Green et al v. Montana Department of Public Health and Human Services et al

Filing 79

ORDER granting in part and denying in part 53 Motion for Summary Judgment; granting in part and denying in part 55 Motion for Summary Judgment. PLEASE READ ENTIRE ORDER FOR DETAILS AND ADDITIONAL DEADLINES. Signed by Judge Dana L. Christensen on 1/21/2014. (HEG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

DAREN GREEN and MICHELLE
GREEN, husband and wife, individually

and on behalf oftheir minor child, and

E.G., a minor,

CV 12-62-H-DLC

ORDER

Plaintiffs,
vs.
MONTANA DEPARTMENT OF

PUBLIC HEALTH AND HUMAN

SERVICES, a Montana State agency,
CHRISTY ELLERBEE, individually and

as a DPHHS ttmployee, HEIDI LUTZ,
individually and as a DPHHS employee,
DOROTHY FILSON, individually and as

a DPHHS employee, and JANE DOES I­

X,

FILED
JAN 2 1 201~
Clerk. u.s

District Court

DistriCt Of Montana

Missoula

Defendants.
The Defendants have filed two motions for summary judgment in this case,
both of which Plaintiffs oppose. This order resolves both motions, and attempts to
bring some clarity to the future resolution ofthis case. The challenge in issuing
this order is to provide a clear road map to the parties specifically de~ribing the
~'

Plaintiffs' claims which remain to be tried to ajury. This challenge is compounded
by the fact that Defendants' motions, for the most part, are directed to specific and
1

discrete actions of certain defendants with only a cursory reference to the legal
nature of the claim, e.g. "state law claim," "§ 1983 claim," etc., without ever tying
these arguments to the six claims alleged in the Plaintiffs' Amended Complaint.l
This leaves the Court with the task of trying to discern whether Defendants are
seeking summary judgment on the Amended Complaint in its entirety, on only
some of the six claims in the Amended Complaint, or on only portions of those
claims.
Thus, in order to make some sense of all of this, the Court begins its
analysis by focusing on the six claims in the Plaintiffs' Amended Complaint,
which can be summarized as follows:
FIRST CLAIM - Negligence. In this claim, the Plaintiffs allege that the
Department was negligent in removing E.G. from her parents on May 26,
2005, and in failing to later reunite her with her parents, or more
specifically, that the Department failed to conduct a thorough investigation
and to develop a treatment plan designed to reunite E.G. with her family.
These alleged acts of negligence appear to be based on violations of state

1 In Plaintiffs' Amended Complaint, the claim for negligent infliction of emotional
distress and the claim for exemplary damages are both denominated as "Fifth Claim." For the
sake of clarity, the Court will hereinafter refer to the claim for exemplary damages as the "Sixth
Claim."

2

law. 2
SECOND CLAIM - Civil Rights Violation - Fourth Amendment. In this

claim, the Plaintiffs allege that Defendant Christy Ellerbee ("Ellerbee"),
individually, violated their procedural due process rights under the Fourth
Amendment of the U.S. Constitution by seizing and removing E.G. from
them without a court order, without probable cause, and in deliberate
indifference to their constitutional rights.
THIRD CLAIM - Civil Rights Violation - Fourteenth Amendment. In

this claim, Plaintiffs allege that Defendants Ellerbee, Heidi Lutz ("Lutz")
and Dorothy Filson ("Filson"), in their individual capacities, intentionally
engaged in certain specified actions designed to terminate Plaintiffs'
parental rights to E.G., in violation of the Fourteenth Amendment of the
U.S. Constitution. The complained of actions by the individual Defendants
include, without limitation, the unlawful removal of E.G. by Defendant
Ellerbee from her parents on May 26, 2005, the failure by Defendant
Ellerbee to conduct a thorough investigation, the wrongful contention by
Defendants Lutz and Filson that Plaintiff Michelle Green suffered from

2A fair reading of the First Claim of the Amended Complaint appears to assert negligence
claims based on violations of state law, notwithstanding the fact that paragraph 38 references
Department duties arising under federal law. (Doc. 22 at 14.)
3

Munchausen's Syndrome by Proxy ("MSBP"), the wrongful insistence by
Defendants Lutz and Filson that Plaintiffs admit they perpetrated a criminal
act upon E.G. as part of the treatment plans, and the failure of Defendants
Lutz and Filson to timely complete the treatment plans, all in deliberate
indifference to the Plaintiffs' constitutional rights.
FOURTH CLAIM - Civil Rights Violations - Fourteenth Amendment
(by Conspiracy). In this claim, Plaintiffs allege that Defendants Lutz and

Filson, in their individual capacities, together conspired in the guise of the
Gallatin County judicial proceeding to wrongfully terminate Plaintiffs'
parental rights to E.G. by committing the same acts alleged in the Third
Claim.
FIFTH CLAIM - Intentional Infliction of Emotional Distress. In this

claim, Plaintiffs allege they suffered serious or severe emotional distress as
a result of the Department's negligence, and the civil rights violations
committed by the individual Defendants.
SIXTH CLAIM - Exem plary Damages. In this claim, Plaintiffs seek

exemplary damages from individual Defendants Ellerbee, Lutz, and Filson.
Plaintiffs seek damages in this case for lost wages, medical and counseling costs,
emotional distress, pain and suffering, punitive damages, attorneys' fees, costs, pre

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and post-judgment interest and for loss ofparent-child consortium.
The Court now turns to the Defendants' motions for summary judgment. In
the first motion, the Defendant Montana Department of Health and Human
Services ("Department") seeks summary judgment based on four arguments:
1.

Plaintiffs' state law claims against the department relating to
Ellerbee's placement of E.G. in emergency protective services on
May 26, 2005 are barred by quasi-judicial immunity.

2.

Plaintiffs' state law claims against the Department must be dismissed
because Judge Brown's June 1,2005 Order, and all successive orders,
broke the chain of causation between the Department's alleged
negligence and Plaintiffs' damages.

3.

The Department has absolute quasi-judicial immunity for all actions
taken by its agents and employees following the first order issued by
District Court Judge Holly Brown of the Eighteenth Judicial District
on June 1,2005.

4.

Plaintiffs' state law claims against the Department are barred by
collateral estoppel.

This motion appears to be directed to the First Claim of the Amended Complaint,
and ostensibly seeks dismissal of that Claim in its entirety.

5

In the second motion, Defendants Ellerbee, Filson, and Lutz ("Individual
Defendants") seek partial summary judgment based on eleven separate arguments:
1.

Plaintiffs' § 1983 claims against Ellerbee should be dismissed based
on qualified immunity.

2.

