United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1250

___________

David Perez, husband; Pauline *

McBride, wife, *

*

Appellants. * On Appeal from the United States

* District Court for the District of

v. * South Dakota.

*

Matthew F. Gaffey, duly * 

appointed, qualified, and acting * [UNPUBLISHED]

Deputy States Attorney of Charles *

Mix County; Roy King, a duly *

appointed, qualified and acting social *

worker of the State of South *

Dakota; Sally Winter, an individual, *

*

Appellees. *

___________

Submitted: November 16, 1998

Filed: December 10, 1998 

___________

Before BOWMAN, Chief Judge, BRIGHT, and MAGILL, Circuit Judges.

___________

PER CURIAM.

I.

David Perez and Pauline McBride brought this § 1983 civil rights claim, alleging

the constitutional tort of malicious prosecution, in violation of Perez’ right to be free
2

from unlawful arrest and of McBride’s rights to a personal (marriage) relationship with

Perez. The complaint named as defendants Matthew F. Gaffey, a deputy states attorney

for Charles Mix County in South Dakota, who instituted prosecution of Perez; Roy

King, a social worker in South Dakota; and Sally Winter, a banker who testified as a

witness before a grand jury for Charles Mix County. Determining that absolute

immunity extended to all defendants, the district court dismissed the case on summary

judgment. We affirm on the grounds that absolute immunity applies to prosecutor

Gaffey and grand jury witness Winter. With respect to King, the record establishes

qualified immunity as a matter of law, although not absolute immunity.

II.

In 1995, when McBride failed to report to her physician for blood examinations,

the physician’s assistant, Beth Schroeder, contacted Roy King, an Adult Services and

Aging social worker in South Dakota. Ms. Schroeder expressed an opinion that perhaps

David Perez, McBride’s forty-year-old husband, may have prevented McBride, age

eighty-five, from obtaining treatment. 

Investigation and presentation before the grand jury led to an indictment against

Perez for theft by deception and theft by exploitation, and his subsequent arrest. Upon

mutual agreement, a medical doctor examined McBride and determined her to be

competent to make decisions regarding her property; and prosecutor Gaffey voluntarily

dismissed the criminal case. The plaintiffs then brought this suit in federal court, joining

a state law claim for malicious prosecution.

Magistrate Judge Mark Marshall, before whom the case was heard, properly

granted summary judgment in favor of Gaffey and Winter. The record shows that

Gaffey acted solely as a prosecutor in this case and, as such, properly received absolute

immunity. Imbler v. Pachtman, 424 U.S. 409, 427 (1976) (holding that absolute

immunity is available to prosecutors defending against § 1983 actions). Similarly, the
3

record shows that Winters, whose participation in the case related to her testimony

before the grand jury, properly received absolute immunity. See Strength v. Hubert, 854

F.2d 421, 424 (11 Cir. 1988) (holding that, because witness testimony at a grand jury th

hearing is a function that is intimately associated with a judicial phase of the criminal

process, absolute immunity should be granted to grand jury witnesses); San Filippo v.

U.S. Trust Co. of NY, Inc., 737 F.2d 246, 254 (2d Cir. 1984) (noting that, although the

United States Supreme Court left this question open, “it must follow that grand jury

witnesses should be similarly protected”); Kincaid v. Eberle, 712 F.2d 1023, 1023-24

(7 Cir. 1983) (finding that common law gave absolute immunity to grand jury

th

witnesses, and that the same policy considerations that are significant in trial witness

testimony exist in grand jury witness testimony); see also, Myers v. Bull, 599 F.2d 863,

866 (8 Cir. 1979) (holding that absolute immunity applies to witnesses who testify at th

a deposition).

Additionally, although the magistrate judge granted King absolute immunity as

a grand jury witness, we note that the ruling did not take into account King’s

investigatory activities. Nonetheless, the record supports a finding that King, as a social

worker investigator, is clothed with the same qualified immunity as a police officer. See

Manzano v. South Dakota Dep’t of Soc. Serv., 60 F.3d 505 (8 Cir. 1995) (holding that th

various state officials, including social workers, were entitled to qualified immunity for

child abuse investigations); Lux by Lux v. Hansen, 866 F.2d 1064 (8 Cir. 1989)

th

(concluding that a social worker who investigated into child abuse reports was entitled

to qualified immunity). 

Finally, the federal case, as well as the state case, failed on grounds that the

record does not disclose any evidence of malice by any defendant. 

Accordingly, we affirm the district court’s grant of summary judgment to all

defendants.
4

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.