Peterson v. Porter, et al
OPINION AND ORDER by Judge Anna J. Brown The Court GRANTS in part and DENIES in part Defendant's Motion (# 16 ) to Dismiss as set out in thisOpinion and Order. The Court DIRECTS Plaintiff to file no later than August 28,2017, a Second Am ended Complaint consistent with this Opinion and Order. The Court also DIRECTS Defendant Porter to file no later than September 8, 2017, his Answer to Plaintiff's Second Amended Complaint. The Court sets a Rule 16 Conference for 2:00 p.m.,September 13, 2107. The Court DIRECTS all parties to confer regarding case-management proceedings and to submit no later thanSeptember 8, 2017, a single joint proposed case-management schedule. IT IS SO ORDERED. See order for further details. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTOPHER SCOTT PETERSON,
OPINION AND ORDER
WILLIAM BRYAN PORTER, a
citizen of the State of Oregon
in his official and individual
capacities; TILLAMOOK COUNTY,
an Oregon municipal
subdivision; and RONALD LEWIS
TEED, a citizen of the State
This matter comes before the Court on Defendant William
Bryan Porter’s Motion (#16) to Dismiss.
For the reasons that follow, the Court GRANTS in part and
DENIES in part Defendant’s Motion to Dismiss.
The following facts are taken from Plaintiff Christopher
Scott Peterson’s First Amended Complaint (FAC)(#52) and accepted
as true for purposes of this Motion.
Plaintiff is a general contractor in Tillamook County.
1 - OPINION AND ORDER
Plaintiff was engaged in various building projects with Defendant
Ronald Lewis Teed beginning in 2007, including a contract signed
in August 2007 to significantly remodel Teed’s house in Tillamook
Disputes arose between Plaintiff and Teed, and in May
2009 Teed cancelled the 2007 construction contract with
Plaintiff alleges there were various subsequent threatening
interactions between himself and Teed.
In September 2009
Plaintiff filed a uniform stalking complaint against Teed with
the Astoria Police Department.
Plaintiff alleges Teed, his attorney, and Porter (District
Attorney for Tillamook County and Teed’s brother-in-law) met in
March 2011 to “fabricate charges” of felony theft against
Plaintiff further alleges Porter told Teed to file a
complaint with the Tillamook County Sheriff’s Department.
filed the complaint, but he was told by the Tillamook County
Sheriff’s Department that there was not any evidence of a crime
and that he would have to file a civil lawsuit.
In April 2011
Teed sent a letter to Porter asking him to pursue criminal
charges against Plaintiff.
On May 19, 2011, Porter charged Plaintiff with Aggravated
Plaintiff alleges Porter obtained a warrant to arrest
Plaintiff by making false representations to a judge.
also alleges Porter made further false representations to the
2 - OPINION AND ORDER
court on September 19, 2011, at Plaintiff’s arraignment hearing.
On September 30, 2014, a jury trial on Plaintiff’s theft
charges commenced in Tillamook County Circuit Court.
acquitted Plaintiff at the conclusion of a five-day trial.
On October 16, 2016, Plaintiff filed a civil action in this
Court against Defendants Porter, Tillamook County, and Teed
alleging they violated Plaintiff’s civil rights pursuant to 28
U.S.C. § 1983 by arresting and prosecuting him in Tillamook
On January 13, 2017, Teed filed an Answer to Plaintiff’s
Also on January 13, 2017, Porter and Tillamook County
filed Motions (#16, #17 respectively) to Dismiss Plaintiff’s
On April 26, 2017, Plaintiff filed a Stipulated Notice (#43)
of Dismissal as to Tillamook County.
On April 28, 2017, the Court entered an Order (#44)
dismissing Tillamook County.
On May 24, 2017, Plaintiff filed a Motion (#47) for Leave to
File Amended Complaint.
Over Porter’s objection, the Court
granted Plaintiff’s Motion.
On June 14, 2017, Plaintiff filed his FAC alleging claims
against Porter for violation of Plaintiff’s Fourth and Fourteenth
Amendment rights to be free from falsification of evidence and
3 - OPINION AND ORDER
from malicious prosecution pursuant to § 1983.
alleges common-law claims against Porter and Teed for malicious
prosecution, tortious inference with business relations, and
intentional infliction of emotional distress.
