DIVISION 14
WILLIAM HUFFMIER, ) Plaintiff, ) ) v. ) Case No. 01C 559 ) CARLA J. STOVALL, ) KYLE J. SMITH, ) RICK SABEL, and ) LARRY THOMAS, ) Defendants. ) _____________________)
The above captioned matter comes before the court on Defendants' Motion to Dismiss, pursuant to K.S.A. § 60-212(b) and (c), for Plaintiff William Huffmier's (Huffmier) failure to state a claim upon which relief can be granted. After careful consideration, the court grants Defendants' Motion as to the state tort claims and denies said Motion as to the federal claims under 42 U.S.C. § 1983 regarding all Defendants.
Huffmier is the former undersheriff and William D. Reser is a former deputy for the Shawnee County Sheriff's Department. On or about October 27, 1999, Defendants Rick Sabel (Sabel) and Larry Thomas (Thomas), employees of Kansas Bureau of Investigation (KBI), appeared at Reser's home with a search warrant. Reser contends that Defendants Sabel and Thomas inquired about abandoned lockers Reser had taken, and they detained him in a vehicle for at least one hour. Reser further alleges that Defendants Sabel and Thomas threatened him saying they would investigate him, his wife, his children and a restaurant in which he has ownership, until they could find anything they could charge against him. According to Reser, Defendants were attempting to gain information from him regarding illegal or unethical actions by former Sheriff David Meneley (Meneley). Reser asserts that Defendants Sabel and Thomas advised him that he needed to go to KBI headquarters.
Various further incidents allegedly committed by Defendants Sabel and Thomas are cited in Huffmier's Petition. Essentially, Huffmier claims that Defendants pressured Reser to incriminate Meneley and threatened him with prosecution if he failed to do so.
On or about January 4, 2000, criminal charges were filed by Defendants Stovall and Smith in Case No. 00-CR-4, charging Huffmier and Reser each with one count of theft of the abandoned lockers, under K.S.A. § 21-3701(a)(1). Huffmier alleges that Defendant Stovall initiated the investigation, Defendant Assistant Attorney General Kyle J. Smith (Smith) swore out an affidavit which served as the factual basis for the issuance of a summons, both Stovall and Smith signed the complaint, and Defendants Sabel and Thomas acted as investigators. On or about July 5, 2000, the court granted Huffmier's Motion to Dismiss the criminal case and no appeal followed.
Huffmier contends that Defendants' actions constitute malicious prosecution, interference with an employment opportunity, and violations of the First and Fourth Amendments which give rise to a cause of action under 42 U.S.C. § 1983.
In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably drawn therefrom. Sampson v. Rumsey, 1 Kan. App. 2d 191, 193-94, 563 P.2d 506 (1977) (citing Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P.2d 875, Syl. ¶3, (1971)). However, a court is not required to accept as true, conclusory allegations as to the legal effect of events the plaintiff has set out, if those allegations do not reasonably follow from the description of what happened or if those allegations are contradicted by the description itself. Id. at 194.
Disputed issues of fact cannot be resolved or determined on a motion to dismiss. Ripley v. Tolbert, 260 Kan. 491, Syl. ¶1, 921 P.2d 1210 (1996). The question for determination is whether in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiff's favor, the petition states any valid claim for relief. Id. Dismissal is justified only when the allegations of the petition clearly demonstrate the plaintiff does not have a claim. Id.
The court did not consider the affidavit and memorandum decision that were filed by defendants as a supplement to the motion to dismiss, since the motion before the court is a motion to dismiss rather than a summary judgment motion and it is inappropriate to consider matters outside the pleadings unless the court converts the motion to dismiss to a motion for summary judgment pursuant to K.S.A. 60-212(b) and (c). This court declined to treat the motion as a motion for summary judgment and instead excluded the affidavit and memorandum decision from consideration.
The court has considered the Motion to Dismiss separately as to the state tort claims and the federal claims under 42 U.S.C. § 1983.
Claims Against Smith and Stovall
Defendants Stovall and Smith assert that they should be afforded absolute immunity as prosecutors and, therefore, the Petition should be dismissed against them. However, Huffmier contends Defendants acted as complaining witnesses by instigating, urging and bringing about his prosecution.
"Prosecutorial immunity has long been recognized in Kansas." Massey v. Shepack, 12 Kan. App. 2d 770, 775, 757 P.2d 329 (1988) (citing Smith v. Parman, 101 Kan. 115, 165 Pac. 663 (1917)).
