Date: 06-21-2017

Case Style:

Case Number: 16-1186

Judge: Barrow

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: John Whitman, with whom Heidi Hart and Richardson, Whitman, Large & Badger were on brief, for appellant.

Rory A. McNamara and Drake Law, LLC, on brief for amicus curiae
Maine Association of Criminal Defense Lawyers.

Jamesa J. Drake, with whom Zachary L. Heiden and Ezekiel Edwards were on brief, for amici curiae American Civil Liberties Union and American Civil Liberties Union of Maine Foundation; and

Defendant's Attorney: Thomas F. Hallett, with whom Timothy E. Zerillo and Hallett, Zerillo, Whipple, P.A. were on brief, for appellee.

Description: This appeal arises out of the
state prosecution of Vladek Filler in 2009. He was initially
indicted on five counts of gross sexual assault and two counts of
assault of his then-wife Ligia Arguetta Filler. After two trials
-- and two appeals to the Maine Law Court -- he was convicted only
of one misdemeanor assault count, which he is still challenging.
In the wake of these events, Filler filed a civil action against
a number of defendants under 42 U.S.C. § 1983, including a claim
against the prosecuting attorney, then-Hancock County Assistant
District Attorney Mary Kellett, for malicious prosecution.
Kellett chose to challenge the suit by a 12(b)(6) motion on the
sprawling pleadings, rather than allowing for the development of
any facts or providing a defense based on the undisputed facts on
summary judgment. Kellett now brings an interlocutory appeal from
the District Court's order denying her absolute prosecutorial
immunity from certain of Filler's claims against her. We dismiss
the appeal for lack of jurisdiction.
I.
As only a narrow subset of the many issues involved in
this case are raised in this appeal, we recount just the relevant
facts, as set forth in Filler's 103-page Amended Complaint and the
District Court's opinion. Because this case comes to us as an
interlocutory appeal, we assume "that the Plaintiff['s]
allegations regarding the Defendant['s] authority, duties, acts
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and omissions are true, and that they are sufficient to allege a
violation of federal rights." Guzman-Rivera v. Rivera-Cruz, 55
F.3d 26, 28 (1st Cir. 1995); see also Buckley v. Fitzsimmons, 509
U.S. 259, 261 (1993) (in reviewing denial of motion to dismiss
upon finding no absolute immunity, "we make two important
assumptions about the case: first, that petitioner's allegations
are entirely true; and, second, that they allege constitutional
violations for which § 1983 provides a remedy"). Accordingly, we
recount the events at issue as the complaint presents them.
Filler was married to Ligia Filler, now known as Isabella
L. Arguetta ("Arguetta") in 1995. Filler and Arguetta subsequently
had two children together. In 2007, Filler initiated a separation
from Arguetta, and made plans to relocate with their children to
another state. On April 24, 2007, Arguetta was involuntarily
hospitalized at a psychiatric facility. She then made a series of
allegations of abuse against Filler for the purpose of gaining
custody over the children.
Filler was arrested on April 26, 2007, without a warrant.
He was charged with gross sexual assault of Arguetta, and subject
to a number of post-arrest restrictions. Upon arrest, Filler was
held overnight without bail. On April 27, a bail hearing was held
and he was allowed bail. His house remained subject to a bail
lien for the next four years.
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Gouldsboro Police Chief Guy Wycoff threatened to arrest
Filler if Filler was released on bail and returned to his home.
Filler therefore was forced to live in a hotel from April 27, 2007
until May 1, 2007, when Filler's attorney confirmed with Wycoff
that Wycoff "had no authority nor any court order to bar or arrest
[Filler] for returning to his own house." After returning to his
home, Filler remained subject to a number of post-arrest
restrictions, including restrictions on contact with his children,
and a curfew from 8:00 p.m. to 6:00 a.m.
On August 8, 2007, a grand jury indicted Filler on five
counts of Class A gross sexual assault and two counts of Class D
assault. In January 2009, after trial, Filler was convicted of
one count of Class A gross sexual assault and two misdemeanor
charges of assault on Arguetta. The trial court subsequently
overturned the guilty verdict and ordered a new trial based upon
the trial court's finding of prosecutorial misconduct. These
rulings were upheld by the Maine Law Court over Kellett's appeal.1
