Meade v. Smith
Filing
49
MEMORANDUM OPINION AND ORDER granting in part and denying in part 34 Motion for Summary Judgment filed by Ben Smith. See Order text for details. Signed by Chief Judge Leonard T Strand on 3/11/2020. (jag)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DARREN MEADE,
Plaintiff,
No. C17-4034-LTS
vs.
BEN SMITH, in his individual capacity
and his official capacity as Sac County
Attorney,
MEMORANDUM OPINION AND
ORDER ON DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT
Defendant.
____________________
This case is before me on defendant Ben Smith’s motion (Doc. No. 34) for
summary judgment. Plaintiff Darren Meade filed a resistance (Doc. No. 40) and Smith
filed a reply (Doc. No. 43). Oral argument is not necessary. See Local Rule 7(c).
I.
PROCEDURAL HISTORY
Meade commenced this action on May 11, 2017, by filing a complaint and jury
demand (Doc. No. 1).
In general terms, Meade alleges that Smith violated his
constitutional rights by misusing his powers as a prosecutor to punish him for speech that
is critical of Smith. Specifically, Meade asserts the following claims:
Count I –
Violations of the First, Fourth, Fourteenth and Sixth
Amendments pursuant to 42 U.S.C. § 1983
Count II –
Abuse of Process pursuant to 42 U.S.C. § 1983
Count III –
Malicious Prosecution under Iowa Law
Count IV – Invasion of Privacy pursuant to 42 U.S.C. § 1983
Doc. No. 1 at 29–31. Meade seeks declaratory and injunctive relief, compensatory
damages, punitive damages, interest, attorney fees and costs. Id. at 32–33.
During discovery, Smith filed a motion (Doc. No. 20) to compel, or in the
alternative, to exclude evidence, due to Meade’s invocation of the Fifth Amendment in
response to deposition questions and interrogatories about his past income and taxes.
Smith argued that if Meade continued to refuse to respond to questions about his past
income, Meade should be precluded from offering any evidence at trial regarding
economic damages. Doc. No. 20 at 3. United States Magistrate Judge Mark A. Roberts
denied Smith’s motion without prejudice on procedural grounds and due to inadequate
briefing. Doc. No. 26.
Smith then filed a second motion (Doc. No. 29) regarding Meade’s refusal to
respond. Meade’s attorney allegedly informed Smith that Meade would no longer invoke
the Fifth Amendment in response to questions about his past income and taxes, but Meade
still had not answered his interrogatories nor allowed his deposition to continue. Doc.
No. 29 at 2–3. Judge Roberts granted (Doc. No. 31) Smith’s second motion to compel
and ordered that Meade appear for his deposition by April 1, 2019, or face the possibility
of sanctions. Smith asserts that Meade did not comply with this order. Doc. No. 34-2
at 14, 33. Smith also asserts that Meade informed him that he would not pursue his
claims for economic damages further but has not officially dismissed them. Id. at 14.
Smith asks that the court sanction Meade by granting summary judgment in his favor on
Meade’s claims for economic damages. Id. at 33.
Smith filed his motion (Doc. No. 34) for summary judgment on May 1, 2019.
Mead filed a resistance (Doc. No. 40) and Smith replied (Doc. No. 43). Meade’s initial
attorney withdrew from this case, Doc. No. 46, and Meade’s replacement counsel filed
a motion (Doc. No. 45) for leave to file a new and corrected brief in resistance to Smith’s
motion for summary judgment. I denied (Doc. No. 47) that motion. Trial is scheduled
to begin April 27, 2020.
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II.
SUMMARY JUDGMENT STANDARD
Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.” Id. Facts that are “critical”
under the substantive law are material, while facts that are “irrelevant or unnecessary”
are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question.” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475
U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,”
Anderson, 477 U.S. at 249–50, does not make an issue of material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248–49. The party moving
for entry of summary judgment bears “the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once
the moving party has met this burden, the nonmoving party must go beyond the pleadings
and by depositions, affidavits, or otherwise, designate specific facts showing that there
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is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir.
2005). The nonmovant must show an alleged issue of fact is genuine and material as it
relates to the substantive law. If a party fails to make a sufficient showing of an essential
element of a claim or defense with respect to which that party has the burden of proof,
then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at
322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587–88. Further, I must give the nonmoving party the benefit of all reasonable inferences
that can be drawn from the facts. Id. However, “because we view the facts in the light
most favorable to the nonmoving party, we do not weigh the evidence or attempt to
determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine whether a
dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372,
1376–77 (8th Cir. 1996).
III.
RELATED CASES
This case relates to the prosecution and conviction of Tracey Richter (Richter) for
first-degree murder. Meade’s interactions with Smith began after Meade took an interest
in Richter’s case. Meade believed Richter was innocent and reached out to Smith,
Richter’s prosecutor. The subsequent actions by Smith and Meade have been the subject
of other lawsuits against Smith. Thus, familiarity with Richter’s criminal case, and other
subsequent litigation regarding Meade’s and Smith’s actions, is helpful in understanding
the individuals and facts that are relevant to this motion.
The Iowa Court of Appeals described the facts of Richter’s criminal case as
follows:
On December 13, 2001, Richter shot and killed Dustin Wehde in her home
in Early, Iowa. A trial information was filed against her in Sac County
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almost ten years later on August 5, 2011, charging her with murder in the
first degree. Richter pleaded not guilty and filed a notice of an affirmative
defense of justification. Trial was moved to Webster County.
