UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

KELLY J. RICHARDSON, and JAMES 

POWELL, personally and as next friend for 

I.R. a minor, and S.P., a minor,

Plaintiffs, 

v.

EMILIE SCHUBERT, in her individual 

capacity, GINGER VAN WINKLE, in her 

individual capacity, ERIN WIRTZ, in her 

individual capacity, JENNIE SMITH, in her 

individual capacity, KRISTIN LEMON, in 

her individual capacity, CARLOS CRUTCH, 

in his individual capacity, LINDSEY 

VERNOOY, in her individual capacity, 

DANIELLE SANTILI-DAY, in her 

individual capacity,

Defendant.

Case No. 3:14-cv-01027-ST

FINDINGS AND 

RECOMMENDATION

STEWART, Magistrate Judge:

INTRODUCTION

Plaintiffs filed this action against six employees of the Oregon State Department of 

Human Services (“DHS”), defendants Erin Wirtz (“Wirtz”), Jennie Smith (“Smith”), Kristin 

Lemon, Carlos Crutch, Lindsey Vernooy, and Danielle Santili-Day (collectively “Oregon 

defendants”), after they initiated protective custody proceedings against I.R., their adoptive 

1 – FINDINGS AND RECOMMENDATION

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daughter, and placed her in foster care for about nine months.0F

1

 The remaining defendants are 

two case workers for the Arizona Department of Child Safety (“ADCS”), Emilie Schubert (nka 

Emilie Christman) (“Schubert”) and Ginger Van Winkle (“Van Winkle”) (collectively “Arizona 

defendants”), who seized I.R. while she was visiting her biological mother in Arizona and 

returned her to DHS.

The First Amended Complaint alleges claims: (1) against all defendants under 42 USC 

§ 1983 for depriving plaintiffs of their right to a familial relationship under the Fourteenth 

Amendment; 1F

2 (2) against the Oregon defendants for intrusion into seclusion and intentional 

infliction of emotional distress; and (3) against the Arizona defendants under 42 USC § 1983 for 

depriving plaintiffs of their right to be free from unreasonable seizure under the Fourth 

Amendment and procedural due process under the Fourteenth Amendment. This court has 

subject matter jurisdiction over the § 1983 claims under 28 USC § 1331 and supplemental 

jurisdiction over the state law claims under 28 USC § 1367. 

The Oregon defendants have filed an Amended Motion for Summary Judgment (docket 

#58) against all claims alleged against them. For the reasons set forth below, the Oregon 

defendants’ motion should be denied as to Wirtz and Smith for their prosecutorial conduct which 

resulted in issuance of the initial protective order on June 26, 2012, and otherwise should be 

granted.

///

///

1 Plaintiffs have agreed to dismiss defendant Carlos Crutch after learning through discovery that he did not 

participate in the decisions to place I.R. in foster care. 

2 The prayer for relief also refers to a Fourth Amendment violation by Wirtz and Smith “for submitting false 

information to the court causing the unreasonable seizure and imprisonment of I.R.” First Amended Complaint, 

Prayer, ¶ 4. However, plaintiffs only allege and argue a claim for violation of the Fourteenth Amendment. 

2 – FINDINGS AND RECOMMENDATION

 

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STANDARDS

Summary judgment is appropriate when there is no genuine issue as to any material fact 

and the moving party is entitled to a judgment as a matter of law. FRCP 56(a). The initial 

burden is on the moving party to point out the absence of any genuine issue of material fact. 

Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the 

production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. 

Catrett, 477 US 317, 323 (1986). On a motion for summary judgment, the court “draws all 

justifiable inferences in favor of the non-moving party.” Fresno Motors, LLC v. Mercedes Benz 

USA, LLC, 771 F3d 1119, 1125 (9th Cir 2014), citing Anderson v. Liberty Lobby, Inc., 477 US 

242, 255 (1986). 

UNDISPUTED FACTS

In July 2007 at the age of three, I.R. was removed from her biological mother, Kerri 

Smith (nka Kerri Phelps) (“Phelps”), due to drug use and neglect. Richardson Decl. (docket 

#70), ¶ 1; Attachment DD. 2F

3

 Plaintiffs then became I.R.’s foster parents. Richardson Decl., ¶ 1. 

On July 8, 2008, Phelps entered into a Stipulated Judgment terminating her parental rights to I.R, 

and plaintiffs adopted I.R. on February 19, 2009. Id; Attachments A & Q. 

During the course of I.R.’s removal, she developed several psychological and serious 

behavioral issues. Richardson Decl., ¶¶ 2-3; Attachment EE. Despite more than four years of 

psychological counseling, therapies, and care-taking, I.R. failed to respond to treatment. Id, 

¶¶ 5-6. Because I.R.’s issues seemed to center around the feeling of abandonment by Phelps,

Kelly J. Richardson (“Richardson”) considered the possible benefit of I.R., then seven years old, 

3 Plaintiffs attach exhibits to the Declaration of Mikel Miller (docket #69) marked as Attachments AA-MM. In 

addition, the Oregon defendants have attached exhibits to their motion marked as Attachments A-S. Although none 

of the Oregon defendants’ exhibits are properly authenticated, plaintiffs have not objected to any of them. 

3 – FINDINGS AND RECOMMENDATION

 

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of having some direct contact with Phelps. Id, ¶ 6. She located Phelps in Tucson, Arizona,

through Facebook, spent seven months investigating and talking to her, and consulted with I.R.’s 

counselors. Id. She selected the beginning of summer vacation in June 2012 for a visit to 

reconnect with Phelps which would allow I.R. to return home any time or stay until the end of 

summer vacation. Id, ¶ 7. 

Richardson flew with I.R. to Tucson, Arizona, in June 2012 and stayed for three days to 

assure that Phelps was capable of providing a safe and stable environment and that I.R. was 

comfortable. Id, ¶ 8. She then returned to Oregon alone, but maintained daily contact with I.R. 

and/or Phelps and remained available to retrieve I.R. at any time. Id. 

Shortly after Richardson returned to Oregon, I.R. reacted by demonstrating some of her 

bad behaviors, and Phelps spanked her. Id, ¶ 9; Attachment C, p. 3; Attachment O, p. 7. After 

Phelps told Richardson about the incident, they agreed to allow the visit to continue. Richardson

Decl., ¶ 9. Richardson told I.R.’s mental health counselor, Alison Williams (“Williams”), that

I.R.’s visit with Phelps had not yet ended and mentioned the spanking incident. Id, ¶ 10; 

Attachment FF, pp. 47-48. 

