Opinion
Civil No. 03-4566 (JRT/AJB)
December 9, 2003
ORDER
Pursuant to 28 U.S.C. § 1915A, a district court is required to screen all complaints filed by prisoners seeking redress from a governmental entity or an officer or employer of a governmental entity. The court must dismiss the case if the court is satisfied that the case is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). In a Report and Recommendation dated September 15, 2003 ("Sept. 15 RR"), United States Magistrate Judge Arthur J. Boylan recommended that plaintiffs application to proceed without prepayment of fees be denied, and that plaintiffs claims be summarily dismissed pursuant to 28 U.S.C. § 1915A(b)(2) as "frivolous, malicious, or fail[ing] to state a claim upon which relief can be granted." Plaintiff filed timely objections to the Sept. 15 R R.
Section 1915(g) provides that " In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." The Magistrate Judge recommended that this lawsuit be counted as a "strike" for the purposes of § 1915(g).
The Court has conducted a de novo review of the plaintiff's objections pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge and dismisses plaintiff's complaint.
The Court's understanding of the background of this case is based on the entire file in this matter. Included with plaintiff's objections was a partial transcript from the Omnibus hearing held August 16, 1999, before Dakota County District Court Judge Mary Pawlenty. To assist the Court's understanding, the Court also reviewed the Minnesota Court of Appeals decision regarding the underlying case. See State v. Bettinger, 2001 WL 267433 (Minn.Ct.App. March 20, 2001).
In 1997, plaintiff was charged with second-degree criminal sexual conduct. Plaintiff filed a petition to enter a plea of guilty based on a plea agreement negotiated by his attorney and the assistant county attorney. State v. Bettinger, 2001 WL 267433 at *1 (Minn.Ct.App. March 20, 2001). The plea agreement provided for a stay of imposition and 25 years of probation, with various conditions of probation, including completion of sex-offender treatment. Id. Plaintiff never entered a sex-offender treatment program. Following a contested revocation hearing, the district court revoked plaintiff's probation and executed the 21-month sentence. The Court also added a mandatory five-year conditional release term. Id. Plaintiff later filed a post conviction petition, claiming the failure to inform him that the conditional-release period would be imposed if his probation was revoked invalidated the plea. Id. The district court granted the petition. The State appealed, and the appeal was stayed for some time, pending the Supreme Court's decision in another case. Id. at *1. The stay was lifted, and the Minnesota Court of Appeals reversed and reinstated plaintiff's guilty plea, conviction, and sentence. Id. at *3.
II. Objections
Plaintiff alleges that during the pendency of the appeal, plaintiff was "re-charged" for the same underlying crime. This "re-charge" appears to be the main basis of his complaint. Specifically, plaintiff complains that this "re-charge" violates his constitutional rights, including the Fifth Amendment right to due process rights, and the double-jeopardy clause. Plaintiff also complains that by failing to inform the Minnesota Court of Appeals that plaintiff had been "re-charged," defendant's violated his right to due process.
Plaintiff takes issue with how the county attorney, and assistant county attorneys treated his case. He complains that the basis of his arrest was never explained to him, and the conditions of bail were not adequately explained. Plaintiff also protests that the appeal of the post-conviction decision was not filed until 58 days after the decision was issued. He similarly alleges that the appellate process took too long. Plaintiff also complains that he does not know the disposition of the "re-charge." Plaintiff concludes that the county attorney and assistant county attorney are not entitled to immunity for their actions in this case because these actions violated clearly established law.
These complaints would appear more adequately addressed to the presiding judge. However, the transcript of the Omnibus hearing, including comments from plaintiff's attorney, as well as the presiding judge, reveals that plaintiff seemed to understand what was occurring, and it was clearly explained to him that he could not leave the State of Minnesota without permission from the court.
The transcript from the Omnibus hearing indicates that plaintiff understood that the State had a right to appeal the post-conviction decision, and that the appeal would take some time. See Transcript from August 16, 1999 Omnibus hearing, attached to plaintiffs objections (the assistant county attorney noted, `The State will be filing an appeal of the Post Conviction Order this week . . . and it will take some time to make its way through the Court of Appeals" and plaintiffs attorney stated in response, "I have informed my client of that [the appeal], and he understands what's going on. He is not happy about it, but he knows that the State does have the right to make their appeal.").
III. Analysis
As the Magistrate Judge explained in the Sept. 15 RR, prosecutors are immune from civil rights claims that are based on actions taken in the performance of their prosecutorial duties. See Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976); Patterson v. Von Riesen, 999 F.2d 1235, 1237 (8th Cir. 1993); Snelling v. Westhof, 972 F.2d 199, 200 (8th Cir. 1992). The Magistrate Judge interpreted plaintiff's complaints as attempting to impose liability on defendants for activities that were clearly prosecutorial in nature.
After reviewing plaintiff's objections, it is clear that none of plaintiff's complaints undermine the defendants' prosecutorial immunity. As an initial matter, the appeal of the post-conviction decision was filed in a timely manner. See Minn. R. Crim. P. 28.02. Although the appellate decision seemed to take a long time, the Court notes that much of the time is attributable to a stay of the appeal while the Supreme Court took action on a case that the was likely to be dispositive of plaintiffs case. That delay is in no way attributable to prosecutorial misconduct, and the legitimate filing of a stay is clearly entitled to immunity. See, e.g., Smith v. Shelby County, Tenn., 3 Fed. Appx. 436 (6th Cir. Feb. 6, 2001) (holding that county prosecutor was protected by prosecutorial immunity in § 1983 action in which state prisoner alleged that prosecutor had violated his rights by delaying adjudication of his petition for post-conviction relief, and motion to set aside his guilty plea). Similarly, the decision of what to include in an appellate brief is a traditional function of an advocate. Therefore, the alleged failure to inform the appellate court of the refiling of the charges is entitled to immunity. See Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996) (noting that where the prosecutor is acting as an advocate for the state in a criminal prosecution, the prosecutor is entitled to absolute immunity).
Plaintiffs argument regarding qualified immunity is misplaced. Qualified immunity would apply only if the prosecutors were not performing the traditional functions of advocates. See, e.g., Kalina v. Fletcher, 522 U.S. 118 (1987) (discussing absolute immunity). However, the allegations brought by plaintiff all involve conduct that is clearly encompassed by the "traditional functions of an advocate." Even if a qualified immunity inquiry were appropriate, none of the alleged conduct of the defendants in this case violated clearly established law.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES plaintiffs objection [Docket No. 7] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 6]. Accordingly, IT IS HEREBY ORDERED that1. Plaintiff's application to proceed without prepayment of fees [Docket No. 2] is DENIED;
2. Plaintiffs complaint [Docket No.] is summarily DISMISSED with prejudice, pursuant to 28 U.S.C. § 1915A(b)(2); and
3. For the purposes of 28 U.S.C. § 1915(g), this action is dismissed "on the grounds that it is frivolous, malicious, or fails to state a claim on which relief may be granted.