There was no question Richter shot and killed Wehde. Richter used two
different guns, and the autopsy showed Wehde had been shot nine times.
Three shots were to the back of his head and neck; the trajectory of some
of those wounds indicated the shots came from above Wehde. At least one
shot occurred after blood had started to congeal. The crucial question at
trial was whether Richter was justified in shooting Wehde.
The jury heard two very different stories. Each party has laboriously set
out in their briefs the evidence supporting their version of events. The State
emphasizes evidence showing Richter intentionally, deliberately, and
premeditatedly killed Dustin Wehde to frame her ex-husband. For example,
the State’s crime scene reconstructionist, Rodney Englert, testified that the
trajectories of the bullets and the wounds to Wehde indicated the initial
shots could have been fired from an area in the southeast corner of the
master bedroom near the gun safe and that the shots could have been fired
as Tracey was crouched or kneeling. Englert stated later shots to Wehde’s
head would have been fired from above Wehde and that there was congealed
blood on Wehde’s face indicating a shot was fired into his head after he was
dead.
Mary Higgins had been a good friend of Richter’s in Early. She told the
jury that shortly after the shooting, Richter and her family went on a
several-week trip to Australia. When Richter returned in February, Richter
told Higgins about the shooting “[l]ike she was telling me her grocery list.
She basically had no emotion to it.” Richter told Higgins that she
“unloaded” the gun as she was being pulled at by the two intruders; she
then got up and stepped over what she thought was dirty clothes to check
on her children. Richter told Higgins,
She took the two—well, the three children down the hall. And
as they were going down the hall, there was a body there and
she told me that the body was moving and she stood over him
and said, “Stop moving” or either it was, “I’ll blow your
fucking brains out” or “I’ll blow your head off.”
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And she told me he continued to move and she stood over him
and she fired the gun until he quit moving. Then they
proceeded down the stairs.
Higgins further testified that Richter’s son, Bert, came into the room while
Richter was relaying the story and became “extremely agitated,” began
banging his head against the table, and stated “Why did you go up there?
Why did you go back up there? You didn’t have to shoot him. You didn’t
have to kill him.”
Higgins further testified that Richter told her that the police found an older
model computer and a pink notebook in the car left in her driveway the
night of the purported home invasion. Richter described to Higgins details
of the contents of that pink notebook, which included contact information
for her first husband, Dr. John Pitman, with whom Richter was involved
in a custody dispute. Richter told Higgins the notebook would prove her
ex-husband was involved.
There was evidence that the contents of the notebook had been kept from
the public by law enforcement, and Richter should not have known what
was written in it. Higgins recounted an incident in 2004 when Richter
pointed at Higgins face and told her “to forget about the pink notebook.”
The State argued that the contents of the notebook, referring to Richter’s
ex-husband and his detailed plans to have Richter and Bert killed, came
from Richter herself in an attempt to win the custody dispute over Bert.
As for the defense, Richter points out testimony supporting her claim that
she acted in self-defense during a home invasion. Richter claimed she acted
in self-defense, giving several statements to police that two (or three) men
broke into her home and accosted her, choking her with a pair of panty hose
until she was unconscious. She was able to get to a gun safe in the master
bedroom and, shooting blindly over her shoulder, shot one of the intruders
and the other (or others) ran away.
Richter’s son, Bert, who was eleven years old at the time of the shooting,
testified that while watching TV in his room, he heard Richter yelling for
help from down the hall. After Richter was pulled away from the door to
Bert’s room, Bert heard banging around in the hallway. Bert reported
hearing Richter making a “very awful choking sound” for a few minutes.
Then Wehde—whom Bert knew from previous interactions—came to the
bedroom door and threatened Bert. Later, Bert heard footsteps running
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away from his room followed by yelling and several loud bangs. Richter
then opened the door to Bert's room. Bert said her wrists were bound with
pantyhose. Bert then followed his mother, who had a gun in each hand.
Bert said Wehde, who was lying on the floor, started to move. Bert said he
then heard his mother warn Wehde not to move followed by a couple shots.
On cross-examination, Bert agreed that his interview with police on the
night of the shooting was his most accurate recall of the incident.
In the police interview, which occurred within hours of the shooting, Bert
said nothing about Richter being pulled away from his room, about hearing
banging and kicking noises in the hallway, or about hearing choking noises.
Nor did Bert say in the interview that he saw Wehde moving or trying to
get up, and he did not say he heard Richter telling Wehde to stay down.
The jury convicted Richter of first-degree murder, and she was sentenced
to prison for life.
State v. Richter, 828 N.W.2d 326 (Table), 2013 WL 118357, at *1-3, (Iowa Ct. App.
2013) (footnote omitted).
After Richter’s conviction, Meade began posting about her case, including his
frustrations with Smith, on a website called RipOffReport.com (Ripoff Report). These
posts by Meade, and others, led to a series of allegedly-retaliatory actions by Smith
against Meade, Ripoff Report and its founder, Ed Magedson, and Richter’s Mother, Anna
Richter.
