Gray, William v. Poole, Theisha

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided March 27, 2001

No. 00-7130

William T. Gray, III,
Appellant

v.

Theisha Poole, et al.,
Appellees

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

---------

On Motions for Summary Affirmance

---------

Robert Rigsby, Corporation Counsel, Charles Reischel,
Deputy Corporation Counsel, and Mary L. Wilson, Assistant
Corporation Counsel, were on the motion for summary affir-
mance filed by appellees Theisha Poole, et al.

Kevin C. Newsom and Kurt G. Calia were on the motion
for summary affirmance filed by appellee Lisa M. Farabee.

 William T. Gray, III, appearing pro se, was on the opposi-
tions to appellees' motions for summary affirmance.

Before: Ginsburg, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: This case poses the question
whether attorneys of the District of Columbia's Office of
Corporation Counsel are absolutely immune from damages
under 42 U.S.C. s 1983 for their conduct in initiating and
prosecuting a child neglect action. We conclude that they are
and summarily affirm the district court's dismissal of a dam-
ages suit brought by a custodian charged with neglect.

I

Appellant William Thomas Gray, III was the custodian of
his minor brother and the legal guardian of his brother's
estate. In April 1998, the Probate Division of the District of
Columbia Superior Court removed Gray as legal guardian,
finding him to be "mentally ill and in need of relief from his
duties." Robertson v. Gray, GDN 12-97, Admin. No.
0057-97, slip op. at 4 (D.C. Super. Ct., Prob. Div. Apr. 30,
1998). In March of the following year, the District of Colum-
bia instituted a separate child neglect action, charging that
Gray, who was still serving as his brother's custodian, was not
providing his brother with adequate care. Pet., In re P.G.,
No. N-363-99, S.F. No. 211453 (D.C. Super. Ct., Family Div.,
Neglect Branch Mar. 27, 1999). Two months later, citing the
decision of the Probate Division, the District amended its
neglect petition to add as an additional ground that Gray
lacked the mental capacity to care for his brother.

Appellee Lisa M. Farabee filed and prosecuted the neglect
action against Gray as part of her duties as Special Assistant
Corporation Counsel for the District of Columbia.1 At the
time the neglect suit was filed, appellee Jo Anne Robinson

__________
1 Farabee served in this capacity from December 1998 to June
1999, while on temporary assignment as part of the pro bono
program of Covington & Burling, a District of Columbia law firm.

was Acting Corporation Counsel for the District of Columbia.
Appellee Theisha Poole was the social worker assigned to the
neglect case by the District's Child and Family Services
Agency.

In August 1999, while the neglect proceeding was pending,
Gray sued Farabee, Robinson, and Poole in the United States
District Court for the District of Columbia, asserting a cause
of action under 42 U.S.C. s 1983.2 Gray alleged that the
defendants filed the neglect action with knowledge that it was
"without a basis or cause," and that they subsequently
amended the action based on "unreliable and unverified"
statements of the judge in the Superior Court probate case.
Compl. at 2. Gray sought $10 million in damages for uncon-
stitutional "harassment, defamation of character, [and] libel-
ous and slanderous statements, created by Defendants." Id.
at 4.

In January 2000, Farabee filed a motion to dismiss pursu-
ant to Federal Rule of Civil Procedure 12(b)(6), contending
that she was absolutely immune from liability because of her
role as the government prosecutor of the neglect action.
Robinson filed a similar motion to dismiss in March 2000. In
an order dated April 27, 2000, the district court granted
defendants' motions, holding that "[g]overnment attorneys
are absolutely immune from liability for their actions in
initiating and prosecuting civil child welfare cases." Gray v.
Poole, No. 99-cv-2233, slip op. at 2 (D.D.C. Apr. 27, 2000).
Because Gray "d[id] not allege that Farabee injured him in
any manner outside the scope of the neglect proceedings," the
district court found that absolute immunity covered Farabee.
Id. at 3. The court also found Robinson "entitled to absolute
immunity[,] for the same reasons as the attorney she super-

__________
2 Section 1983 provides that every person who, under color of
law "of any State or Territory or the District of Columbia," deprives
another of a constitutional right "shall be liable to the party
injured." 42 U.S.C. s 1983. Although Gray's complaint did not
expressly state that it was based on s 1983, the district court
construed it as such, and all parties have adopted that construction.

vised, defendant Farabee." Id. at 4.

