Dababnah v. Burnside

• Decision Date: 24 January 2000
• Docket Number: C,No. 99-1467,KELLER-BURNSID,99-1467
• Citation: 208 F.3d 467
• Parties: (4th Cir. 2000) MOUSA I. DABABNAH, M.D., Plaintiff-Appellee, v. KRISTENhief Assistant Prosecuting Attorney for Raleigh County, Beckley, WV 25801, Defendant-Appellant, and ANTHONY S. REED, West Virginia Public Safety Department 19-21 By Pass Beckley, WV 25801; CRAIG A. LIGHT, West Virginia Public Safety Department 19-21 By Pass Beckley, WV 25801; JOHN DOES, (3-5), Defendants. (Ca-97-1144-5). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 467

208 F.3d 467 (4th Cir. 2000)

MOUSA I. DABABNAH, M.D., Plaintiff-Appellee, v. KRISTEN KELLER-BURNSIDE, Chief Assistant Prosecuting Attorney for Raleigh County, Beckley, WV 25801, Defendant-Appellant, and ANTHONY S. REED, West Virginia Public Safety Department 19-21 By Pass Beckley, WV 25801; CRAIG A. LIGHT, West Virginia Public Safety Department 19-21 By Pass Beckley, WV 25801; JOHN DOES, (3-5), Defendants.

No. 99-1467 (Ca-97-1144-5).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: January 24, 2000.

Decided: April 3, 2000.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley.

David A. Faber, District Judge.

COUNSEL ARGUED: Kenneth Eugene Knopf, PULLIN, KNOPF, FOWLER & FLANAGAN, Beckley, West Virginia, for Appellant. John Christian Yoder, Harpers Ferry, West Virginia, for Appellee. ON BRIEF: Eric A. Collins, Michael W. Blake, PULLIN, KNOPF, FOWLER & FLANAGAN, Beckley, West Virginia, for Appellant. J. Thomas Burch, Jr., William T. Bennett, BURCH & CRONAUER, P.C., Washington, D.C., for Appellee.

Before WILKINSON, Chief Judge, and LUTTIG and MOTZ, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Luttig joined. Judge Motz wrote an opinion concurring in the judgment.

OPINION

WILKINSON, Chief Judge:

Mousa Dababnah brought this § 1983 action against Kristen Keller Burnside, the chief assistant prosecuting attorney for Raleigh County, West Virginia. Dababnah argues that Keller-Burnside violated his constitutional rights by requesting a court order to secure his property and by seeking his extradition from Virginia. The district court denied Keller-Burnside's summary judgment motion, finding that she was not protected by either absolute or qualified immunity. Because Keller-Burnside's actions were prosecutorial functions "intimately associated with the judicial phase of the criminal process," Imbler v. Pachtman, 424 U.S. 409, 430 (1976), we hold that she is absolutely immune from suit. We thus reverse the judgment and remand with instructions to dismiss Dababnah's claims against Keller-Burnside.

I.

On December 23, 1994, appellee Mousa Dababnah, a medical doctor residing in West Virginia, destroyed a 1994 Plymouth Voyager. On March 30, 1995, the Magistrate Court of Raleigh County, West Virginia, found Dababnah guilty of misdemeanor destruction of property and sentenced him to five days in jail. During this same time, Dababnah and his wife were involved in divorce proceedings. On September 5, 1995, the presiding judge of these proceedings, Judge Robert Burnside, found Dababnah in contempt and ordered him committed to jail until he complied with the court's final divorce order requiring payment of child support and arrearage thereon.

Dababnah appealed the destruction of property conviction to the Raleigh County Circuit Court. The court granted him a trial de novo and docketed the case for December 1, 1995, before Judge H.L. Kirkpatrick, III. Dababnah alleges that neither he nor his attorney was notified of this trial date. Dababnah failed to appear for trial, and the court imposed the same five-day term of imprisonment. The Raleigh County Prosecutor's Office then secured the issuance of a capias and a fugitive warrant for the misdemeanor. During this time, KellerBurnside, the wife of Judge Burnside, was employed as the chief assistant prosecuting attorney for Raleigh County.

In the latter months of 1995, Dababnah was at the Shenandoah Inn in Wytheville, Virginia. During his stay in Virginia, Dababnah circulated allegations of corruption by the Raleigh County Circuit Court, including Judge Burnside, to numerous state and federal officials via fax, letter, and advertisement. On December 5, 1995, the Virginia State Police arrested Dababnah pursuant to the capias and transported him from his hotel room to a Virginia jail. The next day Dababnah was brought before a Wythe County Judge. At this hearing Dababnah signed a Waiver of Extradition Proceedings. This form acknowledged that the judge "fully explained" to Dababnah his "rights concerning the issuance and service of the process of extradition, [his] right to be represented by a lawyer in extradition proceedings, and [his] right to petition for a writ of habeas corpus."

