Gary Donahoe, et al v. Joseph Arpaio, et al

Filing

FILED OPINION (WILLIAM A. FLETCHER, RONALD M. GOULD and MORGAN B. CHRISTEN) AFFIRMED. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [8745332] [12-16145, 12-16146]

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DONALD T. STAPLEY, JR.; KATHLEEN
STAPLEY,
Plaintiffs-Appellees,
v.

No. 12-16145
D.C. No.
2:10-cv-02756NVW

PETER R. PESTALOZZI; LISA
AUBUCHON,
Defendants,
and
ANDREW THOMAS; ANN THOMAS,
Defendants-Appellants.

DONALD T. STAPLEY, JR.; KATHLEEN
STAPLEY,
Plaintiffs-Appellees,

No. 12-16146

v.

D.C. No.
2:10-cv-02756NVW

ANDREW THOMAS; ANN THOMAS,
Defendants,

OPINION

and

Page: 1 of 19

Case: 12-16145

08/16/2013

2

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

LISA AUBUCHON; PETER R.
PESTALOZZI,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
May 9, 2013—San Francisco, California
Filed August 16, 2013
Before: William A. Fletcher, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Opinion by Judge W. Fletcher

SUMMARY*

Civil Rights
The panel affirmed the district court’s denial of former
Maricopa County prosecutors Andrew Thomas’s and Lisa
Aubuchon’s (and their spouses’) motions to dismiss based on
absolute immunity.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 3 of 19

3

Former Maricopa County Board of Supervisors member
Donald T. Stapley, Jr. and his spouse (“plaintiffs”) brought
this lawsuit under 42 U.S.C. § 1983 and state law alleging
that Thomas and Aubuchon initiated a frivolous federal civil
racketeering (“RICO”) suit against Stapley to harass him as
part of an ongoing political war in Maricopa County
involving the Board of Supervisors, Sheriff Joe Arpaio, and
others. Thomas and Aubuchon were later disbarred, in part
for initiating the RICO suit in question. The panel held that,
under the circumstances, Thomas and Aubuchon were not
entitled to absolute immunity because their actions were not
sufficiently analogous to those of a prosecutor.

COUNSEL
Sarah Lynn Barnes (argued), Richard Edward Chambliss, and
Donald Wilson, Jr., Broening Oberg Woods & Wilson P.C.,
Phoenix, Arizona; Douglas V. Drury (argued) and James P.
Mueller, Mueller & Drury, P.C., Scottsdale, Arizona, for
Defendants-Appellants.
Larry Jay Wulkan (argued); Michael Charles Manning;
Stefan M. Palys, Stinson Morrison Hecker LLP, Phoenix,
Arizona; Merwin D. Grant, Kenneth Brent Vaughn, Grant &
Vaughn P.C., Phoenix, Arizona, for Plaintiffs-Appellees.

Case: 12-16145

4

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI
OPINION

W. FLETCHER, Circuit Judge:
Former prosecutors Andrew Thomas and Lisa Aubuchon,
and their spouses, (“Defendants”) appeal the district court’s
partial denial of their motions to dismiss. Former Maricopa
County Board of Supervisors member Donald T. Stapley, Jr.
and his spouse (“Plaintiffs”) allege that Defendants initiated
a frivolous federal civil racketeering (“RICO”) suit against
Stapley to harass him. The suit was part of an ongoing
“political war” in Maricopa County between the Board of
Supervisors, Sheriff Joe Arpaio, and others. Thomas and
Aubuchon were later disbarred, in part for initiating the RICO
suit in question.
Thomas and Aubuchon argued that they are entitled to
absolute prosecutorial immunity from any claims arising out
of their filing of the civil RICO action. The district court
disagreed, denying Defendants’ motion to dismiss as to the
claims arising from the RICO suit. We affirm.
I. Factual Background
This case is before us on a Rule 12(b)(6) motion to
dismiss. We describe the facts using the allegations from
Stapley’s Second Amended Complaint.
A. General Background
Stapley is a member of the Maricopa County Board of
Supervisors (“the Board”). Thomas was the County
Attorney, heading the Maricopa County Attorney’s Office
(“MCAO”). Aubuchon was a Deputy County Attorney.

