Mitchell et al v. Eldridge et al

Filing 63

OPINION AND ORDER granting 36 , 38 , 40 , 42 , 44 , 46 and 48 Motions to dismiss; Conner Eldridge, Kyra E. Jenner, Tracy A. Triplett, Christopher Plumlee, Kenneth Elser, Deborah Groom and Candace L. Taylor are dismissed with prejudice and denying as moot 34 Motion to Substitute Party; denying as moot 61 Motion for Entry of Dismissal. Signed by Honorable Timothy L. Brooks on November 19, 2014. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

JAMES B. MITCHELL, JASON M.
FEDELE, and TIFFNEY R. FEDELE
V.

PLAINTIFFS

CASE NO. 5:14-CV-05176

CONNER ELDRIDGE, DEBORAH F.
GROOM, TRACY A. TRIPLETT, KYRA E.
JENNER, CANDACE L. TAYLOR,
KENNETH ELSER, CHRISTOPHER
PLUMLEE, JANET L. PLOUDRE, GRANT
EDWARDS, RONALD SCAMARDO,
BETH PHILLIPS, UNITED STATES OF
AMERICA, and UNKNOWN U.S. MARSHALS

DEFENDANTS

OPINION AND ORDER

Currently before the Court are Separate Defendants Conner Eldridge, Kyra E.
Jenner, Tracy A. Triplett, Christopher Plumlee, Kenneth Elser, Deborah F. Groom, and
Candace L. Taylor’s Motions to Dismiss (Docs. 36, 38, 40, 42, 44, 46, and 48) and Briefs
in Support (Docs. 37, 39, 41, 43, 45, 47, and 49); Separate Defendants Conner Eldridge,
Tracy A. Triplett, Kyra E. Jenner, and Christopher Plumlee’s Motion to Substitute the
United States for the Individual Named Defendants (Doc. 34) and Brief in Support (Doc.
35); and Defendants’ Motion for Entry of Dismissal as to Tiffney R. Fedele (Doc. 61). Also
before the Court are Separate Plaintiff Mitchell’s Response in Opposition to Defendants’
Motions to Dismiss (Doc. 55) and Plaintiff Jason M. Fedele’s Response in Opposition to
Defendants’ Motion to Dismiss (Doc. 59). Defendants’ Reply to the Motion to Substitute
(Doc. 60) and Defendants’ Reply to the Motion to Dismiss (Doc. 62) were filed without prior
permission from the Court, and will not be considered.

For the reasons described herein, Defendants’ Motions to Dismiss (Docs. 36, 38,
40, 42, 44, 46, and 48) are GRANTED, and Defendants’ Motion to Substitute (Doc. 34) and
Defendants’ Motion for Entry of Dismissal (Doc. 61) are MOOT.
I. Background
Plaintiffs bring this action pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), alleging that United States Attorney Conner
Eldridge, and Assistant United States Attorneys Kyra E. Jenner, Tracy A. Triplett,
Christopher Plumlee, Kenneth Elser, Deborah F. Groom, Candace L. Taylor, and Beth
Phillips (“Prosecutors”) conspired with Internal Revenue Service (“IRS”) special agent
Janet L. Ploudre, and IRS task force officers Grant Edwards and Ronald Scamardo (“IRS
Investigators”) in order to bring to the grand jury the false charge of “enticing minors to
engage in prostitution” in violation of 18 U.S.C. § 2422(b) so that the Court would detain
Plaintiffs without bail. Plaintiffs allege that because § 2422(b) carried a ten year mandatory
minimum sentence, the Court denied Plaintiffs bail.

Plaintiffs also assert that the

Prosecutors coerced several witnesses and co-conspirators to falsely accuse Plaintiffs of
knowingly hiring minor escorts. Plaintiffs point out that they did not plead guilty to the
charge of enticing minors to engage in prostitution, as that count was dismissed at
sentencing.
Plaintiffs further allege that on June 17, 2011, after Plaintiff Mitchell was sentenced,
Separate Defendants Eldridge, Triplett, Jenner, and Plumlee issued a press release that
stated in part: “This case involved a large scale prostitution ring that exploited numerous
individuals including minors. Exploitation of this nature takes a tremendous toll on the lives

