Celia v. O'Malley

• Decision Date: 11 September 1990
• Docket Number: No. 90-1455,90-1455
• Citation: 918 F.2d 1017
• Parties: Nicholas V. CELIA, Jr., Plaintiff, Appellant, v. William C. O'MALLEY and Joseph P. Gaughan, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1017

918 F.2d 1017

Nicholas V. CELIA, Jr., Plaintiff, Appellant, v. William C. O'MALLEY and Joseph P. Gaughan, Defendants, Appellees.

No. 90-1455.

United States Court of Appeals First Circuit.

Heard Sept. 11, 1990.

Decided Nov. 16, 1990.

James A. Frieden, with whom Victor Aronow and Salon & Danis, were on brief, for plaintiff, appellant.

Roberta T. Brown, Sp. Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., was on brief, for defendants, appellees.

Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Nicholas Celia appeals from the district court's dismissal of his complaint and denial of his motion to amend or reconsider. In his complaint, Celia alleged that the defendants, District Attorney O'Malley and Assistant District Attorney Gaughan, caused him to be tried in the state court for stealing 2.2 pounds of cocaine from the police drug evidence room without first having presented to the grand jury evidence linking him to that crime. Having been acquitted by the jury in the state trial, Celia brought this federal action against city and county officials under 42 U.S.C. Sec. 1983.

The district court dismissed Celia's claims in part because of defendants' prosecutorial immunity and in part because of plaintiff's failure to state a claim upon which relief may be granted. The pendent state claims alleging violation of the Massachusetts Civil Rights Act (Mass.G.L. c. 12 Sec. 11I), malicious prosecution, abuse of process, and slander were dismissed for lack of a viable federal question.

I.

In July of 1984, 2.2 pounds of cocaine, valued at $500,000, was discovered missing from the evidence room of the Brockton Police Department. The disappearance of the cocaine was widely reported in the press, and an investigation of the theft was conducted by the police. This investigation ultimately focused on Nicholas Celia, a police officer who had worked in the Narcotics Division and had served fifteen years on the force.

Celia contends that the unprofessional way in which the investigation was conducted combined with discrepancies in the evidence made it virtually impossible to identify the person responsible for the theft. The investigation, he says, was handled by members of the police force rather than an outside agency; lie detector tests were allegedly given only selectively to members of the department. Celia also asserts that the investigators attempted to alter or destroy evidence and ignored evidence favorable to him.

Celia argues that, after failing to resolve the questions surrounding the disappearance of the cocaine, city and county officials attempted to fabricate a case against him. Celia was unable to account for small amounts of marijuana and cocaine which he had checked out of the evidence room but which police records indicated he had not returned. District Attorney O'Malley and Assistant District Attorney Gaughan presented evidence to two grand juries seeking an indictment of Celia for theft of drugs from the police department. Celia alleges that the evidence they presented related only to these small amounts of illegal drugs, not to the disappearance of the 2.2 pounds of cocaine. The second grand jury returned an indictment against Celia for theft of cocaine generally between March 1, 1982 and August 31, 1984. ¹

At the ensuing trial, the prosecution undertook to show that Celia was responsible for the theft of the 2.2 pounds of cocaine as well as of the smaller amounts of illegal drugs. After three days of trial, the jury acquitted Celia.

In his complaint under 42 U.S.C. Sec. 1983, Celia alleged that he was deprived of his liberty and property without due process of law and was deprived of his right to be free from prosecution without either a preliminary finding by a judge or a grand jury indictment. Celia also asserted pendent state claims for violation of the Massachusetts Civil Rights Act, malicious prosecution, abuse of process, and slander. The district court dismissed the complaint, denied Celia's motion to amend his complaint and for reconsideration of the dismissal, and entered judgment for the defendants. This appeal followed.

II.

Celia alleges that his civil rights were violated as a result of prosecutorial misconduct including prosecution without indictment, conspiracy among prosecutors and police, and misconduct in the investigatory process. Because the scope of prosecutorial immunity differs with respect to each of these types of conduct, we examine them individually.

