Bibbs v. Newman

• Decision Date: 27 February 1998
• Docket Number: No. IP 95-1490-C H/G.,IP 95-1490-C H/G.
• Citation: 997 F.Supp. 1174
• Parties: Peggy Lynn BIBBS, Plaintiff, v. Scott C. NEWMAN, individually and in his capacity as Prosecuting Attorney for the 19th Judicial Circuit, Office of the Prosecuting Attorney for the 19th Judicial Circuit of Indiana, Defendants.
• Court: U.S. District Court — Southern District of Indiana

997 F.Supp. 1174

Peggy Lynn BIBBS, Plaintiff, v. Scott C. NEWMAN, individually and in his capacity as Prosecuting Attorney for the 19th Judicial Circuit, Office of the Prosecuting Attorney for the 19th Judicial Circuit of Indiana, Defendants.

No. IP 95-1490-C H/G.

United States District Court, S.D. Indiana, Indianapolis Division.

February 27, 1998.

COPYRIGHT MATERIAL OMITTED

Stephen Laudig, Laudig & George, Indianapolis, IN, for Plaintiff.

Donald W. Rupprecht, McHale Cook & Welch, Indianapolis, IN, for Defendants.

Wayne E. Uhl, Office of the Indiana Attorney General, Indianapolis, IN, for amicus curiae State of Indiana.

ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND RELATED MOTIONS

HAMILTON, District Judge.

This civil rights case presents several questions of law about the employment of deputy prosecuting attorneys in Indiana. As explained below, the court concludes that when an Indiana prosecuting attorney makes employment decisions concerning deputy prosecuting attorneys, the prosecuting attorney acts as a state official for purposes of the Eleventh Amendment to the United States Constitution and 42 U.S.C. § 1983. The court also concludes as a matter of law that a deputy prosecuting attorney is a confidential and/or policy-making employee who is excluded from the First Amendment's protection against politically motivated hiring or firing and, consequently, is also excluded from the definition of a protected "employee" under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(f). Finally, the court concludes that the First Amendment does not prohibit the prosecuting attorney from firing a deputy prosecuting attorney for public criticism of the Office of the Prosecuting Attorney. Defendants therefore are entitled to summary judgment on the claims over which the court may exercise subject matter jurisdiction.

Plaintiff Peggy Lynn Bibbs was a deputy prosecuting attorney employed by the Office of the Prosecuting Attorney for the 19th Judicial Circuit of Indiana from February 3, 1992, through January 18, 1995. The 19th Judicial Circuit consists of Marion County, Indiana, so the office is more commonly known as the "Marion County Prosecutor's Office." Bibbs was hired by former prosecutor Jeffrey Modisett and fired by current prosecutor Scott C. Newman, who is a defendant in this case in both his individual and official capacities. During Modisett's tenure as prosecutor, Bibbs spoke out publicly and privately about her unhappiness with some of the duties she had been assigned and about an alleged disparity in salaries between male and female prosecutors. Newman then replaced Modisett as prosecutor and, within three weeks of taking office, fired Bibbs.

Bibbs filed this action asserting six different causes of action. Count I alleges sex discrimination in employment in violation of Title VII of the Civil Rights Act of 1964. Count II alleges discrimination in violation of the Americans with Disabilities Act. Count III seeks relief under 42 U.S.C. § 1983 for alleged violation of Bibbs' First Amendment rights in being fired for publicly criticizing the prosecutor's office and for filing complaints with the EEOC. Count IV alleges unspecified violations of the due process clause and has been dismissed. Counts V and VI allege violations of the Indiana Constitution. Defendants have moved for summary judgment on all claims that have not been dismissed previously. Before addressing that motion, the court must first address several other matters: plaintiff's withdrawal of her claim under the Americans with Disabilities Act; the status of Indiana prosecuting attorneys under the Eleventh Amendment; and defendants' motion to strike portions of plaintiff's evidence in opposition to summary judgment.

