Opinion
Case No. 2:00-CV-954 TS.
April 27, 2005
This matter came before the court on April 14, 2005, for hearing on all pending motions, including Defendant Midgley's Motion for Partial Summary Judgment on the basis of prosecutorial immunity.
I. PROCEDURAL BACKGROUND
In addition to opposing Defendant Midgley's Motion for Partial Summary Judgment, Plaintiff seeks leave to amend his complaint to add a claim under § 1983 based on his allegation that Mr. Midgley violated his civil rights with regard to his alleged actions in discovery in this case and in connection with the Rumery hearing. The court notes that Plaintiff's request for leave to file an amended complaint is contained in an unauthorized supplemental brief. The history of that briefing is as follows: On August 3, 2004, the parties were directed to file simultaneous supplemental briefing on Defendant Midgley's Motion for Partial Summary Judgment on September 1, 2004, with optional replies to be filed 15 days later. The parties filed their supplemental memoranda and optional replies were filed by September 20, 2004. Thereafter, the parties filed a series of unauthorized documents. See DUCivR 7-1(b)(3) (permitting memoranda in support of, in opposition to, and in reply to motions and providing "no additional memoranda shall be considered without leave of court").On December 8, 2004, Defendants filed what they styled a "Second Supplemental Memorandum in Support of Defendant Midgley's Motion for Partial Summary Judgment (Second Supplemental Memorandum). It was accompanied by the Affidavit of Defendants' counsel, Andrew Morse, who attached voluminous exhibits generally having to do with the limited discovery permitted regarding Defendant Midgley's knowledge of the audiotape. On January 28, 2005, Plaintiff filed his Memorandum in Opposition to Second Supplemental Reply. In this document, Plaintiff sought to amend his Complaint and also sought sanctions against Defendant Midgley in the form of either entry of judgment against him or an award of attorney's fees and costs against him. Thereafter, Defendants sought to file a document styled "Defendant Van Midgley's Second Supplemental Reply in Support of Motion for Partial Summary Judgment" (Second Supplemental Reply). Plaintiff thereafter objected to the filing of the Second Supplemental Reply and the Objection was set for hearing at the April 14, 2005, hearing.
The court did not address Plaintiff's request for leave to file an amended complaint or his request for sanctions in the form of judgment and/or attorney's fees and costs because they were contained in the series of unauthorized filings. However, at the close of the hearing, Plaintiff's counsel requested a ruling on those matters. Rather than delay this case further by declining to address matters in the unauthorized filings, and thereby requiring the matters to be addressed in a new round of motions regarding amending the complaint and/or for sanctions, the court will decide those matters herein. However, in fairness to Defendants, the court hereby amends its oral ruling and will consider the Second Supplemental Reply.
II. DEFENDANT MIDGLEY'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant Midgley seeks partial summary judgment asserting absolute immunity as a prosecutor.
The standard for summary judgment is well known:
Summary judgment is proper only if there is no genuine issue of material fact for determination, and the moving party is entitled to judgment as a matter of law. . . . We review the entire record on summary judgment . . . in the light most favorable to the party opposing summary judgment.Durham v. Herbert Olbrich GMBH Co., ___ F.3d ___, 2005 WL 896432, *1 (10th Cir. 2005) (quoting Riley v. Brown Root, Inc., 896 F.2d 474, 476 (10th Cir. 1990)).
The issue raised by the motion is simple: whether Mr. Midgley is entitled to prosecutorial immunity for his alleged actions during the times covered by the Complaint. The court will first address Mr. Midgley's status at the times alleged in the Complaint.
It is well established that prosecutors are absolutely immune from suit under § 1983 concerning activities "intimately associated with the judicial . . . process," such as initiating and pursuing criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). A prosecutor's decision regarding dismissal of charges is entitled to absolute prosecutorial immunity because it is "intimately associated with the judicial phase of the criminal process." Id. at 430 n. 33; Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982). In making its determination of a party's entitlement to prosecutorial immunity, this court applies a "functional approach" looking at the type of function that the defendant performed at the times in question. Id.; Kalina v. Fletcher, 522 U.S. 118, 127 (1997) ("in determining immunity, we examine `the nature of the function performed, not the identity of the actor who performed it'") (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). The court finds that Defendant Midgley's alleged actions in connection with the subsequent Rumery evidentiary hearing, held two years after the Complaint was filed, are irrelevant to the analysis of his function at the time of the actions alleged in the Complaint.
