The Honorable Jed S. Rakoff, United States District Judge * for the Southern District of New York, sitting by designation. -1- 08-3069-cv Cornejo v. Bell 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5

------------- 6 7 August Term, 2009 8 9 (Argued: October 7, 2009 Decided: January 4, 2010) 10 11 Docket No. 08-3069-cv (Lead), 08-3071-cv (Con) 12 13 - - - - - - - - - - - - - - - - - - - - - - X 14 15 SALLY CORNEJO, individually and on behalf of her infant child 16 Kevin Salas, 17 18 Plaintiff-Appellant, 19 20 - against - 21 22 WILLIAM BELL, individually and as Commissioner, 23 KATHLEEN CERRITO, individually and as caseworker, 24 JANICE HOGGS, individually and as supervisor, 25 JOYCE DE NICHOLSON, individually and as manager, 26 EUGENE WEIXEL, individually and as caseworker, 27 RAMON VARGAS, individually and as supervisor, 28 MAUREEN FLEMING, individually and as deputy director and City of 29 New York, 30 FREDDA MONN, individually and as supervising attorney, 31 JODI KAPLAN, individually and as supervising attorney, 32 DAWN SCHWARTZ, individually and as attorney 33 SUSAN SCHENKEL SAVITT, and 34 THE CITY OF NEW YORK, 35 36 Defendants-Appellees. 37 38 - - - - - - - - - - - - - - - - - - - - - - X 39 40 Before:MINER and CABRANES, Circuit Judges, and 41 RAKOFF, District Judge.* 42-2- 1 Appeal from the May 20, 2008 judgment of the United States 2 District Court for the Eastern District of New York (Brian M. 3 Cogan, Judge), granting summary judgment to defendants, in an 4 action involving wrongful child removal, on the grounds of 5 absolute immunity and qualified immunity under federal and state 6 law. Although we disagree with the district court’s conclusion 7 that the caseworker defendants are entitled to absolute immunity 8 under federal law, we agree that they are entitled to qualified 9 immunity and that the rest of the district court’s determinations 10 are correct. 11 12 AFFIRMED. 13 14 CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, 15 New York, New York, for Plaintiff16 Appellant. 17 18 JANET L. ZALEON, Of Counsel, City of New York 19 Law Department, New York, New York 20 (Michael A. Cardozo, Kristin M. Helmers, 21 Joanthan L. Pines, City of New York Law 22 Department, New York, New York, on the 23 brief), for Defendants-Appellees. 24 RAKOFF, District Judge. 25 For centuries, Anglo-American law has protected public 26 officials against claims for damages arising from actions taken 27 in the course of duty. Harlow v. Fitzgerald, 457 U.S. 800, 806 28 (1982). “As recognized at common law, public officers require 29 this protection to shield them from undue interference with their 30 duties and from potentially disabling threats of liability.” Id. 31 In the case of legislators, judges, and certain executive 32 officials such as prosecutors, the protection usually takes the 33 form of absolute immunity from liability for damages. Id. at 34 807. In the case of most executive employees, however, the 35protection takes the form of “qualified immunity,” i.e., immunity-3- 1 from liability if the employee was acting in subjective and 2 objective good faith. Id. at 807, 815. The instant case chiefly 3 concerns what kind of immunity attaches to actions taken by two 4 categories of New York employees –- caseworkers and lawyers –- 5 involved in the inherently difficult determination of whether to 6 seek removal of a child from the custody of the child’s parents 7 on the ground of child abuse. 8 BACKGROUND 9 Plaintiff-appellant Sally Cornejo commenced these 10 consolidated actions on behalf of herself and her infant child, 11 Kevin Salas, alleging violations of federal and state law arising 12 from actions taken by the employees of the New York City 13Administration for Children’s Services (“ACS”) in connection with 14 the investigation into the death of Cornejo’s other infant son, 15 Kenny, and the resulting Family Court proceedings. The 16 defendants-appellees, in addition to the City of New York (named 17 only derivatively), are current or former ACS caseworkers and 18 supervisors (collectively, the “caseworker defendants”), namely, 19 caseworkers Kathleen Cerrito and Eugene Weixel, their supervisors 20 Janice Hogg and Ramon Vargas, Hogg’s manager Joyce De Nicholson, 21 De Nicholson’s director Maureen Fleming, and the then-acting ACS 22 Commissioner William Bell; and current or former lawyers in ACS’s 23 Division of Legal Services (collectively, the “lawyer 24 defendants”), namely, attorneys Dawn Schwartz and Susan Schenkel-4- 1 Savitt, and their supervisors Fredda Monn and Jodi Kaplan. 