Mitchell et al v. Eldridge et al

Filing 98

ORDER ADOPTING 89 REPORT AND RECOMMENDATIONS and granting 70 Motion to Dismiss Party; granting 75 Motion to Dismiss Party; denying 86 Motion for Leave to Appeal in forma pauperis. Ronald Scamardo, Unknown U.S. Marshals, Grant Edwards and Beth Phillips terminated. Signed by Honorable Timothy L. Brooks on July 17, 2015. (rg)

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

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 Beth Phillips' and Ronald
Scamardo's Motions to Dismiss All Claims Pursuant to Fed. R. Civ. P. 12(b), or in the
Alternative, Motions for Summary Judgment (Docs. 70 and 75) and Briefs in Support
(Docs. 72 and 76), as well as Plaintiffs James B. Mitchell's, Jason M. Fedele's, and Tiffney
R. Fedele's Responses in Opposition (Docs. 80, 82, and 87). Also before the Court are

the Report and Recommendation (Doc. 89) ("R & R") on Separate Plaintiff Jason M.
Fedele's Motion for Leave to Appeal In Forma Pauperis (Doc. 86), as well as Plaintiff's
Objections to the R & R (Docs. 90, 92, and 93).
For the reasons described herein, Defendants' Motions to Dismiss (Docs. 70 and
75) are GRANTED. The R & R (Doc. 89) is ADOPTED IN ITS ENTIRETY and therefore
Jason M. Fedele's Motion for Leave to Appeal In Forma Pauperis (Doc. 86) is DENIED.

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 (the "Prosecution Team") 1 conspired with Internal Revenue Service ("IRS") special
agent Janet L. Ploudre, and IRS task force officers Grant Edwards 2 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. 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 remaining Defendants seek dismissal under several theories, including absolute
immunity and/or qualified immunity, and no respondeat superior liablity. Primarily, they
argue that conduct surrounding the arrest and 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

1

The Court previously dismissed Separate Defendants United States Attorney Conner
Eldridge and Assistant United States Attorneys Kyra E. Jenner, Tracy A. Triplett,
Christopher Plumlee, Kenneth Elser, Deborah F. Groom, and Candace L. Taylor from suit
in its November 19, 2014 Order (Doc. 63).
2

Grant Edwards was never served and is therefore not a party to this lawsuit. Further, the
Unknown U.S. Marshals were not served and are not parties to this lawsuit.

2

minor was involved in prostitution. In response, Plaintiffs argue, among other things, that
the remaining Defendants fabricated evidence before filing formal charges against them,
thus removing the protection of absolute and/or qualified immunity.
As Separate Defendants Phillips and Scamardo can be dismissed under theories
of absolute or qualified immunity, it is unnecessary to address the other issues presented
in the parties' briefs.

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 At/. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). All reasonable inferences from the complaint must be drawn in favor of the
plaintiff. Crump!ey-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)).

3

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).

Ill. DISCUSSION
A. Beth Phillips
Plaintiffs allege that Phillips, as part of the Prosecution Team, conspired with the
IRS Investigators to coerce witnesses to provide false statements that Plaintiffs enticed
minors into prostitution, which resulted in the Court's denial of bail. Specifically, the First
Amended Complaint ("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) forthe 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,

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3).

Phillips argues that, even if the above allegations are taken as true, she is 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,

4

investigatory or administrative in nature." Anderson, 327 F.3d at 768. Prosecutors are
entitled to absolute immunity from civil liability under § 1983, and Bivens' actions, 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 Phillips acted within the scope of her duties in initiating and pursuing
a criminal prosecution, she acted "quasi-judicially" and therefore enjoys 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 forthe 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 quasi-judicial 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 the 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 Phillips knowingly presented false, misleading, or perjured testimony, or
even if she withheld or suppressed exculpatory evidence, she is absolutely immune from

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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).
Plaintiffs, citing Buckley, argue that Phillips, along with the Prosecution Team,
fabricated evidence, thus forfeiting her shield of absolute immunity.

However, the

Complaint does not allege any facts that would support a claim that she 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 to return an indictment by the grand jury. Id. at 274-75. Contrary to
the facts presented in Buckley, there is no allegation of such investigatory rather than
prosecutorial misdconduct here.

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Plaintiffs also point to McGhee v. Pottawattamie Co. Iowa, 547 F.3d 922 (8th Cir.
2008) for the proposition that generally a prosecutor is not entitled to absolute immunity
before the establishment of probable cause to arrest, 3 nor is absolute immunity available
to a prosecutor who violated "a person's substantive due process rights by obtaining,
manufacturing, coercing and fabricating evidence before filing formal charges ." Id. at 933.
The prosecutor in McGhee admitted to being intensely involved in the investigation of the
plaintiff prior to being assigned to the case, and before the plaintiff was a suspect. Id. at
926 . That is not the case here.
Plaintiffs contend that Phillips, as a member of the Prosecution Team, visited Jason
Fedele in an attempt to coerce him to state that Mitchell enticed minors to engage in
prostitution, that members of the Prosecution Team informed Jason Fedele they intended
to build a case against Mitchell for knowingly hiring minors as escorts, and that they
coerced other witnesses to make false statements as to Plaintiffs hiring minors as escorts.
Plaintiffs assert that the Prosecution Team did this so that Plaintiffs would be wrongfully
denied bail. 4

3

McGhee does not discuss situations in which there is no probable cause to arrest, as the
issue was not preserved on appeal.

