Opinion
Case No. 04-CV-115.
August 9, 2005
ORDER ON DEFENDANT ELIZABETH BOWMAN'S MOTION TO DISMISS
This matter comes before the Court on Defendant Elizabeth Bowman's Motion to Dismiss (Docket # 43). The Court, having considered the memorandum in support of the motion and Plaintiff's opposition thereto, and being otherwise fully advised, FINDS and ORDERS as follows:
Defendant filed her motion on February 2, 2005. Plaintiff, proceeding pro se, failed to file a timely response to the motion. On May 4, 2005, Defendant filed a Request for Ruling on her Motion to Dismiss. On May 11, 2005, Plaintiff filed a memorandum in opposition to Defendant Bowman's Request for Ruling, asking the Court to excuse his tardiness and addressing the merits of Defendant's motion. While recognizing that Plaintiff's pro se status does not excuse his failure to follow fundamental rules of procedure, the Court finds it preferable to consider Plaintiff's response before ruling on the merits of Defendant's motion to dismiss. Accordingly, Defendant's Motion to Strike Weitzel's Late-Filed Memorandum Opposing Bowman's Motion to Dismiss is hereby denied.
FACTS
The following facts are deduced from Plaintiff's Complaint and in some cases are based upon Plaintiff's failure to plead certain necessary facts.
1. Plaintiff generally alleges "a violation of his civil rights pursuant to, inter alia, the Due Process Clause of the United States Constitution and pursuant to 42 U.S.C. §§ 1983 and 1988." (Compl. ¶ 1.)
2. In 1999, Defendant Bowman was an assistant attorney general who prosecuted cases on behalf of the State of Utah Division of Occupational and Professional Licensing ("DOPL"). Id. ¶ 12. DOPL is the Utah agency that administers and enforces state licensing laws for certain professions, including physicians and surgeons. It is empowered to take administrative and judicial action against these license holders. See UTAH CODE ANN. § 58-1-103; § 58-1-106(1)(d); § 58-67-301.
3. In 1999, DOPL suspended Plaintiff's Physician's and Surgeon's License and murder charges were brought against him. (Compl. ¶ 5.) Plaintiff essentially alleges that Defendant Bowman and others caused a criminal information to be filed against him which led to his arrest, despite full knowledge that Plaintiff was not guilty of the crimes charged. Id. ¶ 6.
4. A preliminary hearing was held in late January and early February of 2000 which concluded in a finding of probable cause and an order that Plaintiff stand trial on five felony murder charges. See id. ¶ 7. Defendant Bowman assisted in prosecuting the murder case against Plaintiff. Id. ¶¶ 8-10. Although Bowman assisted on the case, she was not a prosecutor with the attorney general's office and she was not one of the prosecutors listed on the case. Id. ¶ 12. Bowman's involvement in the state criminal case included helping to prepare medical records for use at trial and interviewing experts for the prosecution's case. Id. ¶¶ 8-10; 13.
5. Plaintiff alleges that Bowman and others "failed to divulge" certain exculpatory and impeaching evidence to Plaintiff or his defense counsel during the prosecution of his case. Id. ¶ 11.
6. Plaintiff further alleges that Bowman and others gathered medical records as part of the criminal discovery process and provided the records to Plaintiff's counsel as discovery and later introduced the records in the criminal trial. In providing this discovery, Plaintiff alleges Bowman and others "left out three important documents from the medical charts" and "willfully and maliciously conspired to hide the existence of said photographs. . . ." Id. ¶¶ 13, 14.
7. Plaintiff alleges that Defendant Bowman aided in the false and malicious prosecution of Plaintiff on five counts of murder. Id. ¶ 15. Plaintiff was convicted of two counts of manslaughter and three counts of negligent homicide. Id. ¶ 16. Following a retrial in October, 2002, Plaintiff was acquitted of all charges. Id. ¶ 22.
8. Finally, Plaintiff alleges that Defendant Bowman and others made "false and slanderous statements about Plaintiff to the press, public, and to members of Plaintiff's profession. . . ." Id. ¶ 25.
STANDARD OF REVIEW
In reviewing a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept all well-pleaded factual allegations as true, and all facts and inferences must be construed in the light most favorable to the plaintiff. Such a motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Montgomery v. City of Ardmore, 365 F.3d 926, 934 (10th Cir. 2004). As a pro se litigant, "[t]he broad reading of the plaintiff's complaint does not relieve [him] of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). "[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Id.
