Summary
relying on Dababnah to hold that "a prosecutor is entitled to absolute immunity since extradition is intimately associated with the judicial phase of the criminal process."
Summary of this case from Uribe v. CohenOpinion
Civil Action No. 03-3428 Section "K" (1).
March 10, 2005
Before the Court is defendant David Wolff's Motion For Summary Judgment (Rec.Doc.65) to dismiss all claims pending against him. After reviewing the pleadings, the memoranda, the relevant law, and the Court's prior Order, the Court grants defendant's motion for summary judgment.
BACKGROUND
The instant matter arises out of an international child custody dispute. Plaintiff John Olagues and defendant Charlotte Jensen were previously married and have two minor daughters, Caroline Olagues and Christine Olagues (the "Children"). Prior to the pertinent divorce and plaintiff's subsequent deportation, Olagues, Jensen and the Children lived together in New Zealand. Under a January 17, 2001 New Zealand district court order ("NZ Custody Order"), Olagues and Jensen held custody of the Children whereby Olagues was entitled to physical custody of the children during seventy-five percent (75%) of weekends, fifty percent (50%) of school holidays, and one Tuesday evening per month. That custodial decree provided specifically that Olagues have access to the Children "either in California or in New Zealand for 2 weeks of the July school holidays." Jensen was to have custody of the Children at all other times. In his Complaint, Olagues characterizes the NZ Custody Order as the operative court order governing custody of the Children. Additionally, a December 21, 2000 ne exeat order (the " Ne Exeat Order") prohibited either Jensen or Olagues from removing the Children from New Zealand without mutual agreement or court order.
Olagues' Complaint also refers to a September 30, 2002 New Zealand family court order (the "NZ Access Order") governing plaintiff's "right to access" to the Children. That order provides that despite being deported from New Zealand, Olagues would nonetheless receive access to the Children. The NZ Access Order granted Olagues two weeks of access to the Children in California during July of 2003. The order made clear, however, that "[t]here is no issue that New Zealand is the country of habitual residence of the children." Olagues was required to register a copy of the NZ Access Order, and that order was registered in the Santa Clara County Superior Court. That Court issued an order (the "CA Registration Order") registering the NZ Access Order.
Pursuant to the terms of the NZ Access Order, Olagues arranged for access to the Children in California beginning on July 2. In anticipation of that visit, Olagues sent a letter to Jensen on June 17, 2003 that stated: "I, JOHN ANDREW OLAGUES, hereby swear that at no time will I take Caroline and Christine Olagues out of California unless I have their mother's prior written permission." On June 21, 2003, Jensen and the Children departed for California to attend Jensen's stepfather's funeral. The Children were subsequently transferred into the custody of Olagues on July 2, 2003. On July 5, 2003, Olagues and the Children left California, arriving in River Ridge, Louisiana, five days later. Olagues had not obtained Jensen's prior written permission to leave California with the Children and he did not return the girls after two weeks as required by the court order. Plaintiff Olagues contends, however, that Jensen knew of the Children's whereabouts, spoke with them daily by telephone, and could have visited the girls if she had so chosen.
On July 9, 2003, having learned of the Children's whereabouts in Louisiana, Jensen contacted Stafford, an investigator for the Marin County District Attorney's Office, to report the removal of the Children from California. Stafford, and other California authorities, conducted a thorough investigation of Jensen's allegations. By letter dated July 15, 2003, Barbara Creig of the Office of Children's Issues at the United States Department of State sent Stafford copies of the NZ Access Order and the CA Registration Order. Creig informed Stafford that she was the New Zealand Case Officer for the United States Central Authority for the Hague Abduction Convention and opined that the NZ Access Order was authentic and that Olagues violated that order by removing the Children from California. On July 15, 2003, an employee of the Child Abduction Unit of the Santa Clara District Attorney's Office confirmed to Stafford that the NZ Acess Order had been registered in Santa Clara and sent Stafford copies of the NZ Access Order and CA Registration Order.