Williams then called ADCS and reported what Richardson had told her and how I.R. had 

arrived in Arizona. Williams Depo., p. 52. A Child Safety Worker with the ADCS, Sarah 

Rothpletz (“Rothpletz”), conducted initial interviews and an inspection of Phelps’s home on June 

21, 2012, and observed that I.R. was not unsafe due to any present danger, adding: “There are 

no current concerns about sexual abuse. There are previous allegations from Oregon. The child 

denied any current abuse or neglect. The adoptive mother and [redacted] are working on getting 

the child services.” Attachment AA; Attachment BB (“Van Winkle Decl.”), ¶ 3; Attachment JJ 

(“Christman Decl.”), ¶ 3. The Arizona defendants (Van Winkle and Schubert) then interviewed 

4 – FINDINGS AND RECOMMENDATION

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the Oregon DHS caseworker who had been involved in the 2007 removal of I.R. from Phelps. 

Van Winkle Decl., ¶ 3; Christman Decl., ¶ 3. The Oregon DHS caseworker’s professional 

judgment was that I.R. should be removed from Phelps’s home, and she told the Arizona 

defendants that DHS was coming to Arizona with a court order to take physical custody of I.R. 

and asked if ADCS would help facilitate the removal.3F

4

 Id. Based on information obtained from 

Williams, Phelps, Richardson, I.R., the Oregon DHS caseworker, and observations of Phelps’s

home, the Arizona defendants decided to remove I.R. from Phelps’s home and hold her until

Oregon DHS could come for her. Van Winkle Decl., ¶¶ 2-3; Christman Decl., ¶¶ 2-3. On 

June 25, 2012, they served Phelps with a Notice of Removal of I.R. from Phelps’s home and 

placed her in foster care. Van Winkle Decl., ¶ 4; Christman Decl., ¶ 4; Attachment C, p. 3; 

Attachment N. 

On June 26, 2012, Wirtz informed plaintiffs that DHS would seek temporary custody of 

I.R. at a court hearing that day. Attachment O, p. 8. Wirtz signed an affidavit in support of her 

request for protective custody for I.R. Attachment C. Smith, in her role as Wirtz’s supervisor, 

assumes that she approved it. Attachment HH, pp. 15-16. Clackamas County Deputy District 

Attorney Colleen Gilmartin filed a dependency petition, requesting transfer of legal custody of 

I.R. to DHS. Attachment D. At the hearing, Judge Katherine E. Weber granted DHS temporary 

custody of I.R. for transfer to a residential facility, adding:

I want for when [I.R.] gets off the plane, she’s going to go one of two 

places. She’s either going to go to the facility that she can stay in and can 

be the best facility for her, or I want her to go home and wait with mom 

and dad until a facility has an open bed for her. I don’t want her to go to a 

foster placement. I don’t want her to go to a temporary bed. I want her go 

to the right place. And if the agency is going to need a few days to figure 

4 As discussed below, it is reasonable to infer that the Oregon caseworker who spoke to the Arizona defendants was 

Wirtz. Although Wirtz denies that she requested ADCS to remove I.R. from Phelps’s home, this court must view 

the facts in favor of plaintiffs.

5 – FINDINGS AND RECOMMENDATION

 

Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 5 of 27
out what the right place is, I want her to go back to mom and dad while 

we’re waiting for that place to be available.

Attachment T, pp. 19-20. 

That same day, the court signed a form Order which granted temporary custody of I.R. to 

DHS and approved shelter care. Attachment B, p. 1. The form Order also includes checked-off 

findings that: (1) I.R. could not go home without danger of physical and emotional injury; (2) no 

services were being provided because they would not have eliminated or prevented the need for 

removal of I.R. from plaintiffs; and (3) it was in I.R.’s best interest to be placed outside of the 

home. Id, p. 2. 

 On June 27, 2012, DHS arrived in Arizona with the Oregon removal order, and ADCS 

transferred custody of I.R. to DHS. Attachment O, pp. 9-10; Van Winkle Decl, ¶ 4; Christman 

Decl., ¶ 4. There were no immediate residential or therapeutic openings for I.R. Attachment O, 

p. 10. DHS learned that I.R. might not qualify for a higher level placement, and the providers 

were concerned about plaintiffs’ investment and participation with mental health “wrap-around”

services. Id. DHS placed I.R. in a foster home with wrap-around services, even though Judge 

Weber had said she did not want I.R. placed in foster care. Id; Attachment T, p. 20. Wirtz called 

plaintiffs that same day (June 27, 2012) to inform them of the foster care placement. Attachment 

O, p. 10. At a court hearing on July 12, 2012, another judge decided to leave I.R. in foster care. 

Attachment KK.

On October 23, 2012, based on a resolution reached by the parties, the court entered a 

Judgment naming DHS as I.R.’s legal guardian for an “indefinite period.” Attachment R, p. 3. 

The court also ordered DHS to pursue the “case plan” of returning I.R. home and to use “all due 

efforts to return the child to” plaintiffs. Id; Attachment LL, p. 6. On March 15, 2013, the court 

6 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 6 of 27
returned I.R. to plaintiffs, but continued DHS’s legal custody. Attachment S. On May 28, 2013, 

the court terminated DHS’s custody over I.R. Attachment L. 

FINDINGS

I. § 1983 Claims

Plaintiffs allege three counts against some or all of the Oregon defendants for violating 

their Fourteenth Amendment substantive due process right to a familial relationship without 

undue government interference.4 F

5

 First, plaintiffs allege that Wirtz “submitted false information, 

and omitted relevant information, in an affidavit to the court for the purpose of inducing the 

court to issue an order authorizing the seizure of I.R.” and that Smith, Wirtz’s supervisor, 

“approved submitting the affidavit with false information.” First Amended Complaint, ¶¶ 50-52 

(Count 1). Second, plaintiffs allege that Wirtz unreasonably kept I.R. from her home “when 

there was no reasonable basis for believing that I.R.’s welfare was endangered.” Id, ¶¶ 53-55

(Count 2). Third, plaintiffs allege that all the Oregon defendants “continued to exercise the 

authority given them by the court seizure order to retain custody of I.R. and would not let her 

return home even though [they] knew, or should have known, there was no risk of danger to 

I.R.” Id, ¶¶ 56–58. The Oregon defendants seek summary judgment against each of these 

claims based on absolute or qualified immunity and the lack of supporting facts. 

