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.