08-3069-cv
     Cornejo v. Bell
 1                      UNITED STATES COURT OF APPEALS
 2
 3                          FOR THE SECOND CIRCUIT
 4
 5                                -------------
 6
 7                             August Term, 2009
 8
 9     (Argued: October 7, 2009              Decided: January 4, 2010)
10
11             Docket No. 08-3069-cv (Lead), 08-3071-cv (Con)
12
13   - - - - - - - - - - - - - - - - - - - - - - X
14
15     SALLY CORNEJO, individually and on behalf of her infant child
16                              Kevin Salas,
17
18                           Plaintiff-Appellant,
19
20                                 - against -
21
22             WILLIAM BELL, individually and as Commissioner,
23           KATHLEEN CERRITO, individually and as caseworker,
24               JANICE HOGGS, individually and as supervisor,
25            JOYCE DE NICHOLSON, individually and as manager,
26              EUGENE WEIXEL, individually and as caseworker,
27               RAMON VARGAS, individually and as supervisor,
28   MAUREEN FLEMING, individually and as deputy director and City of
29                                   New York,
30         FREDDA MONN, individually and as supervising attorney,
31        JODI KAPLAN, individually and as supervising attorney,
32                 DAWN SCHWARTZ, individually and as attorney
33                          SUSAN SCHENKEL SAVITT, and
34                             THE CITY OF NEW YORK,
35
36                           Defendants-Appellees.
37
38   - - - - - - - - - - - - - - - - - - - - - - X
39
40   Before:     MINER and CABRANES, Circuit Judges, and
41               RAKOFF, District Judge.*
42


           *
           The Honorable Jed S. Rakoff, United States District Judge
     for the Southern District of New York, sitting by designation.

                                       -1-
 1        Appeal from the May 20, 2008 judgment of the United States
 2   District Court for the Eastern District of New York (Brian M.
 3   Cogan, Judge), granting summary judgment to defendants, in an
 4   action involving wrongful child removal, on the grounds of
 5   absolute immunity and qualified immunity under federal and state
 6   law. Although we disagree with the district court’s conclusion
 7   that the caseworker defendants are entitled to absolute immunity
 8   under federal law, we agree that they are entitled to qualified
 9   immunity and that the rest of the district court’s determinations
10   are correct.
11
12          AFFIRMED.
13
14                         CAROLYN A. KUBITSCHEK, Lansner & Kubitschek,
15                              New York, New York, for Plaintiff-
16                              Appellant.
17
18                         JANET L. ZALEON, Of Counsel, City of New York
19                              Law Department, New York, New York
20                              (Michael A. Cardozo, Kristin M. Helmers,
21                              Joanthan L. Pines, City of New York Law
22                              Department, New York, New York, on the
23                              brief), for Defendants-Appellees.

24   RAKOFF, District Judge.

25          For centuries, Anglo-American law has protected public

26   officials against claims for damages arising from actions taken

27   in the course of duty.    Harlow v. Fitzgerald, 

, 806

28   (1982).    “As recognized at common law, public officers require

29   this protection to shield them from undue interference with their

30   duties and from potentially disabling threats of liability.”      

the case of legislators, judges, and certain executive

32   officials such as prosecutors, the protection usually takes the

33   form of absolute immunity from liability for damages.    

  807.    In the case of most executive employees, however, the

35   protection takes the form of “qualified immunity,” i.e., immunity


                                      -2-
1    from liability if the employee was acting in subjective and

2    objective good faith.   

815.   The instant case chiefly

3    concerns what kind of immunity attaches to actions taken by two

4    categories of New York employees –- caseworkers and lawyers –-

5    involved in the inherently difficult determination of whether to

6    seek removal of a child from the custody of the child’s parents

7    on the ground of child abuse.