A prosecutor has absolute immunity from common law suits for malicious prosecution. [cites omitted]. Likewise the power of the county attorney to investigate alleged violations within his jurisdiction is unquestionable, and his motive in so doing may not be the subject of a lawsuit against him. A county attorney has absolute immunity for his conduct in investigations.
Knight v. Neodesha, 5 Kan. App. 2d 472, 476-77, 620 P.2d 837 (1980).
Under the common-law, a prosecutor was afforded immunity for the following reasons: "that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Imbler v. Pachtman, 424 U.S. 409, 422-23, (1976). The United States Supreme Court set forth this rationale for affording prosecutors immunity:
"The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement."
Plaintiff relies on McCormick v. Board of County Commissioners of Shawnee County, Kan. App. 2d , 24 P.3d 739 (2001), a recent Kansas Court of Appeals case which addressed the issue of prosecutorial immunity. However, the Kansas Supreme Court has granted a petition for review in this case (2001 Kan. Lexis 532) and, therefore, pursuant to Kansas Supreme Court Rule 8.03(i) the Court of Appeals' decision in McCormick has no force or effect. This court must apply Kansas law prior to McCormick.
Kansas case law is replete with cases that acknowledge that investigative acts performed by a prosecutor are entitled to absolute immunity. The attorney general has a duty to investigate all criminal activity which comes to his or her attention. Southwestern Bell Telephone Co. v. Miller, 2 Kan. App. 2d 558, 561, 583 P.2d 1042 (1978). "The same policy considerations requiring absolute immunity for communications made during the course of a prosecution require immunity for conduct in investigations which may lead to a prosecution." Sampson v. Rumsey, 1 Kan. App. 2d 191, 197, 563 P.2d 506 (1977). The power of a prosecutor to investigate alleged violations "is unquestionable and his motive in so doing may not be the subject of a lawsuit against him." Id. "The attorney general and county attorney have absolute immunity for their conduct in investigations for potential prosecutions. This immunity applies to the decision not to act as well as the decision to file charges." Knight, 5 Kan. App. 2d at 472, Syl. ¶ 6.
Under the discretionary function exception of the Kansas Tort Claims Act, K.S.A. 75-6104(e), the State and its agents are immune from liability for discretionary functions unless an independent duty of care is owed to the injured party. Concerning tort liability, law enforcement officials owe a legal duty in the performance of their duties only to the public at large. Kennedy v. Kansas Dept. of SRS, 26 Kan. App. 2d 98, Syl. ¶ 1 and ¶ 3 (1999).
As stated above, the attorney general has a duty to investigate all criminal activity which comes to his or her attention. Southwestern Bell Telephone Co. v. Mill, 2 Kan. App. 2d at 561. The alleged acts of Stovall are part of her duties as attorney general and within the scope of her employment, and therefore, are within the discretionary function exception to the Kansas Tort Claims Act. Defendant Stovall is immune from liability as to the state tort claims and the court grants the motion to dismiss the state claims against Attorney General Stovall.
Plaintiffs argue that Smith stepped outside the scope of his duties as an assistant attorney general and became a complaining witness by preparing and attesting to the affidavit. However, under Kansas law prior to McCormick, this court finds that Smith's actions of swearing out the affidavit were within his advocacy role and duties as an assistant attorney general and therefore within the discretionary function exception to the Kansas Tort Claims Act. K.S.A. 75-6104(e). Therefore, this court also grants Defendant Smith's motion to dismiss as to the state tort claims.
Claims as to Sabel and Thomas
Defendants Sabel and Thomas contend that absolute immunity should be afforded to them as investigators directly employed by Defendant Stovall. As support for their proposition, they cite a Kansas Court of Appeals case which provides:
[I]t appears that prosecutorial immunity may extend to Kansas Bureau of Investigation (KBI) personnel, at least insofar as it involves investigatory functions for the attorney general. The KBI is actually a division of the attorney general's office and is under the jurisdiction of the attorney general. K.S.A. 1979 Supp. 75-711. The powers and duties of the bureau are described in K.S.A. 75-712, which states:
"It shall be the duty of the members of the bureau to make full and complete investigations at the direction of the attorney general. Each member of the bureau shall possess all powers and privileges which are now or may be hereafter given to the sheriffs of the state of Kansas. The bureau shall be vested with the duty of acquiring, collecting, classifying, and preserving criminal investigation and other crime records, and the exchanging of said criminal identification records with the duly authorized officials of governmental agencies, of states, cities and penal institutions. Reports of all investigations made by the members of the bureau shall be made to the attorney general of the state of Kansas."