Porter’s Motion to Dismiss was pending at the time that
Plaintiff filed his FAC, and the Court gave the parties leave to
file supplemental memos regarding the Motion.
On July 7, 2017,
and July 21, 2017, Porter and Plaintiff filed their supplemental
To survive a motion to dismiss a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
for relief that is plausible on its face.”
Twombly, 550 U.S. 544, 545 (2007).
Bell Atlantic v.
A claim has facial
plausibility 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. at 556.
“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.”
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)(quoting Twombly, 550 U.S. at 546).
complaint is based on facts that are “merely consistent with” a
defendant's liability, it “stops short of the line between
4 - OPINION AND ORDER
possibility and plausibility of entitlement to relief.”
556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
See also Bell
Atlantic, 550 U.S. at 555-56. The court must accept as true the
allegations in the complaint and construe them in favor of the
Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).
The pleading standard under Federal Rule of Civil Procedure
8 “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.”
U.S. at 555).
Iqbal, 556 U.S. at 678 (quoting Twombly, 550
See also Federal Rule of Civil Procedure 8(a)(2).
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Id. (citing Twombly, 550 U.S. at 555).
A complaint also does not
suffice if it tenders “naked assertion[s]” devoid of “further
Id. at 557.
“In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th
Cir. 2007)(citing Jacobson v. Schwarzenegger, 357 F. Supp. 2d
1198, 1204 (C.D. Cal. 2004)).
A court, however, "may consider a
writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."
5 - OPINION AND ORDER
Id. (quoting Parrino v. FHP,
Inc., 146 F.3d 699,706 (9th Cir. 1998), superseded by statute on
other grounds as stated in Abrego v. Dow Chem. Co., 443 F.3d 676
(9th Cir. 2006)).
Porter moves to dismiss Plaintiff’s FAC on the ground that
Plaintiff fails to allege sufficient facts to overcome Porter’s
assertion that he is entitled to absolute prosecutorial immunity.
Porter contends all of his actions as alleged by Plaintiff were
performed in his role as a prosecutorial advocate, and,
therefore, he is protected by such immunity.
In response Plaintiff contends absolute prosecutorial
immunity does not apply on the ground that Porter’s actions were
taken before there was any probable cause to believe a crime had
been committed, and, therefore, Porter was acting as an
investigator rather than an advocate.
Plaintiff also argues
absolute prosecutorial immunity no longer applies to maliciousprosecution claims under Oregon law.
The Propriety of Defendant’s Motion to Dismiss at this Stage
of the Proceedings
As noted, Porter challenges the sufficiency of Plaintiff’s
Porter, however, does not challenge the sufficiency
of Plaintiff’s allegations to state a claim, but instead
challenges the sufficiency of Plaintiff’s allegations to overcome
Porter’s defense that he has absolute prosecutorial immunity from
6 - OPINION AND ORDER
Generally a party would allege such an affirmative defense
in their answer to the complaint and then file a motion for
summary judgment based on that defense.
See Genzler v.
Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).
court, however, has considered the defense of absolute
prosecutorial immunity at the Rule 12(b)(6) stage appropriate on
the ground that “federal courts should be particularly reluctant
to relax pleading requirements in cases such as this, where the
purpose of the . . . immunity doctrine is to free officials from
the concerns of litigation, including the avoidance of disruptive
Ashcroft v. Iqbal, 556 U.S. at 685 (citing Siegert
v. Gilley, 500 U.S. 226, 236 (1991)).
See also Ismail v. Cty of
Orange, 917 F. Supp. 2d 1060, 1069 (C.D. Cal. 2012), aff’d 676 F.
App’x 690 (9th Cir. 2017).
Thus, courts have allowed motions to
dismiss based on absolute prosecutorial immunity to proceed at
this preliminary stage.
See, e.g., Imbler v. Pachtman, 424 U.S.
409 (1976); Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
The Court notes, nevertheless, that the party asserting the
defense continues to bear the burden of proof.
