Spear v. Town of West Hartford, s. 290

• Citation: 954 F.2d 63
• Decision Date: 13 January 1992
• Docket Number: D,291,Nos. 290,s. 290
• Parties: RICO Bus.Disp.Guide 7921 John M. SPEAR; Spear Printing Co., Inc., Plaintiffs-Appellants, v. TOWN OF WEST HARTFORD; Marjorie S. Wilder, Esq., Corporation Counsel in her official and individual capacity; Robert R. McCue, Chief of Police in his official and individual capacity as Chief of Police and acting Town Manager; Summit Women's Center West, Inc., Defendants-Appellees. ockets 91-7509, 91-7511.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 63

954 F.2d 63

RICO Bus.Disp.Guide 7921

John M. SPEAR; Spear Printing Co., Inc., Plaintiffs-Appellants, v. TOWN OF WEST HARTFORD; Marjorie S. Wilder, Esq Corporation Counsel in her official and individual capacity Robert R. McCue, Chief of Police in his official and individual capacity as Chief of Police and acting Town Manager; Summit Women's Center West, Inc., Defendants-Appellees.

Nos. 290, 291, Dockets 91-7509, 91-7511.

United States Court of Appeals Second Circuit.

Argued Oct. 7, 1991.

Decided Jan. 13, 1992.

George J. Mercer, Milford, Conn. (Joseph P. Secola, The Rutherford Institute of Connecticut, of counsel), for plaintiff-appellant John M. Spear.

Vincent P. McCarthy, New Milford, Conn., for plaintiff-appellant Spear Printing Co., Inc.

David Thomas Ryan, Hartford, Conn. (Charles D. Gill, Jr., William A. Collier, Robinson & Cole, Scott M. Karsten, Sack, Spector & Barrett, West Hartford, Conn. of counsel), for defendants-appellees Town of West Hartford, Marjorie S. Wilder, and Robert R. McCue.

Jon L. Schoenhorn, Hartford, Conn. (Hurvitz, Hershinson & Schoenhorn, James J. Szerejko, Halloran & Sage, of counsel), for defendant-appellee Summit Women's Center West, Inc.

A. Lawrence Washburn, Jr., New York City, for amicus curiae Legal Center for Defense of Life.

Before OAKES, Chief Judge, VAN GRAAFEILAND and NEWMAN, Circuit Judges.

OAKES, Chief Judge:

John M. Spear and the Spear Printing Company, Inc. (collectively "Spear") appeal from a judgment of the United States District Court for the District of Connecticut, Alan H. Nevas, Judge, dismissing their action against the Town of West Hartford, its Corporation Counsel, its acting Town Manager,

                and Summit Women's Center West ("Summit").  771 F.Supp. 521.   On this appeal, Spear argues that the individual defendants are not absolutely immune, that his complaint stated a cause of action under 42 U.S.C. § 1983 (1988), and that Summit acted under color of state law.   For the reasons set forth below, we affirm
                

BACKGROUND

On April 1, 1989, Operation Rescue staged an anti-abortion protest at Summit, a women's health care facility in West Hartford. Catherine Jersey, an employee of the Spear Printing Company, which publishes the weekly Orange County Post, participated in the protest. On April 4, 1989, an editorial written by John M. Spear entitled "Northern Rednecks" appeared in the Orange County Post, criticizing the West Hartford Police Department's efforts to disband the demonstration.

The West Hartford Town Council passed a resolution in June 1989 authorizing Corporation Counsel Marjorie Wilder to take legal action to prevent such protests in West Hartford. West Hartford brought suit in federal court to prohibit illegal protest activities. The suit, authorized by Wilder and acting Town Manager and Police Chief Robert McCue, named Spear among other defendants, and asserted RICO and nuisance claims alleging that the defendants had conspired to interfere with civil rights. According to Spear's complaint in the present action, publication of the editorial constituted the sole basis of the town's complaint against Spear. ¹

Judge Dorsey issued a temporary restraining order in June 1989. It enjoined all the defendants, including Spear, from various protest activities, but explicitly purported not "to infringe upon any rights under the First Amendment which can properly be exercised without infringing upon the rights intended to be protected hereby." ² Summit intervened in September 1989, also naming Spear as defendant. On December 6, 1989, the town and Summit filed a joint amended complaint, dropping all claims against Spear.

Spear, in turn, sued the town, Wilder, McCue and Summit under 42 U.S.C. § 1983 (1988). Spear alleged that the RICO suit violated his First Amendment rights, causing "fear, mental anguish and worry over any potential legal liability ..., thereby causing a chilling effect," and that the town and Summit acted in concert to violate Spear's constitutional rights. Defendants moved to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Wilder and McCue sought absolute immunity; the town argued that the complaint failed to state a cause of action under section 1983; and Summit contended that, as a private organization, it was not acting under color of state law. The district court agreed with all of defendants' arguments and accordingly dismissed the complaint. This appeal followed.

