Date: 05-26-2018

Case Style:

Case Number: 17-3435

Judge: Black

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Northern District of Ohio (Cuyahoga County)

Plaintiff's Attorney: Deborah L. Mack, Jennifer K. Rinkes, Paul W. Vincent and Laura L. Mills

Defendant's Attorney: Amanda M. Gatti, John A. Neville, Stacy V. Pollock, Todd M. Raskin and Roy A. Hulme

Description: Defendant Holly Hartman (“Hartman”) appeals from the
judgment entered by the district court denying her motion for summary judgment on Count Four
of Plaintiffs’ complaint. For the reasons set forth below, we REVERSE the judgment of the
district court and REMAND the case to the district court for proceedings consistent with this
opinion.
I. BACKGROUND
This case arises out of the 2011 removal of minor Plaintiff/Appellee O.B. from the home
of her father, Plaintiff/Appellee Monty Bauch (“Bauch”), effectuated by Richland County
* The Honorable Timothy S. Black, United States District Judge for the Southern District of
Ohio, sitting by designation.
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Children Services (“RCCS”). O.B. was removed on Jan. 20, 2011 pursuant to an ex parte
emergency order issued by an Ohio magistrate under Ohio Revised Code § 2151.31(D) and (E)
and Ohio Juvenile Rule 6(B).1 Pursuant to statute, a hearing was held the next day. Upon
consideration of the evidence presented at the hearing, the juvenile court found that there was
probable cause for the issuance of the emergency order, that RCCS had made reasonable efforts
to prevent O.B.’s removal, and that it would be “contrary to the child’s best interest and welfare”
to continue living with Bauch at that time. Over the next two years, Bauch worked with RCCS
and the juvenile court toward the completion of his case plan, eventually regaining permanent
custody of O.B. in December 2013.
Bauch filed suit in federal district court a year after he regained custody of O.B. Bauch’s
second amended complaint stated fourteen causes of action. The only count relevant to this
appeal is Count Four, which alleges that the individual defendants named in the complaint
conspired to interfere with and violate the civil rights of the Plaintiffs, as set forth
under 42 U.S.C. § 1983, including violation of the Plaintiffs’ rights found in the
First, Fourth and Fourteenth Amendments of the United States Constitution, by,
but not limited to, acting and conspiring to force Plaintiff Mr. Bauch to relent to
their demands, by retaliating against Plaintiffs for the exercise of his
constitutional freedoms and by removing, detaining and continuing to detain, the
person and/or physical and legal custody of minors [sic] Plaintiff O.B. from the
care, custody, and control of her parents, without proper or just cause and/or
authority; by the use of intimidation, coercion and duress, and by using false and
fabricated evidence and testimony, and failing to provide exculpatory evidence,
during the investigation and initiation and pendency of the abuse and dependency
proceedings, including the application for a valid warrant for the removal of
O.B., in violation of, and interference with, the Plaintiffs’ constitutional liberty
interests under the First Amendment, their fundamental rights to familial
1 Section 2151.31(D) provides that “a juvenile judge or a designated referee may grant by
telephone an ex parte emergency order authorizing the taking of [a] child into custody if there is
probable cause to believe that” certain specified conditions are present. Section 2151.31(E) and
Ohio Juvenile Rule of Procedure 6(B) mandate that “the court shall hold a hearing to determine
whether there is probable cause for the emergency order . . . before the end of the next business
day” and no later than seventy-two hours after such an order is issued.
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association and due process under the Fourteenth Amendment, and in violation of
Fourth Amendment rights against unreasonable searches and seizures.
The only Defendant relevant to this appeal is Hartman, a licensed social worker and
caseworker supervisor employed by RCCS, who supervised the initial RCCS investigation of
Bauch. Hartman moved to secure the initial emergency ex parte custody order from the
magistrate on Jan. 20, 2011. In so doing, Hartman prepared an affidavit in support of emergency
custody detailing the reasons RCCS was seeking removal. In that affidavit, Hartman stated that
O.B. was an “abused” child under Ohio Rev. Code § 2151, that reasonable efforts had been made
to avoid removal, and that removal was in O.B.’s best interest. Bauch alleges that Hartman
knowingly omitted pertinent information and included false information when completing the
affidavit, leading to O.B.’s improper removal and the denial of Plaintiffs’ constitutional rights.
All parties filed motions for summary judgment before the district court. Hartman argued
that the claims against her in her individual capacity were barred by both absolute immunity and
qualified immunity. The district court rejected these immunity claims and denied Hartman
summary judgment on Count Four. First, the district court stated, without further explanation,
that Hartman was not shielded by absolute immunity for the act of vouching for the truth of the
facts she presented in her affidavit in support of emergency custody. Second, the district court
determined that qualified immunity was inappropriate because a jury had to decide whether
Hartman’s “omissions and rushed misrepresentations . . . would weigh significantly into the
magistrate’s decision to issue an order removing a child . . . and whether Hartman . . . had the
intention to mislead[.]”
II. STANDARD OF REVIEW
The only question before this Court on appeal is whether the district court erred by
denying Hartman’s claims of absolute and qualified immunity. “Whether a defendant is entitled
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to absolute or qualified immunity from liability under 42 U.S.C. § 1983 is a legal question that
