Brown v. Newberger, 291 F.3d 89, 1st Cir. (2002)

291 F.
3d 89
Theodore S. BROWN and James Linnehan, et al., Plaintiffs,

Appellants,
v.
Eli NEWBERGER, Children's Hospital, Inc., Amy C.
Tischelman, Trial Court of Massachusetts, Department of
Social services, Eileen Kern, Sandra Fyfe, Christopher Salt, and
Jack McCarthy, Jr., Defendants, Appellees.
No. 01-2410.
United States Court of Appeals, First Circuit.

Submitted April 18, 2002.
Decided May 30, 2002.
Barbara C. Johnson on brief for appellants Brown and Linnehan.

J. Walter Freiberg, III, Heather Dauler and Weston, Patrick, Willard &
Redding on brief for appellee Kern. Thomas F. Reilly, Attorney General,
Patrick J. Cassidy, Assistant Attorney General, on brief for appellees Trial
Court of Massachusetts and Department of Social Services.
William P. Hurley and Cogavin & Waystack on brief for appellee
McCarthy.
Rebecca J. Wilson, Sandra P. Criss and Peabody & Arnold LLP, on brief
for appellee Fyfe.
Alexander G. Gray on brief for appellee Salt.
John J. Reardon, Kim S. Gainsboro and Hassan & Reardon, P.C., on brief
for appellees Newberger, Tischelman and Children's Hospital, Inc.
Before LYNCH, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.
COFFIN, Senior Circuit Judge.
These consolidated appeals follow on the efforts of plaintiffs-appellants,

1
Theodore Brown and James Linnehan, to acquire rights to visit their children.
The children had been taken by their mothers during pending divorce and
custody proceedings from Maine to Massachusetts, where the mothers obtained
court orders barring the fathers from visitation on the basis of findings of
sexual abuse.
Brown and Linnehan joined in filing a suit in the United States District Court
for the District of Massachusetts against a dozen defendants, including the Trial
Court of Massachusetts, the Massachusetts Department of Social Services
(DSS), Children's Hospital, several doctors, and mental health and social
workers.
The complaint asserted twelve claims against various defendants. Six invoke
federal law: Count Two (Fourteenth Amendment, interference with parental
rights); Counts Three and Four (Civil Rights Act, 42 U.S.C. 1983); Count
Eight (Civil RICO, 42 U.S.C. 1961-68); and Counts Five and Six
(unspecified federal and civil rights laws). Six claims assert violations of state
laws: Count One (negligence); Count Seven (defamation); Count Nine (breach
of contract); Counts Ten and Eleven (negligent and intentional infliction of
emotional distress); and Count Twelve (Chapter 93A). The district court
dismissed the federal-law claims with prejudice and the state-law claims
without prejudice.
I. Factual Background
4
Brown's complaint alleged that in 1996 his ex-wife hired defendant Eli
Newberger, M.D., a pediatrician and Director of the Family Development
Program of Children's Hospital, to conduct a sexual abuse evaluation of her
children. This took place over a period in excess of seven months. Newberger's
team included defendant Amy Tischelman, M.D., who interviewed Brown's
children. Their joint report was submitted to Brown's ex-wife and was
ultimately given to the court, which then denied visitation rights to Brown.
Linnehan's case presents a more complex series of events. In 1988, defendant

Kern, a social worker employed by New Bedford Child and Family Services,
met with the mother of Linnehan's child Brenden, and with Brenden.
Developing a concern over the possibility of child abuse, Kern deemed herself
a "mandatory reporter" under Massachusetts law, and submitted a report to
DSS. This led to a court-ordered sexual abuse evaluation of Brenden by the
Collis Center. Defendant Sandra Fyfe, a Collis Center employee, performed the
evaluation. A second court-ordered evaluation was also done in 1988 by
defendant Christopher Salt, who submitted a written report to the court and
updated it in 1992. Also in 1992, at the suggestion of Brenden's mother's

attorney, defendant Newberger conducted an assessment spanning several
months, and ultimately submitted his report to the court. In 1993, both
Linnehan and Brenden's mother agreed that defendant McCarthy would serve
as Brenden's therapist and would submit reports to the Probation Department of
the court every six months. The period of such evaluation extended into 1999.
During all this time, Linnehan continued to be denied visitation rights.
II. Discussion
6
As we review the three voluminous volumes of appendices containing some

but not all of the submissions by all the parties, the thirty-seven page opinion of
the district court, and the multiple appellate briefs, we cannot escape the
conclusion that all has been said that can be said. At the present juncture, this
litigation has reached the point where dedication and commitment have outrun
legal merit. Without intending any disrespect, therefore, we shall briefly
indicate our reasons for affirming, without implying that they are the only
grounds available.
A. Claims against the Massachusetts Trial Court and DSS

