## 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 * Matthew F. Gaffey, duly * appointed, qualified, and acting * [UNPUBLISHED] Deputy States Attorney of Charles * Mix County; Roy King, a duly * appointed, qualified and acting social * worker of the State of South * Dakota; Sally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 free2

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 forCh arles Mix County in South Dakota, who instituted prosecution of Perez; Ro y King, a social worker in South Dakota; and Sally Winter, a banker who testified as a wi tness before a grand jury for Charles Mix County. Determining that absolut e immunity extended to all defendants, the district court dismissed the case on summary judgmen t. We affirm on the grounds that absolute immunity applies to prosecuto r Gaf fey and grand jury witness Winter. With respect to King, the record establishe s qualified immunity as a matter of law, although not absolute immunity.
II. In 1995, when McBride failed to rep ort to her physician for blood examinations, the p hysician’s assistant, Beth Schroeder, contacted Roy King, an Adult Services and Aging social worker in South Dakota. Ms. Schroeder expressed an opinion that perhaps Davi d Perez, McBride’s forty-year-old husband, may have prevented McBride, ag e eighty-five, from obtaining treatment. Investigation and pres entation before the grand jury led to an indictment against Perez for theft by deception and theft by exploitation, and his subsequent arrest. Upon mutual agr eement, a medical doctor examined McBride and determined her to b e competent to make decisions regarding her property; and prosecutor Gaffey voluntarily dismissed the criminal case. The plaintiffs then brought this suit i n federal court, joining a state law claim for malicious prosecution. Magistrate Judge Mark Marshall, before whom the case was heard, properl y gra ntedsummary judgment in favor of Gaffey and Winter. The record shows tha t Gaffey acted solely as a prosecutor in this case and, a s such, properly received absolute immunity. Imbler v. Pachtman , 424 U.S. 409, 427 (1976) (holding that absolut e immunity isavailable to prosecutors defending against § 1983 actions). Similarly, the3

record show s that Winters, whose participation in the case related to her testimon y 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. 198 4) (noting that, although the United States Supreme Court left this question open, “it must follow that grand jury witnesse s 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 wit nesses, and that the same policy considerations that are significant in trial witnes s testimony exist in grand jury witness testimony); s ee also , Myers v. Bull , 599 F.2d 863, 866 (8 C ir. 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 g rand jury witness, we note that the ruling did not take into account King’ s investigatory activities. Nonetheless, the record supports a findin g that King, as a social worker investigator, is clothed with the same qualified immunity as a p olice 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 w orker who investigated into child abuse reports was entitled to qualified immunity).
Fi nally, the federal case, as well as the state case, failed on grounds that th e record does not disclose any evidence of malice by any defendant. Accordingl y, we affirm the district court’s grant of summary judgment to al l defendants.4

A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.