Strength v. Hubert

• Decision Date: 02 September 1988
• Docket Number: No. 87-7641,87-7641
• Citation: 854 F.2d 421
• Parties: Martha S. STRENGTH, Plaintiff-Appellant, v. W.L. HUBERT, Charles Carroll, individually, et al., Defendants-Appellees. William L. STRENGTH, Jr., Plaintiff-Appellant, v. W.L. HUBERT, Charles Carroll, individually, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 421

854 F.2d 421

57 USLW 2178

Martha S. STRENGTH, Plaintiff-Appellant, v. W.L. HUBERT, Charles Carroll, individually, et al.,

Defendants-Appellees.

William L. STRENGTH, Jr., Plaintiff-Appellant, v. W.L. HUBERT, Charles Carroll, individually, et al.,

Defendants-Appellees.

No. 87-7641.

United States Court of Appeals Eleventh Circuit.

Sept. 2, 1988.

Rehearing and Rehearing En Banc Denied Oct. 6, 1988.

Griffin Sikes, Jr., Montgomery, Ala., for plaintiff-appellant.

David Christy, Asst. Atty. Gen., Ronald G. Davenport, Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before JOHNSON, Circuit Judge, HENDERSON ^*, Senior Circuit Judge, and PITTMAN ^**, Senior District Judge.

PER CURIAM:

Martha and William Strength appeal from an order of the United States District Court for the Middle District of Alabama granting summary judgment in favor of the defendants, Charles Carroll and W.L. Hubert, in this action brought pursuant to the provisions of 42 U.S.C. Sec. 1983. We affirm in part and reverse in part.

In July, 1981, William Strength and Hubert formed Autauga Transport, Inc. ("ATI"), a trucking business. Martha Strength, who was then married to William Strength, became the bookkeeper for ATI. The business dissolved in January, 1983 because of operating losses.

At the time relevant to this litigation, Carroll was an investigator for the Office of the Attorney General for the State of Alabama. In August, 1984, after receiving a telephone call from Hubert, Carroll met with Hubert and Samuel Moore, a former truck driver for ATI. During this meeting, Hubert showed Carroll cancelled checks drawn on ATI's account with the Bank of Prattville. These checks were payable to Moore and other ATI drivers. Each check bore both the payee's endorsement and the endorsement of William or Martha Strength. It is undisputed that on each check the payee's endorsement actually was made by either William or Martha Strength without the express permission of the payee. In addition, Hubert provided Carroll with ATI's corporate records which allegedly revealed discrepancies in the amounts of checks, the amounts of receipts and the dates of each.

After conferring with his supervisor, Corky Pugh, Carroll began an investigation of the alleged forgeries by the Strengths. In January, 1985, at the conclusion of his investigation, Carroll submitted his findings to the District Attorney of Autauga County, Alabama, Glen Curlee. Later that month, Carroll testified before the Autauga County Grand Jury concerning the activities of the Strengths. He was the sole witness before the grand jury, which eventually returned a multiple count forgery indictment against both of the Strengths.

In March, 1986, District Attorney Janice Williams, Curlee's successor, moved to dismiss the indictments. She explained her reasons for dismissal in a sworn affidavit that the Strengths attached to their response to the defendants' motions for summary judgment:

When I reviewed [ATI's business records] ... I was 'floored.' After reviewing these records it was apparent that the endorsements were not criminally made. To the extent that the records were produced, they completely exonerated the Strengths. None of the records produced indicated any criminal activity, but completely accounted for the money to which they related. I felt at the time and still feel that our office had been used and that we had been duped into indicting the Strengths.

The criminal charges against the Strengths subsequently were nol prossed on the motion of District Attorney Williams.

The Strengths then filed this complaint against Carroll and Hubert alleging that the defendants conspired, under color of state law, to cause their wrongful indictment and prosecution in deprivation of their rights under the fourth and fourteenth amendments. ¹ The complaint also alleged pendent state causes of action. Both defendants moved for summary judgment. The district court granted the motions concluding that Carroll had absolute immunity for his testimony before the grand jury and, given that immunity, Hubert was not acting under color of state law. 660 F.Supp. 878 (M.D.Ala.1987). The plaintiffs filed a motion to reconsider. The district court then issued another memorandum opinion and order again granting the defendants' motions for summary judgment. In that memorandum opinion, however, the district court amended its prior ruling and held that Hubert was a state actor. 670 F.Supp. 322, 329 (M.D.Ala.1987). Nevertheless, the district court sustained its grant of summary judgment for Hubert on the ground that the alleged acts which preceded the grand jury testimony were not actionable under Sec. 1983. Id. at 329. The Strengths appeal this order.

