Guzman Rivera v. Rivera Cruz

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2281

HECTOR GUZMAN-RIVERA, ET AL.,

Plaintiffs, Appellees,

v.

HECTOR RIVERA-CRUZ, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, Senior U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Jose R. Gaztambide, with whom Luis A. Plaza and Elisa Bobonis

Lang were on brief for appellants.

Victoria A. Ferrer, with whom Alvaro R. Calderon, Jr. and Alvaro

R. Calderon, Jr. Law Offices were on brief for appellees.

May 31, 1995

BOWNES, Senior Circuit Judge. This is the second
BOWNES, Senior Circuit Judge.

time that this civil rights action has been before us. After

being arrested, convicted, and imprisoned for a murder that

he did not commit, plaintiff-appellee Hector Guzman Rivera

(joined by several family members) sued the Secretary of

Justice of Puerto Rico and two other Justice Department

officials under 42 U.S.C. 1983, alleging that the

defendants failed to timely reinvestigate the facts of the

murder after his conviction, and that they failed to move for

his release even after their investigation had established

his innocence.

In Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3 (1st

Cir. 1994) (Guzman I), we reversed the district court's

dismissal of Guzman's suit on statute of limitations grounds.

The defendants did not assert absolute immunity as an

alternative ground for affirmance, although that defense had

been raised below. On remand, just six days before trial was

scheduled to begin, the defendants filed an "Urgent Motion

for Relief" seeking summary judgment on absolute immunity

grounds. We are left to wonder why absolute immunity was

originally pled as a defense, abandoned in the initial

appeal, and then resurrected as an emergency on remand.

The district court nevertheless denied the motion

on the merits, finding genuine issues of material fact as to

the nature of the defendants' post-conviction activities. We

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therefore do not consider the absolute immunity defense

waived; it is the sole issue on appeal. From the facts

presented in this appeal, we find that the defendants are not

entitled to absolute immunity for any delays or inadequacies

in their conduct of the investigation. We also find,

however, that they are absolutely immune for their post-

investigation failure to go into court to seek Guzman's

release.

I.

We shall assume, as we did in Guzman I, 29 F.3d at

5, that the plaintiffs' allegations regarding the defendants'

authority, duties, acts and omissions are true, and that they

are sufficient to allege a violation of federal rights. See

Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2609 (1993).

Guzman was convicted of a 1987 murder in Carolina,

Puerto Rico, and sentenced to 119 years' imprisonment on June

27, 1989. Beginning on August 21, 1989, his father, Guzman

Fernandez, repeatedly corresponded with or met with the

defendants: Hector Rivera Cruz, the Secretary of Justice

(Puerto Rico's equivalent of a state attorney general); Luis

Feliciano Carreras, Director of the Justice Department's

Prosecutor's Office and a high-ranking official of the Civil

Rights Division; and Carreras' successor, Pedro Geronimo

Goyco. Based on his own investigation, which yielded powerful

evidence that his son was innocent, Guzman Fernandez

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requested that defendant Luis Feliciano Carreras order a

reinvestigation of the murder. Carerras referred the matter

to an attorney with the Civil Rights Division, but refused to

do anything more.

After several months of stonewalling, the Civil

Rights Division finally investigated Guzman's case.

Investigators interviewed three of the true murderer's co-

conspirators, who unanimously stated that Guzman was

innocent. The head of the Civil Rights Division reviewed the

findings of the investigation and concluded that Guzman was

innocent. Defendants Pedro Geronimo Goyco and Hector Rivera

Cruz refused, however, to move for Guzman's release until the

murderer was captured.

On June 11, 1990, Guzman Fernandez told of his

son's plight on Puerto Rico television. Several days later,

he appealed to the Governor of Puerto Rico. The Governor

allegedly ordered defendant Geronimo Goyco to release Guzman.

The defendants instructed Guzman's attorneys to file a motion

for a new trial under Rule 192.1 of the Puerto Rico Rules of

Criminal Procedure. The motion was filed on June 15, 1990,

and Guzman was released the same day.

II.

Qualified immunity is the defense ordinarily

available to public officials who are sued under 42 U.S.C.

1983. Absolute immunity, by contrast, is reserved for the

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"'special functions'" of certain officials that resemble

functions that would have been immune at common law when

1983 was enacted. Buckley, 113 S. Ct. at 2613 (quoting Butz

v. Economou, 438 U.S. 478, 508 (1978)). In determining

whether a particular act fits within the common-law tradition

of absolute immunity, the Supreme Court takes a "functional

approach," Burns v. Reed, 500 U.S. 478, 486 (1991), examining

"'the nature of the function performed, not the identity of

the actor who performed it.'" Buckley, 113 S. Ct. at 2613

(quoting Forrester v. White, 484 U.S. 219, 229 (1988)).

Under the functional approach, it is immaterial

that the defendants were prosecutors ex officio. Absolute

immunity protects the prosecutor's "'role as advocate for the

State,'" and not his or her role as an "'administrator or

investigative officer.'" Burns, 500 U.S. at 491 (quoting

Imbler v. Pachtman, 424 U.S. 409, 430-31, 431 n.33 (1976)).

