              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 12a0166n.06

                                         No. 10-5543

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT


JASON HUMPHREY, KRISTIN HUMPHREY,                                                 FILED
Individually and as next friends of their minor                              Feb 08, 2012
children, LH and MH,
                                                                       LEONARD GREEN, Clerk
       Plaintiffs-Appellants,

              v.                                                On Appeal from the United
                                                                States District Court for the
KIM SAPP,                                                       Western District of Kentucky
                                                                at Louisville
       Defendant-Appellee,

JAMEY BARTLEY; COMMONWEALTH OF
KENTUCKY, CABINET FOR HEALTH &
FAMILY SERVICES,

       Defendants.


                                                          /

Before:       GUY, KETHLEDGE, and WHITE, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.           This is a civil rights case brought by the

parents of children subject to a juvenile dependency, neglect and abuse proceeding in the

Kentucky court system.       The parents, Jason and Kristin Humphrey, alleged federal

constitutional and state-law tort claims against a social worker, her supervisor, and the state,

claiming that the social worker assigned to their case provided false sworn testimony to the

state court, which led to the children’s temporary removal from the home. On appeal, the
No. 10-5543                                                                                           2

Humphreys assert that the district court erred in dismissing claims brought against the social

worker. Finding that absolute immunity does not bar the claims, we reverse the judgment

of the district court.

                                                   I.

        As alleged in the Humphreys’ complaint, on April 27, 2008, Jason Humphrey was

alone at home with his two minor children—one-month-old “M.H.” and 18-month-old

“L.H.” M.H. suffered a head injury in an accidental fall. After M.H. was examined by an

emergency room physician, hospital representatives advised the Humphreys to have her

examined at Kosair Children’s Hospital in Louisville, KY (Kosair). The Hardin County

EMS transported M.H. to Kosair.1

        Defendant Kim Sapp is a social worker with the Department for Community Based

Services within Kentucky’s Cabinet for Health and Family Services. Following receipt of

a medical report describing M.H.’s injuries as potentially non-accidental, Sapp petitioned the

Hardin County, Kentucky Family Court for emergency removal of M.H. and L.H. from their

parents. The petition, filed April 30, 2008, alleged that M.H. had been the victim of abuse

and neglect. Sapp filed a contemporaneous “Emergency Custody Order Affidavit” in the

family court. Both forms included Sapp’s identical statement of her grounds of belief to

support the allegations against the Humphreys. Sapp signed the forms as “affiant.” The

Humphreys allege the family court’s removal of the children from their parents on that same


       1
         The Humphreys’ complaint contains several paragraphs of allegations concerning unnecessary
medical tests administered to M.H. at Kosair and alleges that “[o]n information and belief, while it was
unknown to Plaintiffs at that time, agents of the Commonwealth were making misleading statements of fact
about Jason Humphrey.”
No. 10-5543                                                                                                3

day was based upon “false sworn testimony” of Kim Sapp, which the complaint does not

specifically identify.2

        The Hardin County Family Court civil action was not formally adjudicated. Rather,

it was “informally adjusted” in September 2008, which the Humphreys assert was a

resolution in their favor. The Humphreys allege that “even after the rejection of the Family

Court matter and despite the lack of evidence and probable cause Defendants Kim Sapp,

Jamey Bartley and the Commonwealth of Kentucky continued their pursuit of Plaintiffs.”

This allegation apparently refers to Sapp’s decision to “substantiate” the claims of abuse

against Jason Humphrey after the informal resolution of the claims.3 Jason Humphrey

appealed the substantiation, and a hearing was held by a state administrative hearing officer.

The hearing officer recommended reversal of the substantiation, resolving the matter in favor

of Jason Humphrey. The Humphreys cite to the hearing officer’s decision in their briefing.

