Botello v. Gammick

• Decision Date: 23 June 2005
• Docket Number: No. 03-16618.,03-16618.
• Citation: 413 F.3d 971
• Parties: Rene BOTELLO, Plaintiff-Appellant, v. Richard GAMMICK; John Helzer; Washoe County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

413 F.3d 971

Rene BOTELLO, Plaintiff-Appellant, v. Richard GAMMICK; John Helzer; Washoe County, Defendants-Appellees.

No. 03-16618.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 2005.

Filed June 23, 2005.

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Diane K. Vaillancourt, Santa Cruz, California, and Terri Keyser-Cooper, Reno, Nevada, for the plaintiff-appellant.

Gregory R. Shannon and Richard A. Gammick, Reno, Nevada, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Roger L. Hunt, District Judge, Presiding.

Before: NOONAN, THOMAS and FISHER, Circuit Judges.

FISHER, Circuit Judge:

Appellant Rene Botello alleges that after he brought to light abuses in the Washoe County District Attorney's sexual assault response program, Washoe County District Attorney Richard Gammick and Deputy District Attorney John Helzer (the "prosecutors") retaliated against him for his protected First Amendment activity, in violation of 42 U.S.C. § 1983, defamed him and subjected him to intentional infliction of emotional distress. Botello brought suit in the district court against Gammick, Helzer and Washoe County ("County"). The district court dismissed Botello's first amended complaint on the basis of absolute prosecutorial immunity, and this appeal followed. Because certain of the prosecutors' acts were not within the scope of their prosecutorial functions and were not closely associated with the judicial process, they were not shielded by absolute immunity. In addition, the County was not entitled to absolute immunity. Accordingly, we affirm in part, reverse in part and remand.

I. Background

We take the following facts from Botello's first amendment complaint.¹ In December 2001, Botello was employed by the Washoe County Sheriff's Office ("WCSO") as a child sexual assault investigator. Botello was one of the few Spanish-speaking investigators in the County and was frequently called upon by fellow workers and outside police departments to assist in investigating cases involving Spanish-speaking victims, suspects and witnesses. In the course of his duties, he learned that Nurse Lily Clarkson, who regularly testified as a medical expert in child sexual assault cases, was "indisputably wrong" in her medical finding that a certain female child had been sexually penetrated, had no hymen and was the clear victim of sexual abuse.² In addition, Botello learned that Clarkson was equally mistaken in her separate conclusion that the child's sister was similarly injured.

In separate follow-up examinations of the sisters, three pediatricians at three different medical facilities found that there was no physical evidence to support Clarkson's findings that the children had been sexually assaulted. The doctors who performed these follow-up examinations informed Botello that Clarkson's medical findings were in "gross error." Given Botello's awareness that suspects were routinely arrested based on Clarkson's findings and convicted as a result of her testimony, his discovery that her findings were in "gross error" deeply disturbed him.

Botello reluctantly concluded that it would be wrong for him to remain silent and that he needed to bring evidence of Clarkson's wrongful medical findings to the appropriate officials. He brought his discovery to the attention of his superiors, including County prosecutors Gammick and Helzer, who regularly utilized Clarkson's testimony in procuring sexual assault convictions. Botello also requested an audit of the CARES program to ensure the integrity of County sexual assault investigations and prosecutions.

In response to Botello's disclosures, the prosecutors became angry, accused Botello of not being a "team player" and warned him to keep his mouth shut about Clarkson's testimony. Gammick and Helzer threatened to retaliate against Botello should he continue to advocate for oversight of the CARES program. Alarmed by their unexpected response, Botello reported his concerns about the CARES program and his further concerns about a possible cover-up and retaliation by the DA's Office to the Nevada Attorney General's Office and the Federal Bureau of Investigation. Concurrently, Botello resigned his position with the WCSO and applied for employment with the Washoe County School District Police Department ("School Police Department").

Botello experienced immediate retaliation from Gammick and Helzer. Unaware that Botello had already secured his new job with the School Police Department, Gammick and Helzer telephoned his new employer in an effort to dissuade it from hiring Botello. During the telephone conversation, Gammick and Helzer made false allegations about Botello's character and performance at his previous job at WCSO. Failing in their efforts to prevent Botello from being hired, they attempted through follow-up communications to have him fired.

