Taylor v. Nichols

• Decision Date: 30 June 1977
• Docket Number: No. 76-1275,76-1275
• Citation: 558 F.2d 561
• Parties: Brian TAYLOR, Plaintiff-Appellant, v. H. Michael NICHOLS, Robert L. Pinet, R. Michael Latimer, James Allen, Michael T. Allen, Joe Ferns, Jack E. Davis and Victor E. Warren, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 561

558 F.2d 561

Brian TAYLOR, Plaintiff-Appellant, v. H. Michael NICHOLS, Robert L. Pinet, R. Michael Latimer James Allen, Michael T. Allen, Joe Ferns, Jack E Davis and Victor E. Warren, Defendants-Appellees.

No. 76-1275.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 17, 1977.

Decided June 30, 1977.

Barbara M. Vache, Kansas City, Kan., and Harold V. Matney, Ottawa, Kan. (Clifford R. Roth of Matney & Roth, Chartered, Ottawa, Kan., on the brief), for plaintiff-appellant.

David K. Fromme of Weeks, Thomas, Lysaught, Bingham & Mustain, Chartered, Kansas City, Kan. (Roger D. Stanton of Weeks, Thomas, Lysaught, Bingham & Mustain, Chartered, Kansas City, Kan., and George A. Lowe of Lowe, Terry & Roberts, Olathe, Kan., on the brief), for defendants-appellees H. Michael Nichols, Robert L. Pinet, R. Michael Latimer, James Allen and Michael T. Allen.

N. Jack Brown of Boddington, Brown & Unverferth, Kansas City, Kan., for defendants-appellees Joe Ferns, Jack E. Davis and Victor E. Warren.

Before LEWIS, Chief Judge, and BREITENSTEIN and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is a Section 1983 civil rights action brought by a police officer. The lawsuit grew out of a traffic collision which occurred on January 7, 1975 in Ottawa, Kansas. The defendant-appellee, Michael T. Allen, collided with a stopped car. The plaintiff-appellant, the mentioned police officer, was one of the investigating officers.

On January 13, 1975, Michael T. Allen was apprehended by a police officer of Ottawa, Kansas. He was advised of the outstanding citation issued in connection with the auto collision and was told to accompany the officer to the station to sign an appearance agreement. This Michael T. Allen refused to do. According to the testimony of the officer, Allen stated that the police should wait until he felt it more convenient to go to the station. When this occurrence was reported to headquarters, the superior officer contacted appellant by radio and ordered him to apprehend and detain Michael Allen until the ticket could be brought to the point of detention for Allen to sign. When Allen was apprehended by the appellant, he refused to produce his driver's license and backed away from appellant, who grabbed him by the coat sleeve and moved him toward the police car. Allen refused to get in the car and appellant put him in by force. Allen then produced his driver's license. After that the superior officer came to the scene with the traffic citation. He delivered it to appellant, who explained it to Allen, who then signed the appearance agreement part. Allen left the patrol car, but as he did so he was overheard to say that the appellant had pointed a gun at him, that he had ruined his shirt, and that he did not think that such force was necessary. He also said that appellant had not heard the last of the incident.

Subsequently, Michael Allen's father retained the appellee, Latimer, an attorney, to represent his son. The next day after these occurrences, Michael Allen's mother filed a criminal assault and battery complaint on behalf of her son against appellant.

The police held an internal affairs investigation against Officer Taylor. Attorney Latimer represented Allen in connection with the internal affairs investigation. After the completion of the internal affairs proceedings and the exoneration of appellant, Latimer on or before February 3, 1975, discussed the criminal assault and battery case with the County Attorney, Pinet, who refused to file charges against the appellant. Pinet did, however, appoint Latimer as special prosecutor, but later requested that the County Commissioner do so. Latimer proceeded to bring criminal charges against appellant and had him arrested.

Under the relevant Kansas statutes, Chapter 19, Article 7, Section 19-717, the County Attorney lacked authority to appoint a special prosecutor. However, the County Commissioners under K.S.A. 19-723 did have such authority.

The County Commissioners appointed Latimer as the special prosecutor in accordance with the cited statute. Their affidavit states that it occurred on February 3, 1975. Taylor maintains that the correct date was February 27, the second day of trial. We regard this dispute as immaterial. Taylor was charged by Latimer, acting as special prosecutor, with assault and battery under Kansas law. Appellant was arrested, detained and finally released on personal bond. Trial was started on February 10. It was completed on February 27, at which time the appellant was acquitted.