The corporate owner of the Ripoff Report, Xcentric Ventures, L.L.C. (Xcentric),
and Magedson were the first to sue Smith for his alleged retaliatory actions. See Xcentric
Ventures, L.L.C. v. Smith, C15-4008-LTS (N.D. Iowa). The parties to the Xcentric case
ultimately entered into a stipulation of dismissal on June 16, 2017. Id., Doc. No. 155.
Anna Richter also sued Smith. See Richter v. Smith, C16-4098-LTS (N.D. Iowa).
The parties to the Richter case ultimately entered into a stipulation of dismissal on April
18, 2019. Id., Doc. No. 35.
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IV.
RELEVANT FACTS
The parties complain about the adequacy of each other’s statements of material
facts. In resisting the motion for summary judgment, Meade argues that Smith failed to
adequately cite support for his material facts in the record and, thus, his statement of
material facts should be stricken. 1 Doc. No. 40 at 1. Due to this, Meade’s response to
0F
most of Smith’s material facts contains (1) an objection regarding Smith’s citation to the
record, (2) a simple denial and (3) a reference to facts listed in his own additional
statement of material facts. Doc. No. 40-2. Meade includes citations to the record in
his additional statement of material facts but not within his response to Smith’s statement
of material facts. Doc. Nos. 40-2, 40-3.
In response, Smith asserts that all of his citations to the record are appropriate and
accurate. Doc. No. 43 at 1–4. He argues that Meade effectively conceded to his material
facts because Meade did not include citations to the record in responding to those facts.
Id. at 4. He also argues that the additional facts presented by Meade are immaterial to
the summary judgment analysis, do not raise a genuine issue of fact and should be
disregarded. Id. at 4–5.
After reviewing the statements of facts and the record, I conclude that the parties
would have better spent their time focusing on the merits of the case rather than nitpicking
each other’s filings. Those filings are hardly perfect, and generated more work for the
court than should have been necessary, but they are not so utterly deficient as to make it
impossible to discern the relevant facts. The following facts have been compiled from
my own review of the record, each party’s factual statements and factual findings in prior
related litigation (to which both parties have cited to support various factual assertions).
Factual assertions that are irrelevant or not adequately cited have been disregarded. Any
1
I found no glaring issues with Smith’s citations to the record other than the fact that the page
numbering of his appendix is three pages off from that of the docket numbering system. Smith
cites to his own page numbering, not that of the court’s ECF system. Meade appears to have
looked only to the ECF page numbers. Decoding this discrepancy did not require advanced
math.
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relevant factual assertion bearing adequate citations to the record, and that was not
properly refuted, has been deemed admitted. With these standards in mind, I find the
following facts to be potentially relevant and, unless otherwise noted, to be undisputed.
Meade asserts that he attempted to contact law enforcement officials and Smith
multiple times between February and April 2011 to provide information related to
Richter’s case. Doc. No. 40-3 at 1. He did not speak with anyone during these calls,
but left messages for Smith in April 2011. Id. at 1, 3. The next evidence of contact
between Meade and Smith is an email in April 2012, five months after Richter’s
conviction. Doc. No. 34-1 at 1. Meade stated a belief that Richter had been wrongfully
convicted and provided evidence to Smith. Id. Smith contends he investigated Meade’s
claims and believed them to be false. Id. at 2. However, he reviewed few, if any, of
the records and materials provided by Meade. Doc. No. 40-3 at 3.
Smith began to suspect that Meade was in communication with, and working for,
Richter’s family. Doc. No. 34-1 at 2. To investigate his suspicions, Smith used his
power as a county prosecutor to subpoena Meade’s phone records. Id. Meade’s phone
records revealed that Meade had been in regular contact with Richter’s family since
Richter’s conviction in November 2011. Id.
Beginning in September 2012, Meade posted comments about Richter’s trial and
conviction on Ripoff Report. Id. Meade’s original post, which described Meade’s
investigation into and beliefs about Richter’s case, contained complaints and allegations
against Smith and other comments about several witnesses from Richter’s trial, including
Ray and Marie Friedman, John Pitman, Mary Higgins and Michael Roberts (designated
as witness but did not testify). Id. Meade stated that he believed Mary Higgins and the
Friedmans lied during the trial. Doc. No. 34-3 at 54, 56–57, 63.
Many of Meade’s posts, including his original post regarding Richter’s case,
center on Michael Roberts, Richter’s ex-husband, and make various accusations of
criminal conduct against him. Id. Meade had a contentious history with Michael Roberts,
which included failed business relationships. He created at least one post about Roberts
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on Ripoff Report before any posts related to the Richter case. Doc. No. 34-3 at 30–47.
Meade has alleged that Roberts told him he had hired two men to kill Richter. Doc. No.
40-3 at 3. He also alleges that Roberts threatened to kill him. Id.
Smith, too, has been the subject of various reports, replies, updates and rebuttals
on Ripoff Report. Doc. No. 34-3 at 183–84. He testified that his own photo appears on
approximately two million pages on the Ripoff Report website and many statements have
been published about him and his family. Id. Among other things, Smith alleges that he
has been accused on Ripoff Report of having sexual relationships with witnesses and
abusing methamphetamine. Id.
