Rayhons v. Brunes et al
ORDER: The 17 Motion for Extension of Time is denied. The 18 Resistance is stricken. The 11 Motion to Dismiss is granted. Count IX of the 3 Petition is dismissed. The Clerk's Office is directed to satisfy for administrative purposes the 19 Motion for Summary Judgment. The case is remanded to the Iowa District Court. Signed by Chief Judge Linda R Reade on 09/16/16. (Certified copy of case mailed to Iowa District Court for Hancock County). (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
SUZAN BRUNES, LINDA DUNSHEE,
JOHN G. BRADY, D.O., ABCM
CORPORATION d/b/a Concord Care
Center, and SUSAN KRISKO,
The matters before the court are Defendant Susan Krisko’s “Motion to Dismiss for
Failure to State a Claim” (“Motion”) (docket no. 11), Plaintiff Henry Rayhons’s “Motion
to Extend the Deadline to Resist” (“Motion for Extension”) (docket no. 17) and Defendant
John G. Brady, D.O.’s “Motion for Summary Judgment” (docket no. 19).
II. PROCEDURAL HISTORY
On April 26, 2016, Plaintiff Henry Rayhons filed a “Petition at Law and Jury
Demand” (“Petition”) (docket no. 3) in the Iowa District Court for Hancock County, Iowa
(“Iowa District Court”).
In the Petition, he asserts nine claims against various
defendants—three claims against Suzan Brunes, three claims against Linda Dunshee, five
claims against Brady, two claims against ABCM Corporation and one claim against
Krisko: (1) Count I asserts a claim for defamation under Iowa law against Brunes,
Dunshee and Brady; (2) Count II asserts a claim for intentional infliction of emotional
distress under Iowa law against Brunes, Dunshee and Brady; (3) Count III asserts a claim
for malicious prosecution under Iowa law against Brunes and Dunshee; (4) Count IV
asserts a claim for negligent infliction of emotional distress under Iowa law against Brady;
(5) Count V asserts a claim for negligence under Iowa law against Brady; (6) Count VI
asserts a claim for loss of consortium under Iowa law against Brady; (7) Count VII asserts
a vicarious liability claim under Iowa law against ABCM Corporation with respect to
Brady’s conduct, who is ABCM Corporation’s employee; (8) Count VIII asserts a
negligent retention and supervision claim under Iowa law against ABCM Corporation with
respect to Brady; and (9) Count IX asserts a claim pursuant to 42 U.S.C. § 1983 against
Krisko, and states that Krisko violated Plaintiff’s substantive due process rights under color
of state law.
On July 14, 2016, Krisko filed a Notice of Removal (docket no. 2), which brought
the case before the court. On July 15, 2016, Krisko filed the Motion. On September 6,
2016, Rayhons filed the Motion for Extension, in which he requests to submit an out-oftime Resistance to the Motion (docket no. 19). On the same date, Brady filed the Motion
for Summary Judgment. No party has requested oral arguments on the matters, and the
court finds that oral arguments are unnecessary. The matters are ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has original jurisdiction over the claim in Count IX because it arises
under the United States Code. See 28 U.S.C. § 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.”). The court has supplemental jurisdiction over the claims in Counts
I through VIII because they arise out of the same common nucleus of operative fact as the
federal claim. See 28 U.S.C. § 1367(a); United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 725 (1966).
A. Motion for Extension
As an initial matter, the court shall address the Motion for Extension. In the
Motion for Extension, Rayhons requests that the court extend the deadline for his filing of
a Resistance to the Motion. See Motion for Extension at 1. Rayhons argues that the
requested extension is justified under Federal Rule of Civil Procedure 6(b) on grounds of
excusable neglect, citing the shortcomings of a new legal assistant in counsel’s office. See
id. at 1-2.
“In determining whether neglect is excusable, the following factors are particularly
important: (1) the possibility of prejudice to the defendant, (2) the length of delay and the
potential impact on judicial proceedings, (3) the reason for the delay, including whether
the delay was within the party’s reasonable control, and (4) whether the party acted in
good faith.” Kurka v. Iowa County, Iowa, 628 F.3d 953, 959 (8th Cir. 2010). “These
factors do not bear equal weight as the reason for delay is generally a key factor in the
analysis.” Id. “The determination of whether neglect is excusable is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s
omission.” Id. (quoting Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir.
