HomeMy WebLinkAbout2008-08-13_Jack_Thomas_v_COH_-_Motion_for_Summary_Judgment Case 1:07-cv-00251-JMS-LEK Document 42 Filed 08/13/2008 Page 1 of 2
LINCOLN S.T. ASHIDA 4478
Corporation Counsel
MICHAEL J. UDOVIC 5238
BRANDON A.K. GONZALEZ 7413
Deputies Corporation Counsel
County of Hawaii
Hilo Lagoon Centre
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Telephone: 961-8251
Facsimile: 961-8622
E-mail: mudovickco.hawaii.hi.us.
Attorneys for Defendants COUNTY OF HAWAII,
JAY KIMURA AND JEFFERSON R. MALATE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JACK THOMAS, CIVIL NO. CV07-00251 JMS/LEK
Plaintiff, DEFENDANTS COUNTY OF
HAWAII, JAY KIMURA AND
vs. JEFFERSON R. MALATE'S
MOTION FOR SUMMARY
COUNTY OF HAWAII; JAY JUDGMENT; MEMORANDUM
KIMURA; JEFFERSON R. MALATE; OF AUTHORITIES; CERTIFICATE
and DOES 1-100, OF SERVICE
Defendants. HEARING MOTION
slit\thomas 07-00251\docAmm sj 8-8-08 MJUjen
DEFENDANTS COUNTY OF HAWAII JAY KIMURA AND JEFFERSON R.
MALATE'S MOTION FOR SUMMARY JUDGMENT
Defendants County of Hawaii, Jay Kimura and Jefferson R. Malate
(collectively referred to as "County Defendants"), by and through their
Case 1:07-cv-00251-JMS-LEK Document 42 Filed 08/13/2008 Page 2 of 2
undersigned attorney, moves the court for summary judgment in favor of County
Defendants and against Plaintiff Jack Thomas ("Plaintiff') on the ground that the
County Defendants has no liability under 42 U.S.C. §1983 because the prosecuting
attorney and the deputy prosecuting attorneys have absolute immunity for actions
taken in their role as prosecutor, and since the individual defendants have
immunity, the County Defendants has no liability for any action taken in their
prosecution of Plaintiff in this matter.
This motion is based upon Rules 7, 43(e) and 56, Federal Rules of Civil
Procedure, LR 56.1, the separate concise statement, memorandum of authorities,
Declaration of Michael J. Udovic, the records and files herein and the evidence and
argument to be elicited upon hearing of this motion.
Dated: Hilo, Hawaii, August 13, 2008.
COUNTY OF HAWAII, JAY KIMURA
AND JEFFERSON MALATE, Defendants
By: /s/Michael J. Udovic
MICHAEL J. UDOVIC
Deputy Corporation Counsel
Their Attorney
2
Case 1:07-cv-00251-JMS-LEK Document 42-2 Filed 08/13/2008 Page 1 of 27
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JACK THOMAS, CIVIL NO. CV07-00251 JMS/LEK
Plaintiff, MEMORANDUM OF AUTHORITIES
vs.
COUNTY OF HAWAII; JAY
KIMURA; JEFFERSON R. MALATE;
and DOES 1-100,
Defendants.
