Opinion
CV-03-1713-ST.
May 10, 2004
FINDINGS AND RECOMMENDATION
INTRODUCTION
On December 10, 2003, plaintiff, Sarah Lynn Thompson Brown ("Brown"), filed a Complaint against defendants, Eric Nisley ("Nisley"), Jo Schreiber ("Schreiber"), and Northern Oregon Regional Corrections Facility ("NORCOR"), seeking damages under 42 U.S.C. § 1983 and 1988 arising from her incarceration. In her Second Amended Complaint (docket #27), Brown alleges defendants violated her constitutional rights to be free from an unreasonable search, seizure, and incarceration without due process of law under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. This court has original jurisdiction under 28 U.S.C. § 1331.
On March 30, 2004, Brown filed a Second Amended Complaint (docket #17) as a separate document presumably meant to accompany her Motion for Leave to File Amended Complaint/Petition (docket #16), which was filed on the same date. Before this court ruled on these matters, counsel for both parties conferred and on April 12, 2004, Brown submitted a Revised Motion to Amend Complaint (docket #27) along with a new Second Amended Complaint (docket # 27). On April 14, 2004, this court granted Brown's motion (docket #28). As a result, references to the Second Amended Complaint are to the document filed on April 12, 2004 (docket #27).
Nisley filed a Motion to Dismiss (docket #9). In response, Brown submitted additional materials (docket #12) without objection from Nisley (docket #23) and which this court accepted (docket #29). In deciding Nisley's motion, this court will consider those additional documents the "authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies." Parino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir 1998). It will not be necessary to convert this motion into a motion for summary judgment. Id at 706 fn 4 (holding conversion of a motion to dismiss into a motion for summary judgment was unnecessary because when "an attached document is integral to the plaintiff's claims and its authenticity is not disputed, the plaintiff obviously is on notice of the contents of the document and the need for a chance to refute evidence is greatly diminished." (citation and internal quotation omitted)).
In addition, the parties stated at oral argument that they preferred not to have Nisley's motion converted to a motion for summary judgment.
For the reasons stated below, Nisley's motion (docket #9) should be granted as to alleged violations of due process under the Fifth Amendment and substantive due process under the Fourteenth Amendment, and otherwise denied.
LEGAL STANDARDS
A motion to dismiss under FRCP 12(b)(6) will be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir 1995) (citation omitted). "The issue is not whether a plaintiff will ultimately prevail but whether the [plaintiff] is entitled to offer evidence to support the claims." Davis v. Monroe County Bd. of Edu., 526 U.S. 629, 654 (1999), quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, "[a]ll allegations of material fact are taken as true and viewed in the light most favorable to the nonmoving party." Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir), cert denied, 506 U.S. 999 (1992) (citation omitted).FACTS
Because all material facts must be viewed in the light most favorable to the non-movant, this court will view the evidence in the light most favorable to Brown.
Prior to November 2002, Brown was employed by defendant NORCOR as a detention manager. Second Amended Complaint, ¶ 5. In early November 2002, Brown was summarily terminated from her employment. Id. On November 14, 2002, Nisley filed a complaint in the Wasco County Circuit Court charging Brown with six counts of official misconduct in the first degree, a Class A misdemeanor under Oregon law. Id at ¶ 6. The complaint alleged that Brown had improperly accessed the law enforcement database for personal reasons. Id. Also, on November 14, 2002, Nisley sent Brown a letter advising her to appear voluntarily on Monday, December 9, 2002. Id. Brown's criminal attorney, Bill Howell ("Howell"), confirmed her voluntary appearance in a letter to Nisley dated November 15, 2002. Id.
At a hearing on December 20, 2002, Brown plead guilty to three counts of official misconduct. Id at ¶ 7. Brown provided a copy of her plea petition to Nisley, which Nisley placed in his file. Id. At the hearing, the plea petition was acknowledged and discussed on the record by Brown, Howell, Nisley, and Judge Bernie Smith. Id. In paragraph 9 of the plea petition, Brown acknowledged that "the State has agreed to recommend as follows: 48 hours jail (which may be done in Umatilla County) . . ." Id.
Because of Brown's previous employment with NORCOR, she and Nisley agreed that she would serve her jail time at the Umatilla County Jail Facility in Pendleton, Oregon. Id at ¶ 8. Prior to her entry of plea and sentencing, Brown arranged with NORCOR supervisor Paul Barnett ("Barnett") for her to serve her time in the Umatilla County Jail Facility beginning January 3, 2003. Id.
