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holding that "to limit discovery to the qualified immunity issue—is easily announced but more difficult in application and perhaps not so limiting" because "the issue of qualified immunity requires an exploration of the contours of the constitutional rights in issue in the context of the specific facts of the case"
Summary of this case from Kozma v. City of LivoniaOpinion
Civil No. 03-CV-10001-BC.
March 8, 2005
The plaintiff filed a lawsuit against the Bureau of Alcohol, Tobacco, and Firearms (BATF) and two of its agents for conspiring to violate his constitutional rights in connection with the plaintiff's effort to obtain relief from the BATF's revocation of his license to manufacture and sell explosives. The facts as pleaded in the complaint are set forth by the magistrate judge in his report recommending that the defendants' motion to dismiss be denied. Both sides have filed objections, and the motion is now before the Court for de novo review. The Court finds that the magistrate judge correctly decided the issues before him, so the Court will overrule the objections and deny the motion to dismiss the individual defendants.
To summarize, the plaintiff alleged that he obtained a license to sell and manufacture explosives in 1981 in connection with his fireworks business. He lost the privilege in 1991 by operation of 18 U.S.C. § 842(i)(1), which prohibits felons from shipping or receiving explosives, after he was convicted of two felonies and a misdemeanor. He applied for relief from this disability in April 1997 after he was released from supervision, following which, he alleges, defendants Kiser and Stumpenhaus began a campaign to entrap him into committing a federal offense as a means of frustrating his license application. The scheme resulted in the plaintiff's arrest and prosecution for four crimes involving the possession of and dealing in explosive materials by a felon. A federal jury convicted the plaintiff of one count and acquitted him of the others in September 1998, and the trial judge granted a motion for judgment of acquittal on the count of conviction about a year later. However, the plaintiff's request for an explosive license was denied.
The plaintiff brought the present action on January 2, 2003 alleging in a three-count complaint that the defendants violated his First and Fourth Amendment rights by retaliating against him for criticizing the government and applying for the restoration of his privileges, and prosecuting him without probable cause in 1998, for which he sought damages against the individual defendants (count 1); engaging in an illegal policy and practice with respect to the plaintiff's application for relief from his explosive-possession disability, for which the plaintiff sought declaratory and injunctive remedies against the BATF compelling, among other things, the issuance of an explosives license (count 2); and conspiracy against the individual defendants, giving rise to damages (count 3). The plaintiff alleged that Kiser and Stumpenhaus violated his rights by initiating an investigation against him, procuring a search warrant based on a false affidavit, and testifying falsely against the plaintiff before the grand jury and at trial.
The Court referred the case to Magistrate Judge Charles E. Binder for pretrial case management pursuant to 28 U.S.C. § 636(b). In lieu of answering the complaint, the defendants filed their motion to dismiss. The plaintiff responded by contesting the dismissal of counts 1 and 3, but agreeing that count 2 should be dismissed. After full briefing, the magistrate judge filed a report stating that count 2 would be dismissed and the remaining counts may proceed. He stated that a lengthy declaration of Walfred Nelson and one by Harry Pass, both BATF supervisors, should be disregarded because a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) limits consideration to the pleadings alone, and it would be unfair to the plaintiff to convert the motion to one for summary judgment at this stage of the proceedings. The magistrate judge then determined that the plaintiff pleaded a cognizable claim against federal agents under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). He said that there was a viable First Amendment retaliation claim because the complaint set forth all three elements of such an action as prescribed by Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc), and Goad v. Mitchell, 297 F.3d 497, 500 (6th Cir. 2002). As for the "adverse action" element, he found that initiating a baseless investigation, attempting to induce the plaintiff to commit an illegal act, presenting false information to obtain a search warrant, and arresting the plaintiff without probable cause sufficed; although he also held that the defendants were immune from liability based on their testimony before the grand jury and at trial. The magistrate judge also found that the complaint pleaded a claim based on a violation of the Fourth Amendment for false arrest and prosecution without probable cause even though a grand jury made a probable cause determination, albeit based on allegedly false evidence. See Hinchman v. Moore, 312 F.3d 198, 203 (6th Cir. 2002); Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001). Finally, the magistrate judge held that the plaintiff's rights to be free from these violations were clearly established and the defendants were not entitled to qualified immunity at this stage of the proceedings. He therefore recommended dismissal of count 2 of the complaint and all claims against the BATF and denial of the motion to dismiss counts 1 and 3 against the individual defendants.