Following the Maine Law Court's ruling, Kellett told a
local newspaper that she intended to "retry [Filler] on the three
remaining charges." At the second trial, which took place in May
2011 and was conducted by a separate prosecutor, the jury acquitted
1 The Maine Supreme Judicial Court sits as a court of law
("Maine Law Court") over cases on appeal from the District Court
and Superior Court, as well as a limited number of other matters.
See 4 Me. Rev. Stat. Ann. § 57.
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Filler of all counts except one count of Class D assault. As the
District Court highlighted, after the second trial was completed,
the Maine Supreme Judicial Court "imposed discipline
against . . . Kellett for a number of violations of the Maine Rules
of Professional Conduct, the first disciplinary proceeding ever
filed with the Maine Supreme Judicial Court by the Overseers of
the Bar against a member of Maine's prosecutorial bar based on the
prosecutor's representation of the State."
In the wake of these events, on February 4, 2015, Filler
filed a sprawling civil suit against eighteen separate defendants,
including Kellett. The key allegations against Kellett that are
at issue in this interlocutory appeal arise out of Count I of the
complaint, insofar as that count asserts a claim under 42 U.S.C.
§ 1983 for malicious prosecution in violation of Filler's Fourth
Amendment rights. The count alleges, among other things, that (1)
Kellett suppressed exculpatory evidence and tampered with
evidence, and (2) Kellett advised or directed law enforcement
officers not to comply with subpoenas that Filler's attorney
submitted.
Those allegations are at issue in this appeal because,
on March 16, 2015, Kellett filed a motion to dismiss Filler's
§ 1983 claim for failure to state a claim pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. In that motion, Kellett
raised a number of arguments as to the allegations now at issue.
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First, Kellett's motion argued that Filler was time-barred from
bringing a § 1983 claim against her arising out of much of the
conduct alleged in Count I. Second, Kellett's motion argued that
to the extent that Filler's § 1983 malicious prosecution claim
against Kellett was based on the violation of Filler's right to
due process, whether substantive or procedural, the claim was not
cognizable. See Albright v. Oliver, 510 U.S. 266, 271 n.4 (1994)
(holding that substantive due process does not "furnish the
constitutional peg on which to hang" the tort of malicious
prosecution in a § 1983 claim); Trafton v. Devlin, 43 F. Supp. 2d
56, 61 (D. Me. 1999) (noting that a § 1983 claim for the violation
of procedural due process rights can exist only where, unlike here,
"no adequate 'post-deprivation remedy' is available under state
law" (quoting Pérez-Ruiz v. Crespo-Guillén, 25 F.3d 40, 42 (1st
Cir. 1994))). Third, Kellett's motion argued that, insofar as
Filler's § 1983 claim against her was premised on the violation of
his Fourth Amendment rights, Kellett is entitled to absolute
prosecutorial immunity. And finally, Kellett's motion contended
that Filler had failed to make a prima facie showing of the state
tort of malicious prosecution under Maine law.
In ruling on the motion to dismiss, the District Court
concluded that Kellett was entitled to absolute immunity for her
"consideration of the evidence, her decision whether to charge the
case, what charges to present to the grand jury, and how to
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prosecutor the charges," because these actions were all
"intimately associated with the judicial phase of the criminal
process." However, the District Court denied the rest of Kellett's
motion to dismiss Count I of Filler's complaint.
Kellett now challenges the District Court's denial of
her motion to dismiss the claim set forth in Count I.
II.
Because Kellett brings an interlocutory appeal, we have
no jurisdiction over her challenges to the denial of her motion to
dismiss that do not pertain to her defense of absolute immunity
from Filler's claims under § 1983.2 See 28 U.S.C. § 1292(b);
Limone v. Condon, 372 F.3d 39, 50 (1st Cir. 2004) (noting that the
"general rule that only final judgments and orders are immediately
appealable in civil cases" permits an exception for interlocutory
review of an order rejecting an immunity defense that raises a
legal question, but this exception does not confer jurisdiction
over other contested issues in the case). But while we do have
2 Because our jurisdiction is limited, we do not address any
