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Biebrich v. O'Donnell-Smith

United States District Court, D. Arizona

October 23, 2018

Brenda Biebrich, et al., Plaintiffs,
Colleen O'Donnell-Smith, et al., Defendants.



         Pending 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.

         I. BACKGROUND

         Plaintiffs 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).

         A. Facts

         The 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).

         Plaintiff 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).

         The 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.).


         Defendants 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.

         A. Absolute Immunity

         1. Legal Standard

         The 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 citation omitted)).

         Absolute 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 seeking ...

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