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holding that probation officer who allegedly submitted probation revocation petition on the basis of conduct that probation officer should have known could not have been committed by the plaintiff and requested that court authorize plaintiff's arrest prior to probation revocation hearing was not entitled to quasi-judicial immunity because his conduct was more akin to that of police officer than that of prosecutor deciding whether to initiate proceedings, citing, inter alia, Swift
Summary of this case from Hernandez v. City of OakleyOpinion
No. CV-08-00050-PHX-NVW.
April 14, 2008
ORDER
Before the court is Defendant Gretchen Spier ("Spier") and Defendant State of Arizona's Motion to Dismiss based on Rules 1, 2, 4, 5, and 6 of the Federal Rules of Civil Procedure. (Doc. # 4.) On December 5, 2007 Plaintiff Neil Davis ("Davis") filed his Complaint in the Superior Court of Arizona seeking compensatory, consequential, and special damages for claims under 42 U.S.C. § 1983 and Arizona tort law. Defendants Chris Western ("Western") and the City of Casa Grande removed the case to this court pursuant to 28 U.S.C. § 1331.
I. Background
II. Scope of the Motion
Zimmerman v. City of Oakland,255 F.3d 734737Fourth Fourteenth 42 U.S.C. § 1983Will v. Mich. Dep't of State Police,491 U.S. 5871
Though defendants have attached additional evidentiary documents along with their motion, the court declines to convert the motion into one for summary judgment and excludes the documents from consideration.
The remaining issue presented by this motion is whether Spier is absolutely immune from Davis's federal and state claims against her in her individual capacity. Among the powers and duties that Arizona law provides to probation officers are:
. . .
2. Exercise general supervision and observation over persons under suspended sentence, subject to control and direction by the court.
3. Serve warrants, make arrests and bring persons before the court who are under suspended sentences. The officer has the authority of a peace officer in the performance of the officer's duties.
. . .
6. Obtain and assemble information concerning the conduct of persons placed under suspended sentence and report the information to the court.
7. Bring defaulting probationers into court when in the probation officer's judgment the conduct of the probationer justifies the court to revoke suspension of the sentence.
. . . .
III. Immunity from § 1983 Claims Under Federal Law
Spier moves to dismiss the § 1983 claims because she is entitled to absolute immunity for her actions. Two forms of immunity shield state government officials sued in their individual capacities under § 1983. Most officials receive qualified immunity, which shields them from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Absolute immunity, on the other hand, is a complete defense to an action for civil damages and is reserved to those persons "performing a duty functionally comparable to one for which officials were rendered immune at common law." Swift v. State of California, 384 F.3d 1184, 1190 (9th Cir. 2004) (quoting Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003) (en banc)). Such persons include judges performing judicial acts, grand jurors acting within the scope of their duties, prosecutors in their roles as advocates, and witnesses testifying in court.
See Imbler v. Pachtman, 424 U.S. 409, 422-23 and n. 20 (1976) (discussing the immunity granted to judges and grand jurors at common law).
Kalina v. Fletcher, 522 U.S. 118, 125-27 (1997).
See Burns v. Reed, 500 U.S. 478, 489-90 (1991) (discussing the immunity granted to witnesses at common law).
"An official derives the appropriate degree of immunity not from his or her administrative designation but by the function he or she performs." Swift, 483 F.3d at 1188 (quoting Anderson v. Boyd, 714 F.2d 906, 908 (9th Cir. 1983)). Thus, judges receive only qualified immunity when performing administrative functions. Forrester v. White, 484 U.S. 219 (1988). Prosecutors receive only qualified immunity when acting as investigators, Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993), and when swearing to the truth of facts underlying applications for arrest warrants, Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997). The Supreme Court has emphasized:
[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been quite sparing in our recognition of absolute immunity, and have refused to extend it any further than its justification would warrant.Burns v. Reed, 500 U.S. 478, 486-87 (1991) (citations and internal quotation marks omitted).
Spier bases her absolute immunity claim on the immunity provided to judges and prosecutors. She argues that absolute judicial immunity bars Davis's claim because it "was the Honorable Stephen F. McCarville of the Pinal County Superior Court (not Spier) who ordered that Davis be arrested and held without bond pending the outcome of his probation violation hearing." (Reply, doc. # 9 at 2.) Davis is not, however, seeking liability for the judge's decision to issue the arrest warrant. Rather, he claims liability for Spier's actions in seeking the arrest warrant and the petition to revoke probation.
