Cousin v. Small

• Decision Date: 24 March 2003
• Docket Number: No. 01-30745.,01-30745.
• Citation: 325 F.3d 627
• Parties: Shareef COUSIN, Plaintiff-Appellant, v. Anthony SMALL, et al., Defendants, Byron Berry, Roger Jordan, and Harry Connick, Individually and in His Capacity as District Attorney for Orleans Parish, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 627

325 F.3d 627

Shareef COUSIN, Plaintiff-Appellant, v. Anthony SMALL, et al., Defendants Byron Berry, Roger Jordan, and Harry Connick, Individually and in His Capacity as District Attorney for Orleans Parish, Defendants-Appellees.

No. 01-30745.

United States Court of Appeals, Fifth Circuit.

March 24, 2003.

COPYRIGHT MATERIAL OMITTED

Clive A. Stafford-Smith, Louisiana Crisis Assistance Center, New Orleans, LA, Donald B. Verrilli, Jr., Ian Heath Gershengorn (argued), Jenner & Block, Washington, DC, for Plaintiff-Appellant.

William Francis Wessel (argued), Victoria Lennox Bartels, Wessel & Associates, New Orleans, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH and BENAVIDES, Circuit Judges, and FITZWATER,^* District Judge.

PER CURIAM:

Shareef Cousin sued employees of the police department and the district attorney's office, alleging various violations of his constitutional rights in connection with his prosecution for the murder of Michael Gerardi. The district court found for defendants on immunity grounds. Finding no error, we affirm.

I.

On March 2, 1995, Gerardi and Connie Babin emerged from dinner at a New Orleans restaurant. As they neared Gerardi's car, three black men approached and robbed them; one of the men confronted Gerardi and fatally shot him.

Later that month, Cousin, then sixteen years old, was charged with the murder. At trial, the state relied solely on testimonial evidence, including Babin's identification of Cousin as the perpetrator. The prosecution also presented testimony from witnesses who claimed to have seen three black men in the vicinity of the crime. At a photo line-up three weeks after the murder, two of these witnesses tentatively had identified Cousin as one of the three men.

Finally, the state presented the testimony of James Rowell, a friend of Cousin's. The prosecution claimed in its opening statement that in August 1995 Rowell had told police of a conversation he had with Cousin in March 1995, in which Cousin admitted to killing a man in the New Orleans French Quarter during an unsuccessful armed robbery. When called to testify, however, Rowell denied that Cousin had made such a statement and claimed that his assertions had been coerced by promises of favorable treatment on pending charges.

The prosecution then called, as impeachment witnesses as to what Rowell had told police regarding Cousin, the attorney who had represented Rowell on the pending charges and a police officer who was present at the August 1995 meeting. The prosecution later relied on this impeachment testimony as substantive evidence of Cousin's guilt.

The defense presented evidence that at the time of the murder, approximately 10:26 p.m., Cousin was playing in a city recreation department basketball game. Two recreation department supervisors, Cousin's coach, and an opposing team's player testified that the game had started late and ended late, and the coach testified that he dropped Cousin off at his house at approximately 10:45 p.m.

The jury convicted Cousin and sentenced him to death. Cousin spent over a year on death row, but the conviction was overturned for prosecutorial misconduct. State v. Cousin, 710 So.2d 1065 (La.1998).¹ The court based its reversal on the admission of the testimony of Rowell's attorney and the police officer as impeachment evidence, holding that "even if the issue of admissibility was close, we would be compelled to reverse this conviction because of the prosecutor's flagrant misuse of that evidence for purposes that the prosecutor himself admitted was an improper use of such evidence" (i.e. the misuse of the testimony as substantive evidence of guilt). Id. at 1072.

The court also noted that Jordan had withheld obviously exculpatory material, although the court did not base its judgment on that conduct. Id. at 1067 n. 2, 1074 n. 8. The court explained that, when questioned on the night of the murder, Babin told the police that she did not get a good look at the gunman and probably would not be able to identify him. She also stated, in an interview three days later, that she was not wearing her corrective lenses on the night of the murder and could see only patterns and shapes. The prosecutors did not disclose these statements to the defense, even though the statements would have cast serious doubt on the veracity of Babin's subsequent identification of Cousin.

