Opinion
No. HHD CV 09 5030385
June 2, 2010
MEMORANDUM OF DECISION
The plaintiff in this action is Gary Damato, who is appearing pro se. The defendant is James Thomas, who was formerly a state's attorney for the Judicial District of Hartford. The plaintiff states that he brings this action pursuant to article first, §§ 8, 10 and 14 of the Connecticut Constitution and Article Sixth of the Amendments of the Connecticut Constitution. Therein, the plaintiff alleges causes of action against the defendant in his "official and/or individual capacity or his ex capacities." According to the plaintiff, while the defendant was employed as a state's attorney, he engaged in the following deliberate, wanton and/or malicious conduct: signed a warrant for the plaintiff's arrest without conducting any research, which caused the plaintiff to be wrongfully held on a $3 million bond; failed to conduct a timely review of an assault warrant for a third party, namely, Jamal Savage, and failed to conduct an adequate investigation into Savage's conduct, which jeopardized the safety of the public and of the plaintiff's family; failed to adequately investigate felonious conduct by the state police; allowed the plaintiff to be assaulted by a state sheriff at a courthouse; and failed to conduct an adequate investigation into the sheriff's conduct or request a warrant to arrest the sheriff. The plaintiff seeks damages for the loss of his freedom; punitive and/or compensatory damages for pain and suffering, attorneys fees and costs. Pending before the court is the defendant's motion to dismiss the complaint on the ground that the court lacks subject matter jurisdiction over the claims alleged therein because the defendant is entitled to absolute immunity for the conduct that forms the basis for these claims to which the plaintiff filed an objection.
The defendant correctly acknowledges that our appellate courts have not expressly determined that the question of whether a defendant is entitled to absolute immunity implicates the subject matter jurisdiction of the court. Nevertheless, this court agrees with the several judges of the Superior Court who have decided that the question does pertain to subject matter jurisdiction based on a determination that the decision of the Connecticut Supreme Court in Chada v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005), "supports a conclusion that [the issue] does [pertain to subject matter jurisdiction]." Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2008, Bellis, J.). "In [ Chada], the [court] held that a motion for summary judgment [that was] granted on the basis of [a party's] absolute immunity [from prosecution for defamation] is a final judgment for purposes of appeal because `the purposes of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity [conferred upon states] . . . that is, to protect against the threat of suit.' . . . Id., 787. Accordingly, because the doctrine of absolute immunity shares with sovereign immunity the same purpose of protection against having to litigate at all, and because the doctrine of sovereign immunity implicates subject matter jurisdiction, this court joins the other Superior Courts that have held absolute immunity to be properly considered in a motion to dismiss." (Citation omitted; internal quotation marks omitted.) Day v. Smith, supra, Superior Court, Docket No. CV 07 4027999. See also Hanton v. Gworek, Superior Court, judicial district of New Haven, Docket No. CV 09 5027787 (November 12, 2009, Corradino, J.) (issue of defendant's entitlement to absolute judicial immunity implicates subject matter jurisdiction and is properly raised in motion to dismiss).
See Leseberg v. O'Grady, 115 Conn.App. 18, 21 n. 3, 971 A.2d 86 ("[t]he issue of whether a motion to dismiss on the ground of judicial immunity is jurisdictional was raised but not decided in Carruba v. Moskowitz, 274 Conn. 533, [537], 877 A.2d 773 (2005). We similarly do not need to decide the issue . . ."), cert. denied, 293 Conn. 913, 978 A.2d 1110 (2009).
See also Morgan v. Bubar, 115 Conn.App. 603, 608-09, 975 A.2d 59 (2009) (same).
A substantial portion of the defendant's memorandum consists of a word for word repetition of this portion of the Day v. Smith decision without proper attribution thereto.