Spier also argues that her actions should receive judicial immunity because her duties to investigate the charges and petition to revoke Davis's probation are related to the judge's decision to issue the bench warrant. She relies on the reasoning of an Arizona Court of Appeals panel, which stated: "The relationship between the probation officers' investigating/reporting function and the judge's sentencing function supports absolute immunity." Desilva v. Baker, 208 Ariz. 597, 603, 96 P.3d 1084, 1090 (Ct.App. 2004). Our circuit rejected that reasoning in Swift v. State of California, 384 F.3d at 1190.
Swift concerned the immunity of parole officers. Parole board members receive quasi-judicial absolute immunity for their decisions "`to grant, deny, or revoke parole' because those functions are `functionally comparable' to tasks performed by judges." Id. at 1189 (quoting Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981)). The parole officers in Swift argued that they should also receive absolute immunity because their acts were related to the parole board's quasi-judicial function. Specifically, they had investigated a suspected parole violation, authorized the arrest of the parolee, and recommend initiation of parole revocation proceedings. The court rejected their argument and concluded that after Antoine v. Byers Anderson, Inc., 508 U.S. 429 (1993), "the relation of the action to a judicial proceeding . . . is no longer a relevant standard." Swift, 483 F.3d at 1190 (citing Miller, 335 F.3d at 897). "[W]e must determine not whether an action `relates to' the decision to grant, deny, or revoke parole . . . but whether an action is taken by an official `performing a duty functionally comparable to one for which officials were rendered immune at common law.'" Id.
Similarly in Beltran v. Santa Clara County, 491 F.3d 1097 (9th Cir. 2007), rev'd en banc, 514 F.3d 906 (9th Cir. 2008), social workers argued that they should be afforded absolute immunity for investigating and filing dependency petitions with a court. The original three judge panel had followed precedent and held that the social workers were absolutely immune because their duties had the "requisite connection to the judicial process." 491 F.3d at 1100 (following Doe v. Lebbos, 348 F.3d 820, 825 (9th Cir. 2003)). The court vacated the panel's decision and overruled Lebbos at rehearing en banc, stating, "Parties to section 1983 suits are generally entitled only to immunities that existed at common law." 514 F.3d at 906.
To merit absolute immunity, probation officers' duties to investigate probation violations and petition to revoke probation must be functionally comparable to duties that received absolute immunity at common law. The majority of federal courts have decided that, at least where an arrest warrant is sought, probation officers should not receive absolute immunity for such duties. Griffin v. Leonard, 821 F.2d 1124, 1125 (5th Cir. 1987); Ray v. Pickett, 734 F.2d 370, 374 (8th Cir. 1984); Galvan v. Garmon, 710 F.2d 214, 215 (5th Cir. 1983); Callaway v Bell, No. 6:05-cv-1569-Orl-18DAB, 2006 U.S. Dist. LEXIS 29933 at *9 (M.D. Fla. May 8, 2006); Gelatt v. County of Broome, 811 F. Supp. 61, 67, 68-69 (N.D.N.Y. 1993). A probation officer who investigates and petitions to revoke probation functions like a police officer, not a judge or a prosecutor acting as an advocate. Unlike a prosecutor initiating a criminal prosecution, a probation officer does not decide whether to commence a judicial proceeding. Rather, the officer merely submits a report containing evidence to the judge, who then decides how to proceed. Gelatt, 811 F. Supp. at 68-69. The probation officer's "function in this context is more akin to that of a police officer in deciding whether there is probable cause for an arrest than it is to that of a prosecutor in deciding whether to initiate a prosecution." Ray, 734 F.2d at 374. See also Harper v. Jefferies, 808 F.2d 281, 284 (3d Cir. 1986) (explaining that a probation officer's general responsibilities are "more executive than judicial in nature").
The court knows of only two district courts that found absolute immunity appropriate, and both found it significant that the probation officers had not sought pre-hearing arrest warrants. Gant v. U.S. Prob. Office, 994 F. Supp 729, 734 (S.D. W. Va. 1998); Schiff v. Dorsey, 877 F. Supp. 73, 79 n. 2 (D. Conn. 1994).
