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D ock e t 99-5486

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. e du/thir dc ir c uit_2000/120Filed June 5, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5486

MARGARET KELLY MICHAELS Appellant

v.

STATE OF NEW JERSEY; ATTORNEY GENERAL'S
OFFICE; COUNTY OF ESSEX; ESSEX COUNTY PROSECUTOR; GEORGE L. SCHNEIDER, ESQ. ; HERBERT TATE, ESQ.; JOHN MASTROANGELO; JOHNNOONAN; GLENN GOLDBERG, ESQ.; SARAH SPENCERMCARDLE; EILEEN C. TREACY, M.A.; THE ESSEX COUNTY POLICE DEPARTMENT; NEWARK POLICE DEPARTMENT; DIVISION OF YOUTH AND FAMILY SERVICES; LOUIS FONNELARAS; SUSAN ESQUILLAN; "JOHN DOES", 1 THROUGH 20 (FICTITIOUS PERSONS); "JOSEPH DOES", 1 THROUGH 20 (FICTITIOUS PERSONS); "JAMES DOES"; "JANE DOES", 1 THROUGH 20 (FICTITIOUS PERSONS); "HARRY DOES", 1 THROUGH 20 (FICTITIOUS PERSONS); GEORGE MCGRATH

SUSAN ESQUILLAN Defendant/Third-Party Plaintiff

v.

THE HEALTH CARE INSURANCE COMPANY Third-Party Defendant

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 96-03557) District Judge: Honorable Maryanne Trump Barry* The Honorable Arthur L. Alarcon, Senior Judge of the United States

Court of Appeals for the Ninth Circuit, sitting by designation. Argued: March 21, 2000

Before: MANSMANN and GREENBERG, Circuit Judges and ALARCON, Senior Circuit Judge*

(Filed: June 5, 2000)

Louis J. Santore [Argued] Santore & Kenny
300 Harmon Meadow Boulevard Secaucus, NJ 07094

Attorney for Appellant

Juan C. Fernandez Essex County Counsel

Steven C. Mannion [Argued] Assistant County Counsel County of Essex Hall of Records, Room 530 Newark, NJ 07102

Attorneys for Appellees George
McGrath and Richard Mastroangelo

Jacqueline A. DeGregorio [Argued]
Robert D. Laurino
Weiner Lesniak 629 Parsippany Road Parsippany, NJ 07054-0438

Attorneys for Sara Sencer-McArdle

John J. Farmer, Jr. Attorney General of New Jersey

2Mary C. Jacobson

Assistant Attorney General of

Counsel

Valerie L. Egar [Argued] Deputy Attorney General Office of Attorney General of New Jersey Department of Law & Public Safety
Division of Law Richard J. Hughes Justice Complex Trenton, NJ 08625

Attorneys for Louis Fonnelaras

Terri A. Smith [Argued]
Stevens & Minter 300 Lighting Way
2nd Floor Secaucus, NJ 07096

Attorney for Susan Esquilin

OPINION OF THE COURT

ALARCON, Senior Circuit Judge.

Margaret Kelly Michaels ("Michaels") appeals from t he order granting the defendants' motion for summary judgment and dismissing her S 1983 claims against t hem. Michaels alleged that the defendants violated her constitutional rights by employing coercive intervi ew techniques with child witnesses while investigating allegations of child abuse made against her. The di strict court granted the defendants' motions for summary judgment on three alternative grounds. First, the d istrict court found that the defendants were entitled to qu alified immunity because Michaels's allegations that the defendants engaged in an improper investigation did not allege a violation of her constitutional rights. Th e district court then ruled that even if the improper investig ation did violate her constitutional rights, the defendants w ould nonetheless be entitled to qualified immunity becau se those

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rights were not clearly established at the time of the investigation such that a reasonable person in the defendants' position would have known that they wer e violating her rights. Finally, the district court c oncluded that, putting the issue of qualified immunity aside
,Michaels's S 1983 malicious prosecution claim must be

dismissed for failure to state a claim. Michaels co ntends
that each one of the district court's conclusions w as erroneous. We agree with the district court that th e use of improper interview techniques in questioning the ch ildren did not violate any of Michaels's constitutional ri ghts. We conclude that the district court correctly determin ed that
Michaels failed to demonstrate that her constitutio nal rights were violated. We do not consider its altern ative grounds for granting summary judgment.

