Gray, William T. v. Poole, Theisha

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

        Argued December 7, 2001   Decided January 8, 2002 

                           No. 01-7052

                      William T. Gray, III, 
                            Appellant

                                v.

                         Theisha Poole, 
                             Appellee

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 99cv02233)

     Brian A. Hill, appointed by the court, argued the cause as 
amicus curiae on the side of appellant.  With him on the 
briefs were Alan I. Horowitz and John D. Bates.

     William T. Gray, III, appearing pro se, was on the briefs 
for appellant.

     Mary L. Wilson, Assistant Corporation Counsel, argued 
the cause for appellee.  With her on the brief were Robert R. 
Rigsby, Corporation Counsel, and Charles L. Reischel, Depu-
ty Corporation Counsel.

     Before:  Edwards, Henderson, and Garland, Circuit 
Judges.

     Opinion for the Court filed by Circuit Judge Edwards.

     Edwards, Circuit Judge:  Appellant William T. Gray, III, 
appeals the District Court's dismissal of his pro se lawsuit 
against Theisha Poole, a District of Columbia social worker.  
Poole investigated and helped initiate a child neglect action 
filed in the District of Columbia Superior Court ("Superior 
Court"), which ultimately resulted in the termination of 
Gray's custody of his younger brother.  Gray filed a com-
plaint in District Court, claiming that Poole and the two 
attorneys responsible for the child neglect action had violated 
42 U.S.C. s 1983 in investigating, initiating, and prosecuting 
the matter.  The District Court dismissed Gray's action, 
holding that all three defendants were protected by absolute 
immunity.  This court summarily affirmed the dismissal as to 
the two attorneys.  See Gray v. Poole, 243 F.3d 572 (D.C. Cir. 
2001) ("Gray I").  The only remaining issue before this court 
is whether Poole is protected by absolute or qualified immuni-
ty.

     Poole engaged in two distinct types of activities in connec-
tion with the child neglect matter.  She first investigated the 
case and recommended that a neglect action be brought.  
Those activities were similar to actions taken by police offi-
cers prior to the commencement of a criminal prosecution 
and, consequently, should be assessed in the same way.  
Accordingly, Poole is entitled to only qualified, not absolute, 
immunity for those functions. She also submitted a statement 
to the court in connection with the neglect action.  That 
activity was "intimately associated" with the judicial process 
and, therefore, Poole is entitled to absolute immunity from 
suit for what she said in the statement.  See Imbler v. 
Pachtman, 424 U.S. 409 (1976).

     We hereby affirm in part and reverse in part the District 
Court's dismissal of Gray's claims and remand for further 
proceedings consistent with this opinion.

                          I. Background

     The underlying facts in this case are fully recounted in 
Gray I.  Therefore, we will only briefly summarize the events 
relevant to Poole's appeal.

     Appellant Gray lost custody of his minor brother and 
guardianship of his brother's estate in a series of actions, 
culminating in a neglect action brought by the District of 
Columbia in 1999.  The petition initiating the neglect action 
was signed by the Corporation Counsel for the District of 
Columbia and Poole, and the matter was heard in Superior 
Court.  Subsequent to the initiation of the neglect action, 
Gray filed a pro se law suit against the attorney prosecuting 
the neglect action, Corporation Counsel, and Poole, the social 
worker assigned to the neglect case.  In the original com-
plaint, Gray claimed, inter alia, that Poole violated 42 U.S.C. 
s 1983 in negligently investigating the neglect case and then 
filing an unfounded petition in support of the neglect case.  
In a response to the defendants' motion to dismiss, Gray also 
alleged that Poole made an ill-founded recommendation to 
Corporation Counsel to bring the neglect action and autho-
rized or participated in an illegal entry of Gray's home.

     The District Court dismissed Gray's law suit after finding 
that, on the facts alleged, all three defendants were protected 
by absolute immunity.  See Gray v. Poole, Civ. Act. No. 
99-2233, slip op. at 3, 5 (D.D.C. Apr. 27, 2000).  In Gray I, 
this court granted the motions for summary affirmance filed 
by the two attorneys who brought and supervised the neglect 
action, and "directed full briefing and argument for Gray's 
appeal of Poole's dismissal."  243 F.3d at 575 n.3.  The court 
then appointed amicus curiae to present argument in support 
of Gray.

