Mee v. Ortega

• Citation: 967 F.2d 423
• Decision Date: 18 June 1992
• Docket Number: No. 90-1288,90-1288
• Parties: Stephen J. MEE, Plaintiff-Appellant, v. Jose C. ORTEGA, Parole Officer for Division of Community Services; Greg Sides, individually, and as a Parole Officer Supervisor for the Division of Community Services, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 423

967 F.2d 423

Stephen J. MEE, Plaintiff-Appellant, v. Jose C. ORTEGA, Parole Officer for Division of Community

Services; Greg Sides, individually, and as a

Parole Officer Supervisor for the

Division of Community

Services,

Defendants-Appellees.

No. 90-1288.

United States Court of Appeals, Tenth Circuit.

June 18, 1992.

Jeffrey N. Herren of Lakewood, Colo., for plaintiff-appellant.

William F. Eggert (Malcolm S. Mead, with him on the brief) of Hall & Evans, Denver, Colo., for defendant-appellee Ortega.

Gregg E. Kay, First Asst. Atty., Tort Litigation Section (Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Timothy R. Arnold, Deputy Atty Gen., with him on the brief), Denver, Colo., for defendant-appellee Sides.

Before SEYMOUR and ANDERSON, Circuit Judges, and BRATTON, ^* District Judge.

SEYMOUR, Circuit Judge.

Stephen J. Mee appeals the district court's dismissal of his civil rights action against state parole officers under 42 U.S.C. § 1983 (1988). At all times relevant to this suit, Mr. Mee was a parolee. He alleges that defendants' decision to hold him in custody pending a parole revocation hearing violated his due process rights. On summary judgment, the district court held that defendants Jose Ortega and his supervisor, Gregory Sides, were absolutely immune from suit. Mee v. Jefferson County Sheriff's Dep't, 744 F.Supp. 252 (D.Colo.1990). We conclude instead that Mr. Ortega was entitled to invoke the protection of qualified immunity, and that there are fact issues precluding summary judgment on this defense. We also conclude that the district court properly dismissed the claims against Mr. Sides for lack of personal involvement. Accordingly, we affirm in part and reverse in part.

I.

We review a district court's summary judgment order under well-established standards. We view the evidence and draw inferences in the light most favorable to the party against whom summary judgment is sought, and we consider questions of law de novo. McDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115, 1117-18 (10th Cir.1991). If a genuine issue of material fact exists, summary judgment is inappropriate.

II.

In the light most favorable to Mr. Mee, the facts together tell the following story. ¹ At the time of the events that culminated in this lawsuit, Mr. Albert Torres had filed charges of harassment against Mr. Mee in Arapahoe County, Colorado, alleging that Mr. Mee had tampered with Mr. Torres's automobile. On February 14, 1989, the Arapahoe County Sheriff's department received a report that Mr. Mee had made threatening comments concerning Mr. Torres to a third party. After hearing about the allegations from the Sheriff's department, parole officer Ortega filed a complaint that led to Mr. Mee's arrest for violating conditions of parole.

While Mr. Mee was held in the Jefferson County Jail, Mr. Ortega initiated parole revocation proceedings against him. The complaint states:

CONDITION 3 CONDUCT: On February 14, 1989, it was reported to Arapahoe County Sheriff's Department that subject Mee, Stephen J. DOC # 55338 made verbal threats on February 10, 1989, against an [sic] witness and alleged victim Mr. Albert Torrez [sic] involved in case # 88-38676 harassment, a case pending in Arapahoe County Courts filed by Mr. Albert Torrez.

Rec., vol. I, doc. 1 at exh. A. Mr. Ortega subsequently contacted two lawyers in the Jefferson County District Attorney's office, Miles Madorin and Mark Paulter. Assistant District Attorney Madorin informed Mr. Ortega that the complaint did not set forth a violation of "CONDITION 3 CONDUCT," because it did not allege a violation of criminal law, and thus could not serve as the basis for revocation of parole. Rec., vol. I, doc. 10, exh. A-2 at 6-8. Mr. Paulter initially told Mr. Ortega otherwise, id. at exh. A-1 at 5, but after talking with Mr. Madorin, he changed his mind and concluded that the parolee should be "unarrest[ed]." Id. at 7. Mr. Ortega told Mr. Madorin that he had made a mistake in an earlier revocation proceeding against Mr. Mee, and that this new incident gave him an opportunity to correct the earlier mistake and to put Mr. Mee in jail. Id. at exh. A-2 at 15-16.