I

A child who attended the Wee Care Nursery School in Maplewood, New Jersey, reported to a nurse at his pediatrician's office that he had been sexually abu sed by Michaels. Michaels was employed at the nursery scho ol as a teacher. On April 30, 1985, Louis Fonnelaras, an investigator with the Institutional Abuse Investiga tion Unit of the Division of Youth and Family Services, was a ssigned to investigate the merits of the child's allegation . Mr. Fonnelaras informed John Mastroangelo, an investiga tor with the Essex County Prosecutor's Office, of the c hild'saccusation. Mr. Mastroangelo notified Sarah SencerMcArdle, the director of the Child Abuse Unit of th e Prosecutor's Office, of the sexual abuse report. Sh ortly thereafter, four other children made similar allega tions regarding Michaels's conduct. Ms. Sencer-McArdle
interviewed each of the children. The evidence she discovered induced a grand jury to return an indict ment against Michaels.

Following the return of the first indictment, other children reported additional allegations of sexual misconduct by Michaels at the nursery school. After interviewing the children, Ms. Sencer-McArdle prese nted the results of her investigation to a second grand jury. The Essex County Prosecutor's Office continued to recei ve

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reports of sexual misconduct committed against chil dren at the Wee Care Nursery School. Ms. Sencer-McArdle presented this evidence to a third grand jury after conducting additional interviews. During the course of these investigations, Mr. Mastroangelo and George McGrath, another investigator with the Essex County Prosecutor's Office, Susan Esquilin, a psychologist , and Mr. Fonnelaras also participated in questioning the chi ldren. A total of one hundred and sixty-three charges werefi led against Michaels in three separate indictments.

On June 22, 1987, the trial regarding these charges wascommenced in the Superior Court of New Jersey. On A pril

15, 1988, the jury convicted Michaels of 115 counts of aggravated assault, sexual assault, endangering the welfare of children, and terroristic threats. On March 26, 1993, the Appellate Division reversed the convictions and rem anded for a new trial. The court questioned the reliabili ty of the
methods used to interview the children. The court h eld that, "courts must provide a remedy where the recor d demonstrates that an accuser's testimony is founded upon unreliable perceptions, or memory caused by imprope r investigative procedures if it results in a defenda nt's right to a fair trial being irretrievably lost. . . .[and that a] factual hearing would be required for this purpose. " See State v. Michaels, 264 N.J. Super. 579, 631-32 (App . Div. 1993). The Supreme Court of New Jersey affirmed the reversal of the judgment of conviction. See State v

. Michaels, 136 N.J. 299 (1994). On December 1, 1994, the Essex County Prosecutor's Office dismissed all char ges against Michaels.

On June 13, 1996, Michaels filed a complaint in the Superior Court of New Jersey. On July 25, 1996, the
defendants removed the action to the United States District Court, District of New Jersey. Numerous claims and defendants were dismissed, either voluntarily or by court order, leaving only the claims of malicious prosecu tion and violation of S 1983 against five defendants: Louis Fonnelaras, John Mastroangelo, Sarah Sencer-McArdle
, George McGrath, and Susan Esquilin (collectively"th e defendants"). The defendants filed motions for summ ary judgment based on the defense of qualified immunity . In

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May, 26, 1999, the district court granted the motio ns and
dismissed the S 1983 claims. The district court rem anded the common law malicious prosecution claim to the Superior Court of New Jersey. Michaels timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C.S 1291.

II

We review a district court's grant of a motion for summary judgment de novo. See Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999). Summary judgment is appropriate where, viewing the record in the light most favorable to the non-moving party, there is no genu ine issue of material fact and the moving party is enti tled to judgment as a matter of law. See Jones v. School Di st. of Philadelphia, 198 F.3d 403, 409 (3d Cir. 1999).

