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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Montiah Chatman, 

Plaintiff, 

v. 

Marci D Ferrell, et al., 

Defendants. 

No. CV-17-03826-PHX-DLR 

ORDER 

Plaintiff Montiah Chatman alleges that Defendants Marci Ferrell and Cindy 

Chrisman, employees at the Arizona Department of Child Services (“ADCS”), 

unlawfully removed her children from her home in violation of her and her sons’ Fourth 

Amendment rights. Before the Court is Defendants’ Motion to Dismiss First Amended 

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 21.) The motion 

is fully briefed and neither party requested oral argument. (Docs. 22, 23.) For reasons 

stated below, the motion is denied. 

BACKGROUND 

 In November 2016, Plaintiff allowed her two sons, J.L.C. and E.V.T.P., to visit 

Corey Pearson, E.V.T.P.’s paternal grandmother, in Minnesota. (Doc. 16 ¶¶ 14-15.) 

Two days after dropping the boys off with Pearson, Plaintiff was contacted by the 

Minnesota Child Protective Services (“MCPS”), inquiring about whether she had 

abandoned the boys in the state. (¶¶ 21, 23.) Plaintiff returned to Minnesota, regained 
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custody of the boys, and immediately returned to Arizona. (¶¶ 24-26.) 

 Pearson subsequently filed suit in a Minnesota family court, and offered an 

affidavit asserting that Plaintiff had abandoned her boys in Minnesota. (¶¶ 27-29.) 

Pearson successfully obtained an ex parte temporary custody order over the children from 

the Minnesota District Court for Wright County (hereinafter “Minnesota order”). (¶ 30; 

Doc. 13-1.) Pearson contacted the ADCS and sought enforcement of the Minnesota 

order, and reported the children as missing to the Phoenix Police Department. (Doc. 16 

¶¶ 33-34.) 

As a result, on December 29, 2016, ADCS investigator Ferrell met with Plaintiff 

and her boys to evaluate the children’s condition. (¶ 37.) After spending time with the 

children, Ferrell was satisfied enough there was no abuse or neglect to take the children 

off the missing persons list. (¶¶ 38-39.) On January 4, 2017, however, Ferrell returned to 

Plaintiff’s home and removed both boys from her custody. (¶¶ 44-45, 63.) Ferrell issued 

a temporary custody notice (“TCN”), which stated that removal was necessary because of 

the temporary custody order issued by the Minnesota court. (¶ 48.) Plaintiff had to 

undergo four months of litigation to get her boys back. (¶ 81.) 

 Plaintiff, individually and on behalf of J.L.C. and E.V.T.P., filed suit against 

Ferrell and Chrisman asserting a claim under 42 U.S.C. § 1983, as well as state common 

law claims for intentional infliction of emotional distress, false arrest, and negligence. 

(Doc. 16.) Defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) 

to dismiss the amended complaint for failure to state a claim upon which relief may be 

granted. 

JUDICIAL NOTICE 

Defendants request that the Court take judicial notice of the Minnesota order. 

(Doc. 13-1.) The Court may take judicial notice of public records without converting a 

motion to dismiss into one for summary judgment. Lee v. City of L.A., 250 F.3d 668, 689 

(9th Cir. 2001). However, the Court may not take judicial notice of a fact that is subject 

to reasonable dispute. Id.; Fed. R. Evid. 201. The document at issue consists of factual 
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and legal findings of the Minnesota District Court for Wright County. The Court will 

take judicial notice of the existence of the Minnesota order because it is beyond 

reasonable dispute that the Minnesota order issued and contained these factual and legal 

findings. Moreover, Plaintiff refers to the Minnesota order throughout her complaint 

(see, e.g., Doc. 16 ¶¶ 27-32, 34, 68-70, 99, 103), and therefore the Court may consider it 

under the incorporation by reference doctrine. See U.S v. Ritchie, 342 F.3d 903, 908 (9th 

Cir. 2003) (“Even if a document is not attached to a complaint, it may be incorporated by 

reference into a complaint if the plaintiff refers extensively to the document or the 

document forms the basis of the plaintiff's claim.”). To the extent Plaintiff reasonably 

disputes the truth or validity of the factual and legal findings in the order, the Court 

judicially notices only the fact that the Minnesota order issued and contained certain 

findings and conclusions. The Court does not take as true the findings and conclusions 

contained therein. 