Viewing the facts in the light most favorable to Plaintiff, it is undisputed that Murray City arranged for Mr. Midgey, of the Sandy City Prosecutor's Office, to handle Plaintiff's criminal case after the charges had already been filed against Plaintiff and he had been arraigned on those charges. According to Plaintiff, he first met Defendant Midgley in the hallway prior to a hearing in his criminal case when Defendant Midgley introduced himself as the prosecutor in the case. Pl.'s Mem. in Opp., Ex. 1 (Pl.'s Depo.) at 100-101. At that time, Plaintiff gave Defendant Midgley a recantation letter written by the party whose call to 911 for assistance precipitated the events culminating in Plaintiff's arrest and the criminal charges. See Trans. of Rumery Hearing, February 26, 2003, at 256-57. Mr. Midgley, acting as prosecutor, evaluated the case and offered Plaintiff a resolution of his criminal charges. Plaintiff's evidence is that the resolution, a plea in abeyance, was presented to him as a "diversion."
Plaintiff's Memorandum in Opposition to Defendants' Motion (1) to Enforce Release-Dismissal Agreement; (2) for Evidentiary Hearing on Enforceability of Release-Dismissal Agreement, and (3) for Partial Summary Judgment re: Defendant Midgley.
The circumstances of the subsequent meeting or meetings between Mr. Midgley and Plaintiff are disputed. Plaintiff's evidence is that he met with Mr. Midgley regarding the proposed release-dismissal agreement, that Mr. Midgley forced him to sign the release-dismissal required by the plea in abeyance, and that Mr. Midgley did so by means of physical and psychological coercion, duress and threats of imprisonment. It is undisputed that the events surrounding the signing of the release-dismissal agreement occurred when Mr. Midgley was performing his role as prosecutor in connection with an Order to Show Cause in Plaintiff's then-pending criminal case. The court finds that the type of functions that Defendant Midgley was performing at the times in question were intimately associated with the judicial process.
In the Tenth Circuit case of Hammond v. Bales, 843 F.2d 1320, 1321 (10th Cir. 1988), the Tenth Circuit found that a prosecutor's activities in a plea bargaining context warrant absolute immunity. The court finds that Mr. Midgley's alleged acts in negotiating and enforcing the terms of a plea in abeyance were part of the prosecutor's role as an advocate and are covered by absolute immunity. This includes the exercise of his professional judgment in such matters as his evaluation of the evidence, his decision to offer Plaintiff a resolution of the charges, his negotiating the terms of a resolution that included a release of any civil claims, meeting with Plaintiff regarding any unfulfilled conditions of the plea in abeyance, and other matters arising in the criminal case.
The court has considered Plaintiff's arguments to the contrary and is not persuaded. The fact that, at the times in question, Defendant Midgley was continuing to act in his role as an advocate in ongoing criminal proceedings distinguishes the present case from several cases relied upon by Plaintiff. For example, in Spurlock v. Thompson, 330 F.3d 791 (6th Cir. 2003), the Sixth Circuit found that the prosecutor was not entitled to immunity for his alleged actions in using threats and coercion to try to coverup past wrongdoing during two criminal trials because those alleged actions occurred during an administrative investigation occurring a year after the conclusion of the last of the two trials. Id. at 798-99.
