DocketNumber： 92-1224
Filed Date： 2/26/1993
Status： Precedential
Modified Date： 9/21/2015
February 9, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1224
VALERIE WATTERSON, ET AL.,
Plaintiffs, Appellants,
v.
EILEEN PAGE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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____________________
Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Charles E. Dibble with whom Charles E. Dibble, P.C. was on brief
__________________ ________________________
for appellants.
Mark H. Gardner with whom Craig F. Evans and Evans & Hermann were
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on brief for appellees Janet Seymour and Roland Smith.
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February 9, 1993
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CAMPBELL, Senior Circuit Judge. The mother and
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grandparents of two minor children brought this action in the
district court under 42 U.S.C. 1983 and state law against a
social worker and two psychologists who were involved in the
State of New Hampshire's investigation into reports that the
children had been sexually abused. The two psychologists
moved to dismiss the complaint against themselves, and the
court allowed their motion. It ruled that they had absolute
immunity from suit under 42 U.S.C. 1983 and state statutory
immunity from the pendent state law claims. We affirm,
although on somewhat different grounds as to the 1983
claims.
I.
I.
In considering a motion to dismiss, a court must
take the allegations in the complaint as true and must make
all reasonable inferences in favor of the plaintiffs.
Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987,
_______ _________________________________
988 (1st Cir. 1992). Here the district court also took into
account certain facts set out in public documents plaintiffs
attached to an opposition they filed to the motion to
dismiss. Ordinarily, of course, any consideration of
documents not attached to the complaint, or not expressly
incorporated therein, is forbidden, unless the proceeding is
properly converted into one for summary judgment under Rule
56. See Fed. R. Civ. P. 12(b)(6). However, courts have made
___
-2-
narrow exceptions for documents the authenticity of which are
not disputed by the parties; for official public records; for
documents central to plaintiffs' claim; or for documents
sufficiently referred to in the complaint. See, e.g., Romani
___ ____ ______
v. Shearson Lehman Hutton, 929 F.2d 875, 879 n.3 (1st Cir.
______________________
1991) (considering offering documents submitted by defendants
with motion to dismiss claim of securities fraud); Fudge v.
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Penthouse Int'l, Ltd., 840 F.2d 1012, 1014-15 (1st Cir.)
______________________
(considering allegedly libelous article submitted by
defendants with motion to dismiss), cert. denied, 488 U.S.
____________
821 (1988); Mack v. South Bay Beer Distrib., Inc., 798 F.2d
____ _____________________________
1279, 1282 (9th Cir. 1986) ("[O]n a motion to dismiss a court
may properly look beyond the complaint to matters of public
record and doing so does not convert a Rule 12(b)(6) motion
to one for summary judgment."); see also In re Wade, 969 F.2d
________ __________
241, 249 & n.12 (7th Cir. 1992).
Here, all or most of the above-mentioned elements
are present. Plaintiffs, moreover, introduced the documents
themselves, in order to bolster their argument against
defendants' motions to dismiss. See Cortec Indus., Inc. v.
___ ____________________
Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("[T]he
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problem that arises when a court reviews statements
extraneous to a complaint generally is the lack of notice to
the plaintiff . . . . Where plaintiff has actual notice . . .
and has relied upon these documents in framing the complaint
-3-
the necessity of translating a Rule 12(b)(6) motion into one
under Rule 56 is largely dissipated."), cert. denied, 112 S.
____________
Ct. 1561 (1992); Berk v. Ascott Inv. Corp., 759 F.Supp. 245,
____ _________________
249 (E.D. Pa. 1991) ("[W]hen a plaintiff has admitted the
authenticity of a document . . ., a court may consider that
document in ruling on a motion under Fed. R. Civ. P.
12(b)(6).").
