United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER ON MOTION FOR JUDGMENT
ON THE PLEADINGS
Leonard T. Strand, Chief Judge.
matter is before me on defendant Ben Smith's motion (Doc.
No. 28) for judgment on the pleadings. Plaintiff Anna Richter
has filed a resistance (Doc. No. 29) and Smith has replied
(Doc. No. 32). Oral argument is not necessary. See
N.D. Iowa L.R. 7(c).
commenced this action on July 7, 2016, by filing a complaint
and jury demand (Doc. No. 3). She filed an amended complaint
(Doc. No. 6) on August 5, 2016. Smith is named as a defendant
in his individual capacity as the elected County Attorney of
Sac County, Iowa. Doc. No. 6 at 1.
general terms, Richter alleges that Smith has violated her
constitutional rights by misusing his powers as a prosecutor
to punish her for speech that is critical of him.
Specifically, Richter contends that she is the mother of
Tracey Richter (Tracey), who Smith prosecuted for murder in
Sac County, Iowa, in 2011. Id. at ¶¶ 25-26.
After Tracey's conviction, Richter and others posted
criticisms about the prosecution online using the
“Ripoff Report” website. Id. at
¶¶ 44-46. Richter alleges that Smith, who had
garnered national attention for his role in the case, was
apparently angered by this criticism and used his position to
commence an unlawful investigation against Richter and
others. As a result, Richter alleges the following
constitutional violations and torts:
Count I - First Amendment Retaliation (First, Fourth and
Fourteenth Amendments, 42 U.S.C. § 1983)
Count II - Abuse of Process (Fourteenth Amendment, 42 U.S.C.
Count III - Malicious Prosecution/Wrongful Institution of
Civil Proceedings (Iowa law)
Count IV - Invasion of Privacy (Iowa law)
Id. Richter seeks declaratory and injunctive relief,
compensatory damages, punitive damages, interest, attorney
fees and costs. Id. at 11. Smith answered the
amended complaint on July 17, 2018, see Doc. No. 27,
and now seeks dismissal pursuant to Federal Rule of Civil
Procedure 12(c). Trial is scheduled to begin February 19,
others involved in the Ripoff Report coverage of Tracey's
case have sued Smith for his alleged retaliatory actions
against them. In Xcentric Ventures, LLC et al. v.
Smith, 15-cv-4008-LTS (N.D. Iowa), as a United States
Magistrate Judge, I filed a Report and Recommendation
(15-cv-4008 at Doc. No. 55) recommending that the District
Court Judge grant the plaintiffs' motion for a
preliminary injunction preventing Smith from continuing to
investigate in retaliation for plaintiffs' exercise of
their First Amendment rights. The parties to the
Xcentric case entered a confidential settlement
agreement, and the case was dismissed on June 16, 2017.
Id. at Doc. No. 155. Another case involving an
alleged Ripoff Report employee, Darren Meade, is scheduled
for trial in April 2020. Meade v. Smith,
17-cv-4034-LTS (N.D. Iowa) (Amended Trial Scheduling Order at
Doc. No. 28).
Rule of Civil Procedure 12(c) provides that “[a]fter
the pleadings are closed - but early enough not to delay
trial - a party may move for judgment on the
pleadings.” A Rule 12(c) motion is reviewed under the
same standard that governs rule 12(b)(6) motions to dismiss
for failure to state a claim. Westcott v. City of
Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).
Supreme Court has provided the following guidance in
considering whether a pleading properly states a claim under
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” As the
Court held in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), the pleading standard Rule 8 announces but
does not require detailed factual allegations, but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. Id. at 555. A pleading that offers
labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Id. Nor
does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement. Id. at 557.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Id. at 570. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. at 556. The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Id. Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.
Id. at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)
(cleaned up) .
assess “plausibility” by “‘draw[ing]
on [our own] judicial experience and common
sense.'” Whitney v. Guys, Inc., 700 F.3d
1118, 1128 (8th Cir. 2012) (quoting Iqbal, 556 U.S.
at 679). Courts “review the plausibility of the
plaintiff's claim as a whole, not the plausibility of
each individual allegation.” Id. (citation
omitted). While factual plausibility is typically
the focus of a Rule 12(b)(6) motion to dismiss, federal
courts may dismiss a claim that lacks a cognizable
legal theory. See, e.g., Somers v. Apple,
Inc., 729 F.3d 953, 959 (9th Cir. 2013); accord
Target Training Int'l, Ltd. v. Lee, 1 F.Supp.3d 927,
937 (N.D. Iowa 2014).
existence of an immunity is one basis for granting a motion
to dismiss under Rule 12(c). Smith claims that he is entitled
to absolute prosecutorial immunity and qualified immunity
against most of the allegations in this case.