In their response to the motion, plaintiffs characterize their claims somewhat differently 

than alleged in the First Amended Complaint. They refer to the initial seizure of I.R. on June 25, 

2012, in Arizona at Wirtz’s request; issuance of the initial protective order by the Oregon court 

on June 26, 2012, based on Wirtz’s false affidavit; and the continued seizure of I.R. in foster care 

5 The Oregon defendants construe plaintiffs’ § 1983 claim to include allegations of procedural due process 

violations. However, plaintiffs do not defend a procedural due process claim in their response, and the First 

Amended Complaint alleges procedural due process violations only by the Arizona defendants. First Amended 

Complaint, ¶ 22. For these reasons, the court construes the allegations against the Oregon defendants as based only 

on substantive due process violations.

7 – FINDINGS AND RECOMMENDATION

 

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through March 15, 2013. Issuance of the initial protective order on June 26, 2012, corresponds 

to the claim that Wirtz submitted a false affidavit to the court. Id, ¶¶ 50-52 (Count 1). The 

continued seizure of I.R. in foster care through March 15, 2013, corresponds to the last claim. 

Id, ¶¶ 56–58. However, the initial seizure of I.R. does not correspond to the remaining claim that 

Wirtz unreasonably kept I.R. from her home. Id, ¶¶ 53-55 (Count 2).

With respect to the initial seizure of I.R. in Arizona, plaintiffs complain that it lacked 

judicial authorization or any evidence that I.R. was in imminent danger of serious bodily injury. 

However, I.R. was initially seized by the Arizona defendants, not by Wirtz. Although the 

Arizona defendants made the decision to seize I.R. based in part on the request of the Oregon 

caseworker (who presumably was Wirtz), plaintiffs do not allege that Wirtz gave any false 

information to the Arizona defendants in order to induce them to seize I.R. Thus, this court 

cannot conceive of any basis to hold Wirtz liable for the initial seizure of I.R. in Arizona. 

However, as discussed below, Wirtz may be held liable for omitting to tell the Oregon 

court that she had requested the Arizona defendants to seize I.R. which led to the court’s decision 

to issue the initial protective order on June 26, 2012, and to authorize DHS to seize I.R. from 

ADCS. In other words, Wirtz’s potential liability arises from her prosecutorial conduct, 

including her alleged contact with ADCS, which ultimately resulted in DHS’s seizure of I.R. In 

order to analyze the immunity defenses raised by the Oregon defendants to the § 1983 claims, 

this court construes the initial seizure of I.R. on June 25, 2012, as part of the allegedly wrongful 

prosecutorial conduct by Wirtz and Smith that led to the issuance of the protective order on 

June 26, 2012.

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8 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 8 of 27
A. Governmental Immunity

The Oregon defendants argue that their decisions to initiate protective proceedings, place 

I.R. in temporary custody, and eventually place her in foster care are protected under either 

absolute or qualified immunity. Immunity under § 1983 is a matter of federal law. Martinez v. 

California, 444 US 277, 284 n8 (1980). 

Absolute immunity protects officials whose special functions or constitutional status 

requires complete protection from suit, such as legislators in their legislative functions, judges in 

their judicial functions, and prosecutors and similar officials in prosecutorial functions. Harlow 

v. Fitzgerald, 457 US 800, 807 (1982). Qualified immunity generally protects discretionary acts

by officials. Id at 818. The test for evaluating a qualified immunity claim is as follows:

The first step . . . is to determine whether the plaintiff has shown 

that the action complained of constituted a violation of his or her 

constitutional rights. If the court is satisfied that a constitutional 

violation occurred at the hands of a government official, the 

second step is to determine: (1) whether the violated right was 

clearly established, and (2) whether a reasonable public official 

could have believed that the particular conduct at issue was lawful. 

Butler v. Elle, 281 F3d 1014, 1021 (9th Cir 2002), citing Harlow, 457 US at 818.

For both absolute and qualified immunity, the function of the position determines the 

immunity, not the status or title. Briscoe v. LaHue, 460 US 325, 342 (1983). 

1. Issuance of Protective Order

a. Absolute Quasi-Prosecutorial Immunity

The Oregon defendants first argue that Wirtz and Smith5F

6 are entitled to absolute 

immunity for their quasi-prosecutorial actions of seeking and obtaining a court order to take I.R. 

into protective custody on June 26, 2012. 

6 The Oregon defendants also argue that plaintiffs have not shown adequate personal participation by Smith to 

support individual liability under § 1983. Individual liability under § 1983 “arises only upon a showing of personal 

9 – FINDINGS AND RECOMMENDATION

 

Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 9 of 27
The Ninth Circuit has “granted state actors absolute immunity only for those functions 

that were critical to the judicial process itself,” such as “‘initiating a prosecution.’” Beltran v. 

Santa Clara Cnty., 514 F3d 906, 908 (9th Cir 2008), quoting Miller v. Gammie, 335 F3d 889, 896 

(9th Cir 2003) (en banc). When initiating and pursuing child dependency proceedings, state 

social workers are performing quasi-prosecutorial functions:

Although child services workers do not initiate criminal proceedings, their 

responsibility for bringing dependency proceedings, and their 

responsibility to exercise independent judgment in determining when to 

bring such proceedings, is not very different from the responsibility of a 

criminal prosecutor. The social worker must make a quick decision based 

on perhaps incomplete information as to whether to commence 

investigations and initiate proceedings against parents who may have 

abused their children. The social worker’s independence, like that of a 

prosecutor, would be compromised were the social worker constantly in 

fear that a mistake could result in a time-consuming and financially 

devastating civil suit.

Meyers v. Contra Costa Cnty. Dep’t of Soc. Servs., 812 F2d 1154, 1157 (9th Cir 1987). 

For these reasons, social workers enjoy quasi-prosecutorial immunity when they make 

“discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take 

custody away from the parents.” Beltran, 514 F3d at 908, quoting Miller v. Gammie, 335 F3d 

889, 898 (9th Cir 2003). As a result, Wirtz and Smith have absolute immunity against plaintiffs’ 

alleged constitutional deprivation based on DHS’s pursuit of protective custody of I.R.

