Acceptance of that argument would lead to absolute immunity for all state workers who act under color of state law and would nullify § 1983. Defendants Ragland, Smith and Fieroh are not judicial actors and are not entitled to absolute immunity.
B. Qualified Immunity
Absolute immunity being denied, the inquiry now turns to whether defendants Klein, Ragland, Smith and Fieroh are entitled to qualified immunity. Generally, public officials are entitled to immunity unless it has been authoritatively decided that their conduct is forbidden. Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Alliance to End Repression v. City of Chicago, 820 F.2d 873, 875 (7th Cir. 1987). Determination of qualified immunity is a legal question the answer to which is dependent upon the particular facts of the case. Green v. Carlson, 826 F.2d 647, 649 (7th Cir. 1987). When a plaintiff sues a government official in his individual capacity, the plaintiff is trying to impose personal liability upon that official for actions performed under color of state law. Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985).
The Supreme Court enunciated the test for qualified immunity holding that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as 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. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The Harlow standard is specifically designed to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment."
Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Whether public officials may be held personally liable for allegedly unlawful official actions turns upon the "objective reasonableness" of the officials' actions. The officials' actions must be assessed in light of the legal rules that were "clearly established" at the time that the action was taken. Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Harlow, 457 U.S. at 818; Colaizzi v. Walker, 812 F.2d 304 (7th Cir. 1987) (test is "whether the law was clear in relation to the specific facts confronting the public official when he acted").
To be "clearly established," the right must be "sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful." Colaizzi, 812 F.2d at 310 (Bauer, C.J., dissenting on other grounds) (citing Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir. 1986)). In Landstrom v. Illinois Dept. of Children & Family Services, 892 F.2d 670 (7th Cir. 1990), the Seventh Circuit set forth the following guideline for deciding qualified immunity questions:
Once the defendant's actions are defined or characterized according to the specific facts of the case the characterization is compared to the body of law existing at the time of the alleged violation to determine if constitutional, statutory, or case law shows that the now specifically defined actions violated the clearly established law.
Id. at 675 (quoting Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir. 1988).
As to defendant Klein, the issue is whether plaintiffs had a clearly established right to be free from Klein's alleged encouragement or improper evaluation of Kristina's stories of abuse and insistence that John Fittanto be arrested. There is no case on point in the Seventh Circuit concerning the challenged conduct of interviewing a child in such a way that the interview inevitably produces fabricated accusations, which is the conduct that plaintiffs allege. In Myers v. Morris, 810 F.2d 1437 (8th Cir. 1987), however, the Eighth Circuit discussed the issue of techniques used to interview children that had been allegedly sexually abused.
Myers stemmed from a nationally publicized investigation of an "organized sexual child abuse ring" in Jordan, Minnesota during 1983 and 1984. See In re Scott County Master Docket, 618 F. Supp. 1534 (D. Minn. 1985); "Sex Ring" Fallout, A.B.A.J., Feb. 1985, at 17 (six of the Jordan, Minnesota families file multimillion-dollar civil suits against prosecutor, county officials and therapists involved in the initial criminal proceedings). In Myers, plaintiffs alleged that defendants deceived judicial officers as to the reliability of the children's statements, interrogated the children for the purpose of eliciting accusations and used interviewing methods so flawed that they inevitably produced false and fabricated accusations. Myers, 810 F.2d at 1445. The Eighth Circuit concluded that the interviewing occurred in "a grey area of investigative procedure as to which there were, and probably still are, less than clearly established legal norms." Id. at 1461. Because the law in 1984 and 1985 was not clearly established, the court held that the defendants who interviewed the children were entitled to qualified immunity. Id. (noting that this was a case of first impression in the circuit and "Neither the Supreme Court nor any other circuit has addressed the application of the fourth or fourteenth amendment in the context of a child abuse investigation"). The Eighth Circuit did not announce a standard for future cases.
Plaintiffs point to no clearly established law that would have put Klein on notice that her actions were unlawful. The law concerning child abuse workers and children who may have been sexually abused is no clearer today than it was in 1984 and 1985 when the Eighth Circuit decided Myers. Because the law in this area is not clearly established, defendant Klein is entitled to qualified immunity for her conduct.
Plaintiffs counter that this case is remarkably like Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990). In that case child care workers deliberately fabricated allegations of child prostitution and pornography in order to obtain a court order for the removal of children from a foster home. In that case, the child care workers were denied qualified immunity. Snell, 920 F.2d at 696-700. The challenged conduct in Snell, however, was very different from that alleged here. In Snell, the child care workers knew that any allegations of child sexual abuse were false. Id. at 698. Plaintiffs make no such allegations in this case.
