MEMORANDUM OPINION ORDER

JENKINS, Senior District Judge.

The plaintiffs brought this action under 42 U.S.C.A. § 1983 (2003), seeking declaratory and injunctive relief, costs and attorney's fees against the City of Taylorsville and two attorneys who act as independent contractors on behalf of the City in conducting criminal prosecutions in the Taylorsville Justice Court and Third District Court. The defendants have moved to dismiss plantiffs' claims pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that (1) the plaintiffs do not allege direct participation in wrongful conduct by defendants Lohra Miller, Miller Miller Law Offices, or the City of Taylorsville; (2) defendant Lorenzo Miller is shielded from civil liability by the doctrines of absolute prosecutorial immunity and qualified immunity; (3) the plaintiffs failed to allege a constitutional violation caused by an unconstitutional policy, custom or procedure on the part of the City for which it may be held liable to these plaintiffs under § 1983; and (4) the plaintiffs' claims for declaratory and equitable relief are moot in light of intervening rulings by the Utah Court of Appeals. In addition, the City of Taylorsville had previously moved to dismiss on the ground that abstention is required pursuant to Younger v. Harris, 401 U.S. 37 (1971).

BACKGROUND FACTS

Taking the well-pleaded factual allegations of plaintiffs' complaint as true for purposes of Rule 12(b)(6), and including the contents of those documents referenced in the pleading, this action arises from a sequence of events involving a criminal prosecution.

Following an incident on March 27, 2005, each of the named plaintiffs was cited and charged with two offenses, Interfering with a Legal Arrest (Utah Code Ann. § 76-8-305) and Riot (Utah Code Ann. § 76-9-101). At the conclusion of a jury trial in the Taylorsville Justice Court, each of the plaintiffs was found guilty of interference, and each was acquitted on the riot charge. The plaintiffs then timely appealed their convictions on the interference charge, seeking a trial de novo in the Third District Court. See Utah Code Ann. § 78-5-120 (2002).

In the context of the district court trial de novo, the prosecution sought to retry these plaintiffs on the riot charge as well as the interference charge, to which they objected on grounds of double jeopardy. The state district court found these objections to be well taken and dismissed the renewed riot charges. The prosecution then sought appellate review of the dismissals, including a petition for a extraordinary writ requiring the Third District Court to proceed against Mary Jane Auvaa and David Garn on both charges.

As the City of Taylorsville now hastens to point out, the Utah Court of Appeals resoundingly rejected its pleas, denying extraordinary relief on the double jeopardy issue. See Taylorsville City v. Adkins, 2006 UT App 374, 145 P.3d 1161; Order, dated September 22, 2006, in Taylorsville City v. Christiansen, Case No. 20060731-CA (Utah Ct.App.). The Utah Court of Appeals agreed with the district court that retrial of Auvaa and Garn on the riot charge would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution as that provision applies to the States. See Bernat v. Allphin, 2005 UT 1, ¶ 10 n. 6, 106 P.3d 707, 711 n. 6 (2005)("The Double Jeopardy Clause of the United States Constitution was deemed to be applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).").

Following these rulings, Taylorsville avers that it withdrew its opposition to dismissal of the riot charge as against Teine and Joshua Auvaa. (Memorandum in Support of Defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief May be Granted and for Mootness, filed November 30, 2006 (dkt. no. 13) ("Defs' 11/30/06 Mem."), at 4 ¶ 9, 13.)

Plaintiffs filed this action on August 16, 2006, seeking declaratory and equitable relief against further prosecution on the riot charges in the same Third District Court trial de novo proceedings that were the subject of Taylorsville City's writ petitions then pending before the Utah Court of Appeals. As noted above, the defendants have moved to dismiss.

DEFENDANTS' MOTION TO DISMISS

Defendants Lohra Miller and Miller Miller Law Offices

To be held liable under § 1983, a defendant must be shown to be someone who "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C.A. § 1983. As the court of appeals has explained: "Section 1983 is not a vicarious liability provision. . . . In any § 1983 action, the plaintiff must demonstrate the liability of each . . . official against whom a claim is made," and "the burden is on the plaintiff to develop facts that show the defendant's responsibility for a constitutional violation." Serna v. Colorado Dept. of Corrections, 455 F.3d 1146, 1155 (10th Cir. 2006).

