Kimberly Potter v. Debra Gorrell Wehrle

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 18, 2024
• Docket: 24-3097
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0455n.06

Case No. 24-3097

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 18, 2024 ) KIMBERLY POTTER, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN DEBRA GORRELL WEHRLE; AUBREY ) DISTRICT OF OHIO COOK; OHIO ATTORNEY GENERAL’S ) OFFICE, ) Defendants-Appellees. ) OPINION )

BEFORE: COLE, MATHIS, and BLOOMEKATZ, Circuit Judges.

COLE, Circuit Judge. After a state trial court dismissed criminal charges against Kimberly

Potter, she filed a complaint in federal court against the Ohio Attorney General, Debra Wehrle,

and other state actors alleging malicious prosecution. Defendants filed a motion to dismiss the

complaint. The district court denied the motion and granted leave for Potter to amend her

complaint. Following the filing of the amended complaint, defendants again moved to dismiss the

case. Potter thereupon sought leave to file a second amended complaint. The district court denied

the request for leave to amend the complaint and granted defendants’ motion to dismiss the

amended complaint. Potter appeals the district court’s order granting the motion to dismiss.

We affirm. No. 24-3097, Potter v. Wehrle, et al.

I.

Potter was a certified nurse practitioner who provided nursing care for patients at the

Whetstone Gardens and Care Center, a long-term care facility in central Ohio. In 2017, the Ohio

Attorney General began investigating allegedly inadequate treatment of patients at Whetstone.

The Ohio Attorney General claimed that staff had falsified medical treatment documentation and

forged signatures of nursing staff, and that neglect by several employees—including Potter—

resulted in the death of one patient.

As a result of the investigation, a grand jury indicted Potter on three charges: involuntary

manslaughter, gross patient neglect, and patient neglect. After the trial court dismissed some

counts against Potter, the indictment was superseded twice, and the case proceeded to trial. After

the state’s case in chief, the trial court granted Potter’s motion for judgment of acquittal.

Potter thereafter filed a malicious prosecution claim against the Ohio Attorney General and

two of his employees—special agent Aubrey Cook and prosecutor Debra Gorrell Wehrle. Potter

alleged that the state’s investigation of her was flawed and maliciously motivated for several

reasons.

Potter’s suit centers on Wehrle’s role, as the assistant prosecutor assigned to Potter’s

criminal case, during the investigatory stage of Potter’s prosecution. Potter alleges that Wehrle

“inappropriately”: (i) inserted herself into the investigation, (ii) met with witnesses, and (iii)

directed the interview and investigation process. According to Potter, the Attorney General and

Cook developed a timeline from staffing logs which the Attorney General knew to be falsified and

inaccurate. And from this timeline, Wehrle allegedly coached several Whetstone staff witnesses

about the sequence of events and encouraged them to testify consistent with the false timeline.

The Attorney General and Cook also allegedly misrepresented witness statements in their

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investigative reports. Then, Wehrle and the Attorney General apparently encouraged their medical

expert to rely on those reports.

As a result of defendants’ conduct, Potter alleged she suffered economic damage, reduced

future professional employment opportunities, severe humiliation and embarrassment, and

extreme and ongoing emotional distress. She also allegedly experienced a deprivation of liberty

because she agreed to a recognizance bond in each case, was restricted from contacting victims

and witnesses, and was prohibited from being within 500 feet of the Whetstone Gardens and Care

Center for the three years her prosecution lasted. The 500-foot barrier prevented Potter from

seeking employment at Riverside Hospital because it was within the designated zone and made

travel for Potter more difficult because a major highway through Columbus runs within 500 feet

of Whetstone.

Defendants moved to dismiss Potter’s amended complaint, arguing that Potter’s claims

against state officials in their official capacity were barred by sovereign immunity and that Potter’s

claims against the individual defendants failed to state a claim. In addition to opposing the motion

to dismiss, Potter sought leave to amend her complaint a second time. She also moved voluntarily

to drop Cook as a defendant.

The district court granted Potter’s motion to drop Cook and defendants’ motion to dismiss

but denied Potter’s motion for leave to amend as futile. When dismissing Potter’s claim against

Wehrle, the district court reasoned that Wehrle was entitled to prosecutorial immunity for all

allegedly wrongful actions that could support the malicious prosecution claim. It further reasoned

that Potter did not allege Wehrle coached witnesses to lie during interviews or knowingly passed

on false information. Because Potter had not alleged that Wehrle relied on or promoted false

evidence during the preliminary investigation, her claim was barred by prosecutorial immunity.

