Park County v. Cooney

• Decision Date: 02 December 1992
• Docket Number: No. 91-182,91-182
• Citation: 845 P.2d 346
• Parties: PARK COUNTY, Wyoming, Chris J. White, and Robert Mayor, Appellants (Defendants), v. Thomas Russell COONEY and Lora John Cooney, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 346

845 P.2d 346

PARK COUNTY, Wyoming, Chris J. White, and Robert Mayor, Appellants (Defendants), v. Thomas Russell COONEY and Lora John Cooney, Appellees (Plaintiffs).

No. 91-182.

Supreme Court of Wyoming.

Dec. 2, 1992.

Edward G. Luhm of Scott, Shelledy, and Luhm, Worland, for appellant Robert Mayor.

L.B. Cozzens of Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Mont., for appellees.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

CARDINE, Justice.

The issue in this case is whether a probation officer who knowingly prepares a perjured petition for revocation of probation is entitled to immunity in an action under 42 U.S.C. § 1983 arising from the probationer's subsequent arrest and incarceration. The probation officer, Robert Mayor (Mayor), appeals the trial court's order denying his motion to dismiss appellees' amended § 1983 complaint against him.

We affirm.

Appellant states the issue as follows:

Whether the District Court erred by holding that, in January, 1986, a reasonable Wyoming Probation and Parole Agent would have understood that the preparation of a perjured probation revocation petition, and the forwarding of said petition to a prosecuting attorney who requested it, was unlawful in light of clearly established law?

The facts underlying this case are set out in Cooney v. Park County, 792 P.2d 1287 (Wyo.1990) (Cooney I ). For the convenience of the reader, we reiterate from that opinion the facts relevant to this appeal:

In 1985, Thomas Cooney pled guilty to writing bad checks in Park County, Wyoming. The district court accepted his guilty plea and sentenced him to five years of supervised probation, which required him to stay in regular contact with officers of the Wyoming Department of Probation and Parole. When sentenced, Mr. Cooney lived in Riverton, Wyoming, where his parole officer was Cindy Johnson. In September 1985, Mr. Cooney requested permission from the Department to move with his wife and child to Baroil because of a change in his job. Johnson granted Mr. Cooney permission to move and told him that he would be contacted by a Department officer in Rawlins for continued supervision under the terms of his sentence.

The Cooneys moved to Baroil in October 1985, and Johnson forwarded Thomas Cooney's file to Tracy Reinke, a Department officer in Rawlins. Unknown to the Cooneys, however, Johnson erroneously advised Reinke that Thomas Cooney and his family were now living in La Barge, Wyoming, instead of Baroil. Because of this erroneous advice, Reinke returned the Cooney file to Johnson in Riverton and instructed Johnson to forward it to the Department office in Evanston, Wyoming, the Department office with jurisdiction over probationers living in La Barge. On October 21, 1985, Johnson mailed the Cooney file to the Department office in Evanston where it was assigned to appellee Robert Mayor. After receiving the file, Mayor made unsuccessful attempts to locate Mr. Cooney in La Barge because the Cooneys were in Baroil.

In the meantime, Mr. Cooney, still unaware of the Department's foul-ups, contacted Johnson several times by telephone inquiring about the contact he expected to receive from a Department officer in Rawlins. Based on those calls, Johnson filed reports verifying Mr. Cooney's compliance with the terms of his probation in October and November of 1985. During December 1985, Mr. Cooney telephoned the Department office in Rawlins to contact Reinke about his probation.

In mid-January, 1986, Mayor contacted Johnson to inform her that he could not locate Mr. Cooney in his area. Unexplainably, Johnson told Mayor that Mr. Cooney had relocated to La Barge, Wyoming, in October 1985, and that she had not heard from him since his move. This incorrect information prompted Mayor on January 24, 1986, to call appellee Chris White, who was then deputy county attorney for Park County, Wyoming; Mayor told White that Mr. Cooney had not been in contact with his probation officers as required by the terms of his sentence and that he had moved from Riverton without Department permission. White asked Mayor to prepare a petition revoking Mr. Cooney's probation.

