United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
(DEFENDANTS HARRINGTON, MCCULLOUGH, AND FRIDEL)
Timothy J. Cavan United States Magistrate Judge.
Krissy Sanchez filed this action in November 2017,
challenging defendants' actions in connection with the
care and custody of her children. Defendant Corbit Harrington
moves for summary judgment on grounds of prosecutorial
immunity. Defendant Laura McCullough moves for dismissal
because Sanchez has indicated she does not intend to proceed
against McCullough. Defendant Fridel moves for judgment on
the pleadings. He asserts that he is not a state actor; or,
if he is a state actor, he is entitled to qualified immunity;
and that Sanchez has not adequately pled a constitutional
violation against him.
Defendant Harrington's Motion for Summary
moves for summary judgment on grounds that he is protected by
prosecutorial immunity. Sanchez responded to his motion on
August 20, 2019 (Doc. 54; Doc. 56 at 1-45), and Harrington
replied on August 28, 2019 (Doc. 61).
Sanchez's Supplement and Statement of Disputed
the reply, Sanchez filed a “supplement” to her
response, including a statement of disputed facts (Doc. 64)
on September 5, 2019. The supplement was not properly filed
and the statement of disputed facts was untimely.
See D. Mont. L.R. 7.1(d)(1)(B)(i), (D), 56.1(b).
supplement contains allegations that Harrington “fails
to train or reprimand or hold accountability for the illegal
actions committed” by social workers, Pl. Supp. (Doc.
64) at 3, and that “Harrington and his office” or
“the county attorney bypassed all legal avenues
obtained ex parte hearings and orders and fail to notify
the court and all family members hides the fact that [family
members] are present and capable of managing their family
during crisis.” Id. Sanchez also alleges other
acts by Harrington in the statement of disputed facts.
See, e.g., Statement (Doc. 64) at 7 ¶¶ 10
[serially 11], 12; id. at 7-8 ¶¶ 13-15.
These allegations are not reflected in the complaint or
amended complaint and are not properly before the Court.
Sanchez also discusses actions by Defendants Lauwers, McCave,
Taylor, and Cunningham. They have not filed a motion for
Sanchez's supplement and statement of disputed facts
should be stricken in their entirety. They will not be
further considered here.
Merits of the Motion for Summary Judgment
Summary Judgment Standards
will grant summary judgment if the movant can show
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Material facts are those
which may affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
as to a material fact is genuine if there is sufficient
evidence for a reasonable fact-finder to return a verdict for
the nonmoving party. Id.
moving party has the initial burden to submit evidence
demonstrating the absence of a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the movant meets its initial responsibility,
the burden shifts to the nonmoving party to establish a
genuine issue of material fact. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). In attempting to establish the existence of this
factual dispute, the opposing party must “go beyond the
pleadings and by ‘the depositions, answers to
interrogatories, and admissions on file,' designate
‘specific facts showing that there is a genuine issue
for trial.'” Celotex, 477 U.S. at 324
(quoting Fed.R.Civ.P. 56(e)).
immunity protects the function of a prosecutor or State's
attorney in the judicial process. Immunity “is not
grounded in any special esteem for those who perform these
functions, and certainly not from a desire to shield abuses
of office, but because any lesser degree of immunity could
impair the judicial process itself.” Malley v.
Briggs, 475 U.S. 335, 342 (1986)). “Frequently
acting under serious constraints of time and even
information, a prosecutor inevitably makes many decisions
that could engender colorable claims of constitutional
deprivation. Defending these decisions, often years after
they were made, could impose unique and intolerable burdens
upon a prosecutor responsible annually” for hundreds of
cases. Imbler v. Pachtman, 424 U.S. 409, 425-26
immunity is designed to protect a function, it applies to all
of counsel's actions and decisions-right or wrong, fair
or unfair-that are “intimately associated with the
judicial phase” of the State's involvement with a
criminal defendant, or a taxpayer, or, in Sanchez's case,
a parent. See, e.g., Buckley v.
Fitzsimmons, 509 U.S. 259, 269-71 (1993). It applies
when a deputy county attorney makes sound legal decisions
that lead to a good outcome or that are adopted by a judge
and affirmed by an appellate court. It also applies when a
deputy county attorney makes bad decisions. See,
e.g., Imbler, 424 U.S. at 416 (describing
allegations against prosecutor). Regardless of whether the
acts are good or bad, “acts undertaken by a prosecutor
in preparing for the initiation of judicial proceedings or
for trial, and which occur in the course of his role as an
advocate for the State, are entitled to the protections of
absolute immunity.” Buckley, 509 U.S. at 273.
the word “prosecutor” is typically associated
with criminal cases, “prosecutorial immunity”
extends to Harrington's functions here because “the
critical decision to institute proceedings to make a child a
ward of the state is functionally similar to the
prosecutorial institution of a criminal proceeding.”
Miller v. Gammie, 335 F.3d 889, 898 (9th Cir. 2003)
(en banc); see also Meyers v. Contra Costa County
Dep't of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir.
Complaint, Sanchez alleges:
Corbit Harrington signed off on an affidavit for emergency
removal TLC [temporary legal custody by the State] with no
preponderance of evidence full of she-said information. No
bodily damage no marks left on children as clearly stated in
petition. No bruising no physical injurys not current
situation no life threatening removal needed. He signed a
unconstitutional removal with evidence in petition showing a
unconstitutional seizure of child proof in petition that YCSO
forcefully entered my home with no warrant after social
worker saw child was fine. No complaint to the condition of
child upon investigation. No bodily harm to older child upon
interview and petition shows older child is doing very well
in the private school and doesn't want to leave it.
Ceirra rash and the dept then filed for custody of my son
while keeping pertinent information out of the affidavate
that would have shown the whole picture[.] . . .
When I took the dept evidence of the 4th of July showing my
family was fine that my daughter just didn't want pulled
out of a boarding school and my other daughter was pissed off
helping her to lie they removed that date from petition to
lie and make it look like an ongoing situation in my home.
[T]he dept petition says I don't leave marks on my child
by one of there callers there was more they could have done
other then showing up and forcefully taking my child . . . .
My son and daughter has now been tied up in hearings that
have been continued and removed from my care based on that
emergency court order for removal based on the depts. illegal
removal violating fundamental rights and illegal seizures[.]
Compl. (Doc. 2) at 14, 17, 18.
the Court found that Sanchez stated a claim against
Harrington because she alleged he “signed off on an
affidavit.” Prosecutorial immunity does not protect
lawyers who act as witnesses. A prosecutor who endorses an
affidavit personally attesting to the truth of primary facts
underlying a petition is not ...