UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LAROSE T. SHIRLEY,

Plaintiff-Appellant,

v.

No. 98-1750

BARBARA DRAKE, official capacity;

MARY CRAIG, individual capacity;

ARLINGTON COUNTY, VIRGINIA,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan Jr., Senior District Judge.

(CA-98-368-A)

Argued: January 27, 1999

Decided: April 12, 1999

Before WILKINSON, Chief Judge, and NIEMEYER and

TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ernest Paul Francis, ERNEST P. FRANCIS, LTD.,

Arlington, Virginia, for Appellant. Joseph Peter Dyer, Jr., SICILIANO, ELLIS, DYER & BOCCAROSSE, Fairfax, Virginia, for

Appellee Craig; Ara Loris Tramblian, Deputy County Attorney,

Arlington, Virginia, for Appellees Drake and Arlington County.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This matter emanates from an order issued by a Virginia domestic

relations court prohibiting LaRose T. Shirley ("Shirley") from having

any contact with her teenage granddaughter ("Jane").1 Shirley filed an

action under 42 U.S.C.A. § 1983 (West Supp. 1998), seeking to

impose liability against Mary E. Craig ("Craig"), an Assistant Arlington County Attorney, for her role in procuring the order. Shirley also

sought injunctive relief against Craig's supervisor, Barbara Drake

("Drake"), who played no role whatsoever in the state proceedings,

and Arlington County itself. The district court granted summary judgment against Shirley and dismissed her complaint in its entirety. We

affirm.

I.

In January 1996, Jane informed Arlington County police that her

father, George Patrick Crapps ("Crapps"), had sexually assaulted her.2

At the time of her complaint, Jane was living with her mother and

Crapps. Shirley, Crapps' mother, also resided with the family.

As a result of Jane's allegations against Crapps, the Arlington

County Department of Social Services ("DSS") initiated an abuse and

neglect petition in the Arlington Juvenile and Domestic Relations

Court (the "JDR Court") and a guardian ad litem was appointed to

protect Jane's interests. The JDR Court initially ordered that Jane be

removed temporarily to the custody of DSS, but she was returned to

her mother's custody shortly thereafter.

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1 In an attempt to protect the identity of Shirley's granddaughter, who

was a young teenager at the time of these events, we refer to her as Jane,

which is not her real name.

2 Crapps was ultimately convicted of taking indecent liberties with Jane

and was sentenced to prison.

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Craig represented DSS in prosecuting the removal petition in JDR

Court. During the course of the proceedings, Craig learned that Shirley had removed Jane from school without the knowledge of Jane's

mother and had taken Jane to meet with an attorney that Shirley had

retained to represent her son on sexual assault charges. At this meeting, Shirley allegedly pressured Jane to recant her assertion that

Crapps had sexually abused her -- an allegation that Shirley denies.

Based on this information, and with the full support of Jane's guardian ad litem who was charged with protecting Jane's best interests,

DSS obtained a protective order from the JDR Court directing that

Crapps and Shirley "have no contact whatsoever with [Jane] until further order of this Court." Shirley was not present at the hearing before

the JDR Court, and she contends that she received no notice that DSS

was seeking such an order. Nevertheless, despite her belief that the

protective order was illegal and that Craig, acting on behalf of DSS,

disregarded state law in obtaining the order, Shirley did not seek, and

has never sought, a modification of the order by the JDR Court, nor

has she ever pursued an appellate remedy in the Virginia courts.

Instead, Shirley seeks relief in federal court pursuant to § 1983.

Specifically, Shirley alleges that Craig violated her procedural and

substantive due process rights in pursuing the protective order on

behalf of DSS. She also believes that Craig encroached upon her First

Amendment rights. Shirley additionally asserts that Arlington County

and Drake infringed her due process rights and that the federal courts

should intervene and enjoin enforcement of the JDR Court's order.

II.

A.

We turn first to Shirley's claims that Craig's role in obtaining the

protective order subjects Craig to liability under§ 1983. The district

court concluded that Craig enjoyed absolute immunity from this

action, and we agree. Prosecutors are absolutely immune from civil

liability under § 1983 when they are performing functions which are

"intimately associated with the judicial phase of the criminal process."

Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Provided a state's

attorney is acting "within the scope of [her] duties in initiating and

pursuing a criminal prosecution," she is absolutely immune to suit

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pursuant to § 1983. Id. at 410. In making an immunity determination,

we are to consider "`the nature of the function performed, not the

identity of the actor who performed it.'" Kalina v. Fletcher, 118 S. Ct.

502, 508 (1997) (quoting Forrester v. White, 484 U.S. 219, 229

(1988)). Absolute immunity attaches when the prosecutor is performing "the traditional functions of an advocate." Id. at 510. Clearly, one

of the classic functions of an advocate is the presentation of a motion

to the court, which necessarily requires the prosecutor to summarize

the supporting evidence, i.e., to make representations to the court

regarding the facts. See id. at 509-510. An attorney for the state who

represents DSS in a proceeding involving the alleged abuse and

neglect of a child is entitled to the same protection in her advocacy

role that she would have if she were representing the state in a criminal proceeding. See Vosburg v. Department of Soc. Servs., 884 F.2d

133, 138 (4th Cir. 1989) (holding that "social workers are absolutely

immune from liability resulting from their decision to file a [custody]

removal petition").

Shirley alleges simply that Craig made false representations to the

JDR Court in obtaining the protective order. Even if Craig's presentation of facts to the JDR Court ultimately proved to include false information, there is no dispute that Craig served as the DSS attorney in

seeking the protective order against Crapps and Shirley, and that any

information she furnished to the court was provided during the course

of her motion. Craig was obviously performing a traditional function

of an advocate and is entitled to absolute immunity. See id.