A. Prosecutor's "Quasi-Judicial" Function

The Supreme Court has held, and this court has accordingly also ruled, that a prosecutor enjoys absolute immunity from suit based on actions taken pursuant to his quasi-judicial function. In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the plaintiff sued a prosecutor under Sec. 1983, claiming that he had knowingly used false testimony and suppressed material evidence at trial. Evaluating the scope of prosecutorial immunity, the Supreme Court held that "... in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under Sec. 1983." Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). In Siano v. Justices of Massachusetts, 698 F.2d 52 (1st Cir.1983), this Court held that a district attorney was immune from suit even when he instituted a prosecution in bad faith for the purpose of retaliation against the plaintiff. In Campbell v. State of Maine, 787 F.2d 776 (1st Cir.1986), we refused to recognize a "bad faith exception" to the scope of prosecutorial immunity as defined in Imbler.

The district attorney's alleged misfeasance here, prosecuting Celia for taking the 2.2 pounds of cocaine while having failed to present evidence of that offense to the grand jury, is less clearly outside the bounds of legitimate prosecutorial activity than was the conduct in Imbler. The indictment returned by the grand jury charged Celia with the theft of cocaine during a time period which included the disappearance of the larger amount of cocaine from the evidence room. Had the prosecutor not presented at trial whatever evidence he had concerning the 2.2 pounds of cocaine, the general indictment and subsequent acquittal would likely have foreclosed on double jeopardy grounds any further prosecution of Celia for that incident. Nevertheless, we need not decide whether the defendants' actions violated any of plaintiff's rights. Even so--even assuming, for example, that the prosecution of Celia violated his Sixth Amendment right to indictment by a grand jury or his due process rights--defendants' actions at the grand jury proceeding and later at trial fall squarely within the scope of prosecutorial immunity as defined by the Supreme Court in Imbler v. Pachtman.

Appellant urges this Court to acknowledge an exception to absolute prosecutorial immunity in situations in which a prosecutor causes a defendant to be tried for a felony without first having presented to a grand jury evidence of the particular criminal conduct sought to be shown. We decline, however, to carve out such an exception. Absolute immunity is afforded to prosecutors in their quasi-judicial role in order to ensure the independence and effectiveness of the criminal justice system. See 424 U.S. at 424-29, 96 S.Ct. at 992-94. The presentation of evidence to a grand jury and the decision to try a defendant for a particular crime is at the heart of that system. Holding prosecutors liable for a discrepancy between the evidence presented to the grand jury and the issues raised at trial could discourage prosecutors from presenting the state's case fully at trial and could restrict needed flexibility in the presentation of evidence. See id.

Moreover, as the Supreme Court noted in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1977), "the safeguards built into the judicial system tend to reduce the need for private damage actions as a means of controlling unconstitutional conduct." Id. at 512, 98 S.Ct. at 2914. The checks inherent in the judicial process, including judicial supervision and the adversarial nature of the trial, reduce the likelihood of prosecutorial abuse. In the event that such abuse does occur, the judicial process provides mechanisms for mitigating any damages that might result. For example, errors caused by demonstrated prosecutorial misconduct during the trial might be reversible on appeal. Had Celia been convicted of the theft of the cocaine, he could have raised the indictment issue on appeal and sought reversal of his conviction on that basis. ² Because of the importance of prosecutorial immunity to the effectiveness of the judicial process and in light of the safeguards inherent in the process itself, we decline to recognize the exception to the rule of prosecutorial immunity urged by appellant.

B. Conspiracy Theory

Celia contends that, even if the defendants' actions fell within the scope of absolute prosecutorial immunity, the defendants conspired with non-immune parties and are, therefore, not immune from suit under Sec. 1983. See Malachowski v. City of Keene, 787 F.2d 704 (1st Cir.1986); San Filippo v. U.S. Trust Co. of New York, 737 F.2d 246, 256 (2d Cir.1984). We need not address the merits of this contention, however, since neither Celia's original complaint nor his proposed amended complaint alleges a factual or legal theory of conspiracy. Celia did not present the conspiracy issue to the district court. His argument is, therefore, foreclosed on appeal. See Greenwich Federal Savings & Loan Assoc. v. Fidelity Bond & Mortgage Co., 714 F.2d 183 (1st Cir.1983).

C. Administrative and Investigatory Functions

With respect to prosecutorial functions outside the...