Case 1:07-cv-00251-JMS-LEK Document 42-2 Filed 08/13/2008 Page 2 of 27
TABLE OF CONTENTS
I. STATEMENT OF THE CASE .................................................................... 1
II. DISCUSSION -
A. No County Liability ...................................................................... 1 - 3
B. Kimura and Malate Have Absolute Immunity ........................... 3 - 12
C. Conduct of Malate did Not Violate Any Constitutional
Rights of the Plaintiff -
1. No Viable Fourth Amendment Seizure Claim ................ 12 - 13
2. No Fifth Amendment Double Jeopardy Violation .......... 13 - 15
3. No Excessive Bail, Excessive Fines and Cruel and
Unusual Punishment Inflicted ......................................... 15 - 16
D. No Violation of Other Constitutional Rights Due to Absolute
Immunity ..................:................................................................. 16 - 19
III. CONCLUSION .................................................................................... 19 - 20
i
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TABLE OF AUTHORITIES
Cases
Albright v. Oliver,
510 U.S. 266, 114 S.Ct. 807 (1994) .......................................................... 13
Barr v. Adams,
810 F.2d 358 ................................................................................................. 9
Becker v Kroll,
494 F.3d 904 (2007) .................................................................................. 12
Bennett v. Hendrix,
423 F.3d 1247 (11th Cir.2005) .................................................................. 19
Bernard v. County of Suffolk,
356 F.3d 495 .................................................................................... 7, 8, 9, 10
Bouman v. Block,
940 F.2d 1211 (9th Cir.. 1991) ..................................................................... 2
Boyd v. Biggers,
31 F.3d 279 (5th Cir.1994) ........................................................................ 19
Brandley v. Keeshan,
64 F.3d 196 (5th Cir.1995) ......................................................................... 19
Brower v County of Inyo,
489 U.S. 593 109 S.Ct. 1378 (1989) ......................................................... 12
Buckley v. Fitzsimmons,
509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) .......................... 4, 8
Butz v. Economou,
438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) ................................ 17
Carnell v. Grimm,
872 F. Supp. 746 (D. Haw. 1994), aff d, 74 F.3d 977 (9th Cir. 1995).......... 2
ii
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Creelman v. Svenning,
67 Wash.2d 882, 410 P.2d 606 (Wash. 1966) ............................................. 6
Crist v. Bretz,
437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) ................................... 14
Davis v. City of Ellesburg;
869 F.2d 1230 (9th Cir. 1989) ..................................................................... 3
Dory v. Ryan,
25 F.3d 81 (2d Cir.1994) ........................................................................... 10
Esteves v. Brock,
106 F.3d 674 (5th Cir.1997) ....................................................................... 18
Forrester v. White,
484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) ............................. 4, 17
Forsyth v. Kleindienst,
599 F.2d 1203 (3d Cir. 1979) ....................................................................... 5
Hill v City of New York,
45 F.3d 653 ............................................................................................... 718
Hudson v. McMillian,
503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ................................. 16
Ingraham v. Wright,
430 U.S. 651, 97 S.Ct. 14011 51 L.Ed.2d 711 (1977) ............................... 16
Imbler v. Pachtman,
424 U.S. 409, 96 S.Ct. 984,
47 L.Ed.2d 128 (1976) .................................. 3, 4, 5, 6, 7, 8, 9, 10, 11, 17, 18
Kalina v. Fletcher,
522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) ....... 4, 5, 8, 10, 11, 18
iii
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Karim-Panahi v. Los Angeles Police Department,
839 F.2d 621, (9th Cir. 1988) ........................................................................ 2
Lee v. Willins,
617 F.2d 320, (2d Cir.1980),
cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980) ............ 7, 8
Milstein v. Cooley,
257 F.3d 1004 (2001) ................................................................................... 5
Monell v. Department of Social Servs.,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) .................................. 2
O'Connor v. Nevada,
686 F.2d 749, (9th Cir.1982) (per curiam),
affg 507 F.Supp. 546 (D.Nev.1981) ............................................................ 5
Robison v. Via,
821 F.2d 913 (2d Cir.1987) .................................................................. 10, 17
Roe v. City & County of San Francisco,
109 F.3d 578 (9th Cir.1997) ......................................................................... 5
Root v. Liston,
444 F.3d 127 (2006) ................................................................................... 17
Saucier v. Katz,
533 U.S. 194, 121 S.Ct. 2151 (2001) ........................................................... 4
Scheuer v. Rhodes,
416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) .................................... 4
Schloss v. Bouse,.