A private actor such as a law firm "cannot be held liable solely because it employs a tortfeasor — or, in other words . . . cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Social Services of New York, 436 U.S. 658, 691 (1978) (emphasis in original). Therefore, in order to hold Miller Miller Law Offices liable for the alleged tortious acts of its agents, the plaintiffs must show that the firm directly caused the constitutional violation by instituting an official policy of some nature that was the "direct cause" or "moving force" behind the constitutional violations. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-85, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 820, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

A § 1983 plaintiff must show an affirmative link between a defendant's conduct and a constitutional violation, and that affirmative link "must be alleged in the complaint as well as proven at trial." Stidham v. Peace Officer Standards And Training, 265 F.3d 1144, 1157 (10th Cir. 2001). Here the plaintiffs allege no facts showing any affirmative link between the conduct of Lohra Miller or Miller Miller Law Offices and any constitutional violation suffered by these plaintiffs; nor do they allege facts that would evidence that Miller Miller Law Offices had an official policy that was the "direct cause" of any constitutional violation resulting from the alleged conduct of defendant Lorenzo Miller in prosecuting criminal charges against them.

Defendants' motion thus appears to be well taken, and plaintiffs' complaint shall be dismissed as against defendants Lohra Miller and Miller Miller Law Offices.

The City of Taylorsville

Much the same is true of plaintiffs' § 1983 claims against the City of Taylorsville. Such a claim "`must demonstrate two elements: (1) a municipal employee committed a constitutional violation, and (2) a municipal policy or custom was the moving force behind the constitutional deprivation.'" Walker v. City of Orem, 451 F.3d 1139, 1152 (10th Cir. 2006) (quoting Myers v. Okla. County Bd. of County Comm'rs, 151 F.3d 1313, 1318 (10th Cir. 1998)); accord Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Plaintiffs' pleadings may have alleged a constitutional violation committed by the City's prosecutor, but have "identified no municipal policy or custom the execution of which caused [their] injury, a requirement for claims against municipalities" under § 1983 as construed in Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). Johnson v. Johnson, 466 F.3d 1213, 1215 (10th Cir. 2006).

As pleaded, plaintiffs' § 1983 claims for declaratory and injunctive relief against the City of Taylorsville fail to state a claim upon which relief may be granted, and should likewise be dismissed.

Absolute Prosecutorial Immunity

As the Tenth Circuit explained in Perez v. Ellington, 421 F.3d 1128 (10th Cir. 2005), when determining whether a defendant is entitled to absolute immunity, courts employ a functional approach that examines "`the nature of the function [the defendant] performed, not the identity of the actor who performed it.'" Id. at 1133 (quoting Malik v. Arapahoe County Dep't of Soc. Servs., 191 F.3d 1306, 1314 (10th Cir. 1999)).

Counsel asserts that defendant Lorenzo Miller "was acting within the scope of his prosecutorial duties," and that "prosecuting attorneys are absolutely immune from suit under § 1983 for actions taken within the scope of `prosecutorial duties,'" citing Imbler v. Pachtman, 424 U.S. 409, 42096 S.Ct. 984, 47 L.Ed.2d 128 (1976). (Defs' 11/30/06 Mem. at 6.) This assertion assumes that absolute immunity extends to private attorneys who contract to serve as municipal prosecutors.

There appears to be some support for the proposition that "[p]rivate attorneys may have prosecutorial immunity in the proper circumstances." Niebur v. Town of Cicero, 212 F. Supp. 2d 790, 824 (N.D. Ill. 2002). See, e.g., Hollowell v. Gravett, 703 F. Supp. 761, 764 (E.D. Ark. 1988) (absolute immunity applies to private attorney hired to prosecute administrative dismissal proceeding against officers of the sheriff's department); Musso-Escude v. Edwards, 101 Wash. App. 560, 574, 4 P.3d 151, 159 (2000) ("The steps taken by Edwards are intrinsically within the scope of a prosecutor's duties in initiating and pursuing a criminal prosecution. It is of no moment that Edwards' services were furnished pursuant to a contract."). But this court need not resolve this question in the context of this case.

