Guzman Rivera v. Rivera Cruz

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 94-2281



                            HECTOR GUZMAN-RIVERA, ET AL.,



                                Plaintiffs, Appellees,



                                          v.



                             HECTOR RIVERA-CRUZ, ET AL.,



                               Defendants, Appellants.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO


[Hon. Gilberto Gierbolini, Senior U.S. District Judge]
                                           __________________________



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
                                        _____________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________



            Jose R.  Gaztambide, with  whom Luis  A. Plaza  and Elisa  Bobonis
            ___________________             ______________      ______________

        Lang were on brief for appellants.
        ____

            Victoria A. Ferrer, with whom Alvaro  R. Calderon, Jr. and  Alvaro
            __________________            ________________________      ______

        R. Calderon, Jr. Law Offices were on brief for appellees.
        ____________________________


____________________



                                     May 31, 1995

                                 ____________________



BOWNES, Senior  Circuit Judge.  This  is the second
                      BOWNES, Senior  Circuit Judge.
                              _____________________



            time that this civil rights action has been before us.  After



            being arrested,  convicted, and imprisoned for  a murder that



            he  did not  commit, plaintiff-appellee Hector  Guzman Rivera



            (joined  by several  family  members) sued  the Secretary  of



            Justice  of  Puerto Rico  and  two  other Justice  Department



            officials  under   42  U.S.C.     1983,   alleging  that  the



            defendants failed  to timely  reinvestigate the facts  of the



            murder after his conviction, and that they failed to move for



            his release  even after their  investigation had  established



            his innocence.



                      In  Guzman-Rivera v.  Rivera-Cruz, 29  F.3d  3 (1st
                          _____________     ___________



            Cir.  1994)  (Guzman I),  we  reversed  the district  court's
                          ________



            dismissal of Guzman's suit on statute of limitations grounds.



            The  defendants  did  not  assert  absolute  immunity  as  an



            alternative ground for affirmance, although that  defense had



            been raised below.  On remand, just six days before trial was



            scheduled to  begin, the  defendants filed an  "Urgent Motion



            for  Relief" seeking  summary judgment  on  absolute immunity



            grounds.  We  are left  to wonder why  absolute immunity  was



            originally  pled  as  a  defense, abandoned  in  the  initial



            appeal, and then resurrected as an emergency on remand.



                      The  district court nevertheless  denied the motion



            on  the merits, finding genuine issues of material fact as to



            the nature of the defendants' post-conviction activities.  We


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therefore  do  not  consider  the absolute  immunity  defense



            waived;  it is  the sole  issue on  appeal.   From  the facts



            presented in this appeal, we find that the defendants are not



            entitled to absolute immunity  for any delays or inadequacies



            in  their  conduct  of  the investigation.    We  also  find,



            however,  that they  are  absolutely immune  for their  post-
                                                                    ____



            investigation  failure  to go  into  court  to seek  Guzman's



            release.



                                          I.
                                          __



                      We  shall assume, as we did in Guzman I, 29 F.3d at
                                                     ________



            5, that the plaintiffs' allegations regarding the defendants'



            authority, duties, acts and omissions are true, and that they



            are  sufficient to allege a violation of federal rights.  See
                                                                      ___



            Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2609 (1993).
            _______    ___________



                      Guzman was convicted of  a 1987 murder in Carolina,



            Puerto Rico, and sentenced to 119 years' imprisonment on June



            27, 1989.  Beginning  on August 21, 1989, his  father, Guzman



            Fernandez, repeatedly  corresponded  with  or  met  with  the



            defendants:   Hector  Rivera Cruz,  the Secretary  of Justice



            (Puerto Rico's equivalent of  a state attorney general); Luis



            Feliciano  Carreras,  Director  of the  Justice  Department's



            Prosecutor's Office and a  high-ranking official of the Civil



            Rights  Division;  and  Carreras'  successor,  Pedro Geronimo



            Goyco. Based on his own investigation, which yielded powerful



            evidence  that  his   son  was  innocent,   Guzman  Fernandez


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requested  that  defendant Luis  Feliciano  Carreras  order a



            reinvestigation of the murder.   Carerras referred the matter



            to an attorney with the Civil Rights Division, but refused to



            do anything more.