this Court reviews de novo.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009).2
III. ANALYSIS
A. Absolute Immunity
Hartman argues that she is entitled to absolute immunity from prosecution resulting from
her statements in the affidavit in support of emergency custody. In certain circumstances, social
workers are “entitled to absolute immunity.” Holloway v. Brush, 220 F.3d 767, 774 (6th Cir.
2000) (en banc). “The scope of this immunity is akin to the scope of absolute prosecutorial
immunity, which applies to conduct ‘intimately associated with the judicial phase of the criminal
process.’” Pittman v. Cuyahoga Cty. Dep’t. of Children & Family Servs., 640 F.3d 716, 724 (6th
Cir. 2011) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Accordingly, “social
workers are absolutely immune only when they are acting in their capacity as legal advocates—
initiating court actions or testifying under oath—not when they are performing administrative,
investigative, or other functions.” Holloway, 220 F.3d at 775. The central dispute over absolute
immunity therefore concerns whether Hartman was acting in her capacity as a legal advocate
when she completed and submitted her affidavit in support of emergency custody. As the party
seeking absolute immunity, Hartman has the burden of demonstrating that the immunity is
justified for the function being challenged. Moldowan, 578 F.3d at 376.
2 In addition to Defendants’ appeal, currently pending before this Court is Plaintiffs’ motion to
dismiss, which argues that the district court’s denial of immunity to Hartman was not a “final
decision” subject to appeal. However, the Court in Ortiz v. Jordan explained that “immediate
appeal from the denial of summary judgment on a qualified immunity plea is available when the
appeal presents a ‘purely legal issue,’ illustratively, the determination of ‘what law was “clearly
established”’ at the time the defendant acted[.]” Ortiz v. Jordan, 562 U.S. 180, 188 (2011)
(quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)). The question of whether Hartman is
entitled to absolute immunity is purely a legal one, and we accordingly deny Plaintiffs’ motion to
dismiss.
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The district court held that Hartman was not acting as a legal advocate in completing the
affidavit in support of emergency custody, relying primarily on this Court’s previous
unpublished decision in Young v. Vega, 574 F. App’x 684, 689 (6th Cir. 2014). In Young, a
father filed a § 1983 action against a Tennessee social worker alleging that the social worker
violated the plaintiff’s Fourteenth Amendment due process rights by including false statements
in a petition for the immediate removal of a child and causing the juvenile court to issue an ex
parte removal order without probable cause. Id. at 687, 691. This Court granted the social
worker qualified immunity but denied absolute immunity. Id. at 689, 694. In reaching its
conclusion, this Court determined that the social worker was not entitled to absolute immunity
for “the act of personally vouching for the truth of the facts that provide the evidentiary support
for a finding of probable cause.” Id. at 689.
This Court reached its conclusion in Young by applying the Supreme Court’s reasoning in
Kalina v. Fletcher, 522 U.S. 118 (1997), a case involving a prosecutor’s actions, to the social
worker context. 574 F. App’x at 689.3 In Kalina, a prosecutor contemporaneously filed three
documents in a criminal prosecution––an information charging respondent with burglary, a
motion for an arrest warrant, and an affidavit supporting the issuance of the arrest warrant. 522
U.S. at 121. The Court granted absolute immunity for the first two documents, but denied
absolute immunity for the affidavit that was given in support of the arrest warrant because the
prosecutor was not functioning as “an advocate for the State” when she submitted that affidavit.
Id. at 126 (citation omitted). Therefore, the prosecutor had stepped into the role of a fact witness
by attesting to the truth of facts supporting the warrant. Id. at 130. Thus, Kalina confirms that
officials who serve as complaining witnesses receive qualified, not absolute, immunity. See also
3 This Court looks to the scope of prosecutorial immunity to determine the scope of social
worker immunity. Holloway, 220 F.3d at 774.
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Malley v. Briggs, 475 U.S. 335, 340 (1986) (stating that “complaining witnesses were not
absolutely immune at common law”); Vakilian v. Shaw, 335 F.3d 509, 513 (6th Cir. 2003) (an
investigator can be held liable under § 1983 for making material false statements either
knowingly or recklessly to establish probable cause for arrest). Bauch argues that Hartman’s
affidavit in support of emergency custody is analogous to the affidavits at issue in Kalina,
Malley, and Vakilian because, for purposes of the affidavit, Hartman was acting not as an
advocate but as a witness testifying to the truth of her factual assertions regarding Bauch and
O.B.
However, multiple decisions of this Court, issued after both Young and Kalina were
decided, have held in situations analogous to this case that the submission of an affidavit that
triggers judicial child-removal proceedings is in fact an act of legal advocacy by social workers.
In Barber v. Miller, 809 F.3d 840 (6th Cir. 2015), a father contended that a social worker
included falsehoods and misrepresentations in a petition for protective custody in order to obtain
an ex parte order for immediate removal pending a hearing.4 Id. at 843. This Court granted the
social worker absolute immunity against those allegations because the social worker “offered his
factual assessment in his capacity as a legal advocate initiating a child-custody proceeding in
family court.” Id. at 843–44. In so doing, this Court held that “[a] social worker acts as a legal