8                                BACKGROUND

9         Plaintiff-appellant Sally Cornejo commenced these

10   consolidated actions on behalf of herself and her infant child,

11   Kevin Salas, alleging violations of federal and state law arising

12   from actions taken by the employees of the New York City

13   Administration for Children’s Services (“ACS”) in connection with

14   the investigation into the death of Cornejo’s other infant son,

15   Kenny, and the resulting Family Court proceedings.   The

16   defendants-appellees, in addition to the City of New York (named

17   only derivatively), are current or former ACS caseworkers and

18   supervisors (collectively, the “caseworker defendants”), namely,

19   caseworkers Kathleen Cerrito and Eugene Weixel, their supervisors

20   Janice Hogg and Ramon Vargas, Hogg’s manager Joyce De Nicholson,

21   De Nicholson’s director Maureen Fleming, and the then-acting ACS

22   Commissioner William Bell; and current or former lawyers in ACS’s

23   Division of Legal Services (collectively, the “lawyer

24   defendants”), namely, attorneys Dawn Schwartz and Susan Schenkel


                                     -3-
1    Savitt, and their supervisors Fredda Monn and Jodi Kaplan.

2         The pertinent facts, largely undisputed and, where disputed,

3    taken most favorably to the plaintiff, are as follows:

4         On October 30, 2002, plaintiff Cornejo returned from work to

5    find her fiancé, Rothman Salas, holding their five-month-old son

6    Kenny, who was not breathing.     Kenny was subsequently brought to

7    Schneider Children’s Hospital (“Hospital”) at 11:30 PM.     On the

8    afternoon of October 31, 2002, a nonphysician Hospital employee

9    reported (via telephone call) to the New York State Central

10   Registry of Child Abuse and Maltreatment (the “SCR”) that Kenny

11   had suffered a broken rib, diffuse cerebral edema, and a heart

12   attack as a result of being violently shaken by his father.     The

13   Oral Report Transmittal (“ORT”) documenting the call stated that

14   Cornejo was not present during the shaking incident.     A second

15   ORT made at approximately 5:30 PM stated that the rib fracture

16   was several weeks old but that the parents had “failed to provide

17   a plausible explanation” for how Kenny’s rib was fractured.

18        Upon receiving the two ORTs from SCR, ACS assigned

19   caseworker Cerrito to investigate.      Cerrito spoke by telephone

20   with Dr. Debra Esernio-Jenssen, a pediatric specialist in charge

21   of the Hospital’s Child Protection Consulting Team, who reported

22   that Kenny’s immediate brain and heart injuries were most likely

23   caused by Shaken Baby Syndrome.    She also expressed her belief

24   that Cornejo had “no part” in the immediate injuries, which


                                       -4-
1    “would happen immediately after violent shaking.”   Dr. Esernio-

2    Jenssen further opined, however, that the broken rib could have

3    been the result of a prior shaking incident.   Cerrito reported

4    this back to Hogg, who concluded that not only Kenny but also

5    Kevin, the couple’s other, eighteen-month-old son, would have to

6    be removed from the home pending further proceedings.

7         Cornejo was then informed that both her children would be

8    removed from her custody until the ACS investigation was

9    completed.   Cerrito arranged for Kevin to be brought to the

10   Hospital, where he was examined and then placed in temporary

11   kinship foster care on an ex parte emergency basis.   The medical

12   examination of Kevin showed him to be healthy, with no signs of

13   abuse.   Kenny remained at the Hospital, where he died on November

14   7.

15        Meanwhile, on November 1, ACS instructed its attorneys to

16   file petitions in Family Court accusing both parents of child

17   abuse of both children.   Kaplan filed the petitions, which were

18   signed by Cerrito, that day.   The petitions notably failed to

19   differentiate between the two parents, Cornejo and Salas, stating

20   that both parents had either “inflict[ed] or allow[ed] to be

21   inflicted . . . physical injury” or “create[d] or allow[ed] to be

22   created a substantial risk of physical injury” to the children.

23   The petitions included the Hospital diagnosis of Shaken Baby

24   Syndrome as the cause of Kenny’s heart and brain injuries; as to


                                     -5-
1    the fractured rib, the petition alleged that the parents “failed

2    to provide an explanation consistent with a non-abusive or non-

3    intentional trauma.”   The Family Court remanded the children to

4    ACS, and, as noted, Kenny died on November 7.

5         Despite an intervening attempt by Cornejo to regain custody

6    of Kevin, this was where matters stood until, on November 14, a

7    city medical examiner informed ACS attorney Schwartz of her

8    preliminary findings: that she “could not say” that Kenny was a

9    victim of Shaken Baby Syndrome and that the “fractured rib” was

10   actually a congenital rib malformation.    As a result, the very

11   next day, ACS itself sought, by Order To Show Cause, to parole

12   Kevin to his mother.   Nevertheless, the Family Court judge, after

13   hearing testimony from Dr. Esernio-Jenssen in which she

14   maintained her conclusion that Kenny had been shaken, declined to

15   return Kevin to his mother’s care.    The judge also denied

16   subsequent applications for parole or withdrawal of the petition

17   against Cornejo, citing ongoing disparities in the medical

18   evidence as to the cause of Kenny’s death.