Turning to the merits of the motion, "[w]hen, [as in the present case], a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . If . . . the defendant submits . . . no proof to rebut the plaintiffs jurisdictional allegations . . . the plaintiff need not supply . . . evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
"The doctrine of absolute prosecutorial immunity applies to civil rights suits brought under 42 U.S.C. § 1983 . . . as well as state law claims." (Citation omitted.) Marczeski v. Handy, United States District Court, Docket No. 3:01 CV 01437 (AHN) (D.Conn. June 5, 2002). Under both Connecticut and federal law, courts recognize that "[a]bsolute immunity . . . is strong medicine [Therefore] [t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." (Citation omitted; internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 540-41, 877 A.2d 773 (2005); Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). According to the United States Supreme Court, "the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns v. Reed, supra, 500 U.S. 486. See also Mangiafico v. Armstrong, 471 F.3d 391, 394 (2d Cir. 2006).
Unlike absolute immunity, "`qualified immunity' for [the] performance of discretionary acts . . . may be defeated by a showing of malice." DeLaurentis v. New Haven, 220 Conn. 225, 242-43, 597 A.2d 807 (1991).
Because prosecutorial immunity stems from judicial immunity, a brief overview of judicial immunity is instructive on the issue presented by the defendant's motion. "It is well established that a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge . . . This role of judicial immunity serves to promote principled and fearless decision-making by removing a judge's fear that unsatisfied litigants may hound him with litigation charging malice or corruption . . . Although we have extended judicial immunity to protect other officers in addition to judges, that extension generally has been very limited. This fact reflects an [awareness] of the salutary effects that the threat of liability can have . . . as well as the undeniable tension between official immunities and the ideal of the rule of law . . . The protection extends only to those who are intimately involved in the judicial process, including judges, prosecutors and judges' law clerks . . . Furthermore, even judges are not entitled to immunity for their administrative actions, but only for their judicial actions." (Citations omitted; internal quotation marks omitted.) Carrubba v. Moskowitz, supra, 274 Conn. 540-41.
Connecticut courts have relied on United States Supreme Court cases, "as well as cases from the federal courts of appeals, as providing support for the existence of prosecutorial immunity from civil actions in state court." Barese v. Clark, 62 Conn.App. 58, 65, 773 A.2d 946 (2001). Our Supreme Court has stated that "[t]he mantle of judicial immunity covers not only judges, but all adjuncts to the judicial process. In particular, prosecutors are immune form tort liability for their conduct as participants in the judicial proceeding. See Burns v. Reed, supra, [ 500 U.S. 486]; Imbler v. Pachtman, 424 U.S. 409, 422-24, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). . . . Prosecutorial immunity from suits for malicious prosecution and defamation arose from the similar `concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.' Imbler v. Pachtman, supra, 423. The key to the immunity . . . held to be protective to the prosecuting attorney is that the acts, alleged to be wrongful, were committed by the officer in the performance of an integral part of the judicial process." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 242, 597 A.2d 807 (1991).
While "[i]t is axiomatic that courts in Connecticut adjudicating matters of state law are not bound by a test that a federal court must apply"; Rosado v. Bridgeport Roman Catholic Diocese, 292 Conn. 1, 53, 970 A.2d 656, cert. denied, 130 S.Ct. 500, 175 L.Ed.2d 348 (2009); discussions of analogous federal laws by the federal courts may be instructive. See State v. Peloso, 109 Conn.App. 477, 489-90, 952 A.2d 825 (2008).
The United States Supreme Court addressed the issue of a state prosecutor's amenability to suit under 42 U.S.C. § 1983 in Imbler v. Pachtman, [ supra] . . . Although that case arose under 42 U.S.C. § 1983 and not under state common law, the court engaged in an extensive discussion concerning the existence of common law immunities for prosecutors . . ." Barese v. Clark, 62 Conn.App. 58, 61, 773 A.2d 946 (2001).
"A major consideration in allowing absolute immunity for prosecutors has been the recognition that disciplinary procedures exist to regulate prosecutorial misconduct. Imbler v. Pachtman, supra, 429. These traditional attorney disciplinary procedures eliminate the danger that absolute immunity will be used as a shield for prosecutorial misconduct." Massameno v. Statewide Grievance Committee, 234 Conn. 539, 568, 663 A.2d 317 (1995).
Thus, the immunity that applies to prosecutors is absolute, and not "qualified," in the sense that it shields them from liability for all of their conduct in the course of judicial proceedings, even if that conduct was malicious or wrongful. See Barese v. Clark, supra, 62 Conn. App. 64. Nevertheless, the immunity is limited, in that it only shields them from liability for conduct that they commit "in the performance of an integral part of the judicial process." (Internal quotation marks omitted.) DeLaurentis v. New Haven, supra, 220 Conn. 242.
