J.t.h.; H.d.h. v. Missouri Department of Social Services Children’s Division

United States Court of Appeals
For the Eighth Circuit
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No. 21-2433
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J.T.H.; H.D.H.
Plaintiffs - Appellees
v.
Missouri Department of Social Services Children’s Division
Defendant
Spring Cook
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: January 13, 2022
Filed: July 1, 2022
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Before BENTON, SHEPHERD, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Two parents sued a child-welfare investigator for allegedly retaliating against
them for exercising their First Amendment rights. The magistrate judge, acting by

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consent of the parties, concluded that neither absolute nor qualified immunity
applied. We reverse.
I.
A sheriff’s deputy sexually abused J.T.H.’s 15-year-old son. J.T.H., who also
worked in law enforcement, threatened to sue for the abuse. Before long, Spring
Cook, a child-welfare investigator, showed up at his door after someone had
apparently called the child-abuse hotline and accused him (and his wife) of neglect.
The parents asked for the case to be reassigned to an investigator from another
county, but Cook kept it for herself.
From there, the investigation took several twists and turns. After conducting
several home visits, Cook allegedly told J.T.H. that she would “get[]” his peace-
officer’s license, which led the family to “refuse[] further home visits.” Not long
after, Cook issued a preliminary written finding of neglect. See Mo. Rev. Stat.
§ 210.152.2(1). She relied on two incidents of sexual abuse: the one involving the
sheriff’s deputy and another involving a martial-arts instructor. Cook additionally
noted that the parents had permitted their son to go on a date in another state with a
teenage boy. If the finding had become final, the parents would have been placed
on Missouri’s Child Abuse and Neglect Registry. See Mo. Rev. Stat. § 210.109.3(1),
210.110(3).
Unsatisfied with the outcome, the parents requested a formal administrative
review. See Mo. Rev. Stat. § 210.152.4 (providing that “[a]ny person named in an
investigation as a perpetrator . . . may seek an administrative review by the child
abuse and neglect review board”). At the first step, the circuit manager decides
whether to uphold the preliminary finding. See Mo. Code Regs. Ann. tit. 13, § 35-
31.025(2)(B) (2008). As it happens, Cook was the circuit manager, so she reviewed
and upheld her own finding. The second step required Cook, the parents, and their
attorney to appear before Missouri’s Child Abuse and Neglect Review Board. Id.
§ 35-31.025(2)(C). Following that meeting, the Board concluded that Cook’s
findings of “neglect were unsubstantiated.”

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After clearing their name, the parents sued Cook on a First Amendment
retaliation theory. See 42 U.S.C. § 1983. According to them, the investigation and
its aftermath were a direct response to their earlier threat to sue. Cook filed a motion
to dismiss on both absolute- and qualified-immunity grounds, but the magistrate
judge concluded that neither was available.
II.
Questions about absolute and qualified immunity at the motion-to-dismiss
stage are reviewed de novo. See Sandknop v. Mo. Dep’t of Corr., 932 F.3d 739, 742
(8th Cir. 2019). Our review “is limited to the facts alleged in the . . . [c]omplaint,
which we accept as true and view most favorably to the plaintiffs.” Stanley v.
Finnegan, 899 F.3d 623, 625 (8th Cir. 2018); see also Sandknop, 932 F.3d at 742.
Absolute immunity, the “strong[er] medicine,” is available only in limited
circumstances. Forrester v. White, 484 U.S. 219, 230 (1988) (quotation marks
omitted). It covers “judicial or adjudicative” acts, id. at 229; legislative acts coming
within the Speech and Debate Clause, see id. at 224; and, as relevant here,
prosecutorial acts, see Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976). If absolute
immunity existed for a particular government function in 1871, when Congress
passed 42 U.S.C. § 1983, then it still does today. See Forrester, 484 U.S. at 225–
26; see also Imbler, 424 U.S. at 417–18. As its name suggests, absolute immunity
applies absolutely and without qualification.
Qualified immunity is different. On the one hand, it covers a vast array of
actions, from split-second judgment calls to carefully crafted decisions. See Goffin
v. Ashcraft, 977 F.3d 687, 691 (8th Cir. 2020); Turning Point USA at Ark. State Univ.
v. Rhodes, 973 F.3d 868, 873–74, 881 (8th Cir. 2020). In other ways, it is narrower:
government actors only benefit from it if their actions did not violate a clearly
established right. See McManemy v. Tierney, 970 F.3d 1034, 1038 (8th Cir. 2020).
As the Supreme Court has put it, “the right’s contours [must have been] sufficiently
definite that any reasonable official in the defendant’s shoes would have understood

