Opinion
No. 02-4136-SAC.
June 4, 2003.
MEMORANDUM AND ORDER
This civil rights case comes before the court on the motion to dismiss (Dk. 88) the plaintiffs' second amended complaint brought by the defendant Robert B. Hecht, District Attorney for the Third Judicial District of Kansas. After considering the plaintiffs' response (Dk. 107) and the defendant's reply (Dk. 119) and after researching the law relevant to these issues, the court is ready to rule.
PLAINTIFFS' CLAIMS
The four individual plaintiffs allege they were arrested in Shawnee County, Kansas, without a warrant between August 29, 2002, and August 31, 2002, and they made first appearances before a district judge of the Third Judicial District who ordered the district attorney's office to file formal charges. According to the second amended complaint, the magistrate at this hearing "does not undertake to find probable cause to believe that a crime has been committed and that the arrested person committed that crime." (Dk. 65, ¶ 13). The plaintiffs allege the magistrate instead "orders the District Attorney's office to file a complaint by a specific deadline so that the magistrate may review the charges in the complaint and the affidavit in support of the complaint." Id. For the plaintiff Corey Robinson, the magistrate had ordered the charges to be filed by a date certain and for the other three plaintiffs, the judges had ordered the charges to be filed "forthwith or by 48 hours." Id. at ¶¶ 25-27. The plaintiffs allege that in each case the district attorney failed to file the charges by the court-ordered deadline.
The plaintiffs allege that the defendant Hecht and the defendant Elizabeth Gillespie, Director of the Shawnee County Adult Detention Center, know the magistrates order the filing of complaints by specified dates in order to make timely probable cause determinations. They further allege that the district attorney's office frequently fails to file the charges by the deadline given by the magistrates and, thus, "makes it impossible for the magistrate[s] to determine, within 48 hours of the person's arrest, whether there is probable cause to believe that a crime has been committed and that the arrested person committed that crime." (Dk. 65, ¶ 16).
Based on these allegations, the plaintiffs claim that the defendant Hecht's omissions in not filing as ordered a complaint with affidavits, in not otherwise presenting evidence necessary for a probable cause determination, and then in not directing the plaintiffs' release from jail caused the plaintiffs to be denied their constitutional right to a judicial determination of probable cause within forty-eight hours of their warrantless arrests. The plaintiffs pray for injunctive relief, compensatory damages, punitive damages and attorney's fees. They seek an injunction ordering the defendant Hecht to: "file charges against all persons arrested without a warrant within 48 hours of such person's arrest, or otherwise present evidence to a magistrate sufficient for the magistrate to make a finding of probable cause within 48 hours of the arrest, or notify the jail that the person should be released." (Dk. 65, p. 12).
The Fourth Amendment requires a judicial determination of probable cause to be made either before or promptly after arrest as a condition to any significant pretrial restraint. Gerstein v. Pugh, 420 U.S. 103, 125 (1975). "[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein." County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
STANDARDS GOVERNING MOTION TO DISMISS
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir. 1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted). The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir. 1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)).
Although a plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Put another way, "`conclusory allegations without supporting allegations are insufficient to state a claim.'" Erikson v. Pawnee County Bd. of County Com'rs, 263 F.3d 1151, 1154 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110), cert. denied, 535 U.S. 971 (2002). "[A]llegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim." Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir. 1977); see Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990) (district court is not required to accept "footless conclusions of law" in deciding motion to dismiss). "`It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Nevertheless, a plaintiff must allege sufficient facts to outline a cause of action, proof of which is essential to recovery.'" Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir. 1997) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047 (1986)).
A court judges the sufficiency of the complaint accepting as true all well-pleaded facts, as distinguished from conclusory allegations, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881 (1998); see Southern Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1262 (10th Cir. 1998) (court "need not accept . . . conclusory allegations as true."). It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989).