In the alternative, Ellerbee is entitled to partial summary judgment on

Plaintiffs' damage claims allegedly suffered after June 1,2005.
3.

Defendant and supervisor Filson is not subject to § 1983 liability for
the actions of Ellerbee, Gayle Frandsen ("Frandsen"), and Lutz
because she did not individually violate any of the Plaintiffs'
constitutional rights.

4.

Lutz is not individually liable under § 1983 for the decision to place
E.G. in emergency protective custody on May 26,2005, or for the
preparation or contents of the affidavit in support of the Petition for
Emergency Protective Services, because she did not participate in
either of those actions.

5.

Filson and Lutz are entitled to quasi-judicial immunity and therefore
are not individually liable under § 1983 for actions taken to maintain
E.G. in protective and legal custody following District Court Judge
Holly Brown's Order for Immediate Protection on June 1,2005.

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6.

Filson and Lutz are entitled to absolute witness immunity for any
testimony they provided during E.G.'s abuse and neglect proceedings.

7.

Lutz is entitled to qualified immunity for any allegedly false
allegations she made in affidavits or reports that E.G. had been
abused or neglected by her parents because she was simply stating
what the district court had already found.

8.

Filson and Lutz did not violate Plaintiffs' Fifth Amendment rights.

9.

Any claim against Lutz based on the filing of the termination petition
should be dismissed because Lutz did not file the petition.

10. The negligent infliction of emotional distress claim against Ellerbee,
Lutz, and Filson is barred by the statutory immunity found in Mont.
Code Ann. § 2-9-305.
11. Plaintiffs' Claims against Defendants Ellerbee, Lutz, and Filson are
barred by collateral estoppel.
The Court views arguments 1 and 2 above as seeking dismissal of the Second
Claim of the Amended Complaint in its entirety. Argument 3 appears to seek a
partial dismissal ofthe Third and Fourth Claims as to only Filson in her role as a
supervisor of Ellerbee, Frandsen, or Lutz. Argument 4 appears to seek a narrow,
partial dismissal of the Third Claim as to only Defendant Lutz relating to her lack

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of involvement in the decision to place E.G. in emergency protective custody on
May 26, 2005 and in the preparation of the affidavit in support of the Petition for
Emergency Protective Services. Filson and Lutz appear to be seeking dismissal of
the Third Claim against them in its entirety in argument 5; argument 5 may also be
directed to dismissal of the Fourth Claim of the Amended Complaint. Argument 6
is seemingly directed to a partial dismissal ofthe Third and Fourth Claims as to
Defendants Filson and Lutz relating to their limited testimony during the abuse
and neglect proceedings. Argument 7 seeks a narrow partial dismissal of the Third
Claim as to only Defendant Lutz relating to false allegations made by her in
affidavits or reports filed with the district court. Argument 8 seeks a partial
dismissal of the Third and Fourth Claims to the extent they allege a violation of
the Fifth Amendment by Filson or Lutz. Argument 9, again, seeks a narrow partial
dismissal of the Third Claim as to only Defendant Lutz regarding the filing of the
termination petition. Argument 10 seeks a partial dismissal of the Fifth Claim
(negligent infliction of emotional distress) against Ellerbee, Filson, and Lutz.
Finally, argument 11 appears to seek a complete dismissal of the Second, Third,
and Fourth Claims against Ellerbee, Filson and Lutz based on collateral estoppel.
With this preliminary analysis in mind, the Court now turns to the facts
which are germane to the disposition ofthe Defendants' two motions for summary

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judgment.
BACKGROUND FACTS & PROCEDURE

On May 26, 2005, based on a report of possible child abuse and neglect,

Individual Defendant and Department employee Christy Ellerbee removed E.G.
from the custody of her parents, Michelle and Daren Green, while she was being
treated at St. Vincent's Hospital in Billings, Montana for a dislodged feeding tube.
The specific allegation that gave rise to this initial period of protective custody, as
well as to subsequent periods of temporary legal custody granted to the
Department by State District Judge Holly Brown, was that Michelle Green
suffered from Munchausen's Syndrome by Proxy, and had abused and neglected
her daughter by subjecting her to unnecessary medical treatment.
On May 27, 2005, the day after Defendant Ellerbee placed E.G. in
emergency protective custody, Gayle Frandsen took over the investigation of
E.G.'s case. Frandsen prepared and signed an Affidavit for Emergency Protective
Services and Temporary Legal Custody, which was filed in conjunction with a
Petition for Emergency Protective Services and Adjudication as Youth in Need of
Care. Based on those documents, the district court entered an Order for Immediate
Protection, finding that the facts presented in the petition and affidavit established
probable cause to believe that E.G. was abused or neglected or in danger of being

9

abused or neglected, that immediate protection was required, and ordering the
Department to maintain custody. Judge Brown conducted a show cause hearing,
beginning on June 17,2005, and concluding on June 30, 2005, which was
attended by Daren and Michelle Green and their Counse1.3 Following this hearing,
Judge Brown issued an order continuing emergency protective services and
finding, inter alia, that probable cause existed to believe that E.G. was abused or
neglected. On August 25 and 26, 2005, Judge Brown held an adjudication hearing
and filed her resulting Findings of Fact and Conclusions of Law for Adjudication
on November 8, 2005, finding that the Department had "proven by a
preponderance of the evidence that the parents have abused or neglected E.G. as
defined in § 41-3-102." (Doc. 57-24 at 19, ~ 8.) Following a hearing on November
15,2005, Judge Brown issued an order that, inter alia, granted the Department
temporary legal custody of E.G. for a six month period expiring on or about May
14, 2006, and ordered the Department to create treatment plans for the parents
after conferring with the parents and their Counsel regarding the requirements of
the treatment plans. These plans were the subject of several objections and
revisions, including one court-ordered revision (Doc. 57at 30, ~ 105), and were
ultimately signed by Plaintiffs, filed, and incorporated into Judge Brown's order of
3Plaintiffs' counsel in the instant case, James Kommers, also represented Daren and
Michelle Green throughout the underlying state court proceedings.