Gray appealed the district court's ruling, and Robinson and
Farabee now move for summary affirmance.3

II

We review the dismissal of plaintiff's complaint de novo,
and accept its factual allegations as true. See Buckley v.
Fitzsimmons, 509 U.S. 259, 261 (1993); Sloan v. United
States Dep't of Hous. and Urban Dev., 236 F.3d 756, 759
(D.C. Cir. 2001). We will grant summary affirmance only
when the merits of the parties' positions are so clear that
expedited action is justified and further briefing unnecessary.
Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-98
(D.C. Cir. 1987). In this case, because the merits are so
clear, we summarily affirm the dismissal of Gray's complaint
against Farabee and Robinson.

A

The Supreme Court has recognized two kinds of immunity
applicable to public officials sued for damages under s 1983.
Most officials receive only qualified immunity, which protects
them from liability for the performance of discretionary func-
tions when "their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable per-
son would have known." Buckley, 509 U.S. at 268 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Court
has also determined, however, that "some officials perform
'special functions' which ... deserve absolute protection from
damages liability." Id. at 268-69 (quoting Butz v. Economou,
438 U.S. 478, 508 (1978)). Where absolute immunity is

__________
3 The district court dismissed the complaint against Poole as
well, stating that it "agree[d] with those courts that have extended
absolute immunity to social workers who assist with the prosecution
of child neglect cases." Gray v. Poole, slip op. at 4-5. Without
commenting on the merits of that decision, we conclude that it does
not meet the stringent standards for summary affirmance. We
have therefore, by separate order, directed full briefing and argu-
ment for Gray's appeal of Poole's dismissal.

deemed appropriate, an official is protected from all suits
attacking conduct within the scope of the immunity, even if
the official is alleged to have acted in bad faith. See Moore v.
Valder, 65 F.3d 189, 194 (D.C. Cir. 1995).

The Court has recognized as "special functions" deserving
of absolute immunity those that are similar "to functions that
would have been immune when Congress enacted s 1983."
Buckley, 509 U.S. at 268-69. Even where there is a common-
law tradition of absolute immunity for a given function, the
Court further considers "whether s 1983's history or pur-
poses nonetheless counsel against recognizing the same im-
munity in s 1983 actions." Id. at 269 (quoting Tower v.
Glover, 467 U.S. 914, 920 (1984)). In making these determi-
nations, the Court applies a "functional approach," looking to
"the nature of the function performed, not the identity of the
actor who performed it." Id. (quoting, respectively, Burns v.
Reed, 500 U.S. 478, 486 (1991) and Forrester v. White, 484
U.S. 219, 229 (1988)).

In Imbler v. Pachtman, the Supreme Court followed this
general approach in holding that a criminal prosecutor is
immune from damages under s 1983 for "initiating a prosecu-
tion" and "presenting the State's case." Imbler v. Pachtman,
424 U.S. 409, 431 (1976). The Court first found the common-
law immunity of prosecutors for such functions to be "well
settled," and then concluded that "the same considerations of
public policy that underlie the common-law rule likewise
countenance absolute immunity under s 1983." Id. at 424.
These considerations included the "concern that harassment
by unfounded litigation would cause a deflection of the prose-
cutor's energies from his public duties, and the possibility
that he would shade his decisions instead of exercising the
independence of judgment required by his public trust." Id.
at 423. Such unfounded litigation, the Court feared, "could
be expected with some frequency, for a defendant often will
transform his resentment at being prosecuted into the ascrip-
tion of improper and malicious actions to the State's advo-
cate." Id. at 425; see also Buckley, 509 U.S. at 270 n.4;
Burns, 500 U.S. at 485-86.

 The Supreme Court extended Imbler beyond the context of
criminal prosecutions in Butz v. Economou, holding absolute
immunity applicable to agency attorneys in administrative
enforcement proceedings. Butz, 438 U.S. at 516-17. Butz
concerned a plaintiff who controlled a company registered
with the Department of Agriculture as a commodity futures
commission merchant. The Department sought to revoke or
suspend the company's registration by filing an administra-
tive complaint and conducting administrative proceedings be-
fore an agency hearing examiner. Plaintiff responded by
suing senior Department officials and the Department attor-
ney who had prosecuted the proceeding. Id. at 481-82.