Like the court below, therefore, we treat the
documents submitted by plaintiffs the Abuse and Neglect
Petitions, the Pittsfield District Court orders, defendant
Seymour's written report to defendant Page, and Seymour's
affidavit as part of the pleadings. The facts that emerge
are as follows:
Plaintiff-appellant Valerie Watterson is the
natural mother of two minor girls born in 1979 and 1984
respectively ("the older child" and "the young child";
collectively "the children" or "the girls"). Plaintiff-
appellant Violet Bruillard is the natural mother of Valerie
and grandmother of the children. Plaintiff-appellant Paul
Bruillard is Violet's husband, and stepgrandfather to the
children. The girls lived with all three appellants in a
house belonging to Violet and Paul in New Hampshire. The
girls' natural father, who separated from Valerie in 1981, is
not a party to this action.
Since birth, the older child has had only partial
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hearing and partial speech abilities. Beginning in 1985,
when she was six years old, the child attended the Green
Acres School in Manchester, New Hampshire, as part of a
program for the hearing impaired. In January 1986, school
officials reported unusual behavior by the child to the New
Hampshire Division for Children and Youth Services (DCYS),
including symptoms of neglect and possible sexual abuse.
DCYS officials investigated the case and identified a
fourteen-year-old boy who rode to school on the child's
school bus as the probable abuser. Steps were taken to
remedy the situation and the case was closed.
In March 1987, however, school officials again
wrote to DCYS to report continuing symptoms of sexual abuse.
Defendant Eileen Page (who is not an appellee), a state
social worker assigned to the case by DCYS, filed a Petition
for Neglect in the Pittsfield District Court, State of New
Hampshire, on May 18, 1987. See N.H. Rev. Stat. Ann. 169-
___
C:7. The petition alleged that the older child was subject
to neglect by Valerie Watterson, citing the reports of the
Green Acres School officials that the child was describing
sexual matters in detail to other children and her teacher,
fondling herself and other children, and complaining about
pains in her stomach and lower abdomen. The petition also
alleged that the child wore dirty clothing to school, was
unkempt and unwashed, and appeared to be making her own lunch
-5-
of mayonnaise sandwiches.
On May 28, 1987, the Pittsfield District Court
conducted a preliminary hearing and ordered that the child,
then eight years of age, be referred to Concord Psychological
Associates for counseling. See N.H. Rev. Stat. Ann. 169-
___
C:15, 16. The court also granted legal supervision of the
child to DCYS, left placement of the child with Valerie
Watterson, and ordered DCYS to facilitate the counseling
sessions and "to conduct an appropriate investigation,
including, but not limited to home environment study."
Beginning June 11, 1987, the child attended weekly counseling
sessions at Concord Psychological Associates with defendant-
appellee Janet Seymour, a psychologist who was not yet
certified. Seymour was supervised by defendant-appellee
Roland Smith, a board-certified psychologist and director of
Concord Psychological Associates.
On June 22, in lieu of a scheduled adjudicatory
hearing and without a finding of neglect, DCYS and appellant
Valerie Watterson entered an agreement for issuance of a
consent order. See N.H. Rev. Stat. Ann. 169-C:17. The
___
consent order mandated that, "[The child] shall continue
counselling at Concord Psychological Associates, with a
report from Concord Psychological Associates filed with this
court not later than forty-five days from the date of this
agreement." The order also stated that DCYS would assist
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Valerie in transporting the child to the counseling sessions,
that Valerie would submit to psychological evaluation, that
DCYS would complete a home study with Valerie's cooperation,
and that the court retained jurisdiction over the case.
Seymour with the aid of a sign-language interpreter
conducted a total of seven psychotherapy sessions with the
child from June 11 to July 22, 1987. On Seymour's
initiative, the younger child, then three years old, also
attended one of the sessions. On July 24, 1987, Seymour
reported her findings in writing to social worker Page,
stating that the older child revealed during therapy that her
grandmother and mother (appellants Violet Bruillard and
Valerie Watterson) repeatedly took the girls against their
will to a house where the older child was required to sleep
in close proximity with boys and a grown man. On one
occasion, one male allegedly fondled the older child. The
younger child was allegedly threatened with a large knife and
subjected to fondling by a young boy while Valerie and the
older child watched. The older child also reported being
paid for visiting the house, being told not to reveal the
visits to anyone, and eventually being informed by her mother
in July 1987 (during the period of the counseling sessions)
that she would no longer take the girls to the house.