At the December 20, 2002 hearing, Nisley asked that Brown be allowed to serve her sentence in Umatilla County: "We ask that the court allow her to appear at whatever facility Barnett is able to arrange. I think it will probably be in Pendleton, that she turn herself in at the direction of Mr. Barnett." Id at ¶ 9. Brown reported the arrangement she had made with Barnett to Judge Smith and Nisley. Judge Smith then stated:
Allrighty. I'll follow the recommendation of the State and your attorney. I'm going to sentence you to 48 hours in jail, it is to be served beginning January 3rd at 4:00 p.m. and arrangements are made through Mr. Barnett with the Umatilla County jail.Id.
Nisley drafted the Judgment and Sentence Order, which was signed by Judge Smith and filed with the court on December 20, 2002. Id.
Later on December 20, 2002, Lt. Rick Graves, an employee of defendant NORCOR, faxed a copy of the judgment and sentence order to the Umatilla County Jail Facility. Id at ¶ 10. Lt. Graves' fax message reads: "This is a handwritten order from the Wasco County Circuit Court requiring 48 hours in jail. Please book and print for Wasco County (ORO330000)." Id.
Brown reported to the Umatilla County Jail on January 3, 2003 at 3:45 p.m. Id at ¶ 11. She was incarcerated there until the afternoon of January 5, 2003. Id. While at the Umatilla County Jail, Brown was booked and fingerprinted as requested by NORCOR's employee Graves. Id at ¶ 13. After her release from detention, Brown paid the fine imposed in full. Id at ¶ 14.
On January 5, 2003, at approximately 3:30 p.m., a deputy employed by the Umatilla County Jail sent a fax to NORCOR. Id at ¶ 12. The fax message read "Inmate Thompson, Sarah Lynne has been released time served on your sentence order." Id.
Nearly nine months later, on August 30, 2003, Schreiber, a NORCOR corrections officer, sent the following letter to Judge Smith on NORCOR letterhead.
Dear Judge Smith:
On December 20, 2002, Ms. Sarah Lynne Thompson was sentenced to serve 48 hours in the Northern Oregon Corrections Facility to begin on January 3, 2003. As of this date, we show no record of her reporting to NORCOR. Therefore, we are returning this matter to the court and is [sic] justified, we respectfully request that a warrant be issued for her arrest for failure to comply.
Thank you.
/s/ Corrections Officer Jo Schreiber
cc: Eric Nesley [sic], Wasco Co. District AttorneyId at ¶ 15.
Attached to the letter was a photocopied duplicate of the sentence order signed by Judge Smith on December 20, 2000. See Second Amended Complaint, ¶ 16; Plaintiff's Ex B, p. 11.
There is a handwritten sticky note attached to the copy of the judgment and sentence order appended to Schreiber's letter in the court's file. Id at ¶ 16. The note reads: "No record of this subject reporting to NORCOR," and below that, in different handwriting: "May have done time at another facility as she was an employee at one time. 9-3-03." Id.
On September 15, 2003, Nisley signed a motion for a no-bail warrant to be issued for the arrest of Brown, which was accompanied by an affidavit, a copy of the August 30, 2003 NORCOR letter, and a copy of the sentence order signed by Judge Smith on December 20, 2002. Id at ¶ 17; Plaintiff's Ex B, pp. 9-12. Nisley's affidavit states as follows:
Having been first duly sworn on oath, I do depose and say:
That my name is Eric J. Nisley, and I am the District Attorney for Wasco County, Oregon. That I have reviewed the attached letter from Jo Schreiber, who I know to be a corrections officer employed by the Northern Oregon Regional Corrections Facility (NORCOR). I have personal knowledge of the fact that NORCOR is the jail facility serving Wasco County. Based upon the attached letter, I believe probable cause exists to issue a no bail warrant, and to execute the sentence imposed by the Wasco County Circuit Court on December 20, 2002.
The foregoing is true as I verily believe, and I make this Affidavit in support of an Order issuing a Bench Warrant for arrest of the Defendant.
Second Amended Complaint, ¶ 17; Plaintiff's Ex B, p. 12.
On September 16, 2003, Judge Smith signed a no bail arrest warrant for Brown. Second Amended Complaint, ¶ 18. On September 18, 2003, at approximately 8:30 p.m., Wasco County Sheriff's Deputy Courtney Floyd arrested Brown at her residence and transported her to NORCOR. Id at ¶ 19. When Brown protested that the arrest was wrongful and that she had completed her sentence, Deputy Floyd replied "that's what they all say" as he handcuffed her. Id. Despite Brown's protests that she had served her time, including telling NORCOR's employees specifically that she had served her time in Umatilla County, NORCOR held Brown in its jail facility overnight. Id at ¶ 20. She was released on September 19, 2003 after Howell reminded Nisley that Brown was ordered to serve her jail time in Umatilla County. Id.