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July 6, 2006. On September 21, 2006, Judge Brown signed an order denying the
parents' motion to terminate custody and emergency motion for amendment to
order extending temporary legal custody. On February 9, 2007, Judge Brown
granted the Department's request to extend temporary legal custody, and on
February 21, 2007, the Department filed a Petition for the Termination of Parental
Rights. Judge Brown conducted a hearing on that Petition, which began on May
25,2007, and continued on August 27-31,2007.
On December 14, 2007, Judge Brown filed her Findings of Fact,
Conclusions of Law, and Order on Termination of Parental Rights, in which she
ordered E.G. returned to her parents' physical custody on December 15,2007, and
ordered that the parents regain full legal custody on January 31, 2008.
SUMMARY JUDGMENT STANDARD

Summary judgment is proper if the moving party demonstrates "that 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). The Court must view the evidence in
the light most favorable to the non-moving party and draw all justifiable
inferences in that party's favor. Anderson v. Liberty Lobby Inc., 477 U.S. 317,323
(1986). The movant bears the initial burden of informing the Court of the basis for
its motion and identifying those portions of "the pleadings, depositions, answers to

11

interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact." Celotex
Corp. v. Catrett, 477 U.S. 317,323 (1986) (internal quotation marks omitted).
The movant's burden is satisfied when the documentary evidence produced
by the parties permits only one conclusion. Anderson, 477 U.S. at 251-52. Where
the moving party has met its initial burden, the party opposing the motion "may
not rest upon the mere allegations or denials of his pleading, but ... must set forth
specific facts showing that there is a genuine issue for trial." Id. at 248 (internal
quotation marks omitted).
THE DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT

1. The Initial Removal and Placement of E.G. in Emergency Protective
Services & Quasi-Judicial Immunity
The Department argues that to the extent Plaintiffs' state law claims against
it are based on Ellerbee's May 26, 2005 placement of E.G. in emergency
protective services, those claims are barred by quasi-judicial immunity because
Ellerbee was performing a quasi-judicial function. The Department expressly
limits its motion to the initial placement, and does not address any activity prior to
or following this initial decision.
Quasi-judicial immunity derives from the common law, and has long been
recognized by the Montana Supreme Court as an appropriate protection for agency
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officials undertaking certain actions. See Koppen v. Board ofMedical Examiners,
759 P.2d 173 (Mont. 1988) ("[A]gency officials performing certain functions
analogous to those of a prosecutor should be able to claim absolute immunity with
respect to such acts"). "Governmental agencies and officers are immune from tort
liability when they commit torts while performing quasi-judicial functions."

Eklundv. Trost, 151 P.3d 870,876 (Mont. 2006). A "quasi-judicial function" is
defined as "an adjudicatory function exercised by an agency, involving the
exercise ofjudgment and discretion in making determinations or controversies."

Id. (Quoting Mont. Code. Ann. § 2-15-102(9) (1999)). Quasi-judicial functions
"involve the exercise of the actor's discretion, whereas administrative or
ministerial functions are performed without the exercise of discretion." Id.
On May 26, 2005, Ellerbee was acting pursuant to Montana law, which
states: "Any child protective social worker of the department ... who has reason
to believe any youth is in immediate or apparent danger of harm may immediately
remove the youth and place the youth in a protective facility." Mont. Code Ann. §
41-3-301 (2005) (emphasis added). Use of the word "may" in a statute delegating
power to a government agency shows the legislature's intent to give that agency
the "discretionary authority to act or decline to act." Sikorski v. Johnson, 143 P.3d
161, 167 (Mont. 2006). Thus, the plain language of the statute establishes that
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Ellerbee was perfonning a discretionary function on behalf of the department
when she placed E.G. in emergency custody, and is thus entitled to quasi-judicial
immunity. Beyond the language of the specific statute at issue here, the Court
finds that the act of placing a child in protective custody is a judgment call, and
inherently discretionary.
Plaintiffs appear to concede that the decision to place E.G. in protective
custody is discretionary, stating that "while that singular statute [Montana Code
Annotated § 41-3-301]4 may be discretionary, the department's legislated duties
prior to, and after the state court's intervention were ministerial or administrative."
(Doc. 66 at 3.) Plaintiffs then cite to § 41-2-202(1) (2003), which states that, "[i]f
the department detennines that an investigation is required, a social
worker ... shall promptly conduct a thorough investigation into the circumstances
surrounding the allegations of abuse or neglect of the child." Plaintiffs also cite
several provisions of the "Children's Services Policy Manual, October 2004,"
(Doc. 68-25), that address the Department's duties surrounding the emergency
custody action and establishes the department's standard for a "thorough

4 Plaintiffs actually reference § 41-3-302, stating that "DPHHS relies exclusively on § 41­
3-302, Mont. Code Ann., to argue it has discretion generally." (Doc. 66 at 3.) However, the Court
assumes that Plaintiff was referring to MCA § 41-3-301, since that is the statute the Department
cites to support its argument that it had general discretion. Defendants did cite § 41-3-302, but in
reference to procedural safeguards.

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investigation." (Doc. 66 at 3.) Plaintiffs are correct that there are numerous
ministerial acts surrounding Ellerbee's decision, but the Department's motion as to
this point is very narrow, and is limited only to Ellerbee's determination on May
26,2005 to place E.G. in emergency protective custody pursuant to § 41-3-301.
The Court agrees with the Department that, to the extent Plaintiffs' state law
claims (Claim One and Claim Five ofthe Amended Complaint) against the
Department are based on Ellerbee's May 26, 2005 placement of E.G. in emergency
protective services, those claims are barred by quasi-judicial immunity because
she was exercising her discretion. However, this does not preclude Plaintiffs from
bringing state law claims regarding the ancillary and ministerial act of conducting
an investigation required by Montana Code Annotated § 41-2-202(1).
2. Chain of Cansation
The Department next argues that Plaintiffs' state law claims against it
should be dismissed because beginning on June 1,2005, District Court Judge
Holly Brown's numerous orders granting the Department's motions for temporary
legal custody broke the chain of causation between the Department's alleged
negligence and Plaintiffs' damages - E.G.'s separation from her parents.
The Ninth Circuit has held that, "Pursuant to traditional tort law principles
of causation ... a judicial officer's exercise of independent judgment in the course
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of his official duties is a superseding cause that breaks the chain of causation"
linking a state official to the judicial officer's decision. Galen v. Cnty. o/Los