Jensen informed Stafford that Olagues informed Jensen that the Children would not be returning to Marin County and would never leave Louisiana. On July 18, 2003, Jensen attempted to pick up the Children as planned in California, but Olagues did not show up or produce the Children, who remained in Louisiana. That day, Jensen met with Stafford and Pool. Pool provided Stafford with a copy of the City of Belvedere police report alleging that Olagues violated the NZ Access Order, CA Registration Order, and the Hague Convention. Also, Jensen supplied Stafford with an order (the "Interpol Order") from the International Criminal Police Organization, Interpol, that prevented the Children's removal from New Zealand except for the July 2, 2003 two-week visitation period.
On July 21, 2003, Jensen telephoned Olagues in Louisiana from the Marin County District Attorney's Office. Unbeknownst to Olagues, their conversation was recorded. Olagues admitted that he had broken his promise not to remove the Children from California and informed Jensen that he would not return the Children to her. Jensen would "have to force them out of here one way or another," Olagues said. Later that day, Stafford called the Jefferson Parish Assistant District Attorney David Wolf, who informed her that Olagues had not filed any "good cause report" and that Wolf's office had no record of Olagues receiving custody. Also on July 21, 2003, Deputy District Attorney Leon Kousharian filed an application with the Marin County Superior Court for a temporary order giving Marin County and Jensen physical and legal custody of the Children. Because Olagues had "fled the jurisdiction with the children," Kousharian requested that Olagues not be served with the order prior to the removal of the Children and arrest of Olagues pursuant to California Penal Code § 278.5. Later that day, the Marin County Superior Court issued an order to show cause and temporary restraining order (the "CA Temporary Restraining Order") granting Stafford and Jensen temporary custody of the Children and Stafford the Marin County District Attorney's Office authority to "facilitate the return of the minor child [sic] to the jurisdiction of the Court pending further hearings." On July 22, 2003, the Marin County Superior Court issued a warrant (the "CA Arrest Warrant") for the arrest of Olagues for felony parental kidnapping pursuant to California Penal Code § 278.5. Pool of the City of Belvedere Police Department traveled to Louisiana in possession of that warrant to work with the Jefferson Parish Sheriff's Office to arrest Olagues. Stafford accompanied Pool with the aim of taking custody of the Children and returning them to California. Defendant Wolf filed a Motion for Temporary Custody for the Purposes of Transportation in the 24th Judicial District Court for the Parish of Jefferson, Louisiana, in compliance with California Family Code § 31313134.5, on July 23, 2003. Later that day, a Jefferson Parish Judge entered an order (the "LA Executory Order") making the CA Temporary Restraining Order executory and placing the Children in Stafford's custody for purposes of transporting the children back to Marin county. On July 23, 2003, California and Louisiana law enforcement authorities, in a collaborative effort, located the Children in Jefferson Parish. Louisiana officers removed the children from plaintiff Olagues' physical custody. Olagues was arrested that same day by Jefferson Parish deputies and imprisoned in Gretna, Louisiana. Immediately after Olagues' arrest, the Children were transferred from Louisiana to California in Stafford's custody.
Olagues was released on bail on July 29, 2003. After his release, Olagues participated by telephone in a hearing before the Marin County Superior Court to determine whether the CA Temporary Restraining Order would be set aside. That court held thereafter that the CA Temporary Restraining Order "should be set aside and the children should be returned to whom ever [sic] has custody." Thereafter, Jensen and the Children returned to New Zealand. An extradition hearing was scheduled for August 20, 2003, and subsequently continued to until October 15, 2003. On or around September 15, 2003, Olagues was again jailed for custody decree violation, serving three more days in the Gretna jail. On October 15, 2003, California's attempt to extradite was withdrawn.