The plaintiff's objections to the report and recommendation focus on the finding that the defendants are immune from liability for giving false grand jury testimony. He agrees that absolute immunity exists for the defendants' trial testimony, but he insists that immunity does not extend to their testimony before the grand jury because the nature of that proceeding is ex parte and it is not a judicial proceeding, citing Vikilian v. Shaw, 335 F.3d 509 (6th Cir. 2003). In Vikilian, the court held that a police officer did not enjoy absolute immunity when he allegedly gave false testimony to a state magistrate when swearing out an arrest warrant. Id. at 516 (citing Ireland v. Tunis, 113 F.3d 1435, 1147 (6th Cir. 1997)). However, in Briscoe v. LaHue, 460 U.S. 325, 328 (1983), the Supreme Court concluded that "all witnesses — police officers as well as lay witnesses — are absolutely immune from liability based upon their testimony in judicial proceedings." (citation and footnote omitted). Citing that case, the Court of Appeals for the Sixth Circuit held in Alioto v. City of Shively, 835 F.2d 1173 (6th Cir. 1987), that "absolute witness immunity also bars actions for damages against individuals who testify in grand jury proceedings," and that "[t]he doctrine enunciated in Briscoe v. LaHue also shields from liability alleged conspiracies to give false and incomplete testimony in judicial proceedings." Id. at 1174; see also Mako v. Byron, 760 F.2d 95, 96 (6th Cir. 1985) (per curiam). The plaintiff's objections, therefore, are meritless and will be overruled.
The defendants object to the recommendation and report on four grounds: they claim that the magistrate judge failed to find that the plaintiff may not obtain damages under Bivens based on the failure of the BATF to restore his privileges to deal in explosives; the report should have recommended dismissal of the claim against retired agent Stumpenhaus; the magistrate judge failed to take account of the criminal trial judge's comments concerning probable cause with respect to two of the counts of which the plaintiff was acquitted at his criminal trial; and this Court should limit discovery to the issue of qualified immunity.
The defendants' first objection is based on the premise that the plaintiff may not obtain damages for the denial of his application for relief from his explosive disability under Bivens where Congress has provided a comprehensive remedial scheme to review such denials. In support of their position, the defendants cite Downie v. City of Middleburg Heights, 301 F.3d 688 (6th Cir. 2003), where the court of appeals observed that "the Supreme Court has also held that a Bivens remedy will not be implied where: (1) there are special factors counseling hesitation in the absence of affirmative action by Congress; or (2) Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the constitution and viewed as equally effective." Id. at 694 (citations and quotations omitted). In that case, the court held that an informant who claimed that he suffered damages when a federal agent disseminated a "blackball memorandum" discrediting him as a reliable informant could not bring a Bivens claim because the Privacy Act provided a means for recovering damages from the defendant. The defendants here read the plaintiff's complaint as seeking relief because his application was denied. However, the magistrate judge held that count 1 of the complaint was based not on the denial of the plaintiff's application, but rather on acts of retaliation for making the application and for criticizing the government. Count 3 deals with conspiracy to deprive the plaintiff of those same constitutional rights. In construing the complaint otherwise, the defendants read too much into it. The plaintiff sought such relief in count 2, but the magistrate judge recommended dismissal of that count and the plaintiff does not object. It is not restoration of his explosive privileges that the plaintiff seeks here in the remaining counts; it is damages he desires for being investigated, prosecuted, and harassed for having applied for relief from his disability, for speaking out against the government, and for successfully "resist[ing] and complain[ing] about illegal actions against him." Compl. at ¶ 38(b). The defendants assert that 18 U.S.C. § 845 provides the plaintiff an avenue for relief. That statute merely furnishes a means for applying to the Attorney General to avoid the prohibition against dealing in explosives, and an appeal from a denial may be pursued under the Administrative Procedures Act. However, unlike the Privacy Act cited by the court in Downie, there is no provision for the recovery of damages, and no mention for relief from retaliation such as alleged in this case.