In analyzing whether a defendant is entitled to the dismissal of an action based on the defense of qual ifiedimmunity, we must first determine "whether the plai ntiff's

claims make out a violation of a constitutional rig ht." Assaf v. Fields, 178 F.3d 170, 174 (3d Cir. 1999) (citing Siegert v. Gilley, 500 U.S. 226, 231 (1991)). If we conclude t hat the plaintiff has alleged a violation of a constitution al right, we
must then determine whether the defendant violated a clearly established right such that a reasonable of ficial in the defendant's position would know that his conduc t was unlawful. See id.; see also Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997) ("Government officials performin g discretionary functions are `shielded from liabilit y for civil damages insofar as their conduct does not violate c learly established statutory or constitutional rights of w hich a reasonable person would have known.' ") (quoting Ha rlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). These inquir ies are questions of law that the court must resolve. See S harrar,
128 F.3d at 828.

Michaels contends that the district court erred in concluding that the defendants were entitled to qua lified immunity because the interview techniques they empl oyed did not violate her constitutional right to due pro cess under the Fourteenth Amendment. Michaels argues that the rationale of the district court, adopted from the S eventh

6

Circuit's holding in Buckley v. Fitzsimmons, 20 F.3 d 789 (7th Cir. 1994), is flawed because it "leaves a Sec tion 1983 Plaintiff, such as Michaels, without recourse."

In Buckley, the plaintiff brought S 1983 claims aga inst police officers for allegedly coercing witnesses, a nd paying them money to make false statements against him, in order to implicate him in the crime for which he was trie d. Id. at 794. The court held in Buckley that "[c]oercing wit nesses to speak . . . is a genuine constitutional wrong" that violates "the right of the person being interrogated to be f ree from coercion." Id. The court further held, however, tha t the plaintiff could not "complain that the prosecutors may have twisted [the witness's] arm" because "[r]ights pers onal to their holders may not be enforced by third parties. " Id. at 794-95 (citations omitted). The court in Buckley r uled that "using one person's coerced confession at another's trial violates his rights under the due process clause," but that "[p]rosecutors are entitled to absolute immunity fo r actions as advocates before the grand jury and at trial eve n if they present unreliable or wholly fictitious proofs." Id . at 795; see also Imbler v. Pachtman, 424 U.S. 409, 431 (197 6) (holding that a prosecutor is entitled to absolute immunity from a civil suit for damages under S 1983 in initi ating a prosecution and in presenting the state's case, inc luding deciding which evidence to present).Consistent with the analysis of the Seventh Circuit in

Buckley, the district court in this matter held tha t the techniques used to interview the children during th e course of the investigation did not violate Michaels's con stitutional rights. The district court decided that Ms. Sencer- McArdle was entitled to absolute immunity in offering the u nreliable
evidence.

Michaels is correct in noting that such a rule leav es a plaintiff like herself without recourse. Indeed, th e court in Buckley recognized this dilemma. 20 F.3d at 795 ("[ T]he only way Buckley can establish a violation of the Constitution is to plead himself out of court."). T he United States Supreme Court, in upholding absolute prosecu torial immunity, also noted that absolute prosecutorial im munity may "leave the genuinely wronged defendant without civil redress," but concluded that the policies served by granting

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absolute prosecutorial immunity outweighed any gap in a plaintiff's recovery. See Imbler, 424 U.S. at 427. This court has acknowledged that a person harmed by the action s of a prosecutor would not be without any redress, beca use "[h]arm to a falsely-charged defendant is remedied by safeguards built into the judicial system - probabl e cause hearings, dismissal of the charges - and into the s tate codes of professional responsibility." Kulwicki v. Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992).