On December 4, 2004, plaintiff Olagues filed the 42 U.S.C. § 1983 case asserting the following claims: 1) that his rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution were deprived; 2) that the California Penal Code Provisions relating to the interception and recording of telephone conversations and restrictions on the use of such recordings were violated; 3) to enjoin the defendants from continuing to violate the Constitutional and civil rights through extradition attempts, criminal complaints, and arrest warrants, made in violation of due process; 4) to seek a declaration that the New Zealand Access Order is not a "custody order" and cannot be enforced as such. He later filed the Hague Convention Case on January 22, 2004. Noting that the cases were related, the Court consolidated the cases on March 15, 2004 (Rec.Doc. 44). Motions to dismiss were filed between February 10, 2004 and February 26, 2004 by all defendants, except Jefferson Parish Assistant District Attorney David Wolff, arguing that this Court lacked personal jurisdiction over them. The Court agreed and granted defendants' motions. See Rec. Doc.55. The Court also dismissed all claims in Civil. Action 04-195 (the "Hague Convention Case"). Thus, all that is remaining before the Court are claims brought against David Wolff in Civil Action 03-3428. The plaintiff sued Wolff in both his official and personal capacity.
LEGAL STANDARD
Summary judgment should be granted "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." Fed.R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id. When deciding a motion for summary judgment, the Court must avoid a "trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts" are tasks for the trier-of-fact. Anderson, 477 U.S. at 255. To that end, the Court must resolve disputes over material facts in the non-movant's favor. "The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed." Leonard v. Dixie Well Service Supply, Inc. 828 F.2d 291, 294 (5th Cir. 1987).
ANALYSIS
"The performance of official duties creates two potential liabilities, individual-capacity liability for the person and official-capacity liability for the municipality." Turner v. Houma Municipal Fire and Police Civil Service Bd., 229 F.3d 478, 484 (5th Cir. 2000) (citations omitted); Charles v. Greenberg, 2000 WL 1838713 (E.D.La. 2000). A separate analysis is imperative because "defenses such as absolute . . . immunity, that only protect defendants in their individual capacities, are unavailable in official-capacity suits." Turner, 229 F.3d at 483; Charles v. Greenberg, 2000 WL 1838713 (E.D.La. 2000).
Individual Capacity Claim
Defendant urges that he is entitled to absolute immunity for his role in these child custody proceedings. Plaintiff argues that the abduction of Olagues' children pursuant to California Family Court ExParte Orders is not part of a criminal prosecution; nor is the attempted extradition of Olagues part of a criminal prosecution. Thus, the issue before the Court is whether Mr. Wolff's specific conduct is cloaked with "absolute immunity".
The Supreme Court in Imbler v. Pachtman, 427 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) recognizes "that in initiating a prosecution and in presenting the State's case, a prosecutor is immune from a civil suit for damages under § 1983." Prosecutors enjoy absolute immunity for activities "intimately associated with the judicial phase of the criminal process." Imbler, 427 U.S. at 995. Absolute immunity for those activities in prosecuting a case historically has been important as a matter of public policy because to allow such suits to proceed "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." Id. at 423, 96 S.Ct. at 991. In Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978), the Supreme Court stated that "officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts." However, the prosecutor's immunity is limited to the prosecution of the State's case and does not extend to a prosecutor's investigatory or administrative functions. Id. at 431, 96 S.Ct. at 995; Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 2615-16 (1993). The Fifth Circuit in Chrissy F. v. Mississippi Dept. of Public Welfare, et al. 925 F.2d 844, 850 (5th Cir. 1991) stated "judicial officers acting pursuant to court directives have often been protected by absolute immunity."
"Absolute immunity applies to activities, not offices." Bryan v. City of Madison, Mississippi, 213 F.3d 267, 271 (5th Cir. 2000). Thus, this Court must decide whether Mr. Wolff's specific acts entitle him to absolute immunity. The Fifth Circuit in Austin v. Borel, 830 F.2d 1356 (5th Cir. 1987) stated "[a]bsolute immunity has also extended to certain executive officials who perform functions closely associated with the judicial process." In Austin, the Fifth Circuit declined to extend absolute immunity to a child protective case worker who filed a verified complaint indicating the existence of reasonable grounds that certain children should be removed from their home and taken into custody. Id. at 1361. The Court found that the filing of this "probable cause affidavit" was unlike the filing of a petition which initiates the adjudication process. Id. "The verified complaint, while in many cases a vital part of child abuse procedures, is thus further removed from the judicial phase of the proceeding than the district attorney's act in filing a petition." Id. at 1362. Because the plaintiff did not challenge the district attorney's conduct in the case, the Court did not consider the absolute immunity of the assistant district attorney who initiated the proceedings to remove certain children from their home. However, the Fifth Circuit recognized in dictum that absolute immunity has been extended to such officials involved in child protection/child custody proceedings. The case cited by the Fifth Circuit in Austin states the following:
"At least two circuits have concluded that prosecuting attorneys are entitled to absolute immunity for their decision to initiate and prosecute child protection proceedings. See Myers v. Morris, 810 F.2d 1437 (8th Cir. 1987); Walden v. Wishengrad, 745 F.2d 149 (2d Cir. 1984)." Austin, 830 F.2d at 1356. n. 41.