However, plaintiffs argue that Wirtz and Smith lost that absolute immunity by submitting 

false statements and omitting relevant information in Wirtz’s affidavit to the court in support of 

the request for a protective custody order. Social workers are not entitled to:

participation by the defendant.” Taylor v. List, 880 F2d 1040, 1045 (9th Cir 1989). A supervisor is only liable for 

constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the 

violations and failed to act to prevent them. Id. However, Smith admits that she assumed that she reviewed and 

approved Wirtz’s affidavit because that is “[her] role.” Attachment HH, pp. 14-15. 

10 – FINDINGS AND RECOMMENDATION

 

Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 10 of 27
absolute immunity from claims that they fabricated evidence during an 

investigation or made false statements in a dependency petition affidavit 

that they signed under penalty of perjury, because such actions aren’t 

similar to discretionary decisions about whether to prosecute. A 

prosecutor doesn’t have absolute immunity if he fabricates evidence 

during a preliminary investigation, before he could properly claim to be 

acting as an advocate, . . . or makes false statements in a sworn affidavit in 

support of an application for an arrest warrant.

Beltran, 514 F3d at 908 (citations omitted); see also Costanich v. Dep’t of Soc. & Health Servs., 

627 F3d 1101, 1109 (9th Cir 2010). 

In her affidavit, Wirtz stated that “[ADCS] served [Phelps] a ‘Notice of Removal’ and 

placed [I.R.] in foster care. Arizona requested Oregon DHS make arrangements to have [I.R.] 

returned to Oregon as they had no jurisdiction over [I.R.] since her legal guardians were in 

Oregon.” Attachment C, p. 2. Plaintiffs argue that this statement is false because Wirtz omitted 

the fact that she had instructed ADCS to remove I.R. from Phelps’s home. As a result, she left 

the court with the false impression that ADCS made this decision independently.6 F

7 To support 

the falsity of Wirtz’s affidavit, plaintiffs have submitted declarations by the Arizona defendants 

that they made the decision to remove I.R. from Phelps’s home based in part on DHS’s request: 

[We] interviewed the caseworker from ODHS. The caseworker had been 

involved in the removal of IR from the birth-mother’s home and had 

additional information. The Oregon caseworker’s professional judgment 

was that IR should be removed from the birth-mother’s home. She said 

that ODHS was coming with a court order to take physical custody of IR, 

and she asked if ADCS would help facilitate the removal. This 

information contributed to our decision to remove IR from the birthmother’s home and hold her safely until ODHS could come for her.

Van Winkle Decl. ¶ 3; Schubert Decl., ¶ 3. 

7 Plaintiffs also argue that Wirtz made similar misrepresentations at the June 26, 2012, and subsequent hearings. 

However, the portion of plaintiffs’ claim regarding false statements to the court specifically refers to Wirtz’s 

affidavit. First Amended Complaint, ¶ 51. Therefore, a separate due process claim based on statements Wirtz made 

at court proceedings on June 26, 2012, and thereafter is not properly before the court.

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In addition, Wirtz stated in her affidavit that she had learned from Williams’s supervisor 

that Richardson “had been talking about transitioning [I.R.] to Ms. Phelps but [I.R.’s therapeutic 

team] were discouraging the move.” Attachment C, p. 2. However, according to both 

Richardson and Williams, Williams had not cautioned Richardson against reconnecting I.R. with 

Phelps. Richardson Decl., ¶ 7; Williams Depo., p. 46. In addition, Wirtz omitted any mention of 

the home inspection by ADCS concluding that I.R. was not in any danger. Attachment A. 

The Oregon defendants assert that the declarations by the Arizona defendants do not 

constitute sufficient evidence of falsity of Wirtz’s affidavit. They do not identify the name of the 

“Oregon caseworker” whose “professional judgment” was relied upon in making this decision. 

However, there is no evidence submitted that any DHS caseworker other than Wirtz was 

involved “in the removal of IR from the birth-mother’s home” or discussed I.R. with ADCS. On 

summary judgment, all factual inferences must be drawn in favor of the nonmoving party. Olsen 

v. Idaho State Bd. of Medicine, 363 F3d 916, 922 (9th Cir 2004). In light of that principle, it is 

reasonable to infer that Wirtz was the DHS caseworker who communicated with the Arizona 

defendants.

The Oregon defendants also point out that the Arizona defendants refer to the removal 

decision as “our decision” and do not specifically state that DHS requested ADCS to remove I.R. 

on their behalf. According to Wirtz’s notes documenting the several telephone calls she had with 

Van Winkle on June 25, 2012, the Arizona Attorney General’s office had advised ADCS to issue 

a Notice of Removal. Attachment O, pp. 6, 8. Of course, DHS could never instruct the ADCS to 

execute a Notice of Removal because it has no authority over its equivalent in another state. 

Presumably, the ADCS was required to gain approval from the Attorney General’s office to 

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Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 12 of 27
comply with Arizona law. However, DHS certainly could request that ADCS facilitate an effort 

to protect an Oregon child currently living in ADCS’s jurisdiction. 

Assuming the truth of the Arizona defendants’ declarations, Wirtz’s affidavit omits all 

evidence that DHS encouraged and even initiated the effort to remove I.R. from Phelps’s home 

prior to obtaining a protective order. Both Van Winkle and Schubert state that they interviewed 

the DHS caseworker after Rothpletz had conducted initial interviews and a home inspection on 

June 21, 2012. Van Winkle Decl., ¶ 2; Schubert Decl., ¶ 2. Based in part on that interview, they 

made the decision to remove I.R. from Phelps’s home and did so on June 25, 2012. Van Winkle 

Decl., ¶¶ 3-4; Schubert Decl., ¶¶ 3-4. Therefore, they must have interviewed the DHS 

caseworker sometime before June 25, 2012. Yet Wirtz’s notes do not reflect any telephone 

conversations with ADCS until June 25, 2012, when Van Winkle stated that ADCS “had already 

staffed with their AG and were advised to serve Phelps with a ‘Notice of Removal.’” 

Attachment O, p. 6. These notes are consistent with Wirtz’s affidavit. Nonetheless, they are 

contradicted by the declarations submitted by the Arizona defendants. This conflict cannot be 

resolved on summary judgment. Given the record, a reasonable juror could conclude that Wirtz 

made false statements and/or material omissions to the court in support of DHS’s request for 

protective custody of I.R.

Because plaintiffs have submitted sufficient evidence that Wirtz’s affidavit contained 

false statements, neither she nor Smith are entitled to summary judgment based on quasiprosecutorial immunity with respect to their actions leading up to the issuance of the protective 

order on June 26, 2012.

