Ybarra v. Reno Thunderbird Mobile Home Village, 82-4069

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation723 F.2d 675
Docket NumberNo. 82-4069,82-4069
PartiesBernard Anthony YBARRA, Plaintiff-Appellant, v. RENO THUNDERBIRD MOBILE HOME VILLAGE, et al., Defendants, and Robert E. Rose, District Attorney, Michael E. Malloy, Deputy District Attorney, and County of Washoe, Defendants-Appellees.
Decision Date10 January 1984

Bernard Anthony Ybarra, in pro. per.

David R. Grundy, Hibbs, Roberts & Lemons, Reno, Nev., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before ALARCON, CANBY and REINHARDT, Circuit Judges.

ALARCON, Circuit Judge:

Ybarra appeals from the district court's summary judgment against him in a civil rights action brought under 42 U.S.C. Sec. 1983, for damages and declaratory relief. We affirm.


Ybarra was arrested by Reno police on August 25, 1974 after a shooting in his mobile home. He remained in custody until October 11, 1974 when he was released on bail pending trial.

Malloy, a deputy district attorney for Washoe County, was assigned to the case and prosecuted Ybarra. In his capacity as prosecutor, he was empowered to have the alleged crime scene, the mobile home, secured and preserved as evidence. On or about September 6, 1974 and after the police had completed their investigation of the mobile home, Malloy authorized the release of the mobile home.

On April 15, 1975, Ybarra was convicted of first degree murder and subsequently sentenced to life imprisonment. He is presently serving that sentence.

On September 3, 1976, Ybarra filed a pro se suit seeking damages and declaratory relief pursuant to 42 U.S.C. Sec. 1983 and 28 U.S.C. Secs. 2201-2202. He filed amended complaints on January 26, 1979 and June 10, 1981. He alleged that the defendants had violated his rights by moving his mobile home or by allowing others to tamper with it and his possessions. 1 He claimed damage to the home and a loss of possessions. He also claimed the defendants destroyed or permitted the destruction of exculpatory evidence needed for his defense to the murder charge.

On February 9, 1981, Rose, Malloy and the County of Washoe filed a motion for summary judgment. The motion was reviewed on July 17. On December 30, 1981, the district court entered summary judgment in favor of Rose, Malloy and Washoe County. Ybarra filed a timely notice of appeal.


Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is clearly entitled to prevail as a matter of law. State ex rel. Edwards v. Heimann, 633 F.2d 886, 888 (9th Cir.1980); Real v. Driscoll Strawberry Associates, 603 F.2d 748, 753 (9th Cir.1979). We view the evidence in the light most favorable to Ybarra in order to determine whether there was a genuine issue as to any material fact. Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir.1980); Ramirez v. National Distillers & Chem. Corp., 586 F.2d 1315, 1318 (9th Cir.1978).

A. Malloy

The trial court concluded that, under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), Deputy District Attorney Malloy was protected from damage liability under Sec. 1983 by either absolute or qualified immunity. Ybarra contends that, when Malloy authorized the release of the mobile home, he was acting in an investigative capacity, which warrants only qualified immunity. He also contends that a genuine issue of material fact exists as to whether Malloy is entitled to even qualified immunity. We conclude the district court was correct in holding that Malloy is absolutely immune, as a matter of law, from damages liability under Sec. 1983.

The leading case on the scope of prosecutorial immunity is Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), in which the complaint, filed under Sec. 1983, alleged that the prosecutor knowingly introduced perjured testimony. The Supreme Court held the prosecutor was absolutely immune from a Sec. 1983 suit for damages for his quasi-judicial activity. Id. at 430-31, 96 S.Ct. at 994-95. In so holding, the Court concluded that the public trust of the prosecutor's office would suffer if the prosecutor, in making his or her decisions, were constrained by the threat of potential liability in a suit for damages. Id. at 424-25, 96 S.Ct. at 992-93. The Court relied on a statement by Judge Learned Hand:

As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

Id. at 428, 96 S.Ct. at 994 (quoting Gregorie v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950)). The Court emphasized, however, that criminal sanctions are available to deter prosecutorial misconduct or to punish that which occurs. Id. 424 U.S. at 428-29, 96 S.Ct. at 994.