In Barese, the court noted that in Imbler, the Supreme Court acknowledged that "`this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor [who acts] malicious[ly] or dishonest[ly] . . . But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest.' . . . The court also noted: `[W]e find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor's immunity from actions for malicious prosecution: "As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative . . . [I]t has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." Gregoire v. Biddle, 177 F.2d 579, 581 ([2d Cir.] 1949), cert. denied, 339 U.S. 949 [ 70 S.Ct. 803, 94 L.Ed. 1363] (1950).' Imbler v. Pachtman, supra, 424 U.S. 428." Barese v. Clark, supra, 62 Conn.App. 64.
The determination of whether a judge or prosecutor is entitled to absolute immunity for particular conduct "is made using a functional approach . . . [I]mmunities are grounded in the nature of the function performed, not the identity of the actor who performed it . . . [Thus], [a] judge is entitled to absolute judicial immunity unless the judicial conduct is so far outside the normal scope of judicial functions that the judge was in effect not acting as a judge . . . Judicial immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge's judicial capacity . . . Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." (Citations omitted; internal quotation marks omitted.) Leseberg v. O'Grady, 115 Conn.App. 18, 22, 971 A.2d 86, cert. denied, 293 Conn. 913, 978 A.2d 1110 (2009).
This is the same approach that the United States Supreme Court has employed in determining the boundaries that apply to prosecutorial immunity when prosecutors are sued for violating 42 U.S.C. § 1983. A federal district court provided the following informative survey of these cases in Mangiafico v. Blumenthal, 358 F.Sup.2d 6, 13-21 (D.Conn. 2005), affd, 471 F.3d 391 (2d Cir. 2006). "In its landmark decision in Imbler v. Pachtman, supra, the Supreme Court affirmed and clarified a number of circuit court decisions that had relied on a variety of grounds to grant state prosecutors absolute immunity from suits under [42 U.S.C.] § 1983 . . ."
" Imbler involved a prosecutor who was sued under § 1983 by a former defendant in a criminal action because the prosecutor allegedly had procured and knowingly used perjured testimony in that criminal action . . . [T]he Supreme Court held that a prosecutor's decision to initiate a criminal prosecution is entitled to absolute immunity from a civil suit for damages under § 1983. See Imbler, 424 U.S. at 422-28 . . .'"
"`Delineating the boundaries of [its] holding,' Imbler stated that a prosecutor is entitled to absolute immunity when he acts as an `advocate' for the government in activities that are `intimately associated with the judicial phase of the criminal process.' Id., at 430-31 . . . However, in a much-cited footnote, the Supreme Court also recognized that `the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues . . . At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court.' Imbler, 424 U.S. at 431 n. 33 . . ."
Imbler, therefore, established the two extremes of a government attorney's basic functions — that of an advocate and that of an administrator. When functioning as an advocate of the government in activities intimately associated with the judicial process, a government attorney receives absolute immunity; when functioning as an administrator, a government attorney receives only qualified immunity. `Drawing a proper line between these functions' was expressly left to future cases. Id. . . ." (Citations omitted.) Mangiafico v. Blumenthal, supra, 358 F.Sup.2d 14-15.
"In several decisions following Imbler . . . the Supreme Court had occasion to elaborate on the factors that determine where courts should draw the line between advocacy for the government, on the one hand, and investigative or administrative functions, on the other hand. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed. 2d 411 (1985), the court faced the question [of] whether the nation's chief law enforcement official — the Attorney General — was absolutely immune from claims arising from his decision to wiretap individuals as a part of the exercise of his national security functions . . . The Supreme Court concluded that he was not. Noting that (1) there was no historical or common law immunity for a government attorney's national security functions . . . (2) the conduct involved was not prosecutorial in nature and was divorced from the judicial process — the `primary well-spring' of absolute immunity . . . and (3) there were no alternative restraints on the Attorney General's activities in the name of national security . . . the Supreme Court held that the Attorney General was entitled only to qualified immunity for the exercise of his national security functions. Id. at 524 . . ."
