Rich v. Dollar

• Decision Date: 15 April 1988
• Docket Number: No. 87-5028,87-5028
• Citation: 841 F.2d 1558
• Parties: Ed RICH, Plaintiff-Appellee, v. Larry C. DOLLAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1558

841 F.2d 1558

Ed RICH, Plaintiff-Appellee, v. Larry C. DOLLAR, Defendant-Appellant.

No. 87-5028.

United States Court of Appeals Eleventh Circuit.

April 15, 1988.

George L. Waas, Asst. Atty. Gen., Tallahassee, Fla., for defendant-appellant.

Lawrence Bunin, Plantation, Fla., for plaintiff-appellee.

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

Before KRAVITCH and CLARK, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge:

Appellant Larry Dollar appeals from the District Court's denial of his alternative motion for summary judgment in this claim for damages brought by appellee Ed Rich under 42 U.S.C. Sec. 1983.

I

Appellant Dollar's alternative motion for summary judgment was based in part on his claims of both absolute and qualified immunity as a government official. The entitlement not to stand trial or face the other burdens of litigation provided by the doctrines of absolute immunity and qualified immunity is effectively lost if a case is erroneously allowed to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). Under 28 U.S.C. Sec. 1291 a decision of a district court that does not terminate the cause of action can be appealed if it "... falls within that 'small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.' " Mitchell, 105 S.Ct. at 2815, quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).

The key indicant of a collateral order or decision that is appealable under the Cohen doctrine is that in order for the decision to be reviewed at all it must be reviewed before the district court proceedings terminate. Mitchell, 105 S.Ct. at 2815. The crux of a claim of absolute or qualified immunity is the defendant's contention that he is not even subject to suit in a civil damages action for claims arising from his official conduct. Thus, in Mitchell the Supreme Court observed that "the denial of a substantial claim of absolute immunity is an order appealable before final judgment, ...." Id. In Mitchell the Supreme Court held further that "... a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." Id. at 2817. Accord, Flinn v. Gordon, 775 F.2d 1551 (11th Cir.1985).

In light of the foregoing it is clear that we have jurisdiction under 28 U.S.C. Sec. 1291 to review the district court's denial of appellant's motion for summary judgment to the extent that the denial turns on a question or questions of law. Mitchell instructs that in a case where the defendant claims qualified immunity from suit an appellate court in

... reviewing the denial of [a] defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim. All [the appellate court] need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions.

Mitchell, 105 S.Ct. at 2816.

Dollar's claims of absolute and qualified immunity turn on questions of law. Therefore, the scope of our analysis and holding on this appeal is properly confined to the questions of law raised by appellant Dollar's alternative motion for summary judgment. The district court's determination that a genuine issue of material fact precluded it from granting summary judgment for appellant based on his claims of immunity is itself a question of law. Therefore, our review here is de novo and we need not defer to the district court's determination that summary judgment is precluded by genuine issues of material fact. ¹

II

Appellant Larry Dollar is an investigator employed by the State Attorney's Office for the Seventeenth Judicial Circuit in and for Broward County, Florida. Ed Rich is a businessman who resides in Broward County, Florida. On April 22, 1986 Rich initiated an action for damages against Dollar under 42 U.S.C. Sec. 1983 claiming violations of his constitutional rights as guaranteed by the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments. That suit resulted from certain actions by Dollar in the performance of his official duties as a state attorney's investigator.

The showings made by the parties on summary judgment reveal the following sequence of events that led to the Sec. 1983 action against Dollar. In late 1983 Dollar had been assigned by Assistant State Attorney Kent Neal to investigate a purported scheme to market worthless gems by telephone. One of the subjects of that inquiry was a William Roth. Roth was a business associate of Rich, and along with him a co-founder and corporate officer of Century Film Labs, Inc.. Dollar's investigation uncovered evidence of the use, by Roth, Rich and a Lawrence Austin, of a credit card account opened in the name of Century Film Labs, Inc. in the alleged fraudulent gem marketing effort.

