Geter v. Fortenberry

• Citation: 849 F.2d 1550
• Decision Date: 26 July 1988
• Docket Number: No. 87-1605,87-1605
• Parties: Lenell GETER, et al., Plaintiffs-Appellees, v. James FORTENBERRY, et al., Defendants, Henry Wade, Randall Isenberg, County of Dallas, Texas, D.C. Kuhn, City of Balch Springs and Balch Springs Police Department, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1550

849 F.2d 1550

Lenell GETER, et al., Plaintiffs-Appellees, v. James FORTENBERRY, et al., Defendants Henry Wade, Randall Isenberg, County of Dallas, Texas, D.C Kuhn, City of Balch Springs and Balch Springs Police Department, Defendants-Appellants.

No. 87-1605.

United States Court of Appeals Fifth Circuit.

July 26, 1988.

Peter L. Harlan, Asst. Dist. Atty., Dallas, Tex., for Wade, et al.

Lawrence W. Jackson, Dallas, Tex., for City of Balch Springs, Tex., et al.

Joseph E. Scuro, Jr., Dallas, Tex., for Fortenberry and Powers.

Donald W. Hill, Donald W. Hicks, Sr., Dallas, Tex., George E. Hairston, New York City, for Geter and Williams.

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

Before WISDOM, RUBIN, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The issue before us is whether the district court erred in rejecting, pending further discovery by appellee, the official immunity defenses raised by a municipal police officer and two county prosecutors who were sued under 42 U.S.C. Sec. 1983. We have jurisdiction over this interlocutory appeal. Concerning the prosecutors, we reverse the district court; with respect to the police officer, we dismiss the appeal and remand.

BACKGROUND

In August 1982, a lone black male robbed the Kentucky Fried Chicken outlets in Greenville and Balch Springs, Texas; the Taco Bell outlet and a 7-11 store in Garland, Texas; and a woman in Greenville. Appellee Lenell Geter, who lived in the area, was arrested on August 24 and charged with the Taco Bell robbery. He was later charged with and indicted for robbing the Kentucky Fried Chicken outlet in Balch Springs. Geter's roommate, Anthony Williams, was arrested on August 25 and charged with robbing the 7-11 store. Geter was convicted in October 1982 and received a life sentence. In December 1983, while Geter's appeal was pending, appellant Dallas County District Attorney Henry Wade joined Geter's motion for new trial. In March 1984, Wade dismissed the indictment and Geter was released from prison after several witnesses identified another black male as the robber. Williams was tried but was acquitted.

Geter filed an action against Dallas County, numerous municipalities, police departments, police officers, and certain prosecutors alleging violations of 42 U.S.C. Secs. 1981, 1983, 1985, and 1986 and certain state laws, seeking monetary damages and equitable relief. The Dallas County defendants (Wade, assistant district attorney Randall Isenberg, and Dallas County) and the Balch Springs defendants (City of Balch Springs, Balch Springs police department, and police officers D.C. Kuhn and Thomas G. McGee) filed motions for summary judgment in which they asserted inter alia the defenses of absolute and qualified official immunity and contended that Geter failed to plead with sufficient specificity. The district court dismissed all claims against the Dallas County defendants and Balch Springs defendants under Secs. 1981, 1985, and 1986, and all Sec. 1983 claims against Balch Springs police officer McGee. It declined to dismiss Sec. 1983 claims against Balch Springs police officer Kuhn and Dallas County prosecutors Wade and Isenberg, concluding that Geter should be permitted to conduct discovery before the court would rule on their asserted immunity defenses. The individuals appeal. ¹

JURISDICTION

Appellants vigorously contest the district court's denial, albeit without prejudice, of their motions for summary judgment based on their official immunity from suit. We have jurisdiction to consider this issue because the district court's denial of an immunity defense is an appealable "final decision" under 28 U.S.C. Sec. 1291, notwithstanding the absence of a final judgment. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Jurisdiction obtains over any order by the district court that threatens official defendants, sued individually for damages under 42 U.S.C. Sec. 1983, with the cost and diversion of time attendant on pretrial discovery, if there are no fact issues that mandate discovery specifically pertinent to an immunity defense. Lion Boulos v. Wilson, 834 F.2d 504, 506-09 (5th Cir.1987). The reason underlying immediate appealability of such orders is that "immunity" in this instance means immunity from suit, not simply immunity from liability. Such immunity, and the policies it furthers, would be effectively lost if this case were permitted to proceed. Mitchell, 105 S.Ct. at 2816. As we discuss below, that is the situation for all of the defendants-appellants save Officer Kuhn, with respect to whom there remains a disputed fact issue on which resolution of his claim of immunity turns.

