Hunt v. Bennett, 93-1305

• Decision Date: 18 February 1994
• Docket Number: No. 93-1305,93-1305
• Citation: 17 F.3d 1263
• Parties: Michael Rhodes HUNT, Plaintiff-Appellant, v. Thomas A. BENNETT, Robert Settje, David G. Manter, Roy Olson, William P. Demoulin, William Sublette, individually and in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1263

17 F.3d 1263

Michael Rhodes HUNT, Plaintiff-Appellant, v. Thomas A. BENNETT, Robert Settje, David G. Manter, Roy

Olson, William P. Demoulin, William Sublette,

individually and in their official

capacities, Defendants-Appellees.

No. 93-1305.

United States Court of Appeals, Tenth Circuit.

Feb. 18, 1994.

Rehearing Denied March 22, 1994.

Michael Rhodes Hunt, pro se.

Before TACHA, BRORBY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This is a pro se civil rights claim brought pursuant to 42 U.S.C. Sec. 1983. ¹ The Plaintiff-Appellant, Michael R. Hunt ("Hunt"), is a prisoner at Colorado's Limon Correctional Facility and appears in forma pauperis. ² In this action for monetary damages, Hunt alleges that the named defendants violated his constitutional rights during the criminal investigation and trial that resulted in his conviction of several felony offenses. The defendants include Thomas A. Bennett ("Bennett"), a detective with the Arvada Police Department; Judges William P. Demoulin ("Demoulin") and Roy Olson ("Olson"), of the First Judicial District of Colorado; Robert Settje ("Settje"), the Deputy District Attorney for Jefferson County, Colorado; and David Manter ("Manter") and William Sublette ("Sublette"), of the Colorado State Public Defender's Office. The district court adopted the Magistrate Judge's recommendation and dismissed the action. We affirm, although for reasons other than those stated by the district court. See Hernandez v. George, 793 F.2d 264, 269 (10th Cir.1986) (appellate court may affirm district court on any ground supported by the record, even if not specifically relied on by the district court).

I. Background

The Magistrate Judge appropriately construed this pro se litigant's complaint liberally. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Ruark v. Solano, 928 F.2d 947, 949 (10th Cir.1991). The Magistrate Judge recommended the dismissal of Hunt's complaint against Bennett as barred by the applicable statute of limitations period. Next, the Magistrate Judge concluded that principles of absolute judicial immunity precluded Hunt's claims against Judge Demoulin and Judge Olson. Similarly, the Magistrate Judge reasoned that prosecutorial immunity shielded Settje from liability for alleged wrongdoing during the prosecution of Hunt. Finally, the Magistrate Judge determined that Manter and Sublette could not be liable under Sec. 1983 because public defenders are not state actors. Before us is Hunt's timely appeal from the district court's adoption of the Magistrate Judge's recommendation and dismissal of Hunt's complaint.

"The sufficiency of a complaint is a question of law which we review de novo." Ayala v. Joy Mfg. Co., 877 F.2d 846, 847 (10th Cir.1989) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)). "Accordingly, we apply the same scrutiny to the complaint as did the trial court." Id.

II. Time Bar

Hunt first appeals the court's determination that his Sec. 1983 claim against Bennett was time barred. As the Supreme Court instructs, "Sec. 1983 claims are best characterized as personal injury actions" and we therefore apply the relevant state statute of limitations applicable to such actions. Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985). Consistent with this principle, the Magistrate Judge applied the two year statute of limitations provided in Colo.Rev.Stat. Sec. 13-80-102. "Section 1983 claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action." Johnson v. Johnson County Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir.1991) (quotations omitted). Because nearly three years had elapsed between Hunt's discovery in August 1990 of Bennett's alleged constitutional violations and Hunt's commencement of this action on June 29, 1993, the Magistrate Judge recommended the dismissal of Hunt's claim against Bennett.

Hunt does not challenge the Magistrate Judge's reliance upon Colo.Rev.Stat. Sec. 13-80-102. Nor does he deny that he became aware of Bennett's alleged wrongdoing in August 1990. Instead, Hunt invokes the continuing violation doctrine, an equitable principle that we have applied in the context of Title VII claims, to link three alleged wrongful acts by Bennett from August 1990 to September 1991 as a single discriminatory enterprise. ³ See, e.g., Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1543 (10th Cir.1987). The continuing violation doctrine permits a Title VII plaintiff to challenge incidents that occurred outside the statutory time limitations of Title VII if such incidents are sufficiently related and thereby constitute a continuing pattern of discrimination. Id.; See Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1415 n. 6 (10th Cir.1993).