"Six years later in Burns v. Reed, supra, the Supreme Court again revisited the line between those functions that require absolute immunity and those that do not. In Burns, the Court held that a prosecutor was absolutely immune from § 1983 liability for knowingly using misleading testimony during a probable cause hearing, but he was not entitled to immunity for giving erroneous advice to the police that there was probable cause to arrest a suspect and that the suspect could be questioned under hypnosis. Burns [ v. Reed], 500 U.S. at 492, 496 . . . In the Supreme Court's view, the prosecutor's actions in `appearing before a judge and presenting evidence in support of a motion for a search warrant' were done in his role as an "`advocate for the State," rather than [in] his role as [an] "administrator or investigative officer.'" Id . . ., at 491-92 . . . Appearing at the probable cause hearing was `intimately associated with the judicial phase of the criminal process' . . . and thus it was `connected with the initiation and conduct of the prosecution.' Burns [ v. Reed, supra], 500 U.S. 492 . . .
"By contrast, the Court found no historical or common law support for extending absolute immunity to the prosecutor's actions in providing legal advice to the police. Nor did the court find any significant risk of burdensome litigation in providing the prosecutor with only qualified immunity for such functions. Id. at 493-94 . . . `Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigations.' Id . . . That concern warranted absolute immunity only for actions by the prosecutor `that are connected with the prosecutor's role in judicial proceedings, not every litigation-inducing conduct.' Id.
"Two terms later, the Court considered whether a prosecutor was entitled to absolute immunity when he was sued under § 1983 for retaining a pliable expert to fabricate evidence during an investigation for the purposes of obtaining an indictment, and also for making false statements to the press at the public announcement of the indictment. In Buckley v. Fitzsimmons, [ 509 U.S. 259, 268, 113 S.Ct. 2006, 125 L.Ed.2d 209 (1993)], the Supreme Court held that neither function warranted absolute immunity. The Court held that when a prosecutor performs investigative functions normally performed by a detective or police officer that do not relate to an advocate's preparation for initiation of a prosecution or judicial proceedings, the prosecutor is not entitled to absolute immunity. [ Id.] at 274 . . .
"[More] recently, in Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), the Supreme Court considered whether a prosecutor was entitled to absolute immunity when sued under § 1983 for preparing an arrest warrant application that was based, in part, on false statements. The prosecutor's application contained three documents: (1) an unsworn information; (2) an unsworn motion for an arrest warrant; and (3) a sworn `Certificate for Determination of Probable Cause' that summarized the evidence supporting the charge, yet contained two inaccurate factual statements. Id., at 118-21 . . . Looking to its earlier cases for guidance, the Supreme Court concluded that preparation of the first two documents — the information and the arrest warrant — was entitled to absolute immunity because preparation of those documents fell squarely within the prosecutor's traditional tole as an advocate. Id., at 129 . . .
"The Court also acknowledged `that the preparation and filing of the third document . . . was part of the advocate's function.' Id . . . However, the Court noted, `[t]estifying about facts is the function of the witness, not of the lawyer . . . Even when the person who makes the constitutionally required "Oath or affirmation" is a lawyer, the only function that she performs in giving sworn testimony is that of a witness.' Id., at 130-31 . . . And when functioning as a witness in such circumstances, prosecutors are not entitled to absolute immunity because complaining witnesses `were not absolutely immune at common law.' Id., at 127 n. 14 . . ." (Citations omitted; emphasis in original.) Mangiafico v. Blumenthal, supra, 358 F.Sup.2d 16-18.
Last year, the United States Supreme Court addressed the scope of absolute immunity for prosecutors as it pertains to their administrative functions in Van de Kamp v. Goldstein, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009). Goldstein filed a § 1983 action against two supervising district attorneys that was based on the failure of their subordinates to provide him with impeachment-related information regarding a witness who testified against him in a criminal proceeding. He alleged that this occurred because the supervisors failed to adequately train or supervise the deputy district attorneys and to create a system to assure that such information was made available to the deputies.
The court acknowledged that in Imbler, "the Court made clear that absolute immunity may not apply when a prosecutor is not acting as an officer of the court, but is instead engaged in other tasks, say, investigative or administrative tasks . . . This case . . . requires us to consider how immunity applies where a prosecutor is engaged in certain administrative activities." (Citations omitted; internal quotation marks omitted.) Van de Kamp v. Goldstein, supra, 129 S.Ct. 861.
