Brummett v. Camble

• Decision Date: 14 November 1991
• Docket Number: No. 90-1671,90-1671
• Citation: 946 F.2d 1178
• Parties: Jay BRUMMETT, Plaintiff-Appellant, v. Jimmy CAMBLE, Jim Boles, Doug Sanders, Dan Boulware, John R. Maclean, First State Bank of Cleburne, Texas, and Johnson County, Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1178

946 F.2d 1178

Jay BRUMMETT, Plaintiff-Appellant, v. Jimmy CAMBLE, Jim Boles, Doug Sanders, Dan Boulware, John R.

Maclean, First State Bank of Cleburne, Texas, and

Johnson County, Texas, Defendants-Appellees.

No. 90-1671.

United States Court of Appeals, Fifth Circuit.

Nov. 14, 1991.

Rehearing Denied Dec. 20, 1991.

Douglas R. Larson, Mesquite, Tex., for plaintiff-appellant.

James D. McCarthy, Kim J. Askew, Hughes & Luce, Dallas, Tex., for Camble, First State Bank, Boles & Sanders.

Elizabeth G. Storm, Frank Betancourt, Dehay & Blanchard, Dallas, Tex., for Boulware, Maclean and Johnson County, Tex.

Gary L. Bledsoe, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Mary F. Keller, Executive Asst. Atty., Gen. Litigation Div., Austin, Tex., for Maclean.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES and DUHE, Circuit Judges, and WALTER, ¹ District Judge.

EDITH H. JONES, Circuit Judge:

Appellant Jay Brummett filed suit against numerous public and private defendants alleging that they conspired to prosecute him maliciously in violation of 42 U.S.C. § 1983. The trial court dismissed the public defendants from the suit on immunity grounds and granted summary judgment for the private defendants on limitations grounds. We disagree that the statute of limitations bars the case against the private defendants, and we conclude that it is premature to rule on the county's liability, but we generally affirm dismissal of the public defendants.

I.

The gist of Brummett's complaint is that he was prosecuted under an inapplicable Texas statute for not repaying a bank loan. In January 1982, Brummett borrowed $33,445.80 from First State Bank of Cleburne, Texas ("FSB"), collateralized by the equipment and inventory of his retail stereo business. Fifteen months later, Brummett advised FSB loan officer Doug Sanders that his financial condition was rapidly deteriorating, and he could no longer make the payments due under the note. When Sanders visited Brummett's store with Jim Boles, an FSB collection officer, to survey the inventory, Brummett informed them that it had been sold to customers in the normal course of business.

After Brummett's business closed in April 1983, Sanders asked him and his wife to sign a new note. Brummett refused. Resorting to standard loan collection procedures, the bank sent a demand letter to Brummett through its attorney. This was followed by a notice that the bank had elected to turn the matter over to the district attorney's office. The same day, Brummett received a letter from then County Attorney Dan Boulware, advising Brummett that he was subject to indictment for "removing" the collateral that secured his debt to FSB--a felony violation of Tex.Penal Code § 32.33.

Brummett appeared before a Johnson County grand jury and testified that no crime had taken place; he stated that, as FSB knew and agreed, he had sold his inventory in the normal course of business. At this point, Boulware angrily stated: "O.K., Jay, let's get the facts straight. You mortgaged property, you sold it, you admit it, and that puts you right in the middle of this statute and that's the facts." The Grand Jury then indicted him for "removing" property with intent to hinder enforcement of FSB's security interest. Brummett was never incarcerated for this charge. Rather, after almost three years of court appearances, the charge against Brummett was dismissed on April 7, 1986 for insufficient evidence.

Brummett filed suit on March 26, 1987, alleging malicious prosecution in violation of state law and 42 U.S.C. § 1983. Named as defendants were prosecutors Boulware and John R. Maclean, Johnson County, FSB, Boles, Sanders, and FSB president Jimmy Camble. The trial court dismissed Brummett's original complaint for lack of specificity, but it allowed him to replead in accordance with Elliott v. Perez, 751 F.2d 1472, 1479 n. 20 (5th Cir.1985). Brummett responded with an Amended Complaint alleging that Maclean--then district attorney of Johnson County, now a state district judge--was a member of the FSB board of directors, as well as a stockholder of FSB, when FSB decided to pursue a criminal prosecution against Brummett. Brummett also alleged that Boulware--then county attorney, now district attorney, for Johnson County--was a major stockholder of FSB. Brummett contended, based on Maclean and Boulware's personal interests in FSB, that the two prosecutors conspired with FSB employees to indict him illegally by convincing the Grand Jury that there was evidence that a crime had been committed when in fact there was none. Brummett alleged that a violation of § 32.33 requires that the collateral must be transferred outside the state of Texas. Brummett asserted that the defendants had absolutely no evidence to support such an allegation and, therefore, they pursued the criminal prosecution against him in bad faith and without probable cause. The trial court held that these allegations stated a claim against the private defendants, but it ordered dismissal of the public defendants, Maclean, Boulware and Johnson County based on official immunity.

