
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2281                            HECTOR GUZMAN-RIVERA, ET AL.,                                Plaintiffs, Appellees,                                          v.                             HECTOR RIVERA-CRUZ, ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                [Hon. Gilberto Gierbolini, Senior U.S. District Judge]                                           __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Jose R.  Gaztambide, with  whom Luis  A. Plaza  and Elisa  Bobonis            ___________________             ______________      ______________        Lang were on brief for appellants.        ____            Victoria A. Ferrer, with whom Alvaro  R. Calderon, Jr. and  Alvaro            __________________            ________________________      ______        R. Calderon, Jr. Law Offices were on brief for appellees.        ____________________________                                 ____________________                                     May 31, 1995                                 ____________________                      BOWNES, Senior  Circuit Judge.  This  is the second                      BOWNES, Senior  Circuit Judge.                              _____________________            time that this civil rights action has been before us.  After            being arrested,  convicted, and imprisoned for  a murder that            he  did not  commit, plaintiff-appellee Hector  Guzman Rivera            (joined  by several  family  members) sued  the Secretary  of            Justice  of  Puerto Rico  and  two  other Justice  Department            officials  under   42  U.S.C.     1983,   alleging  that  the            defendants failed  to timely  reinvestigate the facts  of the            murder after his conviction, and that they failed to move for            his release  even after their  investigation had  established            his innocence.                      In  Guzman-Rivera v.  Rivera-Cruz, 29  F.3d  3 (1st                          _____________     ___________            Cir.  1994)  (Guzman I),  we  reversed  the district  court's                          ________            dismissal of Guzman's suit on statute of limitations grounds.            The  defendants  did  not  assert  absolute  immunity  as  an            alternative ground for affirmance, although that  defense had            been raised below.  On remand, just six days before trial was            scheduled to  begin, the  defendants filed an  "Urgent Motion            for  Relief" seeking  summary judgment  on  absolute immunity            grounds.  We  are left  to wonder why  absolute immunity  was            originally  pled  as  a  defense, abandoned  in  the  initial            appeal, and then resurrected as an emergency on remand.                      The  district court nevertheless  denied the motion            on  the merits, finding genuine issues of material fact as to            the nature of the defendants' post-conviction activities.  We                                         -2-                                          2            therefore  do  not  consider  the absolute  immunity  defense            waived;  it is  the sole  issue on  appeal.   From  the facts            presented in this appeal, we find that the defendants are not            entitled to absolute immunity  for any delays or inadequacies            in  their  conduct  of  the investigation.    We  also  find,            however,  that they  are  absolutely immune  for their  post-                                                                    ____            investigation  failure  to go  into  court  to seek  Guzman's            release.                                          I.                                          __                      We  shall assume, as we did in Guzman I, 29 F.3d at                                                     ________            5, that the plaintiffs' allegations regarding the defendants'            authority, duties, acts and omissions are true, and that they            are  sufficient to allege a violation of federal rights.  See                                                                      ___            Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2609 (1993).            _______    ___________                      Guzman was convicted of  a 1987 murder in Carolina,            Puerto Rico, and sentenced to 119 years' imprisonment on June            27, 1989.  Beginning  on August 21, 1989, his  father, Guzman            Fernandez, repeatedly  corresponded  with  or  met  with  the            defendants:   Hector  Rivera Cruz,  the Secretary  of Justice            (Puerto Rico's equivalent of  a state attorney general); Luis            Feliciano  Carreras,  Director  of the  Justice  Department's            Prosecutor's Office and a  high-ranking official of the Civil            Rights  Division;  and  Carreras'  successor,  Pedro Geronimo            Goyco. Based on his own investigation, which yielded powerful            evidence  that  his   son  was  innocent,   Guzman  Fernandez                                         -3-                                          3            requested  that  defendant Luis  Feliciano  Carreras  order a            reinvestigation of the murder.   Carerras referred the matter            to an attorney with the Civil Rights Division, but refused to            do anything more.                      After several  months  of stonewalling,  the  Civil            Rights   Division   finally   investigated   Guzman's   case.            Investigators interviewed  three of  the true  murderer's co-            conspirators,   who  unanimously   stated  that   Guzman  was            innocent.  The head of the Civil Rights Division reviewed the            findings of  the investigation and concluded  that Guzman was            innocent.  Defendants Pedro  Geronimo Goyco and Hector Rivera            Cruz refused, however, to move for Guzman's release until the            murderer was captured.                      On  June 11,  1990,  Guzman Fernandez  told of  his            son's plight on Puerto Rico television.  Several  days later,            he appealed to  the Governor  of Puerto Rico.   The  Governor            allegedly ordered defendant Geronimo Goyco to release Guzman.            