The court agreed with Goldstein that, "in making these claims, he attacks the office's administrative procedures . . . Even so, we conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of administrative legal claims at issue here. Those claims focus upon a certain kind of administrative obligation — a kind that itself is directly connected with the conduct of a trial. Here, unlike with other claims related to administrative decisions, an individual prosecutor's error in the plaintiff's specific criminal trial constitutes an essential element of the plaintiff's claim . . . [Therefore] we believe that absolute immunity must follow." Id., 861-62.
As to the supervisory conduct, the court noted that "the management tasks at issue . . . concern how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor's basic trial advocacy duties . . . [T]he type of `faulty training' claim at issue here rests in necessary part upon a consequent error by an individual prosecutor: in the midst of trial, namely, the plaintiffs trial . . . [T]he threat of . . . widespread liability throughout the office . . . [could] lead both that prosecutor and other office prosecutors as well to take account of such a risk . . . Moreover . . . permission to bring such a suit here would grant permission to criminal defendants to bring claims in other similar instances, in effect claiming damages for (trial-related) training or supervisory failings . . . Finally . . . defending prosecutorial decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials." (Citations omitted; internal quotation marks omitted.) Van de Kamp v. Goldstein, supra, 129 S.Ct. 863. Regarding the information system, the court concluded that "where a § 1983 plaintiff claims that a prosecutor's management of a trial-related information system is responsible for a constitutional error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself." Id., 864.
Turning to federal appellate case law, "[t]he Second Circuit has extended Imbler beyond a prosecutor's decision to bring criminal charges against a defendant. For example, in a mirror image to the factual setting of Imbler, the Second Circuit in Schloss v. Bouse, 876 F.2d 287 (2d Cir. 1989), held that a prosecutor's decision not to initiate a criminal prosecution was as protected by absolute immunity as his decision to prosecute. The court reasoned as follows . . . `[A]bsolute immunity from a damages suit for not prosecuting is warranted simply because the decision with respect to any given charge is an either-or proposition. A decision to prosecute logically eliminates the non-prosecution option, and vice versa . . . Thus, the contours of absolute immunity should be drawn to avoid skewing the prosecutor's judgment in either direction . . .' Id. at 290." (Emphasis in original.) Mangiafico v. Blumenthal, supra, 358 F.Sup.2d 18.
"Certain principles are apparent from the foregoing review of Supreme Court and Second Circuit case law: Government attorneys are entitled to absolute immunity when they function within the confines of their role as advocates of the government in activities or functions that are intimately or integrally associated with the judicial . . . process . . . When government attorneys act beyond the scope of their traditional role as advocates of the government and engage in activities that are properly seen as `administrative or investigative in nature,' they are entitled only to qualified immunity . . .
"That said . . . [it is] clear that a connection with an ongoing judicial proceeding is not invariably determinative of an attorney's status as a government advocate . . . [A]bsolute immunity protects even out-of-court activities of a government attorney, so long as the activities are at least closely associated with the judicial process and a concrete case or controversy . . .
When . . . a court is asked to accord absolute immunity to a government attorney's function or actions, the Supreme Court and Second Circuit instruct the court to consider whether three factors support or undermine the grant of absolute immunity for that particular function or action. These three factors are `(1) whether a historical or common law basis exists for immunity from suit arising out of the performance of the function, (2) whether performance of the function poses obvious risks of harassing or vexatious litigation against the official, and (3) whether there exist alternatives to damage suits against the official as a means of redressing wrongful conduct.' Barrett [ v. United States, 798 F.2d 565, 571 (2d Cir. 1986)] In sum, the case law teaches that a grant of absolute immunity to a government attorney for a particular function or action must be firmly grounded in history or the common law, must be employed sparingly to address only the most serious risks to the government attorney and the judicial process, and must be granted, if at all possible, only when other means of redress for legitimate grievances are available." (Citations omitted.) Mangiafico v. Blumenthal, supra, 358 F.Sup.2d 19-21.
