A federal judge has dismissed part of a lawsuit brought against a former Hamilton County child abuse prosecutor, while leaving other parts in.
Mary Sullivan Moore had been sued in Federal Court for allegedly overstepping her bounds in a custody case. Ms. Moore, who ran unsuccessfully for General Sessions Court judge and is no longer a prosecutor, earlier said she acted to protect the child.
Judge Sandy Mattice, in a 23-page opinion, threw out part of the case, saying Ms. Moore had immunity as a prosecutor. He threw out claims involving a custody hearing in Juvenile Court in the case.
But he allowed claims to remain involving actions outside the custody hearing in her individual capacity and claims of negligence, malicious prosecution, abuse of process, intentional infliction of emotional distress and defamation in her official and individual capacities.
The $10 million suit said Ms. Moore gave "false testimony" in a Juvenile Court hearing in the case. Ms. Moore denied the charge, and said she acted in the child's behalf. She said Chattanooga Police should have brought abuse charges in the case, but she said the stepmother of the child is the sister of Police Sgt. Edwin McPherson.
No assault charges were brought against the stepmother, though Ms. Moore said the child told her that Karen Haywood choked her until she was unconscious.
City Police did bring charges against the mother, Elizabeth Renee Jackson of Norcross, Ga., for custodial interference. The charge was dismissed in General Sessions Court, then was taken to the Hamilton County Grand Jury. Juvenile Court Referee Bruce Owens awarded custody to the mother, and the child remains with her.
Ms. Haywood and her husband, Michael Haywood, are suing Ms. Moore and Ms. Jackson in the complaint brought by attorney Robin Flores.
It says, "Defendants humiliated plaintiffs, subjected plaintiffs to mental anguish and emotional distress, and maliciously prosecuted plaintiffs by virtue of submitting false testimony to the Juvenile Court for Hamilton County in an attempt to prevent the plaintiffs from exercising their rights to seek redress through the criminal courts of the state of Tennessee."
It says Ms. Moore and Ms. Jackson conspired to deprive them of their rights.
The suit says Michael Haywood was the primary custodial parent of the child prior to June 20, 2005. It says he and his wife are black and Ms. Jackson, the child's biological mother, is white. It says the child lived with the Haywoods for seven years prior to the alleged choking incident.
The suit says on June 7 of last year, Officer Brian Lockhart and other city officers responded to 3830 Grace Ave. on a report of child abuse. It says Ms. Jackson stated that the child had called her and said the Haywoods were arguing and she got between the couple and the stepmother pushed and choked her.
It says Officer Lockhart said he would refer the matter to Sgt. Kevin Akins of the Chattanooga Police Child Abuse/Domestic Violence unit and to the Department of Children's Services.
The suit says Officer Lockhart then drove to the Haywood home "and learned from the stepmother that she and the father were arguing, that the child got in between the argument, and that she pushed the child out of the confrontation."
The suit says the Haywoods agreed that the child should spend the rest of the week in Georgia with Ms. Jackson. It says she was to bring the child back the following Sunday, June 11, but she kept the child.
It says when the Haywoods called Ms. Jackson she told them she was advised by Ms. Moore she did not have to bring the child back.
The suit says Angie Webb of the Department of Children's Services fully investigated the incident and ruled it "unfounded." It says Sgt. Akins came to the same conclusion.
Michael Haywood said he went to Georgia to get the child back and got Gwinnett County officers to serve warrants on Ms. Jackson. But he said Ms. Moore told the Gwinnett officers not to serve the warrants.
The suit says the child has remained in Georgia, and Ms. Jackson refuses to allow any contact with her.
The suit says, "The actions taken by the defendants amounted to the unlawful and unreasonable seizure of the child from the lawful custody of the father, and were the direct and proximate cause of plaintiffs' injuries and needless suffering."
The suit says Ms. Moore committed "perjury" in several statements, including that the stepmother admitting choking the child.
Ms. Moore said the mother brought the child in to the district attorney's office, and investigator Ed Bateman saw the child's throat injuries.
Ms. Moore said she was then notified and she also saw bruises around the girl's throat. She said she was advised the child was choked until she was unconscious and her stepbrother had to throw cold water on her.
Ms. Moore said, "I don't know why the stepmother was not charged." She said the case should have been documented, but she said she has not seen any documentation.
Judge Mattice was ruling on motions by Ms. Moore to dismiss or for summary judgment in her favor.
The ruling says, "The question is whether Moore was functioning in an enforcement role and acting as an advocate for the state in the custody case. The Court concludes that she was. Certainly, a prosecutor would be absolutely immune from suit for her decision to prosecute a parent for child abuse. In this instance, however, Moore, who serves as the 'Hamilton County child abuse prosecutor' made certain statements regarding the alleged abuse of a child at a hearing concerning a motion for temporary custody of that child. Based on what the Court can discern from the transcript of the custody hearing, the Court concludes that Defendant Moore’s appearance at that hearing was made in her capacity as a child abuse prosecutor for the purpose of effecting the removal of an alleged victim of child abuse from the home of his or her alleged abuser. Thus, the Court finds that Moore’s statements were made in the course of her advocacy on behalf of the state of Tennessee in support of the state’s important and overwhelming interest in protecting children from abuse. Moore was advocating on behalf of that interest, not on behalf of a particular party to the custody dispute. This Court concludes that absolute immunity also should be extended to the prosecutor in this situation.
"The Court cautions, however, that its holding that Defendant Moore is entitled to prosecutorial immunity for the statements she made at the custody hearing is a narrow one and relies very heavily on the particular facts of this case. In our justice system, prosecutors are inherently bestowed with enormous power and discretion which must be constrained and checked by the system. While prosecutorial immunity provides absolute immunity for certain acts taken within the scope of a prosecutor’s duties, it is important to recognize that prosecutors do not enjoy a roving license to 'do good.'
”In particular, prosecutors do not possess an unfettered right to insinuate themselves into civil or other proceedings in which they are not counsel of record. While the facts of this case dictate the conclusion reached by the Court today, the Court emphasizes that this holding is confined to the facts of this case and should not be thought or presumed to encompass any other set of facts."
But he said he would not dismiss claims that could "contain an element of wilfulness or maliciousness" against Ms. Moore.