Carey v. Okubo

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 14, 2005
FOR THE TENTH CIRCUIT
Clerk of Court

PATRICIA ANN CAREY,

Plaintiff-Appellant,
No. 04-1516
v. (D.C. No. 04-M-1606 (PAC))
(D. Colo.)
AMY OKUBO; WILLIAM WOOD,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 Plaintiff-appellant Patricia Ann Carey is appealing the order entered by the

district court dismissing her civil rights complaint under Fed. R. Civ. P. 12(b)(6).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

A. Introduction.

We review the district court’s grant of a motion to dismiss de novo,

accepting all well-pleaded facts as true and viewing them in the light most

favorable to Carey. See Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d

1226, 1236 (10th Cir. 1999). Having conducted the required de novo review, we

have concluded that the district court did not err in dismissing Carey’s complaint

for failure to state a claim upon which relief can be granted. We reach this

conclusion based on our determination that the district court correctly determined

that defendants are entitled to absolute prosecutorial immunity with regard to

Carey’s claim that they violated her Fourth Amendment rights. 1

B. Carey’s Complaint.

In her complaint, Carey alleged as follows:

2. Defendant Amy Okubo is a . . . Deputy District Attorney in
[Boulder County, Colorado]. Although Amy Okubo has acted in a
prosecutorial capacity with respect to the Plaintiff, liability is

1
Because we have determined that defendants are entitled to absolute
prosecutorial immunity, we do not need to address the issue of qualified
immunity.

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asserted herein for that portion of her participation as a witness under
Kalina v. Fletcher, 522 U.S. 118 (1997). . . .

3. Defendant William Wood is . . . employed by Boulder
County Community Services as a case manager providing pretrial
supervision to persons charged in [Boulder County] with criminal
offenses. . . . [T]he claims herein are based upon the conduct of
William Wood in all aspects with regard to the preparation of the
request for the two arrest warrants for alleged violation of bail bond
conditions.

....

5. On June 22, 2004, Plaintiff Patricia Carey was admitted to
bail in Boulder County District Court case number 02CR1297 and
02CR1866 with a bond condition that Plaintiff not consume non-
prescribed drugs while on bond. Pursuant to the conditions of said
bail bonds, Plaintiff was subjected to the supervision of Boulder
County Community Justice Services and assigned to William Wood.

6. Boulder County Community Justice Services and William
Wood, [were] aware that the amino enzyme screening done to
analyze the urine tests it was administering were not sufficiently
reliable to be accepted for evidentiary purposes in judicial
proceedings, and had been specifically told by James Ruth, Ph.D. that
“You can’t send People to prison on these test results without
obtaining a confirmatory test by Gas Chromotography-Mass
Spectrometry.”

7. On June 30, 2004, Plaintiff provided a urine sample which
ultimately tested potentially positive for metabolites of cocaine by
screening amino-enzyme inventories, indicating the need to order
confirmatory testing. Knowing that a confirmatory test was
necessary to obtain any judicially admissible result, on July 13, 2004,
William Wood prepared [] “Community Justice Services
Noncompliance Report[s]” and submitted [them] to the District
Attorney’s office, requesting arrest warrants for a bond revocation.
Although William Wood was aware that subsequent urine testing had
come back below threshold and that the test used [was] not accepted
in the scientific community as reliable to confirm the use of cocaine,

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 the “Community Justice Services Noncompliance Report[s]” failed to
remind the District Attorney that the test[] [was] not viewed as
sufficiently reliable for use in evidence.

8. On July 13, 2004, Amy Okubo, acting as a witness, verified
[identical] motion[s] to revoke the bail bond of Patricia Carey, in
Boulder County District Court case number 02CR1297 and
02CR1866, testifying,

The defendant is on bond for a class three felony
Possession with Intent to Sell and Sale of a Schedule II
Controlled Substance. As a condition of the defendant’s
bond she is to consume no drugs. On June 30, 2004,
eight days after the defendant first appeared in custody
at the Boulder County Jail, she tested positive for the
presence of cocaine in a urine sample. Cocaine
metabolites are not normally present in urine samples
seventy-two hours (three days) after last usage. In this
case the metabolites were present eight days later. See
attached documentation from Community Justice
Services.

Said verified motion[s] recklessly omitted the fact that . . . the test
was not of evidentiary value . . . . The reckless omission of
exculpatory facts from the verified motion[s] rendered the verified
motion[s] constitutionally false under Stewart v. Donges, 915 F.2d
572, 583 (Tenth Cir. 1990). 2

9. A arrest warrant[s] with no bond [were] issued on the
verification[s] of Amy Okubo and Patricia Ann Carey was arrested
on July 14, 2004. Patricia Ann Carey was held without bond until
July 26, 2004, when the Verified Motion[s] to Revoke Bond [were]
heard [and denied] by the district court. 3 Patricia Ann Carey was

2
Carey also alleged that the verified motions recklessly omitted other facts,
but she is not pursuing those omission claims in this appeal.
3
At the conclusion of the hearing on July 26, 2004, the Boulder District
Court denied the verified motions to revoke bond. The court denied the motions
(continued...)