of Kellett's arguments on the merits of Filler's § 1983 suit,
including the scope of the Fourth Amendment malicious prosecution
theory. However, we note that recent cases have addressed this
theory and should provide additional guidance for district courts.
See Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 914-15 (2017)
(establishing that a claim under § 1983 for unlawful pretrial
detention is cognizable under the Fourth Amendment); Hernandez-
Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013) (holding that a
"Fourth Amendment malicious prosecution claim" for unlawful
pretrial detention is cognizable under § 1983).
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interlocutory jurisdiction over her challenge to the District
Court's ruling regarding absolute immunity, we have such
jurisdiction only to the extent that her challenge turns on a
question of law rather than fact. Hill v. Coppleson, 627 F.3d
601, 606 (7th Cir. 2010) (holding that the circuit court did not
have jurisdiction over an interlocutory appeal from the district
court's denial of summary judgment based on an assertion of
immunity because evaluating the merits of the immunity defense
depended on the resolution of a factual dispute concerning the
prosecutor's function).
It has been observed that absolute immunity, unlike
qualified immunity, only rarely turns on questions of fact. See
Ellis v. Coffee Cty. Bd. of Registrars, 981 F.2d 1185, 1189 (11th
Cir. 1993) ("Absolute immunity does not depend on good faith or
reasonableness; thus [circuit courts] would be unlikely to find a
case where disputed factual questions precluded review."
(citation omitted)). But, that is not always the case. See Lawson
v. Abrams, 863 F.2d 260, 263 (2d Cir. 1988) (holding that the
district court's order allowing the filing of an amended complaint
was not immediately appealable even though the defendant
prosecutors claimed absolute immunity where the plaintiff's claims
"d[id] not clearly reveal the degree to which the conduct relied
on could be considered part" of the prosecutor's function and
therefore holding that "the availability of the defense of absolute
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immunity as to these claims must await the development of facts
during discovery"). And it is not the case here. We thus conclude
that we lack jurisdiction over this interlocutory appeal.
To understand why, it is helpful to understand the legal
framework underlying prosecutorial absolute immunity. We thus
start by providing some brief background before applying the
relevant legal principles to the absolute immunity issues that
this interlocutory appeal presents.
A.
State prosecutors are entitled to absolute immunity from
liability under § 1983 to the extent that such immunity is
"necessary to protect the judicial process." Burns v. Reed, 500
U.S. 478, 485 (1991) (citing Imbler v. Pachtman, 424 U.S. 409,
422-23 (1976)). This reflects our "concern that harassment by
unfounded litigation would cause a deflection of the prosecutor's
energies from his public duties, and . . . would shade his
decisions instead of exercising the independence of judgment
required by his public trust." Id. (quoting Imbler, 424 U.S.
at 423).
Because "[a]bsolute immunity is designed to free the
judicial process from the harassment and intimidation associated
with litigation," id. at 494 (emphasis in original) (citation
omitted), "[t]hat concern . . . justifies absolute prosecutorial
immunity only for actions that are connected with the prosecutor's
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role in judicial proceedings," id. Accordingly, a prosecutor has
absolute immunity when functioning as an "advocate" for the state
in "initiating a prosecution and in presenting the State's case,"
Imbler, 424 U.S. at 431, because that conduct is "intimately
associated with the judicial phase of the criminal process," id.
at 430. However, a prosecutor does not receive absolute immunity
when acting "in the role of an administrator or investigative
officer." Id. at 430-31. Rather, "no more than a qualified
immunity is available with respect to acts of a prosecutor that
are administrative or investigative in nature." Lawson, 863 F.2d
at 263.
Importantly, absolute immunity does not necessarily
apply to all actions that a prosecutor may take once the "judicial
phase" begins. In Buckley, for example, the Supreme Court
considered whether a prosecutor enjoyed absolute immunity for
making false statements during a press conference that the
prosecutor gave announcing the return of an indictment. 509 U.S.