[W]e hold the Imbler rationale applicable here. As a Department [Department of Social Services] attorney, Wishengrad initiates and prosecutes child protective orders and represents the interests of the Department . . . As such, her duties are similar to those of a prosecutor who acts `as an advocate for the State' in criminal matters . . . The Department's responsibilities for child protection are similar in importance to the prosecutor's office's responsibilities in the criminal justice system . . . Given the importance of the Department's activities, the need to pursue protective child litigation vigorously and the potential for subsequent colorable claims, Wishengrad should be accorded absolute immunity from claims arising out of the performance of her duties.Walden v. Wishengrad, 745 F.2d 149, 152 (2nd Cir. 1984). Thus, the Fifth Circuit recognizes that officials involved in child protection/child custody proceedings may indeed be entitled to absolute immunity. See also, Hodorowski v. Ray, 844 F.2d 1210(5th Cir. 1988) (child protective service worker was not protected by absolute immunity from civil rights liability without court order).
Wolff presented an affidavit explaining his role in Mr. Olagues' case. David Wolff, along with being an Assistant Attorney in Jefferson Parish, holds the position of Chief of Family Violence Prosecution Unit of the Jefferson Parish District Attorney's Office since July of 1999. As part of his job description, Wolff reviews and prosecutes cases involving child abuse, including, but not limited to cases involving kidnaping of children and interference with child custody orders. On July 23, 2003, Ms. Stafford and Sergeant Pool arrived at the Jefferson Parish District Attorney's Office and presented Mr. Wolff with certified copies of Mr. Olagues' warrant for his arrest and the California Court Order giving Ms. Stafford temporary custody of the Olagues children for purposes of transportation back to California. Mr. Wolff drafted a motion petitioning the 24th Judicial District Court to recognize and make executory the California Court Order. The motion and all the provided documentation from California were then filed with the Clerk of Court and presented to a 24th Judicial District Court Judge for review. Later that day, a Jefferson Parish Judge entered an order making the CA Temporary Restraining Order executory which placed the Children in Stafford's custody for purpose of transporting the children back to Marin County.
The Court finds that Mr. Wolff's role in enforcing the out-of-state child custody orders is shielded by absolute immunity. Wolff participating in the custody proceedings initiated by the District Attorney's Office in Marin County and Wolff initiating proceedings here in Louisiana were "closely associated with the judicial process" and part of those "certain functions analogous to those of a prosecutor." Furthermore, the petition does not allege that Wolff's conduct was investigatory or administrative; nor does the Court find it so. Neither was Wolff acting as a child protective case worker. Wolff, as assistant district attorney and chief of the Family Prosecution Unit of Jefferson Parish District Attorney's Office, was acting "pursuant to court directives" by enforcing out of state child custody orders and was participating in a judicial function when filing a motion to make the CA Temporary Restraining Order executory in Louisiana.