The first issue for resolution is whether Carroll is entitled to absolute immunity from civil liability based on his grand jury testimony. The district court determined that Carroll was absolutely immune under the rule of Briscoe v. La Hue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). We agree with the district court's analysis.

In Briscoe, the Supreme Court held that a witness has absolute immunity from Sec. 1983 liability based on the substance of his trial testimony. The Court, however, specifically declined to decide whether such absolute immunity extends to testimony in pretrial proceedings such as testimony before the grand jury. 460 U.S. at 328 n. 5, 103 S.Ct. at 1112 n. 5, 75 L.Ed.2d at 103 n. 5. The Strengths maintain that the district court's extension of Briscoe to grand jury testimony is unwarranted because grand jury testimony lacks the procedural safeguards against perjured testimony. ² Although the Strengths argue forcefully that extending Briscoe to grand jury testimony creates the danger of perjury going unpunished, their policy argument does not engage the principal theme of Briscoe --the protection of the judicial proceeding.

The foundation of Briscoe is part history and part policy. Initially, the Court observes that, historically, the "immunity of ... witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law." 460 U.S. at 330-31, 103 S.Ct. at 1113, 75 L.Ed.2d at 105 (emphasis added). The Court then delves into the policy that informs this common law rule of absolute immunity. The first policy consideration is the minimization of witness intimidation which might otherwise discourage witnesses from testifying. Id. at 333. Second, once witnesses do testify, the absolute immunity enhances reliability because those who testify will be less likely to distort their testimony in favor of a future plaintiff in a civil suit for damages. Id. The thread that unites the historical and policy foundations of Briscoe is the preservation of the judicial process. Id. at 334-35, 103 S.Ct. at 1115, 75 L.Ed.2d at 107 (citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)).

At oral argument, the Strengths urged that the lack of procedural protections in the grand jury situation--cross-examination, rebuttal evidence, the presence and representation of counsel--somehow removes grand jury testimony from the realm of judicial proceedings. Moreover, the appellants contended that because the judge is not as closely involved with the grand jury as with a criminal trial, the grand jury is not a judicial proceeding as contemplated by Briscoe. This first argument is belied by the language of Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), cited by the Strengths for the proposition that absolute immunity should not extend to grand jury testimony.

In Malley, the Court held that a police officer who applies for a warrant by complaint and affidavit has only qualified immunity from civil liability under Sec. 1983. However, in so holding, the Court made a crucial distinction between functions that receive absolute immunity and those that receive only qualified immunity:

We have interpreted Sec. 1983 to give absolute immunity to functions 'intimately associated with the judicial phase of the criminal process.' ... We intend no disrespect to the officer applying for a warrant by observing that his action, while a vital part of the administration of criminal justice, is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment.... Thus we shield the prosecutor seeking an indictment [absolutely] because any lesser immunity could impair the performance of a central actor in the judicial process. 475 U.S. at 342-43, 106 S.Ct. at 1097, 89 L.Ed.2d at 279 (citations omitted) (emphasis original).

Although the Court addressed absolute immunity of a prosecutor in the quoted passage, the context of that immunity is vital to our inquiry. A prosecutor seeking an indictment is in the judicial phase of criminal proceedings. It follows, then, that the grand jury, which decides whether to indict, is part of the judicial phase. Therefore, grand jury testimony becomes a "judicial proceeding" under the functional analysis endorsed by Briscoe. 460 U.S. at 342, 103 S.Ct. at 1119, 75 L.Ed.2d at 112.

The Strengths' contention that the grand jury is not a "judicial proceeding" because the judge has a limited role not only runs afoul of the considerations previously discussed in Malley but also ignores the role of the judge in the grand jury process in Alabama. For example, the court both draws and summons grand jurors. Code of Ala. (1975), Sec. 12-16-70. It is empowered to recall and reassemble the grand jury. Id., Sec. 12-16-190. The Court also can require a grand juror to disclose the testimony of any grand jury witness to determine whether perjury has been committed. Id., Sec. 12-16-201. This list does not exhaust the powers that the court may exercise over grand jury proceedings. Therefore, we reject the Strengths' suggestion that the...