DeCamp v. Douglas County Franklin Grand Jury

978 F.3d 1047
Court of Appeals for the Eighth Circuit·Decided November 2, 1992·No. No. 91-1260·Published·Cited by 48 cases

Opinions

HEANEY, Senior Circuit Judge

John W. Decamp, a Nebraska lawyer, appeals from the district court’s dismissal of his 42 U.S.C. § 1983 action. We affirm.

[1049]*1049I.

Decamp brought this action against the following defendants in their individual and official capacities: the Douglas County Franklin Grand Jury, Michael Flanagan, Foreman; Samuel Van Pelt, grand jury special prosecuting attorney; and Terry C. Dougherty, assistant special prosecuting attorney.

DeCamp alleged the following, which we must accept as true when deciding whether the district court properly dismissed his action. A grand jury convened in March 1990 to investigate the failure of the Franklin Community Credit Union as well as charges of child abuse surrounding key figures in the credit union. A memo DeCamp wrote to an Omaha reporter containing information regarding subjects of the investigation played a major role in the formation of the grand jury. DeCamp never appeared before the grand jury, which deliberated three months before releasing a report of its findings.

The grand jury’s report contained the following statement:

It is our opinion that DeCamp issued his memorandum for personal political gain and possible revenge for past actions alleged against him. From personal experience and the bitterness engendered from media attacks, an attorney of his stature should be more discreet.

According to DeCamp, the prosecuting attorneys and the grand jury “co-authored” the grand jury’s report and the grand jury released the report. DeCamp claimed the publication of the above statement in an Omaha newspaper defamed him and violated his right to due process under the Fourteenth Amendment. DeCamp also claimed the defendants’ actions violated his right to free speech under the First Amendment. He requested expungement of his name from the grand jury’s record and report, a written retraction of the statement, and damages.

The district court granted defendants’ motion to dismiss, concluding that the prosecutors and grand jurors possessed absolute immunity. The court found' that the grand jurors were acting within the scope of their authority when they reported their findings regarding DeCamp’s memo: DeCamp stated in his complaint that the memo he wrote played a major role in the formation of the grand jury, and Neb.Rev. Stat. § 29-1401 (Reissue 1989) authorized the grand jury to report on incidents that caused them to be called.1 The court also concluded that the prosecutors did not act outside the scope of their authority if they co-authored the report that mentioned DeCamp because this action “could fall under the category of giving legal advice” authorized by Neb.Rev.Stat. § 23-1208 (Reissue 1987).2

II.

We first address the issue of subject matter jurisdiction. “[Ejvery federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.’ ” Alumax Mill Prods., Inc. v. Congress Fin. Corp., 912 F.2d 996, 1002 (8th Cir.1990) (citation omitted). DeCamp brought his First Amendment and due process claims under 42 U.S.C. § 1983, and his state law defamation claims under the court’s pendent jurisdiction. His complaint must allege more than state defamation claims to invoke this court’s jurisdiction. See Nelson v. City of McGehee, 876 F.2d 56, 58 (8th Cir.1989) [1050]*1050(defamation alone does not trigger federal cause of action under section 1983). We agree with the district court that DeCamp’s claim that the grand jurors intentionally disseminated their report to injure his reputation without providing due process does not state a claim under section 1983. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 LEd.2d 405 (1976) (damage to reputation does not support a finding of a liberty or property interest protected by the Fourteenth Amendment).

We conclude, however, that because DeCamp properly stated a First Amendment claim, the court has subject matter jurisdiction over this ease. DeCamp claimed that defendants intended to chill his freedom of speech “by using the position of the Grand Jury to accuse [him] of wrongdoing in manner [sic] to prohibit and intimidate [him] from further using his First Amendment rights to criticize public institutions.” Although such an allegation would not constitute a section 1983 claim “unless there is also an allegation of some specific injury resulting therefrom,” we are satisfied that DeCamp alleged the specific objective harm necessary to state a chilling of his First Amendment rights. Wade v. Goodwin, 843 F.2d 1150, 1152 (8th Cir.), cert. denied, 488 U.S. 854, 109 S.Ct. 142, 102 L.Ed.2d 114 (1988) (setting forth standard). According to DeCamp, the defendants’ actions caused him to suffer emotional and monetary injuries, including emotional distress and loss of employment and wages. This is sufficient to survive a motion to dismiss. Compare Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-26, 33 L.Ed.2d 154 (1972) (allegation of subjective chill not substitute for claim of specific present objective harm or threat of specific future harm) with Riggs v. City of Albuquerque, 916 F.2d 582, 584-86 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1623, 113 L.Ed.2d 720 (1991) (plaintiffs alleged chilling of their First Amendment rights and resulting injuries sufficient to survive motion to dismiss). See also Meese v. Keene, 481 U.S. 465, 473-74, 107 S.Ct. 1862, 1867-68, 95 L.Ed.2d 415 (1987) (plaintiff alleged and demonstrated more than a subjective chill on motions for summary judgment).

III.

Although we have jurisdiction over DeCamp’s claims, we conclude that the district court correctly dismissed DeCamp’s claim against the grand jurors because they possessed absolute immunity against liability arising from their “co-authoring” of the report. “[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, 990 n. 13, 47 L.Ed.2d 128 (1976).

As early as 1872, the Court recognized that it was “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.”

Stump v.

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