On February 14, 1975, the instant civil rights action was filed by the appellant as plaintiff in the Federal District Court.

On February 11, 1976, the court granted the motion to dismiss on behalf of the defendants, treating it, however, as a motion for summary judgment because of the presentation of factual matter, exhibits and affidavits. In essence, the trial court ruled that the complaint failed to allege the deprivation of a substantial federal right and that the complaint was full of conclusions with respect to the alleged violation of the Fifth and Fourteenth Amendments. The court mentioned specifically that the alleged injury to the appellant's reputation was not actionable under the Civil Rights Act. Further, that the allegation of deprivation of a public right was insufficient. At most he had a temporary suspension with pay which did not constitute an absolute deprivation. The trial court concluded that the complaint failed to state a claim under Sections 1983, 1985 or 1986, 42 U.S.C.

Reduced to its lowest terms, the plaintiff's complaint is that there was a misuse of state process as a result of the improper appointment of attorney Latimer and the prosecution by Latimer of a criminal action which was entirely lacking in merit. It would appear that the plaintiff is complaining of abuse of process or malicious prosecution.

We must determine whether the trial court erred in granting summary judgment. This calls for a decision as to whether the plaintiff has under the pleadings and the record established a prima facie liability against the Judge, H. Michael Nichols; the County Attorney, Robert L. Pinet; the attorney, R. Michael Latimer; James Allen, the father of the boy who was arrested; and the young man who was arrested, Michael T. Allen.

The case against Latimer as the appointed prosecuting attorney is distinct and somewhat different from the cases against the three County Commissioners: Ferns, Davis and Warren. The difference is that Latimer as the appointed prosecutor is entitled to somewhat broader immunity than that enjoyed by Ferns, Davis and Warren, the Commissioners.

Michael T. Allen, whose conduct gave rise to the litigation, cannot be held liable under the Civil Rights Act for the reason that he did not act under color of state law. Section 1983 requires this. The same is true of the father, James Allen. The tort case of malicious prosecution is not coterminous in its elements with a civil rights suit based upon misuse of the process. True, the same facts could give rise to violations under both federal and state law, but color of state law would have to be present in order to have a civil rights case. Because of the lack of state action, the judgment dismissing the complaint as to the Allens must be and is summarily affirmed.

The acts of filing a claim and testifying at trial do not constitute state action. These are private acts. Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975).

We must consider the case of Ferns, Davis and Warren separately from that of Pinet and T. Michael Latimer. This is because the facts as well as the law applicable to Ferns, Davis and Warren differ substantially from the facts and law governing the Latimer and Pinet cases.

The trial court's judgment of dismissal was based, for the most part, on the insufficiency of Officer Taylor's claim under the Federal Civil Rights Act. We affirm the judgments of dismissal. We do so in some instances on grounds different from those adopted by the trial court.

I.

Was the dismissal of Officer Taylor's case against attorney Latimer valid? We conclude that it was.

The legal issue is whether or not Latimer, a special prosecutor, is entitled to the same immunity that the county attorney would have. Latimer on or about February 3, 1975 approached the County Attorney, Pinet, and told him of his desire to have Taylor prosecuted. Pinet declined to do so. However, he appointed Latimer as special prosecutor. Later, it was learned that he did not have the authority to make such an appointment and that it had to be made by the Board of County Commissioners. Thereupon, the Commissioners signed the appointment. Meanwhile, on February 3, 1975, Latimer filed, on behalf of the State of Kansas, a criminal complaint charging Taylor with assault and battery of Michael Allen, an alleged violation of K.S.A. 21-3408 and 21-3412.

The relatively recent decision of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), decided the question whether a district attorney or prosecutor enjoys absolute immunity from a civil action resulting from discharge of his official duties. The Supreme Court held that he does. In so holding it cited the policy reasons for extending absolute immunity to the district attorney saying that he is called upon to make quick decisions and that his work is of the greatest importance to the public and that he would be handicapped severely if he did not have immunity of the same kind that is given to the judge. The Court made note of some limitations (not important to the present discussion).

The case in which this Imbler decision was rendered involved a murder prosecution and conviction. Pachtman was the district attorney. At the trial the death penalty was imposed, but later this was reduced to life in prison. After the trial, Pachtman wrote to the Governor describing evidence which he said had recently surfaced...