                          II. Discussion

     In reviewing the District Court's dismissal of Gray's law 
suit, we must accept all of appellant's allegations as "entirely 

true."  Buckley v. Fitzsimmons, 509 U.S. 259, 261 (1993).  
And, because Gray is proceeding pro se, our review of his 
pleadings is subject to "less stringent standards than formal 
pleadings drafted by lawyers."  Haines v. Kerner, 404 U.S. 
519, 520 (1972).  We must also examine other pleadings to 
understand the nature and basis of Gray's pro se claims.  See 
Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 
1999) (holding that District Court abused its discretion when 
"failing to consider [pro se plaintiff's] complaint in light of his 
reply to the motion to dismiss").

     In reviewing Gray's claims, we must first consider whether 
Poole is entitled to absolute immunity, as the District Court 
held, or only qualified immunity, as Gray contends.  The 
Supreme Court has instructed the lower federal courts to 
adhere to a "functional approach" in determining the applica-
bility of absolute versus qualified immunity:

          [W]e have recognized two kinds of immunities under 
     s 1983.  Most public officials are entitled only to quali-
     fied immunity.  Harlow v. Fitzgerald, 457 U.S. 800, 807 
     (1982);  Butz v. Economou, 438 U.S. 478, 508 (1978).  
     Under this form of immunity, government officials are 
     not subject to damages liability for the performance of 
     their discretionary functions when "their conduct does 
     not violate clearly established statutory or constitutional 
     rights of which a reasonable person would have known."  
     Harlow v. Fitzgerald, 457 U.S., at 818.  In most cases, 
     qualified immunity is sufficient to "protect officials who 
     are required to exercise their discretion and the related 
     public interest in encouraging the vigorous exercise of 
     official authority."  Butz v. Economou, 438 U.S., at 506.
     
          We have recognized, however, that some officials per-
     form "special functions" which, because of their similarity 
     to functions that would have been immune when Con-
     gress enacted s 1983, deserve absolute protection from 
     damages liability.  Id., at 508.  "[T]he official seeking 
     absolute immunity bears the burden of showing that such 
     immunity is justified for the function in question."  
     Burns v. Reed, 500 U.S. [478,] 486 [(1991)];  Antoine v. 
     Byers & Anderson, Inc., 508 U.S. 429, 432, and n.4 
     
     (1993).  Even when we can identify a common-law tradi-
     tion of absolute immunity for a given function, we have 
     considered "whether s 1983's history or purposes none-
     theless counsel against recognizing the same immunity in 
     s 1983 actions."  Tower v. Glover, 467 U.S. [914,] 920 
     [(1984)].  Not surprisingly, we have been "quite sparing" 
     in recognizing absolute immunity for state actors in this 
     context.  Forrester v. White, 484 U.S. 219, 224 (1988).
     
          In determining whether particular actions of govern-
     ment officials fit within a common-law tradition of abso-
     lute immunity, or only the more general standard of 
     qualified immunity, we have applied a "functional ap-
     proach," see, e.g., Burns, 500 U.S., at 486, which looks to 
     "the nature of the function performed, not the identity of 
     the actor who performed it," Forrester v. White, 484 
     U.S., at 229.
     
Buckley, 509 U.S. at 268-69.

     In Gray I, we examined the Supreme Court's application of 
this functional approach in two cases - Imbler and Butz - and 
held that "government attorneys who prosecute child neglect 
actions perform 'functions analogous to those of a prosecutor 
[and] should be able to claim absolute immunity with respect 
to such acts.' "  243 F.3d at 577 (quoting Butz, 438 U.S. at 
515).  Here, Poole urges us to extend this analogy so that she 
is afforded absolute immunity for all of her actions.  Amicus 
for Gray, on the other hand, asserts that, because the statuto-
ry responsibility for initiating the neglect action did not lie 
with Poole, any analogy to prosecutorial immunity is spurious.  
Amicus suggests, instead, that we should adopt a rule that 
provides absolute immunity only for in-court oral testimony, 
which, in this case, would afford Poole only qualified immuni-
ty.  In our view, neither Poole nor Gray has enunciated the 
correct standard for the determination of the appropriate 
level of official immunity to which Poole is entitled.