Michaels suggests that a but for causation analysis would be more appropriate to resolving the issue of qualified immunity in this instance. To support thi s proposition, Michaels cites to the dissenting opini on in Buckley. The dissent in Buckley suggested that pros ecutors are not immune from liability for their non-advocac y wrongful conduct if the plaintiff can demonstrate t hat the
indictment and trial would not have occurred but fo r the wrongful conduct. 20 F.3d at 800 (Fairchild, J., di ssenting). Judge Fairchild reasoned that the investigation tec hniques employed by the officers in Buckley were the same a s manufacturing evidence and suborning perjury, actio ns that would be non-advocacy wrongful conduct. See id

.

We are persuaded by the reasoning set forth in the majority opinion of Buckley. While we recognize tha t this rule may seem harsh to plaintiffs, we are satisfied that the remedies set forth in Kulwicki for a falsely-charge d defendant are sufficient to discourage prosecutors from coercing witnesses to make unreliable statements ag ainst a defendant. Here, for example, Michaels's conviction was reversed and the serious charges against her weredismissed because the children's testimony was unre liable.

Michaels also attempts to support her argument that her constitutional rights were violated by the improper techniques used to interview the children by relyin g on the decision in Clanton v. Cooper, 129 F.3d 1147 (10th Cir. 1997). Michaels asserts that the court in Clanton h eld that the plaintiff had standing to assert a constitution al violation of his rights based upon a witness's coer ced confession. Citing Buckley, the court in Clanton he ld that "a person may challenge the government's use against h im or her of a coerced confession given by another person ." Id. at

8

1157-58 (emphasis added). It recognized a plaintiff 's constitutional right not to have another person's c oerced statement used against him in an affidavit for an a rrest
warrant. See id.

The distinction between Buckley and Clanton is the use of the improperly obtained statements. In Buckley, the witness's coerced testimony was presented at trial. The court held that the prosecutor was absolutely immun e from an action for damages under S 1983 under Imbler. Se e 20 F.3d at 795. In Clanton, on the other hand, the pol ice used another person's coerced confession in an affidavit to
obtain an arrest warrant for Clanton. 129 F.3d at 1 151. In using a coerced statement in this manner, the court held in Clanton that the officers were not entitled to qual ified immunity. See id. at 1159; see also Malley v. Brigg s, 475 U.S. 335, 343 (1986) (holding that an officer apply ing for a warrant without probable cause may be entitled to q ualified immunity but is not entitled to absolute immunity). Here, the only use of the improperly obtained statements against Michaels was the presentation of the children's tes timony before the grand jury and at the criminal trial. Un til the children testified against her, Michaels's constitu tional right to due process was not violated by the techniques u sed to
interview the children.

The district court did not err in concluding that M ichaels
did not demonstrate a violation of her constitution al rights when the defendants employed improper interview techniques with the children. Thus, all of the defe ndants are entitled to qualified immunity for those acts. Furthermore, Ms. Sencer-McArdle is entitled to abso lute immunity for offering the testimony of the children against Michaels before the grand jury in that trial.

III

Michaels also contends that she was denied theopportunity to discover evidence as to the proper i nterview

techniques for interviewing children regarding alle gations of
sexual abuse in order to demonstrate that the defen dants violated her clearly established constitutional rig hts. Because we conclude that the questioning of the chi ldren

9

did not violate Michaels's constitutional rights, w e need not consider this question. Furthermore, Michaels'sfina l contention, that the district court erred in dismis sing her malicious prosecution S 1983 claim for failure to s tate a claim, is also unavailing. The district court prope rly
dismissed her claims on the basis that the remainin g defendants were entitled to immunity. Any discussio n in
the district court's order as to whether Michaels s tated a S 1983 malicious prosecution claim was superfluous. The order granting summary judgment can be upheld witho ut reaching the court's alternative basis for dismissi ng the
action.

IV

The defendants are entitled to qualified immunity f or their acts in interviewing the children because Mic haels did
not demonstrate a violation of her own constitution al rights. Ms. Sencer-McArdle is entitled to absolute immunity for presenting the children's testimony against Mic haels before the grand jury and at trial. We therefore AF FIRM the order granting the defendants' motion for summary judgment and dismissing Michaels's federal claims.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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