7
The claims under 42 U.S.C. 1983 fail because a state and its agencies are not
"persons." Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304,
105 L.Ed.2d 45 (1989). The claims based on the Fourteenth Amendment fail
because there has been no unequivocal abrogation of the Commonwealth's
Eleventh Amendment immunity. See Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 55-56, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Alabama v. Pugh, 438
U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). Appellants having sued
only state agencies, not officials, there is no basis for invoking Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Nor is there any basis for
claims that the state agencies violated state law. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 119-21, 104 S.Ct. 900, 79 L.Ed.2d 67
(1984).
On appeal, appellants launch a strenuous argument that Massachusetts has,

from its beginning, waived its immunity from citizen suits through Articles 5
and 11 of its Declaration of Rights. Article 5 reads in part that "the several
magistrates and officers of government ... are at all times accountable to [the
people]." Article 11 proclaims merely that individuals "ought to find a certain
remedy" for all injuries or wrongs.
We are not certain that this argument, although raised in plaintiffs' opposition to
the state defendants' motion for judgment on the pleadings, continued to be

pursued. Appellees Fyfe and Salt contend that it was not raised before the
district court. The court in its opinion did not allude to it. In any event, the
argument is transparently flawed. Article 5 does not speak of either the
Commonwealth or its agencies as entities; the reference is to individuals. The
language is so far removed from unequivocally indicating that citizens have a
right to sue the state in state or federal court that it is not surprising that
appellants have found no reference to the claim in any reported cases and
concede that Article 5 is "alive, albeit ignored." The argument fails.
B. Civil RICO claims against all defendants
10
These claims were not argued in appellants' main brief on appeal, appearing
only in a reply brief. As we have held in the past, an issue raised only in a reply
brief is forfeited. See, e.g., County Motors v. Gen. Motors Corp., 278 F.3d 40,
43 (1st Cir.2002); N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45 (1st
Cir.2001). In any event, as the district court noted, the references to telephone
conversations and uses of the mails fail to meet the particularity requirements
of Fed.R.Civ.P. 9(b). See Ahmed v. Rosenblatt, 118 F.3d 886 (1st Cir.1997).
C. Claims against Children's Hospital, Newberger, Tischelman, Kern, and

McCarthy
11
We dispose of these claims with a common holding that because all of these
defendants were private actors, they cannot be subjected to Section 1983
liability as having acted under color of state law. We apply the familiar test first
articulated in Ponce v. Basketball Fed'n of Puerto Rico, 760 F.2d 375 (1st
Cir.1985), to determine if one can be considered a state actor: "(1) whether
there was an elaborate financial or regulatory nexus between appellants and the
government ... which compelled appellants to act as they did, (2) an assumption
by appellants of a traditionally public function, or (3) a symbiotic relationship
involving the sharing of profits." Id. at 377.
12
Appellants concede that the court did not ask Children's Hospital and Dr.
Newberger to do anything. Instead, appellants claim that state action stemmed
from the fact that Dr. Newberger knew that his reports would be used by the
court. Clearly, the district court was correct in holding that mere knowledge of
probable future use met none of the three tests. Likewise, Dr. Tischelman must
also be accorded private actor status, because her involvement was merely that
of a member of Newberger's team and the interviewer of Brown's younger
children.
13
Defendant Kern's liability as a state actor is pressed on the basis that she filed a
report of suspected sexual abuse of Brenden Linnehan with DSS. Mass. Gen.
Laws ch. 119, 51A, requires a wide variety of social and health workers to
file such reports if they have reasonable cause to believe a child is suffering
from sexual abuse. Both the failure to file reports and frivolous filings are
punishable by fine. One required to file such a report is protected from criminal
or civil liability. Within sixty days from receipt of such a report, DSS must
notify the reporter of its determination of the nature, extent, and causes of
injuries and the social services it intends to provide. While this kind of
"mandatory reporting" goes somewhat beyond the cases dealing with the
voluntary furnishing of information to the police, which we have considered in
Rivera-Ramos v. Roman, 156 F.3d 276, 282 (1st Cir.1998), and Roche v. John
Hancock Mutual Life Insurance Co., 81 F.3d 249, 254 n. 2 (1st Cir.1996), we
conclude that the reporting requirement under section 51A does not create the
kind of regulatory nexus that could justify treating Kern as a state actor.
14
The specific action of Kern was merely to signal the need for DSS to look into
the matter and decide for itself whether there was a problem and what to do
about it. Nothing seems more counterintuitive to us than to reason that a statute
which protects one who complies from civil or criminal actions under state law
should be the vehicle for subjecting the actor to liability under federal law.
Although this issue has, understandably, arisen only rarely in decided cases, we
agree with the holdings in Thomas v. Beth Israel Hospital Inc., 710 F.Supp. 935
(S.D.N.Y.1989), and Haag v. Cuyahoga County, 619 F.Supp. 262, 283
(N.D.Oh.1985), aff'd, 798 F.2d 1414 (6th Cir.1986) (filing a mandatory child
abuse report does not constitute state action).1
15
Defendant McCarthy, earlier alleged to have been a court-appointed

investigator by plaintiffs, was later emphatically characterized as a private
individual by plaintiffs, who asserted that Brenden's parents had agreed that he
was to be the child's therapist and report periodically to the court's Department
of Probation. Appellants invoke state actor status, based on the action of
McCarthy in filing the reports. In McCarthy's case, there is not even a statutory
framework for such action, it being the product of agreement between private
parties. Nor are any of the other determinants of state action implicated.
D. Claims against Salt and Fyfe

