Berryman v. Niceta.
No. 23-1263. 7/8/2025. D.Colo. Judge Eid. Sexual Abuse Allegations—Child Abuse Caseworker—Qualified Immunity—Absolute Testimonial Immunity—Motion to Dismiss.
July 8, 2025
Niceta was a caseworker with the Arapahoe County Department of Human Services. She was assigned to investigate child abuse allegations against Berryman that he sexually abused his daughter Katelyn. At various stages of Niceta’s investigation and the following custody proceedings, she allegedly made false statements regarding Berryman’s purported abuse for the purpose of removing Berryman’s two daughters from his custody. These statements ultimately resulted in the removal of Berryman’s daughters for a year and a half. Niceta was ultimately removed from the child abuse investigation and proceedings, and the child abuse case was eventually dismissed. Berryman and his wife later regained custody, and they and their daughters collectively sued Niceta under 42 USC § 1983 alleging, among other things, that Niceta’s conduct violated the family’s Fourteenth Amendment procedural and substantive due process rights. Niceta moved to dismiss the claim, asserting, as relevant here, qualified immunity and absolute testimonial immunity for the statements she made at the custody hearing. The district court denied Niceta’s motion on all grounds.
On appeal, Niceta argued that the district court erroneously denied her motion to dismiss based on qualified immunity. A defendant raising a qualified immunity defense must explicitly raise the defense and plead it with more than a mere assertion, and may not merely rely on substantive legal arguments based on the Fed. R. Civ. P. 12(b)(6) failure to state a claim standard. A plaintiff can survive a motion to dismiss based on qualified immunity by sufficiently alleging facts to show that the defendant plausibly violated their constitutional rights and that those rights were clearly established at that time. Accordingly, if a defendant makes only a bare assertion of qualified immunity, the plaintiff does not have to satisfy the two-prong test. Here, Niceta made only a cursory argument that failed to analyze any facts within the applicable legal framework, so it lacks a clear factual or legal basis for asserting the defense. Further, she conflated her Rule 12(b)(6) arguments on the merits of the Berrymans’ substantive and procedural due process claims with the first prong of the qualified immunity analysis, which requires that the defendant’s actions violated a federal constitutional or statutory right. Thus, Niceta failed to adequately raise the defense, and the district court properly denied her motion to dismiss based on qualified immunity.
Niceta also argued that the district court erroneously denied her motion to dismiss based on absolute testimonial immunity. As relevant here, under the doctrine of absolute testimonial immunity, witnesses are generally entitled to absolute testimonial immunity from civil suits for damages based on their testimony, and this immunity bars all claims based on the witness’s testimony, including perjurious testimony. But absolute immunity will not attach in some circumstances. To determine whether a defendant is entitled to absolute immunity, courts use a functional approach that examines the functions that a particular official or class of officials has been lawfully entrusted with. The Tenth Circuit has held that where a social worker’s challenged conduct occurs while initiating an investigation or obtaining an initial, pre-adjudicatory removal, absolute immunity does not attach. But the Tenth Circuit has also held that social workers and caseworkers are entitled to absolute testimonial immunity when testifying as a witness under oath. The parties disputed whether Niceta’s statements during the temporary custody hearing were made in an investigatory capacity or as a testifying witness. The Tenth Circuit determined that a temporary custody hearing under Colorado law, even when occurring early in a child abuse investigation, is a true judicial proceeding. Accordingly, the Tenth Circuit held that Niceta is entitled to absolute immunity for the statements she made during her witness testimony at the custody hearing but not for statements made outside of that hearing.
The denial of Niceta’s motion to dismiss based on qualified immunity was affirmed. The denial of Niceta’s motion to dismiss based on absolute immunity was vacated and the case was remanded for the district court to determine whether the Berrymans’ allegations, less those regarding the testimonial statements for which Niceta is entitled to absolute immunity, are sufficient to state a claim for relief.