United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Defendant Andrea Cummings has filed a motion to dismiss for failure to state a claim upon which relief can be granted. The motion is fully briefed and no party has requested oral argument. The Court will grant the motion in part and deny it in part.
Plaintiff Hendrix Salvage Company, LLC ("HSC") is primarily a recycling business located in Phoenix, Arizona. Doc. 60, ¶ 12. Plaintiffs Lyle and Ronnie Hendrix are officers and shareholders of HSC. Id., ¶¶ 13, 14. In 2012, the Arizona Department of Public Safety ("DPS") and the Arizona Attorney General's Office ("AGO"), among other government agencies, began an investigation referred to as Operation Tin Man, which focused on HSC, Lyle Hendrix, and Ronnie Hendrix (collectively, "Plaintiffs"). Id., ¶ 20. Defendant Andrea Cummings, working as an assistant attorney general for Arizona, allegedly oversaw and assisted all aspects of the operation. Id., ¶ 34. On October 14, 2013, DPS and Phoenix Police officers submitted an affidavit in support of a seizure warrant, seeking the seizure of property belonging to Lyle and Ronnie Hendrix, HSC, and other related LLCs. Id., ¶ 23. The seizure warrant was approved by Judge Scott McCoy of the Maricopa County Superior Court. Id., ¶ 24.
On October 16, 2013, law enforcement agents seized HSC assets during a raid on HSC's premises. Id., ¶¶ 41-65. In total, officers seized 34 pieces of heavy equipment, $548, 000.36 from Plaintiffs' bank accounts and "on-hand funds, " and $204, 005.02 in un-negotiated checks payable to HSC. Id., ¶¶ 67-69.
On December 13, 2013, Defendant Cummings filed a notice of pending forfeiture and a notice of seizure for forfeiture of the property of HSC, Lyle Hendrix, and Ronnie Hendrix, among others. Id., ¶ 83. Plaintiffs responded with a timely notice of claim to the seized property. Id., ¶ 84. Cummings filed a complaint. Id., ¶ 85. On August 5, 2014, Plaintiffs filed a motion to dismiss the forfeiture proceedings. Id., ¶ 89. Cummings responded on August 25 with a notice of release of property, explaining that the State had released "all items claimed." Id., ¶ 90. Plaintiffs allege that the property was not actually released until October 3, 2014, almost one year after it was seized. Id., ¶ 97.
Plaintiffs assert a series of claims against Cummings under 42 U.S.C. § 1983 and the common law. Doc. 60. The claims focus on Cummings' involvement with the investigation of Plaintiffs, preparation of and application for the seizure warrant, the civil forfeiture proceedings, the declaration to the court that seized property had been released, continuing retention of the property, and her alleged supervision of Operation Tin Man. Id. Cummings argues that she is entitled to absolute immunity for her work as an assistant attorney general. Doc. 69.
II. Legal Standard.
Section 1983 provides that every "person who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages." Imbler v. Pachtman, 424 U.S. 409, 417 (1976). Although the statute does not expressly contain immunities for certain functions of public officials, courts have recognized that § 1983 does maintain common law "immunities well grounded in history and reason.'" Id. at 418 (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). Most public officials are presumed to have qualified immunity, which protects them from liability for discretionary functions they perform with reasonable care. See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). Prosecutors, however, are absolutely immune from liability for conduct that is "intimately associated with the judicial phase of the criminal process" such as initiating a prosecution or presenting the state's case. Burns v. Reed, 500 U.S. 478, 486 (1991) (citing Imbler, 424 U.S. at 430).
To determine whether a prosecutor is entitled to absolute or qualified immunity in a particular case, courts use a functional approach "which looks to the nature of the function performed, not the identity of the actor who performed it.'" Buckley, 509 U.S. at 269 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). "[A]cts 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." Buckley, 509 U.S. at 273. But "[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." Id.
"[T]he 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. Absolute immunity, when applicable, may be invoked in actions filed under § 1983 and the common law. Mulligan v. Grace, 666 P.2d 1092, 1094 (Ariz.Ct.App. 1983); State v. Superior Court in and for Cnty. of Maricopa, 921 P.2d 697, 700 (Ariz.Ct.App. 1996).
The Ninth Circuit recently affirmed that absolute immunity applies to prosecutors in civil forfeiture actions. Torres v. Goddard, No. 12-17096, 2015 WL 4282721, at *4 (9th Cir. Jul. 16, 2015). The court discussed Butz v. Economou, 438 U.S. 478 (1978), in which a commodities merchant claimed that Department of Agriculture officials maliciously initiated administrative proceedings after he criticized the agency. Id. at 480. The Supreme Court held that absolute immunity applies to "adjudication within a federal administrative agency" because such adjudication "shares enough of the characteristics of the judicial process." Id. at 512-13. Torres found that the "reasoning of Butz applies with equal or greater force in the civil forfeiture context [because] [i]n rem proceedings seeking the forfeiture of property connected to criminal activity are functionally analogous to criminal proceedings." 2015 WL 4282721 at *4.
Plaintiffs allege that Cummings should be held liable for her participation in all stages of Operation Tin Man, the resulting forfeiture proceedings, and the retention of the seized property. Doc. 60. The Court will address the various stages to determine whether Cummings is entitled to absolute immunity, in which event the claims must be dismissed, or ...