Mullinax v. McElhenney

• Decision Date: 26 May 1987
• Docket Number: No. 86-8197,86-8197
• Citation: 817 F.2d 711
• Parties: Dianne MULLINAX, Plaintiff-Appellant, v. E.B. McELHENNEY, et al., Defendants. Clifford Sticher and Robert E. Keller, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 711

817 F.2d 711

Dianne MULLINAX, Plaintiff-Appellant, v. E.B. McELHENNEY, et al., Defendants Clifford Sticher and Robert E. Keller, Defendants-Appellees.

No. 86-8197.

United States Court of Appeals Eleventh Circuit.

May 26, 1987.

Clifford H. Hardwick, Roswell, Ga., for Mullinax.

John C. Jones, Asst. Atty. Gen., Atlanta, Ga., for Sticher & Keller.

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

Before HILL and JOHNSON, Circuit Judges, and HENLEY ^*, Senior Circuit Judge.

JOHNSON, Circuit Judge:

This Section 1983 case concerns an appeal by a plaintiff from an order granting summary judgment in favor of two of the defendants on the grounds that they were entitled to absolute immunity as to some of their actions and that the statute of limitations had expired as to the remainder of their actions. We affirm the district court's order as to absolute immunity but reverse its finding as to the statute of limitations.

I BACKGROUND

In the summer of 1982, Dianne Mullinax, a paralegal, was involved in the representation of Billy Joe Wallace who had been arrested in Clayton County, Georgia, for first degree murder. She contends that, in order to impede Wallace's defense, Robert Keller, District Attorney of Clayton County, and Clifford Sticher, Assistant District Attorney General of Clayton County, along with E.B. McElhenney, an investigator for the Clayton County District Attorney's Office, and D.G. Lemacks, a major in the Clayton County Sheriff's Office, systematically attempted to entrap her on charges of possession of narcotics and maliciously prosecuted her for aiding an attempted jail escape. The defendants contend, however, that during an investigation into an attempted escape from the Clayton County jail, they uncovered information that Mullinax had smuggled hacksaw blades and other contraband into the jail. Their attempts to entrap her and her prosecution, they allege, stem from that information.

Questions of motive aside, the conduct Mullinax complains of began in June of 1982. At that time Sticher, with both Keller's and McElhenney's awareness, obtained the transfer of Earl Stocks from a Georgia state prison facility to the Clayton County jail under the pretense that Stocks was scheduled to stand trial in Clayton County. Apparently, no cases were even pending against Stocks in Clayton County at that time. Upon Stocks's transfer, Sticher and McElhenney removed Stocks from jail and housed him in various hotels in Jonesboro. They directed Stocks to call Mullinax and induce her to carry a package to Wallace in jail. Sticher and McElhenney intended to secrete contraband in the package and arrest Mullinax when she delivered it to Wallace. Stocks, posing as Charles Fly, presumably an acquaintance of Wallace, then repeatedly called Mullinax both at her office and at home. Mullinax, however, refused to bring any package to Wallace unless he authorized her to do so and she was allowed to examine the package's contents. Consequently, Mullinax never delivered the package.

Later in the summer, Mullinax informed the Clayton County sheriff's office that she had learnt through Wallace of an escape attempt planned by six inmates at the Clayton County jail. She agreed to gather and pass on additional information concerning the planned escape, and the sheriff's office eventually prevented the escape. Despite Mullinax's assistance, Sticher contends that, during the ensuing investigation into the escape attempt, several of the inmates stated that Mullinax had provided them with hacksaw blades. Mullinax responds that the inmates implicated her only after Sticher and McElhenney had informed them that she was responsible for foiling their escape and had offered them immunity from prosecution if they testified against her.

The defendants then embarked on another attempt to entrap Mullinax. This time McElhenney placed a package containing marijuana and quaaludes in Wallace's post office box. Lemacks had obtained the narcotics from the property room of the sheriff's department. Because Wallace was incarcerated, Mullinax regularly checked his post office box, and McElhenney intended to arrest Mullinax when she delivered the package to Wallace. Apparently to avoid suspicion, McElhenney induced Jill High, the wife of Tom High, another inmate in the Clayton County jail, to address the package, and then McElhenney had Tom High send a note to Wallace telling him that High's wife had sent a package to his post office box. Wallace and Mullinax, however, were suspicious of Tom High's motives, thus Mullinax immediately informed the Clayton County sheriff's office that a package that she suspected contained contraband had been delivered to Wallace's post office box. She requested that a deputy accompany her to the post office to inspect the package. The sheriff's office immediately notified McElhenney who called off the entrapment attempt.