2 The pertinent facts, largely undisputed and, where disputed, 3 taken most favorably to the plaintiff, are as follows: 4 On October 30, 2002, plaintiff Cornejo returned from work to 5 find her fiancé, Rothman Salas, holding their five-month-old son 6 Kenny, who was not breathing.Kenny was subsequently brought to 7 Schneider Children’s Hospital (“Hospital”) at 11:30 PM. On the 8 afternoon of October 31, 2002, a nonphysician Hospital employee 9 reported (via telephone call) to the New York State Central 10 Registry of Child Abuse and Maltreatment (the “SCR”) that Kenny 11 had suffered a broken rib, diffuse cerebral edema, and a heart 12 attack as a result of being violently shaken by his father. The 13 Oral Report Transmittal (“ORT”) documenting the call stated that 14 Cornejo was not present during the shaking incident. A second 15 ORT made at approximately 5:30 PM stated that the rib fracture 16was several weeks old but that the parents had “failed to provide 17 a plausible explanation” for how Kenny’s rib was fractured. 18 Upon receiving the two ORTs from SCR, ACS assigned 19 caseworker Cerrito to investigate.Cerrito spoke by telephone 20 with Dr. Debra Esernio-Jenssen, a pediatric specialist in charge 21 of the Hospital’s Child Protection Consulting Team, who reported 22 that Kenny’s immediate brain and heart injuries were most likely 23 caused by Shaken Baby Syndrome. She also expressed her belief 24 that Cornejo had “no part” in the immediate injuries, which-5- 1 “would happen immediately after violent shaking.” Dr. Esernio2 Jenssen further opined, however, that the broken rib could have 3been the result of a prior shaking incident. Cerrito reported 4 this back to Hogg, who concluded that not only Kenny but also 5 Kevin, the couple’s other, eighteen-month-old son, would have to 6be removed from the home pending further proceedings. 7 Cornejo was then informed that both her children would be 8 removed from her custody until the ACS investigation was 9 completed. Cerrito arranged for Kevin to be brought to the 10 Hospital, where he was examined and then placed in temporary 11 kinship foster care on an ex parte emergency basis. The medical 12 examination of Kevin showed him to be healthy, with no signs of 13 abuse.Kenny remained at the Hospital, where he died on November 14 7. 15 Meanwhile, on November 1, ACS instructed its attorneys to 16 file petitions in Family Court accusing both parents of child 17 abuse of both children. Kaplan filed the petitions, which were 18 signed by Cerrito, that day. The petitions notably failed to 19 differentiate between the two parents, Cornejo and Salas, stating 20 that both parents had either “inflict[ed] or allow[ed] to be 21 inflicted . . . physical injury” or “create[d] or allow[ed] to be 22 created a substantial risk of physical injury” to the children. 23 The petitions included the Hospital diagnosis of Shaken Baby 24 Syndrome as the cause of Kenny’s heart and brain injuries; as to-6- 1 the fractured rib, the petition alleged that the parents “failed 2 to provide an explanation consistent with a non-abusive or non3 intentional trauma.” The Family Court remanded the children to 4 ACS, and, as noted, Kenny died on November 7. 5 Despite an intervening attempt by Cornejo to regain custody 6 of Kevin, this was where matters stood until, on November 14, a 7 city medical examiner informed ACS attorney Schwartz of her 8 preliminary findings: that she “could not say” that Kenny was a 9victim of Shaken Baby Syndrome and that the “fractured rib” was 10 actually a congenital rib malformation. As a result, the very 11 next day, ACS itself sought, by Order To Show Cause, to parole 12 Kevin to his mother. Nevertheless, the Family Court judge, after 13 hearing testimony from Dr. Esernio-Jenssen in which she 14 maintained her conclusion that Kenny had been shaken, declined to 15 return Kevin to his mother’s care. The judge also denied 16 subsequent applications for parole or withdrawal of the petition 17 against Cornejo, citing ongoing disparities in the medical 18 evidence as to the cause of Kenny’s death. 