Opinion
Case No. 00-3144-JAR
March 17, 2003
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case comes before the Court on the Defendants' Motion for Summary Judgment (Doc. 18) on Plaintiff's "Complaint Pursuant to Civil Rights Act, 42 U.S.C. § 1983." Plaintiff Richard Lynn Dopp, acting pro se, filed a complaint (Doc. 1) against Defendants Scott Rask and William Blundell for damages and declaratory relief. The Court grants Defendants' motion because the Plaintiff's claims are either time barred, barred by the Rooker-Feldman doctrine, fail to state a claim or because the defendants enjoy absolute or qualified immunity.
I. Background
The Court gives preclusive effect to the following findings made in a Memorandum Decision issued on May 14, 1997, by Judge Robert J. Fleming, District Judge of Labette County, Kansas, in the criminal case captioned State of Kansas v. Robert L. Dopp, 96 CR 161 PA. In that decision, based on the evidentiary record of the preliminary hearing, Judge Fleming granted Plaintiff's motion for suppression of evidence and dismissal of the case. On May 16, 1996, in Labette County, Kansas, Defendant William Blundell arrested Plaintiff for criminal trespass, based on information provided by the landowner's hired hand. The landowner did not know Plaintiff and Plaintiff did not have permission to be on the land. After arresting Plaintiff, Blundell took him into custody and interrogated him without first advising him of his Miranda rights. Officers detained Plaintiff at the Labette County Jail, along with his brother and another man.
At the time of the arrest, Blundell did not know that other law enforcement officers suspected that marijuana was being grown on the land. There was no evidence that Plaintiff had entered or remained upon the property in defiance of an order to not enter or to leave, as is required under the criminal trespass statute.
On the same date, May 16, 1996, officers obtained a search warrant based on an affidavit that contained two misrepresentations: 1) that a drug dog used in the investigation had been certified and 2) that Plaintiff had been arrested for cultivation of marijuana (when in fact, Plaintiff had been arrested for criminal trespass). Thereafter, officers searched, seized and impounded property belonging to Plaintiff and the two other men.
Defendant Scott Rask is not mentioned in either Judge Fleming's Memorandum Decision, nor in the Memorandum Opinion of the Kansas Court of Appeals that affirmed Judge Fleming's ruling. Defendants admit that Rask, in his capacity as an Assistant County Attorney, filed on or about May 17, 1996, a complaint/information charging Plaintiff with cultivation of marijuana and conspiracy to do the same, possession of marijuana, possession of drug paraphernalia and failing to have a tax permit for marijuana. In orders entered on March 24, 1997, and April 16, 1997, Judge Daniel L. Brewster of the District Court of Labette County, ruled that there was probable cause for the charges in the complaint/information filed by Rask.
Ultimately, however, the court granted Plaintiff's motion to suppress evidence and statements, based on a lack of probable cause to support the charges against Plaintiff. The evidence seized and statements given were suppressed by the District Court of Labette County, Kansas in an order entered on May 14, 1997, which was affirmed by the Kansas Court of Appeals in an order entered on February 13, 1998. On May 12, 1998 the District Court of Labette County dismissed the case on the prosecution's motion. Plaintiff filed the instant action on April 26, 2000.
Plaintiff filed a civil action, Case No. 99 C 33 PA, in the District Court of Labette County, Kansas, against these same defendants, Scott Rask and William Blundell. On May 11, 2001, the judge entered an order granting the Defendants' motion for summary judgment on Plaintiff's state law claims of false arrest/imprisonment, malicious prosecution, negligence and fraud, and on all of Plaintiff's § 1983 and § 1985 claims, with the exception of the malicious prosecution claims. The judge essentially found that all of the state law claims, as well as all of the federal claims (except for the malicious prosecution claims) were time barred, and/or Plaintiff's Complaint failed to state a claim.