Multiple courts, including our circuit in Swift, have held the same for parole officers when investigating and petitioning for parole revocation. Swift, 384 F.3d at 1191-93 ("[R]equesting that the [parole board] initiate revocation proceedings, [is] more akin to a police officer seeking an arrest warrant, than to a prosecutor exercising quasi-judicial discretion to initiate criminal proceedings."); Scotto v. Almenas, 143 F.3d 105, 112-13 (2d Cir. 1998) (same); Wilson v. Kelkhoff, 86 F.3d 1438, 1445-46 (7th Cir. 1996) (same); Mee v. Ortega, 967 F.2d 423, 427 (10th Cir. 1992) (same). To hold that probation officers receive absolute immunity because of their proximity to a judge, but parole officers receive only qualified immunity for highly similar functions, would defy the well settled principle that "immunity flows not from the rank or title or `location within the Government,' but from the nature of the responsibilities of the individual official." Cleavinger v. Saxner, 474 U.S. 193, 201 (1985) (citation omitted).
According to our circuit's precedent, probation officers do receive absolute immunity for preparing and submitting pre-sentence reports. Demoran v. Witt, 781 F.2d 155, 157-58 (9th Cir. 1985). The primary reason is that the probation officer "engage[s] in impartial fact gathering for the sentencing judge" and to allow liability would "impair the sentencing judge's ability to carry out his judicial duties." Id. at 157. In contrast, probation officers investigate and petition to revoke probation at their "own initiative and at a different phase of the criminal process less intimately associated with the judiciary [than sentencing]." Galvan, 710 F.2d at 215. Accord Scotto, 143 F.3d at 111-12; Ray, 734 F.2d at 373 ("The probation officer is not acting as closely with the court as in the presentence report process."). Unlike sentencing, "[t]he judge authorizing the issuance of a Violation of Probation and an arrest warrant relies on the one-sided account of the probation officer." Gelatt, 811 F. Supp. at 67. At least where the probation officer requests an arrest warrant, few safeguards protect the probationer from a pre-hearing unjustified deprivation of liberty, and no viable alternative to damages exists to redress that injury once it has occurred. Id.
Spier has not met her burden to show that her duties to investigate and petition to revoke probation are functionally comparable to the duties of judges acting in their judicial capacities or prosecutors acting as advocates. She is entitled to only qualified immunity from Davis's claims against her in her individual capacity under § 1983.
II. Immunity for State Officials Under State Law
Whether Spier is immune from Davis's Arizona tort law claims is a question of Arizona law. See Martinez v. California, 444 U.S. 277, 282 n. 5 (1980) ("[W]hen state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law."). Federal courts must follow the decisions of a state's highest court when deciding issues of that state's law. Harvey's Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 154 (9th Cir. 1992).
Like the United States Supreme Court, the Arizona Supreme Court has "emphasized that liability of public servants is the rule in Arizona and immunity is the exception." Fidelity Sec. Life Ins. Co. v. Department of Ins., 191 Ariz. 222, 225, 954 P.2d 580, 583 (1998). It has provided judicial immunity to judges acting in their judicial capacities. Acevedo v. Pima County Adult Prob. Dept., 142 Ariz. 319, 321, 690 P.2d 38, 40 (1984) (citing Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982)). Relying on federal authorities, it has also provided absolute immunity to court officials "who perform functions `intimately related to', or which amount to `an integral part of the judicial process.'" Id. (quoting Ashbrook v. Hoffman, 617 F.2d 474, 476 (7th Cir. 1980), and Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir. 1965)) (citation omitted). In such cases, the "non-judicial officer performed a function, pursuant to a court directive, which was related to the judicial process." Id. at 321, 690 P.2d at 40. Thus, court appointed psychologists, Lavit v. Superior Court, 173 Ariz. 96, 99, 839 P.2d 1141, 1144 (Ct.App. 1992), and court appointed guardians ad litem, Widoff v. Wiens, 202 Ariz. 383, 386, 45 P.3d 1232, 1235 (Ct.App. 2002), have been accorded absolute immunity for duties they performed pursuant to a court's order in the course of judicial proceedings.