Absolute prosecutorial immunity exists if the prosecutor acts within the scope of his or her authority and in a quasi-judicial capacity. Id. at 430-31, 96 S.Ct. at 994-95; Beard v. Udall, 648 F.2d 1264, 1271 (9th Cir.1981) (per curiam). The focus of the analysis, particularly under the second prong, is on the nature or function of the prosecutor's activity. See Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-95; Mancini v. Lester, 630 F.2d 990, 992 (3d Cir.1980). If the prosecutor acts as an advocate "in initiating a prosecution and in presenting the state's case," absolute immunity is warranted. Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-95. The Court, however, left open the question of whether absolute immunity attaches to a prosecutor's acts that are functionally administrative or investigative. Id. at 430-31, 96 S.Ct. at 994-95. Beard, 648 F.2d at 1271 n. 8. Thus, we hold that the decision to release evidence, under the circumstances of this case, was an exercise of the prosecutorial function entitled to absolute immunity under the reasoning of Freeman. Freeman on Behalf of the Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir.1983) (per curiam).

Here Ybarra alleged that Malloy knowingly breached his duty to preserve exculpatory material and that such a breach constitutes a denial of due process under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Under the first prong of the test, Ybarra contends that Malloy's action cannot fall within his scope of authority because it is unconstitutional.

The same argument was advanced and rejected in Briggs v. Goodwin, 569 F.2d 10, 15-16 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). There the court correctly concluded that such logic would totally abrogate the immunity doctrine because "any allegation that an official, acting under color of law, has deprived someone of his rights necessarily implies that ... the official exceeded his authority." Id. at 15. As a result, the court held that the proper test for detaining scope of authority is whether the prosecutor performed a kind of act not " 'manifestly or palpably beyond his authority', but rather 'having more or less connection with the general matters committed to his control or supervision.' " Id. at 16 (quoting Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896)). Such a test is consistent with our recent decision in Beard, 648 F.2d at 1271. Applying this guideline here, we conclude that, when Malloy gave the order to release Ybarra's trailer, he was acting well within his authority as a deputy district attorney, empowered to preserve or to release the alleged crime scene as evidence.

Ybarra's second contention concerns the second prong of the test--whether the challenged activity is quasi-judicial. He argues that Malloy is entitled to only qualified immunity because the release of the mobile home was not a quasi-judicial act. In support, Ybarra contends that the release occurred before the start of grand jury proceedings or any other formal incident of prosecution, and that Malloy's order was ministerial.

We conclude first that the precise timing of the release is not dispositive on the question of the nature of the activity. A similar argument was rejected in Briggs because it was recognized that "the advocate's role could entail certain 'actions preliminary to the initiation of a prosecution and actions apart from the courtroom.' " 569 F.2d at 23 (quoting Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33). Secondly, we note that the ministerial-discretionary analysis urged upon us by Ybarra has given way to the functional analysis set forth in Imbler. Id. at 16 n. 7. The proper focus, it must be emphasized, is on the nature of the challenged activity.

Employing this functional analysis, we conclude that Malloy's release of the mobile home was a quasi-judicial act that entitled him to absolute immunity. The fact is that Malloy authorized the release of the home after Ybarra was placed in custody and after the police had concluded their investigation of the alleged crime scene. At that point, the inquiry by Reno police as to whether Malloy wished the mobile home secured and preserved as evidence was directed to Malloy as both an advocate in preparation of his prosecution of Ybarra, and as an officer of the court whose duty to do justice encompassed at least a duty to inform Ybarra of evidence Malloy knew to be exculpatory. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Hence, we need not reach the merits of the Brady question 2 to find Malloy absolutely immune from Sec. 1983 damage liability.

First, we hold that, insofar as Malloy's decision to release the home can be characterized as investigative, as Ybarra contends, our recent decision in Freeman bars relief. In Freeman we held, "[i]nvestigative...

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