II. Claims Raised in this Action
In the case at hand, Plaintiff claims that Scott Rask, an Assistant County Attorney for Labette County, Kansas and William Blundell, the Sheriff of Labette County, "under color, custom, and usage of Kansas State Law" committed "acts, inactions, conduct and omissions" that were "willful, intentional and deliberate" and that deprived him of "Constitutionally secured and guaranteed rights, immunities and privileges, in that their conduct:"
constituted illegal restraint and arrest, unlawful detention and confinement, as well as illegal and unconstitutional deprivations of life, liberty and property. All in violation of the 4th, 5th, 8th and 14th Amendments of the U.S. Constitution, like and applicable provisions of the Kansas State Constitution and or Bill of Rights, and Kansas State Law.
Plaintiff further claims that the conduct of both defendants constituted a "violation of Due Process and Equal Protections under the law deprivations also to include an abuse of Due Process." Plaintiff further stated that the conduct of Scott Rask
constituted willful, deliberate and intentional commission of unlawful restraint, detention, arrest and malicious prosecution, and or including deprivation of person, property and effects without Due Process and Equal Protections under the applicable laws.
Plaintiff specifically alleged that on May 16, 1996 he was unlawfully restrained, detained and arrested by:
Defendant William Blundell and agents, subordinates and employees of his Office and/or Department, upon the unfounded allegation of criminal trespass, K.S.A. 21-3721.
Contemporaneously to this unlawful restraint and arrest . . . the Plaintiff and his companions, property and effects . . . was seized, searched and impounded without probable cause. Also a search warrant was issued arising from an affidavit that falsely alleged Plaintiff, and his companions, were taken into custody for cultivation of marijuana.
Plaintiff, and his companions, were interrogated at the scene, and subsequently upon transportation to the jail, without being afforded the Miranda v. Arizona 384 U.S. 436 (1966) warnings, and exposed to self-incrimination unconstitutionally by the Defendant Blundell, his agents, subordinates and employees.
Scott Rask, then Assistant County Attorney for Labette County, Kansas, performing the role of investigator and of his own personal over zealousness and at the urgings of the Defendants Blundell, his agents, subordinates and employees, filed criminal trespass charges against Plaintiff and his companions, after being fully aware of the investigative alleged facts submitted to Rask by Defendant Blundell and his Office and or Department personnel.
Before addressing whether Plaintiff's Complaint states a valid claim, the Court construes this pro se litigant's pleadings liberally and with a less stringent standard than pleadings drafted by lawyers. With that liberal construction, the Court first tries to determine what claims are raised in the Complaint, before determining whether the Complaint states a valid claim. The Court finds that Plaintiff raises the following claims:
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001).
See Beck v. City of Muskogee Police Dept., 195 F.3d 553, 557-58 (10th Cir. 1999) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
1) State law claim for unlawful arrest and imprisonment;
2) § 1983/Fourth Amendment claim for unlawful arrest and imprisonment;
3) State law claim for conversion;
4) State law claim for malicious prosecution;
5) § 1983/Fourth Amendment claim for malicious prosecution;
6) § 1983/Fifth Amendment claim for taking property;
7) § 1983/Fifth Amendment claim for failing to give Miranda warnings;
8) § 1983/Eighth Amendment claim for unlawful confinement;
9) § 1983/Fourteenth Amendment — Equal Protection Clause for vindictive prosecution;
10) § 1983/Fourteenth Amendment — Procedural Due Process claim;
11) § 1983/Fourteenth Amendment — Substantive Due Process claim for malicious prosecution.
In his response to summary judgment, Plaintiff argues that because the Defendants' motion does not mention Plaintiff's state law negligence or state law fraud claims, the Court should not grant Defendants' summary judgment on those claims. However, even with the most liberal reading of Plaintiff's Complaint, this Court cannot find that Plaintiff has raised, much less stated a valid claim for negligence or fraud. The Complaint neither mentions "negligence" or "fraud," nor sets forth facts that could be construed to raise such claims. Therefore, the Court concludes that Plaintiff has not stated any claim for negligence or fraud.