The supreme court addressed the immunity of probation officers for clearly administrative tasks in Acevedo v. Pima County Adult Probation Deptarment, 142 Ariz. 319, 690 P.2d 38 (1984), vacating 142 Ariz. 360, 690 P.2d 79 (Ct.App. 1983). State probation officers were sued for negligently supervising a probationer who injured the plaintiffs. The court of appeals had reasoned that "the probation officer `stands in the shoes' of the superior court judge in carrying out the order of the court and is answerable only to the judge." 142 Ariz. at 362, 690 P.2d at 81. It accordingly held that "since the officer's duty to supervise a probationer arises out of a `judicial proceeding' and is a continuation of that proceeding, his/her activities are protected by . . . absolute judicial immunity." Id. at 363, 690 P.2d at 82.
The supreme court relied on federal precedent to reject the court of appeals' reasoning and its holding, stating that the precedents did "not support such a broad grant of immunity" to administrative tasks. 142 Ariz. at 321, 690 P.2d at 40. Although it "believe[d] that a probation officer is entitled to absolute protection from suit for actions which are necessary to carry out and enforce the conditions of probation imposed by the court," it immediately cautioned:
We do not agree, however, that all the activities of a probation officer in supervising a probationer are entitled to immunity. Much of the work of a probation officer is administrative and supervisory. Such activities are not part of the judicial function; they are administrative in character. . . . [T]he activities of a probation officer will often not be connected with the performance of a judicial function, and as a consequence not be entitled to immunity.Id. at 322, 690 P.2d at 41 (emphasis supplied). Specifically, the court decided that a "probation officer cannot assert for immunity unless the officer is acting pursuant to or in aid of the directions of the court." Id. The probation officers had negligently allowed the probationer to violate his conditions of probation, so they acted contrary to the court's order and were not entitled to absolute immunity. Id. Acevedo is not squarely on point with the facts of this case. That was a claim of negligent supervision; this is a claim of negligent investigation leading to arrest of the probationer. However, the decision in Acevedo is strong evidence of how the supreme court would decide this issue. "Where the state's highest court has not decided an issue, the task of the federal courts is to predict how the state court would resolve it." Dimidowich v. Bell Howell, 803 F.2d 1473, 1482 (9th Cir. 1986). In so doing, "[w]e do not treat considered dicta from the Supreme Court lightly. Rather, we treat such dicta with `due deference,' as it serves as a `prophecy of what that Court might hold.'" McCalla v. Royal Maccabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir. 2004) (citation omitted).
According to Acevedo, probation officers are not absolutely immune for their administrative duties. They are absolutely immune only for those acts that are "necessary" to enforce the conditions of probation and "pursuant to or in aid of the directions of the court." 142 Ariz. at 322, 690 P.2d at 41. Although Arizona probation officers are technically subject to the "control and direction" of the court, A.R.S. § 12-253(2), Arizona law evidences that they usually operate under their own discretion. It provides that probation officers "[b]ring defaulting probationers into court when in the probation officer's judgment the conduct of the probationer justifies the court to revoke suspension of the sentence." § 12-253(7) (emphasis supplied). The supreme court's holding in Acevedo simply indicates that in some situations a probation officer could be investigating or petitioning to revoke probation pursuant to the direction of the court, and in those specific situations would enjoy absolute immunity.
The decision of a panel of the Arizona Court of Appeals in Adams v. State of Arizona, 185 Ariz. 440, 916 P.2d 1156 (Ct.App. 1995), supports this conclusion. There, the court had to decide whether social workers are absolutely immune for negligently supervising and investigating prospective adoptive parents. The court noted that the judge did "not specify how the caseworkers should conduct their investigations" and that the social workers had not shown that they "acted pursuant to any specific court order in conducting their investigations or in supervising the children post placement." Id. at 444, 916 P.2d at 1160. Therefore, it held that the social workers' "investigative and supervisory functions cannot clearly be characterized as court-ordered so as to justify absolute immunity on that ground." Id. at 445, 916 P.2d at 1161. See also Gelatt, 811 F. Supp. at 67 (interpreting Acevedo to hold "that if the official performed a function at the direction of a judge, then there should be absolute immunity . . . [but only qualified immunity] [i]f the function performed is not at the behest or direction of the court").