Page: 4 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 5 of 19

5

Stapley and other supervisors clashed on a number of
occasions with Thomas, as well as County Sheriff Joe Arpaio,
former County Chief Deputy Sheriff David Hendershott, and
others. Thomas and Sheriff Arpaio resented Stapley’s
investigations into the expenditures of the MCAO and the
Maricopa County Sheriff’s Office (“MCSO”). On one
occasion, Stapley criticized Thomas’ excessive use of
expensive outside counsel, including Thomas’ former law
firm. Thomas responded by suing the Board to establish
himself as the sole decision maker for hiring outside counsel.
On another occasion, Stapley criticized the MCSO for using
County money to finance trips to Central America. Thomas
also believed that Stapley was interfering with Thomas’
ongoing anti-methamphetamine program. Eventually the
Board cut $6 million from the MCAO budget, and “[t]he
conflicts escalated into what has been called a ‘political
war.’”
Defendants initiated a campaign of harassment against
Stapley and his supporters. As part of their campaign,
Defendants launched baseless investigations into Stapley for
alleged wrongdoing.
One investigation related to a
construction project for a new tower of the Maricopa County
Superior Court (the “Court Tower Project”). Defendants
reported possible wrongdoing by Stapley and others to the
U.S. Post Office and the Department of Justice. The U.S.
Attorney’s Office determined that there was no evidence of
wrongdoing, noting that “in several instances, the evidence
was so lacking as to make the theory of liability nearly
incomprehensible.” Sheriff Arpaio and Thomas later formed
what they called the Maricopa County Anti-Corruption
Enforcement unit (“MACE”), which they used to target their
political enemies with criminal investigations. Thomas
assigned Aubuchon to be MACE’s primary attorney.

Case: 12-16145

6

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Defendants filed two baseless criminal complaints against
Stapley. While seeking the first indictment, Aubuchon
omitted or misrepresented facts and law to the grand jury.
Thomas issued a press release announcing the indictment, and
Thomas and Sheriff Arpaio also “sent a letter to the Secret
Service notifying it that [Stapley] was under indictment and
investigation.”
The State Bar investigated Thomas for ethical violations
in prosecuting Stapley. Judge Rebecca Albrecht, acting for
the State Bar, informed Thomas, “It is clear to me that under
the facts as they were presented in the pleadings there was a
clear issue of conflict of interest, which if borne out would
have led to a conclusion that you had violated Ethical Rules
1.7, 1.10 and 8.4(d).” Judge Albrecht stated that she would
close the investigation once Thomas confirmed that he was
no longer involved in the prosecution.
To avoid disciplinary proceedings, Thomas advised the
State Bar that he had transferred prosecution of the case and
ongoing investigations of Stapley to Yavapai County
Attorney, Sheila Polk. He announced that MCAO was to
have no further involvement in the case. However, after the
announcement, Aubuchon “continued to work on the
investigations,” reporting to Sheriff Arpaio and Thomas. All
118 counts of the first indictment were eventually dismissed
or voluntarily withdrawn by Polk. Sheriff Arpaio and
Hendershott complained to Polk that the dismissal would
embarrass them in the media.
Thomas and Aubuchon next filed a civil RICO suit
against Stapley and others, as discussed below. While this
civil suit was pending, Defendants initiated a second criminal
case against Stapley. Pima County Superior Court Judge

Page: 6 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 7 of 19

7

John S. Leonardo dismissed a similar criminal case against a
different Board member, Mary Rose Wilcox, finding that
Thomas had numerous conflicts of interest related to his
“efforts to retaliate against members of the [Board]” and to
“gain political advantage by prosecuting those who oppose
him politically.” Special counsel for the State Bar also
informed Thomas and Aubuchon that filing criminal charges
while pursuing the civil RICO suit against Stapley created
ethical conflicts.
After Judge Leonardo dismissed the case against Wilcox,
Thomas, and Sheriff Arpaio announced that Thomas would
send the new criminal case against Stapley to Gila County
Attorney, Daisy Flores, for review. Flores refused to
prosecute any counts of the indictment due to the lack of
evidence. She noted that because of “the sordid tapestry of
how this case arose, . . . any subsequent prosecution of
[Stapley] would be our ratification of government misconduct
on the part of the MCAO and the MCSO.”
B. Civil RICO Suit
Thomas and Aubuchon filed a federal civil racketeering
suit against Stapley and others in late 2009. A number of
people had advised them not to file the suit. Aubuchon knew
that an outside law firm had evaluated the viability of a civil
RICO action in October 2009, and had concluded that “there
was insufficient evidence for such an action.” A RICO expert
in the Maricopa County Attorney’s Office, Peter Spaw,
informed Thomas and Aubuchon that there was no evidence
to justify a civil RICO action. Spaw refused to assist in
drafting the complaint. MCAO supervisors Barnett Lotstein
and Phil MacDonnell also told Thomas that “the RICO Suit
was not appropriate or viable based on the facts and

