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Brown v. Newberger, 1st Cir. (2002)
Brown v. Newberger, 1st Cir. (2002)
No. 01-2410
THEODORE S. BROWN AND JAMES LINNEHAN, ET AL.,
Plaintiffs, Appellants,
v.
Defendants, Appellees.
Before
COFFIN, Senior Circuit Judge. These consolidated appeals follow on the efforts
of plaintiffs-appellants, Theodore Brown and James Linnehan, to acquire rights to
visit their children. The children had been taken by their mothers during pending
divorce and custody proceedings from Maine to Massachusetts, where the mothers
obtained court orders barring the fathers from visitation on the basis of findings of
sexual abuse.
Brown and Linnehan joined in filing a suit in the United States District Court for the
District of Massachusetts against a dozen defendants, including the Trial Court of
Massachusetts, the Massachusetts Department of Social Services (DSS), Children's
Hospital, several doctors, and mental health and social workers.
The complaint asserted twelve claims against various defendants. Six invoke federal
law: Count Two (Fourteenth Amendment, interference with parental rights); Counts
Three and Four (Civil Rights Act, 42 U.S.C. 1983); Count Eight (Civil RICO, 42
U.S.C. 1961-68); and Counts Five and Six (unspecified federal and civil rights
laws). Six claims assert violations of state laws: Count One (negligence); Count
Seven (defamation); Count Nine (breach of contract); Counts Ten and Eleven
(negligent and intentional infliction of emotional distress); and Count Twelve
(Chapter 93A). The district court dismissed the federal-law claims with prejudice
and the state-law claims without prejudice.
I. Factual Background
Brown's complaint alleged that in 1996 his ex-wife hired defendant Eli Newberger,
M.D., a pediatrician and Director of the Family Development Program of Children's
Hospital, to conduct a sexual abuse evaluation of her children. This took place over a
period in excess of seven months. Newberger's team included defendant Amy
Tischelman, M.D., who interviewed Brown's children. Their joint report was
submitted to Brown's ex-wife and was ultimately given to the court, which then
denied visitation rights to Brown.
Linnehan's case presents a more complex series of events. In 1988, defendant Kern,
a social worker employed by New Bedford Child and Family Services, met with the
mother of Linnehan's child Brenden, and with Brenden. Developing a concern over
the possibility of child abuse, Kern deemed herself a "mandatory reporter" under
Massachusetts law, and submitted a report to DSS. This led to a court-ordered sexual
abuse evaluation of Brenden by the Collis Center. Defendant Sandra Fyfe, a Collis
Center employee, performed the evaluation. A second court-ordered evaluation was
also done in 1988 by defendant Christopher Salt, who submitted a written report to
the court and updated it in 1992. Also in 1992, at the suggestion of Brenden's
mother's attorney, defendant Newberger conducted an assessment spanning several
months, and ultimately submitted his report to the court. In 1993, both Linnehan and
Brenden's mother agreed that defendant McCarthy would serve as Brenden's
therapist and would submit reports to the Probation Department of the court every
six months. The period of such evaluation extended into 1999. During all this time,
Linnehan continued to be denied visitation rights.
II. Discussion
As we review the three voluminous volumes of appendices containing some but not
all of the submissions by all the parties, the thirty-seven page opinion of the district
court, and the multiple appellate briefs, we cannot escape the conclusion that all has
been said that can be said. At the present juncture, this litigation has reached the
point where dedication and commitment have outrun legal merit. Without intending
any disrespect, therefore, we shall briefly indicate our reasons for affirming, without
implying that they are the only grounds available.
A. Claims against the Massachusetts Trial Court and DSS
The claims under 42 U.S.C. 1983 fail because a state and its agencies are not
"persons." Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). The claims
based on the Fourteenth Amendment fail because there has been no unequivocal
abrogation of the Commonwealth's Eleventh Amendment immunity. See Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 55-56 (1996); Alabama v. Pugh, 438 U.S. 781,
782 (1978). Appellants having sued only state agencies, not officials, there is no
basis for invoking Ex parte Young, 209 U.S. 123 (1908). Nor is there any basis for
claims that the state agencies violated state law. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 119-21 (1984).