In oral and written communications to the School Police Department, they insisted that Botello must not be permitted to participate in any investigations. Gamick and Helzer emphasized that the DA's Office would refuse to file any case where Botello participated in any phase of the investigation, no matter how preliminary and no matter whether other investigators were available to testify. Because of their threats, Botello's employer assigned him to desk duty.

On June 3, 2003, Botello filed a first amended complaint, alleging violation of his First Amendment rights under 42 U.S.C. § 1983, and defamation and intentional infliction of emotional distress under Nevada law. The defendants moved to dismiss the first amended complaint on the grounds of absolute immunity. The district court granted defendants' motion to dismiss Botello's § 1983 claim pursuant to Fed.R.Civ.P. 12(b)(6), and dismissed Botello's supplemental state law claims without prejudice pursuant to 28 U.S.C. § 1367.³

II. Analysis

We have jurisdiction under 28 U.S.C. § 1291. A dismissal under Rule 12(b)(6) for failure to state a claim is reviewed de novo. Milstein v. Cooley, 257 F.3d 1004, 1007 (9th Cir.2001). The factual allegations in the complaint are assumed to be true. Id. We review a decision by a district court to afford a public official or a municipality absolute or qualified immunity de novo. Webb v. Sloan, 330 F.3d 1158, 1163 n. 4 (9th Cir.2003) (municipality); Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, 642 (9th Cir.1999) (public official).

In this case we are called upon to examine the scope of our decision in Roe v. City & County of San Francisco, 109 F.3d 578 (9th Cir.1997), which held that prosecutors were entitled to absolute immunity for refusing to prosecute any cases referred by a particular officer absent additional corroborating evidence or testimony. The issues before us on appeal are: (1) whether all of Gammick's and Helzer's conduct fell within their decision not to prosecute Botello's cases and whether this fact entitles them to absolute immunity; and (2) whether the County is entitled to absolute immunity.⁴ The district court found that even assuming the facts alleged in Botello's complaint were true—the prosecutors attempted to dissuade the School Police Department from hiring Botello and insisted that Botello be barred from all investigations in retaliation for Botello's exercise of his First Amendment rights—the prosecutors were entitled to absolute immunity. We disagree. In characterizing all of the prosecutors' alleged behavior as falling within their decision not to prosecute Botello's cases, the district court construed Gammick's and Helzer's conduct too narrowly and read Roe too broadly.

A. Absolute Prosecutorial Immunity

Prosecutors are absolutely immune from liability under § 1983 for their conduct insofar as it is "intimately associated" with the judicial phase of the criminal process. See Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)); Miller v. Gammie, 335 F.3d 889, 897 (9th Cir.2003) (en banc) ("[T]o enjoy absolute immunity for a particular action, the official must be performing a duty functionally comparable to one for which officials were rendered immune at common law."). However, when prosecutors per-form administrative or investigative functions, only qualified immunity is available. See Buckley v. Fitzsimmons, 509 U.S. 259, 271-73, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003). That is, the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor. Buckley, 509 U.S. at 273, 113 S.Ct. 2606.

To determine whether an action is judicial, administrative or investigative, the court looks at "the nature of the function performed, not the identity of the actor who performed it." Kalina v. Fletcher, 522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (quoting Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Thus, whether a prosecutor benefits from absolute or qualified immunity depends on which of the prosecutor's actions are challenged. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999). The official seeking absolute immunity bears the burden of demonstrating that absolute immunity is justified for the function in question. Buckley, 509 U.S. at 269, 113 S.Ct. 2606; Burns, 500 U.S. at 486, 111 S.Ct. 1934. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the course of their duties. Burns, 500 U.S. at 486-87, 111 S.Ct. 1934.

Although the line between the functions is not entirely clear, it is clear that absolute prosecutorial immunity is justified "only for actions that are connected with the prosecutor's role in judicial proceedings, not for every litigation-inducing conduct." Burns, 500 U.S. at 494, 111 S.Ct. 1934. On the one hand, it is well established that a prosecutor has absolute...