advocate when initiating court proceedings, filing child-abuse complaints, and testifying under
oath,” and that “this absolute immunity holds, even under allegations that the social worker
intentionally misrepresented facts to the family court.” Id. at 844; see also Schattilly v.
4 The social worker sought a protective custody order pursuant to Mich. Comp. Laws
§§ 712A.14b and 722.638. Barber, 809 F.3d at 843. Mich. Comp. Laws § 712A.14b, similar to
Ohio Rev. Code § 2151.31(D), authorizes “a judge or referee,” “[u]pon receipt electronically or
otherwise of a petition or affidavit of facts,” to “issue a written ex parte order . . . authorizing the
department of human services to immediately take a child into protective custody and place the
child pending the preliminary hearing if the court finds” that the specified conditions are present.
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Daugharty, 656 F. App’x 123, 135 (6th Cir. 2016) (“[Absolute] immunity includes social
workers’ statements in complaints or affidavits that they submit to courts—even if the statements
are false or misleading.” (citing Pittman, 640 F.3d at 724–25)).
The district court did not address how Barber or Schattilly affect the analysis of absolute
immunity in the present case. We concur with the analysis of these two cases. Like the social
worker’s petition in Barber, Hartman’s affidavit offered her factual assessment as a legal
advocate initiating a child-custody proceeding. See Barber, 809 F.3d at 843–44. Unlike a police
officer’s application for a search warrant, Hartman’s affidavit for emergency custody necessarily
triggered a subsequent custody proceeding in court pursuant to Ohio law. The Ohio Revised
Code states that
If a judge or referee pursuant to division (D) of this section issues an ex
parte emergency order for taking a child into custody, the court shall hold a
hearing to determine whether there is probable cause for the emergency order.
The hearing shall be held before the end of the next business day after the day on
which the emergency order is issued, except that it shall not be held later than
seventy-two hours after the emergency order is issued.
Ohio Rev. Code § 2151.31(E) (emphasis added). Accordingly, Hartman’s actions were more
analogous to a prosecutor’s decision to prosecute than a police officer’s testifying by affidavit in
support of probable cause. This case is also distinguishable from the facts of Kalina—although
the affidavit submitted by the prosecutor in Kalina was “filed as part of an ex parte process prior
to the indictment that begins the criminal case,” Hartman’s affidavit in support of emergency
custody was “an undeniable part of the judicial process” because “the [affidavit] initiated the
[removal] action” and subsequent hearing. Gray v. Poole, 275 F.3d 1113, 1118 (D.C. Cir. 2002).
Absolute immunity represents “a balance between . . . evils,” as “it has been thought in
the end better to leave unredressed the wrongs done by dishonest officers than to subject those
who try to do their duty to the constant dread of retaliation.” Gregoire v. Biddle, 177 F.2d 579,
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581 (2d Cir. 1949). Weighing this balance in the case of child advocates such as Hartman
demonstrates the clear need to provide that same heightened protection to children’s services
advocates charged with determining whether to initiate child-removal proceedings. See Pittman,
640 F.3d at 725–26 (explaining the necessity of extending absolute immunity to social workers).
Nearly every instance in which a children’s services advocate must act to remove a child from
his or her home promises to be contentious and emotionally charged. If absolute immunity were
denied to these advocates, a flood of litigation against individual advocates would follow as
parents challenged the factual assertions of each affidavit in support of emergency custody. See
Barber, 809 F.3d at 843 (explaining that absolute immunity is necessary to “enable[] social
workers to ‘protect the health and well-being of the children . . . without the worry of
intimidation and harassment from dissatisfied parents’” (citation omitted)). This in turn could
negatively affect children’s services in the future, as advocates, fearing individual reprisal, might
fail to act expediently in situations where a child’s welfare is at risk. Just as absolute immunity
is essential for prosecutors engaged in legal advocacy because “any lesser degree of immunity
could impair the judicial process itself,” Malley, 475 U.S. at 342, that same immunity must be
given to a children’s services advocate as the initiator of home-removal actions; any lesser
protection would jeopardize the essential process that has been established to provide protection
to those children who need it most.
Accordingly, Hartman is entitled to absolute immunity for claims related to her affidavit
in support of emergency custody.
B. Qualified Immunity
We have held that Defendant/Appellant Holly Hartman is entitled to absolute immunity
from claims arising from her affidavit in support of emergency custody. This defeats all
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Plaintiffs’ claims against Hartman that are before us on appeal. Accordingly, we need not, and
shall not, review the district court’s determination regarding Hartman’s assertion that she is also
entitled to qualified immunity from Plaintiffs’ claims.

Outcome: As this Court properly has jurisdiction over Defendants’ appeal, Plaintiffs’ motion to
dismiss the appeal is DENIED. Furthermore, we conclude that the district court erred in holding
that Defendant/Appellant Holly Hartman was not entitled to absolute immunity in this case. We
therefore REVERSE the judgment of the district court and REMAND this case to the district
court for proceedings consistent with this opinion.

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Defendant's Experts:

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