Barbera v. Smith
| Decision Date | 30 December 1987 |
| Docket Number | 4,Nos. 3,D,s. 3 |
| Citation | 836 F.2d 96 |
| Parties | Jacqueline BARBERA, as Administratrix of the Goods, Chattels, and Credits of Lena Margaret Barbera, Plaintiff-Appellee, v. William French SMITH, individually and as the former Attorney General of the United States; John S. Martin, Jr., individually and as the former United States Attorney for the Southern District of New York; and Stephen Schlessinger, individually and as a former Assistant United States Attorney for the Southern District of New York, Defendants, John S. Martin, Jr., and Stephen Schlessinger, Defendants-Appellants. ockets 87-6054, 87-6098. |
| Court | U.S. Court of Appeals — Second Circuit |
William M. Kunstler, New York City (Ronald L. Kuby, of counsel), for plaintiff-appellee.
Peter C. Salerno, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. S.D.N.Y., Steven E. Obus, Asst. U.S.Atty., New York City, of counsel), for defendants-appellants.
Before FEINBERG, Chief Judge, PIERCE and ALTIMARI, Circuit Judges.
This is a constitutional tort action brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for the wrongful death of Lena Margaret Barbera in violation of the due process clause of the fifth amendment. The complaint named as defendants William French Smith, the former Attorney General of the United States, John S. Martin, Jr., the former United States Attorney for the Southern District of New York, and Stephen Schlessinger, a former Assistant United States Attorney. In the District Court for the Southern District of New York, Shirley Wohl Kram, Judge, the complaint was dismissed as to former Attorney General Smith for lack of personal jurisdiction. 654 F.Supp. 386, 392 (S.D.N.Y.1987). That dismissal is not before us in the present appeal. Defendants Martin and Schlessinger asserted their entitlement to prosecutorial immunity and moved to dismiss the complaint for failure to state a claim, or in the alternative, for summary judgment. The district court denied the motion, and, as modified by an order dated April 1, 1987, certified for interlocutory
appeal pursuant to 28 U.S.C. Sec. 1292(b) its rulings that the complaint states a claim upon which relief can be granted and that summary judgment should be denied. Appellants appeal as of right from the denial of their claims of immunity, see Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and this Court granted them permission to appeal simultaneously from the certified rulings pursuant to 28 U.S.C. Sec. 1292(b). The two appeals were consolidated, and, finding that the complaint's allegations of negligence fail to state a claim for relief against either defendant, that the allegations of recklessness fail to state a claim against defendant Martin, and that defendant Schlessinger is entitled to qualified but not absolute immunity from suit, we now reverse.
In 1981, the United States Attorney's Office for the Southern District of New York, then headed by John S. Martin, Jr. ("Martin"), was investigating the bankruptcy of Candor Diamond Corporation ("Candor") for possible fraud committed by it, by its president, Irwin Margolies ("Margolies"), and by its employees. The investigation was led by then Assistant United States Attorney Stephen Schlessinger ("Schlessinger"). In the course of this investigation, the government sought and eventually secured the cooperation of Lena Margaret Barbera ("Barbera"), an accountant who had been employed as Candor's comptroller and who was believed to have knowledge of some of its then suspected fraudulent acts. In exchange for her cooperation, Barbera was permitted to plead guilty to a single-count information charging her with fraud, and the United States Attorney's Office promised to make no recommendation with respect to the sentence to be imposed. The complaint alleges that during the course of the government's dealings with Barbera, Barbera's attorney requested that Schlessinger arrange for police protection for her, as she allegedly feared that her cooperation with the government "might result in physical harm or death to her." This request was denied for reasons not known to us.
In or about December 1981, during a conversation between Schlessinger and Margolies' attorney, Henry Oestericher ("Oestericher"), Schlessinger is alleged to have mentioned that Barbera and an unnamed female also employed by Candor were cooperating with the government. Oestericher is said to have passed this information on to Margolies, who hired Donald P. Nash ("Nash"), a contract killer, to murder Barbera and the other employee. Shortly thereafter, Jenny Soo Chin ("Chin"), a former Candor employee and a close friend of Barbera, disappeared. Apparently, Margolies believed that Chin was the other cooperating witness. Although her body was never found, Nash apparently displayed a photograph of Chin's dead body to Margolies as proof that he had carried out part of their agreement.