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of the individuals involved. In our office, we are committed to investigating these terrible
crimes.” (Doc. 14, p. 32). Plaintiffs contend that the press release also stated that Mitchell
was sentenced to 126 months imprisonment on “Conspiracy to use an Interstate Facility
to Distribute Proceeds from Prostitution.” Id. A nearly identical press release was given
subsequent to Jason and Tiffney Fedele’s sentencings. Plaintiffs maintain that these press
releases are false, as Plaintiffs neither promoted prostitution, nor exploited minors. As
compensation, Plaintiffs seek compensatory damages in the amount of $1,000,000 and
punitive damages in the amount of $4,000,000 for each Plaintiff.
The Prosecutors seek dismissal under several theories, including absolute immunity
and/or qualified immunity, and no respondeat superior liablity. Primarily, they argue that
conduct surrounding the prosecution of Plaintiffs is protected by absolute immunity, and
that Plaintiffs’ acceptance of the presentence investigation report (“PSR”) without
objections at sentencing estops Plaintiffs from denying that at least one minor was involved
in prostitution. The Prosecutors also assert that they are entitled to absolute immunity, or
at least qualified immunity, for press releases concerning this matter.
In response, Separate Plaintiff Mitchell argues, among other things, that the
Prosecutors acted as investigators, thus removing the protection of absolute immunity, and
that statements to the press are not afforded absolute immunity.
As Separate Defendants Eldridge, Jenner, Triplett, Plumlee, Elser, Groom, and
Taylor, can be dismissed under theories of absolute or qualified immunity, it is unnecessary
to address the other issues presented in the parties’ brief s.

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II. Legal Standard
In ruling on a motion to dismiss, the Court “accepts as true all of the factual
allegations contained in the complaint” and reviews the complaint to determine whether its
allegations show that the pleader is entitled to relief. Schaaf v. Residential Funding Corp.,
517 F.3d 544, 549 (8th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56
(2007)). All reasonable inferences from the complaint must be drawn in favor of the
plaintiff. Crumpley–Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004).
Nevertheless, the complaint must include facts sufficient to show that the plaintiff is entitled
to relief. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment]
to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations
omitted). Where the facts presented in the complaint do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged, but it has not shown
“that the pleader is entitled to relief.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009)
(quoting Fed. R. Civ. P. 8(a)(2)).
When considering a motion to dismiss, the Court ordinarily does not consider
matters outside the pleadings. See Fed. R. Civ. P. 12(d). The Court may, however,
consider exhibits attached to the complaint and documents that are necessarily embraced
by the pleadings, Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697, n.4 (8th Cir. 2003), and
may also consider public records, Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).

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III. Discussion
A. Prosecutorial Immunity
Plaintiffs allege that the Prosecutors conspired with the IRS Investigators in order
to coerce witnesses to provide false statements that Plaintiffs enticed minors into
prostitution, which resulted in the Court’s denial of bail. Specifically, the Complaint alleges
the following:
Defendants . . . conspired and collaborated amongst one another to
deliberately bring forth false charges . . . for which no just probable cause
existed to indict any or all of the Plaintiffs for two (2) counts of violating 18
U.S.C. § 2422(b) “enticing a minor to engage in prostitution” which carries a
ten-year mandatory minimum sentence (if convicted) for the sole purpose of
having the Court detain each of the Plaintiffs with no bail throughout the
duration of the Defendants prosecuting them, and ... the Plaintiffs were
sentenced on lesser offenses. (Doc. 14, para. 3).
The Prosecutors argue that, even if the above allegations are taken as true, they are
entitled to absolute immunity for this conduct. “The question of whether absolute or
qualified immunity applies depends on whether the prosecutor's acts were prosecutorial,
investigatory or administrative in nature.” Anderson, 327 F.3d at 768. Prosecutors are
entitled to absolute immunity from civil liability under § 1983, and therefore a Bivens action,
when they are engaged in prosecutorial functions that are “intimately associated with the
judicial process.” Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (quoting
Anderson, 327 F.3d at 768). Thus, if the prosecutors acted within the scope of their duties

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in initiating and pursuing a criminal prosecution, prosecutors act "quasi-judicially" and
therefore enjoy the same absolute immunity as judges. Imbler v. Pachtman, 424 U.S. 410,
437 (1976). However, “[n]ot all of an advocate's work is done in the courtroom. For a
lawyer to properly try a case, he must confer with witnesses, and conduct some of his own
factual investigation.” Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569, 579-80 (8th Cir.
2006) (citing Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir. 1980)). See also Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993) (finding the duties of the prosecutor as advocate
for the State involve not only actions preliminary to the initiation of a prosecution, but
actions apart from the courtroom). For example, investigation to secure the information
necessary to the prosecutor's decision to initiate criminal proceedings is within the quasijudicial aspect of the prosecutor's job and therefore is absolutely immune from civil suit for
damages. Williams v. Hartje, 827 F.2d 1203, 1210 (8th Cir. 1987).
Actions connected with initiation of prosecution, even if those actions are patently
improper, are immunized. Id. at 1208. Immunity is not defeated by allegations of malice,
vindictiveness, or self-interest. Reasonover, 447 F.3d at 580 (internal citations omitted).
Even if the Prosecutors knowingly presented false, misleading, or perjured testimony, or
even if they withheld or suppressed exculpatory evidence, they are absolutely immune
from suit. Id. See also Brawer v. Horowitz, 535 F.2d 830, 832-34 (3rd Cir. 1976) (finding
the federal prosecutor was entitled to absolute immunity from allegations that he had
conspired with a cooperating witness to use perjured testimony and to conceal exculpatory
evidence in order to convict the plaintiff).