In analyzing the defendants' immunity claims, Butz first
recounted the historical immunity of prosecutors previously
discussed in Imbler, and particularly noted "the common-law
precedents extending absolute immunity to parties participat-
ing in the judicial process: judges, grand jurors, petit jurors,
advocates, and witnesses." Id. at 509 (emphasis added); see
also Burns, 500 U.S. at 489-90 ("Like witnesses, prosecutors
and other lawyers were absolutely immune from damages
liability at common law for making false or defamatory state-
ments in judicial proceedings...." (emphasis added)). Em-
ploying the functional approach described above, the Court
declared that "agency officials performing certain functions
analogous to those of a prosecutor should be able to claim
absolute immunity with respect to such acts." Butz, 438 U.S.
at 515.

The Butz Court then turned its attention to two classes of
defendants. Considering first those officials "responsible for
the decision to initiate or continue a proceeding subject to
agency adjudication," id. at 516, the Court held: "The deci-
sion to initiate administrative proceedings against an individu-
al or corporation is very much like the prosecutor's decision
to initiate or move forward with a criminal prosecution," id. at
515. As with prosecutors, the Court explained, "[t]he discre-
tion which executive officials exercise with respect to the

initiation of administrative proceedings might be distorted if
their immunity from damages arising from that decision was
less than complete." Id. And as with the decision to prose-
cute, there is "a serious danger that the decision to authorize
proceedings will provoke a retaliatory response," and that
"[a]n individual targeted by an administrative proceeding will
react angrily and may seek vengeance in the courts." Id.
Furthermore, the Court noted, "[t]he defendant in an en-
forcement proceeding has ample opportunity to challenge the
legality of the proceeding," id., and to have "[h]is claims that
the proceeding is unconstitutional ... heard by the courts,"
id. at 516. Accordingly, the Court held that those officials
who are responsible for the decision to initiate or continue
administrative proceedings are "entitled to absolute immunity
from damages liability for their parts in that decision." Id.

Focusing next on the role of an agency attorney who
"present[s] evidence in an agency hearing," the Court de-
clared that it could "see no substantial difference between the
function" of such an attorney "and the function of the prose-
cutor who brings evidence before a court." Id. If agency
attorneys were held personally liable for damages, the Court
reasoned, they, like prosecutors, "might hesitate to bring
forward some witnesses or documents." Id. at 517. More-
over, because the evidence submitted by agency attorneys,
like that submitted by prosecutors, is "subject to attack
through cross-examination, rebuttal, or reinterpretation by
opposing counsel," defendants' interests are adequately pro-
tected. Id. Thus, the Court concluded, "an agency attorney
who arranges for the presentation of evidence on the record
in the course of an adjudication is absolutely immune from
suits based on the introduction of such evidence." Id.4

__________
4 Although Butz involved a suit brought against federal officials
directly under the Constitution pursuant to Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971), Butz held that there is
no distinction for purposes of immunity between such a suit and one
brought against state officials under s 1983. Butz, 438 U.S. at 504;
see also Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 n.5
(1993).

 B

Neither the Supreme Court nor this court has yet ad-
dressed the specific question raised in this case: whether
absolute immunity extends to government attorneys for their
conduct in initiating and prosecuting civil child neglect ac-
tions. Butz, however, is indistinguishable from the situation
before us. We "can see no substantial difference" between
the function of agency attorneys in bringing enforcement
actions before administrative tribunals and that of District
attorneys in bringing neglect actions in Superior Court.
Butz, 438 U.S. at 516. In both contexts, government attor-
neys "must make the decision to move forward ... free from
intimidation or harassment." Id. The prospect of angry,
retaliatory litigation by targets of the attorneys' actions is at
least as likely in child neglect cases as in efforts to suspend
the registration of commodities merchants. Moreover, as was
true in Butz, "the legal remedies already available" to those
involved in child neglect proceedings "provide sufficient
checks on agency zeal." Id. Gray may challenge the legality
of the District's actions directly in those proceedings and may
raise claims of unconstitutional conduct both there and on
appeal.