                      After several  months  of stonewalling,  the  Civil



            Rights   Division   finally   investigated   Guzman's   case.



            Investigators interviewed  three of  the true  murderer's co-



            conspirators,   who  unanimously   stated  that   Guzman  was



            innocent.  The head of the Civil Rights Division reviewed the



            findings of  the investigation and concluded  that Guzman was



            innocent.  Defendants Pedro  Geronimo Goyco and Hector Rivera



            Cruz refused, however, to move for Guzman's release until the



            murderer was captured.



                      On  June 11,  1990,  Guzman Fernandez  told of  his



            son's plight on Puerto Rico television.  Several  days later,



            he appealed to  the Governor  of Puerto Rico.   The  Governor



            allegedly ordered defendant Geronimo Goyco to release Guzman.



            The defendants instructed Guzman's attorneys to file a motion



            for a new trial under Rule 192.1 of the Puerto  Rico Rules of



            Criminal Procedure.  The  motion was filed on June  15, 1990,



            and Guzman was released the same day.



                                         II.
                                         ___



                      Qualified  immunity  is   the  defense   ordinarily



            available  to public officials who are sued under 42 U.S.C.  



            1983.  Absolute  immunity, by contrast,  is reserved for  the


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"'special  functions'" of  certain  officials  that  resemble



            functions  that would have been  immune at common  law when  



            1983 was enacted.  Buckley, 113  S. Ct. at 2613 (quoting Butz
                               _______                               ____



            v.  Economou,  438 U.S.  478,  508 (1978)).    In determining
                ________



            whether a particular act fits within the common-law tradition



            of absolute  immunity, the Supreme Court  takes a "functional



            approach," Burns v. Reed, 500 U.S. 478, 486 (1991), examining
                       _____    ____



            "'the nature of the function  performed, not the identity  of



            the  actor who performed  it.'"  Buckley, 113  S. Ct. at 2613
                                             _______



            (quoting Forrester v. White, 484 U.S. 219, 229 (1988)).
                     _________    _____



                      Under the  functional  approach, it  is  immaterial



            that the  defendants were  prosecutors ex officio.   Absolute
                                                   __ _______



            immunity protects the prosecutor's "'role as advocate for the



            State,'" and not  his or  her role as  an "'administrator  or



            investigative  officer.'"   Burns, 500  U.S. at  491 (quoting
                                        _____



            Imbler  v. Pachtman, 424 U.S.  409, 430-31, 431 n.33 (1976)).
            ______     ________



            Prosecutorial  conduct is  absolutely  immune only  if it  is
                                                          ____



            "intimately   associated  with  the  judicial  phase  of  the



            criminal  process  .  . .  ."    Imbler, 424  U.S.  at 430-31
                                             ______



            (holding that state prosecutor  had absolute immunity for the



            initiation and  pursuit of a criminal  prosecution, including



            presentation  of  the  state's  case  at  trial).    See also
                                                                 ___ ____



            Buckley,  113 S.  Ct. at  2614; Celia  v. O'Malley,  918 F.2d
            _______                         _____     ________



            1017,  1019 (1st  Cir. 1990)  ("a prosecutor  enjoys absolute


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immunity from suit  based on  actions taken  pursuant to  his



            quasi-judicial function").