876 F.2d 287 (2d Cir.1989) .......................................................................... 9
Serfass v. United States,
420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) ...................... 13, 14, 15
iv
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Shmueli v. City of New York,
424 F.3d 231 (2d Cir 2005) .......................................................................... 7
Spivey v. Robertson,
197 F .3d 722 (5th Cir.2000) ...................................................................... 18
Strandberg v. City of Helena,
791 F.2d 744 (9th Cir.1986) ...................................................................... 16
Sunn v. City & County of Honolulu,
852 F.Supp. 903 (D.Haw. 1994) ................................................................... 2
Terry v. Potter,
111 F.3d 454 (6th Cir.1997) ...................................................................... 14
Tokuhama v. City and County of Honolulu,
751 F.Supp. 1385 (D.Haw. 1989) ................................................................ 2
United States v. Gamble,
141 F.3d 621 (6th Cir.1998) ................................................................ 14, 15
United States v. Mask,
101 F.Supp.2d 673(U.S. Dist.Ct. West.Dist., Tenn., 2000) ....................... 15
United States v. Patterson,
406 F.3d 1095 (9th Cir.2005) .................................................................... 14
United States v. Pi,
174 F.3d 745 (6th Cir. 1999) ....................................................................... 15
Warren v. Mayberg,
Slip Copy, WL 3274273 (E.D. Cal. 2007) ................................................. 16
Whitley v. Albers,
475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) .............................. 16
V
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Statutes
42 U.S.C. §1983 ................................................................................................ 1, 18
Constitutional Provisions
U.S. Const. amend. V ............................................................................................. 13
U.S. Const. amend. VIII ........................................................................................ 15
U.S. Const. amend. IX .......................................................................................... 16
U.S.C.A. Const. amend. I ...................................................................................... 19
Rules
Fed.R.Civ.P. Rule 12(b) ........................................................................................ 14
Fed.R.Civ.P. Rule 12(b)(6) ..................................................................................... 8
Other
5A C. Wright & A. Miller,
Federal Practice and Procedure: Civil (Federal Practice)
§1368 at 518 (2d ed.1990) ............................................................................ 6
vi
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MEMORANDUM OF AUTHORITIES
I. STATEMENT OF THE CASE
Defendants County of Hawaii, Jay Kimura and Jefferson R. Malate
(collectively referred to as "County Defendants"), has no liability under
42 U.S.C. §1983 on the following grounds:
1. All of the actions complained of concern the duties of the County
Defendants as public prosecutors and there is no allegation nor any evidence of an
unconstitutional policy statement, ordinance, regulations or decisions formally
adopted and promulgated by the County of Hawaii ("County").
2. As public prosecutors, Defendants Jay Kimura ("Kimura") and
Jefferson R. Malate ("Malate") have absolute immunity for actions that amount to
a quasi judicial function.
3. The County Defendants have no liability absent liability by an
individual defendant.
Hence, the County Defendants seek summary judgment as to the allegations
concerning a violation by it under 42 U.S.C. §1983.
II. DISCUSSION
A. . No County Liability.
A §1983 plaintiff cannot rely on a theory of respondeat superior to
hold a city (county) liable for the individual actions of its police officers.
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Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036,
56 L.Ed.2d 611 (1978). Neither can a municipality be held liable "solely because
it employs a tortfeasor." Id. Likewise, a municipality cannot be absolved from
liability because the individual is shielded by absolute immunity.
A municipality can only be held liable for an unconstitutional act of its
police officers which were the: "(1) the direct result of inadequate police training
or supervision; (2) the product of an officially adopted policy statement, ordinance,
regulation, or decision; or (3) illustrative of a custom which is so permanent
and well[-]settled to constitute a custom or usage with the force of law."
Sunn v. City & County of Honolulu, 852 F.Supp. 903, 909 (D.Haw. 1994), citing
Tokuhama v. City and County of Honolulu, 751 F.Supp. 1385, 1389 (D.Haw.
1989); See, also, Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621,
624 (9th Cir. 1988); Carnell v. Grimm, 872 F. Supp. 746, 751 (D. Haw. 1994),
aff'd, 74 F.3d 977 (9th Cir. 1995); Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991)
(if a practice is so permanent and well settled as to constitute a `custom or usage'
with the force of law, a plaintiff may proceed despite the absence of written
authorization or express municipal policy), cent. denied, 112 S.Ct. 640 (1992);
Carnell v. Grimm, 872 F. Supp. 746, 751 (D. Haw. 1994), aff'd, 74 F.3d 977
2
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(9th Cir. 1995) (a charge of municipal liability is sufficient if the plaintiff
establishes that his injury "was a direct result of inadequate training or
supervision").
A plaintiff cannot prove the existence of a municipal policy or custom based
solely on the occurrence of a single incident or unconstitutional action by a non-
policymaking employee. Davis v. City of Ellesburg, 869 F.2d 1230, 1233 (9t" Cir.
1989). Likewise the municipality cannot be held liable for the acts of one if its
prosecutors where the prosecutor is acting within the scope of their prosecutorial
duties.
In the instant case, there is no evidence that the County had an
unconstitutional policy, custom or wage. Neither is there any evidence to
support a claim that Malate violated any of the Plaintiff's constitutional rights,
as stated in his Complaint in this matter.
B. Kimura and Malate Have Absolute Immunity.
A state prosecutor is entitled to absolute immunity from liability under
§1983 for violating a person's federal constitutional rights when he or she engages
in activities "intimately associated with the judicial phase of the criminal process."
Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In
other situations a prosecutor is granted only qualified immunity when and if he or
she is performing investigatory or administrative functions, or is essentially
3
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functioning as a police officer or detective. Buckley v. Fitzsimmons, 509 U.S. 259,
273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).
Qualified immunity may be granted by a court if the prosecutor's conduct as
I'
an investigator satisfies the two-step test for qualified immunity outlined by the
i
Supreme Court in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001).
Thus, immunity decisions regarding the liability of a state prosecutor depend on
`the nature of the function performed, not the identity of the actor who performed
it.' " Kalina v. Fletcher, 522 U.S. 118, 127, 118 S.Ct. 502, 508, 139 L.Ed.2d 471
(1997A (quoting Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, .
98 L.Ed.2d 555 (1988)).
In deciding whether to accord a prosecutor immunity from a civil suit for j
damages, a court must first determine whether a prosecutor has performed a quasi-
I,
judicial function. Imbler, 424 U.S. at 430, 96 S.Ct. at 944, 47 L.Ed.2d 128. If the
prosecutor is entitled to the protection of
action was art of the judicial process, the p p
p J
absolute immunity whether or not he or she violated the civil plaintiff s
constitutional rights. See Scheuer v. Rhodes, 416 U.S. 232, 242, 94 S.Ct. 1683,
40 L.Ed.2d 90 (1974). "Implicit in the idea that officials have some immunity-
absolute or qualified-for their acts, is a recognition that they may err. The concept
of immunity assumes this and goes on to assume that it is better to risk some error
and possible injury from such error than not to decide or act at all."); see also
4
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Kalina, 522 U.S. at 129, 118 S.Ct. at 509, 139 L.Ed.2d 471 (holding that a
prosecutor's preparation and filing of an information and a motion for an arrest
warrant are protected by absolute immunity); Imbler, 424 U.S. at 431, 96 S.Ct. at
995, 47 L.Ed.2d 128 (absolute immunity for initiating a prosecution); Milstein v.
Cooley, 257 F.3d 1004, 1008 (2001); Roe v. City & County of San Francisco,
109 F.3d 578, 583-84 (9th Cir.1997) (absolute immunity for decision to prosecute
and for professional evaluation of a witness "even if that judgment is harsh, unfair
or clouded by personal animus"); id. at 584 (stating that "a prosecutor's
professional evaluation of the evidence assembled by the police is entitled to
absolute immunity"); Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir. 1979)
(holding that "to the extent that the securing of information is necessary to a
prosecutor's decision to initiate a criminal prosecution, it is encompassed within
the protected, quasi-judicial immunity afforded to the decision itself').
A prosecutor is absolutely immune from liability for failure to investigate
the accusations against a defendant before filing charges. See O'Connor v. Nevada,
686 F.2d 749, 750 (9th Cir.1982) (per curiam), affg 507 F.Supp. 546, 548-49
(D.Nev.1981) (holding that a prosecutor is immune from liability for failure to
investigate adequately the accusations against a defendant before charging him
or her). A prosecutor is also absolutely immune from liability for the knowing
5
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use of false testimony at trial. Imbler, 424 U.S. at 431, 96 S.Ct. at 995,
47 L.Ed.2d 128.
In order to prevail on a motion for judgment on the pleadings the movant
[must] clearly establish[ ] that no material issue of fact remains to be resolved and
that he [or she] is entitled to judgment as a matter of law." 5A C. Wright & A.
Miller, Federal Practice and Procedure: Civil (Federal Practice) §1368 at 518
(2d ed.1990). "In considering a motion for judgment on the pleadings, the trial
court is required to view the facts presented in the pleadings and the inferences
to be drawn therefrom in the light most favorable to the nonmoving party."
Id. at 518-19.
The reasoning which justifies this rule is based primarily on public policy.
As the court stated in Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606, 608
(Wash. 1966):
The public policy which requires immunity for the
prosecuting attorney, also requires immunity for both the
state and county for acts of judicial and quasi judicial
officers in performance of the duties which rest upon
them; otherwise objectives sought by immunity to the
individual officers would be seriously impaired or
destroyed.