DISCUSSION
Government officials sued in their individual capacities under § 1983 may raise the affirmative defenses of qualified or absolute immunity. Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir 2002). Nisley contends that he was acting in a prosecutorial role in the context of a judicial proceeding when he prepared and submitted the motion, affidavit and accompanying documents. As a result, Nisley believes he is absolutely immune from suit. Alternatively, Nisley argues that he is entitled to dismissal on the basis of qualified immunity. Finally, Nisley argues Brown has failed to state a claim under § 1983.For the reasons that follow, Nisley should not be granted absolute or qualified immunity for his personal attestations in the affidavit. Additionally, Brown has stated a claim under § 1983 for a violation of her Fourth Amendment rights. I. Absolute Immunity A. Legal Standards
"The immunity of a prosecutor is based upon the same purpose that underlies the immunity of judges and grand jurors acting within the scope of their duties: to protect the judicial process." Milstein v. Cooley, 257 F.3d 1004, 1007 (9th Cir 2001), citing Burns v. Reed, 500 U.S. 478, 485 (1991) Imbler v. Pachtman, 424 U.S. 409, 422-23 (1976).
Specifically, absolute immunity for prosecutors is warranted (1) to allow prosecutors to focus their energies on prosecuting, rather than defending lawsuits; (2) to enable prosecutors to exercise independent judgment in deciding which suits to bring and conducting them in court; (3) to preserve the criminal justice system's function of determining guilt or innocence by ensuring that triers of fact are not denied relevant (although sometimes conflicting) evidence because of prosecutors' fear of suit; and (4) to ensure fairness to defendants by enabling judges to make rulings in their favor without the subconscious knowledge that such rulings could subject the prosecutor to liability.Id, citing Burns, 500 US at 485 Imbler, 424 US at 423-24, 426-27.
To serve the broader public interest, "this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Imbler, 424 US at 427. Instead, "prosecutorial misconduct is deterred, apart from private civil actions, by the threat of criminal prosecution and professional discipline, and by prosecutors' accountability to either superiors or the electorate." Milstein, 257 F.3d at 1008, citing Burns, 500 US at 486 Imbler, 424 US at 429.
A prosecutor's claim of absolute immunity must first be based on "the nature of the function performed, not the identity of the actor who performed it." Kalina v. Fletcher, 522 U.S. 118, 127, (1997), quoting Forrester v. White, 484 U.S. 219, 229 (1988); Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993); Burns, 500 US at 486. "[T]he actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley, 509 US at 273.
The prosecutor bears the burden of demonstrating that absolute immunity is justified for the function in which he was engaged. Id at 269; Burns, 500 US at 486. "The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." Burns, 500 US at 486-87; see also Buckley, 509 US at 273.
A prosecutor is entitled to absolute immunity "in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State." Kalina, 522 US at 126, quoting Buckley, 509 US at 273. As the Court explained in Burns:
[T]he concern with litigation in our immunity cases is not merely a generalized concern with interference with an official's duties, but rather is a concern with interference with the conduct closely related to the judicial process. . . . That concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor's role in the judicial proceedings, not for every litigation-inducing conduct.500 US at 494 (emphasis added citations omitted).
Intent plays no role in the immunity analysis. McCarthy v. Mayo, 827 F.2d 1310, 1315 (9th Cir 1987); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir 1986) ( en banc).
In a series of cases, the Supreme Court has applied these general principles of absolute immunity to various prosecutorial functions. In Imbler, the Court held that "in initiating a prosecution and in presenting the State's case," the prosecutor is immune from a civil suit for damages under § 1983 because these activities are "intimately associated with the judicial phase of the criminal process." 424 US at 430-31. This immunity covers the knowing use of false testimony at trial, the suppression of exculpatory evidence, and malicious prosecution. Milstein, 257 F.3d at 1008-09, discussing Imbler, 424 US at 416. At some point, with respect to some decisions, the prosecutor no doubt functions as an administrator or investigator rather than as an officer of the court, but the Court refused to draw that line in Imbler. Id at 431 n 33.
Later in Burns, the Court granted absolute immunity to a prosecutor's "appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing." 500 US at 492. The Court reasoned that "appearing before a judge and presenting evidence in support of a motion for a search warrant clearly involve the prosecutor's role as advocate for the State, rather than his role as administrator or investigative officer." Id at 491 (quotations omitted). Thus, the prosecutor was immune from suit alleging that he had elicited false testimony during the hearing. Id at 482.