SUMMARY OF MOTION
The defendant Hecht argues he is entitled to absolute prosecutorial immunity for the actions alleged in the plaintiffs' second-amended complaint. Characterizing his challenged actions as those taken in preparing for the initiation of judicial proceedings, the defendant Hecht insists his activities are intimately associated with the judicial phase of the criminal process and, thus, protected by prosecutorial immunity. Alternatively, the defendant Hecht asserts the shield of qualified immunity arguing the law is not clearly established as to a prosecutor's duty corresponding to the plaintiffs' constitutional rights at issue here. Under the umbrella of Eleventh Amendment immunity, the defendant seeks dismissal of the damage claim brought against him in his official capacity and of the claim for injunctive relief as implicating special sovereignty interests. Finally, the defendant asks the court to dismiss any claim for individual liability, because the defendant did not personally participate in the denial of the plaintiff's constitutional rights.
ABSOLUTE IMMUNITY
In Imbler v. Pachtman, 424 U.S. 409, 430 (1976), the Supreme Court held that prosecutors enjoy absolute immunity from liability under § 1983 for activities "intimately associated with the judicial phase of a criminal process." In concluding in Imbler that a prosecutor in "initiating a prosecution and in presenting the State's case" was absolutely immune, the Supreme Court "did not attempt to describe the line between a prosecutor's acts in preparing for those functions, some of which would be absolutely immune, and his acts of investigation or `administration,' which would not." Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (citation omitted). Rather, the Court fashioned a functionality test under which immunity is not limited to the act of initiating a prosecution or conducting the courtroom proceedings but extends to all actions "which occur in the course of [the prosecutor's] role as an advocate for the State." Id. at 273.
Knowing how the Court has applied this test is nearly as important as knowing the test itself. A prosecutor is acting within the course of his role as an advocate for the state when he applies for a search warrant and presents evidence in support of its issuance. Burns v. Reed, 500 U.S. 478, 492 (1991). In contrast, a prosecutor does not enjoy absolute immunity for personally attesting to the truthfulness of statements included in a certification, because the prosecutor is not acting as an advocate but as a complaining witness. Kalina v. Fletcher, 522 U.S. 118, 129 (1997). For that matter, in giving legal advice to police, a prosecutor is not performing a function closely associated with the judicial process and is protected only by qualified immunity. Burns, 500 U.S. 478, 492-96 (1991). When holding a press conference or when allegedly fabricating evidence during the preliminary investigation of an unsolved crime, a prosecutor is not acting as an advocate and is protected only by qualified immunity. Buckley, 509 U.S. at 275-78.
Evident from these holdings is that the absolute immunity extended to prosecutors "is not grounded in any special `esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself." Kalina, 522 U.S. at 127 (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)). It is the nature of the function being performed and not the mere identity of the person as a prosecutor that determines whether absolute immunity exists. Kalina, 522 U.S at 127; Buckley, 509 U.S. at 273. Put another way, the actions of a prosecutor are not covered by absolute immunity just because a prosecutor committed them. If a prosecutor's activities are within the function of an officer of the court or an advocate, then absolute immunity prevails. Buckley, 509 U.S. at 273. On the other hand, "[a] prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity." Id. (citation omitted). Thus, whether a prosecutor benefits from absolute or qualified immunity depends on the particular actions or conduct being challenged. See Kalina, 522 U.S. at 125-29. "[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question." Burns v. Reed, 500 U.S. at 486.