[The prosecutor defendant] clearly acted as an advocate during the second prosecutions of [the plaintiff]. However, at the time of the alleged coercion and threats, those prosecutions had concluded. There were no ongoing adversarial proceedings. Absolute immunity applies to the adversarial acts of prosecutors during post-conviction proceedings, including direct appeals, habeas corpus proceedings, and parole proceedings, where the prosecutor is personally involved in the subsequent proceedings and continues his role as an advocate. However, where the role as advocate has not yet begun, namely prior to indictment, or where it has concluded, absolute immunity does not apply.Id. 330 F.3d at 799 (citation omitted). In Houston v. Parte, 978 F.2d 362 (7th Cir. 1992), another case relied upon by Plaintiff, the Seventh Circuit similarly found that at the time of the alleged acts in question, the prosecutors were not performing a function entitled to absolute immunity because they were not personally involved in the post-conviction proceedings. 978 F.2d 362. See also Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (no immunity for prosecutor's investigative actions prior to case or for remarks during press conference after case filed) and Kalina, supra (distinguishing between functions as advocate and acts as a witness swearing to the veracity of the facts in an arrest warrant).
In the present case, it is undisputed that Defendant's criminal case was not dismissed until the end of the nine-month plea in abeyance term, which was several months after the release-dismissal was signed.
The court also notes that Rumery, also relied upon by Plaintiff, did not involve a claim of prosecutorial immunity because the prosecutor was not a defendant in that case. Id. 480 U.S. at 394 n. 5 (dicta discussion of prosecutorial immunity). Instead, the Rumery court addressed its concern with the potential for prosecutorial misconduct when obtaining release-dismissal agreements by including such misconduct in the evaluation of whether the defendants have proved the release-dismissal agreement was voluntarily made. Id. at 401-02 (O'Connor, J concurring).
Town of Rumery v. Newton, 460 U.S. 386 (1987).
The actions of a prosecutor do not lose their immune status because his or her action are alleged to constitute misconduct. Instead, the court determines whether, at the time of the alleged acts, the prosecutor's function was "intimately associated with the judicial phase of the criminal process." Imbler, supra. If it was so intimately associated, then the prosecutor is absolutely immune for his or her activities in such role — whether the alleged acts were wrongful or not. See Spurlock, 330 F.3d at 798 (affording absolute immunity to prosecuting attorney's decision to have witness testify falsely at trial).
As the Tenth Circuit noted in Snell:
Absolute immunity has its costs because those with valid claims against dishonest or malicious government officials are denied relief. Imbler, 424 U.S. at 427. Still, the [Supreme] Court has determined that the smooth functioning of the judicial system takes precedence over those meritorious claims which will be foreclosed by granting absolute immunity. Such claims may find partial resolution through other means, however, The opportunity for subsequent judicial review of decisions made by prosecutors and for subsequent appellate review of lower court decisions provides a check upon actions clothed with absolute immunity. Mitchell, 472 U.S. at 522-23. And the grant of absolute immunity does not insulate an official from the criminal process or professional discipline. Imbler, 424 U.S. at 429. Thus, "[a]bsolute immunity is . . . necessary to assure that . . . advocates, . . . can perform their respective functions without harassment or intimidation." Butz, 438 U.S. at 512.Id. 920 F.2d at 687 (citations partially omitted).
The court will grant Defendant Midgley's Motion for Partial Summary Judgment on the basis of absolute immunity. Because the court is granting Defendant Midgley's Motion for Partial Summary Judgment based on absolute prosecutorial immunity, the court will not address the parties' arguments on qualified immunity for Defendant Midgley. Having granted Mr. Midgley judgment on his claim of absolute immunity, he will not be a defendant at trial in this matter.
III. REQUEST FOR LEAVE TO AMEND COMPLAINT
[Fed.R.Civ.P. 15(a)] provides that "leave shall be freely given when justice so requires." Refusing leave to amend is generally only justified upon a showing of undue delay, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or undue prejudice to the opposing party, or futility of amendment, etc. Foman v. Davis, 371 U.S. 178, 182, (1962).Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1584 — 1585 (10th Cir. 1993).
The court will not grant Plaintiff leave to amend the Complaint so close to the trial date. Plaintiff was allowed only limited and expedited discovery on the issue on Defendant Midgley's alleged knowledge of the audiotape. At the time of the limited discovery, there was no § 1983 claim against Defendant Midgley based upon his alleged actions during this case. Accordingly, the evidence regarding such a claim is not fully developed by either side.