On January 29, 1986, Johnson telephoned Mayor and told him that the Cooneys lived in Baroil, had permission from the Department to be there, and that Mr. Cooney had been in contact with her office during October and November 1985. Mayor then telephoned White and relayed those facts to him. Despite this information, White reiterated his request that Mayor draft the petition to revoke Mr. Cooney's probation. Mayor followed White's instructions and prepared a document entitled "Petition for Revocation of Probation and Bench Warrant" dated January 29, 1986. In that document, and despite his contrary knowledge, Mayor swore under oath that Mr. Cooney changed his address without the Department's permission and failed to maintain contact with the Department after he moved. Mayor then forwarded the petition to White who presented it to the district court. Based on the petition, the district court issued a bench warrant for Mr. Cooney's arrest on February 7, 1986.

* * * * * *

* * * On March 15, 1986, a highway patrol officer stopped Mr. Cooney, his wife, and child and arrested him pursuant to the bench warrant issued because of the information provided to the district court by Mayor and White. * * *

Mr. Cooney remained in the Park County jail until April 21, 1986 * * *.

Cooney, 792 P.2d at 1288-89.

The Cooneys sued Park County, the State of Wyoming, the Wyoming Department of Probation and Parole, White and Mayor for claims arising out of Mr. Cooney's wrongful detention. The complaint alleged grounds for recovery under the Wyoming Governmental Claims Act and under 42 U.S.C. § 1983. Upon W.R.C.P. 12(b)(6) motions by the defendants, the trial court dismissed all claims against White and Park County, and the Wyoming Governmental Claims Act claims against the State of Wyoming, the Department of Probation and Parole, and Mayor. It then issued an order certifying the case for appeal under W.R.C.P. 54(b). The Cooneys took appeal from the dismissals. We initially dismissed the appeal because of the trial court's failure to explain its reasons for granting Rule 54(b) certification. The trial court then amended its order, and Cooneys renewed their appeal.

In Cooney I, we affirmed the trial court's orders of dismissal. The Cooneys then filed a petition for certiorari to the United States Supreme Court, which was granted sub nom., Cooney v. White, 501 U.S. 1201, 111 S.Ct. 2820, 115 L.Ed.2d 965 (1991). The Supreme Court vacated the judgment in Cooney I and remanded to us for further consideration in light of Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). On June 17, 1991, we ordered rebriefing and rehearing on the matter.

Meanwhile, on September 7, 1989, Mayor, the State of Wyoming, and the Department of Probation and Parole had filed a motion asking the trial court to reconsider its failure to previously dismiss the § 1983 counts against them. This motion cited the United States Supreme Court's holding in Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), that states and state officials acting in their official capacity cannot be sued under § 1983. In response, the Cooneys filed a motion to amend their complaint to assert a claim against Mayor individually, and also to add a claim for "constitutional tort" against him.

On August 7, 1990, by stipulation of the parties, the trial court dismissed with prejudice the § 1983 complaints against the State and the probation department. Subsequently, the trial court dismissed the § 1983 action against Mayor in his official capacity. In the same order, it also granted the Cooneys' motion to amend the complaint to assert a § 1983 claim against Mayor personally, but denied the Cooneys' motion to add an allegation of constitutional tort. The Cooneys filed an amended complaint on April 1, 1991, to which Mayor responded.

Mayor filed a motion to compel discovery against the Cooneys. His motion was based on his need to gather information to assert a defense of qualified immunity. He also filed for a protective order to prevent the Cooneys from conducting further discovery against him until the issue of qualified immunity had been resolved. The trial court announced its decision to treat these two motions as a motion to dismiss on the basis of qualified immunity under W.R.C.P. 12(b)(6). Both parties filed briefs on whether the case should be dismissed. The trial court entered an order denying the motion to dismiss from which Mayor took timely appeal.

Appealability of Order

A threshold question to be considered is whether Mayor's appeal is properly before the court at this time. Mayor is appealing the denial of his W.R.C.P. 12(b)(6) motion to dismiss based on qualified immunity. Generally, an order denying a motion to dismiss is not a final, appealable order from which appeal may be taken. Wyoming Rule of Appellate Procedure 1.05 defines a "final order" as

(1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; (2) an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment; (3) an order, including a conditional order, granting a new trial on the grounds stated in Rule 59(a)(4) and (5), W.R.C.P. * * *.

We have stated that a final order from which appeal may be taken is one which "determines the merits of the controversy and leaves nothing for future consideration." Public Serv. Comm'n v. Lower Valley Power and Light, Inc., 608 P.2d 660, 661 (Wyo.1980).

The United States Supreme Court has held, however, that a federal district court's denial of a motion to dismiss based on qualified immunity was "an appealable 'final decision' * * * notwithstanding the absence of a final...