LEGAL STANDARD

When analyzing a complaint for failure to state a claim to relief under Rule 

12(b)(6), the well-pled factual allegations are taken as true and construed in the light 

most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 

Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the 

assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and therefore are 

insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. 

Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid dismissal, the complaint must 

plead sufficient facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard “is not akin to a 

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 

has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556) 

DISCUSSION 

Defendants contend they are entitled to absolute quasi-judicial immunity or 

qualified immunity as to Plaintiff’s § 1983 claim. Defendants also contend that under 
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Arizona law they are entitled to absolute-quasi judicial immunity as to Plaintiff’s state 

common law claims. The Court discusses each in turn. 

I. § 1983 Claim 

 Section 1983 provides a cause of action for persons who have been deprived of 

their constitutional rights by persons acting under color of law. It is a mechanism “for 

vindicating federal rights elsewhere conferred,” and “is not itself a source of substantive 

rights.” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005) (internal 

quotations omitted). To succeed on a claim under § 1983, a plaintiff must show “(1) that 

a right secured by the Constitution or the laws of the United States was violated, and (2) 

that the alleged violation was committed by a person acting under color of State law.” 

Long v. Cty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). Plaintiff alleges that 

Defendants violated her Fourth and Fourteenth Amendment rights by seizing her children 

without a warrant or the requisite exigency. (Doc. 16 ¶¶ 88-101.) 

 A. Absolute Quasi-Judicial Immunity 

Absolute judicial immunity “insulates judges from charges of erroneous acts or 

irregular action.” In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002). Judicial immunity is 

based on an understanding that these individuals execute an “independent and impartial 

exercise of judgment vital to the judiciary [which] might be impaired by exposure to 

potential damages liability.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 

(1993). Quasi-judicial immunity extends judicial immunity to non-judicial officials when 

performing “official duties that are functionally comparable to those of judges, i.e., duties 

that involve the exercise of discretion in resolving disputes.” In re Castillo, 297 F.3d at 

948. 

Defendants contend that they are entitled to absolute quasi-judicial immunity 

because they were acting pursuant to a valid court order when they removed the children. 

Defendants rely on Coverdell v. Department of Social and Health Services, State of 

Washington, 834 F.2d 758, 765 (9th Cir. 1987), which states that a child protective 

services worker must be “accorded absolute quasi-judicial immunity from liability for 
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damages stemming from the worker’s apprehension of a child pursuant to a valid court 

order.” 

Coverdell, however, no longer controls. Subsequent to Coverdell, the Supreme 

Court decided Antoine, which “worked a sea change in the way in which . . . absolute 

quasi-judicial immunity for nonjudicial officers” is applied. In re Castillo, 297 F.3d at 

948. Now, it is “only when the judgment of an official other than a judge involves the 

exercise of discretionary judgment that judicial immunity may be extended to that 

nonjudicial officer.” Id. at 949; see Miller v. Gammie, 335 F.3d 889, 898 (9th Cir. 2003) 

(noting that “circuit precedent, authoritative at the time that it issued, can be effectively 

overruled by subsequent Supreme Court decisions that ‘are closely on point,’ even 

though decisions do not expressly overrule prior precedent”). 

Here, Defendants do not allege that they exercised discretionary judgment. In 

fact, they allege the opposite—their actions were taken at the direction of, and in 

accordance with, the Minnesota order.1

 Defendants also contend that the Minnesota court 

order provided them “probable cause” for removing the children. (Doc. 21 at 5-6.) 