Id. (citing Burns
v. Reed, 500 U.S. 478, 486 (1991)).
Plaintiff alleges in his FAC the following specific acts by
On March 17, 2011, Porter met with Teed and his attorney “to
fabricate charges of felony theft in order to give Porter, in the
7 - OPINION AND ORDER
event of a conviction, discretion as District Attorney to impose
restitution sanctions for the benefit of Teed” (¶ 30);
Porter knew Plaintiff had not committed theft (¶ 30);
Porter told Teed to file a complaint with the Tillamook
County Sheriff’s office (¶ 30);
Porter did not conduct any investigation of Teed’s
allegations (¶ 32);
Porter charged Plaintiff on May 19, 2011, with aggravated
theft “without any probable cause, and knowing that the charges
against [Plaintiff] were fabricated” (¶ 33);
Porter brought the charges at Teed’s “instigation and
insistence” (¶ 33);
Porter made knowingly false representations to the court to
obtain an arrest warrant (¶ 34);
Porter made knowingly false representations to the court at
Plaintiff’s arraignment (¶ 35);
Porter engaged in abusive and unjust prosecutorial tactics
in various ways that violated Plaintiff’s civil rights (¶ 38);
Porter conducted the trial against Plaintiff (¶ 39).
III. Prosecutorial Immunity
In Genzler v. Loganbach the Ninth Circuit noted a prosecutor
is protected by absolute immunity from liability for damages
under § 1983 “when performing the traditional functions of an
410 F.3d 630, 636 (9th Cir. 2005)(quoting Kalina v.
Fletcher, 522 U.S. 118, 131 (1997)).
8 - OPINION AND ORDER
“[T]he actions of a
prosecutor[, however,] are not absolutely immune merely because
they are performed by the prosecutor.”
Fitzsimmons, 509 U.S. 259, 273 (1993)).
Id. (quoting Buckley v.
depends on “the nature of the function performed, not the
identity of the actor who performed it.”
522 U.S. at 127).
Id. (quoting Kalina,
Prosecutors are entitled to qualified immunity
rather than absolute immunity when they perform administrative
functions or “investigative functions normally performed by a
detective or police officers.”
Id. (quoting Kalina, 522 U.S. at
The Supreme Court has consistently “emphasized that the
official seeking absolute immunity bears the burden of showing
that such immunity is justified for the function in question.”
Id. (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)).
To qualify as advocacy entitled to immunity an act must be
“intimately associated with the judicial phase of the criminal
Id. (citing Imbler v. Pachtman, 424 U.S. 409, 430
[I]n deciding whether to accord a prosecutor immunity
from a civil suit for damages, a court must first
determine whether a prosecutor has performed a quasijudicial action. If the action was part of the
judicial process, the prosecutor is entitled to the
protection of absolute immunity whether or not he or
she violated the civil plaintiff’s constitutional
Broam v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003).
“When a prosecutor steps outside of the advocate's role,
however, his or her conduct is protected by immunity only to the
9 - OPINION AND ORDER
extent that any other individual would be protected in performing
the same function.”
(9th Cir. 2002).
Cruz v. Kauai Cnty., 279 F.3d 1064, 1067
Accordingly, prosecutors are not entitled to
absolute immunity for performing investigative functions or when
serving the function of a witness by personally attesting to
See Kalina, 522 U.S. at 507-10.
See also Torres v.
Goddard, 793 F.3d 1046, 1053 (9th Cir. 2015).
Ultimately “the absolute immunity that protects the
prosecutor's role as an advocate is not grounded in any special
‘esteem for those who perform these functions, and certainly not
from a desire to shield abuses of office, but because any lesser
degree of immunity could impair the judicial process itself.’”
Kalina, 522 U.S. at 127.
See also Slater v. Clarke, 700 F.3d
1200, 1203 (9th Cir. 2012).