If the prosecutor must weigh the possibilities of precipitating tort litigation
involving the county and the state against his action in any criminal case, his
6
i
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freedom and independence in proceedings with criminal prosecutions will be at
an end.
i
In the case of Shmueli v. City of New York, 424 F.3d 231 (2d Cir 2005), the
Court of Appeal for the Second Circuit affirmed the doctrine of absolute immunity
for a prosecutor. In Shmuelli, the plaintiff was charged with the one count of
I
aggravated harassment, one count of menacing in the Second Degree and 91 counts
of Aggravated Harassment in the Second Degree. The facts of the case showed
that Shmueli and Martin Lieberman had lived together for a period of two years at
i
which time Shmueli asked Lieberman to move out Lieberman then threatened
i
Shmueli that he and his friend, Assistant District Attorney Fairstein, would make
I
her life miserable if Shmueli'did not continue her relationship with Lieberman.
The Court of Appeals reasoned that absolute immunity is an affirmative
defense whose availability depends on the nature of the function being performed
I
by the defendant official who is alleged to have engaged in the challenged conduct, j
i
see, e.g., Imbler v. Pachtman,, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128
I
(1976); Bernard v. County of Suffolk, 356 F.3d 495, 502-03; Hill v City of New
i
York, 45 F.3d 653, 660-61; Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir.1980),
cent. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980), the nature of that
function is often clear from the face of the complaint.
7
C
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In this circumstance, the absolute immunity defense may be resolved
as a matter of law on a summary judgment motion as well as a motion to dismiss
the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
("Fed.R.Civ.P."). See, e.g., Imbler, 424 U.S. at 416-17, 96 S.Ct. at 988-989;
Bernard, 356 F.3d at 501-02; Hill, 45 F.3d at 657; Lee v. Willins, 617 F.2d at 321.
It is by now well established that "a state prosecuting attorney who acted within
the scope of his duties in initiating and pursuing a criminal prosecution,"
Imbler, 424 U.S. at 410, 96 S.Ct. at 985, "is immune from a civil suit for
damages under §1983," id. at 431, 96 S.Ct. 984. See, e.g., Kalina v. Fletcher,
522 U.S. at 124, 118 S.Ct. at 506, 139 L.Ed.2d 471 (1997) (such a prosecutor
"[i]s not amenable to suit [for damages] under §1983"); Buckley v. Fitzsimmons,
509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) ("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 of absolute immunity"); see also Imbler, 424 U.S. at 420,
96 S.Ct. at 990 ("The Courts of Appeals .... are virtually unanimous that a
prosecutor enjoys absolute immunity from §1983 suits for damages when he acts
within the scope of his prosecutorial duties."). Once again the rationale for
conferring absolute immunity in such circumstances is that "[t]he public trust of
the prosecutor's office would suffer if he were constrained in making every
8
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decision by the consequences in terms of his own potential liability in a suit for
damages."Id. at 424-25,-96 S.Ct. at 992-993.
The scope of a prosecutor's jurisdiction is determined by law. In
considering whether a given prosecution was clearly beyond the scope of that
jurisdiction, or whether instead there was at least a colorable claim of authority,
see, e.g., id. ("at least a semblance of jurisdiction"), we inquire whether the
pertinent statutes may have authorized prosecution for the charged conduct, see,
e.g., id. at 361-62;Bernard, 356 F.3d at 504; Schloss v. Bouse, 876 F.2d 287, 291
(2d Cir.1989). Once the court determines that the challenged prosecution was not
clearly beyond the prosecutor's jurisdiction, the prosecutor is shielded from
liability for damages for commencing and pursuing the prosecution, regardless of
any allegations that his actions were undertaken with an improper state of mind or
improper motive. See, e.g., Bernard, 356 F.3d at 503; id. at 502 ("a defendant's
motivation in performing such advocative functions [as deciding to prosecute] is
irrelevant to the applicability of absolute immunity").
For example, a defense of absolute immunity from a claim for damages must
be upheld against a §1983 claim that the prosecutor commenced and continued a
prosecution that was within his jurisdiction but did so for purposes of retaliation,
see, e.g., Barr v. Adams, 810 F.2d 358 at 360-62, or for purely political reasons,
see, e.g., Bernard, 356 F.3d at 504 ("the fact that improper motives may influence
9
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his authorized discretion cannot deprive him of absolute immunity"). A prosecutor
is also entitled to absolute immunity despite allegations of his "knowing use of
perjured testimony" and the "deliberate withholding of exculpatory information."
Imbler, 424 U.S. at 431 n. 34, 96 S.Ct. at 995. Although such conduct would be
"reprehensible," it does not make the prosecutor amenable to a civil suit for
damages. Id. In sum, the nature of absolute immunity is such that it "accords
protection from ... any judicial scrutiny of the motive for and reasonableness of
official action." Robison v. Via, 821 F.2d 913, 918 (2d Cir.1987). "[In] the realm
of absolute immunity, ... evaluation of motive and reasonableness is forbidden ...."