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13 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 13 of 27
b. Qualified Immunity

Even if not shielded by absolute immunity, Wirtz and Smith argue that they are entitled 

to qualified immunity for their prosecutorial conduct resulting in issuance of the protective order 

on June 26, 2012. They are entitled to qualified immunity unless plaintiffs prove that they 

violated a constitutional right that was “clearly established” at the time of the alleged 

misconduct. Saucier v. Katz, 533 US 194, 201 (2001). “To be clearly established, a right must 

be sufficiently clear that every reasonable official would have understood that what he is doing 

violates that right. In other words, existing precedent must have placed the statutory or 

constitutional question beyond debate.” Reichle v. Howards, 132 S Ct 2088, 2093 (2012)

(internal quotation marks, citations, and alterations omitted). 

“[T]o establish a substantive due process claim a plaintiff must . . . show a government 

deprivation of life, liberty or property.” Nunez v. City of Los Angeles, 147 F3d 867, 871 (9th Cir 

1999). Plaintiffs have “a Fourteenth Amendment due process right to be free from deliberately 

fabricated evidence in a civil child abuse proceeding.” Costanich, 627 F3d at 1115. This is also 

referred to as a claim for judicial deception. See Chism v. Wash. State, 661 F3d 380, 386 (9th Cir 

2011). For a judicial deception claim to survive summary judgment, a plaintiff “must make (1) a 

‘substantial showing’ of deliberate falsehood or reckless disregard for the truth, and (2) establish 

that but for the dishonesty, the challenged action would not have occurred. If a plaintiff satisfies 

these requirements, ‘the matter should go to trial.’” Butler, 281 F3d at 1024 (citation omitted). 

“Materiality is for the court, state of mind is for the jury.” Id (citation omitted).

As discussed above, plaintiffs have submitted sufficient evidence to create a genuine 

issue fact that Wirtz’s affidavit included false statements. However, plaintiffs also must 

demonstrate that Wirtz acted deliberately or with reckless disregard for the truth in preparing her 

14 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 14 of 27
affidavit. The conflicting accounts of Wirtz and the Arizona defendants of the same 

conversation create a genuine factual issue as to whether Wirtz intentionally or recklessly 

misrepresented her conversations. See Greene v. Camreta, 588 F3d 1011, 1034 (9th Cir 2009), 

abrogated on other grounds by Camreta v. Greene, 131 S Ct 2020 (2011) (citations omitted)

(denying qualified immunity based on conflicting accounts of the same conversation to prove the 

falsity of an affidavit presented in a protective custody proceeding). Whether Wirtz did not 

misrepresent, or whether she negligently misrepresented, what the Arizona defendants told her is 

“a question for the trier of fact, not for this court.” Id at 1035 n20.

Nonetheless, the Oregon defendants assert that plaintiffs do not satisfy the second part of 

the test for submission of a false affidavit with respect to materiality. They argue that 

information regarding who initiated removal of I.R. from Phelps’s home was immaterial to the 

court’s decision to transfer temporary custody of I.R. to DHS. The Notice of Removal of I.R. 

from Phelps’s home was made by the ADCS and the Arizona Attorney General’s office. At the 

time of the June 26, 2012 hearing, ADCS had already removed I.R. from Phelp’s home. The 

Oregon court to which Wirtz submitted her affidavit was not reviewing ADCS’s decision to 

remove I.R. from Phelps’s home, but was limited to determining whether to grant DHS 

temporary custody in order to retrieve I.R. from ADCS. 

However, this court concludes that the alleged misrepresentations and omission of 

relevant information in Wirtz’s affidavit were material to issuance of the protective order. Had 

Wirtz not urged ADCS to remove I.R. from Phelps’s home, ADCS likely would not have done 

so. After inspecting Phelps’s home, ADCS’s own caseworker concluded that it presented no 

danger to I.R. To receive information from Wirtz, who was much more familiar with I.R., 

Phelps and plaintiffs, that conflicted with its own employee’s assessment of the situation 

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“contributed to” and, thus, necessarily was a key factor in, the removal decision by the Arizona 

defendants. Van Winkle Decl., ¶ 3; Schubert Decl., ¶ 3. Had ADCS not taken I.R. into its 

custody based on input from DHS, but left her with Phelps, then Judge Weber likely would have 

returned I.R. to plaintiffs’ custody. 

Moreover, Judge Weber was advised that ADCS had made its own decision to remove 

I.R. from Phelps’s home. At the hearing, she explained that she would not decide the allegations 

of abuse made against the parents, but only whether I.R. could go home with plaintiffs after 

returning to Oregon. Attachment T, p. 12. Had Judge Weber known Wirtz’s role in initiating

the effort to retrieve I.R. and her request to ADCS to remove I.R. from Phelps’s home, then she 

may have been less willing to grant protective custody to DHS. Thus, plaintiffs have submitted 

sufficient evidence to support their claim that Wirtz and Smith committed judicial deception.

Finally, to avoid Wirtz’s and Smith’s qualified immunity defense, plaintiffs must prove 

that their right to be free from judicial deception was clearly established when Wirtz made the

alleged misrepresentations to the court. The Ninth Circuit has held that the “the right to be free 

from deception in the presentation of evidence during protective custody proceedings was clearly 

established [before December 2009].” Greene, 588 F3d at 1035.7 F

8

 Thus, the right was clearly 

established by June 2012 when Wirtz submitted her affidavit to the court in support of DHS’s 

motion for protective custody.

Accordingly, Wirtz and Smith should be denied summary judgment based on qualified 

immunity for their prosecutorial conduct resulting in issuance of the protective order on June 26, 

2012.

8 As pointed out in Mann v. County of San Diego, No. 3:11-CV-0708-GPC-BGS, 2013 WL 4046642, at *13 (SD Cal 

Aug. 8, 2013), this “holding is at apparent odds with the Costanich holding that the similar right to be free from 

fabrication and/or falsification of evidence in a civil proceeding was not clearly established until 2010.”

Nevertheless, the right was clearly established by June 2012 when Wirtz submitted her affidavit to the court in 

support of DHS’s motion for protective custody.