Prosecuting attorneys are absolutely immune from suit under § 1983 for decisions to prosecute, Hammond v. Bales, 843 F.2d 1320, 1321 (10th Cir. 1988); to not prosecute, Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir.), cert. denied, 459 U.S. 826 (1982); and for any related investigatory or evidence gathering functions undertaken in connection with the prosecutorial function. See Scott v. Hern, 216 F.3d 897, 909 (10th Cir. 2000) (prosecutor's immune conduct includes investigation, or lack thereof). "[A] prosecutor who performs functions within the continuum of initiating and presenting a criminal case, such as filing charges, seeking an arrest warrant or advocating conditions of release, ordinarily will be entitled to absolute immunity." Snell v. Tunnell, 920 F.2d 673, 693 (10th Cir. 1990) (citation omitted), cert. denied, 499 U.S. 976 (1991). "Absolute prosecutorial immunity will likewise attach to administrative or investigative acts necessary for a prosecutor to initiate or maintain the criminal prosecution." Ireland v. Tunis, 113 F.3d 1435, 1447 (6th Cir.) (footnoted omitted), cert. denied, 522 U.S. 996 (1997). Consequently, decisions that are analogous to a decision to pursue criminal charges or that are connected to or interdependent with the process of initiating or maintaining a criminal prosecution are protected by absolute prosecutorial immunity. See Schloss v. Bouse, 876 F.2d 287, 290 (2nd Cir. 1989) (held that the prosecutor's demand for releases in favor of officers and the municipalities in exchange for a decision not to prosecute involved interdependent conduct, and the prosecutor's demand for was an act of prosecutorial discretion protected by absolute immunity).
The plaintiffs concede that the defendant Hecht's decisions on whether to file charges and when to file charges are acts of advocacy. They, however, attempt to divorce this prosecutorial decision from Hecht's subsequent act of not informing the jailer of this decision about filing charges. The plaintiff argues this latter act is not an act of advocacy, is not intimately associated with the judicial phase of the criminal process, and is akin to an administrative responsibility performed outside the scope of traditional prosecutorial functions. The plaintiffs also deny that Hecht's decision against presenting evidence to a magistrate for purposes of a probable cause determination is an act intimately associated with the judicial phase of the criminal process. The plaintiffs attempt to dissociate Hecht's decision on presenting evidence from his advocacy responsibilities arguing that the decision is not connected to any judicial act that is part of the criminal process and that the decision is not integral to the preparation or prosecution of a criminal case. Finally, the plaintiffs argue that Hecht's failure to file charges within the deadlines given by the magistrate prevents absolute immunity from attaching to his actions.
"[W]hen a prosecutor performs administrative acts unrelated to judicial proceedings, qualified immunity is all that is available." Alkire v. Irving, 305 F.3d 456, 468 (6th Cir. 2002) (citation and quotation omitted). For example, a state district attorney did not have absolute immunity for actions taken to prevent a convicted inmate from executing writs of habeas corpus ad testificandum that would have permitted the inmate from testifying in support of his civil lawsuit. Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264 (10th Cir. 1994) (criminal prosecution completed before writs were issued and district attorney merely acting in administrative capacity in blocking execution writs for civil proceeding). Another example comes from the Second Circuit where state district attorney defendants were only entitled to qualified immunity for their involvement in keeping the defendant in state custody following the termination of all criminal charges. Pinaud v. County of Suffolk, 52 F.3d 1139, 1151 (2nd Cir. 1995) ("[T]he handling of a prisoner after the complete conclusion of all criminal charges is not a prosecutorial task but rather an administrative one." (citing Allen v. Lowder, 875 F.2d 82, 85-86 (4th Cir. 1989)).
The defendant Hecht has carried his burden of showing that absolute prosecutorial immunity is justified for his decisions and actions that are the subject of this lawsuit. The parties have not cited nor has the court found any case law that rejects the proposition of absolute immunity for a prosecutor sued on a Gerstein claim. The court's research shows at least two circuits that upheld such immunity. Frost v. Galati, 182 F.3d 925, 1999 WL 311366 (9th Cir. May 10, 1999) (Table); Webster v. Gibson, 913 F.2d 510, 513-14 (8th Cir. 1990). The Tenth Circuit in an unpublished decision also recognized the availability of absolute immunity to a prosecutor defending a Gerstein claim. Moore v. Doe, 13 F.3d 406, 1993 Wl 538914, at *3 n. 4 (10th Cir. Dec. 29, 1993) (Table).