2010)) (internal quotation marks omitted).
Under Local Rule 7(e), the deadline for filing a Resistance to the Motion was July
29, 2016. See LR 7(e) (requiring that resistances to motions be filed “within 14 days after
the motion is served”). The Motion for Extension, and the subsequently filed Resistance,
were filed thirty-nine days after this deadline. The court finds that the length of delay is
significant and gives great weight to that factor. Likewise, the court finds that Krisko has
likely incurred some prejudice simply due to the sheer length of the delay. The court
further notes that the reason for the delay was within the control of Rayhons’s counsel, as
Rayhons concedes. See Motion for Extension at 17. While the delay does not appear to
be the result of any ignorance of the rules or bad faith, the court nevertheless concludes
that the relevant factors weigh strongly against a finding of excusable neglect sufficient to
warrant consideration of the untimely Resistance. Accordingly, the Motion for Extension
shall be denied and the Resistance to the Motion shall be deemed untimely and shall be
stricken. The court shall proceed to address the Motion as if it was unresisted. At any
rate, having read the Resistance, the analysis confuses the legal standards at issue and
would not have affected the court’s disposition of this case.
B. Motion to Dismiss
In the Motion, Krisko seeks to dismiss Count IX of the Petition pursuant to Federal
Rule of Civil Procedure 12(b)(6), Motion at 1, which provides for the dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). Krisko argues that the court should dismiss Count IX because her activities
as a prosecutor were “intimately associated with the judicial phase of the criminal process”
and that she is entitled to absolute immunity. Brief in Support of the Motion at 5 (docket
no. 11-1) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
allegations show on the face of the complaint [that] there is some insuperable bar to relief,
dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d
866, 870 (8th Cir. 2008). However, the Rule 12(b)(6) inquiry is distinct from the question
of absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 274 n.5 (1993) (“[T]he
[court below] . . . [incorrectly] conflate[s] the question whether a § 1983 plaintiff has
stated a cause of action with the question whether the defendant is entitled to absolute
immunity for [their] actions.”).
Therefore, the court shall address each argument
Failure to state a claim
Krisko first argues that Count IX should be dismissed for failure to state a claim.
Motion at 1. The question for a court considering a Rule 12(b)(6) motion is not whether
the plaintiff will ultimately prevail, but “whether his complaint [is] sufficient to cross the
federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 529-30 (2011). The
“complaint need not pin plaintiff’s claim for relief to a precise legal theory.” Id. at 530.
However, in order to cross the threshold, “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)). A claim satisfies the plausibility standard “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Although a plaintiff need not
provide “detailed” facts in support of his or her allegations, the pleading requirements of
Federal Rule of Civil Procedure 8 “demand more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). It
is insufficient to “plead facts that are ‘merely consistent with’ a defendant’s liability.”
Id. (quoting Twombly, 550 U.S. at 557). “A pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting
Twombly, 550 U.S. at 555). Although the court must accept as true all factual allegations
contained in the Petition, the court need not accept legal conclusions disguised as facts.
In the Petition, Rayhons claims that Krisko investigated Rayhons and dispatched an
agent to interview a witness for purposes of determining whether to criminally charge
Rayhons for sexual abuse in state court.1
Rayhons further alleges that Krisko
“manufactured [the witness’s] words into a statement that the noises heard by [the witness]
were sexual” and subsequently charged plaintiff on or about August 14, 2014. Petition ¶¶
To the extent Rayhons’s allegations can be interpreted to rely on an agency theory
based on a relationship between Krisko and the investigator, Rayhons has not pled any
facts that support a claim that the agent violated his civil rights, and any claim that Krisko
violated Rayhons’s civil rights merely by dispatching an investigator to interview a witness
is not plausible on its face. See Ashcroft, 556 U.S. at 678.
Though a close call, Rayhons has pleaded sufficient facts. Though bare bones, the
claim that his constitutional rights were violated is plausible on its face. “[A] plaintiff can
make out a violation of substantive due process by ‘offering evidence of . . . the
manufacture of  false evidence.’” White v. Smith, 696 F.3d 740, 754 (8th Cir. 2012)
(alteration omitted) (quoting Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002) (en
banc)). Accepted as true, Rayhons’s allegation that Krisko “manufactured [the witness’s]
words . . . .”, Petition ¶¶ 34, 35, allows the court to reasonably infer that Krisko is liable
for the misconduct alleged. The allegations are not legal conclusions, but facts that
support Rayhons’s claim. Accordingly, the court finds that Rayhons has pleaded sufficient
facts to state a claim.