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2. Placement in Foster Care

a. Absolute Quasi-Judicial Immunity 

The Oregon defendants also argue that they are entitled to absolute immunity for their 

quasi-judicial actions of carrying out and enforcing the court’s orders beginning June 26, 2012, 

regarding I.R.’s placement in foster care after her return to Oregon. 8F

9

Child protective workers enjoy absolute quasi-judicial immunity for executing valid court 

orders. Coverdell v. Dep’t of Soc. & Health Servs., State of Wash., 834 F2d 758, 765 (9th Cir

1987). “Even actions taken with court approval or under a court’s direction are not in and of 

themselves entitled to quasi-judicial, absolute immunity.” Miller, 335 F3d at 897, citing Antoine 

v. Byers & Anderson, Inc., 508 US 429, 435-36 (1993). “Instead, to enjoy absolute immunity for 

a particular action, the official must be performing a duty functionally comparable to one for 

which officials were rendered immune at common law.” Id. 

On June 26, 2012, the court granted DHS temporary custody of I.R. for transfer to a 

residential facility and also instructed that I.R. stay with plaintiffs until a spot in a residential 

facility became available and not be placed in foster care. Attachment T, pp. 19-20. Plaintiffs

do not contest the validity of that order, but argue that the Oregon defendants are not entitled to 

quasi-judicial immunity because they failed to obey that order by placing I.R. into foster care 

upon her return from Arizona. It is undisputed that when I.R. arrived in Oregon, openings at 

residential therapeutic facilities were unavailable and, as a result, I.R. was placed in a foster 

home, contrary to the court’s verbal directive. Therefore, the Oregon defendants were not acting

9 As discussed above, neither absolute nor qualified immunity is available if Wirtz attempted to sway the court’s 

decision with false testimony. However, the alleged falsity of Wirtz’s affidavit concerns only whether I.R. should 

be seized and placed in protective custody in the first place, not where to place I.R. once she was seized. 

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in accordance with a court order when they first placed I.R. in foster care, rather than in her 

adoptive home. 

However, at the next hearing on July 12, 2012, the court approved the Oregon 

defendants’ decision not to return I.R. to plaintiffs. The court recognized that placing I.R. in 

foster care conflicted with Judge Weber’s June 26, 2012 order, but noted that it “was based in 

part on the expectation that there would be residential treatment available” which had still not 

occurred. Attachment KK, p. 7 (“so I’m not going to order the child home at this time despite 

[the court’s] earlier ruling.”). On June 26, 2012, DHS advised Judge Weber that I.R. needed 

“some sort of inpatient or residential type facility” and that it had started the process the previous 

afternoon to find such a placement. Attachment T, pp. 11, 18. Judge Weber was under the clear 

impression that DHS would “need a few days” to find an open bed in a residential facility and 

preferred that I.R. wait in plaintiffs’ home, rather than be “bounced around” in foster care. Id, 

pp. 20-21. She also agreed with DHS that “if the placement did not become available within a 

reasonable amount of time or [I.R.] did have to transition home for more than maybe a day,” 

DHS could return to court. Id, p. 21. As it turned out, I.R. did not qualify for residential care 

treatment (Attachment KK, p. 6), eliminating the premise of Judge Weber’s directive. Therefore, 

on July 12, 2012, the court interpreted Judge Weber’s prior order to permit DHS to place I.R. in 

foster care if residential treatment was not available. In other words, DHS’s decision to place 

I.R. in foster care was subsequently ratified by the court.

Moreover, as of July 12, 2012, DHS had legal custody over I.R. and the authority to 

determine when it was appropriate to return her to plaintiffs’ home. Making placement and 

supervision decisions in regard to a ward’s care and custody is an extension of the authority 

possessed by the court transferring custody to the state and a quasi-judicial function. DeBiaso v. 

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Spitz, 957 F Supp2d 1213, 1222 (D Or 2013). Given the unavailability of residential care, DHS 

had the option either of returning I.R. to plaintiffs or sending her to foster care which the court 

later approved. In fact, the court consistently found that DHS was acting within its discretion 

and making reasonable efforts to return I.R. to plaintiffs. Attachment P, p. 2; Attachment R, p. 2; 

Attachment H, p. 1. Plaintiffs even stipulated in October 2012 that they “need[] the assistance of 

a child caring agency to learn and exhibit parenting skills necessary to allow the child to safely 

return home.” Attachment R, p. 2. 

Therefore, the Oregon defendants are entitled to summary judgment based on quasijudicial immunity for not returning I.R to plaintiffs’ home after she returned to Oregon as 

ordered by the court on June 26, 2012. 

b. Qualified Immunity

In the alternative, the Oregon defendants seeks summary judgment on the claim for not 

returning I.R. to plaintiffs’ home based on qualified immunity. In support, they argue that 

plaintiffs cannot prove any substantive due process violation based on DHS’s custody decisions 

regarding I.R.’s placement.

To prove a substantive due process violation, plaintiffs must prove that the government 

deprived a person of life, liberty, or property in such a way that “shocks the conscience” or 

“interferes with rights implicit in the concept of ordered liberty.” Nunez, 147 F3d at 871, 

quoting United States v. Salerno, 481 US 739, 746 (1987). Plaintiffs must meet the heavy 

burden of proving that the government’s action was “clearly arbitrary and unreasonable, having 

no substantial relation to the public health, safety, morals, or general welfare.” Village of Euclid 

v. Ambler Realty Co., 272 US 365, 395 (1926). “[O]nly the most egregious official conduct can 

be said to be ‘arbitrary in the constitutional sense.’” County of Sacramento v. Lewis, 523 US 

19 – FINDINGS AND RECOMMENDATION

Case 3:14-cv-01027-YY Document 84 Filed 06/05/15 Page 19 of 27
833, 846 (1998), abrogated on other grounds by Saucier, 533 US at 201; see also Sylvia 

Landfield Trust v. City of L.A., 729 F3d 1189, 1195 (9th Cir 2013) (citation omitted). Falsifying 

evidence satisfies this burden, as discussed above. However, unprofessional or mistaken actions 

by government officials are not sufficiently shocking to state a substantive due process claim. 

See Costello v. Mitchell Pub. Sch. Dist. 79, 266 F3d 916, 921 (8th Cir 2001) (harassment of 

handicapped student by teacher may have been “singularly unprofessional” but was 

insufficiently shocking to state a substantive due process claim). 