19        In January 2003, the medical examiner issued a final autopsy

20   report that concluded that the actual cause of Kenny’s death was

21   a “rare and natural heart defect” and that reaffirmed the medical

22   examiner’s previous finding that there was no rib fracture but




                                     -6-
1    only a congenital abnormality.   The Hospital staff, however,

2    maintained its view that Kenny had been shaken.1

3         On February 4, ACS sought withdrawal of the petition against

4    Cornejo, but the Family Court judge denied the request, making

5    clear that she would not allow withdrawal of that petition unless

6    ACS was also willing to withdraw the petition against Salas.

7    Nevertheless, the judge did this time allow Kevin to be paroled

8    to Cornejo’s custody.   On May 20, Cornejo moved for summary

9    judgment and dismissal of the petition against her.   At a court

10   appearance on June 10, Schwartz stated that “ACS has no basis to

11   dispute the [medical examiner’s] findings,” and the Family Court

12   judge allowed both petitions to be withdrawn.

13        Thereafter, on January 28, 2004, Cornejo commenced, on

14   behalf of herself and her son Kevin, the first of the two civil

15   rights proceedings now consolidated in this case, which, as now

16   consolidated, allege due process and search and seizure

17   violations under 42 U.S.C. § 1983, as well as state and federal

18   claims for malicious prosecution (the latter again under § 1983)

19   and a state law claim for breach of the duty of reasonable care.

20        On May 19, 2008, the district court granted summary judgment

21   to the defendants.   See Cornejo v. Bell, No. CV-04-0341, 

           Kenny’s heart was subsequently sent to two pediatric
     cardiologists for further evaluation. Neither specialist
     ultimately found a definitive cause for the heart attack, but
     they concluded that it was more likely that Kenny’s death
     resulted from a congenital defect than from shaking.

                                      -7-
1    5743934 (E.D.N.Y. May 19, 2008).   In addition to concluding that

2    none of the plaintiff’s rights was violated, the district court

3    alternatively held that both sets of defendants were entitled to

4    absolute immunity from all the § 1983 claims, and that, even

5    failing this, they were entitled to qualified immunity.     As to

6    the malicious prosecution and breach of duty of reasonable care

7    claims under New York state law, the district court concluded

8    that the lawyer defendants were entitled to absolute immunity on

9    both claims and that the caseworker defendants were entitled to

10   absolute immunity as to the malicious prosecution claim and

11   qualified immunity as to the unreasonable care claim.

12                                DISCUSSION

13        We review de novo a district court’s decision granting

14   summary judgment.   See, e.g., Warren v. Keane, 

, 332

15   (2d Cir. 1999).   Since we conclude that some form of immunity

16   attaches to each of the challenged actions of each of the

17   defendants sufficient to preclude liability, we do not reach the

18   district court’s determination on the merits.

19                           I.   Federal Claims

20        The federal claims are all claims for damages brought under

21   42 U.S.C. § 1983, which provides “a method for vindicating

22   federal rights elsewhere conferred,” including under the

23   Constitution.   Baker v. McCollan, 

, 144 n.3 (1979).

24   The conduct at issue “must have been committed by a person acting


                                     -8-
1    under color of state law” and “must have deprived a person of

2    rights, privileges, or immunities secured by the Constitution or

3    laws of the United States.”   Pitchell v. Callan, 

, 547

4    (2d Cir. 1994).   There is no dispute here that the defendants

5    were acting under the color of state law.