Hunt cites no case in which a court has extended the continuing violation doctrine to a Sec. 1983 claim. Nevertheless, we have held that an allegation of a conspiracy constitutes a viable claim under Sec. 1983, even if the alleged conspiracy began at a point that would be barred by the statute of limitations. See Robinson v. Maruffi, 895 F.2d 649, 654-655 (10th Cir.1990) (rejecting statute of limitations defense against Sec. 1983 claim alleging conspiracy to cause malicious prosecution). In Robinson, we held that what matters for statute of limitations purposes is the date on which the conspiracy claim accrued, not the date that the defendants allegedly commenced their conspiracy. Id. Robinson alleged that the defendants conspired to engage in a malicious prosecution and we concluded that the claim did not accrue until the end of the second criminal trial. Id.

In contrast to the plaintiff in Robinson, however, Hunt fails to allege specific facts showing agreement and concerted action among Bennett and the other defendants. "Conclusory allegations of conspiracy are insufficient to state a valid Sec. 1983 claim." Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989).

Accordingly, we affirm the court's dismissal of Hunt's claim against Bennett.

III. Judicial Immunity

We turn next to Hunt's allegations that Judges Demoulin and Olson violated Hunt's constitutional rights during the trial. As the Magistrate correctly stated, a state judge is absolutely immune from Sec. 1983 liability except when the judge acts "in the clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978) (articulating broad immunity rule that a "judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority...."). Guided by Sparkman, we determine whether a judge performed a "judicial" act or acted "in the clear absence of jurisdiction" by looking to "the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Id. at 362, 98 S.Ct. at 1107. Because Hunt alleges that Judges Demoulin and Olson engaged in unconstitutional conduct while presiding over Hunt's criminal trial, the judges were performing judicial acts and were therefore clothed with absolute judicial immunity.

Although Hunt correctly reads Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1980-81, 80 L.Ed.2d 565 (1984), for the proposition that judicial immunity does not bar prospective injunctive relief against a judicial officer, he is not seeking such relief against Judges Demoulin and Olson. Nor is Hunt's reliance upon Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), relevant to his suit against Judges Demoulin and Olson because Sparks considered a judge's obligation to appear as a witness in third-party litigation. Indeed, Sparks reaffirmed that judges enjoy absolute immunity from liability under Sec. 1983--even when the judge allegedly conspires with private parties. Id. at 28-32, 101 S.Ct. at 186-88.

Given the well-established principle of absolute judicial immunity, and Hunt's failure to demonstrate that Judges Demoulin and Olson acted in the clear absence of their jurisdiction, we affirm the court's dismissal of Hunt's complaint against Judges Demoulin and Olson.

IV. Prosecutorial Immunity

The doctrine of absolute prosecutorial immunity similarly bars Hunt's damage claim against Settje. Just last term, the Supreme Court reaffirmed 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." Buckley v. Fitzsimmons, --- U.S. ----, ----, 113 S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993). The Court in Buckley established a dichotomy between the prosecutor's role as advocate for the State, which demands absolute immunity, and the prosecutor's performance of investigative functions, which warrants only qualified immunity. Id. at ----, 113 S.Ct. at 2515-16. Insofar as Hunt's allegations of Settje's wrongdoing arise from Settje's preparation of, and performance during, Hunt's trial, Buckley dictates that Settje enjoys absolute prosecutorial immunity.

In an effort to overcome this barrier of prosecutorial immunity, Hunt contends that Settje forfeited his absolute immunity by allegedly conspiring with non-immune parties. We are mindful of language in the opinions of our sister circuits suggesting such a rule. See, e.g., San Filippo v. U.S. Trust Co., 737 F.2d 246, 256 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985). In San Filippo, the Second Circuit considered whether an immune party is stripped of immunity when the party conspires to present false testimony. However, we have expressly repudiated San Filippo and instead aligned ourselves with the Sixth and Seventh Circuits in preserving the immunity of...