In Imbler, the Court expressly held "that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983." Imbler, 424 U.S. at 431. Indeed, absolute prosecutorial immunity "extends only to liability for damages. Prosecutors may still be liable for declaratory and injunctive relief." Martinez v. Winner, 771 F.2d 424, 438 (10th Cir. 1985). As Professor Chemerinsky explains:

[O]ften the availability of absolute immunity depends on the relief sought. This is certainly true with regard to prosecutors. Prosecutors have absolute immunity as to claims for money damages, but prosecutors have no immunity as to claims for injunctive relief. Indeed Ex parte Young long ago held that prosecutors can be sued for injunctive relief. One of the key ways around the Eleventh Amendment is to sue the attorney general in federal court for injunctive relief. To give prosecutors absolute immunity here would create an enormous obstacle to applying federal law in the states.

Erwin Chemerinsky, Prosecutorial Immunity (Practicing Law Institute Section 1983 Civil Rights Litigation Symposium), 15 Touro L.Rev. 1645-46 (1999) (footnote omitted) (citing Ex parte Young, 209 U.S. 123 (1908)).

Here the plaintiffs seek declaratory and injunctive relief against any retrial in Third District Court on the riot charges for which they were acquitted in the Taylorsville Justice Court, but they do so without pleading a claim for money damages against defendant Lorenzo Miller. As such, the doctrine of absolute prosecutorial immunity finds no application to the claims for relief pleaded by the plaintiffs in this case.

Qualified Immunity

"The doctrine of qualified immunity shields public officials . . . from damage actions unless their conduct was unreasonable in light of clearly established law." Elder v. Holloway, 510 U.S. 510, 512 (1994). Once a government official asserts qualified immunity as a defense, the plaintiff must show: (1) that the defendant's actions violated a constitutional or statutory right, and (2) that the rights alleged to be violated were clearly established at the time of the conduct at issue. Saucier v. Katz, 533 U.S. 194, 201 (2001); Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). If the plaintiffs fail to demonstrate the government official's conduct violated federal law, the court need not determine whether the law was clearly established. See Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993). "The general rule of qualified immunity is intended to provide government officials with the ability `reasonably [to] anticipate when their conduct may give rise to liability for damages.' . . . Where that rule is applicable, officials can know that they will not be held personally liable as long as their actions are reasonable in light of current American law." Anderson v. Creighton, 483 U.S. 635, 646 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).

There is some authority for the view that qualified immunity insulates private defendants from § 1983 damages liability where they are fulfilling duties under a government contract, thereby fulfilling an official request to perform a governmental function, in contrast to private defendants who invoke state law in pursuit of private ends. See, e.g., Eagon Through Eagon v. City of Elk City, Okla., 72 F.3d 1480, 1489-90 (10th Cir. 1996) (concluding that where a private defendant "was performing a government function pursuant to a government request," she is entitled to qualified immunity).

Like absolute prosecutorial immunity, "[q]ualified immunity applies to claims for monetary relief against officials in their individual capacities, but it is not a defense against claims for injunctive relief against officials in their official capacities. Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir. 1993) (citing Hafer v. Melo, 502 U.S. 21, 22-23, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991))." Meiners v. University of Kansas, 359 F.3d 1222, 1233 n. 3 (10th Cir. 2004); see Hammons v. Saffle, 348 F.3d 1250, 1257 n. 1 (10th Cir. 2003) (stating that "qualified immunity applies only to claims for damages" (citing Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Kikumura v. Hurley, 242 F.3d 950, 962-63 (10th Cir. 2001))).

"An action for injunctive relief no matter how it is phrased is against a defendant in official capacity only; plaintiff seeks to change the behavior of the governmental entity." DeVargas v. Mason Hanger-Silas Mason Co., Inc., 844 F.2d 714, 718 (10th Cir. 1988) (citing Scott v. Lacy, 811 F.2d 1153, 1153-54 (7th Cir. 1987) (per curiam)).

