Opinion
No. C98-2088
June 10, 1999.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to defendants Heiser and Koehrsen's March 15, 1999 motion for summary judgment (docket number 16) and defendant Griffith's March 22, 1999 motion for summary judgment (docket number 18). This matter has been referred to the undersigned United States Magistrate Judge for issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned recommends that defendants' motions for summary judgment be granted.
The plaintiff in this case, Terrence Goodson, brings this case under 42 U.S.C. § 1983. Specifically, Goodson claims that defendants Dennis Heiser and Bernal Koehrsen violated his 14th Amendment rights by depriving him of property without due process of law. Heiser is employed as a property clerk with the Waterloo Police Department. Koehrsen is the Chief of Police of the Waterloo Police Department. Goodson premises Koehrsen's liability on the allegation that Koehrsen failed to train, supervise, and control Heiser's actions as a property clerk. Heiser and Koehrsen argue that they are entitled to summary judgment on Goodson's claim because the chapter of the Iowa Code governing forfeitures provides that the prosecuting attorney has the sole authority and responsibility for initiating and prosecuting a forfeiture action. Defendant Kimberly Griffith is employed as an Assistant Black Hawk County Attorney. Griffith claims that she is entitled to summary judgment because Goodson was, in fact, provided notice of the forfeiture proceeding. Additionally, Griffith claims that summary judgment is appropriate under the theory of prosecutorial immunity.
Summary Judgment
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1014 (1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert. denied, 474 U.S. 1057 (1986) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983), cert. denied, 465 U.S. 1026 (1984)).
Statement of Material Facts Not in Dispute
In March of 1996, the Waterloo Police Department executed a search warrant at Goodson's residence. Certain property was seized from the residence and used as evidence in Goodson's federal narcotics prosecution. In September of 1996, Assistant Black Hawk County Attorney Kim Griffith initiated a forfeiture proceeding covering the following property which was seized from Goodson's residence: $210.00 cash, an electronic memo master, a cellular phone, a pager, and a scale. On October 8, 1996, the Iowa District Court for Black Hawk County signed a forfeiture order for Goodson's property. In that order, the judge noted that proper notice had been given. Goodson failed to file an answer to the forfeiture proceeding, and the property was forfeited.
CONCLUSIONS OF LAW Defendants Heiser and Koehrsen
Heiser and Koehrsen claim that they cannot, as a matter of law, be liable for a failure to provide notice of a forfeiture proceeding because the sole responsibility and authority to conduct a forfeiture action lies with the prosecuting attorney. The court has examined Iowa Code Chapter 809A and agrees with the defendants. The property clerk has no responsibility for providing notice to a claimant in a forfeiture proceeding. Therefore, Heiser cannot, as a matter of law, be liable for failing to do something for which he owed no duty to do. Likewise, Koehrsen cannot be liable, as a matter of law, for failing to train, supervise, and control Heiser when Goodson cannot show that Heiser did anything wrong. Heiser and Koehrsen's motion for summary judgment should be granted.
Defendant Griffith — Notice
Griffith claims that she is entitled to summary judgment on Goodson's claim because she has shown that Goodson did, in fact, receive notice of the forfeiture proceeding. Moreover, Griffith argues that summary judgment is appropriate because prosecutorial immunity acts to insulate her from the charges made against her. The court agrees.
In support of her motion for summary judgment, Griffith has provided ample evidence that Goodson was provided notice of the pending forfeiture proceeding. On September 4, 1996 Griffith sent a memo to the Tri-County Drug Task Force consisting of a list of persons to be served in rem forfeiture complaints. Terrence Goodson's name was on the list. A return of service dated September 12, 1996 shows that Deputy Larry Wessels of the Tri-County Drug Task Force served Goodson with the notice of the pending forfeiture action. On October 8, 1996, the Iowa District Court for Black Hawk County entered a forfeiture order authorizing the forfeiture of Goodson's property. The court's order indicates that it examined the prosecuting attorney's application for forfeiture and accompanying documents, and found that proper notice had been given.
Prosecutorial Immunity
The underlying rationale of prosecutorial immunity, as set forth by the United States Supreme Court, is as follows:
The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.Imbler v. Pachtman, 424 U.S. 409, 422-423, 96 S. Ct. 984, 992-993 (1976).
The Third Circuit Court of Appeals addressed the issue of whether the rationale of Imbler applies to a prosecuting attorney's initiation of an in rem civil proceeding for the forfeiture of criminal property. Schrob v. Catterson, 948 F.2d 1402 (3rd Cir. 1991). Noting that an Assistant United States Attorney is the government's advocate in civil litigation, the court held that the prosecutor's actions in initiating an in rem prosecutions were protected by absolute immunity. Id. at 1413. Furthermore, from a policy perspective, the court determined that there was no distinction to be made between a prosecutor acting as the government's advocate in a criminal as opposed to a civil proceeding. Id. at 1412. "Exposing a prosecutor to personal liability for initiating an in rem proceeding may cause him to hesitate before carrying out his duty to confiscate the proceedings of drug transactions." United States Courts of Appeals for the Seventh, Ninth, and Tenth Circuits have made the same determination. See Mendenhall v. Goldsmith, 59 F.3d 685, 691 (7th Cir. 1995) (holding that absolute immunity attached to the prosecutor's conduct in forfeiting plaintiff's property); Vosburgh v. Welch, 166 F.3d 344, 1998 WL 904675*1 (9th Cir. 1998) (unpublished table decision holding that absolute immunity barred plaintiffs' claim for damages when the actions of the prosecutors were taken in preparation of the civil forfeiture proceeding); Ferrer v. Daily, 104, 367, 1996 WL 731618*1 (10th Cir. 1996) (unpublished table decision holding that prosecutors would be protected by absolute immunity for their actions in civil forfeiture proceedings).
The Iowa Supreme Court followed the Imbler decision in holding that prosecutors are entitled to the same immunity as judges. Blanton v. Barrick, 258 N.W.2d 306, 309 (Iowa 1977). The Blanton court likewise reasoned that prosecutors performing their official duties should be able to proceed vigorously without the fear of unlimited civil litigation. Id. See also Gartin v. Jefferson County, 281 N.W.2d 25, 30 (Iowa Ct.App. 1979) (holding that prosecutors in Iowa are immune from liability for their official acts). Moreover, prosecutorial immunity is not limited to criminal prosecutions. Hanson v. Flores, 486 N.W.2d 294, 296 (Iowa 1992).
When Griffith initiated the forfeiture proceeding, she was performing one of her official duties as an Assistant Black Hawk County Attorney. As stated above, Griffith possessed the sole responsibility and authority for commencing a forfeiture proceeding. Therefore, Griffith's actions relating to this official duty are covered by prosecutorial immunity.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, defendants Heiser and Koehrsen's motion for summary judgment (docket number 16) be granted. It is further recommended that defendant Griffith's motion for summary judgment (docket number 18) be granted.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must also specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).