However, Burns refused to grant absolute immunity for the prosecutor's act of providing legal advice to police. Id at 496. The Court rejected the government's argument that giving legal advice is related to a prosecutor's role in screening cases for prosecution:
That argument, however, proves too much. Almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive. Rather, as in Imbler, we inquire whether the prosecutor's actions are closely associated with the judicial process. Indeed, we implicitly rejected the United States' argument in Mitchell [ v. Forsyth, 472 U.S. 511(1985)] where we held that the Attorney General was not absolutely immune from liability for authorizing a warrantless wiretap. Even though the wiretap was arguably related to a potential prosecution, we found that the Attorney General "was not acting in a prosecutorial capacity" and thus was not entitled to the immunity recognized in Imbler.Id at 495-96 (emphasis added); see also Kalina, 522 US at 127.
In Buckley, the Court denied absolute immunity to a prosecutor who was sued for fabricating evidence "during the early stages of the investigation" where "police officers and assistant prosecutors were performing essentially the same investigatory functions." 509 US at 262-63, 275-76. It similarly refused to grant absolute immunity for allegedly false statements made by the prosecutor to the press. "Comments to the media have no functional tie to the judicial process just because they are made by a prosecutor." Id at 277.
Finally, in Kalina, the Court denied absolute immunity to a prosecutor who filed the equivalent of an affidavit in support of a motion for an arrest warrant. The prosecutor had filed three documents: an information charging burglary, a motion for an arrest warrant, and a "Certification for Determination of Probable Cause," a sworn document establishing the grounds for issuing the warrant. 522 US at 120-21. The Certification contained "two inaccurate factual statements" regarding the plaintiff's access to the site of the burglary and his selection in a photo montage by a witness. Id at 121.
The prosecutor's submissions were an attempt to comply with both the Fourth Amendment and Washington law. The Fourth Amendment requirement that an arrest warrant be based "upon probable cause, supported by Oath or affirmation" may be satisfied by an indictment returned by a grand jury, but not by the mere filing of criminal charges in an unsworn information signed by the prosecutor. Kalina 522 US at 129, citing Gerstein v. Pugh, 420 U.S. 103, 117 (1975). Since most prosecutions in Washington are commenced by information, in order to comply with these constitutional requirements, Washington law required that an arrest warrant be supported by either an affidavit or sworn testimony establishing the grounds for issuing the warrant. The "Certification for Determination of Probable Cause" executed by the prosecutor was meant to satisfy these requirements.
The Court first reviewed its prior cases, with an emphasis on Malley v. Briggs, 475 U.S. 335, 340-41 (1986), which denied absolute immunity to a police officer whose affidavit failed to establish probable cause. The officer's actions were deemed to be the same as a complaining witness, a category of people not given absolute immunity at common law, and were not comparable to a prosecutor asking a grand jury to indict because they were "further removed from the judicial phase of criminal proceedings." 475 US at 342-43. Similarly, in Kalina, the Court reasoned:
[P]etitioner's activities in connection with the preparation and filing of two of the three charging documents — the information and the motion for an arrest warrant — are protected by absolute immunity. Indeed, except for her act in personally attesting to the truth of the averments in the certification, it seems equally clear that the preparation and filing of the third document in the package was part of the advocate's function as well. The critical question, however, is whether she was acting as a complaining witness rather than a lawyer when she executed the certification "[u]nder penalty of perjury."522 US at 129.
In personally attesting to the Certification, which neither federal nor state law required a prosecutor to do, the Court held that the "petitioner performed an act that any competent witness might have performed." Id at 129-30. Furthermore, the Court rejected the prosecutor's argument that execution of the Certification was "just one incident in a presentation that, viewed as a whole, was the work of an advocate and integral to the initiation of the prosecution."
That characterization is appropriate for her drafting of the certification, her determination that the evidence was sufficiently strong to justify a probablecause finding, her decision to file charges, and her presentation of the information and the motion to the court. Each of those matters involved the exercise of professional judgment; indeed, even the selection of the particular facts to include in the certification to provide the evidentiary support for the finding of probable cause required the exercise of the judgment of the advocate. But that judgment could not affect the truth or falsity of the factual statements themselves. Testifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required "Oath or affirmation" is a lawyer, the only function that she performs in giving sworn testimony is that of a witness.Id at 130-31.
B. Analysis
Under Kalina, Nisley has absolute immunity for drafting his affidavit, selecting the information to put into it, determining that the evidence was sufficient to justify a probable cause finding, deciding to file charges, and presenting the affidavit to the court. However, as in Kalina, the critical question is whether Nisley was acting as a prosecutor or a complaining witness when he swore to the truth of the statements in the affidavit.
