Patterson v. Von Riesen
| Decision Date | 23 July 1993 |
| Docket Number | No. 92-3422,92-3422 |
| Citation | 999 F.2d 1235 |
| Parties | Lee Wayne PATTERSON, Appellant, v. Steven VON RIESEN, in his official capacity as Hall County Attorney; P. Stephen Potter, in his official capacity as Deputy Hall County Attorney; County of Hall, Nebraska, a body politic incorporate; Robert F. Parratt, former warden of the Nebraska Penal and Correctional Complex; Charles J. Black, former warden of the Nebraska Penal and Correctional Complex; Gary E. Grammer, former warden of the Nebraska Penal and Correctional Complex; John Dahm, former warden of the Nebraska Penal and Correctional Complex; Harold Clark, Director of Department of Correctional Services, Acting Warden of the Nebraska Penal and Correctional Complex; John B. Greenholtz, former member of the Nebraska Parole Board; Eugene E. Neal, former member of the Nebraska Parole Board; Wayne L. Schreurs, former member of the Nebraska Parole Board; Doris D. Collins, former member of the Nebraska Parole Board; Linda Babbitt Jaeckel, former member of the Nebraska Parole Board; Marj Marlette, former member of the Nebraska Parole Board; Ronald L. Bartee, former member of the Nebraska Parole Board; Carlos Alvarez, former member of the Nebraska Parole Board; Mary E. Wieseman, former member of the Nebraska Parole Board; Murrell McNeil, former member of the Nebraska Parole Board; Leland A. Oberg, former member of the Nebraska Parole Board; Donald D. McCall, former member of the Nebraska Parole Board; Marlene Cupp, 1990-Current member of the Nebraska Parole Board; Michael D. McLaughlin, 1990-Current member of the Nebraska Parole Board, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ann C. Janusz, Omaha, NE, argued (Kirk E. Brumbaugh, on the brief), for appellant.
Randall L. Goyette, and Alfonza Whitaker, Lincoln, NE, argued, for appellees.
Before FAGG and MAGILL, Circuit Judges, and STUART, * Senior District Judge.
This appeal comes from an order of the district court dismissing appellant's 42 U.S.C. § 1983 claims pursuant to Fed.R.Civ.P. 12(b)(6). We affirm, as we conclude that the prosecuting attorneys, members of the Nebraska Parole Board, and the prison wardens are absolutely immune from damages on Patterson's wrongful conviction claims.
Lee Wayne Patterson was convicted on or about November 18, 1980, of conspiracy to commit murder, a crime for which he was neither charged nor indicted. This surprising result occurred because of an incorrect jury instruction: At the request of Patterson's public defender, the court submitted a jury instruction which allowed the jury to convict Patterson of conspiracy to commit murder as a lesser included offense to first degree murder, the crime for which Patterson was charged and indicted. 1 The jury was to consider the conspiracy charge only if it concluded that Patterson was not guilty of first or second degree murder. See State v. Patterson, 232 Neb. 304, 440 N.W.2d 242 (1989). The jury exercised its option, and convicted Patterson of conspiracy.
After Patterson unsuccessfully exhausted his state post-conviction remedies, he filed a petition for writ of habeas corpus. The magistrate judge recommended that habeas relief be granted, concluding that conspiracy to commit murder was not a lesser included offense to any of Patterson's charged offenses, and that Patterson's counsel was constitutionally ineffective in proffering the charge. See Patterson v. Dahm, 769 F.Supp. 1103, 1112 (D.Neb.1991). Because the jury was allowed to consider conspiracy to commit murder only after concluding Patterson was not guilty of first or second degree murder, the magistrate judge concluded that Patterson clearly was prejudiced by the incorrect jury charge. Id.
The district court accepted the recommendation and granted habeas corpus relief on April 23, 1991. Patterson was released from custody on June 18, 1991.
Patterson then brought this § 1983 action against the prosecutors, for failing to object to the improper jury instructions; Hall County, for ratifying the prosecutors' actions; members of the Nebraska Parole Board, for denying his requests for parole; and the wardens of the penal institution at which he was confined, for wrongfully confining him and failing to investigate or approve his requests for parole.