The Connecticut Supreme Court employed a similar three-factor test in deciding whether a court-appointed attorney for a minor child was entitled to absolute immunity. See Carrubba v. Moskowitz, supra, 274 Conn. 542-43. Moreover, the court specifically recognized that "[a]bsolute immunity [is] not available . . . when persons who would normally be accorded immunity perform acts which are clearly outside the scope of their jurisdiction." (Internal quotation marks omitted.) Id., 544. As the court emphasized, "[t]he first prong of the test, the functional inquiry, by its very nature, must be performed on a case-by-case basis . . . [T]he functional inquiry ultimately hinges on the relevant functions performed by the defendant in the [particular] case." Id., 544-45.
A federal district court has provided the following useful summary of how the Second Circuit Court of Appeals has determined which type of prosecutorial conduct is shielded by absolute immunity: "In applying this functional approach, the Second Circuit has held that prosecutors are entitled to absolute immunity for conduct intimately associated with the judicial phase of the criminal process . . . In particular, `[s]uch immunity . . . extends to `acts undertaken by a prosecutor in preparing for trial, and which occur in the course of his role as advocate for the State.' Smith v. Bodak, 147 F.3d 91, 94 (2d Cir. 1998). On the other hand, `[w]hen a district attorney functions outside his or her role as an advocate for the People, the shield of immunity is absent. Immunity does not protect those acts a prosecutor performs in administration or investigation not undertaken in preparation for judicial proceedings.' Hill [ v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995)]; see also Carbajal v. County of Nassau, 271 F.Sup.2d 415, 421 (E.D. N.Y. 2003) (`[w]hen a prosecutor supervises, conducts, or assists in the investigation of a crime, or gives advice as to the existence of probable cause to make a warrantless arrest — that is, when he performs functions normally associated with a police investigation — he loses his absolute protection from liability').
"The Second Circuit has noted that `[t]he line between a prosecutor's advocacy and investigating roles might sometimes be difficult to draw.' Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir. 2000). The Court, however, may rely on certain established distinctions between these roles. For example, the Supreme Court `has identified "evaluating evidence and interviewing witnesses" as falling on the absolute immunity side of the line, leaving "searching for clues and corroboration" that might lead to a recommendation for an arrest on the qualified immunity side.' Smith [ v. Bodak, supra], 147 F.3d at 94 (quoting Buckley [ v. Fitzsimmons, supra], 509 U.S. at 273. Further the Second Circuit has specifically identified the juncture in the criminal process before which absolute immunity may not apply: `The majority opinion in [ Buckley] suggests that a prosecutor's conduct prior to the establishment of probable cause should be considered investigative: "A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.'" Zahrey [ v. Coffey, supra], 221 F.2d at 347 n. 2 (quoting Buckley [ v. Fitzsimmons, supra], 509 U.S. at 274 . . . However, the Supreme Court has also held that `a determination of probable cause does not guarantee a prosecutor absolute immunity for all actions taken afterwards. Even after that determination . . . a prosecutor may engage in "police investigative work" that is entitled to only qualified immunity.' Buckley [ v. Fitzsimmons, supra], 509 U.S. at 274 n. 5 . . . For instance, in interpreting Buckley, the Second Circuit has distinguished between `preparing for the presentation of an existing case' and attempting to `furnish evidence on which a prosecution could be based;' Smith [ v. Bodak, supra], 147 F.3d at 94; only the former entitles a prosecutor to absolute immunity. Id." (Citations omitted; internal quotation marks omitted.) Crews v. Nassau, United States District Court, Docket No. 06 CV 2610 JFB (WDW) (E.D. N. Y. December 27, 2007).
