Georgia Mae DOWNS, Plaintiff, Appellant, v. Roberta SAWTELLE et al., Defendants, Appellees.
No. 77-1260.
United States Court of Appeals, First Circuit.
Argued Sept. 9, 1977. Decided March 30, 1978.
Before COFFIN, Chief Judge, TUTTLE, Circuit Judge, WOLLENBERG, District Judge.
Joseph M. Kozak, Asst. Atty. Gen., Augusta, Maine, for Ruth A. Hagan, Marilyn B. Dow, and Mary Lou Pattison, defendants, appellees.
John L. Easton, Jr., Dover-Foxcroft, Maine, with whom C. W. & H. M. Hayes, Dover-Foxcroft, Maine, was on brief, for Roberta Sawtelle, defendant, appellee.
Phillip D. Buckley, Bangor, Maine, for Carl H. Carlson, defendant, appellee.
Malcolm L. Lyons, Augusta, Maine, with whom Wathen & Wathen, Augusta, Maine, was on brief, for John B. Curtis, defendant, appellee.
John M. Wallach, Bangor, Maine, for Milo Community Hospital and Ava Strout, defendants, appellees.
Rudman, Winchell, Carter & Buckley, Bangor, Maine, on brief, for Carl H. Carlson, Milo Community Hospital and Ava Strout, defendants, appellees.
Before COFFIN, Chief Judge, TUTTLE, Circuit Judge,* WOLLENBERG, District Judge.**
COFFIN, Chief Judge.
Georgia Mae Downs, a deaf mute mother of two children born out of wedlock, brought this action for damages under
This was an exceptionally confusing and emotional case. The district court was required to deal with a large quantity of conflicting evidence and extraordinary prоblems of communication. Our discussion will not fairly reflect these problems, for, in accordance with the standards for appellate review of orders disposing of a case by summary judgment and directed verdict, we present the evidence in the light most favorable to the plaintiff. See Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Wilson v. Nooter Corp., 475 F.2d 497, 501 (1st Cir. 1973).
Although she was apparently born with normal hearing, plaintiff became deaf at age three, when hot coffee scalded her ear. Her primary and secondary school years were spent at the Governor Baxter State School for the Deaf. Although plaintiff was instructed in American Sign Language and taught to read and write, communication with her was frequently quite difficult. Tests showed her to have the reading comprehension of a fourth grader and borderline or dull normal intelligence.
Following her graduation from the Baxter School at age 18, plaintiff returned to her home town of Milo, Maine. Her social behavior provoked considerable conflict among the members of her family. At age 19, plaintiff gave birth to her first out-of-wedlock child. She cared for it for a time, but later surrendered it to her father, who obtained legal custody of the child and boarded it with his girl friend. Marilyn Dow, a state social worker assigned to plaintiff‘s case, and Dr. Curtis, the family physician, attempted to introduce plaintiff to various methods of contraception, but fifteen months after the birth of her first son, plaintiff was again pregnant.
The prospect of a second child gave rise to two concerns: placement of the baby and prevention of future pregnancies. Plaintiff‘s father petitioned the state probate court to be appointed her guardian in order to place the second child with its half-brother. Roberta Sawtelle opposed her father‘s petition and, with the backing of Mrs. Dow, herself sought appointment as plaintiff‘s spendthrift guardian, with a view to surrendering the child for adoption. At some point Sawtelle learned that plaintiff planned to marry Carroll Downs and wanted to have children with him. Although Downs was not the father of the child plaintiff was carrying, he intended to keep it after his marriage to plaintiff and wanted it tо bear his name. Dow and Sawtelle, however, were aware that the existence of a husband could impede efforts to have the child adopted, and they agreed that Sawtelle would persuade plaintiff and Downs that her consent to the marriage was required and would withhold it until after the baby‘s birth.