Id. at 920; see, e.g., Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994) (the absolute
character of absolute immunity is that it "protects a prosecutor from §1983 liability
for virtually all acts, regardless of motivation, associated with his function as an
advocate"). These principles are not affected by allegations that improperly
motivated prosecutions were commenced or continued pursuant to a conspiracy.
See, e.g., id.; Bernard, 356 F.3d at 503.
The documents filed with the Separate Concise Statement clearly show that
the acts of the Prosecuting Attorney and Deputy Prosecuting Attorney were acts
traditionally performed by the prosecutor and were not investigative in nature.
Unlike the facts of Kalina v. Fletcher, the evidence shows the prosecutor assigned
10
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to this case reviewed the police reports, assessed the evidence and filed charges
based upon the facts contained therein.
As noted by the Supreme Court in Imbler, "a state prosecuting attorney who
acted within the scope of his duties in initiating and pursing a criminal prosecution
is immune from a civil suit for damages under §1983.
The evidence establishes the following:
(1) That the prosecuting attorney evaluated the evidence as provided by
the police;
(2) The prosecutor conducted no investigation for this matter;
(3) _ The prosecutor did not direct the police in their investigation of this
matter;
(4) The prosecutor did not attest to any procedural matters-such as the
affidavit in support of the arrest warrant like the prosecution in
Kalina v Fletcher;
(5) The prosecuting attorney prepared the complaint and forwarded the
i
charging document to the Clerk of the District Court for the Third
Circuit who issued the Penal Summons;
(6) No warrant for Plaintiff's arrest was ever prepared or served;
(7) The prosecutor followed established procedures in the' reparation of
the charging documents in this case;
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(8) The prosecuting attorney charging this case had no other documents
other than the police reports prepared by the Hawaii Police
Department; and
(9) All of the facts of the prosecuting attorney are quasi judicial in nature.
Even if Plaintiff can show the prosecuting attorney had an improper motive,
the functions which the prosecuting attorney performed in this case clearly entitle
them to the protections of absolute immunity under the principles cited herein.
C. Conduct of Malate Did Not Violate Any Constitutional Rights
of the Plaintiff.
In addition, any claim that the actions of a public prosecutor give rise to a
§1983 violation require that a violation of the United States Constitution or a
Federal statute has occurred. It is the position of the County Defendants that
Plaintiff can prove no such violation.
1. No Viable Fourth Amendment Seizure Claim.
A violation of the Fourth Amendment requires an intentional acquisition
of physical control of the person. Brower v County of Inyo, 489 U.S. 593, 596,
109 S.Ct. 1378, 1381 (1989). In analyzing malicious prosecution cases pursuant
to §1983 it is required that there be a seizure by state arrest or imprisonment,
Becker v Kroll, 494 F.3d 904, 914 (2007). The Becker Court went on to note:
12
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While the consequences of unfounded criminal charges
are surely grave, the Fourth Amendment adequately
covers constitutional interests in the pre-trial exercise of
governmental control over a person or property. A
groundless charging decision may abuse the criminal
process, but does not, in and of itself, violate the Fourth
Amendment absent a significant restriction on liberty.
Nor does the Fourteenth Amendment provide a substantive due process
right to be free from prosecution without probable cause, the Supreme Court,
however, left open the possibility of such a claim under the Fourth Amendment.
Albright v Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 812 (1994).
The evidence clearly establishes that Plaintiff was never taken into custody,
was never arraigned nor was his freedom of movement restricted in any significant
way.
2. No Fifth Amendment Double Jeopardy Violation.
A violation of the Fifth Amendment to the United States Constitution cannot
be premised on the pretrial charging of a defendant. It is well established that the
Fifth Amendment provides that no person shall "be subject for the same offence to
be twice put in jeopardy of life or limb." U.S. Const. amend. V. Jeopardy is said
to "attach" when a defendant is "put to trial." Serfass v. United States, 420 U.S.