Angeles, 477 F.3d 652, 663 (9th Cir. 2007). However, the chain of causation will
remain intact if the Plaintiff can establish judicial deception: that the Department
and its agents prevented the district court from exercising its independent
judgment. See id. ("Sergeant Barrier and Deputy Heinrich can be liable for
Galen's allegedly excessive bail only if they prevented the Commissioner from
exercising his independent judgment"); Smiddy v. Varney, 665 F.2d 261,266-67
(9th Cir.1981), as amended (police officers may be liable for a falsely imprisoned
arrestee's continued detention after a prosecutor charges the arrestee only if they
cause the prosecutor to act contrary to his independent judgment).
In order to establish judicial deception, Plaintiffs must, "1) make a
substantial showing of deliberate falsehood or reckless disregard for the truth and
2) establish that, but for the dishonesty, the challenged action would not have
occurred." Liston v. Cnty. o/Riverside, 120 F.3d 965,973 (9th Cir. 1997). Under
the second prong, the Court must examine whether the Affidavit's alleged
misrepresentations or omissions were material to the district court's decision to
grant the petition. Bravo v. City o/Santa Maria, 665 F.3d 1076, 1083 (9th Cir.
2011). To satisfy the materiality element, Plaintiffs must demonstrate that the
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district court would not have granted the Department's petition absent the
misrepresentations, and after considering the omissions. Smith v. Almada, 640
F.3d 931,937 (9th Cir. 2011) ("The materiality element-a question for the court
-requires the plaintiff to demonstrate that the magistrate would not have issued
the warrant with false information redacted, or omitted information restored").
As to the first prong of the deception analysis, Plaintiffs claim that the
Department's Affidavit made material omissions and contained false information.
Specifically, Plaintiffs allege that the Affidavit contained the following omissions:
(1) Daren and Tina Lofgren observed E.G. was vomiting and retching on May 26,
2005 and the night before; (2) E.G.'s parents had taken her to the Bozeman
Deaconess Hospital because they were instructed to do so by Billings Deaconess
Hospital; and (3) Dr. Starr believed that E.G.'s ileostomy was necessary at the
time it was done, and that he had no objective evidence that E.G.'s parents harmed
her.
Plaintiffs allege that the Department made or implied the following false
representations: (1) E.G. was being fed exclusively by tube, even though she was
eating solid foods daily under her parents' care; (2) E.G.'s parents had
unnecessarily caused E.G. to undergo Nissen fundoplication and gastronomy
procedures, when their doctors had recommended those procedures based on
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objective evidence ofher diagnosis; (3) E.O.'s ileostomy was unnecessary, while
it was in fact recommended by doctors; (4) Dr. Pinkerton met with Michelle and
saw E.O. on May 26, 2005, when in fact he had not; and (5) Dr. Pinkerton said
Michelle applied a catheter to E.O.'s urinary tract, when he in fact did not.
The Court need not wade into the validity of each of these claims, and will
presume for purposes ofresolving the instant motion that the Plaintiffs made a
"substantial showing of deliberate falsehood or reckless disregard for the truth,"
since it finds that Plaintiffs have not met their burden to satisfy the second prong
of the judicial deception analysis as a matter of law.s
Upon reviewing the district court's order of June 1,2005 and June 30, 2005,
it is unclear on precisely what bases Judge Brown made her decision to grant the
Department's petition. Absent specific findings, the Court cannot conclude thatbut for the alleged omissions and misrepresentations ~ the district court would
have denied the Department's petition, and it declines to assume that the
Department "duped" it into granting custody (Doc. 66 at 17). As described above,
this matter came before the district court on numerous occasions and in various

S Detennining whether

conduct is either deliberate or reckless is the province of the jury.
Thus, if Plaintiffs had not failed on the second prong of the judicial deception analysis as
discussed herein, the Court would deny this motion in order to allow the jury to determine if the
Department's alleged misrepresentations or omissions were either reckless or deliberate.

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contexts over the course oftwo and a half years. The district court repeatedly
found probable cause for abuse and neglect, and continued to maintain E.G. in
state custody, and it did so based on an extensive record. The Plaintiffs had the
opportunity to contribute to this record, develop additional facts, and rebut the
Department's evidence.
Although the burden to establish judicial deception falls on the Plaintiffs,
the Department offers compelling evidence that one of the omissions was not
material, and would not have altered the district court's decision. At the June 17,
2005 hearing, Dr. Starr testified that he believed that the ileostomy was necessary
at the time it was conducted, and that he had no objective evidence that E.G.'s
parents harmed her. In this Court's view, this is one of the most weighty omissions
that Plaintiffs present in their argument for judicial deception. However, even after
receiving this testimony during the June 17, 2005 hearing, the district court did not
change its course. Thus, there is no reason to believe that the court would not have
reached the same decision if it had received this evidence initially.
Finally, the Department advances the novel argument that Plaintiffs' own
actions demonstrate that the alleged omissions and misrepresentations were not
material. The Department states that during the show cause hearing (June 17 and
30, 2005), Plaintiffs had the opportunity to redress the alleged omissions and
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misrepresentations as follows: (1) Counsel could have cross-examined Frandsen
about her investigation and her alleged failure to interview the Greens prior to
filing the initial petition and affidavit; (2) Daren and Michelle Green and Tina
Lofgren could have testified that they observed E.G. vomiting and retching on
May 25 and 26,2005; (3) Daren and Michelle Green could have testified that they
took E.G. to the Bozeman Deaconess Hospital based on Billings Deaconess's
instruction, and that E.G. was eating solid foods. The Department argues that
Plaintiffs' failure to do so undercuts their argument as to the materiality ofthese
facts, and the Court does not disagree, although it does not base its finding solely
on this point. Plaintiffs presumably had access to all of this information at the time
ofthe show cause hearing, but failed to present it. Plaintiffs now claim that this
information is material, and if the district court had been aware of this evidence, it
would have reached a different decision. This Court is not prepared to find that
Judge Brown failed to reach an independent decision, and in effect, second guess
that decision, because she did not have evidence that the party challenging that
decision now deems to be material, but yet failed to present when it had the
opportunity.
Plaintiffs have failed to demonstrate that - but for the Department's alleged
omissions and misrepresentations - the district court would not have granted the
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Department's petition. Accordingly, this Court finds that the district court
exercised independent judgment in granting the Department's petition for
immediate protection, continuing that order, and granting the Department's motion
for temporary legal custody. The district court's exercise of independent judgment
is a superseding cause that breaks the chain of causation between the Department's
alleged negligence and Plaintiffs' damages as of June 1,2005.
3. Conclusion

The district court's orders broke the chain of causation between the
Department's alleged negligence and the Plaintiffs' damages. Accordingly, the
Court will grant the Department's motion for summary judgment on the First
Claim of the Amended Complaint as to any negligence claims premised on
damages that occurred following the district court's June 1,2005 order.
Additionally, the Court will grant summary judgment in favor of the
Department on the First Claim to the extent Plaintiffs state law claims against it
are based on Ellerbee's May 26,2005 placement of E.G. in emergency protective
services. Those claims are barred by quasi-judicial immunity because Ellerbee was
exercising her discretion.
However, this order does not preclude Plaintiffs' state law claims as alleged
in the First Claim insofar as they relate to the Department's duty to conduct an
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investigation pursuant to Montana Code Annotated § 41-2-202(1) prior to placing
E.G. in emergency protective custody; any such investigation is a ministerial act,
and the chain of causation between the Department's actions and the alleged
damages was not severed by the district court's independent judgment.
Due to the Court's decision regarding chain of causation, it declines to
address Department's argument as to absolute quasi-judicial immunity.
The Court further declines to address the Department's collateral estoppel
argument at this time in light of (1) the Court's determinations regarding collateral
estoppel contained within its order on Plaintiffs' Motion in Limine (Doc. 77), and
(2) the duplicative nature ofthe remedy the Department seeks on collateral
estoppel and the Court's decision as to the chain of causation.
THE INDIVIDUAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