2. Prosecutorial immunity
Though the court finds that Rayhons has alleged facts sufficient to state a claim,
Krisko argues that Count IX of the Petition should be dismissed because it is “barred by
absolute immunity.” Brief in Support of the Motion at 5. Prosecutorial immunity is a subspecies of absolute judicial immunity. See Pierson v. Ray, 386 U.S. 547, 553-54 (1967)
(“Few doctrines were more solidly established at common law than the immunity of judges
from liability for damages for acts committed within their judicial jurisdiction . . . .”).
The doctrine of judicial immunity was expanded to cover prosecutors’ activities in Imbler
v. Pachtman. A prosecutor’s “activities . . . intimately associated with the judicial phase
of the criminal process . . . [are] functions to which the reasons for absolute immunity
apply with full force.” Imbler, 424 U.S. at 430. In expanding absolute immunity to
prosecutors, the Imbler court recognized that “the duties of the prosecutor . . . involve
actions preliminary to the initiation of a prosecution and actions apart from the
courtroom. . . . Preparation, both for the initiation of the criminal process and for a trial,
may require the obtaining, reviewing, and evaluating of evidence.” Id. at 431 n.33.
Subsequent cases further clarified the reach of absolute immunity for prosecutors to include
“[a]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings
or for trial, and which occur in the course of [their] role as an advocate of the State.”
Buckley, 509 U.S. at 273. However, a prosecutor is not entitled to absolute immunity if
his or her conduct is administrative or investigative in nature. Id. (explaining when a
prosecutor is entitled to qualified immunity.) In other words, a prosecutor functioning qua
prosecutor, rather than as a police officer or other official, is entitled to absolute immunity.
The relevant issue, therefore, is whether or not Krisko was performing the
traditional functions of an advocate of the State when she allegedly “dispatched an agent
to interview” the witness, Petition ¶ 34, “manufactured [the witness’s] words,” Petition
¶ 35, and “charged [Rayhons] with [s]exual [a]buse” relying on the “manufactured
evidence,” Petition ¶ 36. The Eighth Circuit Court of Appeals recognizes that “[f]unctions
 ‘intimately associated with the judicial phase of the criminal process’ as opposed to
investigative ‘police work’ or administrative duties [are] absolutely shielded’ from liability
under [S]ection 1983 claims.” Reasonover v. St. Louis Cty Mo., 447 F.3d 569, 579-80
(8th Cir. 2006) (second and third alterations in original) (internal citations omitted). A
prosecutor does not step outside of her traditional functions as a prosecutor simply because
particular activities could be characterized as investigative or administrative, or could also
be performed by a police officer or administrator. For example, “investigation to secure
the information necessary to the prosecutor’s decision to initiate criminal proceedings . . .
is absolutely immune . . . .” Williams v. Hartje, 827 F.2d 1203, 1210 (8th Cir. 1987).
Likewise, interviewing witnesses and preparing them to testify “[i]s prosecutorial and not
police work.” Reasonover, 447 F.3d at 580. “Not all of an advocate’s work is done in
the courtroom. For a lawyer to properly try a case, [s]he must confer with witnesses, and
conduct some of h[er] own factual investigation.” Id. (quoting Cook v. Houston Post, 616
F.2d 791, 793 (5th Cir. 1980)). When acting as an advocate, a prosecutor is not divested
of immunity even by “allegations of malice, vindictiveness, or self-interest,” or by
“knowingly present[ing] false, misleading, or perjured testimony, or even . . .
withh[olding] or suppress[ing] exculpatory evidence.” Id.
In this case, the relevant facts are consistent with those of a prosecutor performing
the traditional functions of an advocate. “Prosecutors enjoy absolute immunity in their
review of and decisions to charge a violation of the law.” Sample v. City of Woodbury, No.
15-3213, slip op. at 4 (8th Cir. Sept. 6, 2016) (emphasis added). Krisko’s dispatching of
an agent to interview the witness was prosecutorial insofar as she sought additional
information, reviewed the information provided and relied on such information when she
decided to bring criminal charges. See Williams, 827 F.2d at 1210. Charging Rayhons
with a crime is also clearly a prosecutorial function intimately associated with the judicial
phase of the criminal process. Finally, Rayhons’s allegation that Krisko “manufactured”
evidence against him does not defeat Krisko’s prosecutorial immunity. Even if Krisko had
knowingly presented false testimony, she would still be immune from suit.