The district court dismissed the claims against the prosecutors, Hall County, and the parole board members based upon absolute immunity, and dismissed the claims against the wardens based upon qualified immunity.
We review the district court's grant of a motion to dismiss for failure to state a claim de novo. In considering a motion to dismiss under Rule 12(b)(6), we must construe the allegations in the complaint in the light most favorable to the plaintiff. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted).
We note first that "[a]n absolute immunity defeats a suit at the outset, so long as the official's actions were within the scope of the immunity." Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 989 n. 13, 47 L.Ed.2d 128 (1975). Thus, if the prosecutors and parole board members are entitled to absolute immunity, dismissal on Rule 12(b)(6) grounds was proper.
The district court correctly concluded that absolute immunity bars Patterson's claim against the prosecutors. Prosecutors are entitled to absolute immunity for their "conduct in 'initiating a prosecution and in presenting the State's case,' insofar as that conduct is 'intimately associated with the judicial phase of the criminal process.' " Burns v. Reed, --- U.S. ----, ----, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler, 424 U.S. at 430, 431, 96 S.Ct. at 994, 995 (internal citations omitted)). Absolute immunity attaches to an official's function, rather than to the official's position. See Burns, --- U.S. at ----, 111 S.Ct. at 1939 (). Thus, we must examine whether the function exercised by these prosecutors is entitled to absolute immunity.
We conclude that the prosecutors are entitled to absolute immunity. The source of Patterson's injury (insofar as it can be attributed to the prosecutors) was the prosecutors' failure to point out the problem in the lesser included offense charge. A prosecutor deciding whether to object to a proffered jury charge during trial clearly performs a function "intimately associated with the judicial phase of the criminal process"; therefore, these prosecutors are absolutely immune from damages flowing from that conduct.
Patterson has tried to recast his injury to avoid this immunity. He claims that the injury flows not simply from the prosecutors' failure to object to the charge at trial, but also from the prosecutors' failure to bring the error to light in the post-conviction proceedings. To support this argument, Patterson cites the Seventh Circuit decision in Houston v. Partee, 978 F.2d 362 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1647, 123 L.Ed.2d 269 (1993), for the proposition that absolute immunity does not protect a prosecutor who fails to disclose exculpatory evidence.
Partee does not support Patterson's argument. In Partee the Seventh Circuit emphasized that the exculpatory evidence came to light only after trial had ended and the prosecutors were no longer associated with the case. Id. at 366-67. Thus, the damage did not flow from an act intimately related to the judicial phase of the criminal process; such a suit would not attach liability to a prosecutor's decision about whether to prosecute or his conduct as an advocate for the State. Second, the Partee court emphasized that there are no systemic protections (other than the threat of damages) to protect the defendant's rights when a prosecutor withholds evidence discovered after conviction. Id. at 368. Similar considerations guided the court in Wilkinson v. Ellis, 484 F.Supp. 1072 (E.D.Pa.1980), in which the court held that a prosecutor was not absolutely immune from damages caused when he affirmatively destroyed, rather than simply withheld, exculpatory evidence. Id. at 1083-84.
None of the factors found dispositive in these other cases is present here. First, Patterson's damages, even as recast, can only flow from the prosecutors' failure to object to the jury charge; without that act, there would be no reason for the prosecutors to reveal a defect in Patterson's conviction. Thus, a finding of liability would necessarily make these prosecutors liable for their conduct in the jury charge conference, and subject them to litigation for their conduct at trial. This is exactly what the doctrine of absolute immunity forbids. Absolute immunity would be a hollow doctrine if disgruntled prisoners could circumvent that immunity by the simple expedient of alleging that the prosecutor failed to reveal his trial error. The Supreme Court has created no requirement that prosecutors reveal their trial mistakes to maintain their absolute immunity, and we will not create one here.
Second, unlike the cases Patterson cited, the trial process could protect the defendant in this situation. The incorrect jury instruction occurred in open court, and Patterson, as well as the judge, had full access to the information necessary to correct the mistake during trial. This is certainly not such an extraordinary situation that damages are the only possible method to police a prosecutor's conduct.
We conclude that the prosecutors are absolutely immune for all damages flowing...
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