There is conflicting evidence as to the origin of the idea to have plaintiff sterilized. Social worker Mary Lou Pattison asserted that the father contacted the Department of Health and Welfare for help in coping with plaintiff‘s second pregnancy and for state funds to pay for the sterilization. However, the father‘s deposition and the agency‘s own reports indicate that the agency initiated the idea. Sawtelle, who had herself been sterilized, seems to have favored it from the beginning. In any
As plaintiff‘s pregnancy progressed, sterilization was repeatedly proposed to her by Dr. Curtis and her sister, who accompanied her on each prenatal visit. Attempts to explain the meaning of sterilization through handwritten notes from the doctor and sign language interpretation by Sawtelle met with considerable difficulty. Dr. Curtis and Sawtelle asserted that plaintiff ultimately understood that sterilization meant she would have “no more babies” and that she agreed with the proposal. Plaintiff insisted that, to the extent of her limited ability to communicate, she registered her opposition but Sawtelle and the doctor continued to discuss plans for the sterilization. Some time before the operation was to be performed, plaintiff wrote a letter to Dr. Curtis which, although difficult to decipher, expressed her plan to marry Carroll Downs and her wish to have additional children with him.3 Dr. Curtis testified at trial that he treated the letter “so lightly that I didn‘t attach too much importance to it.” He continued to make the necessary arrangements for the operation.
There was considerable testimony, much of it confusing and contradictory, as to the authority under which the operation was actually performed and the understanding of the participants in that regard. The policy of Milo Community Hospital, of which Dr. Curtis was Chief of Staff, permitted sterilizations in any of six circumstances. It was conceded that only one of them, mental retardation, could even arguably apply to the plaintiff. Dr. Curtis testified, however, that he did not consider plaintiff to be feeble-minded or retarded and that he had not read any test results indicating she was either. Yet Dr. Curtis’ hospital report recommended sterilization “based 90% on this girl‘s low mentality involving poor judgment and her lack of restraint on sex appetite and its consequences.”
Dr. Curtis requested that two other physicians consult with him on the case. Their written reports were devoid of any medical analysis or any indication that plaintiff consented to the operation. One physician concluded, without elaborating, that plaintiff “apparently lack[ed] ability to curtail normal appetite for sex“, that she was “[p]otentially dangerous“, and that her low economic earning power demonstrated “irresponsibility“. The second physician‘s report stated, “uncontrolled appetite leads to promiscuity. Apparently retarded. Incapable of functioning in a maternal role.”
Hospital policy also required that the patient and another party (the form suggests a spouse) sign a standardized sterilization consent form. Although plaintiff signed other minor forms on her entry into and discharge from the hospital, she was never approached to sign the sterilization consent form. Indeed none of the defendants attempted to explain the form to her, although Dr. Curtis conceded that it could have been explained in terms she could have understood. Instead of plaintiff, her spendthrift guardian, Sawtelle, signed the form.
Dr. Curtis testified that he relied on the guardian‘s consent to perform the operation, although he had never before done so. Some time prior to the operation he asked social worker Marilyn Dow who could legally consent to the operation. Although Dоw suggested that he obtain that information from the probate judge, the doctor ignored the advice and made no other effort to determine the legal prerequisites for an operation of this nature. He relied on his memories from medical school and his internship, which concluded in 1937, that a guardian‘s consent sufficed.
According to Dr. Curtis, plaintiff at all times indicated her consent to be sterilized.
On March 20, 1973, plaintiff gave birth to a baby boy, Robert Scott Goodine. Four days later she was sterilized by means of a fallotomy. From that day forward she has been permanently incapable of bearing children. Plaintiff was not permitted to see her child after its birth, despite her requests to do so. The child was removed from the hospital by Mary Pattison and placed in a foster home.
The authorization for taking the child is also in dispute. Before the birth of the child, the Maine Attorney General had advised the state social workers that plaintiff‘s guardian could not legally consent to the adoption of plaintiff‘s child. The day the child was taken from the hospital, Roberta Sawtelle signed an Agreement of Responsibility for Temporary Care of the baby. Six days later a petition for temporary termination of custody was filed with the probate court. A hearing was set for April 19, but no interim custody order was entered. At the April 19 hearing the probate court ordered that plaintiff‘s child be placed in the temporary custody of the state of Maine.