III. Standard for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." In determining whether any genuine issues of material fact exist, the Court must construe the record liberally in favor of the party opposing the summary judgment. If an inference can be deduced from the facts that would allow the nonmovant to prevail, summary judgment is inappropriate.
Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993).
Anderson, 477 U.S. at 248.
Id.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, OK., 942 F.2d 737, 743 (10th Cir. 1991).
Applied Genetics Intern., Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citing Celotex, 477 U.S. at 324).
McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988) (citation omitted).
United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir. 1986) (citation omitted).
IV. Claims that are Procedurally Barred
All but one of Plaintiff's eleven claims are procedurally barred by either the Rooker-Feldman doctrine or time barred by the applicable statute of limitations.
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
A. Rooker-Feldman Doctrine
The District Court of Labette County, Kansas, in an order issued May 10, 2001, granted Defendants summary judgment on these very claims. The Rooker-Feldman doctrine prevents a party who loses at the highest state court from seeking review of that decision in United States District Court. While Plaintiff does not characterize this as an appeal of the Kansas Court of Appeals' affirmation of the grant of summary judgment by the state district court, filing these claims, of the same nature, is essentially seeking review of that decision. The same parties and the same claims are involved in both cases and a state court of appeals is recognized as the highest court for purposes of the doctrine. The state court granted summary judgment on all of Plaintiff's claims, save the claim for malicious prosecution. Accordingly, the Rooker-Feldman doctrine bars Plaintiff from seeking, in substance, what would be an appellate review of the state judgment in a United States trial court.
Id.
Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994).
B. Time Barred Claims
Even if the Rooker-Feldman doctrine did not apply here, nearly all of Plaintiff's state and federal claims are barred by the applicable statutes of limitation.
1. State Law Claims
In his response to Defendants' summary judgment motion, Plaintiff concedes that his state law claim for conversion is barred by the statute of limitations. Under Kansas law, there is a two year limitations period for conversion claims; and the cause of action arises "when substantial injury first appears or when it becomes reasonably ascertainable." Plaintiff's cause of action accrued on May 17, 1996, when the property he claims was converted, was seized by the county; the limitations period ran on May 17, 1998, almost two years before he filed this action on April 26, 2000.
K.S.A. 60-513(2)(4); Kingvision Pay Per View, Ltd. v. Richard Bowers George Bowers, Inc., 36 F. Supp.2d 915, 918 (D.Kan. 1998).
Clark Jewelers v. Satterthwaite, 662 P.2d 1301 (Kan.Ct.App. 1983).
Plaintiff also concedes that his state law claim for unlawful arrest and imprisonment is barred by the statute of limitations. Under Kansas law, an action for false arrest or imprisonment must be brought within one year. The cause of action accrues at the time that plaintiff could have first pursued legal relief, which is at the time the complained of conduct, that is the arrest, detention or imprisonment occurred. Because Plaintiff was arrested and detained in May 1996, the one year limitations period expired long before he filed this action.
K.S.A. 60-514(b); See also, Gariety v. Fleming, 245 P. 1054 (1926) (explaining that under Kansas law, the terms "false arrest" and "false imprisonment" are used synonymously to mean "any unlawful physical restraint by one of another's liberty, whether in prison or elsewhere").
See Thompson v. Gen. Fin. Co., 468 P.2d 269 (1970) ("In an action for false arrest or false imprisonment, all that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which the one being restrained fears to disregard.")
Johnson v. Johnson County Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991) ("claims arising out of police actions toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur.")