Unlike Kalina, here the affidavit on its face does not contain any factual allegations of Brown's wrongdoing. However, the affidavit directly references the attached letter from NORCOR, which does contain the factual evidence of Brown's conduct sufficient to provide probable cause for arrest. Nisley contends that his affidavit does not swear to the truth of the NORCOR letter, but merely presents it as part of his normal role as a prosecutor.
Considering all the circumstances, this court views Nisley's affidavit as incorporating the NORCOR letter, such that Nisley was acting as a complaining witness, just as his counterpart did in Kalina. Nisley's affidavit was made "in support of an Order issuing a Bench Warrant for the arrest of the Defendant," which indicates that he was attempting to fulfill the role of a complaining witness by providing the facts necessary to make a finding of probable cause. "The Fourth Amendment requires that arrest warrants be based `upon probable cause supported by Oath or affirmation' — a requirement that may be satisfied by an indictment returned by a grand jury, but not by the mere filing of criminal charges in an unsworn information signed by the prosecutor." Kalina, 522 US at 129, citing Gerstein, 420 US at 117. The NORCOR letter, which is unsworn, merely indicates that "if justified" a warrant should be issued. Nisley swears that he has "reviewed" this letter and, as a result, "believe[s] probable cause exists to issue a no bail warrant." This is the sworn complaint required to fulfill the Oath or affirmation requirement of the Fourth Amendment.
If Nisley had accompanied his affidavit with some other sworn affidavit (or testimony) of Brown's wrongdoing, then his affidavit would merely inform the court that he believed probable cause existed (albeit in a constitutionally unnecessary sworn form) based on the accompanying sworn accusations. This would clearly be prosecutorial conduct protected with absolute immunity under Kalina. On the other hand, the Fourth Amendment's Oath or affirmation requirement is not satisfied by a sworn affidavit without any factual allegations of wrongdoing, but which merely authenticates the source of attached, unsworn accusations of criminal conduct. Otherwise enterprising prosecutors across the country might simply make an end run around the constitutional Oath or affirmation requirement by submitting sworn affidavits that request charges be filed based on the allegations in unsworn complaints. Surely Nisley was not attempting to engage in such a practice. Instead, he was simply fulfilling the constitutional requirement by providing the sworn testimony himself through his incorporation of the facts in the NORCOR letter.
Viewing Nisley's affidavit as incorporating the accusations in the NORCOR letter, the facts of this case are very similar to Cruz v. Kauai County, 279 F.3d 1064 (9th Cir 2002). In Cruz, a prosecutor signed a motion for bail revocation and its supporting affidavit, which swore to the truth of facts the prosecutor obtained from Cruz's ex-wife, who was involved in a bitter child custody dispute with Cruz. The Ninth Circuit rejected the prosecutor's defense of absolute immunity, reasoning that he "lost that protection because he stepped outside his prosecutorial role and into the role of witness, when he personally attested to the truth of facts in the affidavit." 279 F.3d at 1067, citing Kalina 522 US at 130.
As the prosecutor in Cruz, when Nisley was acting as a complaining witness, he was not performing a function that was so close to the judicial process as to provide him with absolute immunity. Id at 1068; see also Kalina, 522 US at 130-31; Morley v. Walker, 175 F.3d 756, 760 (9th Cir 1999) (relying on Kalina in denying absolute immunity to prosecutor who executed oath or affidavit in support of arrest warrant). Nisley was not merely forwarding a sworn affidavit in support of probable cause as a prosecutor might do with absolute immunity. Instead, he was serving as that witness himself by vouching for the authenticity of the accompanying unsworn accusations. Accordingly, Nisley is not entitled to absolute immunity for swearing to the truth of the facts in the affidavit.
II. Qualified Immunity and Failure to State a Claim
As a complaining witness, Nisley is eligible for qualified immunity. See Kalina, 522 US at 127; Malley, 475 US at 340-41; see also Morley, 175 F.3d at 760 (finding that in the case of a prosecutor who acted as a complaining witness, "[o]nly qualified immunity is available"). However, as discussed next, he is not entitled to dismissal because his conduct when submitting the affidavit and related materials was not protected by qualified immunity. For the same reasons, Brown states a claim for recovery under § 1983.
A. Legal Standards
Qualified immunity protects government officials for actions they took in the course of performing the discretionary duties of their offices. Butler, 281 F.3d at 1021, citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an affirmative defense that bars civil liability damages if the official's conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id, quoting Harlow, 457 US at 818; see also Malley v. Briggs, 475 U.S. 335, 341 (1986) ("As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law"). The test for evaluating a qualified immunity claim is as follows:
The first step . . . is to determine whether the plaintiff has shown that the action complained of constituted a violation of his or her constitutional rights. If the court is satisfied that a constitutional violation occurred at the hands of a government official, the second step is to determine: (1) whether the violated right was clearly established, and (2) whether a reasonable public official could have believed that the particular conduct at issue was lawful. As such, the process of determining qualified immunity is an examination of the "objective legal reasonableness" of a government official's conduct.Id (citations omitted).