4

However, the facts before this Court reveal 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. 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. 55-7). 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.

7

Although Plaintiffs allege that Phillips acted as an investigator, all of Phillips' acts
complained of by Plaintiffs were prosecutorial functions and are therefore protected, as
interviews of witnesses and co-defendants in preparation for grand jury, detention, and
sentencing proceedings 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, she is entitled to absolute immunity from liability under
Bivens for filing charges against Plaintiffs, even if some of the charges were subsequently

dropped at sentencing, and even if Plaintiffs were denied bail. Since Phillips is entitled to
absolute immunity, the Court need not address whether she is entitled to qualified immunity
on this issue.

B. Ronald Scamardo
Plaintiffs

make

only

two

statements

regarding

Scamardo's alleged

involvement-that Scamardo targeted Mitchell's escort service in conducting an
investigation and that he arrested Mitchell and the Fedeles. See Doc. 14,

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29 and 40.

However, Plaintiffs contend that Scamardo is included in all allegations against the
Prosecution Team.

Although it is difficult to discern from the allegations within the

Complaint which Defendants acted solely in a supervisory role and who was personally
involved in Plaintiffs' criminal convictions, Scamardo's actions cannot be predicated on

8

vicarious liability. Respondeat superior liability does not apply to actions brought pursuant
to 42 U.S.C. § 1983, or Bivens, 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).
Scamardo also maintains that all claims should be dismissed against him because
he is entitled to qualified immunity, or in the alternative, absolute immunity as a grand jury
witness. To the extent that Plaintiffs allege Scamardo made false statements to the grand
jury, he is absolutely immune. Grand jury witnesses, including law enforcement officers,
have absolute immunity from liability under § 1983 and Bivens as to testimony given.

Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012). "[T]his rule may not be circumvented by
claiming that a grand jury witness conspired to present false testimony or by using
evidence of the witness' testimony to support any other § 1983 claim concerning the
initiation or maintenance of a prosecution . Were it otherwise, a criminal defendant turned
civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely
immune actions themselves." Id. (internal citations and quotations omitted).
Turning to qualified immunity, 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

9

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).
Plaintiffs allege Scamardo was part of a Prosecution Team that falsely charged
them with enticing minors to engage in prostitution. However, 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 adopted by the Court. Further, the Court finds that the conduct did not violate any
clearly established constitutional or statutory right, as the arrest and subsequent
prosecution of Plaintiffs was clearly part of his duty as a law enforcement officer.
Scamardo's actions are therefore of such a character that the attachment of qualified
immunity is appropriate.
C. In forma Pauperis
Separate Plaintiff Jason Fedele moves to appeal the dismissal of his claims against
former Defendants in forma pauperis. "An appeal may not be taken in forma pauperis if
the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3).
In its November 19, 2014 Order (Doc. 63), the Court dismissed Separate Defendants
United States Attorney Conner Eldridge, and Assistant United States Attorneys Kyra E.
Jenner, Tracy A. Triplett, Christopher Plumlee, Kenneth Elser, Deborah F. Groom, and

10

Candace L. Taylor because they are immune from suit. Therefore, the Court finds an
appeal would not be taken in good faith and no certificate of appealability will issue.

IV. CONCLUSION
Plaintiffs' Complaint fails to allege facts sufficient to remove the cloak of absolute
and qualified immunity from Defendants regarding their actions as an advocate and law
enforcement officer in pursuing criminal charges against Plaintiffs.
Accordingly, IT IS THEREFORE ORDERED that Separate Defendants Beth Phillips'
and Ronald Scamardo's Separate Motions to Dismiss (Docs. 70 and 75) are GRANTED,
and they are DISMISSED WITH PREJUDICE. The Court finds that Plaintiffs failed to serve
Separate Defenda.nts Grant Edwards and the Unknown U.S. Marshalls, and therefore they
are not parties to this suit and are DISMISSED WITHOUT PREJUDICE . All further
pleadings filed herein shall reflect the dismissal of the parties as stated. The claims
against Separate Defendant Janet L. Ploudre and the United States have not been
dismissed by this Order.

IT IS FURTHER ORDERED that the R & R (Doc. 89) is ADOPTED IN ITS
ENTIRETY and therefore Jason M. Fedele's Motion for Leave to Appeal In Forma Pauperis
(Doc. 86) is DENIED.

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IT IS SO ORDERED this

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: ay of JJ y,

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Jo1 s.