From the birth of the child until April 19, the only authority the state‘s social welfare employees had for keeping the child from its mother was the Agreement of Responsibility for Temporary Care signed by plaintiff‘s guardian. One of the social workers, Miss Hagen, testified that the use of such an Agreement was not unusual.
At the present time plaintiff is married to Carroll Downs. The spendthrift guardianship has been dissolved and the custody of Robert Scott Goodine has been restored to her.
I. STATE ACTION
The threshold question for our analysis is whether Milo Community Hospital can be considered a “state actor” for the purposes of
The involvement of the state in the operation of Milo Community Hospital is multifaceted. Thirty percent or more of its operating budget resulted from Medicare funds. The hospital was subject to significant governmental regulation. The entire board of directors subsequent to the original incorporators was appointed by the Board of Selectmen of the town of Milo. Any profits earned by the hospital are to be distributed to the town of Milo. If the hospital should be dissolved, all assets after payment of debts revert to the town of Milo.
Appellees present an imposing array of cases holding that partial governmental funding of a hospital and the fact that it is subject to general state regulation does not transform a private hospital into a state actor.6 We have carefully examined these deсisions. However, even the case with the strongest indicia of state action of all those cited, Greco v. Orange Memorial Hospital Corp., 513 F.2d 873 (5th Cir. 1975), presents state involvement of considerably less magnitude than the present case.7
More important, there is a wide range of authority suggesting that the indicia of state involvement here, aside from partial funding and general regulation; are more than sufficient to support liability under
Other courts have also held that the appointment by the state of a majority of an institution‘s board is either determinative of state action or an important factor in establishing state action. See Meredith v. Allen County War Memorial Hospital, 397 F.2d 33 (6th Cir. 1968); Chiaffitelli v. Dettmer Hosрital, Inc., 437 F.2d 429 (6th Cir. 1971); O‘Neill v. The Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973); Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473 (E.D.Penn. 1974); Braden v. University of Pittsburgh, 392 F.Supp. 118 (W.D.Pa.1975). In Aasum v. Good Samaritan Hospital, 395 F.Supp. 363 (D.Ore.), aff‘d, 542 F.2d 792 (9th Cir. 1976), the court concluded that the appointment of three of seven directors of the hospital‘s board by city, county and state officials did not make the hospital a state actor, but the court also specifically distinguished Jackson v. Statler Foundation, supra, as involving state appointment of a majority of the board, while the Oregon hospital only had a minority of its board appointed by the state. Similarly, we did not find the Rhode Island School of Design to be a state actor, although five of its forty-three directors were required to be state or city officials.8 See Lamb v. Rantoul, 561 F.2d 409 (1st Cir. 1977). The crucial fact, as noted previously, is that the town of Milo appoints the entire board of Milo Community Hospital.
Although the other aspects of state involvement do not appear to us to be as critical as the appointment of the Board of Directors, they nevertheless offer additional support for our conclusion. Other courts have found that ownership by the city or state of a reversionary interest in an institution‘s property is an important factor in finding state action. See Hampton v. City of Jacksonville, 304 F.2d 320 (5th Cir. 1962); Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). Moreover, the distribution of the hospital‘s profits, if any, to the town of Milo represents the very kind of mutually beneficial relationship which formed the basis of state action in Burton.
