United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is Defendants Colleen O'Donnell-Smith,
Jennifer Hunter, Sharon Herndon, and Rebekah Scott's
(individually and collectively, “Defendants”)
Motion to Dismiss (Doc. 15) filed on June 8, 2018. Plaintiffs
Brenda Biebrich (“Plaintiff Biebrich”) and Heidi
Davis (“Plaintiff Davis”) (collectively
“Plaintiffs”) filed a timely Response (Doc. 17)
on June 22, 2018 and Defendants filed a Reply (Doc. 18) on
June 29, 2018. The Court has jurisdiction over this matter
pursuant to 28 U.S.C. §§ 1331, 1367. The Court now
rules on the motion.
filed suit on April 20, 2018, alleging that Defendants
unlawfully retaliated against them in a Superior Court of
Arizona in Maricopa County (“Superior Court”)
proceeding by filing an emergency motion seeking sanctions
for the release of confidential information to the media.
(Doc. 1). Here, the operative complaint (“Compl.,
” Doc. 7) asserts the following causes of actions: (1)
deprivation of First Amendment rights in violation of 42
U.S.C. § 1983; (2) wrongful institution of civil
proceedings; and (3) abuse of process. (See
generally Compl.). The first cause of action is brought
by Plaintiffs against all Defendants. (Id.
¶¶ 68-78). The remaining two causes of action are
brought only by Plaintiff Biebrich against all Defendants.
(Id. ¶¶ 79-89).
following facts are either undisputed or recounted in the
light most favorable to the non-moving party. See Wyler
Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d
658, 661 (9th Cir. 1998). Plaintiffs were involved in a civil
adoption matter related to Plaintiff Biebrich's nephew.
(Compl. ¶¶ 9-52). Plaintiff Davis represented
Plaintiff Biebrich in that proceeding. (Id. ¶
27). At all relevant times, Defendants Herndon and Scott were
Arizona Department of Child Safety (“DCS”)
employees and Defendants O'Donnell-Smith and Hunter were
Assistant Attorneys General representing DCS. (Id.
¶¶ 3-6). All Defendants worked in concert on this
matter. (Id. ¶¶ 55-57).
Davis shared information with the media regarding the
DCS's handling of the adoption proceeding. (Id.
¶¶ 40-42). After learning that the information had
been shared, Defendants filed a motion seeking sanctions
against both Plaintiffs for alleged violations of Arizona
Revised Statutes §§ 8-542 and 8-807. (Id.
¶ 58). Arizona Revised Statute § 8-542 establishes
that a person commits a class two misdemeanor by disclosing
information related to Article 5 (Termination of Parent-Child
Relationship) proceedings. Ariz. Rev. Stat. Ann. §
8-542. Arizona Revised Statute § 8-807 explains that a
person who discloses “DCS information” without
authorization by law or a court order similarly commits a
class two misdemeanor. Ariz. Rev. Stat. Ann. § 8-807(U),
(X). In their motion for sanctions, Defendants alleged that
Plaintiffs disclosed information related to an adoption
proceeding to the media. (Doc. 15). Plaintiffs allege that
Defendants sought sanctions as retaliation against Plaintiffs
for speaking with the media. (Compl. ¶ 53).
Superior Court held evidentiary hearings in relation to these
allegations on March 14, 2017 and April 6, 2017. (Doc. 18-1
at 3). The Superior Court issued a decision on April 20,
2017, finding that Plaintiff Biebrich did not make the
alleged disclosures and holding that Plaintiff Davis's
disclosures were not made in violation of the applicable
statutes. (Id. at 3, 7). In its reasoning, the
Superior Court, however, expressed that it was
“extremely troubled by [Plaintiff Davis's] lack of
candor during her sworn testimony” and believed that
Plaintiff Davis “may have violated [Arizona's]
Rules of Professional Conduct.” (Id. at 7).
Ultimately, the Superior Court referred Plaintiff Davis's
conduct issues to the State Bar of Arizona for further action
by that organization. (Id.). The Superior Court took
no further action in this matter. (Id.).
MOTION TO DISMISS
filed the pending Motion to Dismiss pursuant to Federal Rule
of Civil Procedure (“Rule”) 12(b)(6) for failure
to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). Defendants move to dismiss all three
of Plaintiffs' claims on the grounds that Defendants are
entitled to absolute immunity. In the alternative, Defendants
allege that Plaintiff Biebrich's abuse of process claim
is barred by the applicable statute of limitations.
determination as to whether a prosecutor is entitled to
absolute, or only qualified, immunity on a state law or
§ 1983 claim depends on a functional analysis.
Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993);
State v. Superior Court in and for County of
Maricopa, 921 P.2d 697, 700 (Ariz.Ct.App. 1996). In
considering whether a prosecutor is protected by absolute
immunity, the examining court “must disregard the
intent, motive, or state of mind that the prosecutor had when
performing the activity in question.” State v.
Superior Court, 921 P.2d at 700 (citing Ashelman v.
Pope, 793 F.2d 1072, 1077-78 (9th Cir. 1986)).
Prosecutorial immunity is not limited to individuals acting
as criminal prosecutors; courts routinely hold that absolute
prosecutorial immunity applies to actors outside of the
position of prosecutor, and to individuals who are not
attorneys. See, e.g., Meyers v. Contra Costa
Cty. Dep't of Soc. Servs., 812 F.2d 1154, 1156 (9th
Cir. 1987) (holding that a social worker was entitled to
absolute prosecutorial immunity for his role in the
initiation of dependency proceedings); Gonzales v.
Schutt, No. 1:14-CV-01347-CL, 2015 WL 4545741, at *5 (D.
Or. July 23, 2015) (explaining that “it is not the job
title that is determinative, but the particular function that
is being performed” in reasoning that a police officer
can invoke prosecutorial immunity even though “he is
not a prosecutor” (internal quotation marks and
immunity attaches to actions “intimately associated
with the judicial phase of the criminal process.”
Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2004)
(quoting Imbler v. Pachtman, 424 U.S. 409, 430
(1976)). However, “[a]bsolute prosecutorial immunity is
not limited to criminal prosecutions, but extends to civil
enforcement proceedings.” State v. Superior
Court, 921 P.2d at 700. Conversely, prosecutors have
only qualified immunity for acts classified as administrative
or investigative. Buckley, 509 U.S. at 273, 276;
State v. Superior Court, 921 P.2d at 700. The party