A district attorney in presenting evidence in a probable cause proceeding before a magistrate or in deciding not to present evidence in such a proceeding is undertaking a prosecutorial function that is a necessary part of the "preparation for the initiation of a prosecution or for judicial proceeding." See Buckley, 509 U.S. at 273; cf. Pinaud v. County of Suffolk, 52 F.3d 1139, 1150 (2nd Cir. 1995) (A prosecutor's actions in securing the transfer of a prisoner from federal to state custody is "an integral component of initiating a prosecution, since without the presence of the prisoner in state custody, a trial cannot begin and entire prosecution could be halted." (citation omitted)). Indeed, "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." Imbler, 424 U.S. at 431, n. 33. A prosecutor's function in this judicial proceeding for the determination of probable cause is not unlike the prosecutor's role in arguing for bail or in seeking an arrest warrant, both of which are covered by absolute immunity. See Pinaud, 52 F.3d at 1150 (citing Barr v. Abrams, 810 F.2d 358, 362 (2nd Cir. 1987), and Lerwill v. Joslin, 712 F.2d 435, 437-38 (10th Cir. 1983)). Since the single issue in these probable cause proceedings is "whether there is probable cause for detaining the arrested person pending further proceedings," Gerstein v. Pugh, 420 U.S. 103, 120 (1975), the prosecutor's function is to secure the arrested person's presence at proceedings for the initiation and prosecution of criminal charges. "`One of the most important duties of a prosecutor pursuing a criminal proceeding is to ensure that defendants . . . are present at trial.'" Pinaud, 52 F.3d at 1150 (quoting Ehrlich v. Giuliani, 910 F.2d 1220, 1223 (4th Cir. 1990)). That the defendant Hecht chose not to present evidence at the probable cause proceeding does not deny him the shield of absolute immunity. See Dohaish, 670 F.2d at 938. Immunity attaches to the activity or function and is not dependent on the manner in which it is performed or the motive behind it. Parkinson v. Cozzolino, 238 F.3d 145, 150 (2nd Cir. 2001).
The plaintiffs are unable to fashion any substantial arguments against a finding that the defendant Hecht's involvement in these cases was conduct performed in his role as an advocate for the state. Absolute immunity cannot be skirted by carving up an act of prosecutorial discretion into different elements and labeling one or more as purely administrative. As quoted and cited above, courts have extended the protection of absolute immunity to a prosecutor's administrative acts that are necessary to or interdependent with the process of initiating a criminal prosecution. See Ireland v. Tunis, 113 F.3d at 1447; Schloss v. Bouse, 876 F.2d at 290. Informing the jailer or not informing the jailer about matters directly pertaining to the prosecutor's initiation and preparation of a criminal case are actions entitled to absolute immunity. See Pinaud, 52 F.3d at 1149-50 ("[S]ince we have previously said that conduct in a `sentencing proceeding' would be protected by absolute prosecutorial immunity, . . . we are bound to hold that a prosecutor's communications with other officials directly pertaining to matters of sentencing are entitled to absolute immunity." (citations omitted)). Even if the act of communicating with a jailer could be described as administrative in nature, the district attorney's function in communicating is as a prosecutor deciding if and when to prosecute and insuring the arrested person's presence for the initiation of criminal proceedings. See Brooks v. George County, Miss., 84 F.3d 157, 168 (5th Cir.) ("[T]he prosecutor's acts . . . of requesting that the court enter an order of nolle prosequi of Brook's criminal charges, of having an order prepared for the court that memorialized the same, and the forwarding of such order to the clerk for filing are all prosecutorial activities intimately associated with the judicial phase of the criminal process." (quotation and omitted), cert. denied, 519 U.S. 948 (1996). In sum, the court concludes that the defendant Hecht's decision to communicate with the jailer is not "sufficiently independent" of Hecht's decision on whether or when to file a criminal complaint as to warrant the characterization of "merely administrative." See Schloss v. Bouse, 876 F.2d at 291.
