Foster v. City of Lake Jackson, Tex.

• Decision Date: 25 February 1993
• Docket Number: Civ. A. No. G-92-527.
• Citation: 813 F. Supp. 1262
• Parties: Larry Wayne FOSTER, et al., Plaintiffs, v. CITY OF LAKE JACKSON, TEXAS, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

813 F. Supp. 1262

Larry Wayne FOSTER, et al., Plaintiffs, v. CITY OF LAKE JACKSON, TEXAS, et al., Defendants.

Civ. A. No. G-92-527.

United States District Court, S.D. Texas, Galveston Division.

February 25, 1993.

Jerry D. Patchen, Gerald M. Birnberg, Houston, TX, for plaintiffs.

John Eckel, Mills, Shirley, Eckel & Bassett, Galveston, TX, Barry Abrams, Sewell & Riggs, Houston, TX, for defendants.

ORDER

KENT, District Judge.

Before the Court is Defendants' Motion to Dismiss. This Order considers only Defendants' contention that Plaintiffs' suit is barred because of absolute witness immunity.

I.

On or about February 6, 1985, Plaintiffs' son was killed in a traffic accident. Thereafter, Plaintiffs initiated a wrongful-death action in Texas state court alleging that their son's death was caused by a malfunctioning traffic light which had been negligently maintained by the Defendant City of Lake Jackson ("City"). Plaintiffs undertook discovery to substantiate their claim. This discovery, however, indicated that the traffic light was not malfunctioning or, alternatively, that the City had no knowledge that the light was malfunctioning. Based on this information, Plaintiffs settled all of their claims for $75,000.00 and signed a release.

On November 2, 1992, Plaintiffs initiated the instant action, pursuant to 42 U.S.C. § 1983, alleging that at all relevant times the traffic light was malfunctioning and that the City had knowledge of this fact but that the individual Defendants conspired to conceal this information from Plaintiffs during the discovery phase of the state-court suit. In furtherance of this conspiracy, the individual Defendants concealed documents and other information, gave knowingly false deposition testimony and answers to interrogatories, and encouraged others to give false statements as to whether the traffic light was malfunctioning and whether any malfunctions had been reported to city officials.

II.

Before considering the immunity issue, the Court must determine whether Plaintiffs have alleged a violation of a clearly established constitutional right. Siegert v. Gilley, ___ U.S. ____, ____, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Plaintiffs have alleged with some particularity that, during discovery in the state-court suit, the individual Defendants conspired to conceal information and that this concealment hampered Plaintiffs' ability to obtain redress in state court. In this circuit, a section 1983 complaint alleges a violation of a clearly established constitutional right if it alleges that public officials

wrongfully and intentionally concealed information crucial to a person's ability to obtain redress through the courts, and did so for the purpose of frustrating that right, and that concealment and the delay engendered by it substantially reduced the likelihood of one's obtaining the relief to which one was otherwise entitled....

Crowder v. Sinyard, 884 F.2d 804, 812 (5th Cir.1989), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990). See also Chrissy F. ex rel. Medley v. Mississippi Dept. Pub. Welfare, 925 F.2d 844, 851 & nn. 34-35 (5th Cir.1991). In the instant case, Plaintiffs have alleged a deliberate official "cover up" to deprive them of information vital to their state-court suit; this deprivation caused them to settle the claim for far less than it was actually worth. In the Court's view, such allegations state a claim for the violation of an established constitutional right. See also Barrett v. United States, 798 F.2d 565 (2d Cir.1986).

III.

Next, the Court turns to the immunity issue. The starting point for the Court's analysis is the Supreme Court's decision in Briscoe v. LaHue,¹ in which the Court held that a criminal defendant could not assert a section 1983 claim against a police officer for giving false testimony at the defendant's criminal trial. First, the Court noted that the common law provided absolute immunity from subsequent damages liability for all witnesses in judicial proceedings. Because neither the text nor the legislative history of section 1983 indicates that Congress intended to abrogate common-law witness immunity, the Court held that a claim for damages under section 1983 for false testimony will not lie against either a public or a private witness. Id. 460 U.S. at 329-41, 103 S.Ct. at 1112-19.

IV.