1. Plaintiffs' § 1983 Claims Against Ellerbee & Qualified Immunity
Defendant Ellerbee argues that the § 1983 claims against her, as alleged in
the Second Claim of the Amended Complaint, should be dismissed based on
qualified immunity. Qualified immunity protects state officials from liability for
civil damages under § 1983 when their 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). To determine if
22

qualified immunity applies, the Court must consider whether "the facts alleged by
the plaintiff, taken in the light most favorable to the party asserting the injury,
show that the defendant violated a constitutional right." Brown v. State of

Montana, 442 F.Supp.2d 982,990 (D. Mont. 2006) (internal quotation marks and
citations omitted). Next, the Court must determine "whether the constitutional
right was clearly established at the time the defendant allegedly violated it." Id.
S~mary judgment

is appropriate if the Court answers either question in the

negative.
Plaintiffs allege that Ellerbee removed E.G. from their custody without
reason to believe that she faced imminent danger of fear or abuse. Defendants do
not contest the fact that these allegations clearly implicate a myriad of
Constitutional rights - including the Fourth Amendment to be free of unreasonable
searches and seizures, as well as their Fourteenth Amendment procedural due
process rights. Thus, the dispositive question is whether those rights were clearly
established at the time ofthe alleged violation. To be "clearly established," the
"contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Saucier v. Katz, 533 U.S.
194, 202 (2001).
In this context, it is well established that "the state may not remove children
23

from their parents' custody without a court order unless there is specific,
articulable evidence that provides reasonable cause to believe that a child is in
imminent danger of abuse." Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir.
1999); see also Brown, 442 F.Supp.2d at 993. The Court must determine "whether

a reasonable social worker could have believed that taking [E.G.] and holding
[her] in temporary protective custody was lawful in light of clearly established law
and the information the social worker possessed." Baker v. Racans/cy, 887 F.2d
183, 187 (9th Cir. 1989) (internal quotation marks omitted). "Only the information
[Ellerbee] had when [she] made the challenged decisions is relevant." Id. at 185, n.
1. Thus, for the purposes of determining whether Ellerbee is entitled to qualified
immunity, the Court must evaluate the facts as Ellerbee received and understood
them on the afternoon of May 26, 2005, and in the context ofthe situation that
unfolded that day.
Given the facts of this case, it is easiest to conceptualize and apply these
legal standards as three separate, but interrelated questions that the Court must
address: (1) does Ellerbee provide specific, articulable evidence for a finding of
reasonable cause that E.G. was in danger of abuse; (2) if so, was that danger
imminent, i.e., were there exigent circumstances; (3) if so, would a reasonable
social worker believe that Ellerbee's taking E.G. and placing her in immediate
24

protective custody was lawfuL
After 4:00 p.m. on May 26, 2005, Marilyn Eulor, a licensed clinical social
worker at the Billings Deaconess Hospital, called the Montana Child Abuse
Hotline, and reported that three different doctors at the hospital asked her to call
the Hotline to make a report about E.G. because they were concerned about her
welfare. E.G. had been at Deaconess earlier that day, but had been transferred to
S1. Vincent's because S1. Vincent's specialized in pediatrics. The Hotline was
answered by the Centralized Intake Unit ofthe Child and Family Services
Division of the DPHHS. Based on the phone call, the Centralized Intake Unit
personnel determined that Eulor's report indicated that E.G. might be in immediate
danger of serious harm, and was a "priority one" report, meaning that it should be
investigated immediately. Sometime after 4:30 p.m., Ellerbee went to S1. Vincent's
in response to the report. E.G. was in the hospital because her feeding tube had
become dislodged and her mother believed it needed to be reattached. Once at the
hospital, she spoke with several nurses and other staff members who provided her
with information from E.G.'s medical records. They indicated that E.G.'s tube had
been dislodged on prior occasions, and with unusual frequency. Ellerbee also
witnessed E.G. eating potato chips, which aroused suspicion as to the necessity of
the feeding tube. These facts convince the Court that Ellerbee presents sufficient
25

specific, articulable evidence to believe that E.G. was in danger of abuse in the
form of unnecessary surgery. Ellerbee was presented with information that several
medical professionals had concerns about the need for the surgery sought by
E.G.'s parents. Ellerbee reasonably questioned the need for the feeding tube, and
was faced with a situation in which E.G.'s parents were seeking what she
perceived to be - based on the evidence available to her at the time - another
unnecessary surgery.
Next, the Court will look to whether this danger was imminent. The medical
personnel at St. Vincent's informed her of their concerns that E.G.'s family had a
pattern of leaving medical facilities and firing medical professionals. While many
of the underlying details surrounding these claims are contested, the fact remains
that in the precise factual scenario that Ellerbee faced on the evening of May 26,
2005, a reasonable social worker in her position would be justified in believing
that the threat of harm was imminent. E.G. was already admitted to the hospital
awaiting the surgery to reattach her feeding tube. She was presented with evidence
that could lead to the reasonable conclusion that if Ellerbee did not intervene, (1)
E.G. would be subject to the potentially unnecessary medical procedure, or (2) if
E.G.'s parents did not get the treatment they desired at St. Vincent's, they would
remove her from the hospital and attempt to find a medical provider that would
26

perform the procedure. The Court finds that Ellerbee furnished specific,
articulable evidence that provides reasonable cause to believe that E.G. was in
imminent danger of abuse.
All that remains is to determine whether a reasonable social worker would
believe that Ellerbee's taking E.G. and placing her in immediate protective
custody was lawful, or, put another way, "whether Montana law could have
persuaded a reasonable official that her actions were lawful," Brown, F .Supp.2d at
996. As United States Magistrate Judge Carolyn Ostby stated in Brown, "When
the Montana Legislature has enacted a statute, a social worker is ordinarily entitled
to rely on the assumption that the drafters, legislators, and legal counsel have
considered the implications and concluded that the statute is a valid and
constitutional exercise of authority." Id. As discussed at length above, at the time
of Ellerbee's actions Montana law provided that: "Any child protective social
worker of the department ... who has reason to believe any youth is in immediate
or apparent danger of harm may immediately remove the youth and place the
youth in a protective facility." Mont. Code Ann. § 41-3-301 (2005) (emphasis
added). Ellerbee's reliance on the statutory authority given to her by § 41-3-301
was entirely reasonable.
On May 26, 2005, Ellerbee made a determination to place E.G. in
27