Soon after Chin's disappearance, Barbera's attorney allegedly again requested police protection for her. Again, Schlessinger denied the request. On April 12, 1982, Barbera was abducted from the rooftop parking area at Pier 92 in Manhattan and was later shot to death. Three employees of CBS Inc. were also killed when they attempted to come to her aid. Margolies and Nash were eventually convicted in New York state court of Barbera's murder.
This Bivens action was brought in July 1984 in the United States District Court for the Eastern District of New York by Jacqueline Barbera, as administratrix of Barbera's estate, to recover damages for the allegedly negligent and reckless acts of Martin and Schlessinger, which allegedly caused Barbera to be wrongfully deprived of her right to life in violation of the due process clause of the fifth amendment to the Constitution. The action was transferred to the Southern District of New York shortly thereafter.
In May 1985, Martin and Schlessinger moved in the alternative for summary judgment or to dismiss the complaint on the ground that, inter alia, it failed to state a claim for relief. In particular, they asserted that they are entitled to both absolute
and qualified immunity from suit for actions taken in the course of their official duties. Judge Kram rejected their claims and these appeals followed.
The complaint charges the defendants with depriving Barbera of her right to life in violation of the due process clause of the fifth amendment. As to Martin, the complaint merely alleges in conclusory language that he negligently and recklessly failed to train and supervise Schlessinger adequately. It does not allege any personal involvement by Martin in the decisions to reveal Barbera's identity and to deny her protection. Nor does it allege that Martin created or acquiesced in a policy or practice of poor training and supervision of subordinate Assistant United States Attorneys. Nor does the complaint plead any other facts sufficient to support an inference that Martin was reckless in managing his subordinates. Consequently, we must conclude that, in this respect, the complaint fails to state a claim for relief with respect to Martin. See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986); Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.) (citing Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979).
The allegations of negligence with respect to both Martin and Schlessinger fail for a different reason. Insofar as the complaint charges them with negligently depriving Barbera of her right to life, it fails to state a constitutional claim. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).
The remaining allegation charges Schlessinger with a reckless constitutional violation. In Daniels, the Supreme Court explicitly left open the question of whether grossly negligent or reckless conduct would be sufficient to allege a constitutional violation. 474 U.S. at 334 n. 3, 106 S.Ct. at 667 n. 3. We find no occasion to address that question here, however, because we resolve this claim on grounds of immunity.
We are asked to determine herein whether a prosecutor is immune from suit for revealing a witness' identity to the subject of a potential prosecution, and for refusing to provide police protection for that witness. We conclude, upon the facts presented, that he is not absolutely immune, but that qualified immunity does attach.
It is firmly established that prosecutors are entitled to absolute immunity from suits for damages arising from activities that are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 994-95, 47 L.Ed.2d 128 (1976); see Barr v. Abrams, 810 F.2d 358, 361 (2d Cir.1987). This protection encompasses "all of their activities that can fairly be characterized as closely associated with the conduct of litigation or potential litigation...." Barrett v. United States, 798 F.2d 565, 571-72 (2d Cir.1986). But when a prosecutor performs an investigative or administrative function rather than a prosecutorial one, absolute immunity is not available. Powers v. Coe, 728 F.2d 97, 103-04 (2d Cir.1984); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981).
It is not at all clear what actions are so closely related to a prosecution as to come within the ambit of absolute immunity. We have previously held that a prosecutor is absolutely immune with respect to a decision whether or not to prosecute, Dacey v. Dorsey, 568 F.2d 275, 278 (2d Cir.), cert. denied, 436 U.S. 906, 98 S.Ct. 2238, 56 L.Ed.2d 405 (1978); see also Atkins v. Lanning, 556 F.2d 485, 488 (10th...
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