Case: 12-16145

8

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

circumstances.” Despite these warnings, Thomas and
Aubuchon actively participated in drafting the complaint
before filing it on December 1, 2009. Lotstein and
MacDonnell — who had “believed that Thomas had heeded
their advice not to pursue” the RICO suit — learned about the
filing only after Sheriff Arpaio and Thomas announced it to
the media.
Sheriff Arpaio and Thomas were the plaintiffs in the civil
RICO suit. The complaint listed Thomas and Aubuchon as
plaintiffs’ attorneys. Aubuchon signed the complaint. The
complaint named fourteen individuals as defendants, as well
as the Maricopa County Board of Supervisors and a law firm.
The individual defendants included Stapley, other County
Board members, state court judges, and county employees.
The general theory of the RICO complaint was that
Stapley and the other RICO defendants had conspired to
implement the Court Tower Project and to thwart Thomas
and Sheriff Arpaio’s legitimate criminal investigations into
the activities of Stapley and others. The complaint alleged
that the RICO defendants cut funding to the MCAO,
intimidated and retaliated against prosecutors, improperly
evaded surveillance devices, filed frivolous State Bar
complaints against Thomas and his deputies, and committed
various criminal acts. The complaint further alleged that the
judicial defendants had been biased against Thomas and had
issued unfair rulings against him.
The complaint generally alleged two types of injuries.
First, it alleged that defendants cut funding for the MCAO,
thus depriving Sheriff Arpaio of legal services and preventing
the MCAO from fulfilling its duties. Second, the complaint
asserted injuries to Thomas and other MCAO attorneys

Page: 8 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 9 of 19

9

related to the RICO defendants’ alleged efforts to deprive
them of their law licenses by reporting them to the bar
association. The complaint sought treble damages.
Thomas and Sheriff Arpaio voluntarily dismissed the
RICO suit on March 11, 2010, less than four months after
filing. The court had taken no action on the suit. The
dismissal notice stated that “having referred this matter to the
Public Integrity Section (“PIN”) of the United States
Department of Justice and having received their assurances
that PIN will review the matter, Plaintiffs [Sheriff Arpaio]
and [Thomas] . . . hereby voluntarily dismiss” the case.
Thomas and Sheriff Arpaio held a press conference where
Thomas announced “victory” in the RICO suit. With the
approval of Sheriff Arpaio and Thomas, Sheriff Arpaio’s
attorney, Robert Driscoll, stated at the conference that the
Department of Justice (“DOJ”) had agreed to investigate the
RICO Lawsuit defendants. DOJ had in fact made no such
agreement, but had informed Driscoll only that Thomas and
Sheriff Arpaio could submit a tip like any other citizen. DOJ
issued a statement two days later, rejecting the press
conference’s characterization of events and stating that it was
“dismayed to learn” that information received from DOJ had
been “used as a platform for a press conference.”
C. Disbarment of Thomas and Aubuchon
A disciplinary panel of the Arizona State Bar investigated
Thomas and Aubuchon related to the above incidents. The
panel found “overwhelming” evidence that Defendants had
abused their power and “spen[t] the public’s money for their
cause célèbre.” Noting that the “harm” done by Thomas and
Aubuchon “to the public, individuals, and the profession was

Case: 12-16145

10

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

stunning on every front,” the panel ordered them disbarred.
Aubuchon has appealed the ruling.
With respect to the RICO complaint, the bar panel noted
that Thomas and Aubuchon had filed suit despite numerous
warnings from other MCAO attorneys and from outside
counsel that the suit “would be a misuse of the law” and that
“sanctions for a frivolous lawsuit would likely be imposed.”
The panel determined that the complaint, in addition to being
“unintelligible or nonsensical” in places, did not state facts
sufficient to support any of its legal claims. The panel also
found that Thomas and Aubuchon made no effort to gather
evidence to support the suit, that they lacked authority under
Arizona law to file the suit, and that the suit caused severe
emotional damages to the RICO defendants.
II. Proceedings Below
Stapley, his spouse, and several other Board members,
judges, and County employees sued seeking monetary
damages. The suits named multiple defendants, including
Thomas, Aubuchon, Sheriff Arpaio, and Maricopa County
itself. Most of the parties have settled. The only remaining
plaintiffs in this appeal are Stapley and his spouse. Thomas,
Aubuchon, and their spouses are the only defendants.
Stapley has alleged twelve causes of action under
42 U.S.C. § 1983 and state law. His claims include wrongful
institution of civil proceedings, malicious prosecution, false
imprisonment and arrest, intentional infliction of emotional
distress, unlawful search, equal protection and other
constitutional violations, and conspiracy to violate § 1983.
Stapley alleged that Defendants’ filing of the RICO suit
caused some of his injuries.