16
Appellants pose several arguments concerning these claims. The first is that
neither Salt nor Fyfe was properly appointed. In the case of Salt, who
appellants alleged was appointed by the court as an evaluator, the argument is
that he was improperly appointed under Mass. Gen. Laws ch. 119, 21, 24,
which require the appointee to be qualified as an expert. Salt, the argument

continues, was never so qualified. In Fyfe's case, the argument is that it was her
employer, Collis Center, and not Fyfe, who was court appointed.
17
The essential fact is that both defendants were operating at the request of the
court. They submitted their reports to the court, which accepted them, and
considered them in its actions. We agree with the district court which found that
"Salt was acting in close association with the judicial process" and that "Fyfe
was indisputably acting to carry out a court order." In Watterson v. Page, 987
F.2d 1, 8 (1st Cir.1993), we refused to consider a claim that a psychologist had
investigated appellant's family "without express court authority and direction to
do so," observing that "[t]he right to family integrity clearly does not include a
constitutional right to be free from child abuse investigations." Id. Were
collateral and retrospective attacks on technical defects of court appointments
permitted, the court's work in an already difficult litigation field would often be
undone, with consequent uncertainty, delay, and frustration.
18
Viewing the functions performed by Salt and Fyfe, as we are required to do,
Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S.Ct. 496, 88 L.Ed.2d 507
(1985), we conclude that the information gathering, reporting, and
recommending tasks of both are similar in nature and purpose to those of a
guardian ad litem and qualify to confer absolute quasi-judicial immunity. See
Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989). Another argument made against
both defendants is that they sacrificed whatever immunity they may have had
by their actions violating plaintiffs' constitutional rights. Here, too, however,
Cok makes a relevant comment about the nature of judicial immunity and
therefore quasi-judicial immunity. We stated there that the entitlement is to
"absolute immunity from civil liability for any normal and routine judicial
act.... This immunity applies no matter how erroneous the act may have been,
how injurious its consequences, how informal the proceeding, or how
malicious the motive." Id. at 2. We therefore hold that Salt and Fyfe are entitled
to the protective cloak of absolute quasi-judicial immunity.
E. Other Issues
19
A residue of other issues remains, as to which we have only the briefest of

comments. The district court conscientiously probed the complaint and, giving
plaintiffs-appellants the benefit of doubt, reconstructed a conspiracy claim
under 42 U.S.C. 1985(3), which, however, was defective, lacking any
identification of a cognizable class. This issue, however, has not been pursued
on appeal and is forfeited.
20
Counts 5 and 6, as previously noted, seek to invoke unidentified federal and

state civil rights laws. They do not survive even deferential analysis and are not
pursued on appeal.
21
Appellants take issue with the district court's having removed a default
judgment against defendant Newberger. We have reviewed the reasons
advanced in Newberger's motion to remove default and cannot fault the district
court's exercise of discretion in granting it. We could see very little delay and
no discernible prejudice. See Coon v. Grenier, 867 F.2d 73, 78 (1st Cir.1989).
22
Finally, we further approve the dismissal of the state claims against all
defendants except the Trial Court and DSS, without prejudice. The state claims
against the Trial Court and DSS, as we have noted, must be dismissed with
prejudice.
23
Affirmed.
Notes:
1
Indeed, under 42 U.S.C. 5106a(b)(iv) and its 1974 predecessor, 42 U.S.C.

5106a(b)(1)(B), federal grants to states for child abuse programs require a state
to include provisions for immunity from prosecution under state and local laws,
such as Mass. Gen. Laws ch. 119, 51A. At least one court has ruled that
Congress itself has impliedly created an immunity from section 1983 liability
through this legislationThomas v. Chadwick, 274 Cal.Rptr. 128, 136-37, 224
Cal. App.3d 813, 824 (App.1990).

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291 F.

Theodore S. BROWN and James Linnehan, et al., Plaintiffs,

United States Court of Appeals, First Circuit.

Barbara C. Johnson on brief for appellants Brown and Linnehan.

These consolidated appeals follow on the efforts of plaintiffs-appellants,

Linnehan's case presents a more complex series of events. In 1988, defendant

updated it in 1992. Also in 1992, at the suggestion of Brenden's mother's

As we review the three voluminous volumes of appendices containing some

A. Claims against the Massachusetts Trial Court and DSS

On appeal, appellants launch a strenuous argument that Massachusetts has,

the state defendants' motion for judgment on the pleadings, continued to be

C. Claims against Children's Hospital, Newberger, Tischelman, Kern, and

Defendant McCarthy, earlier alleged to have been a court-appointed

D. Claims against Salt and Fyfe

which require the appointee to be qualified as an expert. Salt, the argument

A residue of other issues remains, as to which we have only the briefest of

Counts 5 and 6, as previously noted, seek to invoke unidentified federal and

Indeed, under 42 U.S.C. 5106a(b)(iv) and its 1974 predecessor, 42 U.S.C.

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