        The Humpreys filed a two-count complaint in federal district court in April 2009,

including claims under 42 U.S.C. § 1983 against Sapp, her supervisor, and the

Commonwealth of Kentucky. The Humphreys generally allege in the first count that the

defendants’ actions were taken “in bad faith and without just and legal cause,” and that the

“aforementioned conduct” amounted to both an unreasonable search and seizure and a


        2
         The complaint also asserts that “Kim Sapp advised her supervisor Jamey Bartley of all her actions
and he approved.” Initially, the Humphreys brought claims against multiple defendants, including Sapp’s
supervisor. Claims against all other defendants in the case have been dismissed and are not before us on
appeal.
        3
          If a social worker within the Kentucky Cabinet for Health and Family Services “substantiates” child
abuse, and the abuse report is not found to be false or unsubstantiated, the abuser’s name is placed on the
state’s child abuse registry, as prescribed by the federal Child Abuse Protection and Prevention Act, 42
U.S.C. § 5106a et seq. (“CAPTA”).
No. 10-5543                                                                                4

deprivation of property without due process of law. The second count alleges violations of

state law, which were dismissed by the district court and are not part of this appeal.

       Defendants moved to dismiss the complaint, asserting in part that absolute immunity

barred the claims against Sapp. The district court dismissed the bulk of the claims on this

basis, and dismissed all other federal claims brought against Sapp for the reason that the

remaining actions complained of failed to support them. This appeal followed.

                                             II.

       We are presented in this appeal with the question whether a Kentucky social worker,

filing an action in family court, is immune from liability for her statement of the grounds

supporting the decision to file that action. The district court determined that under those

circumstances the social worker is entitled to absolute prosecutorial immunity, and granted

the defendants’ motion to dismiss.

       We review de novo a decision on a Federal Rules of Civil Procedure 12(b)(6) motion

to dismiss. Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., 648 F.3d 295 (6th Cir.

2011). In order to survive a Rule 12(b)(6) motion, the complaint—construed in the light

most favorable to the non-moving party—“need contain only enough facts to state a claim

to relief that is plausible on its face.” Paige v. Coyner, 614 F.3d 273, 277 (6th Cir. 2010)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal quotation marks

omitted)).

       The Humphreys present their question on appeal as “[w]hether Appellants’ federal

civil rights claims are barred by absolute immunity when Appellee made false statements of
No. 10-5543                                                                                                5

fact in an affidavit supporting a Juvenile Dependency, Neglect and Abuse Petition in the

capacity of a witness and clearly not in a prosecutorial role, or does the holding of the United

States Supreme Court in Kalina v. Fletcher, 522 U.S. 118, 129-30 (1997), control.”

Specifically, the Humphreys contend that Sapp acted improperly in referencing shaken baby

syndrome in her affidavit, where Sapp had in fact received information the day before she

initiated proceedings with the family court that M.H. was not a shaken baby.4                           The

Humphreys describe Sapp’s reference to M.H.’s injuries being consistent with “shaken baby”

as “fabricated evidence.” The parties do not dispute that Sapp is absolutely immune from

liability stemming from any verbal testimony she is alleged to have given to the family court.

        For absolute immunity to apply in a suit brought under 42 U.S.C. § 1983, the function

complained of must be one that was entitled to absolute immunity at common law. See

Kalina, 522 U.S. at 123. Although immunity for social workers was not part of that

jurisprudence, we have recognized that social workers are entitled to absolute immunity

under certain circumstances. Holloway v. Brush, 220 F.3d 767, 774 (6th Cir. 2000). The

district court, at the outset of its opinion, cited Holloway, id. at 775, for the proposition that

“social workers have absolute immunity when acting in the capacity of legal advocates,

which includes initiating court proceedings and testifying under oath.” The district court

then considered each of the acts alleged in the complaint as to defendant Sapp in determining

whether immunity applied to bar the claims. As noted above, the Humphreys now focus


        4
         M.H. had apparently undergone a retinal exam prior to the filing, the result of which was normal.
This information is included in the written findings of fact by the administrative hearing officer and is not
disputed by the parties. The Humphreys assert the negative test “ruled out” shaken baby syndrome and
emphasize that Sapp did not refer to the test in her affidavit(s).
No. 10-5543                                                                                 6

solely on Sapp’s affidavit. The Humphreys assert that in making its decision, the district

court glossed over the distinction between sworn testimony in court versus the information

Sapp attested to in her affidavit, improperly coming to the general conclusion that Sapp was

“entitled to absolute immunity for her actions in presenting evidence and ‘testifying’ to the

family court.”