Officer Martinez, who was present at Kristina's interviews, admitted that Kristina related that she had witnessed other activities occurring in the Fittanto home (Answer P21) and that Kristina alleged that John Fittanto participated in various sexual activities with her (Answer P22). Based upon this independent support for what was said at Kristina's interview, it cannot be said that defendant Klein fabricated Kristina's allegations.
Although Klein's conduct may ultimately be held unreasonable, plaintiffs cannot show that defendant Klein's conduct violated "clearly established" legal rules. Violation of a clearly established right requires ex ante knowledge that such conduct is prohibited -- something plaintiffs fail to show in this case. See Landstrom v. Illinois Dept. of Children & Family Services, 892 F.2d 670 (7th Cir. 1990) (child care workers who conducted nude examinations of child entitled to qualified immunity); Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986) (holding that where the constitutionality of child abuse workers' procedures cannot be determined, plaintiffs cannot maintain that defendants should have known that their actions violated a clearly established constitutional right). Therefore, Klein is entitled to qualified immunity for her actions taken during Kristina's interview and her motion to dismiss is granted.
As to defendants Ragland and Smith, social workers are entitled to qualified immunity when, acting upon a good faith belief that a child is being abused, they remove that child from the family home. Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir. 1987); Cobb v. City of Denver, 761 F. Supp. 105, 107 (D. Colo. 1991). After receiving a report of child abuse, defendant Smith assigned a case worker to investigate. Confronted with a report from the Advocacy Center and the arrest of Mr. Fittanto on sexual abuse charges, Ms. Smith's actions were clearly based upon a good faith belief that Marie was being abused. As to defendant Ragland, in light of Mr. Fittanto's arrest, he acted also in a good faith belief that Marie had been abused and that Sara would be abused. Both DCFS employees became involved after Mr. Fittanto's arrest and acted in a good faith belief that Marie and Sara were in danger. Therefore, defendants Smith and Ragland are entitled to qualified immunity. Consequently, as to defendants Smith and Ragland the motion to dismiss is granted.
As to defendant Fieroh, police officers sued under § 1983 "will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that an arrest warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). A police officer is entitled to qualified immunity if he can establish as a matter of law that a reasonable officer, confronted with the same circumstances, could have believed that his actions, even though mistaken, were reasonable. Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).
Defendant Fieroh presents no cause for his arrest of Mr. Fittanto other than the unsupported allegations of five year old Kristina Lopez. According to the complaint, these grounds were found to be frivolous. Defendant Fieroh did not investigate Kristina's allegations and points to no other evidence upon which he based his decision to arrest Mr. Fittanto. In her interview, Kristina alleged that Marie Lodge and a girl named Emily were also sexually abused. Yet, Marie Lodge was never questioned and no efforts were made to identify and question "Emily." Moreover, Mr. Fittanto agreed to a search of his home. That search produced no evidence to support any of Kristina's allegations.
From the complaint, it appears that on an objective basis, it was not reasonable to conclude that an arrest warrant should issue. However, the fact that the charges against Mr. Fittanto were found to be groundless would not automatically mean that qualified immunity should be denied. In Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), the Supreme Court held that the objective question is whether a reasonable officer could have believed his conduct to be lawful, in the light of clearly established law and the information he possessed. No argument is made nor is any matter presented relating to objective standards. Only those facts alleged in the complaint are before the court. Thus, defendant Fieroh is not entitled to qualified immunity, and as to defendant Fieroh the motion to dismiss is denied.
IT IS THEREFORE ORDERED that:
(1) Defendant Pamela Klein is dismissed from the case in her official capacity.
(2) Defendant Village of Hanover Park's motion to dismiss is denied.
(3) The motion to dismiss of individual defendants Pamela Klein, Al Ragland, Eunice Smith and Wayne Fieroh is denied in part and granted in part. Defendants Pamela Klein, Eunice Smith and Al Ragland are dismissed from this case; defendant Wayne Fieroh's motion to dismiss is denied. The state law claims against these defendants set forth in Count Four are dismissed without prejudice.
(4) Defendants Village of Hanover Park and Wayne Fieroh are directed to answer plaintiffs' complaint within fourteen days of the date of this order.
William T. Hart, UNITED STATES DISTRICT JUDGE
Dated: MARCH 17, 1992