At some point in 2013, John Pitman and Ray Friedman contacted Smith with
concerns regarding content about them on Ripoff Report. Id. at 3. Pitman had discovered
posts on Ripoff Report about himself, his business and, allegedly, his testimony in
Richter’s trial. Id. The posts were harmful to Pitman and his medical practice, and he
sought help from Smith because he suspected the posts were some form of retaliation for
his testimony in Richter’s trial. Id. However, Pitman did not believe, nor tell Smith,
that Meade was behind the posts. Doc. No. 40-3 at 4. Indeed, the Ripoff Report post
about Pitman in the record appears to be authored by someone other than Meade, but
Smith alleges that Meade often used pseudonyms for his posts and was the true author.
Id. at 5; Doc. No. 34-1 at 7. The only item related to Pitman’s business that Meade has
admitted to posting involved allegations against Pitman by the Virginia Board of
Medicine, but that post was not on Ripoff Report. Doc. No. 40-3 at 5; Doc. No. 40-4
at 93; Doc. No. 34-1 at 8. Pitman never contacted Ripoff Report to dispute the allegations
or ask that they be removed. Doc. No. 40-3 at 5.
It is undisputed that Meade posted other complaints about certain witnesses on
Ripoff Report, such as complaint number 1009000 in February 2013, which contained
the following title:
Mile2 Michael Roberts Rexxfield Raymond Friedman Writes Mile2
Michael Roberts Rexxfield Raymond Friedman Marie Friedman Graphic
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Depictions Of Child Molestation, Child Torture, Exact Recipes Of Liquid
Explosives, Type Bombs Illicit Recordings, Internet.
Doc. No. 34-1 at 4–5, 7. Thus, the names of two witnesses who testified against Richter
are listed immediately before the phrase “Graphic Depictions Of Child Molestation, Child
Torture, Exact Recipes Of Liquid Explosives, Type Bombs Illicit Recordings.” Id. Due
to complaint titles such as these, and search engine optimization, Ripoff Report pages
would appear at or near the top of internet search engine results for the state’s witnesses
and their businesses. Id. at 4. However, Meade has alleged that he “did not necessarily
author the ‘headlines’ or ‘title’ associated with [his] postings” on Ripoff Report. Doc.
No. 40-3 at 5.
Allegedly in response to Pitman’s and Friedman’s concerns, and due to his
suspicion that Meade was working with Richter in creating the Ripoff Report complaints,
Smith contacted the Iowa Department of Corrections to obtain recordings of Richter’s
calls. Doc. No. 34-1 at 10. In listening to these recordings, Smith alleges he discovered
that Richter’s conversions often correlated to Ripoff Report postings and updates. Id.
That is, information about a witness, such as Pitman, would be discussed by telephone
and would soon thereafter appear on Ripoff Report. Id. Smith ultimately monitored
more of Richter’s conversations and issued over 100 county attorney investigatory
subpoenas to obtain records and documents concerning the possible connection between
Meade, Ripoff Report and its owner, and the Richter family. Xcentric Ventures, No.
C15-4008, Doc. No. 55 at 15–16. Special agents for the Iowa Division of Criminal
Investigations also investigated whether Richter and her family were attempting to
influence or coerce witnesses who had testified against her. Doc. No 34-1 at 10–11.
Those special agents believed that Richter and her family contributed to the posts about
witnesses on Ripoff Report. Id.
On July 7, 2014, Smith applied for a search warrant authorizing a search of Anna
Richter’s home in Urbandale, Iowa, and the seizure of computers, smart phones, digital
storage devices and similar items. Doc. No. 34-1 at 12–13; Xcentric Ventures, No. C1511
4008, Doc. No. 55 at 15–16. The application was supported by Smith’s 119-page, singlespaced affidavit, which contained several pages alleging Meade’s involvement in
unrelated criminal activity and prior business dealings with Michael Roberts. Xcentric
Ventures, No. C15-4008, Doc. No. 55 at 16; Richter, C16-4098, Doc. No. 33 at 9.
Smith admits that some of the information contained in the affidavit came from Roberts
and others who had an adverse history with Meade and/or Ripoff Report and had been
investigating Meade and Ripoff Report on their own accord. Xcentric Ventures, No.
C15-4008, Doc. No. 55 at 16; Doc. No. 40-4 at 154–59. Smith provided drafts of the
affidavit for many of these individuals to review, with at least one individual then posting
the affidavit on the internet. Doc. No. 40-4 at 13–17.
The search warrant was issued the same day. Xcentric Ventures, No. C15-4008,
Doc. No. 55 at 16. Smith then filed the application, affidavit and warrant with the Iowa
District Court for Sac County on July 9, 2014. Id. Smith testified that he made a
deliberate decision not to file the application under seal even though it is his usual practice
to do so. Id.; Doc. No. 40-4 at 16–18.
Smith eventually brought criminal proceedings against Meade in the Iowa District
Court for Sac County. Doc. No. 34-1 at 13. A trial information filed September 2,
2014, alleged one count of ongoing criminal conduct, eight counts of witness tampering
and one count of obstructing prosecution. Id.; Doc. No. 34-3 at 11–22. On May 27,
2015, Smith filed a motion to dismiss the criminal charges against Meade with prejudice.
Doc. No. 34-1 at 13. The Iowa District Court granted the motion the same day, thus
ending the case. Id.
V.