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Plaintiffs, citing Buckley, argue that Defendants fabricated evidence, thus forfeiting
their shield of absolute immunity. However, the Complaint does not allege any facts that
would support a claim that Defendants fabricated evidence as the prosecutor did in
Buckley. In Buckley, prosecutors attempted to connect the defendant to a bootprint found
at the crime scene. Id. at 263. After consulting with several experts who could not link the
defendant to the bootprint, prosecutors utilized an anthropologist who was well known for
her willingness to fabricate evidence. Id. Importantly, the Supreme Court noted that “[a]t
the time of this witness shopping the assistant prosecutors were working hand in hand with
the sheriff’s detectives under the joint supervision of the sheriff and state’s attorney.” Id.
at 272.

After an eight-month investigation, “during which the grand jury heard the

testimony of over 100 witnesses, including the bootprint experts, it was still unable to return
an indictment[; however,] . . . [a]lthough no additional evidence was obtained, . . . the
indictment was returned [months later].” Id. at 264. The purpose of the actions surrounding
the bootprint was to conduct an investigation, not return an indictment by the grand jury.
Id. at 274-75. Contrary to the facts presented in Buckley, there is no allegation of such
fabrication here.
Plaintiffs contend that the Prosecutors visited Jason Fedele in an attempt to coerce
him to state that Mitchell enticed minors to engage in prostitution, that Triplett informed
Jason Fedele she intended to build a case against Mitchell for knowingly hiring minors as
escorts, and that the Prosecutors coerced other witnesses to make false statements as to
Plaintiffs hiring minors as escorts. Plaintiffs argue that the Prosecutors did this so that
Plaintiffs would be wrongfully denied bail. However, the facts before this Court reveal

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otherwise. The PSRs prepared prior to Plaintiffs’ sentencings stated that they were aware
that 17-year-old minors were employed in their escort service. Plaintiffs withdrew all their
objections regarding the use of minors as prostitutes, which resulted in their admission of
this fact.1 Mitchell gave a signed statement to his attorney acknowledging that he withdrew
all objections to his PSR in order to gain points for acceptance of responsibility. (Doc. 557). He specifically acknowledged within this statement that he knew admitting to this fact
would greatly increase his sentence, yet he chose not to contest it.
Although Plaintiffs allege that the Prosecutors acted as investigators, all of the
Prosecutors’ acts complained of by Plaintiffs were prosecutorial functions and are therefore
protected, as interviews of witnesses and co-defendants constitute actions associated with
prosecuting Plaintiffs’ alleged criminal acts. The acts of preparing, signing, and filing a
criminal complaint and indictment and interviewing witnesses are prosecutorial functions,
as they are advocacy on behalf of the government. See Kalina v. Fletcher, 522 U.S. 118,
129 (1997) (stating that “[the prosecutor's] activities in connection with the preparation and
filing of two of the three charging documents-the information and the motion for an arrest
warrant-are protected by absolute immunity.”). As such, Defendants are entitled to
absolute immunity from liability under Bivens for filing charges against Defendants, even
if they subsequently dropped some of the charges at sentencing, and even if Plaintiffs were

1

As Plaintiffs freely cite to their PSRs in their Complaint, the Court considers them to be
“embraced by the pleadings” and appropriate for discussion on this Motion to Dismiss. The
PSRs and accompanying addendums are found in the record at 5:10-CR-50067-001, Doc.
74; 5:10-CR-50067-002, Doc. 80; and 5:10-CR-50067-003, Doc. 78.
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denied bail. Since the Prosecutors are entitled to absolute immunity, the Court need not
address whether they are entitled to qualified immunity on this issue.2
B. Qualified Immunity Regarding Press Conference Statements
Plaintiffs allege that in two separate press releases, Eldridge, Jenner, Triplett, and
Plumlee provided false information to the press by portraying Plaintiffs as having been
convicted of enticing a minor to engage in prostitution in spite of the fact that this charge
had been dismissed.
Defendants maintain that all claims should be dismissed against them because they
are entitled to absolute immunity under the Westfall Act,3 or in the alternative, qualified
immunity as government employees. While statements to the media are not entitled to
absolute immunity, they may be entitled to qualified immunity. “Comments to the media
have no functional tie to the judicial process just because they are made by a prosecutor
. . . . [as the] conduct of a press conference does not involve the initiation of a prosecution,