On the basis of these findings, Seymour concluded
that the girls' grandmother, Violet, may have been
-7-
"prostituting [the older child] and probably [the young
child] to a group of people, likely a sex ring." Seymour
stated that Valerie, the mother, was only partially aware of
the events at the house but failed to protect the children
from the abuse. Seymour concluded her report by recommending
that DCYS initially confront Valerie Watterson with the
accusations and then, if necessary, remove the girls from
appellants' home.
The same day Seymour issued her report, Page sought
and obtained an ex parte order from the Pittsfield District
__ _____
Court for the immediate removal of both children from
appellants' home, citing the information gathered by Seymour.
See N.H. Rev. Stat. Ann. 169-C:6. That evening law
___
enforcement officials took the two girls from appellants'
home and placed them in separate foster homes. On July 27,
1987, Page filed new Abuse and Neglect Petitions with regard
to the two children, alleging that they were subject to
sexual abuse by Valerie Watterson and Violet Bruillard. See
___
N.H. Rev. Stat. Ann. 169-C:7.
On September 24, 1987, in connection with the
proceedings, Seymour swore out an affidavit detailing her
findings regarding the two children. In her affidavit,
Seymour attested that she believed, based on her weekly
psychotherapy sessions with the older child and the single
session with the young child, that the children were
-8-
subjected to some sort of child prostitution/satanic worship
activity (involving "the killing of animals and children,"
"ugly hats (perhaps headdresses) with horns," and "men in
robes"), at a location identified by the girls as "Mike
Chickering's house." Seymour's affidavit was apparently used
by the Merrimack County Sheriff's office to obtain a search
warrant for the Chickering house, where the only evidence of
child prostitution and satanic worship found by police was a
catalog for pornographic films and an ordinary letter opener.
On May 25, 1988, after eight days of testimony, the
Pittsfield District Court ruled that no evidence supported
the allegations of ritual sexual abuse occurring at the
Chickering residence and so dismissed those particular
charges. See N.H. Rev. Stat. Ann. 169-C:18, 19. However,
___
the court stated that it was "obvious" that the older child
had been sexually abused and that the young child suffered
some traumatic incident that could be classified as abuse.
Valerie Watterson and Violet Bruillard appealed the latter
findings to the superior court, see N.H. Rev. Stat. Ann.
___
169-C:28, but DCYS voluntarily withdrew the Abuse and Neglect
Petitions before further proceedings were conducted.1
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1. The record does not indicate reasons for the withdrawal
of the abuse petitions. Nor does any document state whether
and when the children were returned to appellants, indicating
that there may have been subsequent proceedings regarding the
children not at issue here. Appellants' brief states only
that the younger child remained in foster homes for a total
of two-and-one-half years, and that the older child currently
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Appellants brought this civil action on July 12,
1990, in the United States District Court for the District of
New Hampshire against DCYS social worker Page and appellees
Seymour and Smith of Concord Psychological Associates.
Appellants alleged in their complaint, as amended, that all
three defendants were liable pursuant to 42 U.S.C. 1983 for
depriving appellants of their liberty and property without
due process of law. The complaint contained pendent state
law claims against Seymour and Smith for failing to act with
due care with regard to professional standards. The amended
complaint also brought state law claims of malicious
prosecution and abuse of process against defendant Page, who
is not a party to this appeal.2
Seymour and Smith moved to dismiss all claims
against them under Fed.R.Civ.P. 12(b)(6) on grounds that they
are immune from civil liability. The district court granted
these motions on August 12, 1991, holding that the two
psychologists had absolute quasi-judicial immunity from the
1983 claims as court-appointed psychologists, and had state
statutory immunity from liability under the state law claims
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lives apart from appellants in a residential learning center
for deaf children in Massachusetts.