DISCUSSION
Meade asserts four causes of action against Smith: (I) a § 1983 claim for violations
of the First, Fourth, Sixth and Fourteenth Amendments, (II) a § 1983 claim for abuse of
process, (III) a malicious prosecution claim under Iowa law and (IV) a § 1983 claim for
invasion of privacy. Smith argues that many of the claims Meade asserts fall within the
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scope of absolute prosecutorial immunity. He further argues that even if some claims
fall outside absolute immunity, he is still entitled to judgment as a matter of law on those
claims.
Smith argues that he is entitled to summary judgment on Meade’s First and Fourth
Amendment claims in Count I, and the malicious prosecution claim in Count III, because
Meade has failed to show that Smith lacked probable cause. Doc. No. 34-2 at 22–30.
He does not contest any other elements of these claims. Smith also argues that Meade’s
Sixth Amendment claim in Count I fails because the alleged violations occurred before
any charges were filed against Meade. Id. at 20–21. Finally, Smith argues that he is
entitled to summary judgment on Counts II and IV because § 1983 does not permit the
type of abuse of process or invasion of privacy claims that Meade asserts. Id. at 19–20,
30–31.
Meade resists Smith’s motion for summary judgment only as to the First
Amendment retaliation claim in Count I and the malicious prosecution claim in Count
III. Meade acknowledges that some of Smith’s actions may be protected by absolute
immunity but not all. Doc. No. 40-1 at 9–12. Specifically, Meade alleges that (1) Smith
spent hundreds of hours investigating Meade and Xcentric, owner of Ripoff Report, with
the aid of private individuals who are known to be enemies of Meade and Ripoff Report,
(2) Smith worked and exchanged confidential information with private individuals to draft
a search warrant affidavit that contained unrelated allegations of criminal conduct and
impropriety in business dealings against Meade and that was published publicly, and (3)
Smith filed a motion to quash a subpoena in Richter’s and Michael Roberts child custody
case in another county with the intent to create an official record of criminal allegations
against Meade in order to shame and defame him. Id.
For some reason, Meade does not specifically address Smith’s probable cause
arguments. Instead, he bases his argument solely in the belief that Smith’s failure to
show that his actions are entitled to absolute immunity precludes summary judgment in
his favor. Id. He also cites to this court’s prior findings in related cases as support for
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denying summary judgment. Id. at 11. Because a finding of absolute immunity would
impact any further analysis of Meade’s claims, I begin with that issue. I note, however,
that absolute immunity does not apply to requests for declaratory and injunctive relief.
As such, a finding of absolute immunity would require the entry of summary judgment
on the issue of money damages, but not on other forms of relief.
A.
Absolute Prosecutorial Immunity
Prosecutors are absolutely immune from damage liability in a suit for conduct
“intimately associated with the judicial phase of the criminal process.”
Imbler v.
Pachtman, 424 U.S. 409, 430–31 (1976). Whether prosecutorial conduct is “intimately
associated with the judicial phase of the criminal process” requires “a focus[] on the
conduct for which immunity is claimed, not the harm that the conduct may have caused
or the question whether it was lawful.” Buckley v. Fitzsimmons, 509 U.S. 259, 271
(1993). In Buckley, the Supreme Court divided the functions of the prosecutor as follows:
[In Imbler,] [w]e expressly stated that “the duties of the prosecutor in his
role as advocate for the State involve actions preliminary to the initiation of
a prosecution and actions apart from the courtroom,” and are nonetheless
entitled to absolute immunity. We noted in particular that an out-of-court
“effort to control the presentation of [a] witness’ testimony” was entitled to
absolute immunity because it was “fairly within [the prosecutor’s] function
as an advocate.” To be sure, Burns made explicit the point we had reserved
in Imbler: A prosecutor’s administrative duties and those investigatory
functions that do not relate to an advocate’s preparation for the initiation of
a prosecution or for judicial proceedings are not entitled to absolute
immunity. We have not retreated, however, from the principle that acts
undertaken by a prosecutor in preparing for the initiation of judicial
proceedings or for trial, and which occur in the course of his role as an
advocate for the State, are entitled to the protections of absolute immunity.
Those acts must include the professional evaluation of the evidence
assembled by the police and appropriate preparation for its presentation at
trial or before a grand jury after a decision to seek an indictment has been
made.
On the other hand, as the function test of Imbler recognizes, the
actions of a prosecutor are not absolutely immune merely because they are
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performed by a prosecutor. Qualified immunity “represents the norm” for
executive officers, so when a prosecutor “functions as an administrator
rather than as an officer of the court” he is entitled only to qualified
immunity. There is a difference between the advocate’s role in evaluating
evidence and interviewing witnesses as he prepares for trial, on the one
hand, and the detective’s role in searching for the clues and corroboration
that might give him probable cause to recommend that a suspect be arrested,
on the other hand. When a prosecutor performs investigative functions
normally performed by a detective or police officer, it is “neither
appropriate nor justifiable that, for the same act, immunity should protect
the one and not the other.” Thus, if a prosecutor plans and executes a raid
on a suspected weapons cache, he “has no greater claim to complete
immunity than activities of police officers allegedly acting under his
direction.”
Buckley, 509 U.S. at 272–74 (citations omitted).
Importantly, the “function” is evaluated from the time it is performed.
“A
prosecutor may not shield his investigative work with the aegis of absolute immunity
merely because, after a suspect is eventually arrested, indicted, and tried, that work may
be retrospectively described as ‘preparation’ for a possible trial.” Id. at 276; see also
Burns v. Reed, 500 U.S. 478, 495 (1991) (“Almost any action by a prosecutor, including
his or her direct participation in purely investigative activity, could be said to be in some
way related to the ultimate decision whether to prosecute, but we have never indicated
that absolute immunity is that expansive.”).
