Harrington v. Almy, No. 91-1409

• Decision Date: 08 October 1991
• Docket Number: No. 91-1409
• Citation: 977 F.2d 37
• Parties: , 8 IER Cases 449, 8 IER Cases 457 Norman R. HARRINGTON, Plaintiff, Appellant, v. R. Christopher ALMY, etc., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 37

977 F.2d 37

61 USLW 2253, 8 IER Cases 449, 8 IER

Cases 457

Norman R. HARRINGTON, Plaintiff, Appellant, v. R. Christopher ALMY, etc., et al., Defendants, Appellees.

No. 91-1409.

United States Court of Appeals, First Circuit.

Heard Oct. 8, 1991.

Decided Oct. 16, 1992.

Memorandum and Order on Denial

of Rehearing Jan. 21, 1993

Warren M. Silver with whom Warren M. Silver, P.A., Bangor, Me., was on brief, for plaintiff, appellant.

Timothy C. Woodcock with whom Weatherbee, Woodcock, Burlock & Woodcock, Bangor, Me., was on brief, for defendants, appellees R. Christopher Almy and Michael Roberts.

Vernon I. Arey, Waterville, Me., for defendants, appellees David O. Cole and The City of Old Town.

Before BREYER, Chief Judge, TORRUELLA, Circuit Judge, and WOODLOCK, ^* District Judge.

WOODLOCK, District Judge.

A police officer is drawn as a suspect into the widening gyre of a child sex abuse scandal in a neighboring municipality. The District Attorney for the County begins an investigation. The police officer is suspended by his City Manager pending the investigation. The investigation results in no criminal charges against the officer. Nevertheless, the City Manager demands that the officer take a highly intrusive physical test of sexual arousal as a condition of reinstatement. The officer refuses. The officer is ultimately reinstated without taking the test but the District Attorney declines to prosecute any arrest the officer makes. As a consequence the officer will be assigned only less desirable desk duties with no prospect of the overtime work and pay customary for police officers.

The officer brought this civil rights action against the District Attorney and his deputy and against the City Manager and the City. The district court granted summary judgment. We affirm in part, finding that policies of absolute immunity insulate the prosecutorial defendants from the claims the officer raises. And we reverse in part, finding that the claims against the City Manager and the City for conditioning reemployment on submission to the physical test of sexual arousal cannot be disposed of on summary judgment and must be evaluated at trial.

I

In May, 1985, acting on reports of neglect and abuse, the Maine Department of Human Services ("DHS") removed four siblings (the "Lawrence children") from parental custody and placed them in a foster home. Several months later, in the fall of 1985, the children disclosed during counseling that they had been sexually abused by their parents, other relatives, and people who had lived in or frequented their mother's home in Bangor. Nine persons identified, including the children's parents, were indicted and ultimately convicted of sex crimes in cases investigated by the Bangor Police Department and prosecuted by the District Attorney for Penobscot County.

The Lawrence children continued alleging that many more people were involved in abusing them and other children. In early May, 1987, the plaintiff, City of Old Town Police Officer Norman R. Harrington, became one of those persons accused by the children. The allegation was made public during the testimony in mid-May of one of the children at the trial of one of the original nine persons indicted. In late May the children's foster mother told the Bangor Police that the children also claimed that a United States Senator, while in the company of Harrington, abused them.

By December, 1987, the children had identified in excess of 170 individuals, in addition to the original nine, as persons who had abused them. On December 11, 1987, one child named as perpetrators of abuse two Bangor Police detectives who had been working on the case. Apparently having serious doubts as to the credibility of the children's allegations against those on the expanding list of persons accused, the Bangor Police and the District Attorney's Office sought no further criminal charges. Harrington was never indicted.

However, the collateral consequences to Harrington from the children's allegations were considerable. An investigation by the Department of Human Services prompted by the allegations resulted in Harrington's temporary loss of the custody of his own son, ¹ and he was suspended from his police duties, albeit with pay, on May 20, 1987.

On March 8, 1988, Old Town's City Manager, defendant David O. Cole, met with the District Attorney for Penobscot County, defendant R. Christopher Almy, to discuss the status of the investigation. Almy stated that the Harrington investigation still was formally active although it "wasn't going anywhere." Almy said he still had concerns about Harrington and suggested that Harrington undergo an examination to assess the officer's sexual profile. Almy gave Cole a list of persons qualified to conduct such an examination. On March 14, 1988, Cole asked Harrington to consider resigning. Harrington refused and requested reinstatement.