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Potter now appeals the district court’s decision dismissing her malicious prosecution claim

against Wehrle. She argues the district court erred by granting defendants’ motion to dismiss and

denying her leave to file a second amended complaint. Wehrle contends that the district court

correctly dismissed Potter’s malicious prosecution claim.

II.

We review de novo a district court’s rulings on a motion to dismiss. Majestic Bldg. Maint.,

Inc. v. Huntington Bancshares, Inc., 864 F.3d 455, 458 (6th Cir. 2017). Similarly, we review de

novo a denial of a motion for leave to amend the complaint where the district court finds that

amendment would be futile. Brent v. Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 673–74

(6th Cir. 2018). When reviewing the district court’s decision dismissing a complaint, we accept

the plaintiff’s well-pleaded factual allegations as true and construe them in a light most favorable

to the plaintiff. Prince v. Hicks, 198 F.3d 607, 611 (6th Cir. 1999). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

We review denials of absolute immunity de novo. Rieves v. Town of Smyrna, 959 F.3d

678, 690 (6th Cir. 2020) (internal citations omitted).

To plead a claim for malicious prosecution, a plaintiff must plausibly allege that (1) the

defendant “made, influenced, or participated in the decision to prosecute” the plaintiff; (2) the

prosecution lacked probable cause; (3) the plaintiff suffered a “deprivation of liberty” because of

the prosecution; and (4) the proceeding was resolved in the plaintiff’s favor. Sykes v. Anderson,

625 F.3d 294, 308–09 (6th Cir. 2010) (cleaned up).

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The district court dismissed Potter’s claim under the first element. Wehrle argues that,

even if Potter plausibly alleged that she “made, influenced, or participated in the decision to

prosecute,” this court should affirm the district court’s dismissal because Potter fails to plausibly

allege a deprivation of liberty. Because we affirm the district court’s decision to dismiss as to the

first element, we do not address whether Potter plausibly alleged a deprivation of liberty.

III.

An issue central to this appeal is separating Wehrle’s investigatory acts from her

prosecutorial acts because the latter are entitled to absolute immunity. We apply a “functional

approach” to assess whether a government official is entitled to absolute immunity. Rieves, 959

F.3d at 690 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)). The functional approach

requires us to consider “the nature of the function performed, not the identity of the actor who

performed it.” Buckley, 509 U.S. at 269 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)).

The official seeking absolute immunity has the burden to show it is justified for the function in

question. Burns v. Reed, 500 U.S. 478, 486 (1991).

One such form of absolute immunity is prosecutorial immunity. “A prosecutor is entitled

to absolute immunity when he acts as an advocate for the State and engages in activity that is

intimately associated with the judicial phase of the criminal process.” Rieves, 959 F.3d at 691

(cleaned up) (quoting Prince, 198 F.3d at 611). As examples, the Supreme Court has held that

initiating a prosecution, arguing the state’s case, and presenting evidence in support of a motion

for a search warrant are actions entitled to prosecutorial immunity. Burns, 500 U.S. at 490–91;

Imbler v. Pachtman, 424 U.S. 409, 431 (1976).

Prosecutorial immunity does not, however, extend to a prosecutor’s “investigatory

functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for

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judicial proceedings.” Buckley, 509 U.S. at 273. For example, absolute immunity does not protect

a prosecutor where they engage in “investigative functions normally performed by a detective or

police officer.” Id. Additionally, “the fact that a prosecutor ‘later call[s] a grand jury to consider

the evidence [that his alleged misconduct uncovered] does not retroactively transform that work

from the administrative into the prosecutorial.’” Rieves, 959 F.3d at 691 (quoting Buckley, 509

U.S. at 275–76). We are “quite sparing” when extending absolute immunity to prosecutors. Id. at

694 (quoting Buckley, 509 U.S. at 269). Some acts, “such as the preliminary gathering of evidence

that may ripen into a prosecution, are too attenuated to the judicial process to afford absolute

protection.” Cunningham v. Dep’t of Child.’s Servs., 842 F. App’x 959, 966 (6th Cir. 2021)

(quoting Ireland v. Tunis, 113 F.3d 1435, 1445 (6th Cir. 1997)).

