Dudie Rose v. Michael Flairty

772 F.3d 552

8th Cir.

2014

Check Treatment

Docket

Dudie James ROSE, Plaintiff-Appellant, v. Michael FLAIRTY, Defendant-Appellee

No. 13-3299

United States Court of Appeals, Eighth Circuit

December 1, 2014

Submitted: Oct. 6, 2014. Filed: Dec. 1, 2014.

about whether Lott‘s mild mental retardation met listing 12.05C. Given the ALJ‘s adoption of Dr. Nichols’ mild mental retardation diagnosis, the ALJ should have developed the record further by (1) ordering an IQ test to determine whether Lott met listing 12.05C⁵ and (2) determining whether the record suggests, Lott‘s intellectual and adaptive disabilities had their onset before the age of twenty-two.

Because Lott must be afforded an IQ test and a reevaluation of his disability applications, we do not reach his other assignment of error.

III. CONCLUSION

We reverse and remand to the district court with directions to return this case to the Commissioner for further development of the record—IQ testing and a new hearing by an administrative law judge. See 42 U.S.C. § 405(g);

Snead, 360 F.3d at 839; .

Dick Finke; Todd Edwards; Nebraska Board of Regents; ARCH Board of Directors, Defendants.

Matthew M. Munderloh, argued, Oakland, NE, (Matthew M. Munderloh, Oakland, NE, on the brief), for Plaintiff-Appellant.

Forrest Guddall, AAG, argued Des Moines, IA, (Gerald L. Friedrichsen, Omaha, NE, Forrest Guddall, AAG, Des Moines, IA, on the brief), for Defendant-Appellee.

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

MURPHY, Circuit Judge.

Dudie Rose filed this § 1983 action against his probation officer, Michael Flairty, alleging that Flairty violated his First Amendment rights by requiring him to satisfy the terms of a court probation order which directed him to complete a privately run substance abuse treatment program, Alcoholics Resocialization Conditional Help (“ARCH“).¹ Rose argues that the program prohibited him from practicing his faith as a Jehovah‘s Witness. Rose claims that when he protested, Flairty responded that Rose could either comply with the terms of his probation order or return to prison. The district court² concluded that quasi judicial absolute immunity applied to Officer Flairty because he was carrying out a court order. We affirm.

An Iowa court convicted Rose of theft in May 2011 and sentenced him to three years probation. Rose violated the terms of his probation a few months later, and the court modified his sentence to require completion of an inpatient substance abuse treatment program. After considering a number of facilities and receiving Rose‘s consent, the court ordered Rose to complete the ARCH treatment program. ARCH is a halfway house that assists adult males who suffer from addiction. The ARCH program relies on the principles of Alcoholics Anonymous (“AA“). It requires residents to attend AA meetings and participate in a twelve steps program, which includes some religious content. The court added ARCH‘s rules and policies to the terms of Rose‘s probation, and it ordered him to follow all the program‘s requirements and conditions. Rose did not object.

Rose is a Jehovah‘s Witness. Rose alleges that after his admission to ARCH, program employees denied his requests to attend worship services at the local Kingdom Hall. He further alleges that when ARCH employees saw him reading a Jehovah‘s Witness magazine, they told him to read AA literature instead. According to Rose, employees ordered him to say prayers at the end of AA meetings, even though Rose told them that Jehovah‘s Witnesses do not pray with persons of other faiths or say repetitious prayer. Rose states that ARCH employees told him he could pack his bags and leave if he did not pray.

During his first month at ARCH, Rose allegedly complained to Flairty about how the program‘s employees treated him. The officer replied that Rose could either comply with his probation order and complete the ARCH program or return to prison. Rose therefore abandoned ARCH and failed to check in with the probation department. He was arrested about two months later on drug and firearms charges. Rose then brought a § 1983 lawsuit against Flairty, alleging violations of his First and Fourteenth Amendment rights. The district court granted summary judgment to Flairty based on quasi judicial absolute immunity. Rose appeals.

We review the district court‘s grant of summary judgment de novo, viewing the evidence and drawing all reasonable inferences in favor of the nonmoving party.

Joseph v. Allen, 712 F.3d 1222, 1225 (8th Cir.2013). We have “consistently held” that officials acting pursuant to a court order have “a quasi judicial absolute immunity from damages for actions taken to execute that order.” (collecting cases). Here, the court added the rules and policies of the ARCH program to the terms of Rose‘s probation order, and Rose consented to placement in the program. When he later complained to Flairty about ARCH, Flairty advised him to comply with the court‘s order. Flairty himself did not have authority to modify the terms of Rose‘s probation, but Rose could have sought relief from the court. He did not, and Flairty enforced the probation order entered by the court. Thus, he is entitled to “quasi judicial absolute immunity from damages for actions taken to execute that order.”

Rose argues that probation officers like Flairty are only entitled to absolute immunity when they perform an “adjudicatory or prosecutorial” function. Because Flairty did not perform an adjudicatory function here, Rose asserts that he is not entitled to absolute immunity. See

Ray v. Pickett, 734 F.2d 370, 372 (8th Cir.1984). This argument fails because officers are protected by quasi judicial absolute immunity when they enforce a court order. See . Flairty is thus entitled to absolute immunity because he acted to enforce a “court order ... at a judge‘s direction.” .

For these reasons we affirm the judgment of the district court.

MURPHY

Circuit Judge

Notes

Rose also brought suit against Dick Finke and Todd Edwards, two employees of the Alcoholics Resocialization Conditional Help substance abuse treatment facility, but they settled shortly before this case was argued.

The Honorable John M. Gerrard, United States District Judge, District of Nebraska.

Even if Lott scores an IQ in the 12.05C range, 60-70, the ALJ would not be required to find that Lott meets the listing at Step 3. See, e.g., (“The [ALJ] is not required to accept a claimant‘s I.Q. scores, however, and may reject scores that are inconsistent with the record.“); (“‘Indeed, test results of this sort should be examined to assure consistency with daily activities and behavior.‘” (quoting )).