Appellees’ reliance on Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), is not persuasive. The Jackson Court dealt with a private utility and held that the combination of extensive regulation by the state and a monopoly position do not justify a finding of “state action“, unless “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Id. at 351, 95 S.Ct. at 453. If this nexus analysis was required to establish state action in any context, Burton, which based its holding on purely passive state involvement, would be overruled. However, Jackson specifically reaffirmed Burton‘s vitality in cases where, after searching scrutiny, a true symbiotic relationship can be said to exist. As the Second Circuit has explained:
“Although Jackson stressed the failure to establish that Pennsylvania was directly involved in the challenged activities of [the public utility]—an emphasis which was far from novel . . . the Court
The essence of Burton which survives Jackson is that the relationship between the state and the private institution may be so intertwined that the state will be held responsible for conduct of the institution with which it had no direct connection.9 In this respect the present case is similar to Fortin v. Darlington Little League, Inc., 514 F.2d 344 (1st Cir. 1975), in which we held that despite the city‘s lack of participation in formulating the discriminatory policy of the defendant, there was sufficient involvement with defendant‘s activitiеs in general to subject the defendant to the Fourteenth Amendment. Here, although Milo Community Hospital is not technically a lessee or privileged user of a public entity‘s facility, its position is no less intertwined. The town‘s appointment of the entire board, general governmental support and regulation of the hospital, the town‘s right to receive profits and, on dissolution, the hos
The district court ruled that Dr. Curtis acted “in his capacity as a private practicing physician” in sterilizing plaintiff and as such his conduct was beyond the remedial scope of
Having determined that the hospital was a state actor, however, we must decide if the connection between Dr. Curtis and the Milo Community Hospital was such that the doctor‘s conduct should also be characterized as state action. Dr. Curtis was not simply a private physician making use of the hospital‘s facilities at the time of the sterilization operation. He was also Chief of Staff of the hospital. Article XVIII of the by-laws of the hospital state: “Responsibility for the operation and maintenance of the Hospital and evaluation of Hospital practices shall be a joint effort by the Board of Trustees, Administrator, and the Chief of Staff, each to be a check on the other.” (Emphasis added.) Article V Sec. II of the By-Laws, Rules, and Regulations of The Medical Staff of Milo Community Hospital, Inc., describes the functions of the Chief of Staff even more explicitly: “He shall be responsible for the functioning of the clinical organization of the hospital and
Just as agents and employees of state hospitals may be sued under
In summary, we conclude that both the Milo Community Hospital12 and Dr. Curtis were “state actors” for purposes of
II. IMMUNITY
Section 1983 provides that “[e]very person” who, acting under color of state law, deprives another of a constitutional right is answerable to the injured party in a suit for damages.13 On its face, “[t]he statute thus creates a species of tort liability that . . . admits of no immunities.” Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976). On several occasions, however, the Supreme Court has rebuffed attempts to apply the statute as strictly as it reads. Specifically, the Court has held that legislators and judges enjoy absolute immunity from
These decisions were grounded in part upon the reasoned conclusion that in enacting
“if he knew or reasonably should have known that the action he took within the sphere of his official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the [plaintiff]. . . . A compensatory award will be appropriate only if the [defendant] . . . acted with such an impermissible motivation or with such disregard of the [plaintiff‘s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.” 420 U.S. at 322, 95 S.Ct. at 1001. (citation omitted).
As stated, the inquiry is comprised of both objective and subjective components. And although the test was announced in the specific context of the liability of school boаrd members for acts of “school discipline“, it is beyond dispute that a much broader range of officials and official actions are included within the test‘s reach. See O‘Connor v. Donaldson, 422 U.S., supra, at 576-77, 95 S.Ct. 2486.
Since O‘Connor and Wood, the courts of appeals have displayed little hesitancy in extending the qualified immunity to a variety of officials, including: (1) parole officers, Wolfel v. Sanborn, 555 F.2d 583, 591 (6th Cir. 1977); (2) jailers, Bryan v. Jones, 530 F.2d 1210, 1213-15 (5th Cir.) (en banc), cert. denied, 429 U.S. 865, 97 S.Ct. 174, 50 L.Ed.2d 145 (1976); (3) state bank officials, Guzman v. Western State Bank of Devils Lake, 540 F.2d 948, 951-52 (8th Cir. 1976); (4) correctional administrators, Knell v. Bensinger, 522 F.2d 720, 725 (7th Cir. 1975); and (5) police officers, Foster v. Zeeko, 540 F.2d 1310, 1314 (7th Cir. 1976). Perhaps in part because of the readiness with which the courts have sanctioned Wood‘s application, the district court in this case presumed that the three social workers and Dr. Curtis were entitled to assert a qualified immunity.