Plaintiffs, however, assert that Briscoe applies only to claims based solely on allegedly perjured testimony. By contrast, Plaintiffs assert, their claim is that Defendants engaged in a conspiracy to deprive them of their constitutional right of access to the courts by concealing and suppressing evidence and suborning perjury. In furtherance of this conspiracy, Defendants Houston and Yenne gave perjured deposition testimony. Thus, Plaintiffs' suit is not barred because they are not attempting to assert claims based solely on the perjured testimony of one or more defendants.

There is some support for this contention. In Knudsen v. D.C.B., Inc.,² the plaintiff brought a section 1983 action alleging that the several defendants had successfully conspired to deprive him of his civil rights. In particular, the plaintiff alleged that as an act in furtherance of this conspiracy one defendant, a police officer, testified falsely at the plaintiff's criminal trial. The defendant police officer moved to strike this allegation on the ground that, under Briscoe, he was absolutely immune from any suit based on his allegedly perjured testimony. The court, while not disagreeing with this general statement, held that Briscoe applies only where the act complained of is the defendant's allegedly false testimony, that is, where it is alleged that the giving of false testimony itself is the act that violates the plaintiff's constitutional rights. Because the plaintiff in Knudsen did not complain solely of the defendant police officer's testimony but rather alleged the existence of a broad ranging conspiracy, Briscoe did not apply. See also San Filippo v. United States Trust Co., 737 F.2d 246, 255 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985) (absolute immunity bars suit based on witness's grand jury testimony but not suit alleging conspiracy to testify falsely before grand jury).

In the Court's opinion the decision in Knudsen misses the point. Under Briscoe and its progeny, a defendant is entitled to assert an immunity defense if such a defense was recognized under the common law, or, if not, if he is an official performing a critical role in the judicial process. Briscoe, 460 U.S. at 329-36, 103 S.Ct. at 1112-16. Burns v. Reed, ___ U.S. ____, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Thus, in considering the availability of an immunity defense in a section 1983 action, the Court must first consider, not whether the plaintiff has attempted to predicate liability solely on a witness's testimony or on allegations of a broad ranging conspiracy of which the allegedly false testimony was a part,³ but "`whether an official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts.'" Enlow v. Tishomingo County, 962 F.2d 501, 511 n. 28 (5th Cir.1992) (quoting Malley v. Briggs, 475 U.S. 335, 339-40, 106 S.Ct. 1092, 1095-96, 89 L.Ed.2d 271 (1986)).

V.

In Enlow, the owner of a building where a gambling raid occurred, his daughter, and his company brought a section 1983 action against, inter alia, a state highway patrol investigator. The plaintiffs alleged that the investigator's participation as a witness before the grand jury which subsequently indicted plaintiffs in federal court violated their First Amendment rights because the testimony was given in retaliation for the plaintiffs' suit. The investigator argued that even assuming the plaintiffs had stated a cognizable constitutional claim,⁴ he was entitled to absolute witness immunity based on his testimony before the grand jury. Id. at 510-11.

The Court, however, noted that, in determining immunity issues, the common law distinguished between defamation and malicious prosecution actions. A witness was absolutely immune from a suit seeking to hold him liable for the defamatory effect of his testimony but not from a suit seeking to hold him liable for his role in initiating a baseless prosecution.⁵

Moreover, the Court held that the district court properly declined to grant summary judgment in favor of the investigator.

We find that disputed factual issues remain regarding the investigator's role in actively instigating, encouraging, and/or perpetuating plaintiffs' prosecution, as well as regarding the events that transpired prior to the grand jury testimony. Further, the investigator's statements at his deposition raise a genuine issue whether his testimony was in retaliation for plaintiffs' suit.... Sufficient disputed evidence exists to support the possibility that the investigator's actions were taken in retaliation for an exercise by the plaintiffs of their constitutionally protected freedoms.

Id. at 511-12.

After considering the relevant case law, the Court is of the opinion that the individual Defendants are not entitled to absolute immunity. Unlike the plaintiff in Briscoe, the instant Plaintiffs are not seeking to hold Defendants liable for the defamatory effect of the individual Defendants' testimony. Rather, Plaintiffs allege that the individual Defendants intentionally concealed evidence and gave false testimony in an effort to deprive Plaintiffs of their constitutional right of access to the Courts. The Court has found no cases suggesting that witnesses were absolutely immune from such suits at common law, and, because Plaintiffs' claims are more like those at issue in Enlow than those in Briscoe, the Court finds that none of the Defendants are entitled to absolute immunity from suit.⁶

VI.

Additionally, the Court notes that absolute witness immunity does not attach to all testimony, but only to that given...