Also, “the official seeking absolute
immunity bears the burden of showing that such immunity is justified for the function in
question.” Burns, 500 U.S. at 486.
Meade asserts that Smith’s investigation into him and Xcentric is not protected by
absolute immunity. I agree. Although Smith’s ultimate decision to charge Meade with
witness tampering falls squarely within the core functions of a prosecutor, his
investigation prior to that point does not. Burns, 500 U.S. at 493 (prosecutors are not
entitled to immunity for administrative or investigative functions normally performed by
a police officer); see also Buckley, 509 U.S. at 273 (“A prosecutor neither is, nor should
consider himself to be, an advocate before he has probable cause to have anyone
15
arrested.”). Moreover, Smith has failed to explain how his investigation into Meade was
“intimately associated with the judicial phase of the criminal process,” Imbler, 424 U.S.
at 430–31 (emphasis added), or “advocacy on behalf of the government.” Schenk v.
Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006).
Smith’s other challenged actions are not protected by absolute immunity for similar
reasons. Smith has not provided any support for the proposition that filing a motion to
quash a subpoena in a civil case unrelated to Meade, which contained many allegations
of criminal conduct against Meade, was in any way advocacy for the government. See
Venckus v. City of Iowa City, 930 N.W.2d 792, 805 (Iowa 2019) (prosecutors were not
entitled to absolute immunity for ethics complaint filed against plaintiff’s attorney in an
unrelated case). Likewise, Smith’s decisions (1) to allow private parties to influence a
search warrant affidavit, (2) to provide and exchange information about subjects in the
affidavit to those private parties and (3) to file the search warrant materials publicly rather
than under seal, all indicate actions that are meant to further private interests rather than
governmental ones. Smith has not shown that he was acting in the role of an advocate
evaluating and preparing evidence for an indictment and trial rather than as a detective
“searching for the clues and corroboration that might give him probable cause to
recommend that a suspect be arrested.” Buckley, 509 U.S. at 273–74. Additionally,
Smith has not presented any argument as to how these choices were associated with the
judicial phase of the criminal process. Thus, Smith is not entitled to absolute immunity
for these actions.
Typically, if a prosecutor is not entitled to absolute immunity, then a qualified
immunity analysis applies.
Here, however, Smith has not made any argument for
qualified immunity other than the existence of probable cause, which has been regarded
as grounds for qualified immunity in some cases. See Greenman v. Jessen, 787 F.3d
882, 891 (8th Cir. 2015) (officers and prosecutor were entitled to qualified immunity on
First-Amendment retaliatory arrest claim because there was probable cause for the
arrests). Thus, I will not consider any other grounds for qualified immunity.
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B.
First Amendment Retaliation
“‘Criticism of public officials lies at the very core of speech protected by the First
Amendment.’ Retaliation by a government actor in response to such an exercise of First
Amendment rights forms a basis for § 1983 liability.” Naucke v. City of Park Hills, 284
F.3d 923, 927 (8th Cir. 2002) (citation omitted). To establish such a claim, a plaintiff
must prove (1) he or she engaged in a protected activity, (2) the defendant responded
with adverse action that would “chill a person of ordinary firmness” from continuing in
the activity, and (3) that “the adverse action was motivated at least in part by the exercise
of the protected activity.”
L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo., 673
F.3d 799 (8th Cir. 2012).
Smith argues that he is entitled to summary judgment on Meade’s FirstAmendment retaliation claim because Meade has failed to show a lack of probable cause
for Smith’s actions. The absence of probable cause has been recognized as a fourth
element for First-Amendment retaliation claims in some cases. See Nieves v. Bartlett,
139 S. Ct. 1715, 1724 (2019) (“[A] plaintiff pressing a retaliatory arrest claim must plead
and prove the absence of probable cause for the arrest.”); Hartman v. Moore, 547 U.S.
250, 263–66 (2006) (absence of probable cause is necessary for retaliatory prosecution
claim). The Supreme Court explained its reasoning in Nieves:
For a number of [First-Amendment] retaliation claims, establishing
the causal connection between a defendant’s animus and a plaintiff’s injury
is straightforward. Indeed, some of our cases in the public employment
context “have simply taken the evidence of the motive and the discharge as
sufficient for a circumstantial demonstration that the one caused the other,”
shifting the burden to the defendant to show he would have taken the
challenged action even without the impermissible motive. But the
consideration of causation is not so straightforward in other types of
retaliation cases.
In Hartman, for example, we addressed retaliatory prosecution
cases, where “proving the link between the defendant’s retaliatory animus
and the plaintiff’s injury . . . ‘is usually more complex than it is in other
retaliation cases.’” Unlike most retaliation cases, in retaliatory prosecution
cases the official with the malicious motive does not carry out the retaliatory
17
action himself—the decision to bring charges is instead made by a
prosecutor, who is generally immune from suit and whose decisions receive
a presumption of regularity. Thus, even when an officer’s animus is clear,
it does not necessarily show that the officer “induced the action of a
prosecutor who would not have pressed charges otherwise.”