     We begin our analysis by identifying the relevant functions 
carried out by Poole that form the basis of Gray's complaint.  
The actions at issue include two distinct and separate types of 
activities.  Some of Gray's charges involve Poole's functions 

as an investigator and adviser to the Corporation Counsel, 
while the remaining claims focus on the statement Poole 
signed in the neglect action.  These two groups of functions 
fall neatly into two clear-cut categories, which we discuss in 
turn.

     Poole's actions as an investigator and adviser to the Corpo-
ration Counsel - i.e., relating to whether Corporation Counsel 
should bring the neglect action - are analogous to actions 
taken by police officers prior to the giving of testimony in a 
criminal prosecution.  Like a police officer, Poole tracked 
down information, made professional judgments, and passed 
on her findings to attorneys in the office of the Corporation 
Counsel.  These functions are subject to qualified, not abso-
lute, immunity.

     In Malley v. Briggs, 475 U.S. 335, 344-45 (1986), the 
Supreme Court made it clear that, in assessing the appropri-
ate level of official immunity, the function of a police officer 
applying for a warrant is not equivalent to the function of a 
prosecutor seeking an indictment:

     We intend no disrespect to the officer applying for a 
     warrant by observing that his action, while a vital part of 
     the administration of criminal justice, is further removed 
     from the judicial phase of criminal proceedings than the 
     act of a prosecutor in seeking an indictment.  Further-
     more, ... the prosecutor's act in seeking an indictment is 
     but the first step in the process of seeking a convic-
     tion....  Thus, we shield the prosecutor seeking an 
     indictment because any lesser immunity could impair the 
     performance of a central actor in the judicial process.
     
Id. at 342-43 (footnote omitted).  The distinction drawn in 
Malley is controlling here, for it confirms that a social worker 
who functions as investigator and advisor has no legitimate 
basis upon which to claim absolute immunity in actions 
brought with respect to these functions.

     The statement Poole signed in the child neglect action in 
Superior Court is a different matter, however, because her 
function in this connection was as a witness in a judicial 

proceeding and hence was "intimately associated" with the 
judicial process.  Poole is therefore entitled to absolute im-
munity from suit for what she said in that statement.  Under 
the relevant District of Columbia statutes, Poole was not 
required to play any role in the initiation of the neglect 
proceeding.  The Corporation Counsel, not the social worker, 
must prepare every petition "after an inquiry into the facts 
and a determination of the legal basis for the petition."  D.C. 
Code s 16-2305(c) (2001);  see also In re:  J.J.Z., 630 A.2d 186, 
190 (D.C. 1993) (describing statutory framework).  In this 
case, however, Poole was much more than a bystander in the 
Superior Court action.  She signed a statement in the petition 
setting forth the facts of the case and attesting, under oath, 
that those facts were true.  Thus, while Poole may not have 
been required to sign the petition, she was not forbidden from 
doing so.  And when she did, she acted as a witness in a 
judicial proceeding.

     In Briscoe v. LaHue, 460 U.S. 325, 326 (1983), the Court 
held that government officials "are absolutely immune from 
damages liability based on their testimony" in a judicial 
proceeding.  This same principle applies to Poole's partic-
ipation in the Superior Court action.  It does not matter 
whether Poole's sworn statement was given in oral or written 
form;  what matters is that her statement was the equivalent 
of sworn testimony in a judicial proceeding.

     Amicus for Gray argues that Poole's sworn statement is 
not entitled to absolute immunity protection, because it was 
not "intimately associated" with the Superior Court judicial 
process.  In other words, counsel appears to suggest that 
Poole should only be protected by absolute immunity if she 
appeared as a witness and offered her statement in the form 
of oral testimony before the court.  This argument does not 
hold up, however, when viewed in the light of Briscoe.  The 
Court in Briscoe looked to English common law to determine 
the bounds of absolute immunity for "parties and witnesses 
from subsequent damages liability for their testimony in 
judicial proceedings."  460 U.S. at 330-31 (footnote omitted).  
None of the common law cases cited by the Court distin-
guished between in-court and out-of-court, or written and oral 