6               A.   Absolute Immunity for Lawyer Defendants

7         As noted, the district court held, inter alia, that both the

8    caseworker defendants and the lawyer defendants were entitled to

9    absolute immunity precluding liability under § 1983.     This was

10   despite well-established precedent that “qualified rather than

11   absolute immunity is sufficient to protect government officials

12   in the exercise of their duties.”     DiBlasio v. Novello, 

  292, 296 (2d Cir. 2003) (quoting Burns v. Reed, 

,

14   486S87 (1991)) (internal quotation mark omitted).    However, there

15   are certain instances where executive employees, such as

16   prosecutors, are entitled to absolute immunity.     Imbler v.

17   Pachtman, 

, 427 (1976).    The real distinction between

18   whether an executive employee is entitled to absolute or

19   qualified immunity turns on the kind of function the employee is

20   fulfilling in performing the acts complained of.     This is what

21   the Supreme Court has called a “functional” analysis.     Briscoe v.

22   LaHue, 

, 342 (1983).    Prosecutors are entitled to

23   absolute immunity, for example, because their prosecutorial

24   activities are “intimately associated with the judicial phase of


                                     -9-
1    the criminal process, and thus [are] functions to which the

2    reasons for absolute immunity apply with full force.”    Imbler,

.

4         Mutatis mutandis, absolute immunity also extends to non-

5    prosecutor officials when they are performing “functions

6    analogous to those of a prosecutor.”    Butz v. Economou, 

   478, 515 (1978).   While any analogy between two kinds of

8    executive employees is never perfect, such reasoning by analogy

9    is at the heart of judicial thinking: things that are essentially

10   alike should be treated essentially the same.    Thus, the Butz

11   Court held that an agency official who decides to institute an

12   administrative proceeding is entitled in such circumstances to

13   absolute immunity, since that decision is “very much like the

14   prosecutor’s decision to initiate or move forward with a criminal

15   prosecution.”   

16        This Court has previously extended absolute immunity to

17   state and federal officials initiating noncriminal proceedings

18   such as administrative proceedings and civil litigation.    See

19   Barrett v. United States, 

, 572 (2d Cir. 1986)

20   (citing 

17).    Of particular relevance here,

21   we have held that an attorney for a county Department of Social

22   Services who “initiates and prosecutes child protective orders

23   and represents the interests of the Department and the County in

24   Family Court” is entitled to absolute immunity.    Walden v.


                                    -10-
1    Wishengrad, 

, 152 (2d Cir. 1984).     The Wishengrad

2    Court concluded that given “the importance of the Department’s

3    [child protection] activities, the need to pursue protective

4    child litigation vigorously and the potential for subsequent

5    colorable claims,” the attorney must be accorded absolute

6    immunity from § 1983 claims arising out of the performance of her

7    duties.   

that the lawyer defendants in the

8    instant case were fulfilling similar functions, and that the

9    district court thus properly extended to those defendants

10   absolute immunity from the § 1983 claims.

11             B.    Qualified Immunity for Caseworker Defendants

12        However, the district court was incorrect in its conclusion

13   that the caseworker defendants were also entitled to absolute

14   immunity.2     Although they undoubtedly played a substantial role

15   in providing the information that helped initiate many of the

16   actions here complained of, the caseworker defendants essentially

17   functioned much more like investigators than prosecutors.      Even

18   when they made the initial decision to remove Kevin from his

19   mother’s custody, their actions were the functional equivalent of

20   police officers’ making arrests in criminal cases, which are a



          2
           The district court appears to have relied for its
     conclusion that the caseworker defendants were entitled to
     absolute immunity on a district court decision, Levine v. County
     of Westchester, 

, 243–44 (S.D.N.Y. 1993), that
     was affirmed without opinion by this Court. Such an affirmation
     has no precedential weight.

                                       -11-
1    classic example of actions entitled to qualified, rather than

2    absolute immunity.   See, e.g., Malley v. Briggs, 

,

3    340-44 (1986).   The caseworker defendants here were performing

4    what was “fundamentally a police function,” Robison v. Via, 821

, 918 (2d Cir. 1987), and as such were entitled only to

6    qualified immunity, 

7         Even qualified immunity, however, is sufficient to shield

8    executive employees from civil liability under § 1983 if either

9    “(1) their conduct ‘did not violate clearly established rights of

10   which a reasonable person would have known,’ or (2) ‘it was

11   objectively reasonable to believe that [their] acts did not

12   violate these clearly established rights.’”   Young v. County of

13   Fulton, 

, 903 (2d Cir. 1998) (quoting Soares v.