On December 8, 1995, two West Virginia police officers were dispatched to secure Dababnah's return. The officers claim they were also directed to take possession of Dababnah's equipment at the Shenandoah Inn and transport these items back to West Virginia. The officers visited the hotel first. Upon arrival, the hotel manager expressed concerns about the loss or destruction of Dababnah's possessions because Dababnah had vacated the premises. The hotel manager allowed the troopers into Dababnah's room. The troopers removed some equipment, including a fax machine and computer. They placed this equipment in the trunk of their police cruiser.

The troopers then traveled to the Virginia jail and took Dababnah into custody. They drove Dababnah to his bond hearing in Raleigh County, West Virginia. Judge Kirkpatrick presided over the hearing and Keller-Burnside represented the state. Dababnah claims that his retained counsel was not notified of the hearing and that before the hearing began Keller-Burnside erroneously told him that this attorney was no longer representing him. During the hearing, Keller-Burnside argued on behalf of the state that Dababnah should serve the same five-day sentence for the destruction of property conviction, less a credit for the time served in Virginia. She also informed the court that new arrest warrants might soon be issued against Dababnah for intimidating an officer of the court, obstructing justice, and failing to pay child support. The court credited Dababnah with the time served in Virginia and ordered him to serve the remaining two days of his sentence. The court also ordered Dababnah held until he could appear before Judge Burnside pursuant to the contempt order from the divorce proceeding.

Either prior to or during the hearing, Keller-Burnside was informed that the West Virginia troopers had secured or wanted permission to secure Dababnah's property from his hotel room. During the hearing, Keller-Burnside moved for an order authorizing the seizure and detention of Dababnah's property. Keller-Burnside's request was made in open court with Dababnah present. The court entered the following order: "The Court finding that such property should be secured to protect the defendant's interests while incarcerated, does Order that such property be so inventoried and secured by either the West Virginia or Virginia State Police." The property was thereby retained by the West Virginia State Police. Dababnah claims that he did not receive this property for two years. The police counter that Dababnah neither asked for the equipment nor tried to obtain it during this time.

On December 13, 1995, while Dababnah was still in jail for his contempt charge, the Raleigh County Magistrate Court entered a criminal complaint against and issued an arrest warrant for Dababnah. Dababnah was charged with threatening to kill C. Elton Byron, a lawyer who had represented Dababnah's wife in their divorce proceedings. Just over two months later Dababnah was released from jail after assuring Judge Burnside that he would comply with the divorce decree. On July 22, 1996, pursuant to Byron's request, KellerBurnside successfully moved the court to dismiss the charges against Dababnah for threatening a judicial officer.

On November 24, 1997, Dababnah filed this § 1983 action against Keller-Burnside. Dababnah alleged, inter alia , that (1) KellerBurnside deprived him of his Fourth Amendment rights by applying for an improper court order for detention of his property, and (2) Keller-Burnside, motivated by a desire to retaliate against Dababnah for exercising his First Amendment rights against her husband, sought Dababnah's extradition. Keller-Burnside filed a motion for summary judgment, arguing that she was entitled to absolute immunity and/or qualified immunity. The district court denied her motion. KellerBurnside now appeals.

II.

A.

A prosecutor enjoys absolute immunity for prosecutorial functions "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). In other words, absolute immunity is afforded prosecutors when acting"within the advocate's role." Buckley v. Fitzsimmons, 509 U.S. 259, 278 (1993). Despite this standard, the district court declined to grant absolute immunity to Keller-Burnside for her courtroom actions seeking a court order to secure Dababnah's property. The Supreme Court in Burns v. Reed stated, "since the issuance of a search warrant is unquestionably a judicial act, appearing at a probable-cause hearing is `intimately associated with the judicial phase of the criminal process.'" 500 U.S. 478, 492 (1991) (citations omitted). Likewise, the issuance of the court order in this case was "unquestionably a judicial act." Thus, Keller-Burnside's appearance in court seeking this order is presumed to be protected by absolute immunity. ¹

Dababnah, however, contends that Keller-Burnside was acting in either an investigative or administrative capacity and thus cannot be protected by absolute immunity. He argues that part of KellerBurnside's reason for seeking the court order was to acquire court approval for a search for evidence to be used in a future prosecution and that this constituted an investigative function. The order itself, however, speaks only of safeguarding Dababnah's property (order "finding that such property should be secured to protect the defendant's interests while incarcerated," and directing "that such property be so inventoried and secured by either the West Virginia or Virginia State Police"). And in all events to deny a prosecutor absolute immunity for advocacy...