19 In January 2003, the medical examiner issued a final autopsy 20 report that concluded that the actual cause of Kenny’s death was 21 a “rare and natural heart defect” and that reaffirmed the medical 22 examiner’s previous finding that there was no rib fracture butKenny’s heart was subsequently sent to two pediatric 1 cardiologists for further evaluation. Neither specialist ultimately found a definitive cause for the heart attack, but they concluded that it was more likely that Kenny’s death resulted from a congenital defect than from shaking. -7- 1 only a congenital abnormality. The Hospital staff, however, 2 maintained its view that Kenny had been shaken.1 3 On February 4, ACS sought withdrawal of the petition against 4 Cornejo, but the Family Court judge denied the request, making 5 clear that she would not allow withdrawal of that petition unless 6ACS was also willing to withdraw the petition against Salas. 7 Nevertheless, the judge did this time allow Kevin to be paroled 8 to Cornejo’s custody. On May 20, Cornejo moved for summary 9 judgment and dismissal of the petition against her. At a court 10 appearance on June 10, Schwartz stated that “ACS has no basis to 11 dispute the [medical examiner’s] findings,” and the Family Court 12 judge allowed both petitions to be withdrawn. 13 Thereafter, on January 28, 2004, Cornejo commenced, on 14 behalf of herself and her son Kevin, the first of the two civil 15 rights proceedings now consolidated in this case, which, as now 16 consolidated, allege due process and search and seizure 17 violations under 42 U.S.C. § 1983, as well as state and federal 18 claims for malicious prosecution (the latter again under § 1983) 19 and a state law claim for breach of the duty of reasonable care. 20 On May 19, 2008, the district court granted summary judgment 21 to the defendants. See Cornejo v. Bell, No. CV-04-0341, 2008 WL-8- 1 5743934 (E.D.N.Y. May 19, 2008). In addition to concluding that 2 none of the plaintiff’s rights was violated, the district court 3 alternatively held that both sets of defendants were entitled to 4 absolute immunity from all the § 1983 claims, and that, even 5 failing this, they were entitled to qualified immunity.As to 6 the malicious prosecution and breach of duty of reasonable care 7 claims under New York state law, the district court concluded 8 that the lawyer defendants were entitled to absolute immunity on 9both claims and that the caseworker defendants were entitled to 10 absolute immunity as to the malicious prosecution claim and 11 qualified immunity as to the unreasonable care claim. 12 DISCUSSION 13 We review de novo a district court’s decision granting 14 summary judgment. See, e.g., Warren v. Keane, 196 F.3d 330, 332 15 (2d Cir. 1999). Since we conclude that some form of immunity 16 attaches to each of the challenged actions of each of the 17 defendants sufficient to preclude liability, we do not reach the 18 district court’s determination on the merits. 19 I. Federal Claims 20 The federal claims are all claims for damages brought under 21 42 U.S.C. § 1983, which provides “a method for vindicating 22 federal rights elsewhere conferred,” including under the 23 Constitution. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). 24 The conduct at issue “must have been committed by a person acting-9- 1 under color of state law” and “must have deprived a person of 2 rights, privileges, or immunities secured by the Constitution or 3 laws of the United States.” Pitchell v. Callan, 13 F.3d 545, 547 4 (2d Cir. 1994). There is no dispute here that the defendants 5 were acting under the color of state law. 6 A. Absolute Immunity for Lawyer Defendants 7 As noted, the district court held, inter alia, that both the 8 caseworker defendants and the lawyer defendants were entitled to 9 absolute immunity precluding liability under § 1983. This was 10 despite well-established precedent that “qualified rather than 11 absolute immunity is sufficient to protect government officials 12 in the exercise of their duties.” DiBlasio v. Novello, 344 F.3d 13 292, 296 (2d Cir. 2003) (quoting Burns v. Reed, 500 U.S. 478, 14 486