Prosecutorial conduct is absolutely immune only if it is

"intimately associated with the judicial phase of the

criminal process . . . ." Imbler, 424 U.S. at 430-31

(holding that state prosecutor had absolute immunity for the

initiation and pursuit of a criminal prosecution, including

presentation of the state's case at trial). See also

Buckley, 113 S. Ct. at 2614; Celia v. O'Malley, 918 F.2d

1017, 1019 (1st Cir. 1990) ("a prosecutor enjoys absolute

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immunity from suit based on actions taken pursuant to his

quasi-judicial function").

We begin by dividing the defendants' challenged

conduct into two phases: (1) the delay in performing the

post-trial investigation, including any inadequacies in the

investigation itself; and (2) the failure to go to court to

obtain Guzman's release after the investigation had

established his innocence. As the defendants moved from (1)

to (2), and as the evidence of Guzman's innocence mounted,

their acts became increasingly associated with the judicial

phase of the criminal process. To illustrate: once Guzman's

innocence was established, the defendants could obtain his

release only by filing a motion to dismiss the criminal

action, or by acquiescing in Guzman's own motion for a new

trial. Looking backwards from this endpoint, we might

characterize (1), the post-trial investigation, as a

preparatory step for (2), the in-court exercise of the

prosecutorial function.

The defendants seem to think that absolute immunity

extends to all conduct that facilitates the prosecutorial

function. The functional analysis, however, requires us to

draw a line between preparatory conduct that is merely

administrative or investigative, and that which is itself

prosecutorial. For example, some, but not all, of the

prosecutor's preparatory acts in initiating a prosecution and

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presenting the State's case are absolutely immune. See

Imbler, 424 U.S. at 431 n.33; Burns, 500 U.S. at 492-96 (no

absolute immunity for prosecutor's legal advice to police

that there was probable cause for an arrest); Buckley, 113 S.

Ct. at 2615-17 (no absolute immunity for prosecutors'

conspiracy to manufacture false evidence that was later

introduced at grand jury proceedings and at trial, or for a

prosecutor's out-of-court statements to the press). Cf.

Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th

Cir. 1991) ("[A]bsolute immunity may attach even to . . .

administrative or investigative activities when these

functions are necessary so that a prosecutor may fulfill his

function as an officer of the court.") (emphasis added;

citations and internal quotation marks omitted). The

prosecutorial nature of an act does not spread backwards like

an inkblot, immunizing everything it touches. See Burns, 500

U.S. at 495 ("Almost any action by a prosecutor, including

his or her direct participation in purely investigative

activity, could be said to be in some way related to the

ultimate decision whether to prosecute, but we have never

indicated that absolute immunity is that expansive.").

We do not think that absolute immunity should

extend to the preparatory conduct in this case. The

investigators of the Civil Rights Division, whose actions

have been imputed to the defendants, actively gathered and

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corroborated evidence of Guzman's innocence. These are

functions typically performed by police officers and

detectives. By contrast, the prosecutor-as-advocate

"evaluat[es] evidence and interview[s] witnesses as he

prepares for trial . . . ." Buckley, 113 S. Ct. at 2616

(emphasis added). It is not the prosecutor's usual office to

uncover evidence in the first instance, before s/he has cause

to initiate a post-trial judicial proceeding. And to the

extent that prosecutors do so act, they are not performing a

function "intimately associated with the judicial phase of

the criminal process . . . ." Imbler, 424 U.S. at 430

(emphasis added).

Our functional analysis draws upon Buckley, a pre-

trial immunity case, in which the Supreme Court denied

absolute immunity to prosecutors who had conspired to

manufacture false evidence before there was probable cause to

arrest the suspect. "When a prosecutor performs the

investigative functions normally performed by a detective or

police officer, it is neither appropriate nor justifiable

that, for the same act, immunity should protect the one and

not the other." Id. at 2616 (citation and internal quotation

marks omitted). The prosecutors in Buckley were not

functioning as advocates for the state, but in an "entirely

investigative" capacity, inasmuch as they lacked probable

cause to arrest the suspect or initiate judicial proceedings

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during that period. Id. "A prosecutor neither is, nor

should consider himself to be, an advocate before he has

probable cause to have anyone arrested." Id.

This case mirrors Buckley in the post-trial

context. It is undisputed on appeal that no post-conviction

proceeding was pending at the time of the civil rights

investigation. Although the investigation ultimately gave

the defendants cause to move to reopen the criminal

proceedings -- i.e., to resume their role as "advocate[s] for

the [Commonwealth]," Imbler, 424 U.S. at 431 n.33 -- this was

only one of several possible outcomes. The investigation

might have found nothing at all. Or, it might have exposed

evidence of prosecutorial misconduct, such as the withholding

of potentially exculpatory material, but no conclusive

evidence of Guzman's innocence. Neither result would require

the defendants to perform a quasi-judicial function in

Guzman's case. Only with the benefit of hindsight can the

defendants marry the investigation to the exercise of a

quasi-judicial function. See Buckley, 113 S. Ct. at 2616

(noting that prosecutors lacked "probable cause . . . to

initiate judicial proceedings" during period of their

challenged conduct). Accordingly, the civil rights

investigation had only an attenuated and contingent, as

opposed to "intimate[]," association with the judicial phase

of the criminal process. Imbler, 424 U.S. at 430.

