                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-1250
                                     ___________

David Perez, husband; Pauline            *
McBride, wife,                           *
                                         *
             Appellants.                 * On Appeal from the United States
                                         * District Court for the District of
      v.                                 * South Dakota.
                                         *
Matthew F. Gaffey, duly                  *
appointed, qualified, and acting         * [UNPUBLISHED]
Deputy States Attorney of Charles        *
Mix County; Roy King, a duly             *
appointed, qualified and acting social   *
worker of the State of South             *
Dakota; Sally Winter, an individual,     *
                                         *
             Appellees.                  *
                                    ___________

                              Submitted: November 16, 1998
                                  Filed: December 10, 1998
                                   ___________

Before BOWMAN, Chief Judge, BRIGHT, and MAGILL, Circuit Judges.
                             ___________

PER CURIAM.
                                           I.

      David Perez and Pauline McBride brought this § 1983 civil rights claim, alleging
the constitutional tort of malicious prosecution, in violation of Perez’ right to be free
from unlawful arrest and of McBride’s rights to a personal (marriage) relationship with
Perez. The complaint named as defendants Matthew F. Gaffey, a deputy states attorney
for Charles Mix County in South Dakota, who instituted prosecution of Perez; Roy
King, a social worker in South Dakota; and Sally Winter, a banker who testified as a
witness before a grand jury for Charles Mix County. Determining that absolute
immunity extended to all defendants, the district court dismissed the case on summary
judgment. We affirm on the grounds that absolute immunity applies to prosecutor
Gaffey and grand jury witness Winter. With respect to King, the record establishes
qualified immunity as a matter of law, although not absolute immunity.

                                            II.

      In 1995, when McBride failed to report to her physician for blood examinations,
the physician’s assistant, Beth Schroeder, contacted Roy King, an Adult Services and
Aging social worker in South Dakota. Ms. Schroeder expressed an opinion that perhaps
David Perez, McBride’s forty-year-old husband, may have prevented McBride, age
eighty-five, from obtaining treatment.

       Investigation and presentation before the grand jury led to an indictment against
Perez for theft by deception and theft by exploitation, and his subsequent arrest. Upon
mutual agreement, a medical doctor examined McBride and determined her to be
competent to make decisions regarding her property; and prosecutor Gaffey voluntarily
dismissed the criminal case. The plaintiffs then brought this suit in federal court, joining
a state law claim for malicious prosecution.

      Magistrate Judge Mark Marshall, before whom the case was heard, properly
granted summary judgment in favor of Gaffey and Winter. The record shows that
Gaffey acted solely as a prosecutor in this case and, as such, properly received absolute
immunity. Imbler v. Pachtman, 424 U.S. 409, 427 (1976) (holding that absolute
immunity is available to prosecutors defending against § 1983 actions). Similarly, the

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record shows that Winters, whose participation in the case related to her testimony
before the grand jury, properly received absolute immunity. See Strength v. Hubert, 854
F.2d 421, 424 (11th Cir. 1988) (holding that, because witness testimony at a grand jury
hearing is a function that is intimately associated with a judicial phase of the criminal
process, absolute immunity should be granted to grand jury witnesses); San Filippo v.
U.S. Trust Co. of NY, Inc., 737 F.2d 246, 254 (2d Cir. 1984) (noting that, although the
United States Supreme Court left this question open, “it must follow that grand jury
witnesses should be similarly protected”); Kincaid v. Eberle, 712 F.2d 1023, 1023-24
(7th Cir. 1983) (finding that common law gave absolute immunity to grand jury
witnesses, and that the same policy considerations that are significant in trial witness
testimony exist in grand jury witness testimony); see also, Myers v. Bull, 599 F.2d 863,
866 (8th Cir. 1979) (holding that absolute immunity applies to witnesses who testify at
a deposition).

       Additionally, although the magistrate judge granted King absolute immunity as
a grand jury witness, we note that the ruling did not take into account King’s
investigatory activities. Nonetheless, the record supports a finding that King, as a social
worker investigator, is clothed with the same qualified immunity as a police officer. See
Manzano v. South Dakota Dep’t of Soc. Serv., 60 F.3d 505 (8th Cir. 1995) (holding that
various state officials, including social workers, were entitled to qualified immunity for
child abuse investigations); Lux by Lux v. Hansen, 866 F.2d 1064 (8th Cir. 1989)
(concluding that a social worker who investigated into child abuse reports was entitled
to qualified immunity).

      Finally, the federal case, as well as the state case, failed on grounds that the
record does not disclose any evidence of malice by any defendant.

      Accordingly, we affirm the district court’s grant of summary judgment to all
defendants.


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A true copy.

      Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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