United States Supreme Court has made it clear that
prosecutors are absolutely immune from damage liability in a
suit for conduct “intimately associated with the
judicial phase of the criminal process.” Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976) (prosecutors are
absolutely immune from liability under § 1983 for their
conduct in “initiating a prosecution and in presenting
the State's case”); see also Kalina v.
Fletcher, 522 U.S. 118, 128-29 (1997) (prosecutors have
absolute immunity for conduct in the preparation and filing
of a motion for an arrest warrant unless he acts as a
witness); Burns v. Reed, 500 U.S. 478, 493 (1991)
(prosecutors are not entitled to immunity for administrative
or investigative functions normally performed by a police
officer); Williams v. Hartje, 827 F.2d 1203, 1209
(8th Cir. 1987) (“The decision of a prosecutor to file
criminal charges is within the set of core functions which is
protected by absolute immunity. This is so even if the
prosecutor makes that decision in a consciously malicious
manner, or vindictively, or without adequate investigation,
or in excess of his jurisdiction.” (citation omitted)).
prosecutorial conduct is “intimately associated with
the judicial phase of the criminal process” requires
“a focus on the conduct for which immunity is
claimed, not the harm that the conduct may have caused or the
question whether it was lawful.” Buckley v.
Fitzsimmons, 509 U.S. 259, 271 (1993). In
Buckley, the Supreme Court divided the functions of
the prosecutor as follows:
[In Imbler, ] [w]e expressly stated that “the
duties of the prosecutor in his role as advocated for the
State involve actions preliminary to the initiation of a
prosecution and actions apart from the courtroom, ” and
are nonetheless entitled to absolute immunity. We 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.”
424 U.S. at 430 n.32. To be sure, Burns made
explicit the point we had reserved in Imbler: A
prosecutor's administrative duties and those
investigatory functions that do not relate to an
advocate's preparation for the initiation of a
prosecution or for judicial proceedings are not entitled to
absolute immunity. See Burns, 500 U.S. at 494-96. We
have not retreated, however, from the principle that 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. Those acts must
include the professional evaluation of the evidence assembled
by the police and appropriate preparation for its
presentation at trial or before a grand jury after a decision
to seek an indictment has been made.
On the other hand, as the function test of Imbler
recognizes, the actions of a prosecutor are not absolutely
immune merely because they are performed by a prosecutor.
Qualified immunity “represents the norm” for
executive officers. Malley v. Briggs, 475 U.S. at
34, so when a prosecutor “functions as an administrator
rather than as an officer of the court” he is entitled
only to qualified immunity. Imbler, 424 U.S. at 431,
n.33. 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
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 608-609.
509 U.S. at 273-74. Importantly, the “function”
is evaluated from the time it is performed: “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.” Id. at 276. Where a
prosecutor is not entitled to absolute immunity, qualified
immunity analysis applies.
are entitled to qualified immunity under § 1983 unless
(1) they violated a federal statutory or constitutional
right, and (2) the unlawfulness of their conduct was
‘clearly established at the time.'”
District of Columbia v. Wesby, 138 S.Ct. 577, 589
(2018) (citation omitted). The Eighth Circuit Court of
Appeals has stated:
What this means in practice is that whether an official
protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on
the ‘objective legal reasonableness' of the action,
assessed in light of the legal rules that were ‘clearly
established' at the time it was taken. Wilson v.
Layne, 526 U.S. 603, 614 (1999). The Supreme Court has
generously construed qualified immunity protection to shield
“all but the plainly incompetent or those who knowingly
violate the law.” Malley, 475 U.S. at 341.
“Officials are not liable for bad guesses in gray
areas; they are liable for transgressing bright lines.”
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004)
(cleaned up). For the “clearly established” prong
of the ...