Plaintiff's state law claim for malicious prosecution is also time barred. Under Kansas law, actions for malicious prosecution must be brought within one year. Unlike a claim for false arrest or imprisonment, the cause of action does not accrue at the commencement of the prosecution, but accrues after the proceedings have terminated in favor of the person prosecuted. Because one of the elements of this cause of action is that the proceeding has terminated in favor of the person prosecuted, the cause of action cannot accrue until the proceeding has terminated. At that time Plaintiff would or should know that his rights had been violated by the prosecution. The district court ruled in Plaintiff's favor on the motions to suppress. But, the final determination in Plaintiff's favor was on February 13, 1998, when the Kansas Court of Appeals issued its decision affirming the district court's suppression of the evidence; and on May 17, 1998, when the district court entered an order dismissing the criminal case. This malicious prosecution claim arose, as a matter of federal law, when the charges against Plaintiff were dismissed. Thus, the one year limitations period had expired when Plaintiff filed this action on April 26, 2000.
Plaintiff raises § 1983 claims for malicious prosecution, for violation of both the Fourth Amendment and the Substantive Due Process Clause of the 14th Amendment. Aside from being time barred, it should be noted that malicious prosecution claims may be actionable under the Fourth Amendment, but not properly brought as Fourteenth Amendment violations. See Albright v. Oliver, 510 U.S. 266, 274 (1994) (Rehnquist, C.J. plurality) (rejecting plaintiff's categorization of a malicious prosecution claim under a substantive due process theory and stating that a malicious prosecution claim, if viable, must arise under the Fourth Amendment).
Lindenman v. Umscheid, 875 P.2d 964, 974 (1994) (citing Nelson v. Miller, 607 P.2d 438, 443 (1980)).
Beck, 195 F.3d at 557; See also Robinson v. Maruffi, 895 F.2d 649, 654-55 (10th Cir. 1990).
2. Federal Law Claims
With respect to § 1983 claims based on violations of state law, Congress failed to specify a federal statute of limitations. Title 42 U.S.C. § 1988 directs the courts to first consider whether there is a federal rule that can be employed; and failing that, to consider state common law, as modified by the state's statutes and rules, and to apply that so long as it does not conflict with the United States Constitution and laws. In Wilson v. Garcia, the Supreme Court directed that in § 1983 actions, the courts should use the appropriate state's general statute of limitations for personal injury. Even if the state has a specific statute of limitations for the tortious conduct, as Kansas has specific statutes of limitation for false arrest or imprisonment and malicious prosecution, the courts are nevertheless directed to use the state's general statute of limitations for personal injury.
471 U.S. 261, 280 (1985).
Owens v. Okure, 488 U.S. 235, 249-50 (1989).
Although Plaintiff does not so concede, his § 1983 claim for false arrest and imprisonment in violation of the Fourth Amendment, is also time barred, by the same two year statute of limitations applicable to state claims for false arrest or imprisonment While the general personal injury statute is employed for the statute of limitations, when a § 1983 claim accrues, is a matter of federal law. This claim accrued at the time of the warrantless arrest for criminal trespass, or detention on May 16, 1996, because at that time he knew or should have known that his constitutional rights had been violated. Applying the general two year statute of limitations applicable to personal injury actions under Kansas law, the limitations period expired on May 16, 1998, long before Plaintiff filed this action.
Robinson, 895 F.2d at 655 n. 8.
Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1154 (10th Cir. 1998) (because the injury in a § 1983 case is the violation of a constitutional right, such claims accrue when the plaintiff knows or should know that his or her constitutional rights have been violated).
K.S.A. § 60-513(a)(4); Johnson, 925 F.2d at 1301.
To the extent Plaintiff states a valid § 1983 claim for violations of the Fifth Amendment in the "taking" of his seized property on May 17, 1996 and the failure to give him Miranda warnings at the time of his arrest on May 16, 1996, these claims are also barred by the two year statute of limitations.
If Plaintiff states a valid § 1983 claim for violation of the Eighth Amendment for unlawful confinement, it too is time barred. Plaintiff was detained on May 16, 1996, such that any such cause of action accrued in 1996, more than two years before this action. Moreover, Plaintiff fails to state a valid Eighth Amendment claim, because "[t]he Eighth Amendment's proscription against cruel and unusual punishment is only applicable following a determination of guilt after a trial or plea." Plaintiff was initially detained on the warrantless arrest for criminal trespass, but later arrested on the information/complaint that was supported by probable cause at the time issued. Because these charges in the information/complaint were ultimately dismissed because the seized evidence and statements providing probable cause were suppressed, Plaintiff prevailed and was never confined post-conviction. Thus, his Eighth Amendment rights were never implicated. The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," or when an issue of law is dispositive.
Bell v. Wolfish, 441 U.S. 520, 535 n. 16, (1979); Weimer v. Schraeder, 952 F.2d 336, 340 n. 5 (10th Cir. 1991) (citations omitted).
Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Plaintiff's § 1983 claims for violations of the Equal Protection Clause of the Fourteenth Amendment and his right to procedural due process, and his claim for conspiracy to deprive him of equal protection, are also time barred. Plaintiff's equal protection claim and conspiracy claim, are apparently based on a theory of selective or vindictive prosecution. This cause of action would have accrued at the earliest on May 16, 1996, when charges were filed, or at the latest, sometime before the Kansas Court of Appeals decision on February 13, 1998, when the prosecutor would have taken his last act in furtherance of prosecution, appealing, briefing and arguing to the Kansas Court of Appeals, that the district court's order of suppression should be reversed. In any event, this conduct occurred more than two years before Plaintiff filed this action on April 26, 2000.
See York v. Sec. of Treasury, 774 F.2d 417, 422 (10th Cir. 1985) (construing the plaintiff's claim as one of selective enforcement).
With respect to Plaintiff's claim of procedural due process, although he does not identify with any particularity how he was deprived of procedural due process, the earliest this could have occurred was on May 16, 1996, when he was arrested and detained; and the latest it could have occurred was at or during the time of the appeal by the county. Thus, to the extent Plaintiff stated a claim for deprivation of procedural due process, it is time barred.
The Court notes that in view of the process evident in this record, it is unlikely that Plaintiff can state a claim for deprivation of procedural due process. He was initially arrested without a warrant on May 16, 1997, for criminal trespass; but that arrest was not supported by probable cause, a determination made by the court in dispensing due process. Plaintiff was then charged with drug violations in an information/complaint that was supported by probable cause, another determination made by the court in dispensing due process. Although the court ultimately found that there was no probable cause, that determination was made after evidence and statements were suppressed on Plaintiff's motion, all occurring within the due process accorded by the courts. The only claim not time barred or barred by the Rooker-Feldman doctrine, is Plaintiff's § 1983 claim for malicious prosecution under the Fourth Amendment; however, plaintiff fails, as a matter of law, to state a claim under § 1983.
See Garcia v. City of Albuquerque, 232 F.3d 760, 769 (10th Cir. 2000) (a due process claim requires not only deprivation of a protected liberty interest, but that the deprivation occurred without the appropriate levels of due process).
V. § 1983 Claim for Malicious Prosecution in Violation of Fourth Amendment
Defendants do not argue that Plaintiff's § 1983 claim for malicious prosecution is time barred. The Court concludes that because this claim accrued on May 17, 1998, when the prosecution dismissed the charges, Plaintiff's action was filed before the two year limitations period expired. A § 1983 claim based on malicious prosecution is actionable. Such claims are analyzed under the Fourth Amendment. Although Plaintiff also characterizes his malicious prosecution claim as a deprivation of his right to substantive due process under the Fourteenth Amendment, in Albright, the Supreme Court stated that a malicious prosecution claim, if viable, must arise under the Fourth Amendment and is not properly brought as a claim for deprivation of substantive due process.
Beck, 195 F.3d at 557; See also Robinson, 895 F.2d at 654-55.