statements.  Indeed, in Henderson v. Broomhead, 157 Eng. 
Rep. 964, 967 (Ex. Ch. 1859), one of the cases cited by the 
Supreme Court, the English court considered "whether an 
action will lie against a party who in the course of a cause 
made an affidavit which contained matter scandalous to the 
present plaintiff, and which was false and malicious" and held 
that "[a]n action will not lie for defamatory words spoken in 
the course of litigation which are relevant to that litigation."  
The relevant variable in the court's analysis was the nature of 
the connection between the disputed affidavit statement and 
the judicial process, not the form of the testimony.  Under 
this standard, Poole's statement under oath that was given to 
initiate the Superior Court action is protected by absolute 
immunity.

     The Supreme Court's recent discussion of absolute immuni-
ty in Kalina v. Fletcher, 522 U.S. 118 (1997), further supports 
this conclusion.  There, 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.  Id. at 121.  The Court granted absolute 
immunity for the first two documents - the information and 
the motion for an arrest warrant.  The Court denied absolute 
immunity for the affidavit that was given in support of the 
arrest warrant, however, because the prosecutor was not 
functioning as " 'an advocate for the State' " when she submit-
ted the affidavit.  Id. at 126 (quoting Buckley, 509 U.S. at 
273).  Thus, Kalina confirms that officials who serve as 
complaining witnesses receive qualified, not absolute, immuni-
ty.  See also Malley, 475 U.S. at 340 (stating that "complain-
ing witnesses were not absolutely immune at common law").

     In this case, Poole's statement under oath was not that of a 
"complaining witness."  Rather, the petition initiated the 
neglect action in Superior Court, just as a complaint does in 
federal district court, and Poole's sworn statement was thus 
an undeniable part of the "judicial process."  In Kalina and 
Malley, by contrast, the sworn statements merely supported 
warrant applications, filed as part of an ex parte process prior 
to the indictment that begins the criminal case.  Like the 

trial testimony in Briscoe, Poole's statements are "intimately 
associated" with the judicial process.  See Malley, 475 U.S. at 
342-43.

     Poole makes three other arguments on appeal, all of which 
are meritless and only one of which is even worthy of 
discussion. Poole claims that, because Gray's claims are "inex-
tricably intertwined with the propriety of the Superior Court 
neglect proceeding concerning his younger brother and could 
have been litigated in that neglect proceeding," Br. for Thei-
sha Poole at 17, the Rooker-Feldman doctrine precludes this 
court from exercising jurisdiction.  The Rooker-Feldman doc-
trine prevents lower federal courts from hearing cases that 
amount to the functional equivalent of an appeal from a state 
court.  See Dist. of Columbia Court of Appeals v. Feldman, 
460 U.S. 462 (1983);  Rooker v. Fid. Trust Co., 263 U.S. 413 
(1923).  Because 28 U.S.C. s 1257 requires that appeals from 
state courts go exclusively to the Supreme Court, the Rooker-
Feldman doctrine ensures that the Supreme Court's appel-
late jurisdiction is exclusive.  See Stanton v. Dist. of Colum-
bia Court of Appeals, 127 F.3d 72, 75 (D.C. Cir. 1997).  In 
this case, however, Rooker-Feldman does not come into play, 
because Gray's federal claims are entirely separate and dis-
tinct from the result of the D.C. neglect action.  The legality 
of Poole's actions was not at issue in the neglect action and 
the remedy for any illegal action in the s 1983 suit - money 
damages - would not disturb the judgment of the state court 
action - custody.  See, e.g., Ernst v. Child & Youth Servs. of 
Chester County, 108 F.3d 486, 491-92 (3d Cir. 1997) (declining 
to invoke Rooker-Feldman doctrine under similar circum-
stances).

                         III. Conclusion

     For the reasons given above, we affirm in part and reverse 
in part the District Court's dismissal of Gray's claims against 
Poole on absolute immunity grounds.  Poole is entitled to 
absolute immunity for any testimony that she gave to Superi-
or Court in the child neglect action, and only qualified immu-

nity for all other disputed actions at issue in this case.  We 
remand for further proceedings consistent with this opinion.

                                                             So ordered.