The Court finds that Mr. Wolff is entitled to absolute immunity regarding all claims alleged against him. As Wolff's conduct illustrates, he was acting solely in his prosecutorial capacity as Assistant District Attorney and Chief of the Family Prosecution Unit. However, the Court will address certain claims individually. As far as plaintiff's second claim to enjoin defendant Wolff from continuing to violate his constitutional rights through extradition attempts, the evidence shows the California's extradition attempt was withdrawn and there is no allegation or evidence that Wolff participated in the attempt. The Court will not enjoin the defendant from any future action when there is no fault upon Mr. Wolff. Furthermore, a prosecutor is entitled to absolute immunity since "extradition is `intimately associated with the judicial phase of the criminal process.'" Dababnah, M.D. v. Keller-Burnside, 208 F.3d 467, 472 (4th Cir. 2000) ( citing Larsen v. Early, 842 F.Supp. 1310, 1313 (D.Colo. 1994). As far as plaintiff's eavesdropping claims, there are no facts alleged in the Complaint to support any claim that Wolff committed any act that would violate the California anti-eavesdropping statute or that Wolff acted outside of Louisiana. Finally, as to the claim that the "ne exeat" order derived from the Hague Convention is not a custody determination, the Court does not see how this relates to Mr. Wolff. However, even if the Court were to accept this as a claim against the remaining defendant, the Court notes that a Joint Petition was filed in Santa Clara County California by Jensen and plaintiff for Registration of the New Zealand Custody Order and Access Order. In dismissing the non-resident defendants, the Court noted that these defendants "took appropriate action to enforce the pertinent court orders," including the taking of "appropriate measures in arranging for the seizure of the children and the arrest of Olagues." See Rec. Doc. 55. In making this statement, the Court, in essence, has already stated that the defendants took appropriate action in response to the orders of the California Court.
Furthermore, under the Rooker/Feldman doctrine this Court lacks jurisdiction to entertain collateral attacks on state court judgments. US v. Shepherd, 23 F.3d 923 (5th Cir. 1994). If the district court is confronted with issues that are "inextricably intertwined" with a state judgment. the district court's jurisdiction precludes such a review." Id. at 924. Defendant Wolff's actions made the California Temporary Restraining Order, based upon orders of a California Court, executory in Louisiana. It appears that the basis of plaintiff's allegations against Wolff, especially his seeking a Declaratory Judgment, is that orders of the California Court were improper. "A lengthy line of decisions in our court . . . holds that litigants may not obtain review of state court actions by filing complaints about those actions in lower federal courts cast in the form of civil rights suits." Hale v. Harney, 786 F.2d 688, 691 (5th Cir. 1986) (civil rights action brought by former husband against state court judge). Therefore, Wolff is entitled to summary judgment as to all claims against Wolff in his individual capacity.
Official Capacity Claim
"For purposes of `official capacity' suits under 1983, the district attorney's office resembles other local government entities." Burge v. Parish of St. Tammany, 187 F.3d 452, 470 (5th Cir. 1999) ( citing Monell v. Dept. of Social Services, 436 U.S. 658, 691 n. 55, 98 S.Ct. 2018, 2036 (1978)). Accordingly, for plaintiff to state a cause of action against District Attorney Wolff in his official capacity, the Court applies the principals used to determine liability against a municipality or other local government entity. Id. To establish liability on the part of the Jefferson Parish District Attorney's Office, plaintiff must allege that policy or custom which caused the alleged constitutional deprivation. Brooks v. George County, Mississippi, 84 F.3d 157, 165 (5th Cir. 1996) ( citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 69091 (1978)). Therefore, plaintiff must have alleged a policy or custom on behalf of the District Attorney's office that caused his alleged constitutional violations in order to recover against District Attorney Wolff in his official capacity. Plaintiff's failure to mention any policy or custom of the District Attorney's office is fatal to his official capacity suit.
The Court finds no issues of material fact and Mr. Wolff is entitled to summary judgment as a matter of law regarding the claims in plaintiff's petition against Mr. Wolff. Accordingly,
The plaintiff also filed this suit on behalf of his minor children. The claims brought on behalf of the Children by their father were improperly brought by a pro se plaintiff. See Rodriguez v. EMC Mortgage Corp., 2003 WL 22097231 at *1 (W.D.Tex.) ("Although the Fifth Circuit ultimately held that a `non-attorney parent [is] permitted to sustain a pro se action on behalf of a minor child in [Social Security] appeals," it implicitly adopted the Second Circuit's ruling concerning the representation of a child by a non-attorney in other civil litigations by distinguishing those cases from the Social Security context"). Furthermore, Mr. Wolff's actions to the degree they affect the Children's rights are also protected by absolute immunity. Thus, these claims should also be dismissed.
IT IS ORDERED that David Wolff's Motion For Summary Judgment (Rec.Doc.65) is GRANTED.