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We note several other reasons for not extending

absolute immunity to any delays or inadequacies in the civil

rights investigation. First, "the official seeking absolute

immunity bears the burden of showing that such immunity is

justified for the function in question." Burns, 500 U.S. at

486. The defendants here have not identified any historical

or common-law support for extending absolute immunity to the

conduct of a civil rights investigation that is only

contingently associated with the judicial phase of the

criminal process. "Absent a tradition of immunity comparable

to the common-law immunity from malicious prosecution," the

Supreme Court has "not been inclined to extend absolute

immunity from liability under 1983." Id. at 493 (citing

Malley v. Briggs, 475 U.S. 335, 342 (1986)).

Second, to the extent that the defendants were

functioning as officials of the Civil Rights Division, they

were not acting purely as advocates for the Commonwealth, but

partly to vindicate Guzman's civil rights. The mixed purpose

of the civil rights investigation reflects the defendants'

own mixed functions. This factor also tends to separate

their conduct from the judicial phase of the criminal

process.

Third, had the defendants been civil rights

officials only, it seems unlikely that they would be entitled

to absolute immunity for the investigation itself. The

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defendants should not enjoy absolute immunity for the same

conduct merely because they happen also to direct the

Prosecutor's Office. Cf. Burns, 500 U.S. at 495 (finding it

"incongruous to allow prosecutors to be absolutely immune

from liability for giving advice to the police, but to allow

police officers only qualified immunity for following the

advice"); Buckley, 113 S. Ct. at 2617 n.6 ("If the police,

under the guidance of the prosecutors, had solicited the

allegedly 'fabricated' testimony . . . they would not be

entitled to anything more than qualified immunity."); Houston

v. Partee, 978 F.2d 362, 367 (7th Cir. 1992) (prosecutors

who, acting solely as investigators, acquired and withheld

exculpatory evidence after their role in the prosecution had

ended, are "not entitled to any more immunity than the

defendant police officers"), cert. denied, 113 S. Ct. 1647

(1993).

Finally, although every denial of absolute immunity

potentially exposes prosecutors to additional litigation, our

analysis cannot be driven by "a generalized concern with

interference with an official's duties . . . ." Burns, 500

U.S. at 494. "Absolute immunity is designed to free the

judicial process from the harassment and intimidation

associated with litigation." Id. It is reserved for

"actions that are connected with the prosecutor's role in

judicial proceedings, not for every litigation-inducing

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conduct." Id. We think that the defense of qualified

immunity is sufficient to protect prosecutors who, like the

defendants, conduct a post-conviction, civil rights

investigation.

III.

These considerations do not apply to the

defendants' failure to move for the dismissal of Guzman's

case at the close of the investigation. Guzman does not

allege that the defendants withheld exculpatory evidence from

him, thereby delaying his own motion for a new trial. See

Houston, 978 F.2d at 365 (denying absolute immunity where

claim was based squarely on failure to disclose exculpatory

evidence to the defense). In effect, the plaintiffs' sole

post-investigation claim is that the defendants failed to go

to court as prosecutors to undo Guzman's conviction.

Even if it were shown that the defendants reviewed

the evidence, found Guzman innocent, and did nothing, their

decision withal not to dismiss his criminal case lies at the

heart of the prosecutorial function. See Imbler, 424 U.S. at

431 n.33 (noting that the duties of a prosecutor as an

advocate for the State include the decision whether to

dismiss an indictment against particular defendants). Cf.

Harrington v. Almy, 977 F.2d 37, 42 n.3 (1st Cir. 1992) (the

decision to prosecute or not falls within "the precise zone

of decision-making the Supreme Court has placed at the center

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of the immunity doctrine"). After all, the decision not to

dismiss complements the initial decision to prosecute, and

the prosecutor's absolute immunity for the latter is well

settled. For the reasons cited in Imbler, 424 U.S. at 424-

27, dismissal decisions fit within the same tradition of

common law immunity as charging decisions; both are entitled

to absolute immunity under 1983. Otherwise, a 1983

plaintiff would simply recast a suit for malicious

prosecution as one for failure to dismiss.

Although the alleged omission is reprehensible, we

hold that the defendants are absolutely immune from civil

damages liability for their post-investigation failure to

move for Guzman's release.

IV.

Because the undisputed facts show that the

defendants are not entitled to absolute immunity for their

conduct of the civil rights investigation, the district

court's order denying the defendants' motion for summary

judgment is affirmed. The case is remanded for proceedings

consistent with this opinion.

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