at 261. Buckley held that the prosecutor did not have absolute
immunity because (1) there was not a common-law immunity for a
prosecutor's out-of-court statements to the press; and
(2) comments to the press are not made in a prosecutor's role as
advocate for the state. Id. at 277.
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Buckley explained:
The conduct of a press conference does not involve the
initiation of a prosecution, the presentation of the
state's case in court, or actions preparatory for these
functions. Statements to the press may be an integral
part of a prosecutor's job, and they may serve a vital
public function. But in these respects a prosecutor is
in no different position than other executive officials
who deal with the press, and . . . qualified immunity is
the norm for them.
Id. at 278 (citations omitted). Buckley then concluded that
"[w]hen, as here, the prosecutorial function is not within the
advocate's role and there is no historical tradition of immunity
on which we can draw, our inquiry is at an end." Id.
B.
In light of these principles, the key question in this
case concerns whether the functions that Kellett was allegedly
performing were functions for which she enjoys absolute immunity.
We begin with Kellett's assertion that she is entitled to absolute
immunity for giving legal advice to police officers regarding
Filler's subpoenas. We then turn to Kellett's assertion that she
is entitled to absolute immunity for withholding and tampering
with exculpatory evidence (taking these allegations to be true, as
we must).
Kellett emphasizes that "a prosecutor cannot be held
personally liable for the knowing suppression of exculpatory
information" during the judicial phase, even where "prosecutors
failed to disclose exculpatory evidence specifically requested by
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the defense and where prosecutors misled the trial court in order
to conceal their failure to disclose exculpatory evidence." Reid
v. New Hampshire, 56 F.3d 332, 336 (1st Cir. 1995) (citation
omitted). And Kellett contends that "Filler is trying to get
around the rule of immunity for withholding exculpatory evidence
by reframing his claim as one about giving legal advice."
Kellett's "end-run" contention, however, is too factdependent
for us to be able to review it at this time. Count I of
the complaint alleges that Kellett "assumed the role of legal
counsel" to law enforcement officers, "and advised them not to
comply with lawful defense . . . subpoenas." But, it is not at
all clear that, in advancing the assertion that Filler is merely
attempting an "end run," Kellett is presenting a legal argument
that she is entitled to absolute immunity based on the facts set
forth in the complaint, rather than a factual argument that she is
entitled to absolute immunity based on her distinct understanding
of the facts that transpired.
Filler contends, for example, that he was involved in
civil custody and divorce proceedings at the same time as his
criminal prosecution, and he claims that he sought at least one of
the relevant subpoenas for use in the civil, rather than criminal,
proceedings, though it is not clear exactly to which subpoenas he
refers. Yet Kellett, in contending that she has absolute immunity
for all of the legal advice and direction that Count I alleges she
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gave, does not make clear what understanding she has of the
circumstances under which she gave advice regarding the subpoenas
referenced in Filler's complaint. As a result, we find ourselves
in a situation where Filler's claims against Kellett are "not
clearly foreclosed and . . . do not clearly reveal the degree to
which the conduct relied on could be considered part of the
decision to prosecute or intimately associated with the judicial
proceedings, rather than purely investigative or administrative."
Lawson, 863 F.2d at 263. In consequence, the "the availability of
the defense of absolute immunity as to these claims must await the
development of facts during discovery." Id.
Kellett does contend in this regard that, because the
advice was given after the case against Filler was initiated, she
was necessarily acting in her prosecutorial capacity and thus
entitled as a matter of law to absolute immunity. But, as we have
noted, the fact that a prosecutor engaged in certain activities
after a prosecution had already commenced is not necessarily
dispositive of the question whether absolute immunity attaches.
See Buckley, 509 U.S. at 278 (noting that a prosecutor is not
entitled to absolute immunity for actions taken even after the