14   Connecticut, 

, 920 (2d Cir. 1993) (alteration in

15   original) (internal quotation marks omitted)); see also Harlow,

.   Of relevance here, we have previously noted

17   that the second Young prong provides “substantial protection for

18   caseworkers,” Tenenbaum v. Williams, 

, 596 (2d Cir.

19   1999), which is necessary because “[p]rotective services

20   caseworkers [must] choose between difficult alternatives,” 

alteration in original) (quoting van Emrik v. Chemung

22   County Dep’t of Soc. Servs., 

, 866 (2d Cir. 1990)).

23   The Tenenbaum Court concluded that summary judgment should thus




                                    -12-
1    be “readily available to these caseworkers in proper cases under

2    the qualified immunity doctrine.”     

3         Here, the gist of plaintiff’s § 1983 claims against the

4    caseworker defendants for denial of due process and unlawful

5    seizure in the immediate removal of Kevin from Cornejo’s custody

6    is that defendants had no reason to doubt her assertion that she

7    was not at home when Kenny became ill on October 30, nor to infer

8    that prior abuse had occurred, and so had no basis, even by

9    inference, to remove Kevin and pursue Family Court actions

10   against her.   But undisputed facts establish that this is not a

11   reasonable way to characterize the situation that confronted the

12   caseworkers when they took their actions.     Specifically, it is

13   undisputed that at the time of Kevin’s removal on October 31, ACS

14   had received two ORTs reporting a medical opinion that Kenny had

15   suffered violent shaking and a fractured rib.       Although Salas,

16   not Cornejo, was suspected of having shaken Kenny, the rib

17   fracture was diagnosed as several weeks old.     There was thus

18   evidence of at least two instances of apparent abuse –- one

19   occurring at an unknown time when Cornejo may have been present

20   –- for which neither parent had an apparent explanation.

21   Moreover, a caseworker had confirmed the substance of the ORTs

22   with Dr. Esernio-Jenssen, and the injuries to Kenny were

23   extremely serious.   Under these circumstances, it was objectively

24   reasonable for the caseworker defendants to believe that


                                    -13-
1    immediate temporary removal of both children without prior

2    judicial authorization was proper.      See 

  The

3    caseworker defendants are thus entitled to qualified immunity on

4    the due process and unlawful seizure claims arising from their

5    initial removal of Kevin.

6         As for the subsequent actions taken in Family Court, these

7    actions were chiefly taken by the lawyer defendants, who, as

8    already determined, were entitled to absolute immunity.         While

9    certain of the caseworker defendants provided information to the

10   Family Court, the heart of the complaint against them in this

11   regard is that they failed to adequately apprise the Family Court

12   of exculpatory information.    But this Court has found no

13   constitutional violation where caseworkers allegedly committed

14   “sins of commission and omission in what they told and failed to

15   tell . . . the Family Court Judge.”      van 

.

16   Indeed, it would take a much more extreme misstatement than any

17   alleged here to override the necessary freedom of action that

18   qualified immunity accords caseworker defendants dealing with the

19   extreme situation when one child suffers fatal injuries while at

20   home and another child is still at home.      The caseworker

21   defendants are thus entitled to qualified immunity on the due

22   process claims related to the Family Court actions.

23                         II.     State-Law Claims




                                      -14-
1         Plaintiff also pursues malicious prosecution claims both

2    under New York State law and, indirectly, under § 1983.    Under

3    New York law, a malicious prosecution claim requires: “(1) the

4    initiation of an action by the defendant against the plaintiff,

5    (2) begun with malice, (3) without probable cause to believe it

6    can succeed, (4) that ends in failure or, in other words,

7    terminates in favor of the plaintiff.”    O’Brien v. Alexander, 101

, 1484 (2d Cir. 1996) (citing Broughton v. State, 335

, 314 (N.Y. 1975)).    And § 1983, in recognizing a

10   malicious prosecution claim when the prosecution depends on a

11   violation of federal rights, adopts the law of the forum state so

12   far as the elements of the claim for malicious prosecution are

13   concerned.   See, e.g., Fulton v. Robinson, 

, 195 (2d

14   Cir. 2002) (“In order to prevail on a § 1983 claim against a

15   state actor for malicious prosecution, a plaintiff must show a

16   violation of his rights under the Fourth Amendment and establish

17   the elements of a malicious prosecution claim under state law.”