The defendants instructed Guzman's attorneys to file a motion            for a new trial under Rule 192.1 of the Puerto  Rico Rules of            Criminal Procedure.  The  motion was filed on June  15, 1990,            and Guzman was released the same day.                                         II.                                         ___                      Qualified  immunity  is   the  defense   ordinarily            available  to public officials who are sued under 42 U.S.C.              1983.  Absolute  immunity, by contrast,  is reserved for  the                                         -4-                                          4            "'special  functions'" of  certain  officials  that  resemble            functions  that would have been  immune at common  law when              1983 was enacted.  Buckley, 113  S. Ct. at 2613 (quoting Butz                               _______                               ____            v.  Economou,  438 U.S.  478,  508 (1978)).    In determining                ________            whether a particular act fits within the common-law tradition            of absolute  immunity, the Supreme Court  takes a "functional            approach," Burns v. Reed, 500 U.S. 478, 486 (1991), examining                       _____    ____            "'the nature of the function  performed, not the identity  of            the  actor who performed  it.'"  Buckley, 113  S. Ct. at 2613                                             _______            (quoting Forrester v. White, 484 U.S. 219, 229 (1988)).                     _________    _____                      Under the  functional  approach, it  is  immaterial            that the  defendants were  prosecutors ex officio.   Absolute                                                   __ _______            immunity protects the prosecutor's "'role as advocate for the            State,'" and not  his or  her role as  an "'administrator  or            investigative  officer.'"   Burns, 500  U.S. at  491 (quoting                                        _____            Imbler  v. Pachtman, 424 U.S.  409, 430-31, 431 n.33 (1976)).            ______     ________            Prosecutorial  conduct is  absolutely  immune only  if it  is                                                          ____            "intimately   associated  with  the  judicial  phase  of  the            criminal  process  .  . .  ."    Imbler, 424  U.S.  at 430-31                                             ______            (holding that state prosecutor  had absolute immunity for the            initiation and  pursuit of a criminal  prosecution, including            presentation  of  the  state's  case  at  trial).    See also                                                                 ___ ____            Buckley,  113 S.  Ct. at  2614; Celia  v. O'Malley,  918 F.2d            _______                         _____     ________            1017,  1019 (1st  Cir. 1990)  ("a prosecutor  enjoys absolute                                         -5-                                          5            immunity from suit  based on  actions taken  pursuant to  his            quasi-judicial function").                      We  begin by  dividing  the defendants'  challenged            conduct into two  phases:   (1) the delay  in performing  the            post-trial  investigation, including any  inadequacies in the            investigation itself; and (2)  the failure to go to  court to            obtain   Guzman's   release  after   the   investigation  had            established his innocence.  As the defendants  moved from (1)            to (2),  and as the  evidence of Guzman's  innocence mounted,            their acts  became increasingly associated  with the judicial            phase of the criminal process.  To illustrate:  once Guzman's            innocence was  established, the  defendants could obtain  his            release  only  by filing  a  motion to  dismiss  the criminal            action,  or by acquiescing in  Guzman's own motion  for a new            trial.    Looking  backwards  from this  endpoint,  we  might            characterize   (1),  the   post-trial  investigation,   as  a            preparatory  step  for  (2),  the in-court  exercise  of  the            prosecutorial function.                      The defendants seem to think that absolute immunity            extends  to all  conduct that  facilitates the  prosecutorial            function.   The functional analysis, however,  requires us to            draw  a  line  between  preparatory conduct  that  is  merely            administrative or  investigative,  and that  which is  itself            prosecutorial.   For  example,  some,  but not  all,  of  the            prosecutor's preparatory acts in initiating a prosecution and                                         -6-                                          6            presenting  the  State's case  are  absolutely  immune.   See                                                                      ___            Imbler, 424 U.S. at 431  n.33; Burns, 500 U.S. at  492-96 (no            ______                         _____            absolute  immunity for  prosecutor's  legal advice  to police            that there was probable cause for an arrest); Buckley, 113 S.                                                          _______            Ct.  at   2615-17  (no  absolute  immunity  for  prosecutors'            conspiracy  to  manufacture  false evidence  that  was  later            introduced at grand jury  proceedings and at trial, or  for a            prosecutor's  out-of-court  statements to  the  press).   Cf.                                                                      ___            Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th            ________    ______________________            Cir. 1991) ("[A]bsolute  immunity may  attach even to  . .  .            administrative   or   investigative  activities   when  these            functions are necessary so that  a prosecutor may fulfill his                          _________            function  as  an officer  of  the  court.") (emphasis  added;            citations  and  internal  quotation   marks  omitted).    The            prosecutorial nature of an act does not spread backwards like            an inkblot, immunizing everything it touches.  