The state thereafter announced its intention to retry Cousin, but eventually, in January 1999, it dismissed all charges. One year later, Cousin filed the present action under 42 U.S.C. §§ 1983 and 1985, alleging misconduct by the police and the prosecution. Cousin charged that, from the outset, he was the victim of an effort to frame him for the murder and that the police had engaged in numerous instances of misconduct in an effort to manufacture a case against him. Cousin also contended that the prosecutors, Byron Berry and Roger Jordan, had abused their positions in an effort wrongfully to secure his conviction. Cousin also brought claims against the district attorney, Harry Connick, seeking to hold him liable for the alleged failure adequately to train and supervise the prosecutors in his office.

Berry, Jordan, and Connick moved to dismiss the claims under FED.R.CIV.P. 12(b)(6) or for summary judgment. The district court granted the motions, holding that Berry and Jordan were protected by the doctrine of absolute prosecutorial immunity and that Connick was entitled to summary judgment because the claims against him were barred on grounds of qualified immunity. The judgment did not dispose of Cousin's claims against the police defendants, which have been stayed pending the resolution of this appeal.

II.

Defendants claim this court lacks jurisdiction over the instant appeal. After the district court granted the motions for dismissal and summary judgment, Cousin filed a notice of appeal. The judgment did not dispose of all defendants, and when Cousin filed his notice, the court had not yet issued an unequivocal certification under FED.R.CIV.P. 54(b). Cousin requested, and the court issued, a rule 54(b) final judgment nunc pro tunc. Defendants contend that Cousin's notice of appeal is defective because it was filed before the court entered the rule 54(b) judgment and that, as a result, we lack appellate jurisdiction. We disagree.

"A notice of appeal filed after the court announces a decision or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry." FED. R.APP. P. 4(a)(2). Under rule 4(a)(2), an appeal from a nonfinal decision may serve as an effective notice of appeal from a subsequently entered final judgment if the nonfinal decision "would be appealable if immediately followed by the entry of judgment." FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991).

This court has applied the FirsTier rule in the context of the entry of a rule 54(b) certification after a prematurely filed notice of appeal, precisely the situation presented by this case. Barrett v. Atl. Richfield Co., 95 F.3d 375 (5th Cir.1996). "Because the district court's order would have been appealable if followed by Rule 54(b) certification and order, rule 4(a)(2) permits this court to exercise its jurisdiction," where a final judgment was actually entered subsequent to the filing of the notice of appeal. Id. at 379. Under Barrett, therefore, we have jurisdiction.

III.

Cousin challenges the dismissal of his § 1983 claims against prosecutors Berry and Jordan on the basis of absolute prosecutorial immunity. We review dismissals under rule 12(b)(6) de novo, accepting all well-pleaded facts as true. Morin v. Moore, 309 F.3d 316, 319 (5th Cir. 2002).

Section 1983 creates a damages remedy for the violation of federal constitutional or statutory rights. Although the section contains no reference to official immunity, "Congress intended the statute to be construed in the light of common-law principles that were well settled at the time of its enactment." Kalina v. Fletcher, 522 U.S. 118, 123, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (citing Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Briscoe v. LaHue, 460 U.S. 325, 330, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)). Therefore, the immunities existing at common law at the time of § 1983's enactment are applicable to actions brought under it.

In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Court held that prosecutors are shielded from liability under § 1983 for certain conduct. After analyzing the absolute immunity afforded prosecutors at common law, the Court concluded that the policy underlying that immunity supports its application to § 1983 claims. Id. at 427. Consequently, "prosecutors are absolutely immune from liability under § 1983 for their conduct in `initiating a prosecution and in presenting the State's case,' insofar as that conduct is `intimately associated with the judicial phase of the criminal process[.]'"²

The prosecutorial immunity recognized in Imbler, however, does not apply to any and all actions taken by a prosecutor. Rather, the Court fashioned a functional test under which prosecutors are absolutely immune with respect to activities that are "intimately associated with the judicial phase of the criminal process." Id. at 430. Conduct falling within this category is not limited "only to the act of initiation itself and to conduct occurring in the courtroom," Buckley v. Fitzsimmons, 509 U.S. 259, 272, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), but instead includes all actions "which occur in the course of [the prosecutor's] role as an advocate for the State," id. at 273.

Therefore, the central question with respect to each of Cousin's claims against Berry and Jordan is the nature of the conduct upon which the claim is based. If...