Filler v. Kellett, 16-1186

• Decision Date: 15 June 2017
• Docket Number: No. 16-1186,16-1186
• Parties: Vladek FILLER, Plaintiff, Appellee, v. Mary KELLETT, Defendant, Appellant, Hancock County; William Clark; Washington County; Donnie Smith; Travis Willey; David Denbow; Michael Crabtree; Town of Gouldsboro, ME; Town of Ellsworth, ME; John Deleo; Chad Wilmot; Paul Cavanaugh ; Stephen McFarland; Michael Povich; Carletta Bassano; Estate of Guy Wycoff; Linda Gleason, Defendants.
• Court: U.S. Court of Appeals — First Circuit

859 F.3d 148

Vladek FILLER, Plaintiff, Appellee,

v.Mary KELLETT, Defendant, Appellant,Hancock County; William Clark; Washington County; Donnie Smith; Travis Willey; David Denbow; Michael Crabtree; Town of Gouldsboro, ME; Town of Ellsworth, ME; John Deleo; Chad Wilmot; Paul Cavanaugh ; Stephen McFarland; Michael Povich; Carletta Bassano; Estate of Guy Wycoff; Linda Gleason, Defendants.

No. 16-1186

United States Court of Appeals, First Circuit.

June 15, 2017

John S. Whitman , with whom Heidi J. Hart and Richardson, Whitman, Large & Badger , Portland, ME, were on brief, for appellant.

Thomas F. Hallett , with whom Timothy E. Zerillo and Hallett, Zerillo, Whipple, P.A. , Portland, ME, were on brief, for appellee.

Jamesa J. Drake , with whom Zachary L. Heiden , Portland, ME, and Ezekiel Edwards were on brief, for amici curiae American Civil Liberties Union and American Civil Liberties Union of Maine Foundation; and Rory A. McNamara and Drake Law, LLC , Huntsville, AL, on brief for amicus curiae Maine Association of Criminal Defense Lawyers.

Before Lynch, Stahl, and Barron, Circuit Judges.

BARRON, Circuit Judge.

This appeal arises out of the state prosecution of Vladek Filler in 2009. He was initially indicted on five counts of gross sexual assault and two counts of assault of his then-wife Ligia Arguetta Filler. After two trials—and two appeals to the Maine Law Court—he was convicted only of one misdemeanor assault count, which he is still challenging. In the wake of these events, Filler filed a civil action against a number of defendants under 42 U.S.C. § 1983, including a claim against the prosecuting attorney, then-Hancock County Assistant District Attorney Mary Kellett, for malicious prosecution. Kellett chose to challenge the suit by a 12(b)(6) motion on the sprawling pleadings, rather than allowing for the development of any facts or providing a defense based on the undisputed facts on summary judgment. Kellett now brings an interlocutory appeal from the District Court's order denying her absolute prosecutorial immunity from certain of Filler's claims against her. We dismiss the appeal for lack of jurisdiction.

I.

As only a narrow subset of the many issues involved in this case are raised in this appeal, we recount just the relevant facts, as set forth in Filler's 103-page Amended Complaint and the District Court's opinion. Because this case comes to us as an interlocutory appeal, we assume "that the Plaintiff['s] allegations regarding the Defendant['s] authority, duties, acts and omissions are true, and that they are sufficient to allege a violation of federal rights." Guzman-Rivera v. Rivera-Cruz , 55 F.3d 26, 28 (1st Cir. 1995) ; see also Buckley v. Fitzsimmons , 509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (in reviewing denial of motion to dismiss upon finding no absolute immunity, "we make two important assumptions about the case: first, that petitioner's allegations are entirely true; and, second, that they allege constitutional violations for which § 1983 provides a remedy"). Accordingly, we recount the events at issue as the complaint presents them.

Filler was married to Ligia Filler, now known as Isabella L. Arguetta ("Arguetta") in 1995. Filler and Arguetta subsequently had two children together. In 2007, Filler initiated a separation from Arguetta, and made plans to relocate with their children to another state. On April 24, 2007, Arguetta was involuntarily hospitalized at a psychiatric facility. She then made a series of allegations of abuse against Filler for the purpose of gaining custody over the children.

Filler was arrested on April 26, 2007, without a warrant. He was charged with gross sexual assault of Arguetta, and subject to a number of post-arrest restrictions. Upon arrest, Filler was held overnight without bail. On April 27, a bail hearing was held and he was allowed bail. His house remained subject to a bail lien for the next four years.

Gouldsboro Police Chief Guy Wycoff threatened to arrest Filler if Filler was released on bail and returned to his home. Filler therefore was forced to live in a hotel from April 27, 2007 until May 1, 2007, when Filler's attorney confirmed with Wycoff that Wycoff "had no authority nor any court order to bar or arrest [Filler] for returning to his own house." After returning to his home, Filler remained subject to a number of post-arrest restrictions, including restrictions on contact with his children, and a curfew from 8:00 p.m. to 6:00 a.m.

