980

JANE DOE,* Individually and as Mother and Natural Guardian of MARY DOE * , an Infant, Plaintiff,

The opinion of the court was delivered by: PRATT




 That is the central question presented by defendants' motion for dismissal or summary judgment in this 42 USC § 1983 action.

 Defendant Altman *fn1" claims to be entitled to the same absolute immunity accorded a prosecutor under Imbler v. Pachtman, 424 US 409 (1976), and Butz v. Economou, 438 US 478 (1978), for having filed and prosecuted a petition in Suffolk County Family Court charging plaintiff with "neglect of her daughter" under Article 10 of New York State's Family Court Act. Plaintiff disagrees and argues that the only immunity available to defendant Altman is the qualified good faith defense defined by the Supreme Court in Scheuer v. Rhodes, 416 US 232 (1974), and Wood v. Strickland, 420 US 308 (1975).

 The courts, pushed by grave concerns of public policy and the impetus of common law tort doctrine, have recognized immunities in a variety of § 1983 suits, although such immunities are without support in either the language or the history of the statute. Absolute immunity, that is, freedom from damage liability for acts done within the scope of a public employee's proper function, regardless of motive or intent, has been accorded to state legislators, Tenney v. Brandhove, 341 US 367 (1951); regional legislators of a planning district, Lake Country Estates v. Tahoe Regional Planning Agency, 440 US 391 (1979); judges, Stump v. Sparkman, 435 US 340 (1978); and prosecutors "in initiating a prosecution and in presenting the State's case", Imbler v. Pachtman, supra, 424 US at 431. Most other public officials may claim a qualified, good faith immunity.

 Absolute immunity is intended to protect defendants from the burden even of defending a lawsuit. In the Second Circuit at least, the principle has been extended to protect against equitable as well as damage actions. State Distributors, Ltd. v. Marino, No. 79-7448, slip op. (CA2 January 2, 1980). A more limited protection against damages liability for their constitutional torts is accorded most other public officials by the principle of qualified immunity, which provides that a public officer will not be held liable in damages for the constitutional wrongs he commits so long as he meets both the subjective and objective tests of good faith, that is, he must have believed in his own mind that his conduct was lawful, and his belief must have been reasonable in the light of settled principles of constitutional law. Scheuer v. Rhodes, supra; Wood v. Strickland, supra.

 Plaintiff concedes that defendant Altman, charged with unconstitutional conduct in her capacity as a social worker, is entitled to assert a defense of good faith immunity. *fn2" The principal issue, therefore, is whether defendant Altman is absolutely immune from the liability plaintiff seeks to impose. In other words, even assuming that the social worker maliciously instituted the child neglect proceeding against plaintiff for the purpose of having custody of her daughter temporarily taken from her, would the social worker, despite her lack of good faith, be entitled to the shield of absolute immunity?

 Defendant Altman claims that, like a prosecutor, she began a prosecution and presented evidence against plaintiff, and, therefore, like a prosecutor she should be absolutely immunized from damage liability. Plaintiff urges that the position of defendant Altman is more akin to that of a police officer who is not granted a prosecutor's discretion in instituting a criminal prosecution or in presenting evidence at trial, but instead is obligated by his office to report, prosecute, and present evidence on all violations of law which come to his attention.

 Butz v. Economou, supra, teaches that the type of immunity available to this defendant turns not upon the title of her office, but upon the function she was performing when she committed the alleged unconstitutional acts. *fn3"

 What function, then, was defendant Altman performing when she allegedly violated plaintiff's constitutional right to be free of malicious prosecution and her right to maintain custody of her own child? Defendant Altman entered the picture when the District Attorney referred a felony proceeding to plaintiff's employer, the Suffolk County Department of Social Services, Child Protective Services Unit. The felony proceeding had been brought against plaintiff's husband based on plaintiff's complaint to the police that her husband had sexually molested their daughter on the night of February 4, 1977. The district attorney referred the proceeding to the Child Protective Services Unit, which immediately worked out an agreement whereby the father would not meet with his daughter unless another adult was present.

 On April 4, 1977, defend nt Altman, acting for the Child Protective Services Unit, filed Family Court petitions against the husband and plaintiff, for child abuse and child neglect. Defendant Altman at the same time moved the Family Court for a preliminary and temporary order granting temporary custody of plaintiff's daughter to the Commissioner of the Department of Social Services.

 On April 8, 1977 a hearing was held before a family court judge, who granted the motion for a temporary custody order and scheduled trial for May 11, 1977. The daughter was removed from her parents' home and placed in foster care. On May 11, 1977, the County Attorney requested and received an adjournment of the trial to June 27, 1977. At trial on June 27, 1977, the County Attorney withdrew the petition against plaintiff. The judge ordered that the daughter be returned to plaintiff as soon as the husband moved out of the family home, and further ordered plaintiff, the husband and the daughter to undergo psychiatric therapy. The daughter was returned to her mother the same day, June 27, 1977.

 On February 3, 1978, the same family court judge found the daughter to be an "abused child" under Article 10 of the Family Court Act, allowed the husband to return to the family home, and directed the Department of Social Services to supervise the family household. Such supervision was provided until ...

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