Rhodes v. Mabus, Civ. A. No. J87-290(L).

• Decision Date: 10 November 1987
• Docket Number: Civ. A. No. J87-290(L).
• Parties: Irl Dean RHODES, Plaintiff, v. Ray MABUS, Louisa Dixon and Jere Nash, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

676 F. Supp. 755

Irl Dean RHODES, Plaintiff, v. Ray MABUS, Louisa Dixon and Jere Nash, Defendants.

Civ. A. No. J87-290(L).

United States District Court, S.D. Mississippi, Jackson Division.

November 10, 1987.

John C. McLaurin, McLaurin & McLaurin, Brandon, Miss., for plaintiff.

Ross F. Bass, Jr., Frank W. Trapp, Phelps, Dunbar, Marks, Claverie & Sims, Jackson, Miss., for defendants.

MEMORANDUM OPINION

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendants Ray Mabus, Louisa Dixon and Jere Nash for summary judgment. Plaintiff Irl Dean Rhodes filed timely response to the motion. The court has considered the memoranda with attachments submitted by the parties.

Mabus, Mississippi's State Auditor of Public Accounts, and Dixon and Nash, his assistants, in their capacities as public officials, conducted an investigation into suspected mishandling of public funds by Rhodes, the Chancery Clerk of Rankin County. This investigation resulted in the filing of a lawsuit against Rhodes by the State of Mississippi on the relation of Mabus and the Attorney General pursuant to section 7-7-211 of the Mississippi Code, which empowers the Department of Audit to institute suit for the recovery of misappropriated public funds. As a further result of the investigation, evidence of alleged criminal misconduct was presented to the Rankin County Grand Jury, which returned an indictment charging Rhodes with trafficking in public funds in violation of section 27-105-345 of the Mississippi Code. The Circuit Court of Rankin County issued an order quashing the indictment because of unauthorized communication with the grand jury by defendant Dixon.

Rhodes filed suit in state court, alleging various violations by defendants of his rights under federal law. Defendants removed the action to this court pursuant to 28 U.S.C. § 1441. Defendants now move for summary judgment on the ground of official immunity from suit.

Plaintiff asserts claims under 42 U.S.C. §§ 1983, 1985 and 1986, alleging that defendants violated his constitutional rights by the following actions:

1. Defendants harassed plaintiff in that Dixon, during a meeting with Rhodes and the Board of Supervisors of Rankin County, made false accusations against Rhodes, and Mabus and Dixon, during a meeting with Rhodes and his attorney, treated Rhodes "rudely and abusively" and repeated the false accusations.

2. Dixon maliciously gave false testimony before the grand jury, which was considering charges against Rhodes, after which an indictment was returned against plaintiff.

3. Dixon improperly and maliciously communicated with members of the grand jury in an attempt to influence them to return an indictment against Rhodes.

4. The foregoing actions were the result of a conspiracy among the three defendants.

I. "Harassment" by Making False Accusations

Defendants contend that they are insulated from liability for the allegedly false statements made at meetings between defendants and Rhodes by virtue of the absolute immunity enjoyed by public officials who perform functions analogous to those of a prosecutor. Defendants further contend that, in any event, plaintiff's allegations do not state a constitutional violation.

Whether or not defendants are entitled to absolute immunity¹ from suit for damages² for the statements in question, it is apparent from the undisputed facts that such statements, even if false, do not amount to a constitutional violation. Plaintiff's allegation that defendants harassed him by making false accusations about him appears to be equivalent to a claim of defamation. Mere defamation of a private citizen by a public official is not a violation of the citizen's constitutional rights.³ Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976); Cook v. Houston Post, 616 F.2d 791, 794 (5th Cir.1980).

Accordingly, the court is of the opinion that plaintiff's claims in regard to the purported false accusations made against him by defendants at the meetings in question are without merit and defendants are entitled to prevail on those claims as a matter of law.