Further, the court notes that, even if the Complaint were amended to add a new claim based on Defendant Midgley's alleged acts after this case was filed, the amendment sought would not affect Defendant Midgley's absolute immunity from the claims arising from his alleged actions in connection with release-dismissal agreement. Thus, the issue in any new claim would be completely separate and arise from completely different facts than alleged in the Complaint.
The court finds that amending the Complaint at this stage would require vacating the trial date and allowing time for full discovery and for dispositive motions on the new claim. This case has gone on long enough. The current trial date was set in November 2004, after Defendant Midgley's additional deposition and Plaintiff did not then obtain leave to amend. Plaintiff and the defendant officers are entitled to have the jury resolve the existing claims at the current trial date without the further and substantial delay that would be incurred by adding a new claim that arose two years following the events in question. The court finds that to continue the trial, re-open discovery, and add a new claim would unduly prejudice the defendant officers. Accordingly, the court will deny Plaintiff's request for leave to amend the Complaint to add a new claim.
IV. REQUEST FOR SANCTIONS AGAINST DEFENDANT MIDGLEY
Plaintiff also seeks entry of judgment, or an award of attorney's fees against Defendant Midgley based on his alleged failure to disclose material information during discovery and his alleged "participation and acquiescence in the fraud on the court" in connection with the audiotape.
The court finds that the existing materials submitted by Plaintiff do not establish, by clear and convincing evidence, the type of fraud on the court in connection with the audiotape by Mr. Midgley that would warrant imposition of the extreme sanction of entry of judgment against him. At best, Plaintiff's evidence shows that Defendant Midgley immediately informed his attorney when he learned of the possible availability of "some of" the audiotapes and thereafter relied upon (1) his attorney's direction to Midgley that he leave to the attorney the task of obtaining the audiotapes; and (2) his attorney's representation that the audiotape in question had not been obtained and either did not exist or had been lost or misplaced. Pl.'s Ex. 2 at 14-15. This evidence is insufficient to infer participation and acquiescence in fraud on the court or the giving of false testimony.
A friend having told him that "it appears that some of the tapes exist" and "a request or subpoena" was needed to locate them. Pl.'s Ex. 1 at 12-14.
Similarly, the materials submitted do not warrant the sanction against Defendant Midgley of an award of attorney's fees and costs. A party's breach of duties to disclose or discover may be so serious as to warrant the extreme remedy of "dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party." Having considered the voluminous materials and the parties' arguments, the court finds that Plaintiff has not shown conduct by Mr. Midgley sufficient to warrant imposition of attorney's fees or costs. The only evidence before the court is that Defendants' counsel made the decision not to disclose the existence and content of the audiotape and that Mr. Midgley turned over a complete copy of his prosecutorial file to his counsel for production. It appears that the other information at issue, including the names of witnesses, was available to Plaintiff by other means, such as Defendant Midgley's earlier deposition. This is insufficient basis upon which to award attorney's fees and costs against Defendant Midgley for the costs of taking his deposition and responding to the Second Supplemental Memorandum.
By its ruling today, the court makes no determination as to the existence or merits of any new claim that Plaintiff seeks to assert.
V. ORDER
It is therefore
ORDERED that Defendant Midgley's Motion for Partial Summary Judgment is GRANTED. It is further
ORDERED that Plaintiff's request for leave to amend his complaint is DENIED. It is further
ORDERED that Plaintiff's request for sanctions against Defendant Midgley in the form of entry of judgment or and award of attorney's fees and costs are DENIED. It is further
ORDERED that Defendant Van Midgley's Motion for Extension of Time to File Second Supplemental Reply in Support of Motion for Partial Summary Judgment is GRANTED and said Second Supplemental Reply, as well as the Second Supplemental Memorandum and Plaintiff's Memorandum in Opposition to Second Supplemental Reply are hereby made part of the record.