To account for this “problem of causation” in retaliatory prosecution
claims, Hartman adopted the requirement that plaintiffs plead and prove the
absence of probable cause for the underlying criminal charge. As Hartman
explained, that showing provides a “distinct body of highly valuable
circumstantial evidence” that is “apt to prove or disprove” whether
retaliatory animus actually caused the injury: “Demonstrating that there was
no probable cause for the underlying criminal charge will tend to reinforce
the retaliation evidence and show that retaliation was the but-for basis for
instigating the prosecution, while establishing the existence of probable
cause will suggest that prosecution would have occurred even without a
retaliatory motive.” Requiring plaintiffs to plead and prove the absence of
probable cause made sense, we reasoned, because the existence of probable
cause will be at issue in “practically all” retaliatory prosecution cases, has
“high probative force,” and thus “can be made mandatory with little or no
added cost.” Moreover, imposing that burden on plaintiffs was necessary
to suspend the presumption of regularity underlying the prosecutor’s
charging decision—a presumption we “do not lightly discard.” Thus,
Hartman requires plaintiffs in retaliatory prosecution cases to show more
than the subjective animus of an officer and a subsequent injury; plaintiffs
must also prove as a threshold matter that the decision to press charges was
objectively unreasonable because it was not supported by probable cause.
Nieves, 139 S. Ct. at 1722–23.
While showing an absence of probable cause is clearly required for some FirstAmendment retaliation claims, the requirement does not apply in all cases. Meade does
not allege retaliatory arrest or retaliatory prosecution as the basis for his claim. Instead,
he challenges other actions by Smith that allegedly caused harm before any arrest or
prosecution occurred. I am aware of no binding authority requiring a plaintiff to prove
a lack of probable cause under these circumstances. And, in fact, the reasons outlined
in Hartman and Nieves for adopting a no-probable-cause element are generally absent
here. If Meade were challenging only Smith’s decision to investigate Meade, or the
search warrant itself, requiring Meade to show a lack of probable-cause would likely be
18
justified. See Fredin v. Clysdale, No. 18-CV-0510, 2018 WL 7020186, at *7 (D. Minn.
Dec. 20, 2018) (drawing analogy to Hartman to find that First Amendment retaliation
claim failed as a matter of law due to existence of probable cause for search warrant),
report and recommendation adopted, No. 18-CV-0510, 2019 WL 802048 (D. Minn. Feb.
21, 2019). Probable cause for these actions would fulfill the same role as it does for
arrests and prosecutions by providing “a ‘distinct body of highly valuable circumstantial
evidence’ that is ‘apt to prove or disprove’ whether retaliatory animus actually caused the
injury.” See Nieves, 139 S. Ct. at 1723 (quoting Hartman, 547 U.S. at 261).
Here, however, Meade challenges the manner in which Smith carried out his
investigatory activities, not the mere fact of the investigation. Viewing the record most
favorably to Meade, it is obvious that Smith went above and beyond normal investigatory
tactics. He conducted an investigation into Meade by exchanging information with
private parties known to be hostile towards Meade, thus raising questions about the
integrity and independence of the investigation. He drafted a 119–page, singled-spaced
affidavit in support of a search warrant. That affidavit contained allegations of criminal
conduct and confidential information unrelated to witness tampering, with avowed
enemies of Ripoff Report and Meade serving as the source for many of those allegations.
Making matters worse, Smith filed the application as public record, rather than
sealing it as is his usual practice. This deviation from practice allowed him to publicly
air his allegations about Meade before filing any charges. Of even more concern is
Smith’s decision to do essentially the same thing in the course of filing a motion to quash
a subpoena in a child custody case between Richter and Michael Roberts. This action
had no relation to whether Smith had probable cause to file charges against Meade and
could be viewed as nothing more than another mechanism through which Smith could
make an official record of his allegations against Meade.
In short, when viewed most favorably to Meade, there are genuine issues of fact
for trial on Meade’s First Amendment retaliation claim. Meade is not required to
demonstrate a lack of probable cause for the actions he challenges and there is sufficient
19
evidence to show that “the presumption of regularity accorded to prosecutorial
decisionmaking” should be suspended and to raise a genuine issue about retaliatory
motive. See Hartman, 547 U.S. at 263–65. Even if the eventual prosecution against
Meade may have been supported by probable cause, that would not retroactively shield
Smith from liability for prior wrongful acts. See Buckley, 509 U.S. at 276. Smith is not
entitled to summary judgment on Meade’s First Amendment retaliation claim.
C.
Malicious Prosecution
The elements of malicious prosecution under Iowa law are:
(1) a previous prosecution; (2) instigation of that prosecution by the
defendant; (3) termination of that prosecution by acquittal or discharge of
the plaintiff; (4) want of probable cause; (5) malice on the part of the
defendant for bringing the prosecution; and (6) damage to the plaintiff. This
damage to the plaintiff must be for an arrest of the person, seizure of
property or special injury – injury that would not ordinarily result in all
similar cases involving such a claim.
Whalen v. Connelly, 621 N.W.2d 681, 687–88 (Iowa 2000). Smith argues that he is
entitled to summary judgment on Meade’s malicious prosecution claim because
prosecuting a case is entitled to absolute immunity and Meade has failed to show a lack
of probable cause to bring charges against him. Doc. No. 34-2 at 24–30. He does not
challenge any other element of Meade’s claim. In his resistance, Meade does not address
the issue of probable cause but argues that Smith is not entitled to summary judgment
because he has failed to meet his burden of showing that he is entitled to absolute
immunity. Doc. No. 40-1 at 11–12.