As the court stated in Genzler, the analysis as to whether
prosecutorial acts constitute advocacy or police-type
investigative work “is complicated by the fact that the Supreme
Court has resisted any attempt to draw a bright-line between the
410 F.3d at 637.
The Genzler court noted “[t]he question
is whether a prosecutor’s investigation is of the type normally
done by police, in which case prosecutors enjoy only qualified
immunity, or whether an investigation is bound up with the
judicial process, thus affording prosecutors the heightened
protection of absolute immunity.”
410 F.3d at 638.
In Buckley v. Fitzsimmons the court noted “[a] prosecutor
10 - OPINION AND ORDER
neither is, nor should consider himself to be, an advocate before
he has probable cause to have anyone arrested.”
509 U.S. 259,
The Court further stated “a determination of
probable cause, however, does not guarantee a prosecutor absolute
immunity from liability for all actions taken afterwards.
after that determination . . . a prosecutor may engage in ‘police
investigative work’ that is entitled to only qualified immunity.”
Id. at 274 n.5.
Plaintiff contends Porter’s pre-indictment activities
were not “intimately associated with the judicial phase of the
criminal process”; not “traditional functions of an advocate”;
and, therefore, not subject to absolute prosecutorial immunity.
Plaintiff alleges Porter met with Teed in order to fabricate
charges against Plaintiff, Porter knew Plaintiff had not
committed any theft, and Porter did not conduct any
In fact, according to Plaintiff, Porter filed the
criminal charges against Plaintiff in conspiracy with Teed and at
his insistence after his meeting with Teed.
contends Porter took all of these actions without probable cause,
and, therefore, under the holding in Buckley, Porter was not
acting in the role of an advocate because he did not have
Thus, according to Plaintiff, Porter was, in
effect, not acting as an advocate when he “conspired” with Teed
to initiate charges against Plaintiff.
11 - OPINION AND ORDER
Porter, however, characterizes his filing of charges
against Plaintiff as the result of his “professional evaluation
of the evidence” obtained from Teed as the basis for determining
whether to proceed with criminal prosecution.
asserts such activity was in his function as an advocate.
As the Court noted in Buckley, “the actions of a
prosecutor are not absolutely immune merely because they are
performed by a prosecutor.”
509 U.S. at 273.
The Court stated:
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
The Court further noted:
The question, then, is whether the prosecutors
have carried their burden of establishing that
they were functioning as “advocates” when they
were endeavoring to determine whether the
bootprint at the scene of the crime had been made
by petitioner’s foot. A careful examination of
the allegations concerning the conduct of the
prosecutors during the period before they convened
a special grand jury to investigate the crime
provides the answer. [reference omitted.] The
prosecutors do not contend that they had probable
cause to arrest petitioner or to initiate judicial
proceedings during this period. Their mission at
that time was entirely investigative in character.
A prosecutor neither is, nor should consider
himself to be, an advocate before he has probable
cause to have anyone arrested.
Id. at 273-74.
Although the Supreme Court has not announced a “brightline” for determining when a prosecutor’s acts constitute
advocacy or police-type investigative work, the Court has clearly
12 - OPINION AND ORDER
held absolute immunity does not apply until the prosecutor has
probable cause to bring charges against an individual.
As noted, Plaintiff alleges Porter met with Teed and
his attorney “to fabricate charges” against Plaintiff, and Porter
later filed those charges “without any probable cause, and
knowing that the charges against [Plaintiff] were fabricated.”
The Court must accept these allegations as true for purposes of
See Din v. Kerry, 718 F.3d 856, 859 (9th Cir.
Based on Plaintiff’s allegations, the Court infers Porter
knew he did not have probable case to proceed, and, Porter,
therefore, was not acting in his role as an advocate.
On this record the Court concludes Plaintiff’s
allegations against Porter for his pre-indictment conduct are
sufficient to overcome Porter’s Motion at this early stage of the
Specifically, the Court must infer for purposes of this
Motion that Porter was conspiring pre-indictment to make false
criminal accusations against Plaintiff, and, therefore, Porter
could not have been acting as an advocate merely evaluating the
evidence to determine whether he had probable cause to charge
In the absence of any case authority that
prosecutorial immunity applies in such circumstances, Porter has
not met his burden to establish conclusively his not-yet-pled
affirmative defense of prosecutorial immunity for his preindictment activity.