The parents’ liberty interest in the custody and care of their children is balanced against 

the state’s interest in acting as parens patriae to protect children. Mueller v. Auker, 700 F3d 

1180, 1186 (9th Cir 2012) (citation omitted). Given the information available, including the lack 

of a residential placement and other concerns about plaintiffs’ investment and participation with 

mental health “wrap-around” services, it was not arbitrary for the Oregon defendants to believe 

that they were acting in I.R.’s best interest by placing her in foster care and not returning her to 

plaintiffs’ home on and after June 26, 2012. Furthermore, the court, not the Oregon defendants, 

controlled the date of I.R.’s return to plaintiffs’ custody. According to court records, the Oregon 

defendants made reasonable efforts throughout the proceedings to reunite I.R. with plaintiffs. On 

July 12, 2012, the court found that I.R. could not go home without danger of physical injury and 

emotional injury. Attachment KK. At the trial on October 23, 2012, plaintiffs stipulated that 

they “need[] the assistance of a child caring agency to learn and exhibit parenting skills 

necessary to allow the child to safely return home.” Attachment R, p. 2. The court ordered 

plaintiffs to complete services such as counseling, visits with I.R., and so on. Id, pp. 4-5. At the 

January 17, 2013 hearing, the court found that plaintiffs still had “not made sufficient progress 

toward reunification.” Attachment H, p. 2. The Citizen Review Board similarly found in 

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December 2012 that plaintiffs had not made “sufficient progress to make it possible for [I.R.] to 

safely return home.” Attachment E, p. 3.

On this record, plaintiffs cannot establish that the Oregon defendants violated their 

Fourteenth Amendment right for their placement decisions for I.R. on and after June 26, 2012. 

According, they also are entitled to summary judgment on this claim based on qualified 

immunity. 

B. Insufficiency of Evidence

As discussed above, Wirtz and Smith are not entitled to either absolute or qualified 

immunity for the allegedly false statements in Wirtz’s affidavit. However, they also seek 

summary judgment on the basis that plaintiffs have failed to prove that their prosecutorial 

conduct through June 26, 2012, violated the Fourteenth Amendment. In support, Wirtz submits a 

declaration in which she “vehemently den[ies] making any false statements in [her] affidavit.” 

Wirtz Decl. (docket #59), ¶ 3. However, as discussed above, plaintiffs have submitted 

declarations by the Arizona defendants which indicate that Wirtz either falsified evidence or

misled the court to believe that DHS did not request I.R.’s removal from Phelps’s home or was 

not influential in ACPS’s decision to do so. At this juncture, a material issue of fact precludes 

summary judgment in favor of Wirtz and Smith based on conflicting inferences that may be 

drawn from evidence in the record.

II. State Tort Claims

Plaintiffs allege two state tort claims: (1) that the Oregon defendants intruded both 

physically and mentally into their private affairs by interfering with their familial relationship

(First Amended Complaint, ¶¶ 59–61), and (2) that the Oregon defendants intentionally caused 

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them extreme emotional distress by failing to investigate the basis for custody of I.R. and for 

seizing of I.R. without probable cause. Id, ¶¶ 62–66. 

The Oregon defendants seek summary judgment because the actions taken by them prior 

to January 2012 are barred by Oregon Tort Claims Act (“OTCA”) notice provisions and because 

plaintiffs have failed to establish a genuine issue of material fact as to various elements of their 

claims. Plaintiffs do not respond to these arguments, but instead request that if the court 

dismisses the federal claims, a decision on the state claims should be reserved for later 

adjudication by the state court. As discussed above, the § 1983 claim should not be dismissed 

against Wirtz and Smith for their actions through June 26, 2012. And even if all of the federal 

claims should be dismissed, this court “may decline to exercise,” but is not automatically 

divested of, supplemental jurisdiction. 28 USC § 1367(c)(3). After dismissal of federal claims, 

“a district court may exercise its discretion to retain pendent claims, on the basis of judicial 

economy.” Schneider v. TRW, Inc., 938 F2d 986, 994 (9th Cir 1991) (citations omitted). Given 

the amount of time that has been invested in this case in this court, jurisdiction should be retained 

over the state law claims. Moreover, upon dismissing the federal claims, the federal court can 

also dismiss state law claims on the merits in order to avoid “a further, and futile, round of 

litigation in state courts.” Coe v. County of Cook, 162 F3d 491, 496 (7th Cir 1999).

A. OTCA Notice

The Oregon defendants seek summary judgment of plaintiffs’ tort claims as untimely. 

Pursuant to the OTCA, ORS 30.275(2) requires that a “[n]otice of claim shall be given . . . within 

180 days after the alleged loss or injury” for all claims that are not wrongful death actions. 

Accordingly, plaintiffs’ OTCA notice letter did not provide actual notice of any actions 

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occurring earlier than 180 days before July 12, 2013, which would be January 13, 2013.9 F

10 See 

First Amended Complaint, ¶ 4; Attachment MM. 

However, actions by the Oregon defendants occurring before January 13, 2013, such as 

placing I.R. in foster care on June 26, 2012, are part of a continuing tort, not a series of discrete 

harms. “A continuing tort is based on “the concept that recovery is for the cumulative effect of 

wrongful behavior, not for discrete elements of that conduct.’” Barrington ex rel. Barrington v. 

Sandberg, 164 Or App 292, 296, 991 P2d 1071, 1073 (1999), quoting Davis v. Bostick, 282 Or 

667, 671, 580 P2d 544, 547 (1978). Plaintiffs allege that they suffered emotional damage based 

on their continued separation while I.R. stayed in foster care. The Oregon defendants argue that 

plaintiffs have alleged two discrete acts of the initial foster care placement and continued 

retention in DHS custody. However, these allegations describe not two separate acts, but the 

beginning and duration of a continuing tort which did not end until the court placed I.R. back 

with plaintiffs on March 13, 2013. The Oregon defendants also argue that plaintiffs’ evidence 

points to separately actionable harms caused by each “back and forth . . . visit[] [between I.R. 

and her parents].” See First Amended Complaint, ¶ 40. However, unlike the cases which allege 

similar but separate injuries, these visits resulted in a single harm, namely “constant[] . . . anxiety 

and distress.” Id. Plaintiffs’ tort claims are clearly timely under the continuing tort doctrine. 

B. Qualified Immunity

The Oregon defendants argue they have qualified immunity for their decisions in placing 

I.R. in foster care following the court’s order on June 26, 2012. The OTCA generally makes 

governmental bodies subject to liability for the torts of its employees. ORS 30.265(1). But the 

OTCA also creates certain exceptions to that liability, including a “claim based upon the 

10 Plaintiffs allege two notice dates of July 12 and July 16, 2012, but submit a copy of only the July 16, 2012 notice.

For purposes of this motion, the court uses the earlier date for calculation of the 180 days. 