18   (internal citations omitted)).

19        The issue of immunity, however, differs as between the state

20   and federal law claims.   As to the claim for malicious

21   prosecution under § 1983, federal law of immunity applies, see,

22   e.g., Gross v. Rell, 

, 80 (2d Cir. 2009), and thus,

23   since the malicious prosecution claim is grounded on the same

24   allegations as underlay the due process claims, the lawyer


                                      -15-
1    defendants are entitled to absolute immunity and the caseworker

2    defendants to qualified immunity, either of which are sufficient

3    to defeat the claim for the reasons already described in the

4    preceding section.

5         As to the state law claim of malicious prosecution, however,

6    the highest New York court to consider the issue has previously

7    determined that in a situation comparable to the instant case,

8    both the caseworkers and the lawyers are entitled to absolute

9    immunity.    See Carossia v. City of N.Y., 

(App.

10   Div. 1st Dep’t 2007).    Because we are bound “to apply the law as

11   interpreted by New York’s intermediate appellate

12   courts . . . unless we find persuasive evidence that the New York

13   Court of Appeals . . . would reach a different conclusion,” we

14   affirm the district court’s ruling that all defendants here are

15   entitled to absolute immunity on the state law claim of malicious

16   prosecution.    Pahuta v. Massey-Ferguson, Inc., 

, 134

17   (2d Cir. 1999).

18        Finally, as regards the breach of duty claim, New York law

19   accords the lawyer defendants absolute immunity on such a claim,

20   because their actions with regard to that claim “involve[d] the

21   conscious exercise of discretion of a judicial or quasi-judicial

22   nature.”    Arteaga v. State, 

, 1196 (N.Y. 1988).

23   Caseworker defendants, by contrast, may be entitled only to

24   qualified immunity on this claim.      But qualified immunity is


                                     -16-
1    available under New York law if these defendants were “acting in

2    discharge of their duties and within the scope of their

3    employment, and . . . such liability did not result from the

4    willful misconduct or gross negligence.”   N.Y. Soc. Serv. Law

5    § 419; see also Yuan v. Rivera, 

, 358 (S.D.N.Y.

6    1999).   For the reasons previously discussed, the underlying

7    facts establish that the caseworker defendants meet these

8    requirements.

9                                CONCLUSION

10         For the reasons stated, therefore, while we disagree with

11   the district court’s conclusion that the caseworker defendants

12   were entitled to absolute immunity on plaintiff’s claims under 42

13   U.S.C. § 1983, we find that they were nonetheless entitled to

14   qualified immunity on those claims and that the rest of the

15   district court’s conclusions were correct.

16         In summary:

17   (1)   The lawyer defendants are entitled to absolute immunity on

18         plaintiff’s § 1983 claims because they were performing

19         functions analogous to those of a prosecutor.   See

20         

.

21   (2)   The caseworker defendants are not entitled to absolute

22         immunity on plaintiff’s § 1983 claims because their actions

23         were the functional equivalent of arresting officers in

24         criminal cases.


                                    -17-
1    (3)   The caseworker defendants are entitled to qualified immunity

2          on plaintiff’s § 1983 claims because their actions were

3          objectively reasonable under the circumstances.    See

4          

–96.

5    (4)   For plaintiff’s state-law malicious prosecution claims, all

6          defendants are entitled to absolute immunity under New York

7          law.   See 

.

8    (5)   For plaintiff’s state-law breach of duty claims, the lawyer

9          defendants are entitled to absolute immunity under New York

10         law because their actions involved the conscious exercise of

11         discretion of a judicial or quasi-judicial nature.    See

12         

.     The caseworker defendants are

13         entitled to qualified immunity under New York law because

14         they did not commit willful misconduct or gross negligence.

15         See N.Y. Soc. Serv. Law § 419.

16         Accordingly, the judgment of the district court dismissing

17   the case in its entirety is hereby AFFIRMED.




                                     -18-