Elder v. Athens-Clarke County, GA

United States Court of Appeals,

Eleventh Circuit.

No. 94-8033.

Michael ELDER, Plaintiff-Appellee,

v.

ATHENS-CLARKE COUNTY, GEORGIA, Through Gwen O'LOONEY in her
official capacity as CEO of Athens-Clarke County; Jerry Massey,
individually and in his official capacity as Sheriff of Athens-
Clarke County; Linda Lyons, individually and in her official
capacity as Chief Deputy Sheriff of Athens-Clarke County; Sergeant
Horace Witcher, individually and in his official capacity as Deputy
Sheriff of Athens-Clarke County; Deputy Bryan Thompson,
individually and in his official capacity as Deputy Sheriff of
Athens-Clarke County; Deputy Elizabeth Benford, individually and
in her official capacity as Deputy Sheriff of Athens-Clarke County;
Deputy Shannon Westbrook, individually and in his official capacity
as Deputy Sheriff of Athens-Clarke County; Captain James Brown,
individually and in his official capacity as Deputy Sheriff of
Athens-Clarke County; John Doe, individually and in official
capacity as Deputy Sheriff of Athens-Clarke County; Jane Doe,
individually and in official capacity as Deputy Sheriff of Athens-
Clarke County; Defendants,

Gerald W. Brown, individually and in his official capacity as
Chief Assistant District Attorney for Athens-Clarke County,
Defendant-Appellant.

June 9, 1995.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 3:93-00027-CV-ATH(DF), Duross
Fitzpatrick, Chief Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN*, Senior
Circuit Judge.

GOODWIN, Senior Circuit Judge:

Elder suffered a severe beating at the hands of his jailers

and sued for damages under 42 U.S.C. § 1983, naming Gerald W.

Brown, a Georgia prosecutor, among other law-enforcement

defendants. Elder alleged that Brown conspired to maliciously

*
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
the Ninth Circuit, sitting by designation.
prosecute Elder for obstruction of justice in an effort to cover up

Elder's beating. Brown moved to dismiss on the basis of

prosecutorial immunity. The district court denied the motion and

Brown appeals.

We have jurisdiction of an appeal of an interlocutory order

denying a motion to dismiss based on immunity from suit. Nixon v.

Fitzgerald, 457 U.S. 731, 742-743, 102 S.Ct. 2690, 2697-98, 73

L.Ed.2d 349 (1982). We reverse.

A prosecutor's decision to bring charges against a person, so

long as the prosecutor is acting within the scope and territorial

jurisdiction of his office, is immune from an action for damages

under § 1983. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47

L.Ed.2d 128 (1976). In that case the Supreme Court stated that

prosecutorial immunity to § 1983 suits is derived from judicial

immunity.

In Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir.1985) (en

banc) we held that judges having subject matter jurisdiction of a

case are immune from damage actions under § 1983 even where the

claims are based on charges of conspiracy in their rulings. If

calling a judge's allegedly wrongful decision a conspiracy does not

strip the judge of absolute immunity, calling a prosecutor's

allegedly wrongful decision to prosecute a conspiracy does not

strip the prosecutor of absolute immunity. All of our sister

circuits that have examined the question agree that the same rule

that applies to judges applies to prosecutors acting within the

scope of their authority as prosecutors. See, e.g., Ashelman v.

Pope, 793 F.2d 1072, 1078 (9th Cir.1986) (en banc) (overruling
earlier cases narrowly applying immunity, and following Dykes v.

Hosemann, supra). We hold that the allegation that a challenged

official act is part of a conspiracy does not in any manner dilute

immunity.

The district court ruled that Brown's alleged misconduct took

place prior to the judicial phase of the criminal process, assuming

for the purposes of the motion that the prosecutor, in fact,

conspired with the jailers to cover up their conduct by filing a

diversionary prosecution against this plaintiff. The district

court therefore concluded that only qualified immunity shields

Brown in this action; and because the complaint alleges malicious

conduct, qualified immunity offers no protection.

The district court's order does not tell us what Brown did in

furtherance of this conspiracy other than to charge Elder

improperly. ER Tab 5, p. 4. Elder's brief argues that Brown

participated in the conspiracy by refusing Elder's request to

investigate the alleged beating. Assuming for the purposes of the

motion that Brown did fail to investigate Elder's written complaint

of a beating, that fact would not strip Brown of prosecutorial

immunity in Elder's action for damages flowing from Brown's

decision to initiate Elder's prosecution.

If prosecutorial immunity means anything, it means that

prosecutors who take on the thankless task of public prosecution

may prosecute, ably or poorly, as the case may be, answerable to

the voters, and to disciplinary officers of the courts and of the

bar; but not answerable to every person wrongfully prosecuted who

can find a lawyer willing to allege that the prosecutor filed
charges in bad faith, or for evil motives, or as a conspirator.

See, e.g. Stump v. Sparkman, 435 U.S. 349, 355-356, 98 S.Ct. 1099,

1104, 55 L.Ed.2d 331 (1978) (immunity of judge authorizing

sterilization of unconsenting female as part of a conspiracy to

deprive her of future motherhood).

The complaint alleges that "Brown ... attempted to secrete

Plaintiffs [sic] injuries from discovery by way of isolation and

segregation." ER, Tab 2, p. 8. Brown's role in the alleged

misconduct of others in the hiding of evidence is not disclosed by

the plaintiff's case. Accordingly, we need not reach the question

whether a prosecutor would have the protection of immunity if facts

were alleged, and proof offered, of prosecutorial hiding of

evidence, or other misconduct, while acting outside the scope of

his prosecutorial authority. Because the essence of Elder's

complaint is an alleged cover-up by way of malicious prosecution,

and not a cover-up by way of off-duty misconduct outside the scope

of his prosecutorial duties, we limit our review to the case made

by the pleadings and motion papers. On this record, it was error

to deny Gerald W. Brown, prosecuting attorney, the immunity which

Imbler v. Pachtman extends to prosecutors as well as to judges. As

to Brown, the case should have been dismissed.

REVERSED.