Kipps v. Ewell, 75-1494
| Decision Date | 03 March 1976 |
| Docket Number | No. 75-1494,75-1494 |
| Citation | 538 F.2d 564 |
| Parties | Thomas A. KIPPS, Appellant, v. John EWELL et al., Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thomas A. Kipps, appellant pro se.
W. W. Wharton, Harrisonburg, Va., for appellees.
Before RUSSELL, FIELD and WIDENER, Circuit Judges.
Following his acquittal of a state murder charge, Thomas A. Kipps initiated a complaint pursuant to 42 U.S.C. § 1983 against the defendants for violation of his civil rights in connection with the murder prosecution. Defendant Ewell prosecuted the case against Kipps as Commonwealth Attorney for Warren County, Virginia. Defendant Keyser was sheriff of the county during the investigation and prosecution of Kipps, and defendant Williams was the deputy who handled the investigation. Kipps' complaints include the following: 1) the defendants caused him to be confined for one day before he was arrested; 1 2) the defendants combined to cause Kipps' arrest; 3) the defendants released allegedly inflammatory statements and a picture to the press. On the defendant's motion to dismiss and after affording Kipps an opportunity to file reply affidavits and depositions, the district court dismissed Kipps' case. The motion to dismiss for failure to state a claim for which relief can be granted may be treated as a motion for summary judgment when matters outside the pleadings are considered by the court. Fed.R.Civ.P. 12(b).
Because of the public interest in the forthright enforcement of criminal laws, the defendants have some protection from retaliatory suits. Defendant Ewell, as Commonwealth Attorney, is immune from any civil action connected with his prosecuting function. Weathers v. Ebert, 505 F.2d 514, 515 (4th Cir. 1974), appeal pending, --- U.S. ----, 96 S.Ct. 1480, 47 L.Ed.2d 745. Defendants Keyser and Williams enjoy no immunity from suit, but they may avail themselves of the defense of good faith and probable cause in a § 1983 action. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Although this is an affirmative defense which may be properly raised before a jury, id., summary judgment may be rendered if pleadings and affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). When a motion for summary judgment is properly supported by affidavits, the adverse party may not rest upon the mere allegations of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); cf. Barnes v. Dorsey, 480 F.2d 1057, 1061 (8th Cir. 1973). 2
Kipps has not offered any reason why quasi-judicial prosecutorial immunity should not bar suit against Ewell for his actions in prosecuting him after he was arrested. Instead he has attempted to avoid the immunity issue by relying upon the fact that Ewell consulted with the other defendants about Kipps' arrest before it occurred. When Williams first told Ewell that Kipps was suspected in the murder case, Ewell suggested several additional matters that he believed should be investigated. After these suggestions were followed, Ewell reviewed the evidence against Kipps and advised Williams that probable cause existed for Kipps' arrest. Kipps argues that this prearrest consultation was not a part of the prosecutorial function and thus was outside the scope of the prosecutorial immunity. Cf. Hampton v. City of Chicago, Cook County, Illinois, 484 F.2d 602 (7th Cir. 1973), cert. denied 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1973). 3 It is not necessary to determine whether these consultations were anything other than the traditional duty of the local prosecutor, since the defense of probable cause and good faith would protect Ewell in this case even if he were to be judged by the standards for police rather than prosecutorial conduct.
In his complaint, Kipps alleged that probable cause was lacking for his arrest because it was based on the insufficiently credible statement of a fellow inmate, Jesse Armentrout. Kipps does not deny that Armentrout had told the police that Kipps admitted committing the murder and showed Armentrout the purported murder weapon; he asserts only that Armentrout's statement lacked credibility. Although given the opportunity to do so by the district court, Kipps furthermore has not contradicted the defendants' affidavits that the prison camp confinement and subsequent arrest were premised upon information from other sources that Armentrout had a close association with Kipps as they traveled together daily to their...
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