       Sapp prepared two Commonwealth of Kentucky Court of Justice forms in her

handwriting on April 30, 2008. The forms carry the captions “Juvenile Dependency, Neglect

and Abuse Petition” and “Emergency Custody Order Affidavit.”             It appears that the

temporary removal of the children from the home was an action authorized by court order

pursuant to the form entitled “Emergency Custody Order Affidavit.” See Ky. Rev. Stat. §

620.060 (authorizing temporary ex parte emergency custody orders when the court has

reason to believe certain conditions exist, “as supported by affidavit or by recorded sworn

testimony.”) While Kentucky statutory law does not require that the forms be filed by a

social worker such as Sapp, and a county attorney did become involved in the case, there

appears to be no dispute that court proceedings were intitiated when Sapp filed the Juvenile

Dependency, Neglect and Abuse Petition. See Ky. Rev. Stat. § 620.070 (providing that “[a]

dependency, neglect, or abuse action may be commenced by the filing of a petition by any

interested person in the juvenile session of the District Court”).

       The two forms referenced above both include an identical handwritten paragraph,

which states as follows:

       Dr Curry with UL forensic reported that child’s injuries are not consistent with
       accidental means. [M.H.] has a 1 cm. fracture of the skull that has distorted
No. 10-5543                                                                                               7

        the shape of the skull. Further MRI testing has revealed blood throughout the
        brain—consistent with shaken baby. Upon entering hospital, [M.H.] had
        rectangular bruising on her arms which natural mom reported to having been
        there for a few days. See attached.

The attachment states that “[n]atural father, Jason Humphrey and natural mother, Kristen

Humphrey reported that Jason Humphrey was the only caregiver present on day of incident.

Natural mother, Kristen Humphrey denies that injuries occurred non-accidental and denies

possib[i]lity that natural father inflicted injuries.”

        The Emergency Custody Order affidavit includes language preceding the handwritten

paragraph stating that “I, Kim Sapp [filled in by hand], swear or affirm under oath the

following statements are true to the best of my knowledge.” The neglect and abuse petition

states that the “affiant,” Kim Sapp, “says” that juvenile M.H. was “neglected” and “abused”

as prohibited by enumerated Kentucky statutes, based on certain “grounds of belief.” Those

grounds are the handwritten paragraph quoted above. The form lists Jason and Kristin

Humphrey as “believed responsible” for abuse and neglect, respectively. It then lists the

juvenile’s address and the affiant’s name and address. The reverse side of the form requests

additional family information and requires the affiant’s sworn signature following the

sentence “[a]ffiant states the foregoing allegations are true based upon information and

belief.” Without a hearing, and based solely on the information contained in these forms, the

court issued an emergency custody order which allowed Sapp to take the Humphreys’

children into state custody.5


        5
         The forms were dated April 30, 2008. Upon their filing, a court date was set for May 1 for a
temporary removal hearing. It appears that the hearing actually took place on May 2, 2008, with both
parents, a county attorney, counsel for each of the parents and the juveniles, Sapp, and a guardian ad litem
No. 10-5543                                                                                                   8

        The Humphreys emphasize the decision of the administrative hearing officer that

resolved the later substantiation matter in Jason Humphrey’s favor, which we note was issued

months after the April/May 2008 events.6 Citing to and quoting from that decision, the

Humphreys argue that Sapp ignored evidence that M.H.’s injuries were accidental, and that

Sapp deliberately withheld evidence of M.H.’s retinal exam, which they assert “ruled out”

shaken baby syndrome as a cause of injury. This, the Humphreys assert, constituted the

“fabrication” of evidence by Sapp.