See Burns, 500                                                           ___ _____            U.S.  at 495 ("Almost  any action by  a prosecutor, including            his or  her  direct  participation  in  purely  investigative            activity, could  be said  to be  in some  way related to  the            ultimate  decision whether  to prosecute,  but we  have never            indicated that absolute immunity is that expansive.").                      We  do  not  think  that absolute  immunity  should            extend  to  the  preparatory  conduct  in  this  case.    The            investigators  of the  Civil  Rights Division,  whose actions            have been  imputed to  the defendants, actively  gathered and                                         -7-                                          7            corroborated  evidence  of  Guzman's  innocence.   These  are            functions   typically  performed   by  police   officers  and            detectives.      By   contrast,  the   prosecutor-as-advocate            "evaluat[es]   evidence  and  interview[s]  witnesses  as  he             ___________                                           ______            prepares  for trial  . . .  ."   Buckley, 113 S.  Ct. at 2616            ___________________              _______            (emphasis added).  It is not the prosecutor's usual office to            uncover evidence in the first instance, before s/he has cause            to  initiate a post-trial  judicial proceeding.   And  to the            extent  that prosecutors do so act, they are not performing a            function "intimately  associated with the  judicial phase  of                                                       ________            the  criminal  process .  . .  ."   Imbler,  424 U.S.  at 430                                                ______            (emphasis added).                      Our functional analysis draws  upon Buckley, a pre-                                                          _______            trial  immunity  case,  in  which the  Supreme  Court  denied            absolute  immunity  to  prosecutors  who   had  conspired  to            manufacture false evidence before there was probable cause to            arrest  the  suspect.     "When  a  prosecutor  performs  the            investigative  functions normally performed by a detective or            police  officer, it  is neither  appropriate  nor justifiable            that, for the same  act, immunity should protect the  one and            not the other."  Id. at 2616 (citation and internal quotation                             ___            marks  omitted).    The   prosecutors  in  Buckley  were  not                                                       _______            functioning as advocates  for the state, but  in an "entirely            investigative"  capacity, inasmuch  as  they lacked  probable            cause to arrest the  suspect or initiate judicial proceedings                                         -8-                                          8            during  that  period.   Id.   "A  prosecutor neither  is, nor                                    ___            should  consider himself  to be,  an  advocate before  he has            probable cause to have anyone arrested."  Id.                                                      ___                      This  case  mirrors   Buckley  in  the   post-trial                                            _______            context.  It is undisputed  on appeal that no post-conviction            proceeding was  pending  at  the  time of  the  civil  rights            investigation.   Although  the investigation  ultimately gave            the  defendants   cause  to  move  to   reopen  the  criminal            proceedings -- i.e., to resume their role as "advocate[s] for                           ____            the [Commonwealth]," Imbler, 424 U.S. at 431 n.33 -- this was                                 ______            only  one of  several possible  outcomes.   The investigation            might  have found nothing at all.   Or, it might have exposed            evidence of prosecutorial misconduct, such as the withholding            of  potentially  exculpatory  material,  but   no  conclusive            evidence of Guzman's innocence.  Neither result would require            the  defendants  to  perform  a  quasi-judicial  function  in            Guzman's  case.  Only with  the benefit of  hindsight can the            defendants  marry  the investigation  to  the  exercise of  a            quasi-judicial function.   See Buckley,  113 S.  Ct. at  2616                                       ___ _______            (noting  that prosecutors  lacked "probable  cause  . .  . to            initiate  judicial   proceedings"  during  period   of  their            challenged   conduct).     Accordingly,   the   civil  rights            investigation  had  only  an  attenuated  and contingent,  as            opposed to "intimate[]," association with the judicial  phase            of the criminal process.  Imbler, 424 U.S. at 430.                                      ______                                         -9-                                          9                      We  note  several other  reasons for  not extending            absolute  immunity to any delays or inadequacies in the civil            rights investigation.  First, "the 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.  The defendants here have not identified  any historical            or common-law support for  extending absolute immunity to the            conduct  of  a  civil   rights  investigation  that  is  only            contingently  associated  with  the  judicial  phase  of  the            criminal process.  "Absent a tradition of immunity comparable            to the common-law  immunity from malicious  prosecution," the            Supreme  Court  has "not  been  inclined  to extend  absolute            immunity  from liability under    1983."  Id.  at 493 (citing                                                      ___            Malley v. Briggs, 475 U.S. 335, 342 (1986)).            ______    ______                      Second,  to  the extent  that  the  defendants were            functioning as  officials of the Civil  Rights Division, they            were not acting purely as advocates for the Commonwealth, but            partly to vindicate Guzman's civil rights.  The mixed purpose            of the  civil rights  investigation reflects the  defendants'            own  mixed functions.   