                      We  begin by  dividing  the defendants'  challenged



            conduct into two  phases:   (1) the delay  in performing  the



            post-trial  investigation, including any  inadequacies in the



            investigation itself; and (2)  the failure to go to  court to



            obtain   Guzman's   release  after   the   investigation  had



            established his innocence.  As the defendants  moved from (1)



            to (2),  and as the  evidence of Guzman's  innocence mounted,



            their acts  became increasingly associated  with the judicial



            phase of the criminal process.  To illustrate:  once Guzman's



            innocence was  established, the  defendants could obtain  his



            release  only  by filing  a  motion to  dismiss  the criminal



            action,  or by acquiescing in  Guzman's own motion  for a new



            trial.    Looking  backwards  from this  endpoint,  we  might



            characterize   (1),  the   post-trial  investigation,   as  a



            preparatory  step  for  (2),  the in-court  exercise  of  the



            prosecutorial function.



                      The defendants seem to think that absolute immunity



            extends  to all  conduct that  facilitates the  prosecutorial



            function.   The functional analysis, however,  requires us to



            draw  a  line  between  preparatory conduct  that  is  merely



            administrative or  investigative,  and that  which is  itself



            prosecutorial.   For  example,  some,  but not  all,  of  the



            prosecutor's preparatory acts in initiating a prosecution and


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presenting  the  State's case  are  absolutely  immune.   See
                                                                      ___



            Imbler, 424 U.S. at 431  n.33; Burns, 500 U.S. at  492-96 (no
            ______                         _____



            absolute  immunity for  prosecutor's  legal advice  to police



            that there was probable cause for an arrest); Buckley, 113 S.
                                                          _______



            Ct.  at   2615-17  (no  absolute  immunity  for  prosecutors'



            conspiracy  to  manufacture  false evidence  that  was  later



            introduced at grand jury  proceedings and at trial, or  for a



            prosecutor's  out-of-court  statements to  the  press).   Cf.
                                                                      ___



            Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th
            ________    ______________________



            Cir. 1991) ("[A]bsolute  immunity may  attach even to  . .  .



            administrative   or   investigative  activities   when  these



            functions are necessary so that  a prosecutor may fulfill his
                          _________



            function  as  an officer  of  the  court.") (emphasis  added;



            citations  and  internal  quotation   marks  omitted).    The



            prosecutorial nature of an act does not spread backwards like



            an inkblot, immunizing everything it touches.  See Burns, 500
                                                           ___ _____



            U.S.  at 495 ("Almost  any action by  a prosecutor, including



            his or  her  direct  participation  in  purely  investigative



            activity, could  be said  to be  in some  way related to  the



            ultimate  decision whether  to prosecute,  but we  have never



            indicated that absolute immunity is that expansive.").



                      We  do  not  think  that absolute  immunity  should



            extend  to  the  preparatory  conduct  in  this  case.    The



            investigators  of the  Civil  Rights Division,  whose actions



            have been  imputed to  the defendants, actively  gathered and


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corroborated  evidence  of  Guzman's  innocence.   These  are



            functions   typically  performed   by  police   officers  and



            detectives.      By   contrast,  the   prosecutor-as-advocate



            "evaluat[es]   evidence  and  interview[s]  witnesses  as  he
             ___________                                           ______



            prepares  for trial  . . .  ."   Buckley, 113 S.  Ct. at 2616
            ___________________              _______



            (emphasis added).  It is not the prosecutor's usual office to



            uncover evidence in the first instance, before s/he has cause



            to  initiate a post-trial  judicial proceeding.   And  to the



            extent  that prosecutors do so act, they are not performing a



            function "intimately  associated with the  judicial phase  of
                                                       ________



            the  criminal  process .  . .  ."   Imbler,  424 U.S.  at 430
                                                ______



            (emphasis added).