Essentially the same is true of claims seeking declaratory relief. "[Q]ualified immunity is only an immunity from a suit for damages, and does not provide immunity from suit for declaratory or injunctive relief." Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 2006) (citing Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993)); Rowley v. McMillan, 502 F.2d 1326, 1331 (4th Cir. 1974) (qualified immunity "has no application to a suit for declaratory or injunctive relief").

Declaratory and injuctive relief may be granted even where defendants raise valid claims of qualified immunity barring plaintiffs' damages claims. See, e.g., Eagon Through Eagon v. City of Elk City, Okla., 72 F.3d 1480 (10th Cir. 1996) (declaratory and injunctive relief granted; damages claims against individual defendants dismissed on qualified immunity grounds); Washington v. Harper, 494 U.S. 210, 218, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (individual defendants were entitled to qualified immunity; case was allowed to proceed, but only to consider claims for injunctive and declaratory relief under § 1983 as well as state law). Qualified immunity thus cannot bar the plaintiffs' claims for declaratory and injunctive relief against defendant Lorenzo K. Miller.

Younger Abstention Double Jeopardy

The Younger abstention doctrine is a judicially created bar to federal court interference with ongoing state court proceedings, taking its name from Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Under the Younger doctrine, "[e]ven when a federal court would otherwise have jurisdiction to hear a claim, the court may be obliged to abstain when a federal-court judgment on the claim would interfere with an ongoing state proceeding implicating important state interests." D.L. v. Unified School Dist. No. 497, 392 F.3d 1223, 1227-28 (10th Cir. 2004).

This notion that state courts should remain free from federal court intervention derives from the limited nature of equity jurisdiction and the belief that our federal system operates most effectively when the states and their political subdivisions are left alone. Younger, 401 U.S. at 43-44. Younger abstention arises from a desire to "`avoid undue interference with states' conduct of their own affairs.'" J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999) (quoting Seneca-Cayuga Tribe v. Oklahoma, 874 F.2d 709, 711 (10th Cir. 1989)). "Younger abstention is, in essence, a doctrine founded on comity. . . ." Southwest Air Ambulance, Inc. v. City of Las Cruces, 268 F.3d 1162, 1178 (10th Cir. 2001).

Under Younger and its progeny, federal courts should not interrupt ongoing state criminal proceedings when adequate state relief is available. Younger, 401 U.S. at 54.

According to the defendants in this case,

Here the injunctive relief that Plaintiffs seek would interfere with present, ongoing state criminal prosecutions. Plaintiffs have not disputed that these are ongoing state criminal proceedings, that they provide an adequate forum to hear the claims raised in their complaint, and that they involve important state interests. Therefore, the Court should abstain from exercising its jurisdiction under the doctrine of Younger abstention.

* * * *

"Under the Younger abstention doctrine, federal courts should not `interfere with state courts proceedings by granting equitable relief — such as injunctions of important state proceedings or declaratory judgments regarding constitutional issues in those proceedings —' when a state forum provides an adequate avenue for relief." Weitzel v. Division of Occupational and Professional Licensing, 240 F.3d 871, 875 (10th Cir. 1999) (emphasis added).

(Reply Memorandum in Support of Motion to Dismiss for Failure to State a Claim upon Which Relief May Be Granted and Younger Abstention, filed October 9, 2006 (dkt. no. 9), at 2.)

Yet "[t]he Younger abstention doctrine is inapplicable . . . where irreparable injury can be shown." Weitzel v. Div. of Occupational Professional Licensing, 240 F.3d at 876. Younger itself acknowledged that a threat to an individual's federally protected rights constitutes irreparable injury where the threat "cannot be eliminated by . . . defense against a single criminal prosecution." Younger, 401 U.S. at 46.