In order to state a claim under § 1983 for statements in an affidavit to procure a warrant, a plaintiff "must show that the investigator `made deliberately false statements or recklessly disregarded the truth in the affidavit' and that the fabrications were `material' to the finding of probable cause." Gailbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir 2002), quoting Hervey v. Estes, 65 F.3d 784,790 (9th Cir 1995). The plaintiff must make a "substantial showing" of the element of a deliberate falsehood or reckless disregard for the truth. Morley, 175 F.3d at 760, citing Hervey, 65 F.3d at 784.
The tests for qualified immunity and establishing the Fourth Amendment claim under § 1983 "intertwine" because both include common elements. Butler, 281 F.3d at 1024 (citations omitted). As the Ninth Circuit has explained:
[N]o reasonable officer [or other official] could believe that it is constitutional to act dishonestly or recklessly with regard to the basis for probable cause in seeking a warrant. Accordingly, should a factfinder find against an official on this state-of-mind question, qualified immunity would not be available as a defense. On the other hand, should the fact-finder find at trial in the officer's favor, i.e., that he did not act dishonestly or recklessly, that officer's conduct would not have violated any clearly established statutory or constitutional rights. In this regard, because the two issues merge, there need be no separate inquiry at trial, and no discrete instructions, on whether [the official] is entitled to qualified immunity. If [the official] was reckless or deceitful in preparing the warrant affidavit, then he both violated [the plaintiff's] rights and is not entitled to qualified immunity.Id (emphasis added).
B. Analysis
The first step in the qualified immunity analysis is met here because Brown's Fourth Amendment right to be free from an unlawful arrest and incarceration was violated when she was erroneously arrested and jailed based on an affidavit that incorrectly stated that she had failed to fulfill a sentence. The more difficult issue is the second step as to whether Nisley deliberately or recklessly violated a clearly established constitutional right.
1. Deliberate or Reckless Violation of a Constitutional Right
Brown does not allege that Nisley was deliberately dishonest when he prepared his affidavit. However, Brown alleges that Nisley acted recklessly when he failed to: (1) place a note in his file to indicate that Brown had been ordered to serve her time in Umatilla County; (2) include in his affidavit his express agreement that Brown could serve her time in Umatilla County and the fact that Judge Smith ordered Brown to serve her time in Umatilla County; (3) review his file, which contained Brown's plea petition expressly reciting that she could serve her time in Umatilla County; (4) review the court file, which contained both the plea petition and the handwritten note suggesting that Brown may have done her time in Umatilla County; and/or (5) telephone Brown's attorney to inquire why plaintiff had not served her jail time. Second Amended Complaint, ¶ 25.
This allegation is protected by absolute immunity. A prosecutor's entries in his own file, especially those made at the time of a judicial hearing, are made as part of his function as a prosecutor and are closely related to judicial proceedings or made in preparation (or conclusion) of them. Therefore, Nisley has absolute immunity for his failure to include this information in his own file. See Kalina, 522 US at 126; Burns, 500 US at 494.
Brown also alleges that Nisley recklessly disregarded the truth when he submitted Schreiber's NORCOR letter and swore that he believed there was probable cause to arrest plaintiff when he knew or should have known there was not. Second Amended Complaint, ¶ 25(g). However, as discussed previously, Nisley's submission of his affidavit and the NORCOR letter, and his belief that there was probable cause for arrest were protected by absolute immunity. Kalina, 522 US at 129-31. It is his statements of fact in his affidavit that are not protected by absolute immunity.
"It is not objectively reasonable for a prosecutor to deliberately or recklessly misstate or omit facts material to the existence of probable cause." Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 642 (9th Cir 1999), citing Lombardi v. City of El Cajon, 117 F.3d 1117, 1125 n 5 (9th Cir 1997). To show that an omission is material, a plaintiff must "establish that the remaining information in the affidavit is insufficient to establish probable cause." Id at 642, quoting Hervey, 65 F.3d at 789.