On appeal, appellants launch a strenuous argument that Massachusetts has, from its
beginning, waived its immunity from citizen suits through Articles 5 and 11 of its
Declaration of Rights. Article 5 reads in part that "the several magistrates and
officers of government . . . are at all times accountable to [the people]." Article 11
proclaims merely that individuals "ought to find a certain remedy" for all injuries or
wrongs.
We are not certain that this argument, although raised in plaintiffs' opposition to the
state defendants' motion for judgment on the pleadings, continued to be pursued.
Appellees Fyfe and Salt contend that it was not raised before the district court. The
court in its opinion did not allude to it. In any event, the argument is transparently
flawed. Article 5 does not speak of either the Commonwealth or its agencies as
entities; the reference is to individuals. The language is so far removed from
unequivocally indicating that citizens have a right to sue the state in state or federal
court that it is not surprising that appellants have found no reference to the claim in
any reported cases and concede that Article 5 is "alive, albeit ignored." The
argument fails.
B. Civil RICO claims against all defendants
These claims were not argued in appellants' main brief on appeal, appearing only in
a reply brief. As we have held in the past, an issue raised only in a reply brief is
forfeited. See, e.g., County Motors v. Gen. Motors Corp., 278 F.3d 40, 43 (1st Cir.
2002); N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45 (1st Cir. 2001). In any
event, as the district court noted, the references to telephone conversations and uses
of the mails fail to meet the particularity requirements of Fed. R. Civ. P. 9(b). See
Ahmed v. Rosenblatt, 118 F.3d 886 (1st Cir. 1997).
C. Claims against Children's Hospital, Newberger,
Tischelman, Kern, and McCarthy
We dispose of these claims with a common holding that because all of these
defendants were private actors, they cannot be subjected to Section 1983 liability as
having acted under color of state law. We apply the familiar test first articulated in
Ponce v. Basketball Fed'n of Puerto Rico, 760 F.2d 375 (1st Cir. 1985), to determine
if one can be considered a state actor: "(1) whether there was an elaborate financial
McCarthy's case, there is not even a statutory framework for such action, it being the
product of agreement between private parties. Nor are any of the other determinants
of state action implicated.
D. Claims against Salt and Fyfe
Appellants pose several arguments concerning these claims. The first is that neither
Salt nor Fyfe was properly appointed. In the case of Salt, who appellants alleged was
appointed by the court as an evaluator, the argument is that he was improperly
appointed under Mass. Gen. Laws ch. 119, 21, 24, which require the
appointee to be qualified as an expert. Salt, the argument continues, was never so
qualified. In Fyfe's case, the argument is that it was her employer, Collis Center, and
not Fyfe, who was court appointed.
The essential fact is that both defendants were operating at the request of the court.
They submitted their reports to the court, which accepted them, and considered them
in its actions. We agree with the district court which found that "Salt was acting in
close association with the judicial process" and that "Fyfe was indisputably acting to
carry out a court order." In Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993), we
refused to consider a claim that a psychologist had investigated appellant's family
"without express court authority and direction to do so," observing that "[t]he right
to family integrity clearly does not include a constitutional right to be free from child
abuse investigations." Id. Were collateral and retrospective attacks on technical
defects of court appointments permitted, the court's work in an already difficult
litigation field would often be undone, with consequent uncertainty, delay, and
frustration.
Viewing the functions performed by Salt and Fyfe, as we are required to do,
Cleavenger v. Saxner, 474 U.S. 193, 201 (1985), we conclude that the information
gathering, reporting, and recommending tasks of both are similar in nature and
purpose to those of a guardian ad litem and qualify to confer absolute quasi-judicial
immunity. See Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989). Another argument
made against both defendants is that they sacrificed whatever immunity they may
have had by their actions violating plaintiffs' constitutional rights. Here, too,
however, Cok makes a relevant comment about the nature of judicial immunity and
therefore quasi-judicial immunity. We stated there that the entitlement is to
"absolute immunity from civil liability for any normal and routine judicial act. . . .
This immunity applies no matter how erroneous the act may have been, how
injurious its consequences, how informal the proceeding, or how malicious the
motive." Id. at 2. We therefore hold that Salt and Fyfe are entitled to the protective
cloak of absolute quasi-judicial immunity.
E. Other Issues