                      Our functional analysis draws  upon Buckley, a pre-
                                                          _______



            trial  immunity  case,  in  which the  Supreme  Court  denied



            absolute  immunity  to  prosecutors  who   had  conspired  to



            manufacture false evidence before there was probable cause to



            arrest  the  suspect.     "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."  Id. at 2616 (citation and internal quotation
                             ___



            marks  omitted).    The   prosecutors  in  Buckley  were  not
                                                       _______



            functioning as advocates  for the state, but  in an "entirely



            investigative"  capacity, inasmuch  as  they lacked  probable



            cause to arrest the  suspect or initiate judicial proceedings


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during  that  period.   Id.   "A  prosecutor neither  is, nor
                                    ___



            should  consider himself  to be,  an  advocate before  he has



            probable cause to have anyone arrested."  Id.
                                                      ___



                      This  case  mirrors   Buckley  in  the   post-trial
                                            _______



            context.  It is undisputed  on appeal that no post-conviction



            proceeding was  pending  at  the  time of  the  civil  rights



            investigation.   Although  the investigation  ultimately gave



            the  defendants   cause  to  move  to   reopen  the  criminal



            proceedings -- i.e., to resume their role as "advocate[s] for
                           ____



            the [Commonwealth]," Imbler, 424 U.S. at 431 n.33 -- this was
                                 ______



            only  one of  several possible  outcomes.   The investigation



            might  have found nothing at all.   Or, it might have exposed



            evidence of prosecutorial misconduct, such as the withholding



            of  potentially  exculpatory  material,  but   no  conclusive



            evidence of Guzman's innocence.  Neither result would require



            the  defendants  to  perform  a  quasi-judicial  function  in



            Guzman's  case.  Only with  the benefit of  hindsight can the



            defendants  marry  the investigation  to  the  exercise of  a



            quasi-judicial function.   See Buckley,  113 S.  Ct. at  2616
                                       ___ _______



            (noting  that prosecutors  lacked "probable  cause  . .  . to



            initiate  judicial   proceedings"  during  period   of  their



            challenged   conduct).     Accordingly,   the   civil  rights



            investigation  had  only  an  attenuated  and contingent,  as



            opposed to "intimate[]," association with the judicial  phase



            of the criminal process.  Imbler, 424 U.S. at 430.
                                      ______


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We  note  several other  reasons for  not extending



            absolute  immunity to any delays or inadequacies in the civil



            rights investigation.  First, "the official seeking  absolute



            immunity bears the  burden of showing  that such immunity  is



            justified  for the function in question."  Burns, 500 U.S. at
                                                       _____



            486.  The defendants here have not identified  any historical



            or common-law support for  extending absolute immunity to the



            conduct  of  a  civil   rights  investigation  that  is  only



            contingently  associated  with  the  judicial  phase  of  the



            criminal process.  "Absent a tradition of immunity comparable



            to the common-law  immunity from malicious  prosecution," the



            Supreme  Court  has "not  been  inclined  to extend  absolute



            immunity  from liability under    1983."  Id.  at 493 (citing
                                                      ___



            Malley v. Briggs, 475 U.S. 335, 342 (1986)).
            ______    ______



                      Second,  to  the extent  that  the  defendants were



            functioning as  officials of the Civil  Rights Division, they



            were not acting purely as advocates for the Commonwealth, but



            partly to vindicate Guzman's civil rights.  The mixed purpose



            of the  civil rights  investigation reflects the  defendants'



            own  mixed functions.   This  factor  also tends  to separate



            their  conduct  from  the  judicial  phase  of  the  criminal



            process.



                      Third,   had  the  defendants   been  civil  rights



            officials only, it seems unlikely that they would be entitled



            to  absolute  immunity for  the  investigation  itself.   The


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defendants should  not enjoy  absolute immunity for  the same



            conduct  merely  because  they  happen  also  to  direct  the



            Prosecutor's  Office.  Cf. Burns, 500 U.S. at 495 (finding it
                                   ___ _____