There is no question that the information omitted from Nisley's affidavit was material to the finding of probable cause. If Judge Smith had been informed that Brown had actually served her sentence, he would not have signed the arrest warrant. In addition, for the reasons discussed below, Brown has met her burden under Morley of demonstrating a "substantial showing" that Nisley acted recklessly in failing to include these material facts.
a. Memory of Agreement
Nisley argues that he did not act recklessly by not mentioning the sentencing agreement because he did not remember it at the time he completed the affidavit. However, there is no evidence in the record at this point as to Nisley's state of mind. If he did remember the agreement, or should have remembered the agreement, then he certainly acted recklessly (or possibly deliberately) when he failed to include this information in the affidavit. This dispute over Nisley's state of mind is a fact issue that cannot be decided at this juncture. For now, the existence of this dispute is sufficient to overcome a motion to dismiss.
b. Failure to Review the Plea Petition
Nisley contends he was not reckless for failing to review the plea petition. He contends that once he received the NORCOR letter notifying him Brown had not fulfilled her sentence, he verified the sentence by checking the Judgment and Sentence Order, which does not mention the agreement to permit Brown to serve her sentence in Umatilla County. Therefore, Nisley argues that his failure to review the plea petition was not reckless because the Judgment and Sentence Order supersedes the plea petition and other materials in the file. This argument has several problems.
First, there is no evidence in the record that Nisley reviewed the Judgment and Sentence Order before signing his affidavit.
Second, even if he did, the absence of the special agreement from the Judgment and Sentence Order is a result of Nisley's own drafting error. While Nisley has absolute immunity for drafting the Judgment and Sentence Order, as discussed above, any errors in drafting can still be considered when deciding whether he has qualified immunity for other related actions. See Morley, 175 F.3d at 761 ("Evidence of [the defendant prosecutor's] conduct, even though he may have absolute immunity for it, may come in at trial if relevant to proving his conduct in connection with securing the arrest warrant, conduct for which he has only qualified immunity").
Third, it is not clear that merely reviewing the Judgment and Sentence Order in this situation would be sufficient. This case is very similar to Butler, where a plaintiff brought suit for violations of his Fourth Amendment rights when a government official's affidavit led to a search of his business. The official's affidavit indicated that the plaintiff did not have a record of title for certain vehicles, but the official had only searched the computer database of titles using incomplete names for the plaintiff and his business, despite the official's possession of documents providing the full names. Because the official had possession of this information, the court rejected his argument that his title search (and resulting affidavit) was sufficient when made with the only names by which he knew the plaintiff and his company. Similarly here, Nisley possessed the information that would have made his affidavit invalid. Therefore, if Nisley did not review the plea petition in his own file when he received the NORCOR letter, that could be sufficient evidence to support a verdict in Brown's favor.
c. Failure to Review the Court File
It may also have been unreasonable for Nisley to fail to review the actual court file before completing the affidavit. If Nisley remembered the special agreement with Brown, or had any reason to think she may have fulfilled her sentence, then he should have checked the court file.
d. Failure to Telephone Brown's Attorney
Finally, Nisley may have acted with reckless disregard for the truth when he completed the affidavit without telephoning Brown's attorney to question why she had not fulfilled her sentence. If he had any memory of the special agreement, such a telephone call may have been a reasonable step to take. This conversation would not have led Brown to flee arrest, as Nisley argues, because she had completed her sentence — a fact Nisley would have verified if he had discussed the matter with Brown's attorney.
e. Nisley's Overall Defenses to His Reckless Conduct
In response to all of Brown's arguments, Nisley maintains that as a matter of public policy, a prosecutor completing an affidavit for the arrest of a convicted person who absconded from her sentence should not have to do more than check the Judgment and Sentence Order. Leaving aside the fact that Nisley was not acting in his prosecutorial role by swearing to the facts in the affidavit, this argument is insufficient to obtain qualified immunity or a dismissal. If a prosecutor has memory of a specific agreement not contained in the Judgment and Sentence Order, as Nisley may have had, then public policy would require him to do more than merely check the Judgment and Sentence Order.
Nisley's remaining argument is that all he did was present the facts to the court, whose duty it was to then determine probable cause. Nisley argues the court's probable cause determination absolves him from liability for false statements in his affidavit. This argument was explicitly rejected in Malley:
The . . . question in this case is whether a reasonably well-trained [police] officer . . . would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. If such was the case, the officer's application for a warrant was not objectively reasonable, because it created the unnecessary danger of an unlawful arrest. It is true that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this danger by exercising reasonable professional judgment.475 US at 345-46.
In Morley, the Ninth Circuit rejected a prosecutor's motion to dismiss based on qualified immunity arguments similar to those made by the officer in Malley. As did Nisley, the prosecutor in Morley submitted a sworn affidavit that made various allegations in support of an arrest warrant. The prosecutor argued that a probable cause determination at a preliminary hearing collaterally estopped the plaintiff from raising his § 1983 claim for false arrest. After citing the parties dispute over whether the district attorney deliberately or recklessly misstated or omitted facts material to finding probable cause, the court found that it was not equipped at the motion to dismiss stage to decide whether there was qualified immunity based on this estoppel argument.