Specifically, Defendants assert the Minnesota order put them “on notice that exigent 

circumstances existed” in the home. (Doc. 23 at 3.) Defendants, however, cite no 

authority extending absolute quasi-judicial immunity to a state official under such 

circumstances. Accordingly, Defendants are not entitled to absolute quasi-judicial 

immunity. 

 B. Qualified Immunity 

In the alternative, Defendants argue they are entitled to qualified immunity. A 

defendant is entitled to qualified immunity if her conduct “does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have 

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity 

analysis involves two inquiries: whether the facts show that the officer’s conduct violated 

 1

 Even if Coverdell controlled, Defendants actions were not taken pursuant to a court order because the Minnesota order did not direct removal of the children. 

Defendants concede as much in their reply brief. (Doc. 23 at 3.) 
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a constitutional right and whether the right at issue was clearly established at the time. 

Saucier v. Katz, 533 U.S. 194, 201 (2001). In determining whether qualified immunity 

applies, courts have the discretion to bypass the first inquiry and proceed directly to the 

second. Pearson v. Callahan, 555 U.S. 223, 226 (2009). 

 A motion to dismiss based on qualified immunity puts the Court in the difficult 

position of deciding “far-reaching constitutional questions on a non-existent factual 

record.” Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 2004). Granting 

dismissal based on qualified immunity “pursuant to a Rule 12(b)(6) motion is only 

appropriate if the Court can determine from the face of the complaint that qualified 

immunity applies.” Hernandez v. Ryan, No. 09-CV-2683-PHX-DGC, 2010 WL 

4537975, at *1 (D. Ariz. Nov. 3, 2010); see also Groten v. Cali., 251 F.3d 844, 851 (9th 

Cir. 2001). Here, the Court finds that a final determination on qualified immunity cannot 

be made at this time. 

 Moving directly to the second prong, a right is clearly established if its contours 

are “sufficiently clear that a reasonable official would understand that what he is doing 

violates that right.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006). 

It is not necessary that there be a prior case with the identical facts showing that a right is 

clearly established; it is enough that there is preexisting law that provides a defendant 

“fair warning” that his conduct was unlawful. Id. at 1065. “The relevant, dispositive 

inquiry . . . is whether it would be clear to a reasonable officer that his conduct was 

unlawful in the situation he confronted.” Saucier, 533 U.S. at 202 (emphasis added). 

 It is well established that “[p]arents and children have a [] constitutional right to 

live together without governmental interference.” Wallis v. Spencer, 202 F.3d 1126, 

1136 (9th Cir. 2000). “The Fourteenth Amendment guarantees that parents will not be 

separated from their children without due process of law except in emergencies.” Mabe 

v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001). 

“Officials, including social workers, who remove a child from [his] home without a 

warrant must have reasonable cause to believe that the child is likely to experience 
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serious bodily harm in the time that would be required to obtain a warrant.” Rogers v. 

Cty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007). Although serious allegations 

of abuse or neglect that have been investigated and corroborated usually give rise to a 

reasonable inference of imminent danger sufficient to justify taking children into 

temporary custody, delay in taking children into custody or a prior willingness to leave 

the children in their home militates against finding such an exigency. Id. at 1294-1295; 

see also Calabretta v. Floyd, 189 F.3d 808, 817 (9th Cir. 1999) (finding social worker not 

entitled to qualified immunity for warrantless entry into home because 14-day delay 

between report and investigation demonstrated lack of exigency). 

 Based on the allegations in the complaint, Defendants contend that the “reasonable 

inference” is that they received the Minnesota order between the December 29 meeting 

and the January 4 meeting, and that the order’s factual findings established probable 

cause that an exigency existed. Although this is a reasonable inference, it is not the only 

one. According to the complaint, ADCS was aware of the Minnesota order prior to the 

December 29 meeting. (Doc. 16 ¶¶ 34, 42.) Drawing all reasonable inferences in 

Plaintiff’s favor, the agents’ delay in taking the children into custody after receiving the 

Minnesota order plausibly shows a lack of exigency. Accordingly, Defendants’ motion 

to dismiss Plaintiff’s § 1983 claim is denied.2

 