While Plaintiff's state law claim for malicious prosecution is subject to the one year state statute of limitations for malicious prosecution claims, Plaintiff's § 1983 claim for malicious prosecution is subject to the general, two year state statute of limitation for personal injury actions, K.S.A. § 60-513(a)(4). Wilson, 471 U.S. at 276; Johnson, 925 F.2d at 1300-01.
Taylor v. Meacham, 82 F.3d 1556, 1560 (10th Cir. 1996), cert. denied, 519 U.S. 871 (1996).
Albright, 510 U.S. 266.
Id. at 274.
See also, Taylor, 82 F.3d at 1561.
In analyzing a § 1983 claim for malicious prosecution, the court begins with the elements of this common law cause of action under Kansas law: (1) the defendant instituted, procured or continued the criminal proceeding of which the complaint is made; (2) the defendant in so doing acted without probable cause and with malice; (3) the proceeding terminated in favor of the plaintiff; and (4) the plaintiff sustained damages.
Braun v. Pepper, 578 P.2d 695 (1978); Thompson, 468 P.2d 269.
Plaintiff fails to state a claim for malicious prosecution as a matter of law, because Plaintiff cannot show under any circumstances, that Defendant Rask instituted, procured, or continued a criminal proceeding without probable cause. Although Plaintiff was originally arrested by defendant Blundell for criminal trespass, Rask initiated prosecution with the filing of the criminal information/complaint of drug charges. The court found that there was probable cause for Rask's filing of the information/complaint at the time he filed it. Plaintiff does not appear to assert a malicious prosecution claim against Blundell, for his warrantless arrest of Plaintiff for criminal trespass; and no such claim would exist, for malicious prosecution requires the initiation of charges. Blundell's warrantless arrest of Plaintiff never resulted in the initiation of criminal charges for criminal trespass. And Plaintiff does not state that Blundell personally participated in the initiation of the charges in the information/complaint. Even if he did, qualified immunity would protect him, as the court determined that there was probable cause for the charges in the information/complaint at the time it was issued.
See Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (only where the warrant application is so lacking in indicia of probable cause that an official would be unreasonable to believe that probable cause existed, will an officer applying for a warrant not be protected by qualified immunity).
A. Defendant Rask's Absolute Immunity from Malicious Prosecution Claim
Even if Plaintiff has stated a valid claim for malicious prosecution against Defendant Rask, as a prosecutor, Rask enjoys absolute immunity from suit under § 1983 for any and all activities "intimately associated with the judicial . . . process," such as "initiating and pursuing criminal prosecutions." Thus, a prosecutor is absolutely immune from suit for the decision to prosecute; any related investigatory or evidence gathering actions; evaluation of the evidence and determination of whether there is probable cause; the determination of what information to present to the court and the drafting of affidavits, or other documents associated with the court's determination of probable cause. This immunity applies even when there is evidence of improper motivation or malice and even when the prosecutor is alleged to have withheld or misstated evidence. As a matter of law, then, Defendant Rask is absolutely immune from suit for many of the acts that Plaintiff complains about: a misrepresentation in the affidavit in support of the search warrant, that Plaintiff had been taken into custody for cultivation of marijuana, when he actually had been arrested for criminal trespass; a misrepresentation that the drug dog, Sting, had been certified; and the court's determination that there was no probable cause to charge Plaintiff with criminal trespass.
Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1489 (10th Cir. 1991) (quoting Imbler v. Pachtman, 424 U.S. 409 (1976)).
Hammond v. Bales, 843 F.2d 1320, 1321 (10th Cir. 1988).
Imbler, 424 U.S. at 431, n. 33; Scott v. Hern, 216 F.3d 897, 909 (10th Cir. 2000) (prosecutor is immune for investigatory conduct or from failure to conduct an adequate or independent investigation).
Kalina v. Fletcher, 522 U.S. 118, 130 (1997).
Lerwill v. Joslin, 712 F.2d 435, 441 (10th Cir. 1983).
Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1373 n. 4 (10th Cir. 1991) ("Whether the claim involves withholding evidence, failing to correct a misconception or instructing a witness to testify evasively, absolute immunity from civil damages is the rule for prosecutors,") cert. denied, 502 U.S. 1091 (1992).
Yet there are limits to the absolute immunity accorded prosecutors. Although many actions may be absolutely protected, some acts performed by a prosecutor are accorded only qualified immunity.
B. Defendant Rask's Qualified Immunity from Malicious Prosecution Claim
In Burns v. Reed, the Supreme Court distinguished the prosecutor's misleading presentation of evidence at the probable cause hearing (absolute immunity) from the prosecutor's providing legal advice to the police (qualified immunity). The key to absolute immunity, as the Court had noted in Buckley v. Fitzsimmons, is whether the challenged action is linked to the judicial process; and further, whether at common law, such action was accorded immunity.
500 U.S. 478 (1991).
509 U.S. 259, 271-73 (1993).
Using this analysis, in Kalina v. Fletcher, the Supreme Court drew a bright line between sworn and unsworn pleadings filed by a prosecutor. The Court held that the prosecutor had absolute immunity for filing an unsworn information and motion for arrest warrant, but the prosecutor had only qualified immunity for filing and personally vouching for the truthfulness of facts in a certificate for determination of probable cause. Common law had not protected prosecutors from this type of action; traditional law enforcement officers served as affiants and attested to the truthfulness of statements made in support of probable cause.
Thus, Rask's conduct in filing a sworn information/complaint charging Plaintiff with cultivation of marijuana, is not protected by absolute immunity. But, this conduct may be protected by qualified immunity from suit under § 1983, even if the affidavit was false or vouched for false statements in a criminal complaint, if Rask's conduct was objectively reasonable. In Malley v. Briggs, the Supreme Court articulated this standard as "[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable . . . will the shield of immunity be lost." Where officers of reasonable competence could disagree on the existence of probable cause and whether a warrant should issue, the actor is entitled to qualified immunity. Of course, Rask's conduct was objectively reasonable; for the court found that there was probable cause for the charges in Rask's sworn information/complaint.
Id.
VI. Conclusion
Plaintiff's state law claims for unlawful arrest or imprisonment, malicious prosecution and conversion are barred by the Rooker-Feldman doctrine and by the applicable statute of limitations. Plaintiff's complaint fails to mention or raise the state law claims of negligence or fraud; but even if the complaint stated these claims, they too would be time barred. To the extent Plaintiff's complaint states § 1983 claims for violation of the Fourth, Fifth, or Eighth Amendments, these claims are also time barred, as Plaintiff's arrest, detention, custodial interrogation, as well as the search and seizure of Plaintiff's property all occurred in 1996, such that these claims accrued more than two years before this action was filed in April 2000; further, they are also estopped under the Rooker-Feldman doctrine. Plaintiff's claims under the Fourteenth Amendment for deprivation of procedural due process and violation of the equal protection clause by vindictive or selective prosecution, as well as his conspiracy claim for violation of the equal protection clause are also time barred, because the county's efforts to prosecute Plaintiff and the court processes employed to prosecute him ceased no later than February 13, 1998, when the county's appeal of the order of suppression concluded with the Kansas Court of Appeals' decision affirming the suppression order. Finally, although Plaintiff's § 1983 claim of malicious prosecution is not time barred, it too fails. Plaintiff's framing this malicious prosecution claim as a Fourteenth Amendment substantive due process claim fails as a matter of law. And, although properly stated as a Fourth Amendment violation, Defendant Scott Rask is absolutely immune from investigatory and prosecutory actions in initiating and pursuing the prosecution, and enjoys qualified immunity from signing a sworn information/complaint because the court determined that there was probable cause for the information/complaint at the time it was filed. Furthermore, Plaintiff has utterly failed to state a claim of malicious prosecution against Defendant William Blundell.
IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment (Doc. 18) is GRANTED on all claims. THIS CASE IS DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.