Reasonover, 447 F.3d at 580.
Rayhons’s claim is therefore barred by absolute
“It would make little sense to immunize the prosecutor’s decision to prosecute while
not immunizing the immediately preceding steps which led to that decision.” Williams,
The court’s conclusion is not altered by the holding in McGhee v. Pottawattamie
County, Iowa, which stated that a prosecutor who brings charges and secures a conviction
by “obtaining, manufacturing, coercing and fabricating evidence” is not entitled to
immunity, because such actions are not “distinctly prosecutorial function[s].” McGhee v.
Pottawattamie County, Iowa, 547 F.3d 922, 933 (8th Cir. 2008). Unlike the facts at issue
in McGhee, Rayhons has offered no facts suggesting that Krisko coerced anybody or
fabricated any evidence out of whole cloth. See generally Petition. Rather, despite using
the term “manufactured,” Rayhons alleges that Krisko manipulated witness testimony that
was actually provided. Cf. McGhee, 547 F.3d at 926-27 (reaching its conclusion of no
immunity where prosecutors used an astrologer as an investigatory tool, personally
canvassed a neighborhood for suspects and polluted a putative witness’s testimony by
informing him during in-person interrogations of the specific murder weapon that was
used). Therefore, the court finds that the instant case is distinguishable from McGhee.
827 F.2d at 1210. Accordingly, Krisko is not divested of immunity merely because her
alleged actions occurred “[p]rior to filing formal criminal charges.”3 Petition at 15. After
her agent interviewed the witness, Krisko clearly believed it was appropriate to file
charges, which is a distinctly prosecutorial function. Because Krisko is absolutely immune
from suit for the allegations in Count IX, the court shall dismiss the Count from the
V. REMAND TO THE IOWA DISTRICT COURT
Count IX is the only Count in the Petition over which the court has original
jurisdiction. Because Counts I through VIII are before the court only on supplemental
jurisdiction, and because the court has found that Count IX should be dismissed, the court
finds that it is proper to remand the case to the Iowa District Court for Hancock County.
See 28 U.S.C. § 1367(c)(3); Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC,
781 F.3d 1003, 1016-17 (8th Cir. 2015) (“When a district court dismisses federal claims
over which it has original jurisdiction, the balance of interests usually will point toward
declining to exercise jurisdiction over the remaining state law claims” (quoting In re
Canadian Import Antitrust Litig., 470 F.3d 785, 792 (8th Cir. 2006))); Condor Corp. v.
City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990) (“We stress the need to exercise
judicial restraint and avoid state law issues whenever possible. We also recognize within
the principles of federalism the necessity to provide great deference and comity to state
court forums to decide issues involving state law questions.”). Finally, the court finds that
there are no compelling factors that point towards retention of jurisdiction over the state
The reference to formal charges in McGhee is dicta, given that the temporal
boundary given by the Supreme Court in Buckley was the existence of probable cause to
arrest, rather than the act of filing charges itself. See McGhee, 547 F.3d at 929 (citing
Buckley, 509 U.S. at 274). The facts that Plaintiff has offered “[are] all actions associated
with prosecuting  alleged criminal acts,” and therefore are distinctly prosecutorial acts
that are entitled to absolute immunity from suit. Reasonover, 447 F.3d at 580.
law claims in the case of dismissal of the federal claim.
See Thomas v. United
Steelworkers Local 1983, 743 F.3d 1134, 1141 (8th Cir. 2014). Because it is appropriate
to remand the case to the Iowa District Court for Hancock County, the court need not
address the Motion for Summary Judgment, which addresses several of Rayhons’s state
For the foregoing reasons, it is hereby ORDERED:
The Motion for Extension (docket no. 17) is DENIED;
The Resistance (docket no. 18) is STRICKEN;
The Motion to Dismiss (docket no. 11) is GRANTED;
Count IX of the Petition (docket no. 3) is DISMISSED;
The Clerk’s Office is DIRECTED to satisfy for administrative purposes
the Motion for Summary Judgment (docket no. 19); and
The case is REMANDED to the Iowa District Court.
IT IS SO ORDERED.
DATED this 16th day of September, 2016.
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