Accordingly, the Court DENIES Porter’s Motion to the extent
that he seeks dismissal of Plaintiff’s pre-indictment allegations
13 - OPINION AND ORDER
at this stage on the basis of absolute prosecutorial immunity.
According to Plaintiff, after initiating the charges
against Plaintiff, Porter made false representations in order to
obtain an arrest warrant.
Plaintiff also alleges Porter made
false representations during Plaintiff’s arraignment and trial
and engaged in conduct during trial that violated Plaintiff’s
Porter, in turn, contends his conduct after he brought
criminal charges against Plaintiff was within his duty as an
advocate, and, therefore, Plaintiff’s allegations are
insufficient to defeat immunity.
In Burns v. Reed the court held absolute immunity
applied to a prosecutor’s “appearance in court in support of an
application for a search warrant and the presentation of evidence
at that hearing.”
500 U.S. 478, 492 (1991).
In Imbler v. Pachtman, the seminal case on absolute
prosecutorial immunity, the Supreme Court held “in initiating a
prosecution and in presenting the State’s case,” a prosecutor is
immune from a civil suit for damages under § 1983.
424 U.S. 409,
This immunity covers the knowing use of false
testimony at trial, the suppression of exculpatory evidence, and
Id. at 416.
The Court reasoned these
activities are “intimately associated with the judicial phase of
the criminal process.”
Id. at 430.
In Imbler the Court observed
although absolute “immunity . . . leave[s] the genuinely wronged
14 - OPINION AND ORDER
defendant without civil redress against a prosecutor whose
malicious or dishonest action deprives him of liberty,” absolute
immunity for prosecutorial advocacy is, nevertheless, justified
because “the alternative of qualifying a prosecutor's immunity
would disserve the broader public interest” in protecting the
prosecutor's abilities to exercise independent judgment and to
advocate vigorously without the threat of retaliation.
On this record the Court concludes Porter’s actions
post-indictment as alleged by Plaintiff constitute conduct within
his role as advocate, and, therefore, Porter has satisfied his
burden to prove his affirmative defense and is entitled to
absolute prosecutorial immunity.
Accordingly, the Court GRANTS Porter’s Motion to Dismiss as
to his post-indictment conduct.
Prosecutorial Immunity under Oregon Law
Plaintiff also brings claims for malicious prosecution,
intentional interference with business relations, and intentional
infliction of emotional distress under Oregon law.
contends absolute immunity no longer applies to maliciousprosecution claims under Oregon law, and, therefore, Porter is
not entitled to absolute prosecutorial immunity for his actions
as alleged in Plaintiff’s state law claims.
Plaintiff relies on
Mantia v. Hanson, 190 Or. App. 412 (2003), to support his
Mantia, however, was a civil action based on an
employer’s alleged wrongful discharge; did not arise out of a
15 - OPINION AND ORDER
criminal prosecution; was not brought under § 1983; and,
therefore does not apply here.
In summary, the Court concludes Plaintiff’s allegations in
his FAC are sufficient to state a claim that Porter was not
acting in his role as a prosecutorial advocate before initiating
charges against Plaintiff, and, therefore, Porter is not entitled
to absolute prosecutorial immunity for such pre-indictment
Porter is, however, entitled to absolute prosecutorial
immunity for his post-indictment actions.
For the reasons stated, the Court GRANTS in part and DENIES
in part Defendant’s Motion (#16) to Dismiss as set out in this
Opinion and Order.
The Court DIRECTS Plaintiff to file no later than August 28,
2017, a Second Amended Complaint consistent with this Opinion and
The Court also DIRECTS Defendant Porter to file no later
than September 8, 2017, his Answer to Plaintiff’s Second Amended
The Court sets a Rule 16 Conference for 2:00 p.m.,
September 13, 2107.
The Court DIRECTS all parties to confer
regarding case-management proceedings and to submit no later than
September 8, 2017, a single joint proposed case-management
IT IS SO ORDERED.
DATED this 18th day of August, 2017.
16 - OPINION AND ORDER
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
17- OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?