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 forced to incur $6,093.46 in defense charges, including $2,950.00 in
expert witness fees and suffered loss of her liberty by spending
twelve days in jail.

....

13. William Wood and Amy Akubo sought an arrest warrant
for the arrest of Patricia Ann Carey through the sworn testimony of
Amy Okubo, which testimony was materially false, and omitted
material exculpatory facts. Said conduct violated Patricia Carey’s
right, pursuant to the Fourth Amendment to the Constitution of the
United States to be free from unreasonable arrest or seizure . . . . 4

Aplt. App. Vol. 1 at 4-7.

C. District Court’s Rulings.

The district court granted defendants’ motion to dismiss at the conclusion

of a hearing on the motion, ruling from the bench as follows with regard to the

issue of absolute prosecutorial immunity:

And here is my ruling. I’m granting the motion to dismiss on
three separate grounds.

....

The third is I believe that this is subject to absolute
[prosecutorial] immunity. I don’t think the special circumstances
that the Supreme Court relied on in the Kal[i]na against Fletcher case
are comparable to this case. In that case, there was, by the assistant

3
(...continued)
because Carey presented unrebutted expert testimony establishing that defendants
were relying on an initial drug screening test that was not sufficiently reliable to
confirm a positive cocaine test. See Aplt. App., Vol. 1 at 76; Vol. 3 at 431-36.
4
Carey also asserted a due process claim, but she has abandoned that claim
for purposes of this appeal.

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 district attorney in that case, false information provided. Now, it
happened to be both omission and commission falsity, but the
conduct of the defendant in that case is different from the conduct of
the defendants in this case, so the case is not applicable in my
opinion.

Id., Vol. 3 at 478.

D. Undisputed Matters.

Before proceeding to analyze the merits of Carey’s Fourth Amendment

claim, we note that neither side disputes that: (1) Wood was acting as an agent of

the Boulder County District Attorney’s office in his capacity as a pretrial case

manager; (2) Wood was performing a prosecutorial function when he submitted

the noncompliance reports to the Boulder County District Attorney’s office and

recommended that Carey be arrested and taken into custody for violating her bond

conditions; and (3) Wood’s alleged knowledge of what Dr. James Ruth allegedly

said about the test procedures at issue here is imputed to the Boulder County

District Attorney’s office and, more specifically, to Deputy District Attorney

Okubo. We will therefore analyze the absolute immunity issue within this

framework.

II.

A. Defendant Okubo’s Verified Motions.

As set forth in Carey’s complaint, defendant Okubo signed the

“Verification” for the two verified motions to revoke bond that she submitted to

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the Boulder District Court. Specifically, Okubo “[swore] and affirm[ed] that the

[facts set forth in the motions were] true and accurate to the best of [her]

information and belief.” Aplt. App., Vol. 1 at 101; Vol. 2 at 235. The facts

sworn to included the following:

On June 30, 2004, eight days after the defendant first appeared in
custody at the Boulder County Jail, she tested positive for the
presence of cocaine in a urine sample. Cocaine metabolites are not
normally present in urine samples seventy-two hours (three days)
after last usage. In this case the metabolites were present eight days
later. See attached documentation from Community Justice Services.

Id.

The “FINAL REPORT” from Forensic Laboratories was among the

documents that were attached to the verified motions, and the report stated that

“Cocaine SQ” was detected by “POSITIVE CONFIRMATORY SCREEN BY

EIA.” Id., Vol. 1 at 105; see also id., Vol. 2 at 239. As set forth in defendants’

brief, the acronym “EIA” refers to a specific type of drug test known as the

“enzyme immunoassay test.” Aplee. Br. at 1. In her complaint, Carey refers to

this test as “amino enzyme screening,” Aplt. App., Vol. 1 at 5, ¶ 6, and we will

refer to it herein as the “EIA test” to avoid confusion.

B. Absolute Prosecutorial Immunity.

Colo. Rev. Stat. § 16-4-107(4) provides as follows:

Upon verified application by the district attorney stating facts or
circumstances constituting a breach or a threatened breach of any of
the conditions of a bond, the court may issue a warrant commanding

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 any peace officer to bring the defendant without unnecessary delay
before the court for a hearing on the matters set forth in the
application.