As the Tenth Circuit recently explained,

[I]t is clear that federal intervention is justified where prospective state prosecutions run afoul of the Double Jeopardy Clause. This stems from the fact that the injury to an individual's double jeopardy rights engendered by an illegitimate successive retrial is no less irreparable simply because the prosecution comes under the guise of state, rather than federal, authority. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 303, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) ("[A] requirement that a defendant run the entire gamut of state procedures, including retrial, prior to consideration of his claim in federal court, would require him to sacrifice one of the protections of the Double Jeopardy Clause."). Without federal court intervention, Ms. Walck will be forced to "endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense" in violation of her constitutional rights. Abney, 431 U.S. at 661, 97 S.Ct. 2034. And although notions of comity and federalism carry heavy weight in our system of government, such notions do not mean that the federal courts must sit idly by while "the rights conferred on a criminal accused by the Double Jeopardy Clause [are] significantly undermined." Id. at 660, 97 S.Ct. 2034. We therefore hold that Younger abstention is unwarranted where a criminal accused presents a colorable claim that a forthcoming second state trial will constitute a violation of her double jeopardy rights.

Mootness

The defendants have fielded an array of legal defenses, none of which has proven to be dispositive of plaintiffs' primary § 1983 claim.

In the wake of the Utah Court of Appeals' rulings in favor of two of the plaintiffs on the double jeopardy issue, the defendants argue that plaintiffs' § 1983 claims are now moot.

Mootness raises a jurisdictional issue. "Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies. To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983) (citation omitted). "It is not enough that a plaintiff wishes to have the moral satisfaction of a judicial ruling that he was right and his adversary was wrong; the relief sought must have legal effect in determining the present and future rights and obligations of the parties." Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1263 (10th Cir. 2004); see Air Line Pilots Ass'n v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir. 1990) (defining the test as whether the relief sought would "make a difference to the legal interests of the parties (as distinct from their psyches, which might remain deeply engaged with the merits of the litigation)"). Indeed, "past exposure to alleged illegal conduct does not establish a present live controversy if unaccompanied by any continuing present effects." McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996).

In general a case becomes moot "`when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).

A claim for "declaratory judgment is generally prospective, "and "claims for prospective relief require a continuing injury." PETA v. Rasmussen, 298 F.3d 1198, 1202 n. 2 (10th Cir. 2002) (citing Horstkoetter v. Dep't of Pub. Safety, 159 F.3d 1265, 1277 (10th Cir. 1998)). "Plaintiffs `seeking prospective relief must show more than past harm or speculative future harm.' Riggs v. City of Albuquerque, 916 F.2d 582, 586 (10th Cir. 1990)." Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir. 2006). Likewise, "[a]s the Supreme Court has explained, `[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.'" PETA, 298 F.3d at 1202 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). "If, while the litigation is pending, an event occurs that heals the injury, plaintiffs lose their standing for claims for prospective relief and the claims become moot." Id. at 1202-03 (citing Horstkoetter, 159 F.3d at 1277).

The question now before this court is whether the Utah Court of Appeals' denial of the City of Taylorsville's extraordinary writ petitions has "healed the injury" alleged by these plaintiffs.

Plaintiffs allege that they have interposed pleas of autrefois acquit in the state district court proceedings.

For two of the plaintiffs, David Garn and Mary Jane Auvaa, the state district court had already determined that trial would not go forward on the riot charges because of the double jeopardy guaranty, and the Utah Court of Appeals declined to interfere with the district court's rulings. As to these two plaintiffs, further prosecution on the riot charges has come to an end, and defendant Lorenzo Miller's attempt to retry them before the district court on the riot charges is "`unaccompanied by any continuing, present adverse effects.'"

Upon inquiry, counsel have advised this court that the riot charges against the other two plaintiffs, Joshua and Teine Auvaa, have not yet been dismissed; nor does any ruling appear on the state district court docket that conclusively determines that a trial de novo will not proceed on those charges. Absent such a determination, the question of a double jeopardy violation continues to bear upon whether Joshua or Teine Auvaa will face further prosecution on the riot charges at trial de novo in the Third District Court, Plaintiffs' claims for declaratory relief are not moot where this court must determine whether a past constitutional violation occurred which will in turn affect the parties' current rights or future behavior. See Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997). Much the same is true of the injunctive relief plaintiffs seek.

Therefore,

IT IS ORDERED that the defendant's motion to dismiss (dkt. no. 12) is GRANTED IN PART and plaintiffs' claim against defendants Lohra L. Miller, Miller Miller Law Offices and the City of Taylorsville shall be DISMISSED; in all other respects, the defendants' motions to dismiss (dkt. nos. 4, 12) are DENIED.