McElhenney having failed to entrap Mullinax, Sticher decided to prosecute her for aiding the attempted escape from the Clayton County jail. Consequently McElhenney arrested Mullinax when she next visited Wallace. After trial, Mullinax was acquitted.

Nearly two years after her arrest, Mullinax filed this action under 42 U.S.C.A. Sec. 1983 seeking damages against Keller, Sticher, McElhenney, and Lemacks on the basis of conspiracy, false accusation and arrest, entrapment, harassment, and discrimination. She alleged also a claim for malicious prosecution under state law. After the close of discovery, all four defendants filed a motion for summary judgment. The district court initially granted summary judgment in favor of Keller and Sticher on the false accusation and arrest count and on the malicious prosecution count on the ground that they were entitled to absolute immunity for activities within their role as advocates. The court deferred ruling on the remainder of the claims against them as well as on any of the claims against McElhenney. However, the court did deny at that time Lemack's motion for summary judgment. After further briefing, the court granted summary judgment in favor of Keller and Sticher on the remaining claims asserted against them on the ground that the claims were barred by the statute of limitations. At that time the court denied McElhenney's motion for summary judgment.

Upon consolidation of its two orders, the district court certified its order granting summary judgment in favor of Keller and Sticher as final pursuant to Fed.R.Civ.P. 54(b). This appeal followed.

II DISCUSSION

A. ABSOLUTE IMMUNITY

In reviewing a motion granting summary judgment, we must resolve all doubts as to the existence of genuine issues of material fact against the moving party. Mercantile Bank & Trust Co. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir.1985). Because the defendants' first attempt to entrap Mullinax occurred before their investigation into the attempted jail escape began, we accept Mullinax's representation of the defendant's motive. Furthermore, because it is unlikely that Mullinax would have informed the police about the escape attempt if she had smuggled in the hacksaw blades, we accept for purposes of this appeal that the inmates involved in the escape attempt testified against Mullinax in exchange for immunity. Nonetheless, the district court properly dismissed the false accusation and arrest claim and the malicious prosecution claim against Keller and Sticher on the ground that they were entitled to absolute immunity.

State prosecutors are entitled to absolute immunity from damages under Section 1983 for all acts "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). For acts done as an "administrator or investigative officer rather than that of advocate," id. at 430-31, 96 S.Ct. at 995, however, state prosecutors receive only qualified immunity. Marrero v. City of Hiahleah, 625 F.2d 499, 503-511 (5th Cir.1980), cert. denied sub nom. Rashkind v. Marrero, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). Similarly, under Georgia law, a district attorney is entitled to absolute immunity for acts done within the scope of his jurisdiction. Smith v. Hancock, 150 Ga.App. 80, 256 S.E.2d 627, 628 (1979). The initiation and prosecution of criminal suits is within the jurisdiction of a district attorney. Criminal investigations are not. O.C.G.A. Sec. 15-18-6. Therefore, whether Keller and Sticher are entitled to absolute immunity under both Section 1983 and state law depends on whether their actions are more properly characterized as investigative or advocative.

Keller's and Sticher's prosecution of Mullinax undeniably fell within their roles as advocates. Therefore, they are entitled to absolute immunity from damages for prosecuting her, even if they suborned perjury to do so. Imbler, 424 U.S. at 410-17, 430-31, 96 S.Ct. at 995; Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir.1985); Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir.1984); Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.1979); Bruce v. Wade, 537 F.2d 850, 852 (5th Cir.1976). Mullinax argues, however, that all of Keller's and Sticher's actions did not fall within their role as advocates. Specifically, she points to Keller's and Sticher's efforts to entrap her, Sticher's participation, with Keller's approval, in the raid on the jail cell that foiled the escape attempt, and Sticher's offer of immunity to the inmates before she was indicted.

Mullinax's suggestion that Keller and Sticher are not entitled to absolute immunity from damages because they offered prosecutorial immunity to the inmates before she was indicted is meritless. A prosecutor's role as an advocate necessarily entails the development and evaluation of a case prior to the formal initiation of a prosecution. Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. Thus, a prosecutor is entitled to absolute...