II. State Common Law Claims 

Plaintiff also raises state common law claims for intentional infliction of 

emotional distress, false arrest, and negligence. (Doc. 16 ¶¶ 102-115.) As with 

Plaintiff’s § 1983 claim, Defendants assert absolute quasi-judicial immunity. Whether 

Defendants are immune from Plaintiff’s Arizona tort law claims is a question of Arizona 

law. See Martinez v. California, 444 U.S. 277, 282 n. 5 (1980) (“[W]hen state law 

creates a cause of action, the State is free to define the defenses to that claim, including 

the defense of immunity . . . .”); Adams v. State, 916 P.2d 1156, 1163 (Ariz. Ct. App. 

 2

 The Court does not decide whether Defendants violated a constitutional right because at this stage it is not equipped with the necessary facts to determine whether 

qualified immunity will ultimately protect them. Those issues must be resolved at 

summary judgment or at trial. 
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1995) (explaining judicial immunity is a “creature of the common law” and Arizona 

courts are responsible for shaping and monitoring [its] course). Federal courts must 

follow the decisions of a state’s highest court when deciding issues of that state’s law. 

Harvey’s Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 154 (9th Cir.1992). Arizona 

recognizes absolute quasi-judicial immunity when an official: (1) acts pursuant to a court 

order, or (2) performs a function integral to the judicial process. Adams, 916 P.2d at 

1160-62. 

Defendants appear to contend they are entitled to absolute quasi-judicial immunity 

under only the first category, arguing that they are entitled to immunity because they 

removed the children pursuant to the Minnesota order. (Doc. 16 ¶ 48; Doc. 23 at 8.) The 

Minnesota order, however, does not direct removal of the children. (Doc. 23 at 3.) 

Moreover, by its own terms, the order had already expired two weeks prior to the 

children being seized. (Doc. 13-1 ¶ 3.) 

 To the extent Defendants contend that they are entitled to immunity under the 

second category, the Court is unpersuaded. Arizona “[c]ourts have found that certain 

activities essential to the functioning of the judicial system warrant absolute protection 

from suit.” Adams, 916 P.2d at 1161; see also Griggs v. Oasis Adoption Servs., Inc., 383 

P.3d 1145, 1149 (Ariz. Ct. App. 2016). “With respect to court officials performing 

functions in judicial proceedings, it has narrowly construed the requirement that the act 

raising the privilege have a close, direct relationship to such proceedings.” Davis v. 

Spier, No. 08-CV-50-PHX-NVW, 2008 WL 1746165, at *8 (D. Ariz. Apr. 14, 2008) 

(internal quotation and citation omitted). For example, immunity has been extended to 

submitting presentence reports, submitting child-custody evaluations and 

recommendations, initiating the filing of child dependency petitions, submitting adoption 

recommendations, and making reports and recommendations to the court as a guardian ad 

litem. Adams, 916 P.2d at 1161. Arizona courts have extended absolute immunity to 

non-judicial officers performing a function, pursuant to a court directive, which was 

related to the judicial process. Here, there was no such directive to remove the children. 
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 The decision of the Arizona Court of Appeals in Adams supports this conclusion. 

There, the court was asked to decide whether certain social workers were absolutely 

immune from claims for negligently supervising and investigating prospective adoptive 

parents. The court noted that the judge did “not specify how the caseworkers should 

conduct their investigations” and that the social workers had not shown that they “acted 

pursuant to any specific court order in conducting their investigations or in supervising 

the children post placement.” Id. at 1160. Therefore, it held that the social workers’ 

“investigative and supervisory functions cannot clearly be characterized as court-ordered 

so as to justify absolute immunity on that ground.” Id. The Court finds this analysis 

equally applicable to this matter. Accordingly, 

 IT IS ORDERED that Defendant’s Motion to Dismiss First Amended Complaint 

(Doc. 21) is DENIED. 

 Dated this 29th day of June, 2018. 

Douglas L. Rayes 

United States District Judge