Cleary v. Andersen

• Decision Date: 19 November 1976
• Docket Number: Civ. No. 75-0-400.
• Parties: James Phillip CLEARY, Plaintiff, v. Richard R. ANDERSEN et al., Defendants.
• Court: U.S. District Court — District of Nebraska

423 F. Supp. 745

James Phillip CLEARY, Plaintiff, v. Richard R. ANDERSEN et al., Defendants.

Civ. No. 75-0-400.

United States District Court, D. Nebraska.

November 19, 1976.

Michael L. Lazer, Marer & Lazer, Omaha, Neb., for plaintiff.

James E. Fellows, Deputy City Atty., Omaha, Neb., for defendants Richard R. Andersen, Roy J. Wilson and Timothy G. Mead.

Henry L. Wendt, Deputy County Atty., Douglas County, Omaha, Neb., for defendant Jerome Merwald.

MEMORANDUM

ROBINSON, Senior District Judge.

THIS MATTER is before the Court upon the renewed Motion to Dismiss of defendant Jerome Merwald and the Motions for Partial Summary Judgment of defendants Richard R. Andersen, Roy J. Wilson and Timothy G. Mead. This is a civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1986. Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1332 and 1343.

I

The chain of events which culminated in this litigation began on November 3, 1974 when James Cleary, plaintiff herein, was stopped by police officers in Sacramento, California for a traffic violation. Upon a routine check with the National Crime Information Center, the officers discovered that Mr. Cleary was the subject of an outstanding warrant for his arrest in Omaha, Nebraska on a charge of unlawful delivery of a controlled substance. The officers then arrested Mr. Cleary, and he was detained in the custody of the Sacramento Police Department in lieu of $25,000 bond on the Nebraska charge. The Sacramento authorities proceeded to advise the Omaha Police Division of their arrest and custody of Mr. Cleary and thereby determined that the Omaha authorities wished to extradite him to Nebraska for prosecution. The communications to Sacramento by the Omaha police manifesting their desire to extradite Mr. Cleary consisted of two telegrams, both dated November 3, 1974, and a letter dated November 4, 1974. One telegram was signed by defendant Wilson in his official capacity as a sergeant of the Omaha Police Division. The other telegram was signed by defendant Mead in his official capacity as a detective of the Omaha Police Division. The letter of November 4 was signed by defendant Andersen in his official capacity as Chief of the Omaha Police Division. Certified copies of the warrant for Mr. Cleary's arrest were enclosed with the letter.

Mr. Cleary executed a written waiver of the extradition process on November 6, 1974, apparently because he was unable to post the required $25,000 bond and did not wish to spend the extended period in the Sacramento jail which the formal procedure would have required. Two officers of the Omaha Police Division arrived in Sacramento on November 11, 1974 and returned Mr. Cleary to Omaha, where he was released from custody after posting a $2,000 bond.

A preliminary hearing on the charges against Mr. Cleary was held on December 6, 1974. The deputy county attorney present at the hearing moved at that time to dismiss the charges because the physical evidence of the crime, i. e., the marijuana which Mr. Cleary had allegedly sold to an undercover officer, could not be found.

Mr. Cleary subsequently brought this action against defendant Merwald, the deputy county attorney who approved Mr. Cleary's extradition when contacted by the Omaha police after the initial report from Sacramento was received; Chief Andersen; and Officers Wilson and Mead. Plaintiff's original complaint alleged that the defendants had acted when they either knew or should have known that their actions would violate plaintiff's constitutional rights, or that the defendants had maliciously intended to deprive him of his constitutional rights; that the defendants had conspired together to deprive plaintiff of his constitutional rights; and that defendants Andersen and Merwald in their supervisory capacities failed or refused to prevent the acts complained of from being committed.

Each of the defendants moved to dismiss the complaint for plaintiff's failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The motions of Andersen, Wilson and Mead were overruled, the Court finding that the qualified immunity from suit under 42 U.S.C.A. § 1983 et seq. to which these defendants are entitled did not defeat this action at the outset. (Filing No. 11, pp. 4-5). The motion of defendant Merwald was overruled on the ground that the plaintiff could allege facts which the prosecutor's quasi-judicial immunity would not defeat at this stage. The Court granted plaintiff the opportunity to amend his complaint so as to properly plead a cause of action against this defendant. (Filing No. 11, pp. 12-13). In coming to this result, the Court found that a prosecutor's role in the extradition process falls within the range of discretionary duties which normally entitle such an official to immunity from suit. (Filing No. 11, p. 9).

The plaintiff subsequently amended his complaint to comport with the findings of the Court. The relevant portion thereof now alleges that defendant Merwald

wilfully and maliciously sought the plaintiff's extradition and certified that such extradition was in the interest of justice, knowing that the criminal case against the plaintiff would not be prosecuted, or that any such prosecution was doomed to failure.

(Filing No. 13, p. 4).

II

In the interim since this Court ruled on defendant Merwald's Motion to Dismiss, the Supreme Court has had its first opportunity to address the issue of the § 1983 liability of a state prosecuting officer. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed. 128 (1976). Defendant Merwald has thus renewed his motion so that it may be considered in light of the definitive decision of the high Court.

In the Imbler case the Supreme Court held that

in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983.

409 U.S. at 431, 96 S.Ct. at 995.

The Court was explicit in limiting its holding, however, finding that it had no occasion to decide whether absolute immunity should apply to those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate. 409 U.S. at 430-31, 96 S.Ct. 984. This Court is thus called upon to determine whether defendant Merwald's actions fall within the purview of the Imbler rule; i. e., whether the prosecutor's function in the extradition process is part of initiating a prosecution and presenting the State's case.

As was stated above, the Court previously found that the decision to seek extradition falls within the range of discretionary duties performed by a prosecutor which were normally entitled to the pre-Imbler standard of quasi-judicial absolute immunity. This finding appears to mandate the application of the Imbler rule to the case at bar. Additionally, the reasons stated by the Supreme Court in reaching their decision in Imbler lend considerable weight to this conclusion.

If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate ... Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.

409 U.S. at 424-26, 96 S.Ct. at 992.

From the foregoing it is apparent that the proper discharge of the prosecutor's duties in the criminal justice system requires that he be accorded unhampered discretion in deciding when to seek the extradition of an individual. Defendant Jerome Merwald's renewed Motion to Dismiss will therefore be sustained.

III

The Motions for Partial Summary Judgment of defendants Andersen, Wilson and Mead will now be considered. These defendants in their capacities as police officers are entitled to a qualified immunity from civil suits for damages arising under § 1983 et seq.; that is to say, they cannot be held liable for plaintiffs' damages, if any, if it can be established that they acted in good faith and with probable cause. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). This standard contains both a subjective element of good faith and an objective element of reasonableness. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Guzman v. Western State Bank of Devils Lake, 540 F.2d 948 (8th Cir. 1976).

The defendant police officers rely on this immunity in urging their motions. They do not controvert plaintiff's allegations with respect to what actually occurred in the process of his arrest and extradition, but they do dispute the state of mind which plaintiff ascribes to them in their conduct of this affair. Likewise, plaintiff does not dispute the validity of the warrants under which he was arrested nor does he claim that the extradition process undertaken here was unlawful or in deprivation of his constitutional rights in and of itself. Rather, he bases his claim on the alleged bad faith and conspiratorial motive of these defendants. Thus, it can fairly be said that the objective facts of this matter are not controverted. The determinative issue for present purposes therefore becomes whether or not...