emergency protective custody. The Court finds that her decision to do so was
based on specific, articulable evidence that provided reasonable cause to believe
that E.G. was in imminent danger of abuse. The Court also finds that as a matter of
law, a reasonable social worker could have believed that taking E.G. and holding
her in temporary protective custody was lawful in light of clearly established law
and the information Ellerbee had at the time. Thus, Ellerbee is entitled to qualified
immunity for the Plaintiffs' § 1983 claims related to her removal and placement of
E.G. in emergency protective custody. Since it is undisputed that Ellerbee's
involvement with E.G. and the Plaintiffs ended after those actions, qualified
immunity shields Ellerbee from all liability in this case.
Accordingly, the Court will dismiss the Second Claim of the Amended
Complaint in its entirety. The Court will also dismiss all portions of the Third,
Fifth, and Sixth Claims ofthe Amended Complaint insofar as they are related to
Ellerbee. Since all claims pertaining to Ellerbee will be dismissed on grounds of
qualified immunity, she is further dismissed as a Defendant in this matter.

2. Ellerbee and Absolute Quasi-Prosecutorial Immunity
Based on the Court's decision that Ellerbee is entitled to qualified immunity
for all potential § 1983 liability, the Court need not address Defendants' alternate
argument that Ellerbee is entitled to partial summary judgment as to any damages
28

allegedly suffered by Plaintiffs after June 1, 2005.

3. Filson's Liability Under § 1983
Defendants next move for partial summary judgment on Plaintiffs' § 1983
claims as alleged in the Third and Fourth Claims ofthe Amended Complaint
against only Defendant Dorothy Filson on the basis that she was merely Frandsen
and Lutz's supervisor, and did not: (1) participate in or oversee Ellerbee's decision
to place E.G. in emergency protective custody; (2) review Frandsen's affidavit in
support of the petition; or (3) involve herself with the day-to-day management of
E.G. 's case, which Lutz was responsible for. Plaintiffs concede the first two
points. (Doc. 67 at 8).
Supervisors "cannot be held liable unless they themselves" violated a
constitutional right. Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). "Liability under
section 1983 arises only upon a showing of personal participation by the
defendant." Taylor v. List, 880F .2d 1040, 1045 (9th Cir. 1989); see also Mabe v.

San Bernadino County, Dept. ofPublic Social Services, 237 F 3d 1101, 1109 (9th
Cir. 2001) ("The Supreme Court has concluded that in enacting section 1983
Congress did not intend to impose liability vicariously on [employers or
supervisors] solely on the basis of the existence of an employer-employee
relationship with the tortfeasor").
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Thus, Defendants are correct that Plaintiffs cannot state a claim against
Filson based solely on her position as Lutz's supervisor. However, Plaintiffs have
alleged that Filson was directly involved with the management ofE.G.'s case, and
that she conspired with Lutz to violate the Plaintiffs' Fourth Amendment rights.
Defendants have not met their summary judgment burden as to Filson, since her
involvement in the case is contested, and presents a factual dispute for the jury to
resolve. Accordingly, this motion for partial summary judgment on the Third and
Fourth Claims is denied.

4. Scope of Lutz's Liability
In is uncontested that Defendant Heidi Lutz became involved in this case on

March 6, 2006. Thus, she was not involved in the decision to place E.G. into
protective custody, or in the preparation of the affidavit in support of the petition
for emergency protective services, and the Court will grant partial summary
judgment as to any liability predicated on those bases as alleged in the Third
Claim of the Amended Complaint.

S. Absolute Quasi-Judicial Immunity as to Filson and Lutz
Defendants next move the Court to find that Filson and Lutz are entitled to
absolute quasi-judicial immunity for maintaining E.G. in protective and temporary
legal custody beginning when Judge Brown signed the order for immediate
30

protection on June 1,2005, because "from that point on, the Department and its
agents were lawfully discharging official duties associated with judicial actions of
the court and directly implementing Judge Brown's orders by maintaining custody
over E.G."6 The Court believes that this motion is directed to the Third Claim as to
Defendants Filson and Lutz, and perhaps the Fourth Claim, which allege
violations under § 1983.Within those Claims, Plaintiffs have alleged, inter alia,
that the Individual Defendants persisted in their allegations that E.G. had been
abused or neglected, despite knowing otherwise; failed to timely implement the
treatment plans; and insisted that the parents admit they abused E.G. The
Defendant's claim for absolute quasi-judicial immunity does not touch upon any
ofthese allegations, but merely on the fact that the Department maintained custody
pursuant to the district court's orders.
In Coverdell v. Department ofHealth and Human Services, State of

Washington, the Ninth Circuit recognized that child protection workers are

6 In their

reply brief in support of the motion, Defendants advance a much broader
argument as to quasi-judicial immunity for Filson and Lutz. Defendants also raise a claim for
quasi-prosecutorial immunity for the first time in that brief, seemingly conflating quasi-judicial
and quasi-prosecutorial immunity, which are in fact separate and distinct immunities. See
Coverdell v .Dep '( o/Soc. & Health Servs., State o/Wash., 834 F.2d 758, 762-765 (9th Cir.
1987) (discussing and deploying separate analyses for each immunity). The Court will not
address claims or arguments raised for the first time in the Defendants' reply brief, and will limit
its resolution ofthis issue to the narrow ground upon which Defendants based their motion.

31

entitled to absolute quasi-judicial immunity for certain actions taken to execute
valid court orders. 834 F.2d 758, 765 (9th Cir. 1987) ("The same concerns dictate
that a CPS worker be accorded absolute quasi-judicial immunity from liability for
damages stemming from the worker's apprehension of a child pursuant to a valid
court order"). In Coverdell the Court held that a social worker who obtained
custody of a child pursuant to a valid court order was entitled to absolute quasijudicial immunity.ld. at 765. Here, while the Defendants maintained custody of
E.G. pursuant to a court order, Plaintiffs' claims are more complex and far
reaching than merely taking and maintaining custody. While the Court will grant
summary judgment as to that narrow point, the Defendants have not met their
burden for summary judgment as to Plaintiffs various other allegations in the
Third and Fourth Claims of the Amended Complaint.