2. The district court assumed that the claims of malicious
prosecution and abuse of process also applied to appellees
Seymour and Smith and held that they had statutory immunity
from those claims. However, appellants clarify on appeal
that those two state law claims apply only to defendant Page.
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pursuant to the New Hampshire Child Protection Act. See N.H.
___
Rev. Stat. Ann. 169-C:31. Appellants appeal from the final
judgment dismissing the complaint against Seymour and Smith
issued pursuant to Fed. R. Civ. P. 54(b) on February 7, 1992.
II.
II.
A. Section 1983 Claims
A. Section 1983 Claims
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We need not decide whether the district court
correctly held that a court-appointed psychologist is
entitled to absolute immunity from claims in connection with
her duties as a quasi-judicial officer. Compare Myers v.
_______ _____
Morris, 810 F.2d 1437, 1466-67 (8th Cir.) (holding that
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court-appointed psychologists have absolute immunity), cert.
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denied, 484 U.S. 828 (1987) with Hodorowski v. Ray, 844 F.2d
______ ____ __________ ___
1210, 1215-16 (5th Cir. 1988) (refusing to extend absolute
immunity to child protective service workers). This is a
difficult and, in this circuit, novel question, on which
there is no conclusive authority. See Frazier v. Bailey, 957
___ _______ ______
F.2d 920, 931 n.12 (1st Cir. 1992); see also Snell v.
_________ _____
Tunnell, 920 F.2d 673, 686-89 (10th Cir. 1990) (reviewing
_______
various court positions on absolute immunity for child abuse
investigation participants), cert. denied, 111 S. Ct. 1622
____________
(1991). In Burns v. Reed, 111 S. Ct. 1934 (1991), the
_____ ____
Supreme Court cautioned that the "presumption is that
qualified rather than absolute immunity is sufficient to
protect government officials in the exercise of their
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duties." Id. at 1939. The Court went on to say that it had
___
been "'quite sparing' in [its] recognition of absolute
immunity, and [had] refused to extend it any 'further than
its justification would warrant.'" Id. (citations omitted).
___
We do not suggest that absolute immunity could not exist for
these psychologists in the present circumstances. But since
for more conventional reasons appellees are clearly entitled
to prevail, we rest our decision exclusively on those
reasons.
Except perhaps for the allegation that Seymour gave
false testimony in court, appellants have alluded to no facts
that seem even remotely sufficient to show a violation of the
federal constitution by the two psychologists. And even
assuming Seymour testified falsely, and even assuming her
false testimony might otherwise give rise to a claim of
constitutional dimensions, she would still be immune from
suit under 1983 because of the absolute immunity afforded
to witnesses for their testimony in the course of judicial
proceedings. Infra. We, therefore, sustain the dismissal of
_____
the 1983 claims.3
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3. In moving to dismiss, appellees relied exclusively on
their argument that the court-appointed psychologists had
quasi-judicial immunity for all their challenged activities,
although they reserved the right to raise other defenses
including the failure to state a claim for relief. While
issues not pursued in the district court ordinarily will not
be considered on appeal, Brown v. Trustees of Boston Univ.,
_____ ________________________
891 F.2d 337, 352 (1st Cir. 1989), cert. denied, 496 U.S. 937
____________
(1990), we are free to affirm on any independently sufficient
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To bring an action under 1983, a plaintiff must
show both the existence of a federal constitutional or
statutory right, and some deprivation of that right as a
result of defendants' actions under color of state law.
Willhauck v. Halpin, 953 F.2d 689, 703 (1st Cir. 1991).
_________ ______
Appellants claim that Seymour and Smith acted under color of
state law to deprive them of their right to due process of
law in violation of the Fifth and Fourteenth Amendments. We
shall assume that the Pittsfield District Court order for
counseling and reporting by Concord Psychological Associates
provided a sufficient basis for these private defendants to
be acting under color of state law. See Frazier, 957 F.2d at
___ _______
928; Rodriques v. Furtado, 950 F.2d 805, 813-14 (1st Cir.
_________ _______
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ground, Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st
___________ __________________
Cir. 1992). This is especially so where our review is de
__
novo. Willhauck v. Halpin, 953 F.2d 689, 704 (1st Cir.
____ _________ ______
1991).
We conclude that in these circumstances it is not
improper for us to uphold the dismissal on the ground that
appellants failed to make out any claim for the deprivation
of a federal constitutional right, even though this
particular issue was not explored below. Appellants have
explained their theory of the case in the course of arguing
against absolute immunity for appellees, and described at
oral argument the basis for their federal claims.
Furthermore, we take all of appellants' allegations as true
and make our determination solely as a matter of law. Cf.
___
Brown v. St. Louis Police Dept., 691 F.2d 393, 396-97 (8th
_____ _______________________
Cir. 1982), cert. denied, 461 U.S. 908 (1983) (discussing
_____________
"special circumstances" that could make it "fundamentally
unfair" to consider alternative grounds on appeal). To send
the matter back to the lower court would be an exercise in
futility, especially given the additional defense of
qualified immunity which, although not discussed here, stands
as a further, seemingly insurmountable barrier to recovery.
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1991). A likely alternative ground for affirming the
district court is qualified immunity. However, before even
reaching qualified immunity, a court of appeals must
ascertain whether the appellants have asserted a violation of
a constitutional right at all. Siegert v. Gilley, 111 S. Ct.
_______ ______
1789, 1793 (1991).
Appellants do not allege that the procedures
provided under New Hampshire law for child neglect and abuse
petitions, concededly followed in this case, are
constitutionally inadequate. See N.H. Rev. Stat. Ann. 169-
___
C:1 et seq.. Instead, they make a substantive due process
_______
claim, viz., that by means of Seymour's report, appellees
deprived them of a constitutionally protected liberty
_______
interest in family integrity, including the care, custody and
supervision of the children.4 Seymour is said to have
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4. We see no other constitutionally protected interest or
right at stake. Damage to reputation alone does not
constitute a violation of a substantive due process right.
Paul v. Davis, 424 U.S. 693, 713 (1976). But cf. Petition of
____ _____ _______ ___________
Bagley, 128 N.H. 275, 284-85, 513 A.2d 331 (1986) (holding
______
that officials' determination that child abuse report had
foundation in fact and recordation in central registry
implicated plaintiffs' due process liberty interest under New
Hampshire constitution).
In addition, there are no allegations in the amended
complaint to support the conclusory claim that appellants
were deprived of some constitutionally protected property
________
interest, so we find the complaint fails to state a claim for
unconstitutional deprivation of property. See Fed. R. Civ.
___
P. 12(b)(6). The only property interest affected was, we
infer from the complaint's allegations, the loss of some
money and wages to attend the abuse proceedings and to pay an
attorney to represent them, neither of which constitutes,
standing alone, an unconstitutional deprivation of property.
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conspired with Page to conduct an unauthorized investigation
of the family's affairs while also counseling the older
child. Seymour was allegedly negligent in her counseling,
and this negligent counseling and investigating supposedly
led to incorrect conclusions about the involvement of Valerie
and Violet in the sexual abuse of the girls.5 These
incorrect conclusions, contained in Seymour's report, enabled
DCYS to obtain court approval for the removal of the children
from appellants' home, thereby depriving appellants of their
constitutionally protected liberty interest in family
integrity.6 Appellee Smith's purported liability stems
solely from his allegedly inadequate supervision of Seymour
at Concord Psychological Associates.
Taking all of plaintiffs' allegations as true, we
see only three possible bases for the 1983 claim against
Seymour: first, she "conspired" with Page to investigate
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5. Appellants do not allege the absence of grounds for
suspecting abuse by someone. They admit that, during visits
to her father, the older child witnessed repeated sexual
abuse of another child in a manner nearly identical to that
described by the older child to Seymour. In addition,
appellants admit that the older child was molested at age six
by a fellow student during bus rides to school.
6. While the scope and level of constitutional protection
for the liberty interests of grandparents probably differs
from that for parents' interests, compare Moore v. City of
_______ _____ ________
East Cleveland, 431 U.S. 494, 500-06 (1977) with Stanley v.
______________ ____ _______
Illinois, 405 U.S. 645, 651-52 (1972), appellants Violet and
________
Paul Bruillard, as grandparents who resided with the girls,
have interests at least sufficient to avoid dismissal of
their 1983 claims on grounds they have no constitutionally
protected right at stake.
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appellants' family without express court authority and
direction to do so; second, she negligently counseled and
interviewed the children; and third, she presented false
testimony and withheld information from the court. The first
two theories fall short, however, of stating any federal
constitutional claim. While the Supreme Court has recognized
an abstract fundamental liberty interest in "family
integrity," the Court has never found that interest to be
absolute or unqualified. Frazier, 957 F.2d at 929-30. The
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government has a compelling interest in the welfare of
children, and the relationship between parent and child may
be investigated and terminated by the state provided
constitutionally adequate procedures are followed. Santosky
________
v. Kramer, 455 U.S. 745, 766, 769 (1982). The right to
______
family integrity clearly does not include a constitutional
right to be free from child abuse investigations. See
___
Stanley v. Illinois, 405 U.S. 645, 649 (1972) (stating that
_______ ________
the State has a "right indeed, duty to protect minor
children through a judicial determination of their interests
in a neglect proceeding"); Weller v. Department of Social
______ _____________________
Servs., 901 F.2d 387, 391 (4th Cir. 1990); Myers, 810 F.2d
______ _____
at 1462. If while engaged in treating the children under
court direction, Seymour, in conjunction with Page, looked
into whether the children had been abused by appellants,
such a joint undertaking would not, without more, violate any
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constitutional right of appellants.7 The second factual
basis, that Seymour performed the therapy sessions and
reported her findings with a lack of due care, at most states
a claim of negligence, which is insufficient to constitute a
deprivation of due process of law.8 Daniels v. Williams,
_______ ________
474 U.S. 327, 332-34 (1986).
Appellants' third allegation, that Seymour
conspired with Page to present false testimony to and
withhold material evidence from the court hearing the abuse
charges, fails for a different reason: all witnesses at
judicial proceedings have an absolute immunity from damages
liability based on their testimony. Briscoe v. LaHue, 460
_______ _____
____________________
7. Describing the investigation by Seymour and Page as a
"conspiracy" adds nothing to the charge; mere conclusory
allegations that defendants "conspired" are not enough in a
civil rights complaint to turn otherwise lawful actions into
a valid claim of unlawful conspiracy. See Glaros v. Perse,
___ ______ _____
628 F.2d 679, 685 (1st Cir. 1980).
8. Appellants allege without further explanation or factual
support in their complaint that Seymour conducted the
counseling sessions with reckless and callous indifference to
their constitutional rights. While reckless indifference, as
opposed to mere negligence, may be actionable under 1983,
see Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 227 (1st
___ ______________ _______________
Cir. 1990), no set of facts alleged in this complaint, or
reasonable inferences therefrom, could support a finding of
more than simple lack of due care. It was not Seymour's
counseling activities, as such, moreover, that injured
appellants. It was Seymour's report to Page, conveying the
story of possible abuse by appellants. Yet appellants admit
that the older child had been sexually abused by other
unidentified persons, see supra note 5, and the only alleged
___ _____
problems with Seymour's report were purported omissions and
misinterpretations of certain facts. Seymour herself,
moreover, recommended that DCYS seek the cooperation of
Valerie Watterson before considering removal of the children.
-17-
U.S. 325, 326 (1983). This immunity applies even to public
officials who knowingly give false testimony. Id. at 345.
___
Seymour thus had absolute immunity for her testimony, even
assuming it was either false or incomplete.
The 1983 claim against Smith is based solely on
his actions as the supervisor of Seymour's counseling and
investigation. Because Seymour violated no constitutional
rights of appellants in her counseling and investigation, we
find even less basis for recovery against Smith for
supervising her. See Frazier, 957 F.2d at 931-32.