23 – FINDINGS AND RECOMMENDATION

 

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performance of or the failure to exercise or perform a discretionary function or duty, whether or

not the discretion is abused.” ORS 30.265(6)(c). In other words, a decision of a governmental 

employee is entitled to “discretionary immunity if a governmental person or entity made a policy 

choice among alternatives, with the authority to make that choice.” Westfall v. State ex rel. Or. 

Dept. of Corrections, 355 Or 144, 157, 324 P3d 440, 447 (2014) (en banc) (citation omitted). 

Both tort claims are based on the Oregon defendants initially placing and continuing to 

keep I.R. in foster care, the same actions for which they enjoy qualified immunity under the 

§ 1983 claim. The judgment by the Oregon defendants to place I.R. in foster care after gaining 

protective custody through a court order was a discretionary decision chosen from several 

alternatives, including returning her to plaintiffs. For this reason, the Oregon defendants’ 

placement decisions, including their investigation and assessment of when plaintiffs were ready 

to have I.R. return to their home, are entitled to qualified immunity under the OTCA. 

C. Insufficiency of Evidence

Even if the Oregon defendants do not enjoy qualified immunity, they argue that plaintiffs 

have failed to adduce sufficient facts to avoid summary judgment. Without reaching the 

question of whether Wirtz and Smith are entitled to qualified immunity for their prosecutorial 

actions, including the investigation into I.R.’s need for protective custody, plaintiffs have failed 

to establish a genuine issue of fact as to several elements of their claims. 

1. Intentional Infliction of Emotional Distress

“To state a claim for intentional infliction of severe emotional distress, a plaintiff must 

plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the 

defendant’s acts were the cause of the plaintiff’s severe emotional distress, and (3) the 

defendant’s acts constituted an extraordinary transgression of the bounds of socially tolerable 

24 – FINDINGS AND RECOMMENDATION

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conduct.” McGanty v. Staudenraus, 321 Or 532, 543, 901 P2d 841, 849 (1995). To satisfy the 

first element, plaintiffs must show the Oregon defendants desired to inflict severe emotional 

distress or knew that such distress was certain, or substantially certain to result from their alleged 

conduct.” Id at 550–51. Plaintiffs have produced no evidence that Wirtz initiated the 

investigation and sought protective custody with the intention to cause plaintiffs severe 

emotional distress which, of course, Wirtz denies. Wirtz Decl., ¶ 4. Nor have plaintiffs 

produced evidence that Wirtz was certain that removing I.R. from plaintiffs’ care would cause 

I.R. and/or her parents severe emotional distress. I.R. had continued to suffer from serious 

behavioral issues after plaintiffs adopted her, despite four years of psychological counseling, and 

continued to exhibit some of those same behaviors while visiting Phelps. If it was clear that 

I.R.’s psychological condition had improved while under plaintiffs’ care, then a reasonable 

factfinder could determine that protective custody was certain to cause I.R. severe emotional 

distress. However, plaintiffs have not produced any evidence that separation would further harm 

I.R.’s wellbeing. Based on the absence of a genuine issue of material fact, the Oregon 

defendants should be granted summary judgment as to this claim.

2. Intrusion on Seclusion

To establish their claim for intrusion on seclusion, plaintiffs must prove three elements: 

(1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or 

private affairs or concerns, (3) which would be highly offensive to a reasonable person.” Mauri 

v. Smith, 324 Or 476, 483, 929 P2d 307, 310 (1996). The plaintiff bears the burden of 

establishing each element, including the defendant’s state of mind. Id at 485, 929 P2d at 311. 

The element of intent requires “that the actor desires to cause the consequences of his act, or that 

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he believes that the consequences are substantially certain to result from it.” McGanty, 321 Or at

550-51, 901 P2d at 852. 

To successfully establish this claim, plaintiff must demonstrate that the Oregon 

defendants did not believe that they had “either the necessary personal permission or legal 

authority to commit the intrusive act.” Mauri, 324 Or at 484, 901 P2d at 311, citing O’Donnell 

v. U.S., 891 F2d 1079, 1083 (3rd Cir 1989). The Oregon defendants did, in fact, have legal 

authority to intrude:

(1) If the Department of Human Services or a law enforcement agency 

receives a report of child abuse, the department or the agency shall 

immediately:

(a) Cause an investigation to be made to determine the nature and 

cause of the abuse of the child 

. . . 

(3) If the law enforcement agency conducting the investigation 

finds reasonable cause to believe that abuse has occurred, the law 

enforcement agency shall notify by oral report followed by written report 

the local office of the department. The department shall provide 

protective social services of its own or of other available social agencies if 

necessary to prevent further abuses to the child or to safeguard the child’s 

welfare.

ORS 419B.020. 

Under that statute, Wirtz and Smith had not only legal authority, but a statutory mandate,

to intrude into plaintiffs’ lives to investigate I.R.’s safety in Phelps’s home and, based on their 

findings, to pursue protective custody. It is not sufficient to create a genuine issue of material 

fact by arguing, as do plaintiffs, that Wirtz and Smith acted without a reasonable cause to believe 

that abuse had occurred. In fact, according to plaintiffs’ own evidence, it was the “professional 

judgment” of the Oregon caseworker (presumably Wirtz) that IR should be removed from 

Phelps’s home. Van Winkle Decl., ¶ 3; Schubert Decl., ¶ 3. For this reason, summary judgment 

should be granted to the Oregon defendants on the intrusion on seclusion claim. 

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RECOMMENDATION

For the reasons set forth above, the Oregon defendants’ Amended Motion for Summary 

Judgment (docket #58) should be DENIED as to the Fourteenth Amendment claim based on 

Wirtz and Smith’s prosecutorial conduct which resulted in issuance of the initial protective order 

by the Oregon court on June 26, 2012, and should be otherwise GRANTED. 

SCHEDULING ORDER

The Findings and Recommendation will be referred to a district judge. Objections, if 

any, are due Monday, June 22, 2015. If no objections are filed, then the Findings and 

Recommendation will go under advisement on that date.

If objections are filed, then a response is due within 14 days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement.

DATED June 5, 2015.

s/ Janice M. Stewart

Janice M. Stewart

United States Magistrate Judge

27 – FINDINGS AND RECOMMENDATION

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