6. Absolute Witness Immunity for Allegedly False Testimony Provided by
Lutz and Filson
Defendants next invoke absolute witness immunity to seek partial dismissal
of Claims Three and Four of the Amended Complaint as to the specific claims that
"Defendants Lutz and Filson intentionally made false allegations or recklessly
ignored the truth when [they] alleged E.G. was a victim of abuse and neglect
during the emergency custody, adjudication, and termination proceedings." (Doc.

32

22 at 1 92.) Defendants fIrst clarify the uncontested fact that neither Filson nor
Lutz testifIed during the show cause or adjudication hearings, and thus could not
have made false allegations or recklessly ignored the truth during those
proceedings. Defendants seek witness immunity for Lutz's testimony offered at
numerous district court hearings beginning on June 16, 2006 and ending with the
termination hearing, and for Filson's testimony at the termination hearing.
The Supreme Court addresses absolute witness immunity in the context of

§ 1983 claims at length in Briscoe v. LaHue, 460 U.S. 325 (1983), stating:
In short, the common law provided absolute immunity from
subsequent damages liability for all persons-governmental
or otherwise-who were integral parts of the judicial
process. It is equally clear that § 1983 does not authorize
a damages claim against private witnesses on the one hand,
or against judges or prosecutors in the performance oftheir
respective duties on the other. When a police offIcer
appears as a witness, he may reasonably be viewed as
acting like any other witness sworn to tell the truth-in
which event he can make a strong claim to witness
immunity; alternatively, he may be regarded as an offIcial
performing a critical role in the judicial process, in which
event he may seek the benefIt afforded to other
governmental participants in the same proceeding. Nothing
in the language of the statute suggests that such a witness
belongs in a narrow, special category lacking protection
against damages suits.

33

Id. at 335-36. The Court went on to state that:

Moreover, to the extent that traditional reasons for witness
immunity are less applicable to governmental witnesses,
other considerations of public policy support absolute
immunity more emphatically for such persons than for
ordinary witnesses. Subjecting government officials, such
as police officers, to damages liability under § 1983 for
their testimony might undermine not only their
contribution to the judicial process but also the effective
performance of their other public duties.

Id. at 342-43. The Court concluded that the same principles that protect judges and

prosecutors "also apply to witnesses, who perform a somewhat different function
in the trial process but whose participation in bringing the litigation to ajust-or
possibly unjust-conclusion is equally indispensable." Id. at 345-46.
In Mabe v. San Bernadino County Department ofPublic Social Services, the
Ninth Circuit addressed absolute witness immunity in the context of social
workers, concluding that they are "entitled to absolute immunity for the initiation
and pursuit of dependency proceedings, including their testimony offered in such
proceedings." 237 F.3d 1101, 1109 (9th Cir. 2001) (emphasis added).
Briscoe and Mabe clearly establish that Lutz and Filson are entitled to

absolute immunity for any testimony they offered at the various hearings before
the state district court, including the ultimate termination hearing. In arguing

34

against absolute witness immunity, Plaintiffs cite to Beltran v. Santa Clara

County, in which the Ninth Circuit states that social workers "are not entitled to
absolute immunity from claims that they fabricated evidence during an
investigation or made false statements in a dependency petition affidavit." 514
F3d 906, 908 (9th Cir 2008). Beltran is inapposite to the Defendants' argument
on the specific point of witness immunity because Beltran addresses absolute
quasi-judicial immunity, which is separate and distinct from the absolute witness
immunity sought here. Additionally, Beltran is limited to the fabrication of
evidence either during an investigation prior to the start ofjudicial proceedings, or
in the affidavit that initiates such proceedings. Defendants' argument on this point
is limited to their roles as witnesses well after the proceedings had been initiated.
Filson and Lutz's testimony falls squarely under the absolute immunity
afforded witnesses by Briscoe and Mabe, and the Court will grant partial summary
judgment on Claims Three and Four of the Amended Complaint based on absolute
witness immunity as to testimony they provided at the state district court hearings.

7. Lutz's Qualified Immunity for Allegedly False Allegations in Affidavits or
Reports
Defendants next claim that Lutz is entitled to qualified immunity for any
false or reckless allegations she made that E.G. was abused or neglected, or in

35

danger of being abused or neglected. This motion seeks partial summary judgment
on the Third Claim of the Amended Complaint. Plaintiffs have not established
that Lutz made any false or reckless statements, and that those statements led to
the deprivation of a Constitutionally protected interest. However, even ifthey
could make such a showing, this claim would be dismissed on the basis of
qualified immunity under the Ninth Circuit's decision in Costanich v. Department

o/Social and Health Services. 627 F.3d 1101 (9th Cir. 2010).
In Costanich, the Plaintiff was able to produce evidence that the defendant
social worker deliberately falsified statements in her investigative reports. The
court established the principle that "going forward, officials who deliberately
fabricate evidence in civil child abuse proceedings which result in the deprivation
ofa protected liberty or property interest are not entitled to qualified immunity."

Id at 1114. However, the court dismissed the plaintiff s claim for deliberate
fabrication on the basis of qualified immunity, since that right had not been clearly
established at the time ofthe Defendant's conduct.
The Court is faced with a similar situation here. Costanich was decided in
December of 2010, long after the termination ofE.G. 's abuse and neglect
proceedings. Thus, at the time Lutz made the allegedly false or fabricated
statements or evidence, she was not violating a clearly established right, and is
36

therefore entitled to qualified immunity for any false allegations in affidavits or
reports submitted to the district court as alleged in the Third Claim of the
Amended Complaint.

8. Fifth Amendment Claims
Defendants claim that neither Filson nor Lutz violated Plaintiffs' Fifth
Amendment Claims. The Court accepts Plaintiffs' response that they do not allege
a Fifth Amendment violation - which even a cursory reading ofthe Amended
Complaint would also reveal. Summary judgment as to this argument will be
denied as moot.

9. Lutz's Liability for Filing the Termination Petition
Puzzlingly, Defendants next move the Court to dismiss any claim against
Lutz based on the filing of the termination petition because she did not in fact file
the petition. Not surprisingly, Plaintiffs concede this point, and clarify that their
claim against Lutz is for maintaining the removal of E.G. and conspiring to
terminate their parental rights throughout the district court proceedings. Summary
judgment as to this argument will be denied as moot.