Under Iowa law, prosecutors are generally entitled to absolute immunity from
claims of malicious prosecution for cases they prosecute. Venckus, 930 N.W.2d at 804.
Absolute immunity applies to prosecutions “without regard to motive or intent. . . . ‘even
when the [official] is accused of acting maliciously and corruptly.’” Id. (alteration in
original) (quoting Blanton v. Barrick, 258 N.W.2d 306, 308 (1977)); see also Phelps v.
Dawson, 97 F.2d 339, 340 (8th Cir. 1938) (fire marshal, who had power bring charges
20
for arson under state statute, was not liable for damages in bringing charges even though
he did “so without probable cause and with malice”). Thus, liability for a malicious
prosecution claim is not based in the prosecution itself, even though that is the retaliatory
act that ultimately causes harm to the plaintiff.
Nieves, 139 S. Ct. at 1723 (“[I]n
retaliatory prosecution cases the official with the malicious motive does not carry out the
retaliatory action himself—the decision to bring charges is instead made by a prosecutor,
who is generally immune from suit and whose decisions receive a presumption of
regularity.”).
Liability is based in the act of maliciously inducing or instigating a
prosecution for which there is no probable cause.
The no-probable-cause element is crucial to holding a defendant liable for
malicious prosecution because it bridges the gap in causation between the plaintiff’s harm
(facing charges brought by a prosecutor who is protected by absolute immunity) and the
defendant’s wrongful act (maliciously attempting to induce the prosecution). See id.
(“[E]ven when an officer’s animus is clear, it does not necessarily show that the officer
“induced the action of a prosecutor who would not have pressed charges otherwise.”
(quoting Hartman, 547 U.S. at 236)); see also Stewart v. Sonneborn, 98 U.S. 187, 194
(1878) (“The existence of a want of probable cause is, as we have seen, essential to every
suit for a malicious prosecution. Both that and malice must concur. Malice, it is admitted,
may be inferred by the jury from want of probable cause, but the want of that cannot be
inferred from any degree of even express malice.”). In contrast, the existence of probable
cause indicates that the prosecution may have occurred even without the defendant’s
malice and attempts to induce it. See Hartman, 547 U.S. at 261. Thus, the existence of
probable cause effectively shields the defendant’s earlier malice and acts of inducement
from liability for malicious prosecution.
Clearly, any extent to which Meade seeks to hold Smith liable for the actual
prosecution of his criminal case would be barred by absolute prosecutorial immunity.
However, that does not necessarily dispose of Meade’s claim. As discussed above,
Meade alleges that Smith performed many acts before bringing any charges that, in effect,
21
could be deemed as attempts to “instigate” the prosecution. In other words, this case
involves a unique situation in which the prosecutor who ultimately made the decision to
bring criminal charges against Meade is also the defendant who is alleged to have
wrongfully induced that prosecution.
While this situation may be unique, Meade’s malicious prosecution claim must fail
because he has failed to raise a genuine issue of fact regarding the no-probable-cause
element of that claim. Smith has demonstrated, as a matter of law, that probable cause
existed to support his prosecution of Meade. Smith is entitled to summary judgment on
the malicious prosecution claim.
D.
Meade’s Claims for Injunctive Relief and Economic Damages
Smith’s remaining arguments relate to the relief Meade seeks in this case. First,
Smith argues that he is entitled to summary judgment on Meade’s request for a permanent
injunction against further investigation and/or prosecution in relation to the facts of this
case because there are adequate remedies at law. Doc. No. 34-2 at 31–32. Meade has
not responded to this argument. As I agree with Smith’s argument, and Meade has not
resisted it, I will grant summary judgment in favor of Smith on this issue.
Second, Smith asks that the court grant summary judgment on Meade’s claims for
economic damages. Id. As previously noted, Meade has refused to answer questions
under oath concerning his past wages and taxes. Judge Roberts issued an order (Doc.
No. 31) giving Meade a period of time to answer Smith’s questions or face sanctions.
Smith requests that the sanction be dismissal of Meade’s claims for economic damages
by granting summary judgment. He has also presented a letter in which Meade’s attorney
provides “formal notice that Meade ha[s] agreed to forego any claims for past or future
lost wages.” Doc. No. 34-3 at 4. Meade does not address this issue in his resistance.
Under these circumstances, Smith is entitled to summary judgment on Meade’s claims
for compensatory economic damages.
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VI.
CONCLUSION
For the foregoing reasons, defendant Ben Smith’s motion (Doc. No. 34) for
summary judgment is granted in part and denied in part, as follows:
1.
The motion is granted as to Meade’s Fourth and Sixth Amendment claims
in Count I, and as to Counts II, III and IV. Those claims are dismissed.
2.
The motion is also granted as to Meade’s claims for relief in the forms of
(1) a permanent injunction against further investigation and prosecution and
(2) compensatory economic damages. Those requests for relief are dismissed.
3.
The motion is denied as to Meade’s First Amendment retaliation claim in
Count I. That claim will procced to trial.
IT IS SO ORDERED.
DATED this 11th day of March, 2020.
__________________________
Leonard T. Strand, Chief Judge
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