It appears that the KBI's function is more analogous to that of a district attorney's investigator than to the function of the police department. In this case, the bureau investigated at the direction of the attorney general, a quasi-judicial function to which immunity should apply. The bureau's failure to take action evidently resulted because the attorney general, in his discretion, decided not to pursue an investigation. This being the circumstance, the attorney general's prosecutorial immunity should extend to the defendants . . . .
Knight v. Neodesha, 5 Kan. App. at 478-79. The ruling in Knight provides immunity to KBI personnel for their investigatory work for the attorney general's office. Therefore, this court dismisses the state tort claims against Sabel and Thomas.
Claims as to Smith and Stovall
As stated previously, plaintiff claims that defendants Stovall and Smith acted as complaining witnesses by signing the verified complaint and by initiating and directing the investigation of Huffmier and Reser. Plaintiff, in addition, claims that Smith acted as a complaining witness by swearing out the affidavit.
The United States Supreme Court in Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997), addressed the issue of a prosecutor acting as a complaining witness. In Kalina, the prosecutor prepared three charging documents 1) an information, 2) a motion for an arrest warrant and 3) an affidavit for establishing the grounds for issuing the warrant. The U.S. Supreme Court found that the prosecutor was protected by absolute immunity in the filing of the first two documents. The more difficult issue concerned the third document which was prepared by the prosecutor, a document called "Certification for Determination of Probable Cause" that summarized the evidence supporting the charge. In that document the prosecutor "personally vouched for the truth of the facts set forth in the certification under penalty of perjury." Kalina, 522 U.S. at 121. The U.S. Supreme Court held that in preparing the third document the prosecutor was not performing the function of an advocate and instead was functioning as a complaining witness who was not entitled to the protection of absolute prosecutorial immunity. Id at 130-31.
The function allegedly performed by Smith was that of signing the affidavit which served as the basis for issuance of a summons in plaintiff's criminal case which makes Smith a complaining witness under Kalina. Therefore Smith would not be afforded absolute immunity. The Court denies Defendants' Motion to Dismiss Defendant Smith as to the federal claims.
However, Stovall did not function as a complaining witness merely because she signed the complaint in Huffmier's criminal case. In Kalina, the United State Supreme Court clearly stated that the prosecutor's actions in connection with the preparation of the information and the motion for an arrest warrant were protected by absolute immunity. Unlike Defendant Smith, Defendant Stovall did not attest to the facts in the affidavit. Defendant Stovall did sign the complaint and although the complaint is not required to be signed by a prosecutor, it contains the same informational requirements as an information under Kansas law. K.S.A. 22-3201. Defendant Stovall's action in signing the complaint was comparable to the prosecutor's action in Kalina of preparing the information and therefore is entitled to the protection of absolute immunity.
In applying the federal law regarding absolute prosecutorial immunity, a more difficult determination arises concerning the allegations that Attorney General Stovall "made a decision that she would precipitate a massive investigation of those persons whom she and her staff identified as allies with or friends of Meneley" and that she "initiated the investigation of these allegations against plaintiff."
The U.S. Supreme Court has applied a functional approach to determine which actions of a public official are entitled to absolute immunity.
In determining whether particular actions of government officials fit within a common-law tradition of absolute immunity, or only the more general standard of qualified immunity we have applied a 'functional approach,' see e.g., Burns, 500 U.S. at 486, which looks "to the nature of the function performed, not the identity of the act or who performed it," Forrester v. White, 484 U.S. at 229.
Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 125 L. Ed. 209 (1993).
This functional approach has been used to determine whether a prosecutor should be afforded absolute immunity for his or her actions or whether the general standard of qualified immunity would apply. Buckley, 509 U.S. at 269. "... the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley at 273.
In Imbler v. Pachtman, 424 U.S. at 431, the U. S. Supreme Court held that a "state prosecutor had absolute immunity for the initiation and pursuit of a criminal prosecution ..." In Buckley the Court noted in particular that "an out-of-court 'effort to control the presentation of [a] witness' testimony' was entitled to absolute immunity because it was 'fairly within [the prosecutor's] function as an advocate.'" Buckley v. Fitzsimmons, 509 U.S. at 272-73 [quoting Imbler, 424 U.S. at 430, n. 32].
The United States Supreme Court consistently has used the functional approach and over time has clarified the line between a prosecutor's actions that are entitled to absolute immunity and those that are not.
In Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), we held that a state prosecutor had absolute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the State's case at trial. Noting that our earlier cases had been "predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." Id, at 421, we focused on the functions of the prosecutor that had most often invited common-law tort actions. ... In concluding that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983," we did not attempt to describe the line between a prosecutor's acts in preparing for those functions, some of which would be absolutely immune, and his acts of investigation or "administration," which would not.