Camble, Boles, Sanders, and FSB then moved for summary judgment. Brummett filed a detailed response and also attempted to depose Boulware, Maclean, and one of their assistants. His efforts were thwarted by the former prosecutors' refusal to testify. The district court referred the dispute to a magistrate judge, who ultimately ruled that depositions were proper. This ruling was appealed to the district court but never acted upon. In the meantime, the district court granted summary judgment solely on the ground that Brummett had filed his § 1983 claim outside the applicable limitations period. The district court then dismissed Brummett's pendent state law malicious prosecution claim. Brummett appealed.

II.

That malicious prosecution can form the basis of a § 1983 claim is not disputed by the defendants. ² Instead, Brummett challenges the district court's dismissal of Boulware and Maclean on immunity grounds. He argues that Boulware and Maclean "acted when there was an actual conflict of interest" and, therefore, they are not shielded from a § 1983 suit. Alternatively, Brummett contends that even if Boulware and Maclean are entitled to prosecutorial immunity, they are not immune as owners/stockholders/directors of FSB. We reject these arguments.

Prosecutors are absolutely immune from liability under § 1983 for their conduct in "initiating a prosecution and in presenting the State's case," because that conduct is "intimately associated with the judicial phase of the criminal process." Imbler v. Patchman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). See also Burns v. Reed, --- U.S. ----, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991).

Brummett argues, however, that this rule does not apply where a prosecutor faces an actual conflict of interest. Citing Beard v. Udall, 648 F.2d 1264, 1271 (9th Cir.1981), Brummett contends that a prosecutor who has a personal interest in filing charges that he knows to be baseless is acting "beyond the scope of his authority and thus [he] does not enjoy absolute immunity." Beard is inapposite, however, for three reasons. First, the Ninth Circuit explicitly overruled the decision in Ashelman v. Pope, 793 F.2d 1072, 1077-78 (9th Cir.1986) (en banc), stating that immunity should not be affected by the motives with which a prosecutor's acts are performed. Id. at 1077. Second, Beard is not the law in this circuit. In Holloway v. Walker, 765 F.2d 517, 522-23 (5th Cir.1985), cert. denied, 474 U.S. 1037, 106 S.Ct. 605, 88 L.Ed.2d 583 (1985)--a case involving allegations of bribery against a judge--this court observed that the mere fact that a judge undertakes to perform a judicial act motivated by "personal interest, bad faith, or outright malevolence" does not destroy his immunity. Third, absolute immunity is justified and defined by the governmental functions it protects and serves, not by the motives with which a particular officer performs those functions. See Cleavinger v. Saxner, 474 U.S. 193, 200-01, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985) (exemption of judges from civil liability cannot be affected by the motives with which their judicial acts are performed); Rykers v. Alford, 832 F.2d 895 (5th Cir.1987) (absolute immunity shelters prosecutors even when they act maliciously, wantonly, or negligently). Inasmuch as the purposes of extending absolute immunity to prosecutors are to avoid deflecting the prosecutor's energies from his public duties and to encourage the independent exercise of judgment required by his office, Imbler, 424 U.S. at 425, 96 S.Ct. at 992, foreclosing that immunity upon allegations of a conflict of interest would seriously undermine such policies. The district court correctly recognized the prosecutors' absolute immunity, as prosecutors, from Brummett's suit.

Alternatively, Brummett alleged claims against Maclean in his individual capacity as a member of the First State Bank's Board of Directors and against Boulware in his individual capacity as stockholder/legal counsel for First State Bank. The question thus posed is whether if Boulware and Maclean acted in their respective capacities as shareholder/counsel or director of FSB to spur the filing of criminal charges against Brummett, they shed their prosecutorial immunity.

This is an interesting question. One line of authority holds that even though a judge or prosecutor is bribed--the quintessential act in self-interest--he is absolutely immune for acts performed in the scope of the judicial or prosecutorial function. See Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976 (5th Cir.1979) (en banc), aff'd., Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). According to another line of authority, however, he does not enjoy absolute immunity for actions undertaken outside the scope of judicial or...