Jones v. Whittington et al

Filing 62

ORDER granting 55 defendant John Wampler's motion to dismiss and dismisses plaintiff's claims against him...the court LIFTS the stay on discovery previously imposed 61 ans will separately enter a revised scheduling order imposing new deadlines. Signed by Honorable Joe Heaton on 12/10/2012. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RON E. JONES,
Plaintiff,
vs.
SHERIFF BOBBY WHITTINGTON,
ET AL.,
Defendants.

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NO. CIV-11-0861-HE

ORDER
Defendant John Wampler’s motion to dismiss [Doc. #55] is currently before the court.
Background
Plaintiff Ron E. Jones filed a federal 42 U.S.C. § 1983 lawsuit against various
defendants arising out of an incident in 2010 where plaintiff’s horses were seized and
plaintiff was charged with felony cruelty to animals. According to the second amended
complaint, those charges were dismissed on February 22, 2011. Plaintiff filed this case on
July 29, 2011. The complaint alleges that, less than a month later, on August 22, 2011,
plaintiff was again charged with felony cruelty to animals in Tillman County.
Defendant John Wampler is the district attorney for District #3, which includes
Tillman County. Plaintiff alleges that there was no change in circumstances between
dismissal of the original criminal charges and the filing of the new charges, other than the
filing of this case. Plaintiff has sued Wampler, in his individual capacity, for vindictive
prosecution, asserting that the charges were “clearly filed in retaliation for Plaintiff
exercising his rights and filing a § 1983 lawsuit” [Doc. #39 at 12]. Wampler has moved to

dismiss the claims against him pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6),
arguing that the complaint fails to state a claim against him upon which relief can be granted
because he is entitled to absolute immunity for the conduct alleged.1
Analysis
Rule 12(b)(6) permits a court to dismiss a claim when a party fails “to state a claim
upon which relief can be granted.” When considering a Rule 12(b)(6) motion, all wellpleaded factual allegations in the complaint are accepted as true and construed in the light
most favorable to the nonmoving party. Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir.
2010). Unsupported, conclusory allegations, however, need not be accepted as true. See
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). The question
is whether the complaint contains “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Applying this
standard, the court concludes defendant’s motion should be granted.
Prosecutors are absolutely immune from liability for damages in § 1983 lawsuits for
actions that are “intimately associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976).2 Courts use a “functional approach” to

1

Defendant also argued that the claims should be dismissed pursuant to Rule 8 because it
is unclear what allegations are directed towards him specifically. However, it appears clear enough
that the only claim asserted against defendant Wampler is the vindictive prosecution claim.
2

As the Court recognized, “this immunity does leave the genuinely wronged defendant
without civil redress against a prosecutor whose malicious or dishonest action deprives him of
liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public
interest.” Imbler, 424 U.S. at 427.

2

determine when a prosecutor’s actions are entitled to absolute immunity, focusing on “the
nature of the function performed, not the identity of the actor who performed it.” Buckley
v. Fitzsimmons, 509 U.S. 259, 269 (1993) (citations omitted). The Supreme Court has
emphasized that absolute immunity applies when a prosecutor is functioning in his role as
an advocate, rather than when he is engaged in “investigative or administrative tasks.” Van
de Kamp v. Goldstein, 555 U.S. 335, 342 (2009) (citing Imbler, 424 U.S. at 431 n.33); see
also Mink v. Suthers, 482 F.3d 1244, 1261-62 (10th Cir. 2007).
The Tenth Circuit has identified several factors to consider in determining whether
acts fall within advocacy or investigation: “(1) whether the action is closely associated with
the judicial process, (2) whether it is a uniquely prosecutorial function, and (3) whether it
requires the exercise of professional judgment.” Mink, 482 F.3d at 1261 (citations omitted)
(applying factors primarily to pre-indictment acts). However, the court has emphasized that
“[a] prosecutor's charging decisions are absolutely immune from civil suit for monetary
damages.” Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007) (citing Hartman v. Moore,
547 U.S. 250, 261-62 (2006)); see also Nielander v. Bd. of Cnty. Comm’rs of Cnty. of
Republic, Kan., 582 F.3d 1155, 1164 (10th Cir. 2009) (holding that “[p]rosecutors are
entitled to absolute immunity for their decisions to prosecute,” so long as they are acting as
an advocate rather than a witness). This immunity “undoubtedly includes initiating criminal
proceedings,” even if the prosecutor filed charges “knowing he lack[ed] probable cause.”
Becker, 494 F.3d at 925 (citations omitted) (applying absolute immunity in a retaliation
lawsuit); see also Buckley, 509 U.S. at 274 n.5 (noting that prosecutor would still be entitled
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to absolute immunity for the “malicious prosecution of someone whom he lacked probable
cause to indict”).
Plaintiff’s only complaint against defendant Wampler is that less than a month after
plaintiff filed this lawsuit, state criminal charges were again filed against him in Tillman
County, presumably by Wampler as the district attorney for that county. As discussed above,
a prosecutor’s act of filing criminal charges is undoubtedly “intimately associated with the
judicial phase of the criminal process.” See Imbler, 424 U.S. at 430-31. The complaint
alleges no facts to suggest that Wampler was acting in an investigative or administrative role
when he re-filed the criminal charges.3 Plaintiff’s wholly conclusory allegation that
“Defendant Wampler acted outside his capacity as prosecutor and advocate for the State”
[Doc. #39 at 18] provides no basis for avoiding Wampler’s absolute immunity for the
conduct complained of: bringing criminal charges. Furthermore, plaintiff’s claim that
Wampler lacked probable cause when filing the charges is unavailing because, as stated in
Becker, 494 F.3d at 925, a prosecutor’s actions in initiating criminal proceedings are entitled
to absolute immunity, even if there is a complete lack of probable cause. Because plaintiff
has alleged no facts suggesting that Wampler acted outside his capacity as an advocate in
filing these charges, his conduct is entitled to absolute immunity. Therefore, plaintiff does
not state a claim against Wampler and the complaint must be dismissed as to him.
Conclusion

3

The second amended complaint contains conclusory references to statements made to the
press but includes no specific facts as to any such event.

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The court GRANTS defendant John Wampler’s motion to dismiss [Doc. #55] and
DISMISSES plaintiff’s claims against him. The court LIFTS the stay on discovery
previously imposed [Doc. #61] and will separately enter a revised scheduling order imposing
new deadlines.
IT IS SO ORDERED.
Dated this 10th day of December, 2012.

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