S87 (1991)) (internal quotation mark omitted). However, there 15 are certain instances where executive employees, such as 16prosecutors, are entitled to absolute immunity. Imbler v. 17 Pachtman, 424 U.S. 409, 427 (1976). The real distinction between 18 whether an executive employee is entitled to absolute or 19 qualified immunity turns on the kind of function the employee is 20 fulfilling in performing the acts complained of. This is what 21 the Supreme Court has called a “functional” analysis. Briscoe v. 22 LaHue, 460 U.S. 325, 342 (1983). Prosecutors are entitled to 23 absolute immunity, for example, because their prosecutorial 24 activities are “intimately associated with the judicial phase of-10- 1 the criminal process, and thus [are] functions to which the 2 reasons for absolute immunity apply with full force.” Imbler, 3 424 U.S. at 430. 4 Mutatis mutandis, absolute immunity also extends to non5prosecutor officials when they are performing “functions 6 analogous to those of a prosecutor.” Butz v. Economou, 438 U.S. 7 478, 515 (1978). While any analogy between two kinds of 8 executive employees is never perfect, such reasoning by analogy 9 is at the heart of judicial thinking: things that are essentially 10 alike should be treated essentially the same. Thus, the Butz 11 Court held that an agency official who decides to institute an 12 administrative proceeding is entitled in such circumstances to 13 absolute immunity, since that decision is “very much like the 14 prosecutor’s decision to initiate or move forward with a criminal 15prosecution.” Id. at 515. 16 This Court has previously extended absolute immunity to 17 state and federal officials initiating noncriminal proceedings 18 such as administrative proceedings and civil litigation. See 19 Barrett v. United States, 798 F.2d 565, 572 (2d Cir. 1986) 20 (citing Butz, 438 U.S. at 512

S17). Of particular relevance here, 21 we have held that an attorney for a county Department of Social 22 Services who “initiates and prosecutes child protective orders 23 and represents the interests of the Department and the County in 24 Family Court” is entitled to absolute immunity. Walden v.The district court appears to have relied for its 2 conclusion that the caseworker defendants were entitled to absolute immunity on a district court decision, Levine v. County of Westchester, 828 F. Supp. 238, 243–44 (S.D.N.Y. 1993), that was affirmed without opinion by this Court. Such an affirmation has no precedential weight.-11- 1 Wishengrad, 745 F.2d 149, 152 (2d Cir. 1984). The Wishengrad 2 Court concluded that given “the importance of the Department’s 3 [child protection] activities, the need to pursue protective 4 child litigation vigorously and the potential for subsequent 5 colorable claims,” the attorney must be accorded absolute 6 immunity from § 1983 claims arising out of the performance of her 7 duties. Id. We conclude that the lawyer defendants in the 8 instant case were fulfilling similar functions, and that the 9 district court thus properly extended to those defendants 10 absolute immunity from the § 1983 claims. 11 B. Qualified Immunity for Caseworker Defendants 12 However, the district court was incorrect in its conclusion 13 that the caseworker defendants were also entitled to absolute 14 immunity.Although they undoubtedly played a substantial role 2 15 in providing the information that helped initiate many of the 16 actions here complained of, the caseworker defendants essentially 17 functioned much more like investigators than prosecutors. Even 18 when they made the initial decision to remove Kevin from his 19mother’s custody, their actions were the functional equivalent of 20 police officers’ making arrests in criminal cases, which are a-12- 1 classic example of actions entitled to qualified, rather than 2 absolute immunity. See, e.g., Malley v. Briggs, 475 U.S. 335, 3 340-44 (1986). The caseworker defendants here were performing 4 what was “fundamentally a police function,” Robison v. Via, 821 5 F.2d 913, 918 (2d Cir. 1987), and as such were entitled only to 6 qualified immunity, id. at 920. 7 Even qualified immunity, however, is sufficient to shield 8 executive employees from civil liability under § 1983 if either 9 “(1) their conduct ‘did not violate clearly established rights of 10 which a reasonable person would have known,’ or (2) ‘it was 11 objectively reasonable to believe that [their] acts did not 12 violate these clearly established rights.’” Young v. County of 13 Fulton, 160 F.3d 899, 903 (2d Cir. 1998) (quoting Soares v. 14 Connecticut, 8 F.3d 917, 920 (2d Cir. 1993) (alteration in 15 original) (internal quotation marks omitted)); see also Harlow, 16 457 U.S. at 818. Of relevance here, we have previously noted 17 that the second Young prong provides “substantial protection for 18 caseworkers,” Tenenbaum v. Williams, 193 F.3d 581, 596 (2d Cir. 19 1999), which is necessary because “[p]rotective services 20 caseworkers [must] choose between difficult alternatives,” id. 21 (second alteration in original) (quoting van Emrik v. Chemung 22 County Dep’t of Soc. Servs., 911 F.2d 863, 866 (2d Cir. 1990)). 