Buckley v. Fitzsimmons, 509 U.S. at 269.
In Buckley v. Fitzsimmons, the United States Supreme Court distinguished between the function relating to an advocate's preparation for the initiation of a prosecution or for judicial proceedings and a prosecutor's administrative duties and investigative functions which may occur before an advocate has probable cause to have a person arrested or has made a decision to seek an indictment. Buckley v. Fitzsimmons, 509 U.S. at 273.
A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as "preparation" for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial. When the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same.
Buckley, 509 U.S. at 276.
The U.S. Supreme Court held in Buckley that a prosecutor is only protected by qualified immunity for the administrative and investigatory functions unless the investigation relates to the prosecutor's preparation for the initiation of a prosecution or for judicial proceedings. Buckley, 509 U.S. at 273.
Specifically, the United State Supreme Court has stated or held that prosecutors are not entitled to absolute immunity for the following actions: giving advise to the police, Burns v. Reed, 500 U.S. 478, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991); functioning as an administrator rather than an officer of the court, Imbler, 424 U. S. at 431, n. 33; planning and executing a raid on a suspected weapons cache, Buckley, 509 U.S. at 274; making statements to the press, Id.; and fabrication of false evidence during the preliminary investigation of an unsolved crime. Id. at 275-76.
Plaintiff alleges that Attorney General Stovall "precipitated a massive investigation of allies with or friends of Meneley" and furthermore that "she initiated an investigation of these allegations against plaintiff." This court is faced with the proverbial chicken and egg dilemma regarding the "investigation" of Huffmier and Reser. If an investigation was initiated by Attorney General Stovall after she determined that there was probable cause to file a complaint against Huffmier and Reser and if the investigation was a part of her preparation for the initiation of proceedings, then her actions are protected by absolute immunity. However, if Attorney General Stovall initiated an investigatory fishing expedition against "friends and allies of Meneley" or if she initiated an investigation against Huffmier and Reser to support a finding of probable cause, then her actions are only subject to qualified immunity.
In deciding a Motion to Dismiss, the court must accept the plaintiff's description of that which occurred, along with any inferences reasonably drawn therefrom. Sampson, 1 Kan. App. 2d at 193-94. Based on the plaintiff's descriptions of what occurred and the timing in which they allegedly occurred, Defendant Stovall's investigative actions, as they have been alleged by plaintiff, included more than a preparation for an initiation of a judicial proceeding as it relates to Huffmier. Therefore, at this stage of the proceeding, this court must deny Defendants' Motion to Dismiss as to Attorney General Stovall regarding federal claims under 42 U.S.C. § 1983.
Claims as to Sabel and Thomas
Under federal case law investigative functions generally are not afforded absolute immunity. United States Supreme Court cases distinguish between the evaluative and preparatory functions of an advocate which are entitled to absolute immunity and the investigative function of a detective or police officer which are not. Buckley v. Fitzsimmons, 509 U.S. at 273 (1993); Kalina v. Fletcher, 522 U.S. at 126 (1997). In those cases the Court stated:
There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. 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." Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he "has no greater claim to complete immunity than activities of police officers allegedly acting under his direction." [Id.] at 608-09.
Buckley, 509 U.S. at 273. See also Kalina, 522 U.S. at 126. Therefore, under federal case law investigative functions performed by a detective or law enforcement officer are not protected by absolute immunity. Accordingly, accepting the allegations in the Petition as true, Defendants Sabel and Thomas are not entitled to absolute immunity. Under the standards governing a Motion to Dismiss, this court must deny the motion to dismiss regarding the federal claims under § 1983 against Sabel and Thomas.
For the above reasons, Defendants' Motion to Dismiss is granted to all Defendants as to the state tort claims but denied to all defendants as to the federal claims under 42 U.S.C. § 1983. This Memorandum Decision and Order shall serve as the court's final entry of judgment in the above matter. No further journal entry is required.
IT IS SO ORDERED.
Dated this day of , 2001.
_________________
Nancy Parrish
District Judge, Third Judicial District
I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this day of November , 2001, to the following:
Margie J. Phelps
Jonathan B. Phelps
1414 S. Topeka Blvd.
P.O. Box 1886
Topeka, Kansas 66601
Mark L. Bennett, Jr.
5605 SW Barrington Ct. S #201
Topeka, Kansas 66614
___________________
Norma J. Dunnaway
Administrative Assistant