The specific issue on this motion is whether Spier's activities "are not part of the judicial function," but instead "are administrative in character." Acevedo, 142 Ariz. at 322, 690 P.2d at 41. The pleadings in this case do not indicate that the sentencing order or any act of the court thereafter had any specific bearing on Spier's investigation, on her decision to file a petition to revoke Davis's probation, or on her initial decision to seek an arrest warrant. She performed those duties routinely, not pursuant to a specific direction from the court. Although Spier was in a general sense performing duties related to the court's sentencing order, the same can be said for the probation officers in Acevedo, to whom the court denied absolute immunity. Here, as in Acevedo, Spier allegedly failed to adequately perform routine duties and therefore the supreme court would hold that her acts were administrative in character and are not entitled to absolute immunity.
Spier relies on Desilva v. Baker, 208 Ariz. 597, 96 P.3d 1084 (Ct.App. 2004), which holds that her "duty to prepare and file the necessary papers with the court to revoke probation entitles [her] to absolute immunity for that specific conduct." Id. at 602, 96 P.3d at 1089. "Applying the functional test," the court decided that "[s]uch functions are similar to the duties of a judge acting in his or her official capacity." Id. It discussed federal court decisions that held probation officers absolutely immune for submitting presentence reports, and concluded that petitions to revoke probation should also receive absolute immunity because they are equally as integral to the judicial process. Specifically, it reasoned:
The relationship between the probation officers' investigating/reporting function and the judge's sentencing function supports absolute immunity. The officers' on-going supervision of probationers to ensure execution of court orders, as well as their duty to investigate and report violations to the court itself, are on behalf of and in aid of the court's judicial function.Id. at 603, 96 P.3d at 1090. The court noted that its decision "is consistent with Acevedo, which suggests that if filing a petition to revoke were `necessary to carry out and enforce the conditions of probation imposed by the court' a probation officer would be entitled to absolute immunity." Id. (quoting Acevedo, 142 Ariz. at 322, 690 P.2d at 41).
The court of appeals' holding that probation officers are always absolutely immune when they file petitions to revoke probation cuts against concluding that the Arizona Supreme Court would hold otherwise. See Dimidowich, 803 F.2d at 1482 (explaining that federal courts look "for `guidance' to decisions by intermediate appellate courts of the state."). However, "[b]ecause a federal court must take into account `all available data,' the decision of a [state] intermediate appellate court is not controlling." Wilson v. Haria Gogri Corp., 479 F. Supp. 2d 1127, 1135 (E.D. Cal. 2007) (quoting Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir. 1982)). See also 19 CHARLES A. WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE PROCEDURE § 4507, at 141 (1996) ("[T]o give state [intermediate] court decisions more binding effect . . . would undermine the ability . . . to ensure that the outcome . . . be substantially the same as it would be if tried in a state court and subjected to that system's appellate process."). State intermediate appellate court decisions "are data which are `not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.'" Dimidowich, 803 F.2d at 1482 (quoting Estrella, 682 F.2d at 817) (declining to follow a state intermediate court opinion). See also Hunter v. Ayers, 336 F.3d 1007, 1012-13 (9th Cir. 2003) (same); Martinez v. Asarco Inc., 918 F.2d 1467, 1473 (9th Cir. 1990) (same); Owen v. United States, 713 F.2d 1461, 1465 (9th Cir. 1983) (same); Wilson, 479 F. Supp. 2d at 1136-41 (same).
The major reason given to accord probation officers absolute immunity for petitions to revoke probation is "[t]he relationship between the probation officers' investigating/reporting function and the judge's sentencing function." Desilva, 208 Ariz. at 603, 96 P.3d at 1090. At least as a broad proposition, and on significantly different facts, the Arizona Supreme Court rejected that reasoning in Acevedo. It stated, "The Court of Appeals would extend . . . absolute judicial immunity to probation officers supervising probations because the task arises out of a judicial proceeding and is a continuation of that proceeding. The authorities do not support such a broad grant of immunity." 142 Ariz. at 321, 690 P.2d at 40. Rather, "the activities of a probation officer will often not be connected with the performance of a judicial function, and as a consequence not be entitled to immunity." Id. The seeming similarity of presentence reports to petitions to revoke probation also fades upon scrutiny. Presentence reports have no effect until judicial action after a full adversarial proceeding. Petitions to revoke probation are ex parte and their relationship to "the judge's sentencing function," Desilva, 208 Ariz. at 603, 96 P.3d at 1090, is more attenuated. They look more like probation officers' general administrative functions, as most federal courts have held.
