Dory v. Ryan

• Decision Date: 29 October 1993
• Docket Number: 92-2790,Nos. 1503,s. 1503
• Citation: 25 F.3d 81
• Parties: Rowland W. DORY, Plaintiff-Appellant, v. Burton T. RYAN, Jr., Assistant District Attorney, Nassau County; Robert Anderson, Defendants-Appellees. . Petition for Rehearing
• Court: U.S. Court of Appeals — Second Circuit

Page 81

25 F.3d 81

Rowland W. DORY, Plaintiff-Appellant, v. Burton T. RYAN, Jr., Assistant District Attorney, Nassau County; Robert Anderson, Defendants-Appellees.

Nos. 1503, 92-2790.

United States Court of Appeals Second Circuit.

Petition for Rehearing Oct. 29, 1993.

Decided May 19, 1994.

Evan A. Davis, Cleary, Gottlieb, Steen & Hamilton, New York City (Thomas J. Moloney, James D. Merriman, Cleary, Gottlieb, Steen & Hamilton, of counsel), for plaintiff-appellant.

Robert W. Schmidt, County Atty. of Nassau County, NY (Joseph W. Ryan, Jr., Uniondale, NY, Sp. Counsel to Robert W. Schmidt), for defendants-appellees.

Before: LUMBARD, CARDAMONE, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellee Burton T. Ryan, Jr. petitions this Court for a rehearing of our decision reversing the judgment of the United States District Court for the Eastern District of New York (Platt, C.J.) and remanding plaintiff-appellant Rowland W. Dory's claim under 42 U.S.C. Sec. 1983 (1988) for further consideration. See Dory v. Ryan, 999 F.2d 679 (2d Cir.1993). Familiarity with that opinion is assumed. Ryan argues that this Court erred by failing to consider a recent Supreme Court decision on prosecutorial immunity, and by improperly relying on a prior decision in this Circuit.

A brief recounting of the background to this litigation is necessary for understanding the issues in this petition. Dory was convicted in state court in 1981 for a narcotics offense. Eight years later, he received a notarized affidavit from Edward Strahm, a witness against Dory in Dory's trial. In the affidavit, Strahm attested that he had been coerced by Ryan, the assistant district attorney, to commit perjury at Dory's trial.

Dory subsequently commenced an action pro se under 42 U.S.C. Sec. 1983 (1988) against Ryan and defendant-appellee Robert Anderson, a police officer who testified at his trial. Dory alleged that Ryan and Anderson had entered into an extra-judicial conspiracy to convict him based on perjured testimony, and that Ryan had withheld exculpatory material from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

On November 30, 1992, the district court sua sponte dismissed the complaint without prejudice on statute of limitations grounds and because both Ryan and Anderson were protected by absolute immunity from suit. Dory appealed both grounds, and we reversed on both. We first found that Dory's claim was not barred by the statute of limitations, because it had been submitted to prison officials within the statute of limitations. Dory, 999 F.2d at 681-82. This holding is not contested in this petition. On the immunity issue, we held that neither Anderson nor Ryan were protected by absolute immunity, because they were being sued for their participation in an extra-judicial conspiracy to deprive Dory of his constitutional rights. Id. at 683. In making that determination, we relied upon our holding in San Filippo v. United States Trust Co., 737 F.2d 246 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985), where we held that absolute immunity does not "cover extra-judicial conspiracies between witnesses and the prosecutor to give false testimony." Id. at 255.

Following our decision, we invited Ryan to petition this Court for rehearing pursuant to Fed.R.App.P. 40 in light of the Supreme Court's recent opinion in Buckley v. Fitzsimmons, --- U.S. ----, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), which dealt with prosecutorial immunity. Ryan subsequently filed the present petition, which requests that the In Buckley, the Supreme Court made clear that the proper analysis for determining whether particular actions of an official are absolutely immune from Sec. 1983 liability is the "functional approach," which looks solely to the nature of the function performed. See Buckley, --- U.S. at ----, 113 S.Ct. at 2613. Absolute immunity will apply to a prosecutor's conduct that is "intimately associated with the judicial phase of the criminal process," but not to a prosecutor's acts of investigation or administration. Id. at ----, 113 S.Ct. at 2614. The application of immunity is not limited to the duties a prosecutor performs in the courtroom. See id. at ----, 113 S.Ct. at 2615.

rehearing be granted and that the dismissal of the complaint against him be affirmed. He argues that the decision in Dory is not only inconsistent with Buckley but also a misapplication of San Filippo.

Significantly, the Court clarified the holding in Imbler v. Pachtman, 424 U.S. 409, 430 n. 32, 96 S.Ct. 984, 994 n. 32, 47 L.Ed.2d 128 (1976) that efforts to "control the presentation of [a] witness' testimony" are within the function of the prosecutor. Buckley, --- U.S. at ----, 113 S.Ct. at 2615. The Court in Buckley stated:

We have not retreated ... from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity. Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.

Id. (emphasis added).

This language indicates that absolute immunity protects a prosecutor from Sec. 1983 liability for virtually all acts, regardless of motivation, associated with his function as an advocate. This would even include, for purposes of this case, allegedly conspiring to present false evidence at a criminal trial. The fact that such a conspiracy is certainly not something that is properly within the role of a prosecutor is immaterial, because "[t]he immunity attaches to his function, not to the manner in which he performed it." Barrett v. United States, 798 F.2d 565, 573 (2d Cir.1986); see also Daloia v. Rose, 849 F.2d 74, 75 (2d Cir.1988) (per curiam) (holding without discussing San Filippo that prosecutor was immune from Sec. 1983 liability for knowingly presenting false testimony). As much as the idea of a prosecutor conspiring to falsify evidence disturbs us--and we must note that there is nothing--absolutely nothing--but an unsubstantiated affidavit eight years after the event to accuse prosecutor Ryan--we recognize that there is a greater societal goal in protecting the judicial process by preventing perpetual suits against prosecutors for the performance of their duties. See Imbler, 424 U.S. at 426-428, 96 S.Ct. at 994.

For these reasons, we modify our extension to the present case of the San Filippo holding that absolute immunity does not apply to conspiracies to present false testimony at trial. The holding in San Filippo is based on the crucial distinction between the presentation of perjurious testimony and a conspiracy to present perjurious testimony. With regard to witnesses, the distinction is important because witnesses enjoy immunity only for their actions in testifying, and are not immune for extra-judicial actions such as an alleged...