            "incongruous to  allow prosecutors  to  be absolutely  immune



            from  liability for giving advice to the police, but to allow



            police  officers only  qualified immunity  for following  the



            advice");  Buckley, 113 S. Ct.  at 2617 n.6  ("If the police,
                       _______



            under  the guidance  of  the prosecutors,  had solicited  the



            allegedly 'fabricated'  testimony .  . .  they  would not  be



            entitled to anything more than qualified immunity."); Houston
                                                                  _______



            v. Partee,  978 F.2d  362, 367 (7th  Cir. 1992)  (prosecutors
               ______



            who, acting  solely as  investigators, acquired and  withheld



            exculpatory evidence after their  role in the prosecution had



            ended,  are  "not entitled  to  any  more immunity  than  the



            defendant police  officers"), cert.  denied, 113 S.  Ct. 1647
                                          _____  ______



            (1993).



                      Finally, although every denial of absolute immunity



            potentially exposes prosecutors to additional litigation, our



            analysis  cannot be  driven  by "a  generalized concern  with



            interference with an official's duties  . . . ."  Burns,  500
                                                              _____



            U.S.  at 494.   "Absolute  immunity is  designed to  free the



            judicial  process  from   the  harassment  and   intimidation
            _________________



            associated  with  litigation."    Id.   It  is  reserved  for
                                              ___



            "actions  that are  connected with  the prosecutor's  role in



            judicial  proceedings,  not  for   every  litigation-inducing


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conduct."   Id.    We think  that  the defense  of  qualified
                        ___



            immunity is  sufficient to protect prosecutors  who, like the



            defendants,   conduct   a   post-conviction,   civil   rights



            investigation.



                                         III.
                                         ____



                      These   considerations   do   not  apply   to   the



            defendants'  failure to  move for  the dismissal  of Guzman's



            case  at the  close of  the investigation.   Guzman  does not
                                                                      ___



            allege that the defendants withheld exculpatory evidence from



            him,  thereby delaying his own  motion for a  new trial.  See
                                                                      ___



            Houston,  978 F.2d  at 365  (denying absolute  immunity where
            _______



            claim was  based squarely on failure  to disclose exculpatory



            evidence to the  defense).  In  effect, the plaintiffs'  sole



            post-investigation claim is that  the defendants failed to go



            to court as prosecutors to undo Guzman's conviction.



                      Even if it were  shown that the defendants reviewed



            the evidence,  found Guzman innocent, and  did nothing, their



            decision  withal not to dismiss his criminal case lies at the



            heart of the prosecutorial function.  See Imbler, 424 U.S. at
                                                  ___ ______



            431  n.33 (noting  that  the duties  of  a prosecutor  as  an



            advocate  for  the  State  include the  decision  whether  to



            dismiss an indictment  against particular  defendants).   Cf.
                                                                      ___



            Harrington v. Almy, 977 F.2d 37, 42 n.3 (1st  Cir. 1992) (the
            __________    ____



            decision  to prosecute or not falls  within "the precise zone



            of decision-making the Supreme Court has placed at the center


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of the immunity doctrine").   After all, the decision  not to



            dismiss  complements the initial  decision to  prosecute, and



            the  prosecutor's absolute  immunity for  the latter  is well



            settled.   For the reasons cited in  Imbler, 424 U.S. at 424-
                                                 ______



            27,  dismissal decisions  fit  within the  same tradition  of



            common law immunity as  charging decisions; both are entitled



            to  absolute  immunity under    1983.    Otherwise, a    1983



            plaintiff   would   simply  recast   a  suit   for  malicious



            prosecution as one for failure to dismiss.



                      Although  the alleged omission is reprehensible, we



            hold  that the  defendants are  absolutely immune  from civil



            damages  liability for  their  post-investigation failure  to



            move for Guzman's release.



                                         IV.
                                         ___



                      Because   the  undisputed   facts  show   that  the



            defendants are  not entitled  to absolute immunity  for their



            conduct  of  the  civil  rights  investigation,  the district



            court's  order  denying the  defendants'  motion for  summary



            judgment is affirmed.   The case is remanded  for proceedings
                        ________                ________



            consistent with this opinion.


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