Anthony v. Baker

• Citation: 767 F.2d 657
• Decision Date: 17 June 1985
• Docket Number: Nos. 83-2678,84-1893,s. 83-2678
• Parties: Robert Carl ANTHONY, Plaintiff-Appellant, v. Daniel G. BAKER, individually and as Deputy Sheriff of the County of El Paso, Colorado; Carl F. Newton, individually and as an agent of the United States Bureau of Alcohol, Tobacco and Firearms; Harold L. Davis, as Sheriff of El Paso County, Colorado, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 657

767 F.2d 657

Robert Carl ANTHONY, Plaintiff-Appellant, v. Daniel G. BAKER, individually and as Deputy Sheriff of the

County of El Paso, Colorado; Carl F. Newton, individually

and as an agent of the United States Bureau of Alcohol,

Tobacco and Firearms; Harold L. Davis, as Sheriff of El

Paso County, Colorado, Defendants-Appellees.

Nos. 83-2678, 84-1893.

United States Court of Appeals, Tenth Circuit.

June 17, 1985.

Elvin L. Gentry of Elvin L. Gentry, P.C., Colorado Springs, Colo., for plaintiff-appellant.

Nancy E. Rice (Asst. U.S. Atty.), Denver, Colo., for defendant-appellee Carl F. Newton.

Phillip A. Vaglica of Hartley, Obernesser, Vaglica, Bailey & Robinson, P.C., Colorado Springs, Colo., for defendants-appellees Daniel G. Baker and Harold L. Davis.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

In these consolidated appeals we will review three orders of the district court in which the court dismissed three defendants, granted a directed verdict on behalf of two defendants, and awarded defendants attorneys' fees under 42 U.S.C. Sec. 1988.

During September, 1980, Robert Carl Anthony (Anthony) was employed as the general manager of the Springs Motor Inn (Inn) in Colorado Springs, Colorado. As manager, Anthony resided at the Inn with his wife and daughter. On September 16, 1980, a serious fire occurred at the Inn, resulting in substantial damage to the Inn and its contents.

On the morning of the fire, Dan Baker (Baker), a detective in the El Paso County Sheriff's Department, conducted a fire scene investigation. During his investigation, Baker discovered that numerous fires had been set in and about the Inn. Baker also determined, based on the fire scene, that the fire was a "remodeling fire," i.e., a fire purposefully set for the purpose of obtaining money through insurance fraud.

Thereafter, Baker, with the assistance of Carl Newton, a Bureau of Alcohol, Tobacco and Firearms agent, conducted an extensive investigation into the fire. During the investigation, Baker and Newton interviewed numerous people, including the employees of the Inn. The employees of the Inn submitted to polygraph examinations. All the employees passed their polygraph examinations except Anthony. Anthony did pass subsequent examinations.

As the investigation proceeded, Baker received information indicating that false insurance claims were being submitted for the fire. At that juncture, Baker's investigation shifted from an arson investigation to an investigation for theft based on insurance fraud. Baker's investigation then concentrated on Anthony's potential involvement in the fire and related theft based on insurance fraud.

On April 27, 1981, Anthony was indicted by an El Paso County Grand Jury, for which Baker was appointed special investigator, for felony theft based on insurance fraud, i.e., unlawfully and feloniously taking a thing of value, worth $10,000 or more, from the two insurance companies which had paid on the claims for the fire. The indictment was returned after the Grand Jury, during the course of six sessions, heard the testimony of over twenty witnesses, including Anthony and Baker. The indictment was filed with Judge David Parrish of the El Paso County District Court, who, after concluding that the Grand Jury had probable cause to indict Anthony, nevertheless dismissed the indictment upon determining "that not all of the nine jurors who had voted for the indictment had been present at all the sessions where evidence was presented." (R., Vol. VIII at 14.)

Immediately thereafter, the district attorney's office for the Fourth Judicial District of Colorado filed a direct information charging Anthony with felony theft based on insurance fraud. Following a preliminary hearing, Judge Parrish found probable cause, and bound Anthony over for trial. After trial to the court, Anthony was found not guilty. At no time did the insurance companies which had paid the fire claims for the Inn file formal written complaints for fraud. (R., Vol. IV at 250.) Nor did Baker review the insurance policies to determine the coverage afforded the owners of the Inn.