The Arizona Supreme Court's prior precedents also strongly suggest that it would take a more discriminating position. It has long supported the principle "that where negligence is the proximate cause of injury, the rule is liability and immunity is the exception." Stone v. Ariz. Highway Comm'n, 93 Ariz. 384, 392, 381 P.2d 107, 112 (1963). It has "endorsed the use of governmental `immunity as a defense only when its application is necessary to avoid a severe hampering of a governmental function or thwarting of established public policy.'" Chamberlain v. Mathis, 151 Ariz. 551, 558, 729 P.2d 905, 912 (1986) (citing Ryan v. State, 134 Ariz. 308, 311, 656 P.2d 597, 600 (1982)). It has held that "absolute immunity for public officials in their discretionary functions acting in other than true judicial proceedings is not required and, indeed, is improper." Grimm v. Ariz. Bd. of Pardons Paroles, 115 Ariz. 260, 265, 564 P.2d 1227, 1232 (1977). With respect to court officials performing functions in judicial proceedings, it has "narrowly construed the requirement that the act raising the privilege have a close, direct relationship to such proceedings." Chamberlain, 151 Ariz. at 558, 729 P.2d at 912 (citing Green Acres Trust v. London, 141 Ariz. 609, 614, 688 P.2d 617, 622 (1984)).
In light of this evidence, it is unlikely that the supreme court would accord absolute immunity to a probation officer who was grossly negligent when routinely investigating a probation violation and who requested an arrest warrant in a petition to revoke probation. In that role, probation officers have the authority of police officers and the power to precipitate pre-hearing deprivations of liberty without the safeguard of adversarial judicial proceedings. Arizona probation officers are employed by the judiciary, but Arizona law specifically provides that a probation officer "has the authority of a peace officer in the performance of the officer's duties." A.R.S. § 12-253(3). The Arizona Supreme Court has "refused to extend absolute immunity to police officers." Chamberlain, 151 Ariz. at 557, 729 P.2d at 911 (citing Portonova v. Wilkinson, 128 Ariz. 501, 503, 627 P.2d 232, 234 (1981)). As discussed above, the great weight of federal authority is that probation and parole officers seeking arrest warrants in petitions to revoke probation function like police officers, not prosecutors, and receive only qualified immunity. In Acevedo, the Arizona Supreme Court cited two such cases that "ruled that probation officers do not have absolute immunity for the damages caused by reports filed to revoke probation or parole." 142 Ariz. at 321, 690 P.2d at 40 (citing Galvan v. Garmon, 710 F.2d 214 (5th Cir. 1983); Ray v. Pickett, 734 F.2d 370 (8th Cir. 1984)). The judge's initial review of a petition is not sufficient to hold probation officers accountable for their actions. See Adams, 185 Ariz. at 446, 916 P.2d at 1162 (finding it significant that the judge decides based on a one-sided version of the facts); accord Gelatt, 811 F. Supp. at 67; Babcock v. Washington, 116 Wash. 2d 596, 610, 809 P.2d 143, 151 (1991).
Probation officers' investigative and petitioning duties are often more executive or administrative in nature than judicial. The Arizona Supreme Court's decision in Acevedo, its previous decisions denying absolute immunity, the federal case law upon which it has relied, the reasoning of another Arizona Court of Appeals panel, and the Arizona statute defining probation officers' powers all evidence that the supreme court would not adopt the absolute immunity that Desilva supports. It is also of some significance that the supreme court had no opportunity pass on Desilva because no petition for review was filed. Spier is not absolutely immune from Davis's claim that she was grossly negligent when investigating the charges against him and requesting his arrest in the petition to revoke probation.
IT IS THEREFORE ORDERED that all claims for damages under 42 U.S.C. § 1983 against Defendant State of Arizona and against Defendant Gretchen Spier in her official capacity are dismissed with prejudice.
IT IS FURTHER ORDERED that Defendant Gretchen Spier's motion to dismiss based on absolute immunity is denied with respect to the claims against her in her individual capacity under 42 U.S.C. § 1983 and under Arizona law.