630 F.2d 990 (3rd Cir. 1980), 79-2218, Mancini v. Lester

Docket Nº:79-2218.
Citation:630 F.2d 990
Party Name:Dominick MANCINI, Appellant, v. Sherwin LESTER and David Lucas.
Case Date:September 18, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 990

630 F.2d 990 (3rd Cir. 1980)

Dominick MANCINI, Appellant,

v.

Sherwin LESTER and David Lucas.

No. 79-2218.

United States Court of Appeals, Third Circuit

September 18, 1980

Submitted Under Third Circuit Rule 12(6) Aug. 11, 1980.

William N. Dimin, Walsh, Sciuto & Dimin, Hackensack, N. J., for appellant.

Dominick Mancini, pro se.

John J. Degnan, Atty. Gen. of New Jersey, Trenton, N. J., for defendants; Erminie Conley, Asst. Atty. Gen., of counsel; John R. Tassini, Deputy Atty. Gen., on brief.

Before ADAMS, VAN DUSEN and HIGGINBOTHAM, Circuit Judges.

OPINION

PER CURIAM:

This pro se civil rights action, brought pursuant to 42 U.S.C. § 1983, presents the difficult question of when a prosecutor is entitled to the defense of absolute immunity.

I.

Plaintiff, Dominick Mancini, was formerly employed as a lieutenant detective in the Bergen County Prosecutor's office. Named as defendants in the complaint filed on September 26, 1978 were Sherwin Lester, Bergen County Prosecutor, and Deputy Attorney General David Lucas. Mancini specifically asserted that "each and all of the acts

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of the defendants were done by them, not as individuals, but under the color and pretense of the laws of the State of New Jersey. . . ."

Mancini claimed that his ex-wife had been responsible for making false charges against him during a six-month period between May and September 1972. Mrs. Mancini allegedly presented these charges to Mancini's employer (the Bergen County Prosecutor's Office) as well as the Internal Revenue Service, the New Jersey State Police, and the United States Attorney General's Office. She telephoned the prosecutor's office up to six times daily and "threatened . . . that she would go to the police if I (plaintiff) was not fired."

Plaintiff's pleading also complained that the defendants unreasonably questioned him about his ex-wife's allegations without advising him of his rights; that they ordered him to take a polygraph test and threatened that if he declined severe consequences would result, such as an indictment; that they refused to grant him a leave of absence, although his physicians indicated that without one he would suffer a complete collapse; that they refused to grant him leave unless he submitted his resignation; that his wife retracted the charges made against him; that he was forced to resign and thereafter was "black balled" from obtaining any further job in law enforcement; that plaintiff has incurred loss of earnings of $60,000; and that in attempting to rescind his resignation he sustained substantial legal fees. The defendants were said to have violated Mancini's due process rights and his right to equal protection of the law in violation of the Fourteenth Amendment. Mancini claimed entitlement to compensatory damages as well as punitive damages.

When the prosecutor refused to permit Mancini to rescind his resignation, Mancini brought the matter to the attention of the New Jersey Civil Service Commission. The Commission, emphasizing Mancini's marital difficulties, found that he had submitted his resignation under "duress" and should be allowed to withdraw it. 1

The Appellate Division of the Superior Court reversed the Commission's judgment and specifically affirmed the prosecutor's decision "in rejecting Mancini's attempted rescission of his resignation. . . ." The appellate court wrote:

Whether (Mrs. Mancini's) charges were in fact true is irrelevant . . . the point is that the Prosecutor had the right to proceed as he did in investigating respondent, based upon the evidence before him. Since his actions in this regard were fully justified, and since there is not the slightest suggestion that the Prosecutor was not acting in good faith, there was no wrongful or illegal pressure and therefore no duress stemming from his investigation or proposed removal proceedings.

Unpublished opinion at pages 5-6.

Mancini's petition for certification to appeal the Superior Court decision was denied by the Supreme Court of New Jersey. Woodcock v. New Jersey Civil Service Commission, 69 N.J. 77, 351 A.2d 5 (1975). 2

It was then that plaintiff filed his civil rights complaint in the United States District Court for the District of New Jersey. After reviewing the defendants' brief and hearing oral argument, the district court dismissed plaintiff's case on June 26, 1979. It explained the basis of its decision: "After reading all of the moving papers in this case and having had the benefit of oral arguments, this Court finds that these Defendants enjoy prosecutorial immunity." 3

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Mancini filed a timely appeal. We now vacate the judgment and remand the matter to the district court.