23 The Tenenbaum Court concluded that summary judgment should thus-13- 1 be “readily available to these caseworkers in proper cases under 2 the qualified immunity doctrine.” Id. at 597. 3 Here, the gist of plaintiff’s § 1983 claims against the 4 caseworker defendants for denial of due process and unlawful 5 seizure in the immediate removal of Kevin from Cornejo’s custody 6 is that defendants had no reason to doubt her assertion that she 7 was not at home when Kenny became ill on October 30, nor to infer 8 that prior abuse had occurred, and so had no basis, even by 9 inference, to remove Kevin and pursue Family Court actions 10 against her. But undisputed facts establish that this is not a 11 reasonable way to characterize the situation that confronted the 12 caseworkers when they took their actions. Specifically, it is 13 undisputed that at the time of Kevin’s removal on October 31, ACS 14 had received two ORTs reporting a medical opinion that Kenny had 15 suffered violent shaking and a fractured rib. Although Salas, 16 not Cornejo, was suspected of having shaken Kenny, the rib 17 fracture was diagnosed as several weeks old. There was thus 18 evidence of at least two instances of apparent abuse –- one 19 occurring at an unknown time when Cornejo may have been present 20 –- for which neither parent had an apparent explanation. 21 Moreover, a caseworker had confirmed the substance of the ORTs 22 with Dr. Esernio-Jenssen, and the injuries to Kenny were 23 extremely serious. Under these circumstances, it was objectively 24 reasonable for the caseworker defendants to believe that-14- 1 immediate temporary removal of both children without prior 2 judicial authorization was proper. See id. at 593. The 3 caseworker defendants are thus entitled to qualified immunity on 4 the due process and unlawful seizure claims arising from their 5 initial removal of Kevin. 6 As for the subsequent actions taken in Family Court, these 7 actions were chiefly taken by the lawyer defendants, who, as 8 already determined, were entitled to absolute immunity. While 9 certain of the caseworker defendants provided information to the 10 Family Court, the heart of the complaint against them in this 11 regard is that they failed to adequately apprise the Family Court 12 of exculpatory information. But this Court has found no 13 constitutional violation where caseworkers allegedly committed 14 “sins of commission and omission in what they told and failed to 15 tell . . . the Family Court Judge.” van Emrik, 911 F.2d at 866. 16 Indeed, it would take a much more extreme misstatement than any 17 alleged here to override the necessary freedom of action that 18 qualified immunity accords caseworker defendants dealing with the 19 extreme situation when one child suffers fatal injuries while at 20 home and another child is still at home. The caseworker 21 defendants are thus entitled to qualified immunity on the due 22 process claims related to the Family Court actions. 23 II. State-Law Claims-15- 1 Plaintiff also pursues malicious prosecution claims both 2 under New York State law and, indirectly, under § 1983. Under 3New York law, a malicious prosecution claim requires: “(1) the 4 initiation of an action by the defendant against the plaintiff, 5 (2) begun with malice, (3) without probable cause to believe it 6 can succeed, (4) that ends in failure or, in other words, 7 terminates in favor of the plaintiff.” O’Brien v. Alexander, 101 8 F.3d 1479, 1484 (2d Cir. 1996) (citing Broughton v. State,335 9N.E.2d 310, 314 (N.Y. 1975)). And § 1983, in recognizing a 10malicious prosecution claim when the prosecution depends on a 11 violation of federal rights, adopts the law of the forum state so 12 far as the elements of the claim for malicious prosecution are 13 concerned. See, e.g., Fulton v. Robinson, 289 F.3d 188, 195 (2d 14 Cir. 2002) (“In order to prevail on a § 1983 claim against a 15 state actor for malicious prosecution, a plaintiff must show a 16violation of his rights under the Fourth Amendment and establish 17 the elements of a malicious prosecution claim under state law.” 18 (internal citations omitted)). 