We do not disagree with the district court‘s conclusion that a physician in Dr. Curtis’ position should be permitted to assert a qualified immunity defense, see O‘Connor v. Donaldson, supra. As to the merits of his defense, we have no difficulty in holding that a member of the medical profession reasonably should be aware that irrevocably terminating a patient‘s ability to bear children without her consent is a deprivation of a fundamental constitutional right. See generally Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nеbraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), as to primacy of the right to bear and raise children.
What is less clear here is whether or not there was sufficient evidence for a jury to determine that there was no free and informed consent and that this lack of con-
The district court‘s bench ruling directing a verdict for Dr. Curtis did not elaborate on its finding that “plaintiff has failed to meet her burden of showing that Dr. Curtis acted with malice or otherwise in bad faith.” In reviewing this conclusion we must reverse the district court‘s judgment if “the evidence, viewed in the light most favorable to the party against whom the motion for directed verdict is made, is such that fair-minded men may draw different inferences therefrom and reasonably disagree as to what the verdict should be . . .” Arnold v. Aetna Engineering Co., 514 F.2d 1147, 1148 (1st Cir. 1975). We find that there is sufficient evidence for reasonable men to disagree as to Dr. Curtis’ intentions and that this issue should be presented to the jury.
A jury could conclude (1) that Dr. Curtis believed plaintiff to be promiscuous, of low intelligence and easily influenced, and that he concluded that her sterilization would be in her best interest; (2) that as a consequence of that belief, he deliberately ignored repeated indications from plaintiff and her fiance that they did not want the operation to take place; (3) that for the same reason the doctor failed to take any of the precautionary steps that might have prevented the operation, i. e. that he did not call the probate judge to determine if plaintiff‘s guardian could legally consent to the sterilization,15 he did not obtain plaintiff‘s signature on the sterilization permit, and he accepted without dispute advisory reports from his colleagues that included non-medical conclusions of a speculative and prejudicial nature; and (4) that Dr. Curtis took advantage of plaintiff‘s difficulty in communicating and impressionable nature to manipulate her into consenting to the operation.
In evaluating the doctor‘s conduct we may take cognizance of the extraordinary degree of helplessness of the plaintiff. Malice for constitutional purposes includes “callous” or “wanton neglеct“, Harper v.
We do not intimate that any of the above inferences are true. The evidence that supports them is in dispute. In many cases conflicting inferences can be drawn from the same set of facts. We are solely concerned with the possibility that, given the condition of the plaintiff and the evidence described, reasonable men could come to the conclusion that the doctor did not act in good faith.16 As the Second Circuit noted recently in Duchesne v. Sugarman, supra, in a complicated
The district court also assumed that the state social workers were entitled to rely upon the good faith immunity. Based upon our reading of the Supreme Court‘s decisions in this area, we believe that such an assumption was improper.17 As we interpret the existing precedent, the Court has never attempted to articulate a wholesale immunity for all state officials. As the Court recently explained in Imbler, the “earlier decisions on
The requisite inquiry thus is two-fold. As an initial matter, the district court should consult the common law to determine whether or not the particular official sued has traditionally been accorded any sort of immunity in actions comparable to the cause of action asserted under
And in Wood, the grant of a qualified immunity to the school officials sued there was based in part upon the finding that “[a]lthough there have been differing emphases and formulations of the common-law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good-faith nonmalicious action taken to fulfill their official duties.” 420 U.S. at 318, 95 S.Ct. at 999. (footnote omitted).
In light of the significant role played by an analysis of relevant common-law principles in the Supreme Court‘s decisions, no less can be required each time a lower court seeks to extend the immunity to yet another category of officials.
[11] The second phase of the analysis recognizes that the common-law tradition
“This official immunity [of government officials] apparently rested, in its genesis, on two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.” 416 U.S. at 239-40, 94 S.Ct. at 1688.
Against this background, the Court went on to hold that in each instance the immunization available depends upon the “scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action” for which relief is sought. Id. at 247, 94 S.Ct. at 1692. In this context, the qualified immunity rests in part upon the idea that public policy requires that certain officials be ablе to perform their discretionary duties without having to fear that good-faith errors in judgment may ultimately result in damages liability.