The defendants also note that the plaintiff has threatened to amend his complaint to add individual defendants involved in the application denial. That matter, however, is not before the Court; if there is such an attempt to amend, the matter can be addressed at that time or in later motion practice.
The next objection is directed to the adequacy of the allegations against defendant Stumpenhaus. The defendants argue that there is no allegation that Stumpenhaus was personally involved in the retaliation or false arrest and prosecution of the plaintiff. However, the complaint alleges that Stumpenhaus attempted to entrap the plaintiff into committing illegal acts, Compl. at ¶ 11, he acted in an undercover capacity to induce the plaintiff to make incriminating statements that he recorded, id. at ¶ 13, and that he conspired to deprive the plaintiff of his constitutional rights. Id. at ¶ 44. Defendant Stumpenhaus is not entitled to dismissal at this stage of the proceedings.
The defendants' third objection assails the magistrate judge's failure to consider a comment by the criminal trial judge made in his opinion granting the motion for judgment of acquittal on the only count of which he was convicted by the jury. It is alleged that the trial judge expressed a lack of comprehension as to the jury's decision to acquit the defendant on two other counts of the indictment. The defendants assert that the magistrate judge should have taken this comment into account in determining whether probable cause existed to justify the plaintiff's arrest and prosecution, despite the fact that the remark was made in an opinion in another case. The trial judge's comment is not binding on subsequent tribunals since it is nothing more that obitur dictum. It likely has no evidentiary value whatsoever, and although the Sixth "[C]ircuit has further `held that "documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim,"'" Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (quoting Weiner v. Klais Co., 108 F.3d 86, 89 (6th Cir. 1997)), the comment falls within none of those categories and is not properly considered in a motion under Rule 12(b)(6).
Finally, the defendants object to the failure of the magistrate judge to limit discovery. The defendants assert that the plaintiff only should be permitted to take discovery on the claims of retaliation, malicious prosecution, and conspiracy, limited further to the issue of qualified immunity. The first part of the defendants' proposal is entirely appropriate, since the only claims that remain are for retaliation, malicious prosecution, and conspiracy. The second part of the proposal — to limit discovery to the qualified immunity issue — is easily announced but more difficult in application and perhaps not so limiting. It is true that the purpose of the qualified immunity defense is to protect government officials from "the broad-ranging discovery that can be peculiarly disruptive of effective government." Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987) (internal quotes and citation omitted). However, the issue of qualified immunity requires an exploration of the contours of the constitutional rights in issue in the context of the specific facts of the case. See Saucier v. Katz, 533 U.S. 194, 202 (2001). Those questions, in turn, will involve exploration of "the circumstances with which the official is confronted, and often on the information that he possesses." Poe v. Haydon, 853 F.2d 418, 425 (6th Cir. 1988), modification on other grounds recognized by Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 151-52 (6th Cir. 1995). The critical inquiry is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted." Solomon v. Auburn Hills Police Dept., 389 F.3d 167, 172 (6th Cir. 2004) (quoting Saucier, 533 U.S. at 202) (internal quotations omitted). All the dimensions of that "situation," therefore, are the proper subject of discovery. All of these issues must be weighed, since the purpose of the qualified immunity defense is to strike a balance that "accommodates the tension between permitting litigants to recover damages, which is often the only realistic avenue for vindication of constitutional guarantees, and the social costs of such suits, including the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004) (internal quotes and citation omitted).
It is true, therefore, that discovery should be limited to issues relating to the qualified immunity defense, but the omission of limiting language in the report and recommendation does not require its rejection. The matter has been referred to the magistrate judge for pretrial case management, where it soon will return. The Court has no doubt that the magistrate judge is more than equal to the task of managing discovery within the proper framework as outlined by circuit precedent.
Accordingly, it is ORDERED that the report and recommendation [dkt # 17] is ADOPTED.
It is further ORDERED that the defendants' motion to dismiss is [dkt # 8] DENIED in part.
It is further ORDERED that count 2 of the complaint is DISMISSED, and the matter is DISMISSED in its entirety as to defendant United States Department of Treasury, Bureau of Alcohol, Tobacco, and Firearms.
It is further ORDERED that the remaining defendants shall answer the complaint on or before March 29, 2005.
It is further ORDERED that the matter is returned to Magistrate Judge Charles E. Binder for further pretrial case management.