II. False Testimony Before Grand Jury

Defendants claim that Dixon, as a witness in a judicial proceeding, enjoys absolute immunity from liability in connection with her testimony. In Briscoe v. Lahue, 460 U.S. 325, 329, 103 S.Ct. 1108, 1112, 75 L.Ed.2d 96 (1983), the Supreme Court recognized an absolute immunity from suit arising from a witness's testimony at a criminal trial. Although some courts have applied this absolute immunity to testimony before a grand jury, the Fifth Circuit has expressly refused to extend absolute immunity to cover such testimony. See Wheeler v. Cosden Oil & Chemical Co., 734 F.2d 254, 261 & n. 16, modified, 744 F.2d 1131 (5th Cir.1984).⁴

Defendants also claim prosecutorial immunity for presenting the testimony on the basis that it was part of their activities in procuring and presenting evidence in regard to the criminal prosecution of Rhodes. With respect to Dixon, prosecutorial immunity appears to be absent, since, while presentation of witnesses is a prosecutorial function, the actual giving of testimony is not. However, in regard to Mabus and Nash, who are alleged to have conspired to have Dixon give the testimony, the claim of prosecutorial immunity is not patently meritless, because prosecutorial immunity applies even to the knowing presentation of false testimony. Imbler v. Pachtman, 424 U.S. 409, 416, 431, 96 S.Ct. 984, 988, 995, 47 L.Ed.2d 128 (1976). But because this claim can be disposed of without reference to the assertion of prosecutorial immunity, it is not necessary to determine the validity of the prosecutorial immunity claims of Mabus and Nash, and the court does not undertake to do so.⁵

A resolution of defendants' claims of prosecutorial immunity is unnecessary because the undisputed facts show that plaintiff has failed to establish an essential element of his claim. One has a right under the fourteenth amendment due process clause to a determination that probable cause to prosecute exists before proceedings are instituted against him. Wheeler v. Cosden Oil & Chemical Co., 734 F.2d 254, 259-60 (5th Cir.1984). A state official who undermines that right by maliciously giving false testimony to the person or body charged with making the probable cause determination can be held liable in a section 1983 cause of action for malicious prosecution. Id. at 257, 260. In stating the requirements for this cause of action, the federal courts have adopted rules governing the common law cause of action for malicious prosecution. See, e.g., San Filippo v. U.S. Trust Co., 737 F.2d 246, 257 n. 6 (2d Cir.1984); Tucker v. Duncan, 499 F.2d 963, 965 & n. 1 (4th Cir.1974). An essential element in a cause of action for malicious prosecution is that the prosecution must have terminated in the defendant's favor. Armco, Inc. v. Southern Rock, Inc., 778 F.2d 1134, 1136 (5th Cir. 1985) (applying Mississippi law); Morrison v. Jones, 551 F.2d 939, 940 (4th Cir.1977) (adopted common law rule that favorable termination is required); 52 Am.Jur.2d Malicious Prosecution § 29 (1970).

Not every termination which results in a defendant's release is a termination in the defendant's favor. The court is of the opinion that in order to maintain a section 1983 cause of action for malicious prosecution, the plaintiff must show that the proceedings against him terminated in such a way as to suggest his innocence. See Russo v. State of New York, 672 F.2d 1014, 1019 (2nd Cir.1982), modified on reh'g, 721 F.2d 410 (2nd Cir.1983) (applying New York law) (termination must be on merits or such as to imply lack of reasonable grounds for prosecution); Singleton v. City of New York, 632 F.2d 185, 194-95 (2nd Cir.1980) (termination must indicate innocence of defendant), cert. denied 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Mendoza v. K-Mart, Inc., 587 F.2d 1052, 1057 (10th Cir.1978) (applying New Mexico law) (criminal prosecution must be disposed of in way which indicates innocence of accused). A termination on procedural grounds is not sufficient to satisfy the requirement of favorable termination. Kelly v. Cooper, 502 F.Supp. 1371, 1376 (E.D.Va.1980). Plaintiff points to the circuit court's quashing of the indictment against him as a termination in his favor. It has been held that the quashing of an indictment is a termination in favor of the accused. See 52 Am.Jur.2d Malicious Prosecution § 32 (1970). However, applying the principles set forth in the above-cited cases, such would not be the case where the indictment was quashed on procedural grounds and not in such a way as to indicate the innocence of the accused or the lack of probable cause for his prosecution. The circuit court's quashing of the indictment was expressly based on what the court held was an improper communication with the grand jurors by Dixon.⁶ The quashing of the indictment on that basis was not a termination on the merits and did not indicate the innocence of Rhodes or the lack of reasonable grounds for his prosecution. Therefore, Rhodes has failed to establish that the proceedings terminated in his favor.

It is proper to dismiss an action for failure to state a claim when, construing the allegations of the complaint favorably to the plaintiff, it is determined beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Generally, in determining the sufficiency of a complaint, the court is limited to a consideration of the complaint itself. 27 Fed.Proc., L.Ed. § 62:466 (1984). The court may, however, look beyond the complaint "to items in the record of the case or to matters of general public record." Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C.Cir.1979). The...