        Kalina , relied on by the Humphreys, stemmed from a criminal case. In Kalina, the

Supreme Court found that the prosecutor was not absolutely immune from liability for

actions she took in personally affirming the truth of statements contained in her certification




present. The resulting order gave custody of the children back to their mother and allowed limited visitation
by their father, but required that the father vacate the family residence pending further order of the court and
that one of the mother’s relatives move into the home pending the disposition of the proceedings. The order
noted that the father, Jason Humphrey, had stipulated to reasonable grounds of abuse of M.H. and that her
sibling was at risk of abuse.
        6
        The administrative hearing officer quoted from a written report issued by Drs. Pfitzer and Currie
of the University of Louisville School of Medicine, Department of Pediatrics, to the Department for
Community Based Services investigative worker Kimberly Sapp on April 29, 2008:

        It is possible that if the child fell six feet onto linoleum floor she could have a skull fracture
        with associated scalp swelling and underlying subdural hemorrhage. However, the severity
        (particularly the amount of separation of the fractured bones) of this fracture is significantly
        more than what we typically see with accidental falls. Further, the bleeding inside her head
        is not limited to the area of impact. It is scattered throughout the cranium. This implies a
        more global head injury that [sic] a simple contact fall. Also, given the concerning
        radiological impression as cited, a thorough investigation is warranted. In addition, there
        are unexplained rectangular petechial marks on the baby’s arm that imply that she sustained
        some sort of blunt trauma to that area. It is difficult to understand how a child could suck
        on her own arm and create a rectangular-shaped lesion.

The administrative hearing officer’s findings of fact also notes that Sapp filed a document called a
“Continuous Quality Assessment” form, which indicated that Sapp was informed the evening of April 29,
2008 that M.H.’s eye exam was normal and that it did not appear to be a case of shaken-baby syndrome.
No. 10-5543                                                                                                   9

of evidence that she was presenting to establish probable cause for an arrest warrant. See

Kalina, 522 U.S. at 131.7 In its discussion of the issue, the Supreme Court first determined

that the deputy prosecutor’s acts in preparing and filing related documents (the information

and motion for an arrest warrant) were protected by absolute immunity. It then noted that:

        Indeed, except for her act in personally attesting to the truth of the averments
        in the certification, it seems equally clear that the preparation and filing of the
        third document in the package was part of the advocate’s function as well.
        The critical question, however, is whether she was acting as a complaining
        witness rather than a lawyer when she executed the certification “[u]nder
        penalty of perjury.”

Id. at 129. Because the act of the deputy prosecutor in question, i.e. giving false attestation,

was not a matter of professional judgment but purely the function of a complaining witness,

absolute immunity did not apply. Id. at 131.

        Given the similarity between the Kalina prosecutor’s function and Sapp’s function

here, we conclude that absolute immunity does not bar the Humphreys’ § 1983 claim against

Sapp. The assertions made in Sapp’s affidavits, restating evidence gathered from other

witnesses, are analogous to those made by the deputy prosecutor in Kalina. We are,

therefore, unable to distinguish the circumstances of this case from the Kalina facts.

        Sapp has also presented the alternative defense of qualified immunity. Like absolute

immunity, qualified immunity is a bar to suit and should be resolved at the “earliest possible


        7
          In Kalina, the deputy prosecuting attorney signed a “Certification for Determination of Probable
Cause,” separate and independent of the application for the warrant, certifying that the foregoing was true
and correct under penalty of perjury. That certification included the statements, not attributed to any witness,
that the defendant—who was alleged to have burglarized a school—had “never been associated with the
school in any manner and did not have permission to enter the school or to take any property,” and that the
defendant had been identified in a photo montage. These statements were not accurate. Kalina, 522 U.S.
at 121.
No. 10-5543                                                                              10

stage in litigation.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011)

(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal citation omitted)). However,

we find that under the circumstances presented here, the district court should resolve this

issue in the first instance, and we express no opinion on this question.

       For the foregoing reasons, the judgment of the district court is REVERSED and we

REMAND for further proceedings consistent with this opinion.