By letter dated April 8, 1988, Cole informed Harrington that the City intended to reinstate him but asked Harrington to undergo "a psychological examination for suitability as a police officer." The examination was to be conducted by William O'Donohue, a Ph.D. psychologist affiliated with the University of Maine, who had been suggested for the task by one of the persons on Almy's original list. Harrington went to O'Donohue's office for the examination on May 9, 1988, but refused to participate after he learned that the evaluation was not the routine psychological testing customarily administered to police officers.

The efforts of the City of Old Town to conduct its own internal investigation into the allegations regarding Harrington were frustrated by the refusal of the District Attorney's Office and the Attorney General's Office to provide access to the Harrington investigatory file. On September 22, 1988, Cole and the City's labor attorney met again with defendant Almy. Almy reiterated his refusal to release the investigation file and declared that, should Harrington return to work, he would refuse to prosecute the cases of any person arrested by Harrington. Cole asked Almy to put the statement in writing; Almy provided such a statement by letter dated October 19, 1988.

On November 4, 1988, Cole ordered Harrington to submit to O'Donohue's psychological examination or be fired. As Cole then knew, O'Donohue's examination included administration of a penile plethysmograph, a procedure whereby Harrington's sexual profile would be assessed by the placement of a gauge on his penis while he viewed various sexually explicit slides involving both adults and children. Harrington refused to take the test and was suspended without pay. After a pretermination hearing, Cole informed Harrington that his employment would be terminated by February 14, 1989 if he did not submit to the examination.

Harrington appealed the decision to union arbitration and the arbitrator ordered on July 15, 1989 that Harrington be restored to suspended-with-pay status pending completion of the investigation. After consulting a psychologist other than O'Donohue with whom Harrington had been treating, Cole notified Harrington that he would be reinstated on August 10, 1989. Cole wrote to Harrington that he would "anticipate you being assigned to normal patrol duties with no work restriction except those restrictions that apply to all police officers of the City of Old Town."

When Harrington made his first arrest following his reinstatement, the District Attorney's office refused to prosecute it. As a result, Harrington and the police chief agreed that Harrington could not perform all the duties of a patrolman and thus Harrington was assigned desk duties.

II

Presented for consideration in this appeal are certain civil rights claims Harrington brought against two groups of defendants: the prosecutorial defendants, District Attorney Almy and Deputy District Attorney Michael Roberts, and the Old Town defendants, City Manager Cole and the City of Old Town. Following discovery, these defendants moved for summary judgment. In a comprehensive memorandum, Magistrate Judge Cohen recommended the grant of the defendants' motions. As pertinent here, the Magistrate Judge found the prosecutorial defendants were entitled to absolute immunity for their decision not to prosecute Harrington's cases and further that any injunctive relief would be "antithetical to the purposes such immunity serves." With respect to the Old Town defendants, the Magistrate Judge found City Manager Cole entitled to qualified immunity from Harrington's claims and that the actions of Cole could not provide a basis for liability on the part of the City of Old Town. Chief Judge Carter concurred in the recommended decision and affirmed the grants of summary judgment.

III

We agree that the claims Harrington continues to press against District Attorney Almy and Deputy District Attorney Roberts, the prosecutor principally responsible for conducting prosecutions of the Lawrence children's allegations, are unable to overcome the absolute immunity afforded a prosecutor from judicial review of prosecutorial decisions. A prosecutor is entitled to absolute immunity for conduct associated with the initiation of a prosecution. Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 996, 47 L.Ed.2d 128 (1976). The conduct of the District Attorney's Office complained of here--"District Attorney Almy's refusal to prosecute cases brought by Officer Harrington" ²--is squarely within the scope of that immunity. To be sure, this action--or more accurately refusal to act--is not the customary predicate for a civil rights claim against prosecutors. Ordinarily the complainant in such an action is a person who claims to have been improperly charged by a prosecutor. See, e.g., Celia v. O'Malley, 918 F.2d 1017 (1st Cir.1990); Campbell v. State of Maine, 787 F.2d 776 (1st Cir.1986); Siano v. Justices of Massachusetts, 698 F.2d 52 (1st Cir.), cert. denied, 464 U.S. 819, 104 S.Ct. 80, 78...