Whether a state actor influenced or participated in a prosecution “hinges on the degree of

the[ir] involvement and the nature of the[ir] actions.” See Sykes, 625 F.3d at 311 n.9 (citing Malley

v. Briggs, 475 U.S. 335, 344–45 n.7 (1986)). It is a fact determination based on the totality of the

circumstances. Id.

We must, therefore, consider Wehrle’s actions during the state of Ohio’s preliminary

investigation of Potter and disregard Wehrle’s prosecutorial actions. In other words, the functional

approach requires us to disregard that Wehrle, as an assistant prosecutor, ultimately prosecuted

Potter and presented evidence to the grand jury, because those acts are entitled to absolute

prosecutorial immunity. We focus, then, on the well-pled allegations of the amended complaint

regarding Wehrle’s actions during the preliminary investigation to determine whether she

influenced the decision to prosecute.

The amended complaint and proposed second amended complaint do not allege sufficient

facts relating to Wehrle’s conduct during the preliminary investigation for relief to be granted to

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Potter. Indeed, Potter’s amended complaint and second amended complaint do not support her

theory of the case on appeal. Although Potter argues in her briefing that Wehrle helped develop

the allegedly unsupported timeline, knew the information was falsified and inaccurate, and that

such conduct occurred over a year prior to convening the first grand jury, she does not raise those

allegations in her amended complaint. The amended complaint—and proposed second amended

complaint—allege that Cook and the Attorney General developed the timeline and investigative

reports, not Wehrle. And the amended complaint does not allege that Wehrle knew this

information was falsified or inaccurate; Potter’s complaint merely alleges that the Attorney

General and Cook did. Merely filing “allegedly misleading” investigative materials “is insufficient

to support a malicious-prosecution claim.” See Richards v. County of Washtenaw, 818 F. App’x

487, 493–94 (6th Cir. 2020).

Disregarding the arguments of counsel which are unsupported by the allegations in the

complaint, we are left with allegations that Wehrle inserted herself into the investigation and

supervised it, ultimately making the decision to seek an indictment against Potter. These

allegations do not establish that Wehrle influenced the prosecution without probable cause during

the preliminary investigation.

Potter argues that her case is nearly identical to this court’s precedent in Rieves, 959 F.3d

at 691–92, where the court found that prosecutors were not entitled to absolute immunity. In that

case, two prosecutors unreasonably directed the investigation of the plaintiff without probable

cause by supporting law enforcement in raiding stores that were selling products with cannabidiol

(“CBD”). Id. at 692. There, the plaintiffs alleged specific instances where the prosecutors

supported law enforcement in raiding stores, intervened in the investigation, recommended police

officers padlock businesses selling illegal products and execute undercover buys, told certain

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detectives to get more involved, and advised on the legality of the seized products throughout the

investigation. Id. at 686–87. As this court explained, “both [prosecutors] were at least partly

responsible for effectuating the arrests of the plaintiffs and the raids of their stores.” Id. at 692.

Thus, absolute immunity did not shield those prosecutors from liability.

Potter does not allege Wehrle engaged in the kinds of police-like investigative acts

described in Rieves. The complaint in Rieves contained “very specific factual allegations” that the

prosecutors “acted outside their role as judicial advocates during the investigative phase . . . and

were objectively unreasonable in pushing the operation forward without probable cause.” See id.

at 690. Although Potter alleges that Wehrle inserted herself into the investigation and improperly

coached witnesses, interviewing witnesses and preparing them to testify are prosecutorial actions

protected by absolute immunity. See Cunningham, 842 F. App’x at 966. And, as discussed above,

though Potter’s briefing argues that Wehrle developed a timeline based on information Wehrle

knew was false, these allegations are not included in the amended complaint or the proposed

second amended complaint. Potter’s allegations regarding Wehrle’s role in the investigation fall

short.

In short, Potter’s amended complaint fails to allege facts that plausibly show that Wehrle

had any sort of improper influence on the preliminary investigation. And because Potter’s

proposed second amended complaint did not add any additional facts to cure that fatal defect in

her amended complaint, the district court correctly denied her motion for leave to amend as well.

IV.

For these reasons, we affirm the district court’s order dismissing Potter’s amended

complaint and denying her leave to file a second amended complaint.

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