In the present case, the court is not required to apply the three factor test to all of the plaintiff's allegations against the defendant because courts have already addressed such claims in federal case law which Connecticut courts have relied upon for guidance as to the issue of the application of absolute immunity to government attorneys. Specifically, it is clear that the defendant has absolute immunity for his conduct as it pertains to his decision to sign a warrant for the arrest of the plaintiff; see Kalina v. Fletcher, supra, 522 U.S. 129; and for his decision not to pursue a warrant for the arrest of the third party, Jamal Savage, or for the sheriff who allegedly assaulted the plaintiff. See Schloss v. Bouse, supra, 876 F.2d 290. In addition, to the extent that the plaintiff alleges that the defendant caused the plaintiff's bail to be set at $3 million, the Second Circuit has concluded that "under the functional approach to immunity questions," a Connecticut prosecutor was entitled to absolute judicial immunity for his decision to increase the amount of an arrested person's bond. Root v. Liston, 444 F.3d 127, 132 (2d Cir. 2006). The foregoing activities meet the standard for prosecutorial immunity under Connecticut law because they "were committed by the officer in the performance of an integral part of the judicial process." (Internal quotation marks omitted.) DeLaurentis v. New Haven, supra, 220 Conn. 242.
Although the court did not decide whether state's attorneys are authorized to take such actions, it explained that because state law "authorizes state's attorneys to delay the release of prisoners under certain circumstances . . . [the state's attorney] possessed colorable authority to increase unilaterally the amount of [the plaintiff's] bond." Root v. Liston, supra, 444 F.3d 134.
On the other hand, the defendant is not entitled to absolute immunity in regard to the plaintiff's allegations that he failed to adequately investigate the conduct of Savage, of the state police, or of the sheriff. Such conduct does not meet the first prong of the test for such immunity in that it does not implicate the defendant's judicial role, but rather pertains to "activities that are properly seen as `administrative or investigative in nature,' [for which] [prosecutor's] are entitled only to qualified immunity." Mangiafico v. Blumenthal, supra, 358 F.Sup.2d 20. As the court stated in Burns v. Reed, supra, 500 U.S. 495-96, "Almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision [of] whether to prosecute, but we have never indicated that absolute immunity is that expansive . . . Indeed, we implicitly rejected the United States' argument in Mitchell [ v. Forsyth, supra, 472 U.S. 511] where we held that the Attorney General was not absolutely immune from liability for authorizing a warrantless wiretap. Even though the wiretap was arguably related to a potential prosecution, we found that the Attorney General `was not acting in a prosecutorial capacity,' and thus was not entitled to the immunity recognized in Imbler. Id., at 521." "Absolute immunity does not protect such alleged misconduct that [takes] place in the course of participation in and supervision of criminal investigations." Crews v. Nassau, supra, United States District Court, Docket No. 06 CV 2610.
Furthermore, as to the third prong, in Burns, the court observed, "we note that one of the most important checks, the judicial process, will not necessarily restrain out-of-court activities by a prosecutor that occur prior to the initiation of a prosecution . . . This is particularly true if a suspect is not eventually prosecuted. In those circumstances, the prosecutor's action is not subjected to the crucible of the judicial process." (Internal quotation marks omitted.) Burns v. Reed, supra, 500 U.S. 496.
Finally, the defendant is not entitled to prosecutorial immunity in regard to the plaintiff's allegations that he allowed the plaintiff to be assaulted by the state sheriff. This conduct is not conduct that is generally performed by a prosecutor, and, assuming it occurred, was not committed "in the performance of an integral part of the judicial process." Moreover, the defendant has not cited to any authority for the proposition that prosecutors are entitled to absolute immunity for such conduct. Therefore, it does not meet the first prong of the test for absolute immunity.
Regarding the second prong, because of the nature of this conduct, exposing prosecutors to liability for engaging in such acts is not likely to impede their ability to perform their legitimate functions. As to the third prong, although prosecutors are subject to discipline for violating the Code of Professional Conduct, and may be removed from office under General Statutes § 51-278b for engaging in misconduct, such discipline would not be adequate if these particular allegations prove to be true.
CONCLUSION
For the foregoing reasons, the defendant is entitled to absolute immunity for the plaintiff's allegations that he signed a warrant for the plaintiff's arrest without conducting any research which caused the plaintiff to be wrongfully held on a $3 million bond and for his decision not to sign a warrant for the arrest of Savage or the sheriff. Therefore, the motion to dismiss is granted as to the allegations regarding this conduct. However, because the defendant is not entitled to absolute immunity for the plaintiff's allegations that he failed to conduct an adequate investigation of Savage, of the state police or of the sheriff, or that he allowed the plaintiff to be assaulted by the sheriff, the motion to dismiss is denied as to the plaintiff's claims regarding this conduct.