As in Malley, if Nisley acted recklessly when he swore to the facts in the affidavit, he is not eligible for qualified immunity regardless of the court's probable cause finding. Similarly, as in Morley, the dispute over whether Nisley acted recklessly prevents this court from concluding at this stage that Judge Smith's decision to issue the arrest warrant protects Nisley's sworn statements in his affidavit.
2. Clearly Established Constitutional Right
There is obviously a clearly established constitutional right not to be unlawfully incarcerated. If Nisley knew, or should have known, at the time he swore to the facts in the affidavit that Brown may have served her sentence at an alternative facility to NORCOR, then his affidavit directly relates to this right.
However, if Nisley did not know, or should not have known, of the special agreement when he completed the affidavit, then Brown is, in effect, arguing that there is a Fourth Amendment right not to have a prosecutor personally attest to a false statement from a prison facility that an individual had not served her sentenced time there without further investigation beyond examining the Judgment and Sentence Order. This right was clearly established in Cruz.
As previously discussed, in Cruz, a prosecutor signed a motion and supporting affidavit to revoke Cruz's bail. The prosecutor swore to the truth of facts he obtained from Cruz's exwife, who was involved in a bitter child custody dispute with Cruz. Despite this potential for bias, the prosecutor did not investigate the ex-wife's allegations before submitting the affidavit personally attesting to these claims. With regard to the first prong of the qualified immunity test, the court found the prosecutor submitted his affidavit with reckless disregard for the truth. However, on the second prong of the qualified immunity test, the court found that the prosecutor did not violate a clearly established constitutional right because it had not yet been established.
Because there was no clearly established right at the time [the prosecutor] acted, an objectively reasonable person in [the prosecutor's] position could not have known that he may have been acting in violation of [Cruz's] rights by appending his own affidavit reciting the complaint of a third person to the bail revocation application, without having investigated the truthfulness of the third party's assertions. Consequently [the prosecutor] is entitled to qualified immunity.Id at 1069-70 (emphasis added).
Nisley's actions were the same as those taken by the prosecutor in Cruz. He appended a third party's complaint, NORCOR's letter, to his own affidavit without having investigated the truth of NORCOR's assertions. Although the prosecutor in Cruz was able to obtain qualified immunity because the right to be free from such prosecutorial conduct was not clearly established at the time, Cruz clearly established this right in all subsequent cases. Cruz was decided on February 6, 2002. Nisley signed his affidavit on September 15, 2003. Plaintiff's Exhibit B, p. 12. Therefore, if Nisley engaged in reckless conduct when he swore to the affidavit, he violated the Fourth Amendment right set out in Cruz.
Accordingly, Nisley is not entitled to qualified immunity for his personal attestations in the affidavit because Brown demonstrated that Nisley may have acted with reckless disregard for the truth and violated a clearly established constitutional right.
III. Fifth and Fourteenth Amendment Claims
Brown's counsel agreed at oral argument that the § 1983 claims for Fifth and Fourteenth Amendment violations are based on the same facts as the Fourth Amendment claim. Therefore, Brown alleges that she was wrongfully seized, in violation of the Fourth Amendment, without due process of law in violation of the Fifth Amendment and Fourteenth Amendments. Although Nisley seeks dismissal of all claims, he does not address these Fifth and Fourteenth Amendment arguments directly.
Because Brown alleges that she was imprisoned by state or local officials, the portion of her § 1983 claim alleging a Fifth Amendment due process violation should be dismissed. The Fifth Amendment only addresses due process violations made by federal officials. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir 2001), citing Schweiker v. Wilson, 450 U.S. 221, 227 (1981).
It is not clear whether Nisley is alleging a separate substantive due process violation under the Fourteenth Amendment. In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court directed courts to analyze claims of excessive force under a more specific constitutional provision, if one applies, rather than the general notion of substantive due process. In Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir 2002), involving a § 1983 claim against a county and its coroner for falsifying an autopsy report which led to plaintiff's false arrest, the Ninth Circuit dismissed the due process claims in favor of a Fourth Amendment claim. Similarly here, if Brown is alleging a claim for a Fourteenth Amendment violation of her due process rights by demonstrating that Nisley may have acted recklessly in swearing to an affidavit that led to her wrongful arrest, then that claim should be dismissed.
RECOMMENDATION
For the reasons stated above, Defendant's Motion to Dismiss (docket #9) should be GRANTED IN PART by dismissing plaintiff's § 1983 claim to the extent it alleges a violation of the Fifth Amendment and a violation of substantive due process under the Fourteenth Amendment, and otherwise DENIED.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due May 28, 2004. If no objections are filed, then the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due within 10 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.