Nevertheless, Shirley makes the unsupported assertion that Craig

served as a witness during the proceedings, which removed Craig

from the protective sweep of absolute immunity under Kalina. There

is utterly nothing in the record to indicate Craig did anything other

than recite background facts to the JDR Court -- a function that is

clearly protected by absolute immunity. Indeed, in her complaint,

Shirley alleges only that Craig made "misrepresentations" and "accusations" to the JDR Court; Shirley does not allege that Craig testified

under oath or presented her own affidavit in support of the motion.

Even if we accept these allegations as true, Craig was clearly acting

within her role as an advocate. Thus, Craig is protected by absolute

immunity.

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B.

Shirley's claims against Arlington County and Drake are even

more troublesome. To the extent Shirley contends that Arlington

County and Drake are subject to liability under§ 1983, her claims are

wildly off the mark. Shirley's complaint alleges that Arlington

County violated her due process rights because the protective order

"was entered in a court established by and for defendant Arlington

County and was the result of efforts initiated by one of its attorney/employees." As the district court correctly concluded, the JDR

Court is a court of the Commonwealth of Virginia, not of Arlington

County. See Va. Code Ann. § 16.1-69.7, 69.8 (Michie 1996). Moreover, Shirley does not even allege that an Arlington County policy

caused her supposed deprivations, much less offer any facts in support of such an assertion. Therefore, Shirley's assertions against

Arlington County rest on a respondeat superior theory of liability --

clearly not a viable basis for recovery under § 1983. See Monell v.

New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). And,

Drake played no role in obtaining the protective order. Drake is a

party to the case only because she is employed as Craig's supervisor.

Thus, Shirley cannot impose damages against Drake under § 1983.

To avoid the effect of these conclusions, Shirley argues that she is

nevertheless entitled to injunctive relief against Arlington County and

Drake under § 1983. Below, she sought an order from the district

court enjoining Arlington County and Drake "from taking any measures to enforce" the protective order issued by the JDR Court. In

essence, Shirley wants to involve the federal courts in an area that is

traditionally -- and obviously -- the states' domain.

We refuse to become embroiled in what is clearly an ongoing state

affair. Federal courts are obliged to decline jurisdiction to interfere

with ongoing state court proceedings even if the parties allege constitutional violations. See Younger v. Harris, 401 U.S. 37, 41 (1971);

Employers Resource Management Co. v. Shannon, 65 F.3d 1126,

1134 n.7 (4th Cir. 1995) (explaining that the Younger abstention doctrine has been expanded to cover noncriminal judicial proceedings).

Younger abstention is proper when "(1) there is an ongoing state judicial proceeding, (2) the proceeding implicates important state interests, and (3) there is an adequate opportunity to present the federal

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claims in the state proceeding." Shannon, 65 F.3d at 1134. We conclude that Younger abstention is required here. The matter is ongoing;

by its very terms, the order is effective "until further order of [the

JDR] Court." Important state interests are involved. Indeed, domestic

relations issues are uniquely local matters upon which we will not

encroach. We also think it is clear that Shirley had adequate recourse

in the courts of the Commonwealth of Virginia to raise her federal

constitutional claims.

Yet, Shirley has made no attempt to raise these claims in state court

by using available state procedures to challenge the protective order.

She did not avail herself of Virginia's appellate courts, nor did she

even ask the JDR Court to modify its order. Rather, she seeks to modify this order in federal court without first allowing the state courts

an opportunity to do so. Shirley has not explained why these avenues

to challenge the protective order are inadequate to allow her to raise

her federal constitutional claims, other than simply to speculate that

she would not receive fair treatment based on her perception that the

JDR Court has already once denied her constitutional rights in issuing

the protective order.

As we have noted on other occasions, "[w]here post-deprivation

state procedures are available which satisfy due process concerns, it

is particularly appropriate for the federal courts to abstain from deciding matters best left to the states." Weller v. Department of Soc. Servs.

for Baltimore, 901 F.2d 387, 396 (4th Cir. 1990). Here, under

Younger abstention principles, it is simply inappropriate for us to

interfere, and we refuse to do so. See Liedel v. Juvenile Court of Madison County, Ala., 891 F.2d 1542 (11th Cir. 1990) (holding that

Younger required dismissal of an action requesting an injunction

against the issuance of orders by a state juvenile court).3

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3 Furthermore, even if it were appropriate for us to meddle in this state

domestic relations matter, and even if Craig were not protected by immunity, we question whether Shirley stated a viable due process claim. In

the first place, she has not convinced us that she suffered the deprivation

of a constitutionally protected liberty interest. See Williams v. Williams,

485 S.E.2d 651, 652-53 (Va. App. 1997) (observing that there is no common law right of visitation for grandparents in Virginia), aff'd as

modified, 501 S.E.2d 417 (Va. 1998); see also Ellis v. Hamilton, 669

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III.

For the foregoing reasons, we conclude that Shirley's appeal is

without merit, and we affirm the decision of the district court.

AFFIRMED

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F.2d 510, 513 (7th Cir. 1982) (expressing doubt that grandparents maintain a protected liberty interest in visitation of their grandchildren when

the grandchildren are in their parents' custody). And, even when the state

has infringed upon a protected liberty interest, there is no due process

violation if the state -- as does the Commonwealth here -- has sufficient

post-deprivation remedies. See Ingraham v. Wright, 430 U.S. 651, 676-

82 (1977). Shirley has not even attempted to use any of these avenues

of relief.

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