Anthony subsequently filed this action under 42 U.S.C. Sec. 1983 for malicious prosecution and deprivation of his constitutional rights. The named defendants were Baker, Newton, Harold L. Davis, the sheriff of El Paso County (Sheriff), the County of El Paso (County) and the County Commissioners of El Paso County (Commissioners). Within his complaint Anthony alleged, inter alia, that: Baker and Newton conspired to deprive him of his constitutional rights by making him the target of their investigation, giving false information to the Grand Jury and covering up exculpatory information; and that the Sheriff, County and Commissioners were negligent in their supervision of Baker and failed to prevent the conspiracy between Baker and Newton which resulted in the deprivation of his constitutional rights.

Prior to trial the defendants moved to dismiss, or, in the alternative, for summary judgment. The district court denied Baker's and Newton's motions, but granted the motions of the Sheriff, County, and Commissioners. In so doing, the court found: Anthony's complaint "is based on the assertion that his being subject to an allegedly wrongful and malicious investigation and prosecution was so abusive to amount to a violation of due process" (R., Vol. I at 94); since Anthony has alleged that his prosecution was conducted with the intent to deprive him of a constitutionally protected right he must be allowed to present his evidence on this issue at trial, id.; Anthony has alleged sufficient facts which, if proved, would rebut the presumption that the prosecutors exercised independent judgment in filing the complaint against him; Anthony's complaint cannot be dismissed under the witness immunity holding of Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) ¹, because Anthony has alleged other facts which fall outside the scope of the immunity defined therein; and that Anthony's action against the Sheriff, County, and Commissioners must be dismissed because of his failure to allege any facts supportive of his allegations of negligent failure to supervise Baker.

In dismissing the Sheriff, County, and Commissioners, the district court further observed that these defendants had presented affidavits and deposition excerpts supportive of their position that there was no failure to supervise and that Anthony had failed to come forth with counter-affidavits. The district court did exercise its discretion in retaining Anthony's pendent state claim of outrageous conduct against Baker and Newton, relying on its earlier determination that Anthony had stated a Sec. 1983 claim against Baker and Newton. As so structured, the case proceeded to trial.

After Baker had presented his case and rested, Baker and Newton moved for a directed verdict. Within its ruling granting Baker's and Newton's motions for a directed verdict, the district court found, inter alia: motions for a directed verdict at the conclusion of a plaintiff's case can only be granted when the court finds that under no circumstances could the jury infer from the facts presented any basis that would allow recovery by the plaintiff; under Sec. 1983 the acts of law enforcement officials leading to prosecution in state court can only be the basis of recovery when it clearly appears that those actions were taken with the intent to deprive the plaintiff of the valid exercise of a constitutional right or a clearly defined right under federal law; under our law and Constitution there is no guarantee that only the guilty will be prosecuted and "that's got to be the touchstone of this case"; it is only when police officers or others with prosecutorial authority act maliciously or recklessly for the purpose of depriving an individual of a federally protected right that those officers or prosecutorial officials are culpable; although Anthony's case is predicated on a series of facts and circumstances which are illustrative of improper conduct, "I see a demarcation in substance between both the investigation on the arson and the investigation of the theft charges" (R., Vol. XIII at 4); those critical of Baker's investigation "pointed to what might be described as negligence and not malicious behavior," id. at 5; none of the witnesses testified or even suggested that Baker was motivated by malice with the intent to deprive Anthony of a federally guaranteed right; Anthony did not meet his burden of establishing that Baker was motivated by a specific intent to deprive him of a federally guaranteed right; there are no facts, looking at the evidence in the light most favorable to Anthony, upon which a jury could infer that Baker (or Newton) acted maliciously to mislead the state trial judge, the state prosecutors, the Grand Jury or to deprive Anthony of his constitutionally guaranteed right to due process; nor does the evidence support Anthony's pendent state claim of outrageous conduct; under Harlowe v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), police officers are immune from liability for conduct performed within the scope of their official duties unless a plaintiff shows that the official knew or should have known his actions were violative of established constitutional or statutory principles; and there is simply no evidence of that as "fact and circumstances." (R., Vol. XIII at 8.)

After judgment was entered in favor of Baker and Newton, Baker, Sheriff, County and Commissioners filed a joint motion for attorneys' fees under 42 U.S.C. Sec. 1988. Within their motion, the defendants acknowledged that under Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), a prevailing defendant is entitled to attorneys' fees only if the plaintiff's underlying claim was "frivolous, unreasonable or groundless." The defendants argued:

[T]he Plain...