Cook v. Houston Post

• Citation: 616 F.2d 791
• Decision Date: 07 May 1980
• Docket Number: No. 78-1342,78-1342
• Parties: C. R. "Jake" COOK, T. W. Cook and Lee DeForke, Plaintiffs-Appellants, v. The HOUSTON POST, Ralph Williams, Joseph Perino, Marvin Kent and Terry Collins, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 791

616 F.2d 791

C. R. "Jake" COOK, T. W. Cook and Lee DeForke, Plaintiffs-Appellants, v. The HOUSTON POST, Ralph Williams, Joseph Perino, Marvin Kent and Terry Collins, Defendants-Appellees.

No. 78-1342.

United States Court of Appeals Fifth Circuit.

May 7, 1980.

Ronald H. Tonkin, Houston, Tex., for C. R. "Jake" Cook.

Michael Maness, Houston, Tex., for C. R. "Jake" Cook and Lee DeForke.

Anthony J. P. Farris, Alvin A. Horne, Houston, Tex., for T. W. Cook.

John L. McConn, Jr., Richard A. Sheehy, Charles B. Holm, Houston, Tex., for the Houston Post and Ralph Williams.

William E. Heitkamp, Houston, Tex., for Joseph Perino.

Clyde F. Dewitt, III, Asst. Dist. Atty., Houston, Tex., for Marvin Keny and Terry Collins.

Appeals from the United States District Court for the Southern District of Texas.

Before AINSWORTH and HENDERSON, Circuit Judges, and HUNTER, ^* District Judge.

EDWIN F. HUNTER, Jr., District Judge.

It was in October of 1972 that Williams, an investigative reporter for The Houston Post, began to report and cause to be published stories about the alleged corruption in the Houston Fire Department. The Grand Jury investigation and resultant publicity concerning official misconduct had been in progress several months before Collins, an Assistant District Attorney for Harris County, was assigned to the case. It was in March of 1973 that "Jake" Cook and two other firemen (T. W. Cook and DeForke) were indicted by a Harris County grand jury on various charges involving misuse or theft of departmental property. They were acquitted by a petit jury on September 20, 1973. Some 15 months thereafter they filed this complaint alleging a conspiracy to deprive them of their civil rights. ¹ The gravamen of this § 1983 action is that Perino, Kent, Williams and The Houston Post embarked on a campaign to discredit the administration of "Jake" Cook, then the City of Houston Fire Chief, and that thereafter Terry Collins joined in the conspiracy which resulted in the indictment, trial and acquittal of appellants. Plaintiffs appeal from a grant of summary judgment in favor of all defendants. We affirm.

While not explicitly stated, it seems clear that Judge Cowan granted the motions on at least two grounds: (1) that Terry Collins, who was an Assistant District Attorney at all times relevant, was absolutely immune from suit and the other defendants were entitled to derivative immunity (see Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978), modified on other grounds, 583 F.2d 779 (1978); Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970)); and (2) the plaintiffs failed to demonstrate that any constitutional right was deprived. See, e. g., Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

The only person alleged to be acting under color of state law was the prosecutor, Collins. Prosecutors are immune from liability in suits under § 1983 for acts that are within the scope of prosecutorial duties. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). This Court, in interpreting Imbler, has extended prosecutorial immunity to a prosecutor's actions in initiating, investigating and pursuing a criminal prosecution. Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979); Conner v. Pickett, 552 F.2d 585 (5th Cir. 1976). The specific acts complained of here were clearly within the Imbler shelter.

Collins would have been negligent in his duties as a prosecutor had he not interviewed witnesses before presenting their testimony to the Grand Jury. His duties as a prosecutor required him to obtain, examine and interpret documents. ² As Judge Cowan correctly pointed out in his Order Granting Summary Judgment,

"Not all of an advocate's work is done in the courtroom. For a lawyer to properly try a case, he must confer with witnesses, and conduct some of his own factual investigation."

The District Court dismissal of the complaint against Collins is affirmed.

The other defendants are Williams (the investigative reporter), The Houston Post, and two firemen (Perino and Kent). It is alleged that they acted in concert with the prosecutor. ³ The District Court, citing Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970), concluded that private persons alleged to have conspired with immune state officials cannot be held under § 1983, because they would not be conspiring with persons acting under color of law against whom a § 1983 claim could be sustained. But in Sparks v. Duval County Ranch Company, Inc., 604 F.2d 976 (5th Cir. 1979) (en banc), decided after Judge Cowan's order was issued, this Court abolished the doctrine of derivative immunity for private persons who conspire with immune state officials. In the light of Sparks, summary judgment on that basis may not be sustained for the remaining defendants. ⁴

The District Judge cited, in addition to Imbler v. Pachtman (concerning prosecutorial immunity), Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405, which held that reputation alone, apart from some more tangible interest such as employment, does not implicate any property or liberty interest sufficient to invoke the procedural protection of the Due Process Clause; hence, to establish a claim under § 1983 and the Fourteenth Amendment more must be involved than defamation. In Paul, a false police flyer publicized an arrest for crime. Here, the complained of conduct publicized an investigation by a grand jury resulting in an indictment for a felony.

In their brief to this Court, plaintiffs suggest that the gravamen of their complaint is that the defendants embarked on a campaign to discredit the administration of C. R. "Jake" Cook, and that "Jake" Cook voluntarily resigned because of the bad publicity that the Houston Fire Department was receiving. We see little difference between this claim and the damage to reputation claim in Paul v. Davis, supra.

The Fourteenth Amendment does not protect against all deprivations of liberty or property. It protects only against deprivations of liberty accomplished without due process of law. The Due Process Clause does not ex proprio vigore extend to a person a right to be free of injury merely because the state is characterized as the tortfeasor. The Constitution does not guarantee that only the guilty will be indicted and arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted indeed for every suspect arrested. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Plaintiffs were indicted by a grand jury and acquitted by a petit jury.

Appellants' interest with reputation, false arrest, malicious prosecution, libel and slander are matters which the State protects by virtue of its tort law, providing a forum for those interests by means of damage actions....