Relying on Gagan v. Norton, 35 F.3d 1473 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995), the plaintiffs argue the court should find that Hecht is not entitled to absolute immunity as he disregarded the magistrate's order in not filing timely charges and in not informing the jailer of his decision. In reply, Hecht correctly observes that the magistrate's order simply gave him the option of filing criminal charges by a particular date and did not direct him expressly to take other action if charges were not timely filed. This case bears no resemblance to Gagan where the Tenth Circuit held it was "too far removed" from the "core prosecutorial functions" to grant absolute immunity for "a prosecutor's actions in contravening the authority of the judicial branch of state government in regard to the defense of a civil action." 35 F.3d at 1476 (italics added). The Eighth Circuit in Webster rejected a plaintiff's argument that the prosecutor was not entitled to absolute immunity after disregarding a state judge's order "to file an information or release him." 913 F.2d at 513-14. The plaintiffs' allegation that Hecht disregarded magistrates' orders in these cases does "not place him outside the scope of his prosecutorial duties." Id. at 514. The court finds that the defendant Hecht is entitled to absolute prosecutorial immunity.
INJUNCTIVE RELIEF
"[N]either qualified nor absolute immunity precludes prospective injunctive relief." Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264, 267 (10th Cir. 1994) (citations omitted) ("A prosecutor may not simply raise the shield of official immunity and continue to act in an unconstitutional manner without fear of judicial orders to the contrary."); see also Van Deelen v. City of Eudora, Kan., 53 F. Supp.2d 1223, 1235 (Kan. 1999). Indeed, prosecutors "are natural targets for § 1983 injunctive suits since they are the state officers who are threatening to enforce and who are enforcing the law." Supreme Court of Virginia v. Consumers Union of America, Inc., 446 U.S. 719, 736-37 (1980) (citing Gerstein v. Pugh as one of those cases appropriately brought against a state official and not barred by the Eleventh Amendment). Consequently, of the defendant Hecht's remaining arguments, the court need consider the only argument advanced against this claim for injunctive relief.
The defendant Hecht argues that the Eleventh Amendment bars the plaintiffs' claim for injunctive relief, as it implicates the state's special sovereignty interests in administering its criminal justice system and in mandating when a prosecutor must file criminal charges. The plaintiffs deny that their requested injunctive relief would dictate how the state would administer its criminal justice system, since the injunction would require only that the defendant Hecht either file charges by the court-ordered deadline or notify the jail that charges would not be filed by the deadline. The defendant's cursory argument is not persuasive in showing how such an injunction would implicate the "special sovereignty interests" of the sort described in Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997) (quiet title action in an effort to divest a state over state control of navigable waters), and ANR Pipeline Co. v. Lafaver, 150 F.3d 1178 (10th Cir. 1998) (special sovereignty interest in state tax collection system as state government's existence depends on power to tax), cert. denied, 525 U.S. 1122 (1999). Nor does the court see how the facts of this case show it to be an extreme and unusual case such that the requested ruling would implicate special sovereignty interests. See, e.g., Robinson v. Kansas, 295 F.3d 1183, 1192 (10th Cir. 2002) (enjoining state officials from enforcing a state law in violation of the Fourteenth Amendment does not implicate special sovereignty interests), petition for cert. filed, 71 U.S.L.W. 3589 (Jan. 22, 2003) (No. 02-13); Joseph A. Ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253, 1260 (10th Cir. 2002) (state's interest in administering a welfare fund partially funded with federal money is not a core sovereign interest). The court rejects the defendant Hecht's argument for an Eleventh Amendment bar to the plaintiffs' claim for prospective injunctive relief.
IT IS THEREFORE ORDERED that the defendant Hecht's motion to dismiss (Dk. 88) is granted as to all claims for compensatory damages but denied as to the claim for injunctive relief.
Dated this 4th day of June, 2003, Topeka, Kansas.