II.

The United States Supreme Court's decision in Imbler v. Pachtman 4 extended absolute immunity to prosecutors when their "activities were intimately associated with the judicial phase of the criminal process." 424 U.S. at 430, 96 S.Ct. at 995. The state prosecutor in that case had been charged in a suit under § 1983 with the knowing use of perjured testimony. The Supreme Court's decision was a narrow one: "We hold only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983." 424 U.S. at 431, 96 S.Ct. at 995. It left open the question, however, whether immunity was required "for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." Id. at 430-431, 96 S.Ct. at 995. (footnote omitted).

The lower federal courts must employ a functional analysis to determine whether Imbler's absolute immunity protects a prosecutor. Many of the reported decisions have held that only a qualified, good faith immunity applies to a prosecutor acting in an investigative or administrative capacity. See, e. g., Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir. 1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298; Briggs v. Goodwin, 569 F.2d 10, 16 (D.C.Cir.1977) (collecting cases at page 20; qualified, good-faith immunity applies to acts done in administrative or investigative capacity), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133; Pflaumer v. United States Dept. of Justice, 450 F.Supp. 1125, 1133 (E.D.Pa.1978) (the gathering of evidence for the purpose of supporting the presentation of an indictment is part of the prosecutor's investigative role and therefore entitled to qualified rather than absolute immunity); D'Iorio v. County of Delaware, 447 F.Supp. 229, 235 (E.D.Pa.1978) (qualified immunity), vacated on other grounds, 592 F.2d 681 (3d Cir. 1979); Austin v. Manlin, 433 F.Supp. 648 (E.D.Pa.1977) (qualified immunity applies to prosecutor's investigative role); Tomko v. Lees, 416 F.Supp. 1137 (W.D.Pa.1976).

This Court's most recent consideration of the Imbler decision occurred in Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979), pet. for writ of certiorari pending sub nom. Mitchell v. Forsyth, S.Ct. No. 79-1120. At issue in Forsyth was a claim of absolute prosecutorial immunity by two former Attorneys General of the United States, who had been named as defendants in a suit for damages filed under the First, Fourth, Sixth, and Ninth Amendments to the Constitution, and 18 U.S.C. § 2520 (1976) (provision for a private cause of action and damages for violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968). Former Attorney General Mitchell contended that he was absolutely immune from civil liability for his decision to authorize warrantless electronic surveillances. Relying upon Imbler, he analogized his position to that of a state prosecuting attorney, and argued that because their positions were similar, he too should be entitled to the shield of absolute immunity.

Speaking for the Court, Judge Hunter evaluated this claim against "the boundaries to (the) immunity" established by the Supreme Court. He concluded that cases in other circuits both before and after Imbler had "distinguished between a prosecutor's quasi-judicial functions on the one hand and his investigative and administrative functions on the other, granting absolute

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immunity to the former and relegating the latter to qualified immunity." 599 F.2d at 1213-1214 (citations omitted). Surveying the decisions of this Court on the issue, Judge Hunter found that we have "not been squarely presented with the problem of the scope of immunity for prosecutorial conduct which lies outside of the advocatory function but within a prosecutor's duties as an administrator or investigator." Id. at 1214. 5

Forsyth formally recognized the advocatory investigative distinction stating that we hold that where the activities of the Attorney General depart from those which cast him in his quasi-judicial role, the protection of absolute immunity will not be available." 599 F.2d at 1214-1215. The defendant's actions in Forsyth were characterized as being within the "gray" and "difficult" area of investigative activity preceding a prosecution. The following discussion in Forsyth sheds light on the case at hand:

We recognized that the decision of the Attorney General, or a prosecuting attorney, to initiate a prosecution is not made in a vacuum. On occasion, the securing of additional information may be necessary before an informed decision can be made. To grant a prosecuting attorney absolute immunity over his decision to initiate a prosecution while subjecting him to liability for securing the information necessary to make that decision would only foster uninformed decisionmaking and the potential for needless actions. We believe that the right to make the...

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