___ _______
For these reasons, the 1983 claims against
Seymour and Smith were properly dismissed.
B. State Law Claims
B. State Law Claims
________________
The district court held that the two psychologists,
Seymour and Smith, had immunity from the state law claims
pursuant to a state statute, N.H. Rev. Stat. Ann. 169-C:31,
which immunizes persons who report suspicions of child abuse
to the proper state authorities in good faith.9 Appellants
____________________
9. N.H. Rev. Stat. Ann. 169-C:31 provides:
Anyone participating in good faith in the
making of a report pursuant to this
chapter is immune from any liability,
civil or criminal, that might otherwise
be incurred or imposed. Any such
participant has the same immunity with
respect to participation in any
investigation by the bureau or judicial
proceeding resulting from such report.
N.H. Rev. Stat. Ann. 169-C:29 requires that certain persons
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argue that the district court misapplied the immunity statute
because their state law claims against appellees stem from
____________________
report suspected child abuse.
Any physician, surgeon, county medical
examiner, psychiatrist, resident, intern,
dentist, osteopath, optometrist,
chiropractor, psychologist, therapist,
registered nurse, hospital personnel
(engaged in administration, examination,
care and treatment of persons), Christian
Science practitioner, teacher, school
official, school nurse, school counselor,
social worker, day care worker, any other
child or foster care worker, law
enforcement official, priest, minister,
or rabbi or any other person having
reason to suspect that a child has been
abused or neglected shall report the same
in accordance with this chapter.
N.H. Rev. Stat. Ann. 169-C:30 describes how such reports
are to be made.
An oral report shall be made immediately
by telephone or otherwise, and followed
within 48 hours by a report in writing,
if so requested, to the bureau. Such
report shall, if known, contain the name
and address of the child suspected of
being neglected or abused and the person
responsible for the child's welfare, the
specific information indicating neglect
or the nature and extent of the child's
injuries (including any evidence of
previous injuries), the identity of the
person or persons suspected of being
responsible for such neglect or abuse,
and any other information that might be
helpful in establishing neglect or abuse
or that may be required by the bureau.
"Bureau" is defined as "the bureau of children, division for
children and youth services, department of health and human
services." N.H. Rev. Stat. Ann. 169-C:3 IV. This agency
is referred to herein as DCYS.
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the lack of due care in performance of the counseling
services, not from Seymour's subsequent report of suspected
child abuse (which, appellants concede, is protected by the
immunity statute).
We reject appellants' argument. The injuries
alleged in their complaint are separation from the children,
damage to their reputations, and various forms of emotional
distress. No harm to the children as the result of their
being negligently counseled is alleged, nor was suit brought
on the children's behalf to complain of the alleged
malpractice. All the asserted harms resulted from the
state's removal of the children. Seymour's and Smith's sole
connection to that separation was Seymour's report to DCYS of
her suspicions that the girls were being sexually abused.
Clearly, Seymour's report of suspected abuse falls squarely
within the meaning of "a report pursuant to this chapter" as
defined by N.H. Rev. Stat. Ann. 169-C:31. See Petition of
___ ___________
Bagley, 128 N.H. 275, 280, 513 A.2d 331 (1986) (interpreting
______
provisions of the N.H. Child Protection Act). While
appellants contend that the Abuse and Neglect Petition would
not have been filed but for the allegedly negligent manner in
which Seymour conducted the counseling sessions, we find no
support in New Hampshire law, nor was any cited, for removing
the immunity protection of N.H. Rev. Stat. Ann. 169-C:31 if
the report is the product of negligently administered
-20-
psychotherapy. See State v. Howland, 125 N.H. 497, 500-02,
___ _____ _______
484 A.2d 1076, 1077-78 (1984) (discussing the scope of
statutory immunity under N.H. Rev. Stat. Ann. 169-C:31).
III.
III.
For the reasons stated above, we affirm the
district court's dismissal of appellants' complaint against
appellees Seymour and Smith.
Affirmed. Costs to appellees.
_________ __________________
-21-
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