Neither the Supreme Court nor this court has ever held that state social workers are entitled to assert a qualified immunity.18 As previously indicated, the district court merely presumed that such was the case. Consequently, the “considered inquiry” referred to in Imbler was never undertaken. The exacting nature of the task imposed requires that the defendants first be given an opportunity to develop the relevant factual data and legal principles, thus providing the district court a proper basis for decision. It may well be that if this court is subsequently called upon to review the findings made in this regard, these defendants’ beliefs in the availability of a qualified immunity will be sustained. However, in the absence of any factual development as to the nature of the positions involved and the range of responsibilities committed to these defendants, it would be inappropriate at this point for this court to attempt to answer such a crucial question.19
In Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the plaintiff alleged in a
“The involvement of a state official in a conspiracy [with a private party] plainly provides the state action essential to show a direct violation of petitioner‘s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized or lawful; . . . Moreover, a private party involved in such a conspiracy, even though not an official of the Stаte, can be liable under
The significance of this holding becomes apparent only when considered in the context in which it was announced—the plaintiff sought damages from the private party alone, and neither the state nor any state official was joined as a defendant. It is thus plain that once the requisite showing of concerted action is made, and assuming that some colorable constitutional deprivation is made out, the injured party has an independent cause of action for damages against the private party involved. The ultimate destiny of the private party can in no way be said to depend upon the status of the official with whom he conspired or upon the defenses available to that official. The concerted action which permits a finding of state action cannot simply be erased by the absence of the state actor as a defendant or by the fact that the state actor might later raise a successful defense to the plaintiff‘s claim.
Nor can it be said that a private individual shown to have acted in concert with state officials may rely upon any type of qualified immunity, whether derivatively or otherwise. In Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), the Supreme Court held that
To place this court‘s imprimatur upon an immunity in favor of a private individual could in many instances work to eviscerate the fragile protection of individual liberties affоrded by the statute. Private parties simply are not confronted with the pressures of office, the often split-second decisionmaking or the constant threat of liability facing police officers, governors and other public officials. Whatever factors of policy and fairness militate in favor of extending some immunity to private parties acting in concert with state officials were resolved by Congress in favor of those who claim a deprivation of constitutional rights. Consequently, we hold that the Wood defense is not available to Roberta Sawtelle and that her liability is to be determined by the jury without regard to any claim of good faith.
III. THE § 1985 CLAIM
Plaintiff has failed to present authority for her assertion that the deaf constitute a class for the purposes of
Affirmed in part, reversed in part, and remanded.
COFFIN, Chief Judge, dissenting.
I respectfully dissent from that part of the majority opinion relating to the immunity of Roberta Sawtelle, and the three defendant social workers. The majority contends that public officials should receive absolute or qualified immunity from
The majority acknowledges that the Supreme Court has extended qualified immunity to include hospital administrators, school officials, police officers, prison officials, and executive officers. Lower courts have applied the Wood v. Strickland test to parole officers, correctional staff, and even state bank officials. I fail to see why one would doubt that social workers would be included within this official continuum. There seems little basis for distinguishing them in terms of the public policy rationale, and social workers are a new enough profession to make it unlikely that relevant common law traditions will shed light on their status. Rather than remand for a determination whether or not the social workers were entitled to assert a qualified immunity defense, I would hold that they are and proceed directly to the question whether sufficient evidence has been presented to reach the jury as to their subjective and objective “bad faith“. However, in light of the majority‘s disposition of this issue, I express no opinion as to whether the record supports a directed verdict on the immunity question.
My second point of disagreement with the majority concerns the liability of Roberta Sawtelle. It is by no means clear to me that a private party allegedly acting in concert with state actors should be subject to damages, if the state actors can successfully assert a qualified or absolute immunity. The majority‘s analysis based on the Adickes case is not without merit. And I share the desire to avoid any erosion of the protections afforded citizens by