Page: 10 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 11 of 19

11

Defendants moved to dismiss on multiple grounds. They
contend, inter alia, that they are entitled to absolute immunity
from claims arising out of their initiation of the RICO suit.
The district court partially granted and partially denied
Defendants’ motions. See Donahoe v. Arpaio, 869 F. Supp.
2d 1020, 1078–79 (D. Ariz. 2012). Relevant here, the district
court rejected Defendants’ assertion of absolute immunity
from claims arising out of the RICO suit. Id. at 1054–56.
The court noted that absolute immunity for government
attorneys is generally limited to those attorneys’ actions that
are “‘intimately associated with the judicial phase of the
criminal process.’” Id. at 1055 (quoting Imbler v. Pachtman,
424 U.S. 409, 430 (1976)). The court held that the civil
RICO suit was not sufficiently analogous to criminal
proceedings to qualify for absolute immunity. The court
emphasized that the civil RICO statute does not give any
special authority to county officials to bring RICO suits. Id.
at 1056. Rather, Defendants had filed suit under a provision
authorizing any member of the public to sue. Since
Defendants were on the same footing as private lawyers in
bringing the suit, the court concluded, they were not entitled
to absolute immunity. Id.
Defendants timely appealed the denial of absolute
immunity from claims arising out of the civil RICO suit.
III. Jurisdiction
We have jurisdiction under 28 U.S.C. § 1291. A district
court order denying absolute immunity on a motion to
dismiss constitutes an immediately appealable final decision.
See Will v. Hallock, 546 U.S. 345, 350 (2006).

Case: 12-16145

12

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Stapley contends that we lack jurisdiction because the
immunity question turns on disputed facts. We disagree. As
discussed below, we consider the facts as alleged in the
complaint. We then apply the law to those alleged facts to
determine whether Defendants are entitled to absolute
immunity. Cf. Mathews v. Chevron Corp., 362 F.3d 1172,
1180 (9th Cir. 2004) (performing de novo review of mixed
questions of law and fact).
IV. Standard of Review
We review de novo the denial of absolute immunity on a
Rule 12(b)(6) motion to dismiss. See Miller v. Davis,
521 F.3d 1142, 1145 (9th Cir. 2008); Cervantes v. United
States, 330 F.3d 1186, 1187 (9th Cir. 2003). “All allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.” Cousins v. Lockyer,
568 F.3d 1063, 1067 (9th Cir. 2009) (internal quotation marks
omitted). We are “not bound to accept as true a legal
conclusion couched as a factual allegation.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks omitted). The 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) (internal quotation marks omitted).
V. Discussion
The sole issue before us is whether Defendants are
absolutely immune from suit under 42 U.S.C. § 1983 for their
actions in filing the civil RICO complaint. The parties agree
that state-law prosecutorial immunity from the state-law
claims is the same as federal-law immunity from claims

Page: 12 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 13 of 19

13

under § 1983. We hold that Defendants are not entitled to
absolute immunity.
A. Supreme Court Precedent
In Imbler, the Court held that prosecutors have absolute
immunity under § 1983 for a decision to initiate a criminal
prosecution. 424 U.S. at 430–31. The Court noted the
common law rationales for granting immunity, including
insulating prosecutors from harassment and allowing them to
make independent decisions without fear of litigation. Id. at
422–24. The Court determined that the same concerns
warranted absolute immunity under § 1983. Id. at 424. The
Court acknowledged that absolute immunity comes at the
price of “leav[ing] the genuinely wronged defendant without
civil redress.” Id. at 427. It nonetheless concluded that
absolute immunity was the best “balance between the evils”
in the criminal context. Id. at 428 (internal quotation marks
omitted).
The Court in Imbler did not define the precise scope of
prosecutorial immunity. It held only that absolute immunity
applied to a prosecutor’s “activities . . . intimately associated
with the judicial phase of the criminal process.” Id. at 430.
The Court has since confirmed that the functional nature of
the activities being performed, not the status of the person
performing them, is the key to whether absolute immunity
attaches. See Forrester v. White, 484 U.S. 219, 229 (1988)
(holding that“the nature of the function performed, not the
identity of the actor who performed it,” informs the absolute
immunity analysis).
In Butz v. Economou, 438 U.S. 478, 511–14 (1978), the
Court extended Imbler beyond criminal prosecutions to

Case: 12-16145

14

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

administrative enforcement proceedings. In Butz, the Court
held that “agency officials performing certain functions
analogous to those of a prosecutor should be able to claim
absolute immunity with respect to such acts.” Id. at 515.
Noting again that functional comparisons are key and that it
is the “characteristics of the judicial process rather than its
location” that matters, id. at 512, the Court concluded that
agency enforcement actions are sufficiently analogous to
criminal prosecutions that agency officials who initiate
enforcement actions are protected by absolute immunity. Id.
at 516–17. The Court emphasized that qualified immunity is
the norm for government officials except in “exceptional
situations where it is demonstrated that absolute immunity is
essential for the conduct of the public business.” Id. at 507.
B. Ninth Circuit Precedent
In two early cases, we granted absolute immunity to IRS
attorneys who initiated civil tax-collection lawsuits. See Fry
v. Melaragno, 939 F.2d 832, 838 (9th Cir. 1991); Flood v.
Harrington, 532 F.2d 1248, 1252 (9th Cir. 1976). We used
broad language in Flood, stating that we did not “see any
significant reason to distinguish actions involving civil
claims” from criminal prosecutions. Flood, 532 F.2d at 1251.
Similarly, in Fry we stated broadly that government attorneys
are entitled to absolute immunity in all litigation contexts:
Whether the government attorney is
representing the plaintiff or the defendant,
or is conducting a civil trial, criminal
prosecution or an agency hearing,
absolute immunity is “necessary to assure
that . . . advocates . . . can perform their
respective functions without harassment or

Page: 14 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 15 of 19

15

intimidation.” Butz, 438 U.S. at 512. Given
the similarity of functions of government
attorneys in civil, criminal and agency
proceedings, and the numerous checks on
abuses of authority inherent in the judicial
process, we reiterate our statement in Flood
that “[t]he reasons supporting the doctrine of
absolute immunity apply with equal force
regardless of the nature of the underlying
action.” 532 F.2d at 1251 (citation omitted).
Fry, 939 F.2d at 837 (omissions and alteration in original)
(parallel citation omitted). Defendants contend, based on this
language, that prosecutors are entitled to absolute immunity
in any civil litigation, and that this immunity extends to
claims arising from the civil RICO action at issue here.
We do not believe that Flood and Fry require absolute
immunity in all civil suits. Flood and Fry both involved suits
brought against government attorneys who had brought civil
tax enforcement proceedings. The scope of immunity for
other types of civil suits was not at issue. The broad reading
of Fry and Flood for which Defendants advocate would go
well beyond what is required under Supreme Court precedent.
The Court has emphasized that qualified immunity is the
norm for government officials, and that absolute immunity
exists only in “exceptional situations” where it is “essential
for the conduct of the public business.” Butz, 438 U.S. at
507; see also Burns v. Reed, 500 U.S. 478, 487 (1991) (“We
have been quite sparing in our recognition of absolute
immunity, and have refused to extend it any further than its
justification would warrant.” (internal quotation marks and
citation omitted)). The Court has never stated that
government attorneys receive absolute immunity for all

Case: 12-16145

16

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

litigation-related conduct, even in criminal cases. Rather, the
Court has repeatedly stated that only certain actions taken by
prosecutors receive absolute immunity, and that a functional
comparison of the activities performed is critical. See Imbler,
424 U.S. at 430 (finding absolute immunity for “activities . . .
intimately associated with the judicial phase of the criminal
process”); Butz, 438 U.S. at 515 (finding absolute immunity
for “functions analogous to those of a prosecutor”).
We recently rejected a prosecutor’s claim of absolute
immunity in Lacey v. Maricopa County, 693 F.3d 896,
912–14 (9th Cir. 2012) (en banc). The county attorney in
Lacey was another ally of Sheriff Arpaio in his wars against
political adversaries. See id. at 909. The county attorney had
issued subpoenas against newspaper publishers who had
offended Sheriff Arpaio by publishing articles that criticized
him. Id. at 913–14. The subpoenas were invalid because
they had been issued without approval from or notice to the
grand jury. Id. at 913. The attorney thereby violated Arizona
statutes requiring either grand jury approval or notification.
We held that the attorney was not entitled to absolute
immunity from § 1983 claims brought by the improperly
subpoenaed publishers. Id. We emphasized that the county
attorney had avoided judicial scrutiny by acting unilaterally:
“Where the prosecutor has side-stepped the judicial process,
he has forfeited the protections the law offers to those who
work within the process.” Id. at 914.
C. Absolute Immunity for Thomas and Aubuchon
The question here is whether, in the circumstances of this
case, Thomas and Aubuchon are entitled to absolute
immunity from claims arising out of their initiation of the
civil RICO suit. Defendants have the burden of showing that

Page: 16 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 17 of 19

17

they are entitled to absolute immunity. See Burns, 500 U.S.
at 486. We conclude that Defendants have not carried their
burden.
Because the RICO suit was civil, see 18 U.S.C. § 1961, et
seq., it was not “intimately associated with the judicial phase
of the criminal process.” Imbler, 424 U.S. at 430 (emphasis
added). Defendants therefore try to analogize this case to
Butz, where absolute immunity was extended in the civil
context to “functions analogous to those of a prosecutor.”
Butz, 438 U.S. at 515. We conclude that Defendants’ actions
here were not “analogous to those of a prosecutor” for two
reasons. See id.
First, the federal RICO statute does not provide any
special authorization for county attorneys to file civil RICO
suits. County attorneys may file civil RICO suits under
18 U.S.C. § 1964(c), but they have no status as plaintiffs
different from private citizens. Compare § 1964(b)
(authorizing the United States Attorney General to initiate a
RICO suit), with § 1964(c) (authorizing “[a]ny person injured
in his business or property” to sue under the RICO statute).
As the district court noted, Thomas and Aubuchon were thus
“in the same position as . . . private lawyers” in bringing the
RICO suit. 869 F. Supp. 2d at 1056. This case is therefore
distinguishable from all cited cases where a government
attorney was granted absolute immunity. In those cases, the
government attorney was taking action that only a legal
representative of the government could take. See, e.g.,
Imbler, 424 U.S. at 410 (criminal prosecution); Butz,
438 U.S. at 480 (federal agency enforcement action); Fry,
939 F.2d at 834 (civil tax collection proceeding); Flood,
532 F.2d at 1249 (same). Inasmuch as Defendants did not act
in a uniquely governmental role in filing their civil RICO

Case: 12-16145

18

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

suit, their actions were not “analogous to those of a
prosecutor.” Butz, 438 U.S. at 515.
Second, the circumstances of this case indicate that the
civil RICO suit was not “analogous” to a criminal
prosecution. Rather, Defendants filed the RICO suit as part
of their long-running “political war” against members of the
Board of Supervisors, judges, and others. The suit was
essentially a harassing public-relations ploy. Defendants
filed baseless criminal suits against Stapley and others both
before and after filing the RICO suit, seeking media publicity
for their actions in connection with these suits. Before
initiating the civil RICO suit, Defendants received warnings
from attorneys both inside and outside their office that the
suit had no basis in fact or law and would likely result in
sanctions. Defendants had also been warned of ethical
conflicts related to filing the suit.
Defendants nonetheless filed the RICO suit, announcing
it to the media immediately after filing. Then, before the
court had any opportunity to assess its validity, Defendants
voluntarily dismissed the suit. After dismissing the suit,
Defendants held a press conference, announcing that the
Department of Justice had agreed to investigate the RICO
Lawsuit defendants. The DOJ had, in fact, made no such
agreement, and it later announced that it was “dismayed to
learn” of the press conference. Through these actions,
Defendants deliberately “side-stepped the judicial process,”
like the prosecutor in Lacey who avoided judicial scrutiny
and thereby lost the protections of absolute immunity. Lacey,
693 F.3d at 914.
We need not determine whether each of the distinguishing
characteristics here, standing alone, would be sufficient to

Page: 18 of 19

Case: 12-16145

08/16/2013

ID: 8745332

DktEntry: 67-1

STAPLEY V. PESTALOZZI

Page: 19 of 19

19

defeat absolute immunity. We hold only that, under the
circumstances presented here, Defendants are not entitled to
absolute immunity because their actions were not sufficiently
“analogous to those of a prosecutor.” Butz, 438 U.S. at 515.
Conclusion
We affirm the district court’s denial of Defendants’
motions to dismiss based on their asserted absolute immunity
from claims arising out of their civil RICO suit.
AFFIRMED.