377, 388, 95 S.Ct. 105 5, 4062, 43 L.Ed.2d 265 (1975) (observing that the concept
of"attachment of jeopardy" defines a point in criminal proceedings at which the
purposes and policies of the Double Jeopardy Clause are implicated and
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designating this point as when the defendant is "put to trial") (internal quotation
marks and citations omitted). "In the case of a jury trial,jeopardy attaches when a
jury is empaneled and sworn. In a nonjury trial,jeopardy attaches when the court
begins to hear evidence."Id. (internal citations omitted). The clause's protections,
then, "kick in ... only after the defendant has been placed in jeopardy-[i.e.] when
jeopardy has attached." United States v. Patterson, 406 F.3d 1095, 1096 (9th
Cir.2005). Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062,
43 L.Ed.2d 265 (1975).
The protection of the Double Jeopardy Clause does not apply until a
defendant is put to trial before the trier of fact. Serfass v. United States,
420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Gamble,
141 F.3d 621, 623 (6th Cir.1998). In jury trials, it attaches when a jury is
empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156,
57 L.Ed.2d 24 (1978); Serfass, 420 U.S. at 388, 95 S.Ct. 1055; Terry v. Potter,
111 F.3d 454, 456 (6th Cir.1997). In non-jury trial trials, it attaches when the first
witness is sworn and the court begins to hear evidence. Crist, 437 U.S. at 37 n. 15,
98 S.Ct. 2156; Serfass, 420 U.S. at 388, 95 S.Ct. 1055. If a case is dismissed prior
to the defendant being put to trial before the trier of fact (e.g., by a motion to
dismiss under Fed.R.Civ.P. 12(b)), then double jeopardy protections will not
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attach. See Serfass, 420 U.S. at 389-91, 95 S.Ct. 1055; United States v. Gamble,
141 F.3d 621, 623 (6th Cir.1998). See also U nited States v Pi 174 F.3d 745
748-49 (6th Cir.1999)(holding that the dismissal of an indictment before trial
and institution of a superseding indictment does not trigger double jeopardy).
United States v. Mask, 101 F.Supp.2d 673, 679 (U.S. Dist.Ct. West.Dist.,
Tenn., 2000).
Plaintiff was never put to trial on this matter. He made a motion to dismiss
this matter prior to him ever being arraigned, and as noted above,jeopardy does
not attach until the defendant is put to trial on the case. Serfass v. United States,
420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). Therefore, any
Fifth Amendment privilege defendant may have had respecting the facts of this
case did not arise at pretrial.
3. No Excessive Bail Excessive Fines and Cruel and Unusual
Punishment Inflicted.
The Eighth Amendment to the United States Constitution holds that
"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const. amend. VIII. The Supreme Court
has said that the use of excessive force against a prisoner can violate the Eighth
Amendment, stating that " `the unnecessary and wanton infliction of pain ...
constitutes cruel and unusual punishment forbidden by the Eighth Amendment.' "
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Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)
(quoting Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 51 L.Ed.2d 711
(1977)) (internal quotation marks omitted); Hudson v. McMillian, 503 U.S. 1,
5-6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). No evidence of any Eight
Amendment violation exists.
D. No Violation of Other Constitutional Rights Due to Absolute
Immuni .
The Ninth Amendment, which provides that "[t]he enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people." U.S. Const. amend. IX. The Ninth Amendment
does not provide a basis upon which plaintiff may impose liability under section
1983 because it does not "independently [secure] any constitutional right."
Strandberg v. City of Helena, 791 F.2d 744, 748 (9`h Cir.1986). Warren v.
Mayberg, Slip Copy, WL 3274273 (E.D. Cal. 2007).
The Fourteenth Amendment, which provides that "[a]ll persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property,
without the due process of law; nor deny to any person within its jurisdiction the
equal protection of the law.
16
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I
[A]bsolute immunity defeats a suit at the outset, so long as the official's
actions were within the scope of the immunity." Imbler v. Pachtman,
424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Absolute
immunity is an extreme protection, insulating the immune party from "any
judicial scrutiny of the motive for and reasonableness of official action."
i
Robison v. Via, 821 F.2d 913, 918 (2d Cir.1987). Root v. Liston, 444 F.3d 127„
130 (2006).
The purpose of absolute immunity is not to protect government officials
as individuals, but rather to ensure that they can perform their jobs without
harassment by civil,suits and without intimidation by the threat of suit.
Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).
In determining whether absolute immunity attaches, we therefore consider "the
nature of the function performed, not the identity of the actor who performed it."