2

Although it is difficult to discern from the allegations within the Complaint which
prosecutors acted solely in a supervisory role and who was personally involved in Plaintiffs’
criminal convictions, the Prosecutors actions cannot be predicated on vicarious liability
either. Respondeat superior liability does not apply to actions brought pursuant to 42
U.S.C. § 1983 as “[g]overnment officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.” Ashcroft, 129 S.Ct.
at 1948. “An action under Bivens is almost identical to an action under section 1983,
except that the former is maintained against federal officials, while the latter is against state
officials.” Christian v. Crawford, 907 F.2d 808, 810 (8th Cir. 1990).
3

The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly
known as the Westfall Act, accords federal employees absolute immunity from commonlaw tort claims arising out of acts they undertake in the course of their official duties. See
28 U.S.C. § 2679(b)(1). The Westfall Act's core purpose is to relieve covered employees
from the cost and effort of defending the lawsuit, and to place those burdens on the
Government's shoulders. Osborn v. Haley, 549 U.S. 225, 252 (2007).
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the presentation of the state's case in court, or actions preparatory for these functions.”
Buckley, 509 U.S. at 278 (internal quotations and citations omitted). In Buckley, the
Supreme Court held that prosecutorial press conferences, though perhaps necessary, are
not entitled to absolute immunity, which is meant only to prevent the hampering of job
performance by prosecutors due to fear of liability, and only applies “fairly within [the
prosecutor's] function as an advocate.” Id. at 273.
The qualified immunity defense protects “[g]overnment officials performing
discretionary functions.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Government
officials are “generally shielded from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Id. The Supreme Court has made clear that the “driving force”
behind the creation of the qualified immunity doctrine was a desire to ensure that
“insubstantial claims against government officials [will] be resolved prior to discovery.”
Anderson v. Creighton, 483 U.S. 635, 640, n.2 (1987) (internal citation omitted). Qualified
immunity provides “immunity from suit rather than a mere defense to liability.” Robbins v.
Becker, 715 F.3d 691, 693 (8th Cir. 2013) (internal quotation omitted). Defamation is not
recoverable in a Bivens action. See Siegert v. Gilley, 500 U.S. 226, 233-34 (1991).
Taking the facts of Plaintiffs’ Complaint as true, Defendants’ press release stated
that Plaintiffs were accused of operating “a large scale prostitution ring that exploited
numerous individuals including minors.” (Doc. 14, p.32). All Plaintiffs admitted that minors
were involved, as that fact was contained within each of their PSRs, and all objections
related to the minors’ involvement were either resolved or withdrawn, with the PSRs

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adopted by the Court. Further, the statements did not violate any clearly established
constitutional or statutory right. The Court finds that the press conference statements were
clearly part of an administrative duty, which was incidental to the performance of the
Prosecutors’ duties as advocates. They are therefore of such a character that the
attachment of qualified immunity is appropriate.
IV. Conclusion
Plaintiffs’ Complaint fails to allege facts sufficient to remove the cloak of absolute
and qualified immunity from Defendants regarding their actions as advocates in pursuing
criminal charges against Plaintiffs and in making statements to the press.
Accordingly, IT IS ORDERED that Defendants’ Separate Motions to Dismiss (Docs.
36, 38, 40, 42, 44, 46, and 48) are GRANTED. Therefore, Separate Defendants Conner
Eldridge, Kyra E. Jenner, Tracy A. Triplett, Christopher Plumlee, Kenneth Elser, Deborah
F. Groom, and Candace L. Taylor are DISMISSED WITH PREJUDICE. All further
pleadings filed herein shall reflect the dismissal of the parties as stated. The claims
against Separate Defendants Janet L. Ploudre, Grant Edwards, Ronald Scamardo, Beth
Phillips, the United States, and Unknown United States Marshalls have not been dismissed
by this Order.
IT IS FURTHER ORDERED that Separate Defendant Conner Eldridge, Tracy A.
Triplett, Kyra E. Jenner, and Christopher Plumlee’s Motion to Substitute the United States
for Individual Named Defendants (Doc. 34) and Defendants’ Motion for Entry of Dismissal
as to Tiffney R. Fedele (Doc. 61) are DENIED AS MOOT.

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