commencement of the judicial phase if the actions "[do] not involve
the initiation of a prosecution, the presentation of the state's
case in court, or actions preparatory for these functions").
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A similar problem prevents us from reviewing Kellett's
assertion of absolute immunity as it relates to the allegations in
Count I that Kellett tampered with and withheld exculpatory
evidence.3 To be sure, Filler does argue that Kellett cannot claim
absolute immunity with respect to any of her actions implicated by
this set of allegations because these allegations concern conduct
that occurred prior to his indictment. But, in this case, the
indictment followed the arrest. It is thus not the only critical
point in time for purposes of determining the beginning of the
judicial phase. See Buckley, 509 U.S. at 273-74 & n.5 (emphasizing
that "[a] prosecutor neither is, nor should consider himself to
be, an advocate before he has probable cause to have anyone
arrested" and clarifying that, although necessary to the
successful assertion of absolute immunity, a probable-cause
determination is not sufficient); Genzler v. Longanbach, 410 F.3d
630, 639 (9th Cir. 2005) ("Absolute immunity [cannot] be invoked
before probable cause was established."); Goldstein v. Moatz, 364
F.3d 205, 214–15 (4th Cir. 2004) (noting that prosecutors "do not
enjoy absolute immunity for acts committed prior to a probable
3 In an amicus brief, the American Civil Liberties Union
("ACLU"), the ACLU of Maine Foundation, and the Maine Association
of Criminal Defense Lawyers argue that tampering with evidence is
distinguishable from withholding exculpatory evidence, and should
not be similarly entitled to absolute immunity. The parties
themselves, however, have not briefed this issue to us. And, given
the unclear nature of the record before us, we do not address the
issue.
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cause determination" because "[o]nce a prosecutor possesses
probable cause, he must decide whether to prosecute, which charges
to initiate, what trial strategy to pursue, and a multitude of
other important issues that require him to exercise discretion,"
and highlighting that "[i]n a pre–probable-cause
investigation . . . a prosecutor exercises no more discretion than
a police officer and thus should enjoy no more protection than
qualified immunity"); Hill v. City of N.Y., 45 F.3d 653, 661 (2d
Cir. 1995) ("Before any formal legal proceeding has begun and
before there is probable cause to arrest, it follows that a
prosecutor receives only qualified immunity for his acts.").
Nevertheless, even if Kellett may have a basis for
asserting the absolute immunity defense, she does not identify
with any specificity why she is entitled to immunity with respect
to the allegations in Count I that pertain to her treatment of
evidence. And it is by no means clear that every allegation in
Filler's complaint concerning such treatment by her occurred
during the judicial rather than the investigative phase. For
example, Filler's complaint alleges that "[o]n or about April 25,
2007," -- that is, the day before Filler's arrest on April 26,
2007 -- "Kellett engaged in or supported and approved of[] the
falsification of an April 25, 2007 videotape interview of Arguetta
by Wycoff."
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In light of the undifferentiated nature of Kellett's
assertion of absolute immunity with respect to her treatment of
evidence, it is unclear whether the parties' dispute over immunity
with respect to the allegations in Count I concerning the treatment
of potentially exculpatory evidence is a legal one about what
protection the law affords a prosecutor either before or during
the judicial phase, or instead a factual one about when the alleged
conduct occurred.
In consequence, we also lack jurisdiction to review this
aspect of her absolute immunity defense in this interlocutory
appeal. For, here, too, while Filler's claim against Kellett is
not "clearly foreclosed" by absolute immunity, "the availability
of the defense of absolute immunity as to these claims must await
the development of facts during discovery." Lawson, 863 F.2d at
263; see also Hill, 45 F.3d at 663 (holding that where "immunity
issue respecting the [fabrication of videotapes] raises factual
issues that cannot be conclusively determined at this stage in the
litigation," the court "[had] no jurisdiction to entertain it").

Outcome: For the foregoing reasons, the appeal is dismissed.

Plaintiff's Experts:

Defendant's Experts:

Comments: