Marx v. Gumbinner

• Decision Date: 20 September 1988
• Docket Number: No. 87-5449,87-5449
• Citation: 855 F.2d 783
• Parties: , 12 Fed.R.Serv.3d 385 Richard MARX, Individually and Kristina Marx, A Minor, Plaintiffs-Appellees, v. Glenn H. GUMBINNER, et al., Defendants, Bruce H. Colton and Pamela J. Roebuck, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 783

855 F.2d 783

57 USLW 2236, 12 Fed.R.Serv.3d 385

Richard MARX, Individually and Kristina Marx, A Minor Plaintiffs-Appellees, v. Glenn H. GUMBINNER, et al., Defendants Bruce H. Colton and Pamela J. Roebuck, Defendants-Appellants.

No. 87-5449.

United States Court of Appeals Eleventh Circuit.

Sept. 20, 1988.

Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, Fla., for defendants-appellants.

Richard J. Troy, Chicago, Ill., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and HATCHETT, Circuit Judges, and LYNNE ^*, Senior District Judge.

TJOFLAT, Circuit Judge:

I.

In the early hours of February 8, 1986, four-year-old Kristina Marx was brutally raped in a wooded gully in Port Salerno, a town in Martin County, Florida. Following the attack, Kristina wandered back to the home of Claire Leonard, a family friend with whom Kristina and her father, Richard Marx, had been staying overnight. Ms. Leonard, seeing that Kristina was covered with blood and dirt, immediately telephoned the Martin County Sheriff's Department. The police arrived on the scene, an ambulance was summoned, and Kristina was taken to a local hospital. In the emergency room at the hospital, Kristina allegedly told the attending physician that "Daddy left me out to sleep outside all night with my nightgown and he did this to me."

A few hours later, police interviewed Richard Marx. Suspecting that Marx was the perpetrator of the crime, the police officer in charge of the investigation, Officer Glenn Gumbinner, telephoned Pamela Roebuck, an assistant state attorney, for advice on how to proceed. Gumbinner recounted to Roebuck the facts known to him and asked whether he had sufficient grounds to arrest Marx. Roebuck told Gumbinner that she would telephone her superior, state attorney Bruce Colton, and seek his opinion. After having elicited Colton's opinion, Roebuck called Gumbinner back and told him that sufficient grounds probably existed to arrest Marx, but that he should defer making the arrest until after the police had obtained a statement from Kristina. ¹ The police took a statement as advised, and, soon thereafter, placed Marx under arrest.

On February 10, the police requested Marx to provide them with a blood sample for use in determining whether he was the source of semen taken from Kristina's body. Marx refused to provide the sample. That same day, a probable cause hearing was conducted before a county judge pursuant to Fla.R.Crim.P. 3.133(a)(1). ² The judge found probable cause to believe that Marx had committed aggravated sexual battery upon Kristina, and ordered that he be held without bond.

After the probable cause hearing, assistant state attorney Roebuck visited the hospital on a number of occasions to question Kristina. On at least one of these occasions, Roebuck was accompanied by state attorney Colton. On February 26, Roebuck, after having conferred with Colton, filed an information charging Richard Marx with sexual battery and kidnapping. On February 27, Roebuck petitioned the county court to enter an order requiring Marx to provide the police with hair, blood, and saliva samples.

On March 4, a bail hearing was held, bond was set, and, on posting the bond, Marx was released from custody. On March 5, the court ordered Marx to provide the hair, blood, and saliva samples. The samples were taken that same day. The following day, laboratory technicians determined, based on analysis of the blood sample, that Marx could not have been the source of the semen taken from Kristina's body. Upon being apprised of the laboratory results, the state attorney's office immediately nol-prossed the case against Marx, and issued the following press release:

The Martin County Sheriff's Office in conjunction with the State Attorney's Office announces that:

Charges were dismissed today against Richard Marx based upon scientific examinations, the results of which indicate that he is not the perpetrator.

Prior to his arrest, the victim had positively identified Marx as the offender to hospital personnel, and Marx had requested to take, taken, and failed a polygraph examination. The victim had additionally identified Marx as the offender to Law Enforcement Officials prior to the filing of formal charges.

Law Enforcement Officials had attempted to obtain the evidence necessary for scientific examination immediately after Marx's arrest. However, Marx refused through his attorneys, as is his right, until Court Order had been obtained requiring him to give such evidence.

Efforts are continuing in identifying and apprehending the offender/s of this crime.

Marx thereafter filed a complaint in the district court under 42 U.S.C. Sec. 1983 (1982), seeking injunctive relief and money damages on behalf of himself and on behalf of Kristina, as her next friend. Among those named as defendants were Roebuck, Colton, various police officers who participated in Marx's arrest and the ensuing investigation, and Dr. John Crouch, the emergency room physician who told police investigators that Kristina had identified Marx as her assailant.

This appeal concerns only the two prosecutors, Roebuck and Colton. Marx asserted a number of claims against Roebuck and Colton, some on behalf of himself, and some on behalf of Kristina. He asserted (1) that Roebuck and Colton caused him to be unlawfully arrested and detained in violation of both state law and the due process clause of the fourteenth amendment, (2) that they additionally violated his fourteenth amendment due process rights by issuing the press release, ³ (3) that they violated Kristina's fourteenth amendment due process rights by visiting and interviewing her at the hospital, and (4) that they violated Kristina's fourteenth amendment due process rights by procuring explicit photographs of her injuries and "distribut[ing] said photo[graphs] to other law enforcement agencies that had no connection whatsoever" to the prosecution of Kristina's case. As to the first three claims, Marx sought monetary relief. As to the fourth claim, he sought both monetary and injunctive relief.

Roebuck and Colton moved the district court to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, to enter summary judgment on all claims pursuant to Fed.R.Civ.P. 56. As to each of the claims, Roebuck and Colton asserted that they were absolutely immune to suit for money damages under the rule of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The district court treated the defendants' motion as one for summary judgment and denied it. Roebuck and Colton now seek to appeal from that ruling, contending that the district court's order was a "final decision" within the meaning of 28 U.S.C. Sec. 1291 (1982).

II.

A.

We first address the issue of whether we have jurisdiction to entertain the appeal. The Supreme Court has held that an order denying official immunity in a section 1983 suit is an immediately appealable "collateral order" within the doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985) (assertion of qualified immunity by former Attorney General); Nixon v. Fitzgerald, 457 U.S. 731, 743, 102 S.Ct. 2690, 2697-98, 73 L.Ed.2d 349 (1982) (assertion of absolute immunity by former President); see also Harris v. Deveaux, 780 F.2d 911, 913 (11th Cir.1986) (assertion of absolute immunity by judge). The Supreme Court has reasoned that if immunity has been erroneously denied by the district court and an immediate appeal is not permitted, the right at issue will be irretrievably lost, for the right is "an immunity from suit rather than a mere defense to liability." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. Erroneously subjecting an official to trial defeats the very purpose of the immunity doctrine, which is to shield officials from the distractions of litigation arising from the performance of their official functions. The mere threat of such litigation is deemed pernicious because it "dampen[s] the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950)).

As a general matter, then, a denial of absolute immunity is immediately appealable. In this case, however, we must address a further issue before we can proceed to entertain the appeal. The Third Circuit has held that where a plaintiff has sought both monetary and injunctive relief against a government official, a denial of immunity as to the damages liability is not immediately appealable. Prisco v. United States, 851 F.2d 93 (3d Cir.1988). The court reasoned that since official immunity protects government officials only from suit for money damages, ⁴ the defendant would have to stand trial on the claim for injunctive relief regardless of the outcome of an interlocutory appeal; therefore, the court concluded, the policy served by allowing an immediate appeal was not present. Under the Third Circuit's rule, we would have no jurisdiction to entertain Marx's appeal, because he sought injunctive as well as monetary relief in the district court. ⁵

We are persuaded, however, to reject the Third Circuit's rule and to join the ranks of our sister circuits that have held that a defendant may immediately appeal a denial of official immunity as to damages claims even though a claim for injunctive relief remains pending in the district court. See Young v. Lynch, 846 F.2d 960, 961-63 (4th Cir.1988) ⁶; DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 717-18 (10th Cir.1988); Drake v. Scott, 812 F.2d 395, 398 (8th Cir.), cert. denied, --- U.S....