In spite of the advice from the district attorney's office, Mr. Ortega kept Mr. Mee in custody pending the revocation hearing. Mr. Mee sought a writ of habeas corpus from state court. That court denied the writ on the basis of Mr. Ortega's testimony that a district attorney, whom he could not name, was planning to pursue revocation at the parole hearing. Reporter's transcript, Case No. 89CV1049, District Court, Jefferson County, March 14, 1989 at 15. Instead, the district attorney's office recommended against revocation at the hearing. The parole board decided not to revoke Mr. Mee's parole and released him.

In the wake of these events, Mr. Mee filed this action. Among other claims, Mr. Mee asserts that Mr. Ortega and Mr. Sides violated his constitutional rights by holding him in prison prior to the hearing, and that Mr. Ortega further violated his rights by committing perjury at the state habeas proceeding. ² The court below granted defendant's summary judgment motion, ruling that Mr. Ortega and Mr. Sides were absolutely immune from suit, and relying heavily on our decision in Tripati v. I.N.S., 784 F.2d 345 (10th Cir.1986), cert. denied, 484 U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 767 (1988). The district court concluded that Ortega and Sides played an integral role in the judicial process and therefore were shielded from section 1983 liability by the doctrine of quasi-judicial immunity. Mee, 744 F.Supp. at 254. The district court held further that because Mr. Mee had not alleged Mr. Sides's personal involvement in any of the conduct that deprived Mr. Mee of his civil rights, under this court's decision in Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976), the action against Mr. Sides could not be sustained.

III.

We first consider whether the parole officers were entitled to absolute immunity. "The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." Burns v. Reed, --- U.S. ----, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991). Mr. Ortega and Mr. Sides may not claim that they are entitled to absolute immunity from suit simply because they are parole officers. "Here, as in other contexts, immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches." Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988); see Cleavinger v. Saxner, 474 U.S. 193, 201-02, 106 S.Ct. 496, 501, 88 L.Ed.2d 507 (1985).

A survey of the Supreme Court's absolute immunity cases illustrates the central importance of an official's function in this inquiry. Judges are protected by absolute immunity in civil rights actions from liability based on their judicial actions. Stump v. Sparkman, 435 U.S. 349, 362-64, 98 S.Ct. 1099, 1107-08, 55 L.Ed.2d 331 (1978). At the same time, only qualified immunity protects a judge's decision to fire a probation officer. Forrester, 484 U.S. at 229, 108 S.Ct. at 545. Absolute immunity also protects prosecutors from damages arising from the presentation of testimony at a criminal trial. Imbler v. Pachtman, 424 U.S. 409, 424-29, 96 S.Ct. 984, 992-94, 47 L.Ed.2d 128 (1976). But prosecutors are only qualifiedly immune when they give legal advice to policemen. Burns, 111 S.Ct. at 1942-45. Police officers are absolutely immune from a suit for damages for their testimony at a criminal trial, even if the testimony is perjurious. Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). However, because of the functional difference in the activities at issue, a police officer seeking an arrest warrant may only claim the protection of qualified immunity. Malley v. Briggs, 475 U.S. 335, 340-44, 106 S.Ct. 1092, 1095-98, 89 L.Ed.2d 271 (1986).

These rules are relatively straightforward, and they have their roots in common law immunities. See Burns, 111 S.Ct. at 1941. The problem of defining the appropriate scope of immunity becomes more perplexing in the context of officials who perform hybrid functions. In Butz v. Economu, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Court held that agency officials whose functions are equivalent to those of a judge or a prosecutor are accordingly protected from liability in a civil rights action by the doctrine of absolute immunity. In Cleavinger, on the other hand, the Court concluded that prison disciplinary officials, who make decisions concerning detention of inmates and the award of good time credits, are shielded from suit only by qualified immunity. 474 U.S. at 206, 106 S.Ct. at 503. In each of those decisions, the court carefully considered the nature of the challenged function performed by the official. The critical inquiry considers the identity between the function in question and a benchmark function that is clearly accorded one type of official immunity. Both cases used the judicial function as benchmark. In Butz, the identity was clear enough to warrant absolute immunity; in Cleavinger, it was not.

Cases like this one involving officials who perform functions connected to, but outside of, the traditional criminal proceeding demand that we pay close attention to the role the official plays. In so doing, we must determine the contours of the line between absolute and qualified immunity, a line which "often is not an easy one to perceive and structure." Cleavinger, 474 U.S. at 206, 106 S.Ct. at 503. Several factors, however, inform our analysis, including:

(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from...