As a result of his investigation Dollar submitted to Assistant State Attorney Neal a probable cause affidavit that asserted the existence of probable cause to believe that Rich, among numerous other individuals, had "... conspired and participated in the conduct of a criminal enterprise which involved the systematic theft by fraud from numerous victims...." The "Offenses Charged" section of the probable cause affidavit listed four Florida statutes (Fla.Stat. Sec. 812.014(2)(b) (1985), Sec. 817.036(1) (1985), Sec. 895.03(3) (1985), Sec. 895.03(4) (1985)) dealing with grand theft, fraud, conspiracy to violate the Florida Racketeer Influenced and Corrupt Organization (RICO) Act and violation of the Florida RICO statute.

Following the submission of the probable cause affidavit by Investigator Dollar, charging documents were drafted and signed by Assistant State Attorney Neal which resulted in the issuance of a capias by the Clerk of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida for the arrest of Ed Rich. Rich was arrested and required to post bond of $16,000. He eventually incurred attorney's fees of some $5,000. After further investigation by the Assistant State Attorney, the charges against Rich were nolle prossed.

Several months after the Assistant State Attorney's decision to not further prosecute the charges against Rich, Rich brought this Sec. 1983 action. Paragraph 20 of his amended complaint states the key allegations on which this Sec. 1983 action rests.

[d]efendant [Dollar] did not have a reasonable basis to believe there was probable cause that the Plaintiff [Rich] had committed a crime and the aforesaid prosecution was instituted by the Defendant negligently, maliciously and wilfully, against the Plaintiff without semblance of right and without any provocation, and it is well known to Defendant that said prosecution was without any legal foundation for same, but was in violation of Plaintiff's right as a citizen. (sic)

III

In order to demonstrate that summary judgment is warranted here defendant/appellant Dollar must establish both that he is entitled to summary judgment as a matter of law (i.e., that he is shielded either by absolute immunity or qualified immunity) and that there are no genuine issues of material fact pertinent to those questions of law. Fed.R.Civ.Proc. 56(c). Bernard v. Gulf Oil Co., 596 F.2d 1249, 1255 (5th Cir.1979), Dassigner v. South Central Bell Telephone Co., 505 F.2d 672, 674 (5th Cir.1974). Rich can avoid summary judgment by demonstrating either that Dollar is not entitled to absolute or qualified immunity as a matter of law or by showing the presence of a genuine issue of material fact upon which one of those questions of law must turn. Fed.R.Civ.Proc. 56(e). Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Because this is an appeal of a denial of a motion for summary judgment the plaintiff/appellee cannot rely on the factual basis alleged in his complaint. Rather, he must respond to the factual showing made by the defendant/appellant in support of his motion for summary judgment in such manner as to raise genuine issues of material fact. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986), Alger v. United States, 252 F.2d 519, 521-22 (5th Cir.1958). ²

Appellant Dollar maintains that he is entitled to absolute immunity from prosecution and, in the alternative, contends he is also shielded from appellee Rich's Sec. 1983 damages action by qualified immunity pursuant to Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Appellant is correct when he states that none of our cases have directly addressed the question of whether a lay employee investigator for a state prosecutor is accorded absolute immunity for investigative activities engaged in at the direction of the prosecutor. However, there is case law from this Circuit to establish that when a prosecutor steps outside the realm of the quasi-judicial acts "intimately associated with the judicial phase of the criminal process" he sheds the cloak of absolute immunity. Mullinax v. McElhenney, 817 F.2d 711, 714-15 (11th Cir.1987) quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). In Kadivar v. Stone, 804 F.2d 635, 637 (11th Cir.1986) we stated "[a]lthough a prosecutor enjoys absolute immunity when engaging in quasi-judicial functions, he has only a qualified immunity when carrying out administrative or investigative functions." Citing Marrero v. City of Hialeah, 625 F.2d 499,...