19 The issue of immunity, however, differs as between the state 20 and federal law claims. As to the claim for malicious 21 prosecution under § 1983, federal law of immunity applies, see, 22 e.g., Gross v. Rell, 585 F.3d 72, 80 (2d Cir. 2009), and thus, 23 since the malicious prosecution claim is grounded on the same 24 allegations as underlay the due process claims, the lawyer-16- 1 defendants are entitled to absolute immunity and the caseworker 2 defendants to qualified immunity, either of which are sufficient 3 to defeat the claim for the reasons already described in the 4 preceding section. 5 As to the state law claim of malicious prosecution, however, 6 the highest New York court to consider the issue has previously 7 determined that in a situation comparable to the instant case, 8 both the caseworkers and the lawyers are entitled to absolute 9 immunity. See Carossia v. City of N.Y., 835 N.Y.S.2d 102 (App. 10 Div. 1st Dep’t 2007). Because we are bound “to apply the law as 11 interpreted by New York’s intermediate appellate 12 courts . . . unless we find persuasive evidence that the New York 13 Court of Appeals . . . would reach a different conclusion,” we 14 affirm the district court’s ruling that all defendants here are 15 entitled to absolute immunity on the state law claim of malicious 16prosecution. Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 17 (2d Cir. 1999). 18 Finally, as regards the breach of duty claim, New York law 19 accords the lawyer defendants absolute immunity on such a claim, 20 because their actions with regard to that claim “involve[d] the 21 conscious exercise of discretion of a judicial or quasi-judicial 22 nature.” Arteaga v. State, 527 N.E.2d 1194, 1196 (N.Y. 1988). 23 Caseworker defendants, by contrast, may be entitled only to 24 qualified immunity on this claim. But qualified immunity is-17- 1 available under New York law if these defendants were “acting in 2 discharge of their duties and within the scope of their 3 employment, and . . . such liability did not result from the 4 willful misconduct or gross negligence.” N.Y. Soc. Serv. Law 5 § 419; see also Yuan v. Rivera, 48 F. Supp. 2d 335, 358 (S.D.N.Y. 6 1999). For the reasons previously discussed, the underlying 7 facts establish that the caseworker defendants meet these 8 requirements. 9 CONCLUSION 10 For the reasons stated, therefore, while we disagree with 11 the district court’s conclusion that the caseworker defendants 12 were entitled to absolute immunity on plaintiff’s claims under 42 13 U.S.C. § 1983, we find that they were nonetheless entitled to 14 qualified immunity on those claims and that the rest of the 15 district court’s conclusions were correct. 16 In summary: 17 (1)The lawyer defendants are entitled to absolute immunity on 18 plaintiff’s § 1983 claims because they were performing 19 functions analogous to those of a prosecutor. See 20 Wishengrad, 745 F.2d at 152. 21 (2)The caseworker defendants are not entitled to absolute 22 immunity on plaintiff’s § 1983 claims because their actions 23 were the functional equivalent of arresting officers in 24 criminal cases.-18- 1 (3)The caseworker defendants are entitled to qualified immunity 2 on plaintiff’s § 1983 claims because their actions were 3 objectively reasonable under the circumstances. See 4 Tenenbaum, 193 F.3d at 595–96. 5 (4)For plaintiff’s state-law malicious prosecution claims, all 6 defendants are entitled to absolute immunity under New York 7 law. See Carossia, 835 N.Y.S.2d at 104. 8 (5)For plaintiff’s state-law breach of duty claims, the lawyer 9 defendants are entitled to absolute immunity under New York 10 law because their actions involved the conscious exercise of 11 discretion of a judicial or quasi-judicial nature. See 12 Arteaga, 527 N.E.2d at 1196. The caseworker defendants are 13 entitled to qualified immunity under New York law because 14 they did not commit willful misconduct or gross negligence. 15 See N.Y. Soc. Serv. Law § 419. 16 Accordingly, the judgment of the district court dismissing 17 the case in its entirety is hereby AFFIRMED.