Forrester v. -White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)
Under this functional approach, persons enjoy absolute immunity "not because of
their particular location within the Government but because of the special nature of
their responsibilities." Butz, 438 U.S. at 511, 98 S.Ct. 2894. Root v. Liston,
444 F.3d 127, 130 (2006).
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Most importantly for this case, state prosecutors Kimura and Malate, enjoy
absolute immunity from civil damages under 42 U.S.0 §1983 because their
challenged actions were performed during the course and in the scope of their duty
as advocates. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d
128 (1976); Kalina v. Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471
(1997); Spivey v. Robertson, 197 F .3d 722, 726 (5th Cir.2000).
Traditional functions of an advocate are those functions which are intimately
associated with the judicial phase of the criminal process, including, but not
limited to whether to present a case to a grand jury, whether to file an information,
whether and when to prosecute, whether to dismiss an indictment against a
particular defendant, which witnesses to call, and what other evidence to present.
Imbler v. Pachtman, 424 U.S. 409, 430-431, n. 33, 96 S.Ct. 984, 47 L.Ed.2d 128
(1976). A prosecutor is absolutely immune from any suit arising out of his
duties as an advocate, regardless of the egregious nature of the allegations.
Imbler v. Pachtman, 424 U.S. 409, 430-431, n. 33, 96 S.Ct. 984, 47 L.Ed.2d 128
(1976) (prosecutor absolutely immune from liability where he knowingly used
perjured testimony, deliberately withheld exculpatory evidence, and failed to
disclose all facts casting doubt upon state's testimony); Esteves v. Brock,
106 F.3d 674 (5th Cir.1997)(prosecutor absolutely immune from claims of using
18
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peremptory challenges in racially discriminatory manner); Brandley v. Keeshan,
64 F.3d 196 (5th Cir.1995)(prosecutory absolutely immune from claim of witness
intimidation and suppression of evidence, even if prosecutor knew of and directed
witness intimidation and suppression of evidence); Boyd v. Biggers, 31 F.3d 279,
285 (5th Cir.1994)(prosecutor. immune from suit alleging knowing use of perjured
testimony, malicious prosecution, and conspiring with the judge to predetermine
the outcome of a judicial proceeding).
Lastly, Plaintiff has neither alleged in the Complaint nor presented sufficient
evidence for a claim for violation of his First Amendment right.
To state a claim for retaliation for exercising his First Amendment rights a
plaintiff must establish that: (1) the speech or act was constitutionally protected;
(2) the defendant's retaliatory conduct adversely affected the protected speech; and
(3) a causal connection existed between the retaliatory conduct and the adverse
effect on speech. U.S.C.A. Const. amend. I, Bennett v. Hendrix, 423 F.3d 1247
(1 lth Cir.2005).
III. CONCLUSION
This Court should grant the County Defendants' Motion for Summary
Judgment on the grounds that the County has no liability for actions of its
employees who are public prosecutors and are cloaked with absolute immunity
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for actions taken with respect to their actions which are intimately associated with
the judicial phase of the criminal process. Each of the acts of Kimura and Malate
complained of are within those acts for which immunity should be found.
In addition, it is doubtful that any violation of the Constitution has in fact
occurred. Plaintiff was not arrested, not taken into custody, not arraigned, not
booked or processed and did not have his freedom of movement restricted in any
way that the constitution deems to be a significant intrusion by state action.
Hence, the Court should grant the County Defendants' Motion for Summary
Judgment dismissing all claims.
Dated: Hilo, Hawaii, August 13, 2008.
COUNTY OF HAWAII, JAY KIMURA
AND JEFFERSON R. MALATE,
Defendants
By: /s/Michael J. Udovic
MICHAEL J. UDOVIC
Deputy Corporation Counsel
Their Attorney
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IN THE UNITED STATES DISTRICT COURT
a
FOR THE DISTRICT OF HAWAII
JACK THOMAS, CIVIL NO. CV07-00251 JMS/LEK
Plaintiff, CERTIFICATE OF SERVICE
vs.
COUNTY OF HAWAII; JAY
KIMURA; JEFFERSON R. MALATE;
and DOES 1-100,
Defendants.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing document was served upon the
following, on the date and by the method of service noted below:
Served electronically through CM/ECF:
CHARLES J. FERRERA, ESQ. chuckferreraklava.net August 13, 2008
Dillingham Transportation Bldg.
735 Bishop Street, Suite 422
Honolulu, Hawaii 96813
Attorney for Plaintiff
\s\ Michael J. Udovic
MICHAEL J. UDOVIC
Deputy Corporation Counsel
County of Hawaii