DISCUSSION
"It is well established that prosecutors are absolutely immune from suit under section 1983 concerning activities `intimately associated with the judicial . . . process,' such as initiating and pursuing criminal prosecutions." Pfeiffer, M.D. v. Hartford Fire Ins. Co., 929 F.2d 1484, 1489 (10th Cir. 1991) (citing Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); and Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990)). The Tenth Circuit has recognized that a prosecutor's withholding of evidence is an action "intimately associated" with the judicial process. See Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1373 n. 4 (10th Cir. 1991). "It is also well established that this absolute prosecutorial immunity extends to state attorneys and agency officials who perform functions analogous to those of a prosecutor in initiating and pursuing civil and administrative enforcement proceedings." Pfeiffer, M.D., 929 F.2d at 1489.
Consistent with these general principles, the courts have long drawn a distinction between a prosecutor's actions in connection with the judicial process, which are protected by prosecutorial immunity, and those that are primarily investigative or administrative in nature and hence are not so protected from suit. . . . In so doing, however, [the Tenth Circuit Court of Appeals] and other courts have recognized that absolute immunity may attach even to such administrative or investigative activities when these functions are necessary so that a prosecutor may fulfill his function as an officer of the court. . . . [T]he more distant a function is from the judicial process and the initiation and presentation of the state's case, the less likely it is that absolute immunity will attach.Id. at 1490 (internal citations and quotations omitted).
Plaintiff's complaint indicates that Defendant Bowman was either representing DOPL in administrative proceedings against Plaintiff or assisting the prosecutors in the criminal case against him. In either capacity, Defendant Bowman is entitled to absolute immunity. Plaintiff's allegations, taken as a whole, infer that Defendant Bowman wrongfully caused Plaintiff's medical license to be suspended, and that Bowman participated in the failure to disclose information and documents in discovery and at trial and in the malicious prosecution against him. However, these are the types of actions that are expressly within the protection of prosecutorial immunity as outlined above. Therefore, all such claims must be dismissed.
In response, Plaintiff argues that Bowman is not entitled to prosecutorial immunity because she was an "investigator" rather than a prosecutor in the proceedings against him. It is not the officials' title that is determinative, however. Rather, "[t]he nature of the particular duty performed by a public official determines the reach and applicability of the immunity doctrine." Horwitz, D.P.M. v. State Board of Medical Examiners, 822 F.2d 1508, 1516 (10th Cir. 1987). Plaintiff's allegations indicate that Bowman assisted the prosecution by interviewing experts and preparing evidence for use at trial. These functions are indistinguishable from the prosecutorial role in the initiation and presentation of the state's case. Therefore, such actions are protected by prosecutorial immunity.
To the extent Plaintiff asserts a state law claim for defamation against Defendant Bowman, it must also be dismissed. To establish a claim for defamation, Plaintiff must show that (1) the defendant published the statements allegedly made; (2) the statements were false; (3) the statements were not subject to privilege; (4) the statements were published with the requisite degree of fault; and (5) the statements resulted in damages. DeBry v. Godbe, 992 P.2d 979, 982 (Utah 1999).
Under the law of defamation, false and defamatory statements are not actionable if they are protected by a legal privilege. A number of legal privileges are recognized in circumstances where communication must be wholly open, frank, and unchilled by the possibility of defamation action. This is so even though the reputation of a person may be harmed by such statements. . . .
To establish the judicial proceeding privilege, the statements must be (1) made during or in the course of a judicial proceeding; (2) have some reference to the subject matter of the proceedings; and (3) be made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.Id. at 983 (internal quotations and citations omitted). Plaintiff has failed to allege facts sufficient to show the foregoing elements. Instead, even affording Plaintiff all reasonable inferences, the allegations contained in the complaint indicate that the allegedly false statements complained of were made during the course of the prosecution against Plaintiff by participants in that judicial proceeding. Plaintiff's conclusory allegations simply fail to state a claim upon which relief could be granted. THEREFORE, it is hereby
ORDERED that Defendant's Motion to Strike Weitzel's Late-Filed Memorandum Opposing Bowman's Motion to Dismiss is DENIED; it is further
ORDERED that Defendant Elizabeth Bowman's Motion to Dismiss is GRANTED and Plaintiff's Complaint is DISMISSED as to this Defendant.