DISCUSSION

Spear presses three issues on appeal. First, he argues that the individual defendants Wilder and McCue were not absolutely immune from liability. Second, he contends that he stated a valid section 1983 cause of action for violation of his First Amendment and due process rights and for malicious prosecution. Finally, he claims that Summit acted in concert with the town and can therefore be held liable as a state actor. For the reasons set forth below, we reject all of these claims.

1. Wilder and McCue

The district court accorded Wilder and McCue absolute immunity from personal liability under section 1983. We agree. The damage claims against them were based on their authorization of the lawsuit against Spear. Wilder and McCue acted in their official capacities as Corporation Counsel and acting Town Manager, respectively.

Absolute immunity, because it detracts from section 1983's broadly remedial purpose, see Scheuer v. Rhodes, 416 U.S. 232, 243, 94 S.Ct. 1683, 1689-90, 40 L.Ed.2d 90 (1974), applies only to a limited class of officials and functions. Hafer v. Melo, --- U.S. ----, 112 S.Ct. 358, 363-64, 116 L.Ed.2d 301 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). It does, however, protect officials from personal liability for the performance of certain discretionary acts. Such immunity extends to prosecutors, Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 994-96, 47 L.Ed.2d 128 (1976); to executive officers initiating administrative proceedings, Butz v. Economou, 438 U.S. 478, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978); to government attorneys defending civil suits, Barrett v. United States, 798 F.2d 565, 572 (2d Cir.1986); and to government attorneys who initiate civil suits, Augustyniak v. Koch, 588 F.Supp. 793, 797 (S.D.N.Y.), aff'd, 794 F.2d 676 (2d Cir.1984), cert. denied, 474 U.S. 840, 106 S.Ct. 123, 88 L.Ed.2d 101 (1985). Under this line of immunity case law, Wilder and McCue may not be held liable for authorizing the lawsuit against Spear.

The Supreme Court, in extending prosecutorial immunity to the executive branch, explained that

agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts. The decision to initiate administrative proceedings against an individual or corporation is very much like the prosecutor's decision to initiate or move forward with a criminal prosecution.... The discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted if their immunity from damages arising from that decision was less than complete.

Butz, 438 U.S. at 515, 98 S.Ct. at 2915. The reasoning of Butz applies not only to federal agency officials, but also to local executive officers. See, e.g., Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir.1983); Reed v. Village of Shorewood, 704 F.2d 943, 951-52 (7th Cir.1983). Moreover, that reasoning applies to the initiation of civil lawsuits as well as to administrative proceedings. See, e.g., AGI-Bluff Manor, Inc. v. Reagen, 713 F.Supp. 1535, 1544-45 (W.D.Mo.1989). Thus, when a high executive officer of a municipality authorizes a civil lawsuit in pursuit of that municipality's governmental interests, absolute immunity attaches.

Were McCue, who was not only acting Town Manager but also Police Chief, involved in this matter as a complaining witness rather than as an executive officer authorizing suit, he would not receive absolute immunity. White v. Frank, 855 F.2d 956, 961 (2d Cir.1988). The facts, however, suggest that McCue authorized the suit against Spear in his role as acting Town Manager. Spear's complaint targeted McCue's authorization of the suit, alleging that "McCue authorized the filing of the said lawsuit," and pointing out that McCue "was Acting Town Manager at the time that the Complaint was signed."

Spear contends that Burns v. Reed, --- U.S. ----, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), forecloses absolute immunity for Wilder and McCue. In Burns, the Supreme Court held that prosecutors do not enjoy absolute immunity for giving legal advice to police. 111 S.Ct. at 1944-45. The case turned on the distinction between offering advice and initiating litigation, and thus cannot be taken to reject absolute immunity for decisions to institute legal proceedings on behalf of the government. While Burns commends a historical focus in determining whether absolute immunity extends to particular official functions, 111 S.Ct. at 1942-43, it does not support Spear's patently implausible argument that absolute immunity cannot extend to the authorization and initiation of civil RICO litigation because, prior to the existence of the RICO statute, no such immunity existed.

2. Town of West Hartford

a. First Amendment.

Spear's complaint alleged that by filing the lawsuit on the basis of the editorial and by obtaining an injunction, West Hartford chilled Spear's exercise of First Amendment rights. The district court nevertheless held that Spear failed to state a cause of action under section 1983 for deprivation of First Amendment rights. Relying on Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), the district court explained that a "plaintiff must make specific allegations of fact that indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are...