I. Plaintiff's Motion to Withdraw the ADA Claim

After defendants moved for summary judgment, Bibbs moved to withdraw Count II, her claim under the Americans with Disabilities Act. The motion raises a technical procedural problem that is easy to resolve. Bibbs did not invoke a particular rule in her motion. Defendants ask the court to treat the motion under Fed.R.Civ.P. 41(a)(2) and to dismiss the claim with prejudice. Rule 41(a)(2) governs a plaintiff's attempt to dismiss an entire "action," not a single claim from an action. A motion to dismiss voluntarily a single claim in a multi-count complaint is more properly treated as an amendment to the original complaint under Fed. R.Civ.P. 15(a). See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir.1988); Gronholz v. Sears, Roebuck and Co., 836 F.2d 515, 517-18 (Fed.Cir.1987); Management Investors v. United Mine Workers, 610 F.2d 384, 393-94 & n. 22 (6th Cir.1979); see also 9 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2362 at 31 (Supp.1997) ("Rule 41(a) applies only to the dismissal of all claims in an action. A plaintiff who wishes to drop some claims but not others should do so by amending his complaint pursuant to Rule 15.").

Rule 15(a) provides that after a responsive pleading has been served a "party may amend the party's pleading only by leave of court, or by written consent of the adverse party; and leave shall be freely given when justice so requires." Although the language of Rule 15(a) does not speak of imposing conditions on a party's ability to amend a complaint, "[t]he statement in Rule 15(a) that `leave shall be freely given when justice so requires' presupposes that the court may use its discretion to impose conditions on the allowance of a proposed amendment as an appropriate means of balancing the interests of the party seeking the amendment and those of the party objecting to it." 6 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1486 at 605 (1990). Because Bibbs did not move to withdraw her ADA claim until after defendants moved for summary judgment, it would not be fair at this point to leave open even a remote possibility that defendants might face this claim in some other forum. Accordingly, plaintiff's complaint will be deemed amended to delete Count II on the condition that Count II is dismissed with prejudice.

II. Indiana Prosecuting Attorneys and the Eleventh Amendment

Earlier in this case the defendants moved to dismiss all claims. The court determined that Bibbs' statutory employment discrimination claims in Counts I and II could proceed against defendant Newman in his official capacity only. The court dismissed Counts I and II against Newman in his individual capacity. Bibbs' First Amendment claim in Count III could proceed against Newman in his individual capacity for damages and against Newman in his official capacity for injunctive relief. The court dismissed Bibbs' federal due process claim in Count IV in its entirety and dismissed Counts V and VI, Bibbs' Indiana constitutional claims, to the extent they sought damages. Based on the briefing at that time, however, the court left open the questions whether Bibbs' First Amendment claim for damages in Count III could proceed against Newman in his official capacity and whether Bibbs' claims for injunctive relief in Counts V and VI could proceed against Newman in his official capacity. Both of those questions depend on whether the prosecuting attorney is considered, for purposes of 42 U.S.C. § 1983 and the Eleventh Amendment to the United States Constitution, to be a state official when making decisions about employees in the office. If Newman acted as a state official when he fired Bibbs, then, under Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), Newman is not a "person" suable under § 1983 to the extent that Bibbs seeks money damages on her First Amendment claim. Similarly, under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the Eleventh Amendment forbids federal courts from exercising subject matter jurisdiction over claims for injunctive relief against state officials based on state law.¹

In ruling on the defendants' motion to dismiss, the court invited the parties to seek the views of the Office of the Attorney General of Indiana, which frequently deals with Eleventh Amendment issues. The Attorney General has submitted a helpful amicus curiae brief on the subject.

A prosecuting attorney in Indiana clearly acts as a state official when prosecuting criminal cases. See Study v. United States, 782 F.Supp. 1293, 1297 (S.D.Ind. 1991); see also Ind. Const. art. 7, § 16 (creating office of prosecuting attorney in each circuit). In deciding Eleventh Amendment questions with respect to some government officials, however, courts must look more specifically at the office's particular function at issue in the case. See McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734, 1737, 138 L.Ed.2d 1 (1997) (whether sheriff acted as state or county official would not be decided in "categorical, `all or nothing' manner," but would depend on function at issue in the particular case). Whether an official acts as a state official for purposes of the Eleventh Amendment is a matter of federal law, but state law plays a critical role in the analysis. See Regents of University of California v. Doe, 519 U.S. 425, 117 S.Ct. 900, 904, 137 L.Ed.2d 55 (1997). The court's "understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's functions under relevant state law." McMillian, 520 U.S. at ___, 117 S.Ct. at 1737. For example, after a detailed review of Alabama law in McMillian, the Supreme Court held that an Alabama sheriff was a state policy-maker when acting in his law enforcement capacity. In addition, the "question whether a money judgment against a state instrumentality or official would be enforceable against the State is of considerable importance to any evaluation of the relationship between the State and the entity or individual being sued" under the ...