10. State Law Claims and Statutory Immunity
Next, Defendants focus on the Fifth Claim of the Amended Complaint,
arguing that to the extent Plaintiffs are attempting to assert a claim of negligent
37

infliction of emotional distress under state law against Ellerbee, Lutz, and Filson,
that claim is barred by statutory immunity. The Court interprets the Plaintiffs
response on this point as clarifying that this portion of the Fifth Claim of the
Amended Complaint does not allege a state claim for negligent infliction of
emotional distress, but is instead related to damages under their § 1983 claims.
Insofar as Plaintiffs are asserting a state law claims against the Individual
Defendants, Montana Code Annotated § 2-9-205(5) provides that state employees
"acting within the course and scope" of their employment are protected from
liability. It is uncontested that the Individual Defendants were acting within the
scope oftheir authority, and therefore, insofar as the Fifth Claim of the Amended
Complaint asserts a state claim of negligent infliction of emotional distress under,
that claim is barred by statutory immunity.
The Court finds the wording of the Fifth Claim of the Amended Complaint
to be very ambiguous. On its face, it appears to be limited to a state law claim for
negligent infliction of emotional distress. However, paragraph 106 seems to
implicate the alleged § 1983 violations: "Plaintiffs suffered serious or severe
emotional distress as result [sic] of defendants' Ellerbee, Lutz, and Filson's
deliberate indifference to or reckless disregard for Plaintiffs' Fourth and
Fourteenth Amendment rights." In their response brief, Plaintiffs appear to latch
38

onto this interpretation and argue that the Fifth Claim should be construed as a
claim for emotional distress damages as the result of Defendants' alleged § 1983
violations, either in addition to or instead of a state law claim for negligent
infliction of emotional distress. Plaintiffs attempt to do so is quite ineffective. As a
threshold issue, the Court recognizes that "state immunity laws do not shield the
State or its officials from liability based on 42 U.S.C. § 1983." Miller v. City of
Red Lodge, 65 P.3d 562, 566 (Mont. 2003).
Plaintiffs state that, "Emotional distress is a compensable injury under §
1983 claims," (Doc. 67 at 17), citing Passantino v. Johnson & Johnson Consumer
Products, Inc., 212 F.3d 493,508-09 (9th Cir. 2000) and Monessen Southwestern
Ry. Co. v. Morgan, 486 U.S. 330,339-42 (1988). However, neither of these cases
supports the proposition for which they are cited.
Based on the wording of the Fifth Claim of the Amended Compliant and the
information before the Court at this time, it simply cannot determine if or how the
Fifth Claim pertains to the wholly separate § 1983 claims. Due to this ambiguity,
and the Plaintiffs' failure to sufficiently and clearly assert and support a claim for
liability against the Individual Defendants under the Fifth Claim of the Amended
Complaint, the Court will order Plaintiffs to show cause why all claims against the
Individual Defendants made in the Fifth Claim of the Amended Complaint should
39

not be dismissed as state law claims for which the Individual Defendants are
entitled to statutory immunity.
11. Collateral Estoppel
The Court declines to address collateral estoppel at this time in light of its
determinations on the subject contained within its order on Plaintiffs' Motion in
Limine (Doc. 77). The Court awaits the parties stipulation in the final pretrial
order as to those portions of the state court proceedings - as well as the precise
issues resolved by District Court Judge Holly Brown - that they wish the Court to
take judicial notice of pursuant to Rule of Evidence 201, or to utilize as the basis
for a finding of collateral estoppel.
CONCLUSION
The Court will now return to the six claims in the Amended Complaint,
describe what portions of each claim this order will dismiss, and attempt to state
what remains of each claim.
FIRST CLAIM - Negligence
On the bases of quasi-judicial immunity and a break in the chain of
causation, the Court will dismiss all portions of this claim with the exception of
negligence as to the investigation undertaken by Ellerbee on behalf of the
Department prior to placing E.G. in emergency protective custody. Damages for
40

any successful claim related to negligent investigation will be limited to the period
prior to the state district court's June 1,2005 order.
SECOND CLAIM - Civil Rights Violation - Fourth Amendment

The Court will dismiss this claim in its entirety because Ellerbee is entitled
to qualified immunity.
THIRD CLAIM - Civil Rights Violation - Fourteenth Amendment

The Court will dismiss all portions of this claim that pertain to Ellerbee. The
Court will dismiss any claims against Lutz predicated on any involvement in
making the decision to place E.G. in emergency protective custody or the
preparation of the affidavit in support of the petition for emergency protective
services. The Court will dismiss any liability as to Filson and Lutz predicated on
maintaining actual physical custody of E.G under the theory of absolute quasi­
judicial immunity. The Court will dismiss any claims as to Lutz and Filson
predicated on alleged false testimony on the basis of absolute witness immunity.
The Court will dismiss any claims as to Lutz predicated on false or reckless
allegations in affidavits or reports on the basis of qualified immunity.
Thus, in the Court's estimation, essentially all that remains of this claim are
the various allegations against Lutz and Filson related to their handling of the
treatment plans.
41

FOURTH CLAIM - Civil Rights Violations - Fourteenth Amendment
There is considerable overlap between this Claim and Claim Three, and the
Court dispenses with these overlapping claims in manner described in its summary
of Claim Three. The Plaintiffs still have a live claim for conspiracy relating to the
handling of the treatment plans by Lutz and Filson.
FIFTH CLAIM - Negligent Infliction of Emotional Distress
The Court will dismiss all portions of this claim that pertain to Ellerbee. On
the basis of statutory immunity, the Court will dismiss this claim as to Lutz and
Filson insofar as it is a state claim. The Court will order Plaintiff to show cause
why this claim should not be dismissed in its entirety.
The Court will dismiss all portions of this claim as to the Department's
alleged negligence related to all activities, with the exception of the initial
investigation.
SIXTH CLAIM - Exemplary Damages
The Court will dismiss all portions of this claim that pertain to Ellerbee. The
remainder of the claim survives.
ORDER
IT IS ORDERED that
(1) Defendants' motions for summary judgment (Doc. 53; 55) are
42

GRANTED in part, and DENIED in part, consistent with this opinion.
(2) Defendant Christy Ellerbee is DISMISSED from this matter.
(3) The Plaintiffs shall show cause why the Fifth Claim ofthe Amended
Complaint should not be interpreted as a claim brought under state law, and
dismissed as to the Individual Defendants based on statutory immunity. Plaintiffs
shall file a brief showing cause and clarifying its position on this matter no later
than Monday, February 3, 2014. The brief shall consist of no more than 3,000
words.
(4) Counsel for all parties shall participate in a telephonic scheduling
conference set for Tuesday, February 11,2014 at 1:30 p.m. for the purpose of
rescheduling the final pretrial conference and jury trial in this matter, as well as to
establish deadlines for the submission of trial materials to the Court. Counsel will
be advised ofthe conference line number at a later date.
Dated this

11

~tay of January, 2014.

Dana L. Christensen, Chief Jud e
United States District Court

43