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that he was violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting
Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014)).
A.
Differentiating between the two can be tricky. Determining which applies
depends on “‘the nature of the function performed, not the identity of the actor who
performed it.’” Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (quoting
Kalina v. Fletcher, 522 U.S. 118, 127 (1997)).
Applying the “functional approach,” our starting point is the investigation
itself, which involved interviewing witnesses and collecting evidence. See
Forrester, 484 U.S. at 224 (noting that “[r]unning through our cases, with fair
consistency, is a functional approach to immunity questions” (internal quotation
marks omitted)). Purely investigative activities, even those conducted by a social
worker, “do not qualify for absolute immunity.” Schenk, 461 F.3d at 1046; see also
Beltran v. Santa Clara Cnty., 514 F.3d 906, 908–09 (9th Cir. 2008) (en banc) (per
curiam) (“[S]ocial workers conducting investigations have no [absolute]
immunity.”); Achterhof v. Selvaggio, 886 F.2d 826, 830 (6th Cir. 1989) (holding that
a social worker’s “decision to ‘open a case’ was not entitled to absolute immunity”
because the “decision was only investigatory or administrative in nature”).
Nor does filing an “investigation report,” the final step in Cook’s
investigation. See Mo. Rev. Stat. § 210.152.1, 2(1). Like a probation officer who
files a violation report, Cook’s task was to make a preliminary “finding” on the issue
in front of her. Mo. Code Regs. Ann. tit. 13, § 35-31.025(2) (2008); see Ray v.
Pickett, 734 F.2d 370, 373–75 (8th Cir. 1984); Nelson v. Balazic, 802 F.2d 1077,
1079 (8th Cir. 1986). To be sure, the setting was different: a child-welfare
investigation rather than a criminal one. And the standard was different: a
preponderance of the evidence instead of probable cause. But the “function” was
more or less the same, meaning that neither is a “prosecutorial” act subject to
absolute immunity. See Ray, 734 F.2d at 373–75 (holding that there is no absolute

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immunity for filing a probation violation report); see also Millspaugh v. Cnty. Dep’t
of Pub. Welfare of Wabash Cnty., 937 F.2d 1172 (7th Cir. 1991) (explaining that a
social worker’s application for a child-custody order “was much like a police
officer’s affidavit seeking a search warrant, . . . which . . . falls outside the scope of
absolute immunity”); Austin v. Borel, 830 F.2d 1356, 1362 (5th Cir. 1987)
(concluding that the same act was “functionally comparable to a police officer
seeking an arrest warrant”).
B.
Qualified immunity is another story. It is available if the parents’ complaint
did not state “a plausible claim for violation of a constitutional or statutory right” or
the “right was [not] clearly established at the time of the alleged infraction.” Hager
v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).
Here, the complaint falls short of establishing that Cook violated a clearly
established right. See id. Even assuming that the facts in the complaint are true and
drawing all reasonable inferences in the parents’ favor, “existing precedent” does
not “place[] . . . the constitutional question beyond debate.” Kisela, 138 S. Ct. at
1152 (citation omitted). After all, we have never recognized a retaliatory-
investigation claim of this kind. Nor have other courts around the country, which
have either rejected the possibility outright or concluded, like we do today, that the
law is still in flux.1 It is safe to say, in other words, that the law is anything but clear.
1See Villarreal v. City of Laredo, Tex., 17 F.4th 532, 542 n.1 (5th Cir. 2021)
(holding that “this circuit does not recognize” a retaliatory-investigation claim);
Lincoln v. Maketa, 880 F.3d 533, 540 (10th Cir. 2018) (“The Supreme Court has
declined to consider whether a retaliatory criminal investigation entails a
constitutional violation. Other circuits disagree with one another on the issue.”
(citation omitted)); Archer v. Chisholm, 870 F.3d 603, 620 (7th Cir. 2017) (“There
is no clearly established rule of law under which an official pursuing a lawful
investigation, based on probable cause, has been found liable under the First
Amendment to a target.”); Rehberg v. Paulk, 611 F.3d 828, 850–51 (11th Cir. 2010)
(noting that “[t]he Supreme Court has never defined retaliatory investigation,

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It makes no difference that, “as a general matter, the First Amendment
prohibits government officials from subjecting an individual to retaliatory
actions . . . on the basis of . . . constitutionally protected speech.” Solomon v. Petray,
795 F.3d 777, 787–88 (8th Cir. 2015) (quotation marks and brackets omitted)
(emphasis added). The Supreme Court has instructed us “not to define clearly
established law at a high level of generality.” Kisela, 138 S. Ct. at 1152 (quotation
marks omitted). So even if there is a general right to be free of retaliation, the law
is not clearly established enough to cover the “specific context of the case”:
retaliatory investigation. Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (emphasis
added). Cook is entitled to qualified immunity for both investigative acts.
C.
By the time she reviewed her own finding as circuit manager, however, there
was no longer an open investigation. To the contrary, her job at that point was to
review the report and either “uphold or reverse” it. Mo. Code Regs. Ann. tit. 13,
§ 35-31.025(2)(B) (2008). Unsurprisingly, she stood by her own work.
We have already held that absolute immunity is available for functions like
this one. See Stanley v. Hutchinson, 12 F.4th 834 (8th Cir. 2021). In Stanley, two
parents sued after a child-welfare investigator made a “‘find[-]true’ determination,”
which had the effect of upholding the initial allegations of child abuse. Id. at 844.
We concluded, as relevant here, that “[t]he true findings may have initiated the
administrative hearings regarding child abuse, but this was a prosecutorial decision
meriting absolute immunity.” Id.; see also Barber v. Miller, 809 F.3d 840, 844 (6th
Cir. 2015) (“[S]ocial workers enjoy absolute immunity when acting in their
capacities as legal advocates,” which includes “initiating court proceedings” and
“filing child-abuse complaints.”).
standing alone, as a constitutional tort, and neither has this Court,” and holding that
the “right to be free from a retaliatory investigation is not clearly established”
(citation omitted)).

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Little separates Cook’s decision to uphold her own preliminary finding from
the find-true determination in Stanley. Elsewhere in their brief, the parents point out
that Stanley did not involve a First Amendment claim. But as we have explained,
the availability of absolute immunity depends on “the nature of the function
performed,” not the type of claim brought. Forrester, 484 U.S. at 229.
III.
We accordingly reverse the judgment and remand for dismissal of the parents’
First Amendment retaliation claim.
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