Defendants claim that this statute requires that an application to revoke a

bond must be verified by the district attorney, as opposed to some other “fact

witness,” and that this statutory requirement distinguishes the situation in this

case from the situation in Kalina v. Fletcher, 522 U.S. 118 (1997). See Aplee. Br.

at 16-17; Kalina, 522 U.S. at 129 (“Although [Washington] law required that [an

affidavit in support of an arrest warrant must] be sworn or certified under penalty

of perjury, neither federal nor state law made it necessary for the prosecutor to

make that certification.”). Defendants also claim that this case is distinguishable

from Kalina because, unlike the situation in Kalina, the sworn verifications at

issue in this case do not contain any false statements of fact. See Aplee. Br. at 9.

In Kalina, the Supreme Court addressed “[t]he question [of] whether

42 U.S.C. § 1983 creates a damages remedy against a prosecutor for making false

statements of fact in an affidavit supporting an application for an arrest warrant,

or whether . . . such conduct is protected by ‘the doctrine of absolute

prosecutorial immunity.’” Kalina, 522 U.S. at 120. In addressing this issue, the

Court began its analysis by pointing out that “acts undertaken by a prosecutor in

preparing for the initiation of judicial proceedings or for trial, and which occur in

the course of his role as an advocate for the State, are entitled to the protections

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of absolute immunity.” Id. at 126 (quotation omitted). The Court also noted,

however, that “the defense [of absolute immunity is not available] when the

prosecutor was performing a different function.” Id. “Thus, in determining

[absolute] immunity, [a court must] examine the nature of the function performed,

not the identity of the actor who performed it.” Id. at 127 (quotation omitted).

Applying these principles, the Court then analyzed the absolute immunity

issue in Kalina as follows:

[P]etitioner argues that the execution of the [certification for
determination of probable cause] was just one incident in a
presentation that, viewed as a whole, was the work of an advocate
and was integral to the initiation of the prosecution. That
characterization is appropriate for her drafting of the certification,
her determination that the evidence was sufficiently strong to justify
a probable-cause finding, her decision to file charges, and her
presentation of the information and the motion to the court. Each of
those matters involved the exercise of professional judgment. . . .
But that judgment could not affect the truth or falsity of the factual
statements themselves. Testifying about facts is the function of the
witness, not of the lawyer. No matter how brief or succinct it may
be, the evidentiary component of an application for an arrest warrant
is a distinct and essential predicate for a finding of probable cause.
Even when the person who makes the constitutionally required “Oath
or affirmation” is a lawyer, the only function that she performs in
giving sworn testimony is that of a witness.

....

[W]e . . . hold that § 1983 may provide a remedy for respondent
insofar as petitioner performed the function of a complaining
witness. We do not depart from our prior cases that have recognized
that the prosecutor is fully protected by absolute immunity when
performing the traditional functions of an advocate.

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Id. at 130-31. The Court therefore agreed with the district court and the Ninth

Circuit that the prosecutor in Kalina “was not entitled to absolute immunity.” Id.

at 122.

As set forth above, there is no question that Okubo vouched for the truth of

the facts that were set forth in the verified motions to revoke bond, and we do not

agree with defendants’ argument that Colo. Rev. Stat. § 16-4-107(4) requires that

an application to revoke a bond must be verified by the district attorney. In

addition, even if the statute could be construed to require such a result, we do not

believe the absolute immunity analysis should turn on whether the controlling

state law requires a prosecutor to provide a sworn verification. That said, we

nonetheless conclude that Kalina is distinguishable, and that the district court

correctly determined that Okubo is entitled to absolute prosecutorial immunity

with regard to her conduct in presenting the lab report from Forensic Laboratories

to the Boulder District Court.

To begin with, as pointed out by defendants, unlike the situation in Kalina,

there is no allegation here that the verified motions to revoke bond contained any

false statements of fact. To the contrary, it is undisputed that the urine sample

that Carey provided on June 30, 2004 tested positive for cocaine according to the

lab report provided by Forensic Laboratories. See Aplt. App., Vol. 1 at 105; Vol.

2 at 239. We also reject Carey’s argument that Kalina applies here because

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Okubo allegedly omitted material information from the verified motions

concerning the scientific reliability of the EIA test procedure. Simply put, while

Okubo did indeed vouch for the truth of the facts set forth in the verified motions,

her statements did not vouch for the scientific reliability of the EIA test

procedure. Instead, the scientific reliability of the EIA test procedure was an

issue for the Boulder District Court to decide, and, in fact, the court subsequently

decided the issue in favor of Carey when it denied the verified motions to revoke

bond at the hearing that was held on July 26, 2004. Id., Vol. 1 at 76; Vol. 3 at

431-436.

Finally, because he did not personally vouch for the truth of any of the

factual matters that were set forth in the noncompliance reports, id., Vol. 1 at 103;

Vol. 2 at 237, and because it is undisputed that he was performing a prosecutorial

function, we also conclude that the district court correctly determined that Wood

is entitled to absolute prosecutorial immunity for his conduct in this case.

The judgment of the district court is AFFIRMED. The parties’ requests for

oral argument are DENIED.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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