IMMUNITY

Although the statutory language of Sec. 1983 does not expressly provide for an immunity defense, courts have consistently held that "government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability." Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). The purpose of the immunity doctrine is to avoid "distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Id. at 816, 102 S.Ct. at 2737. "Official immunity may be either absolute or qualified, depending on the functions performed by the particular official at issue. Qualified immunity shields only that conduct not violative of clearly established constitutional [or statutory] rights of which a reasonable person would have known. Absolute immunity, in contrast, precludes any action for damages, so long as the challenged conduct falls within the scope of the immunity." Austin v. Borel, 830 F.2d 1356, 1358-59 (5th Cir.1987).

The seminal case on prosecutorial immunity is Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), in which the Supreme Court held that prosecutors are cloaked with absolute immunity for actions taken in initiating a prosecution and in presenting the state's case. Id. at 431, 96 S.Ct. at 995. The Court's holding was premised on "concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Id. at 423, 96 S.Ct. at 991. A prosecutor's absolute immunity extends to activities "intimately associated with the judicial phase of the criminal process," but the Court expressly left unanswered the question whether policies that mandate absolute immunity extend to activities more akin to those of an administrative or investigative officer, rather than to those of an advocate. Id. at 430-31, 96 S.Ct. at 995. We answered that question in Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), observing that the Supreme Court in Imbler had focused its inquiry on the functional nature of the prosecutor's activities rather than on the prosecutor's status. Consequently, we held that "a prosecutor is not entitled to absolute immunity when he engages in activities outside his quasi-judicial role." Id. at 510. ² A prosecutor who acts in a non-advocate role, but nevertheless within his discretionary authority, is entitled to qualified immunity, however. Id. at 504-10.

Police officers, by contrast, are entitled only to qualified immunity. See Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Austin, 830 F.2d at 1359. They were not accorded absolute immunity at common law. Furthermore, as a matter of public policy, qualified immunity provides ample protection to all police officers except those who are plainly incompetent or who knowingly violate the law. Malley, 106 S.Ct. at 1096.

We have consistently held that plaintiffs who invoke Sec. 1983 must plead specific facts that, if proved, would overcome the individual defendant's immunity defense; complaints containing conclusory allegations, absent reference to material facts, will not survive motions to dismiss. Elliott v. Perez, 751 F.2d 1472, 1479 and n. 20 (5th Cir.1985). In cases where government officials assert absolute or qualified immunity, we have concluded that "allowing broadly worded complaints ... which leaves to traditional pretrial depositions, interrogatories, and requests for admission the development of the real facts underlying the claim, effectively eviscerates important functions and protections of official immunity." Id. at 1476. ³

Further, plaintiffs must demonstrate prior to discovery that their allegations are sufficiently fact-specific to remove the cloak of protection afforded by an immunity defense. The Court made this point clearly in Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987):

One of the purposes of the Harlow qualified immunity standard is to protect public officials from the "broad-ranging discovery" that can be "peculiarly disruptive of effective government." For this reason, we have emphasized that qualified immunity questions should be resolved at the earliest possible stage of a litigation. Thus, on remand, it should first be determined whether the actions the Creightons allege [FBI agent] Anderson to have taken are actions that a reasonable officer could have believed lawful. If they are, then Anderson is entitled to dismissal prior to discovery. If they are not, and if the actions Anderson claims he took are different from those the Creightons allege (and are actions that a reasonable officer could have believed lawful), then discovery may be necessary before Anderson's motion for summary judgment on qualified immunity grounds can be resolved. Of course, any such discovery should be tailored specifically to the question of Anderson's...