Seeing no substantial difference between the function of
prosecutors and that of agency attorneys in initiating pro-
ceedings and presenting evidence, the Butz Court extended
the historical immunity of the former to the latter. If
anything, the function of an attorney who litigates a Superior
Court neglect action is closer to that of the prosecutor in
Imbler than was the function of the agency attorney who
litigated administrative hearings in Butz itself: Although
neither this case nor Butz involved a criminal prosecution, all
of the conduct here was "intimately associated with the
judicial phase," Imbler, 424 U.S. at 430 (emphasis added),
rather than the administrative phase, of the enforcement
process. Accordingly, we hold that government attorneys
who prosecute child neglect actions perform "functions analo-
gous to those of a prosecutor [and] should be able to claim
absolute immunity with respect to such acts." Butz, 438 U.S.
at 515. In so doing, we join every circuit that has addressed

the question. See Snell v. Tunnell, 920 F.2d 673, 692-94
(10th Cir. 1990); Weller v. Dep't of Soc. Servs., 901 F.2d 387,
397 n.11 (4th Cir. 1990); Myers v. Morris, 810 F.2d 1437,
1452 (8th Cir. 1987), overruled on other grounds by Burns,
500 U.S. at 496; Walden v. Wishegrad, 745 F.2d 149, 152 (2d
Cir. 1984).

The only remaining question is whether the conduct of the
District of Columbia attorneys at issue here falls within the
scope of the immunity. At a minimum, it is clear that
absolute immunity extends to "initiating a prosecution" and to
"presenting the State's case." Imbler, 424 U.S. at 431; see
Buckley, 509 U.S. at 269; Moore, 65 F.3d at 193; cf. Buckley,
509 U.S. at 273 (holding that absolute immunity does not
apply "[w]hen a prosecutor performs the investigative func-
tions normally performed by a detective or police officer").
This precludes us from assessing s 1983 liability against
defendants for "making false or defamatory statements dur-
ing, and related to, judicial proceedings." Buckley, 509 U.S.
at 270; see Burns, 500 U.S. at 489-90; Moore, 65 F.3d at 194.

The district court found that Gray's complaint "does not
allege that Farabee injured him in any manner outside the
scope of the neglect proceedings." Gray v. Poole, slip op. at
3. That finding is correct. The complaint alleges that Fara-
bee "filed [the] neglect action without a basis or cause," and
that she then proceeded to amend the action with "unreliable
and unverified probate matters." Compl. at 2. It further
alleges that the materials she filed were "libelous and slan-
derous." Id. All of these allegations against Farabee involve
statements she made to the court and thus fall well within the
scope of her absolute immunity.5

__________
5 Gray's complaint also asserts that the D.C. Superior Court did
not have jurisdiction over the neglect action because Gray had not
been properly served. Compl. at 2. Federal district courts, howev-
er, "lack jurisdiction to review judicial decisions by state and
District of Columbia courts." Richardson v. Dist. of Columbia
Court of Appeals, 83 F.3d 1513, 1514 (D.C. Cir. 1996) (citing Rooker
v. Fidelity Trust Co., 263 U.S. 413, 415 (1923) and Dist. of Columbia
v. Feldman, 460 U.S. 462, 476 (1983)). Other than the D.C. Court

 Although the caption of Gray's complaint also names then-
Acting Corporation Counsel Robinson as a defendant, the
body of the complaint does not mention any specific action
taken by her; indeed, it does not mention her at all. Gray's
papers in this court describe Robinson as "Farabee's supervi-
sor," and assert only that she "should have never allowed
Defendant Farabee to proceed with an unlawful case." Opp'n
to Defs.' Mot. for Summ. Affirm. at 3-4. At most, this would
make Robinson "responsible for the decision to initiate or
continue [the] proceeding"--a function Butz clearly held to be
within the scope of absolute immunity. Butz, 438 U.S. at 516.

III

We conclude that attorneys for the District of Columbia are
absolutely immune from damages under 42 U.S.C. s 1983 for
their conduct in initiating and prosecuting child neglect ac-
tions. As this conclusion follows necessarily from the Su-
preme Court's decision in Butz, as well as from the holdings
of all the circuits to have addressed the question, this case is
appropriate for summary disposition. The decision of the
district court dismissing Gray's complaint against Farabee
and Robinson is

Affirmed.

__________
of Appeals, the United States Supreme Court is the only court with
jurisdiction to review this aspect of Gray's complaint. Id. We
note, moreover, that this is the second time Gray has sought review
of the neglect action in federal court on this ground. In 1999, he
attempted to remove the case from Superior Court to the United
States District Court for the District of Columbia. That case was
dismissed and no appeal was taken. In re: Patrick Gray, No.
99-cv-2230 (D.D.C. Aug. 19, 1999).