This  factor  also tends  to separate            their  conduct  from  the  judicial  phase  of  the  criminal            process.                      Third,   had  the  defendants   been  civil  rights            officials only, it seems unlikely that they would be entitled            to  absolute  immunity for  the  investigation  itself.   The                                         -10-                                          10            defendants should  not enjoy  absolute immunity for  the same            conduct  merely  because  they  happen  also  to  direct  the            Prosecutor's  Office.  Cf. Burns, 500 U.S. at 495 (finding it                                   ___ _____            "incongruous to  allow prosecutors  to  be absolutely  immune            from  liability for giving advice to the police, but to allow            police  officers only  qualified immunity  for following  the            advice");  Buckley, 113 S. Ct.  at 2617 n.6  ("If the police,                       _______            under  the guidance  of  the prosecutors,  had solicited  the            allegedly 'fabricated'  testimony .  . .  they  would not  be            entitled to anything more than qualified immunity."); Houston                                                                  _______            v. Partee,  978 F.2d  362, 367 (7th  Cir. 1992)  (prosecutors               ______            who, acting  solely as  investigators, acquired and  withheld            exculpatory evidence after their  role in the prosecution had            ended,  are  "not entitled  to  any  more immunity  than  the            defendant police  officers"), cert.  denied, 113 S.  Ct. 1647                                          _____  ______            (1993).                      Finally, although every denial of absolute immunity            potentially exposes prosecutors to additional litigation, our            analysis  cannot be  driven  by "a  generalized concern  with            interference with an official's duties  . . . ."  Burns,  500                                                              _____            U.S.  at 494.   "Absolute  immunity is  designed to  free the            judicial  process  from   the  harassment  and   intimidation            _________________            associated  with  litigation."    Id.   It  is  reserved  for                                              ___            "actions  that are  connected with  the prosecutor's  role in            judicial  proceedings,  not  for   every  litigation-inducing                                         -11-                                          11            conduct."   Id.    We think  that  the defense  of  qualified                        ___            immunity is  sufficient to protect prosecutors  who, like the            defendants,   conduct   a   post-conviction,   civil   rights            investigation.                                         III.                                         ____                      These   considerations   do   not  apply   to   the            defendants'  failure to  move for  the dismissal  of Guzman's            case  at the  close of  the investigation.   Guzman  does not                                                                      ___            allege that the defendants withheld exculpatory evidence from            him,  thereby delaying his own  motion for a  new trial.  See                                                                      ___            Houston,  978 F.2d  at 365  (denying absolute  immunity where            _______            claim was  based squarely on failure  to disclose exculpatory            evidence to the  defense).  In  effect, the plaintiffs'  sole            post-investigation claim is that  the defendants failed to go            to court as prosecutors to undo Guzman's conviction.                      Even if it were  shown that the defendants reviewed            the evidence,  found Guzman innocent, and  did nothing, their            decision  withal not to dismiss his criminal case lies at the            heart of the prosecutorial function.  See Imbler, 424 U.S. at                                                  ___ ______            431  n.33 (noting  that  the duties  of  a prosecutor  as  an            advocate  for  the  State  include the  decision  whether  to            dismiss an indictment  against particular  defendants).   Cf.                                                                      ___            Harrington v. Almy, 977 F.2d 37, 42 n.3 (1st  Cir. 1992) (the            __________    ____            decision  to prosecute or not falls  within "the precise zone            of decision-making the Supreme Court has placed at the center                                         -12-                                          12            of the immunity doctrine").   After all, the decision  not to            dismiss  complements the initial  decision to  prosecute, and            the  prosecutor's absolute  immunity for  the latter  is well            settled.   For the reasons cited in  Imbler, 424 U.S. at 424-                                                 ______            27,  dismissal decisions  fit  within the  same tradition  of            common law immunity as  charging decisions; both are entitled            to  absolute  immunity under    1983.    Otherwise, a    1983            plaintiff   would   simply  recast   a  suit   for  malicious            prosecution as one for failure to dismiss.                      Although  the alleged omission is reprehensible, we            hold  that the  defendants are  absolutely immune  from civil            damages  liability for  their  post-investigation failure  to            move for Guzman's release.                                         IV.                                         ___                      Because   the  undisputed   facts  show   that  the            defendants are  not entitled  to absolute immunity  for their            conduct  of  the  civil  rights  investigation,  the district            court's  order  denying the  defendants'  motion for  summary            judgment is affirmed.   The case is remanded  for proceedings                        ________                ________            consistent with this opinion.                                         -13-                                          13