On August 8, 2007, a grand jury indicted Filler on five counts of Class A gross sexual assault and two counts of Class D assault. In January 2009, after trial, Filler was convicted of one count of Class A gross sexual assault and two misdemeanor charges of assault on Arguetta. The trial court subsequently overturned the guilty verdict and ordered a new trial based upon the trial court's finding of prosecutorial misconduct. These rulings were upheld by the Maine Law Court over Kellett's appeal.¹

Following the Maine Law Court's ruling, Kellett told a local newspaper that she intended to "retry [Filler] on the three remaining charges." At the second trial, which took place in May 2011 and was conducted by a separate prosecutor, the jury acquitted Filler of all counts except one count of Class D assault. As the District Court highlighted, after the second trial was completed, the Maine Supreme Judicial Court "imposed discipline against ... Kellett for a number of violations of the Maine Rules of Professional Conduct, the first disciplinary proceeding ever filed with the Maine Supreme Judicial Court by the Overseers of the Bar against a member of Maine's prosecutorial bar based on the prosecutor's representation of the State."

In the wake of these events, on February 4, 2015, Filler filed a sprawling civil suit against eighteen separate defendants, including Kellett. The key allegations against Kellett that are at issue in this interlocutory appeal arise out of Count I of the complaint, insofar as that count asserts a claim under 42 U.S.C. § 1983 for malicious prosecution in violation of Filler's Fourth Amendment rights. The count alleges, among other things, that (1) Kellett suppressed exculpatory evidence and tampered with evidence, and (2) Kellett advised or directed law enforcement officers not to comply with subpoenas that Filler's attorney submitted.

Those allegations are at issue in this appeal because, on March 16, 2015, Kellett filed a motion to dismiss Filler's § 1983 claim for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In that motion, Kellett raised a number of arguments as to the allegations now at issue. First, Kellett's motion argued that Filler was time-barred from bringing a § 1983 claim against her arising out of much of the conduct alleged in Count I. Second, Kellett's motion argued that to the extent that Filler's § 1983 malicious prosecution claim against Kellett was based on the violation of Filler's right to due process, whether substantive or procedural, the claim was not cognizable. See Albright v. Oliver , 510 U.S. 266, 271 n.4, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (holding that substantive due process does not "furnish the constitutional peg on which to hang" the tort of malicious prosecution in a § 1983 claim); Trafton v. Devlin , 43 F.Supp.2d 56, 61 (D. Me. 1999) (noting that a § 1983 claim for the violation of procedural due process rights can exist only where, unlike here, "no adequate ‘post-deprivation remedy’ is available under state law" (quoting Pérez-Ruiz v. Crespo-Guillén , 25 F.3d 40, 42 (1st Cir. 1994) )). Third, Kellett's motion argued that, insofar as Filler's § 1983 claim against her was premised on the violation of his Fourth Amendment rights, Kellett is entitled to absolute prosecutorial immunity. And finally, Kellett's motion contended that Filler had failed to make a prima facie showing of the state tort of malicious prosecution under Maine law.

In ruling on the motion to dismiss, the District Court concluded that Kellett was entitled to absolute immunity for her "consideration of the evidence, her decision whether to charge the case, what charges to present to the grand jury, and how to prosecute the charges," because these actions were all "intimately associated with the judicial phase of the criminal process." However, the District Court denied the rest of Kellett's motion to dismiss Count I of Filler's complaint.

Kellett now challenges the District Court's denial of her motion to dismiss the claim set forth in Count I.

II.

Because Kellett brings an interlocutory appeal, we have no jurisdiction over her challenges to the denial of her motion to dismiss that do not pertain to her defense of absolute immunity from Filler's claims under § 1983.² See 28 U.S.C. § 1292(b) ; Limone v. Condon , 372 F.3d 39, 50 (1st Cir. 2004) (noting that the "general rule that only final judgments and orders are immediately appealable in civil cases" permits an exception for interlocutory review of an order rejecting an immunity defense that raises a legal question, but this exception does not confer jurisdiction over other contested issues in the case). But while we do have interlocutory jurisdiction over her challenge to the District Court's ruling regarding absolute immunity, we have such jurisdiction only to the extent that her challenge turns on a question of law rather than fact. Hill v. Coppleson , 627 F.3d 601, 606 (7th Cir. 2010) (holding that the circuit court did not have jurisdiction over an interlocutory appeal from the district court's denial of summary judgment based on an assertion of immunity because evaluating the merits of the immunity defense depended on the resolution of a factual dispute concerning the prosecutor's function).

It has been observed that absolute immunity, unlike qualified immunity, only rarely turns on questions of fact. See Ellis v. Coffee Cty. Bd. of Registrars , 981 F.2d 1185, 1189 (11th Cir. 1993) (...