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Richter v. Smith

United States District Court, N.D. Iowa, Western Division

December 21, 2018

ANNA MAY RICHTER, Plaintiff,
v.
BEN SMITH in his individual capacity as Sac County Attorney, Defendant.

          MEMORANDUM OPINION AND ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS

          Leonard T. Strand, Chief Judge.

         I. INTRODUCTION

         This 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).

         II. PROCEDURAL HISTORY

         Richter 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.

         In 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.[1] 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. § 1983)
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).[2] Trial is scheduled to begin February 19, 2019.

         Meanwhile, 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).

         III. APPLICABLE STANDARDS

         A. Rule 12(c)

         Federal 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).

         The Supreme Court has provided the following guidance in considering whether a pleading properly states a claim under Rule 12(b)(6):

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) .

         Courts 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).

         B. Immunities

         The 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.

         1. Absolute Immunity

         The 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)).

         Whether 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.

         2. Qualified Immunity

         “[O]fficers 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. 1992).

Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004) (cleaned up). For the “clearly established” prong of the ...


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